The opinion
PHI NGO AND XUAN TRINH NO. 22-C-183
VERSUS FIFTH CIRCUIT
MARK SPEARS THROUGH THE OFFICE OF COURT OF APPEAL
ATTORNEY GENERAL JEFF LANDRY
STATE OF LOUISIANA
June 29, 2022
Susan Buchholz
First Deputy Clerk
IN RE MARK SPEARS THROUGH OFFICE OF ATTORNEY GENERAL JEFF LANDRY
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE SCOTT U.
SCHLEGEL, DIVISION "D", NUMBER 822-927
Panel composed of Judges Jude G. Gravois,
Hans J. Liljeberg, and John J. Molaison, Jr.
WRIT GRANTED; JUDGMENT REVERSED; EXCEPTION OF NO
CAUSE OF ACTION SUSTAINED; CLAIMS DISMISSED WITH
PREJUDICE; REQUEST FOR STAY DENIED
Relator/defendant, Justice of the Peace Mark Spears, through the Office of
Attorney General Jeff Landry, seeks this Court’s supervisory review of the trial
court’s April 25, 2022 judgment which denied his peremptory exception of no
cause of action. For the reasons that follow, we reverse the trial court’s judgment
denying the peremptory exception of no cause of action, sustain the exception of
no cause of action, and dismiss all claims against Mr. Spears with prejudice. We
further deny Mr. Spears’s request for a stay of the trial court proceeding as moot.
On November 18, 2021, plaintiffs, Phi Ngo and Xuan Trinh, filed a petition
for damages and declaratory relief, naming as a defendant Mark Spears, in his
individual capacity and his official capacity as Justice of the Peace of the Second
Justice Court for the Parish of Jefferson. Plaintiffs asserted the following
allegations in the petition: Ronnie and Erica Cancienne1 filed a statement of claim
with the Jefferson Parish Second Justice Court, against a number of individuals.
Mr. Ngo was not named as a defendant and no citation was issued to him.
Subsequently, the Canciennes filed a motion and order to set the matter for trial
which Mr. Spears signed; Mr. Ngo was again not named as a defendant. Because
Mr. Ngo did not answer the statement of claim and did not appear at the trial, Mr.
Spears signed a judgment of default against Mr. Ngo, finding him liable for
$5,000.00 plus interest. Mr. Ngo never received notice of the judgment.
Thereafter, the Canciennes filed a rule to show cause to establish community
obligation of spouse, against Ms. Trinh. Ms. Trinh did not receive notice of the
pleading. After Mr. Ngo received notice, he met with Mr. Spears, and Mr. Spears
encouraged Mr. Ngo to make an oral motion to nullify the default judgment at the
rule to show cause hearing instead of filing a petition to nullify the default
judgment. At the rule to show cause hearing, Mr. Ngo made an oral motion to
nullify the default judgment, which Mr. Spears denied. Mr. Spears then signed a
judgment establishing a community obligation and holding Ms. Trinh liable in
solido for the amount of the default judgment. The Canciennes then instituted
garnishment proceedings, which were approved by Mr. Spears. Plaintiffs were not
notified of the garnishment proceedings.
Plaintiffs brought the following claims in the petition against Mr. Spears: 1)
Mr. Spears was disqualified from his position as Justice of the Peace due to his
deficient oaths of office filing and recordation, and therefore, as it relates to the
present case, the default judgment, the judgment establishing community
obligation, and the rulings pertaining to the garnishment proceedings should all be
considered absolutely null; 2) due process violations under 42 U.S.C. §1983; 3)
1
The Canciennes were also named as defendants in the present suit.
equal protection violations under 42 U.S.C. §1983; 4) due process violations under
Article 1, § 2 of the Louisiana Constitution; 5) equal protection violations under
Article 1, § 3 of the Louisiana Constitution; and 6) nullification of the default
judgment, the judgment establishing the community property obligation, and the
rulings pertaining to the garnishment proceedings based on lack of notice.
Plaintiffs alleged that they are entitled to declaratory relief consisting of the three
judgments in question being declared null and void and also to punitive and
compensatory damages and attorney’s fees.
In response, Mr. Spears filed a peremptory exception of no cause of action,
arguing that Mr. Spears, as a justice of the peace, enjoys absolute judicial
immunity. He argued that because the allegations of the petition all concerned
judicial functions and are not without complete absence of all jurisdiction,
plaintiffs’ claims are barred by the doctrine of judicial immunity. Following a
hearing on the exception,2 the trial court signed a written judgment on April 25,
2022, denying the exception of no cause of action.
The function of the peremptory exception of no cause of action is to test the
legal sufficiency of the petition, which is done by determining whether the law
affords a remedy on the facts alleged in the pleading. State, Div. of Admin., Office
of Facility Planning & Control v. Infinity Sur. Agency, L.L.C., 10-2264 (La.
5/10/11), 63 So.3d 940, 945. No evidence may be introduced to support or
controvert an exception of no cause of action. La. C.C.P. art. 931. The court
reviews the petition and accepts the well-pleaded allegations of fact as true.
Khoobehi Properties, LLC v. Baronne Dev. No. 2, L.L.C., 16-506 (La. App. 5 Cir.
3/29/17), 216 So.3d 287, 297, writ denied, 17-0893 (La. 9/29/17), 227 So.3d 288.
In reviewing the judgment of the trial court relating to an exception of no cause of
2
The writ application does not include a transcript of this hearing.
action, appellate courts should conduct a de novo review because the exception
raises a question of law and the lower court’s decision is necessarily based solely
on the sufficiency of the petition. Id. The issue at the trial of the exception is
whether, on the face of the petition, the plaintiff is entitled to the relief sought.
Whether the plaintiff can prove the allegations set forth in the petition is not
determinative of the exception of no cause of action. Wood v. Omni Bancshares,
Inc., 10-216 c/w 10-567 (La. App. 5 Cir. 4/26/11), 69 So.3d 475, 479-80. Because
the trial of the exception is solely on the face of the pleadings, the court may not go
beyond the petition to the merits of the case. Id.
A long line of United States Supreme Court cases acknowledges that,
generally, a judge is immune from a suit for money damages. Mireles v. Waco,
502 U.S. 9, 9-10, 112 S.Ct. 286, 287, 116 L.Ed.2d 9 (1991) (citations omitted).
Courts have consistently held that judicial immunity is an immunity from suit, not
just the ultimate assessment of damages. Mireles, 502 U.S. at 11, 112 S.Ct. at 288.
A judge, in whatever status in the judicial hierarchy, is immune from suit for
damages resulting from any act performed in the judicial role. McCoy v. City of
Monroe, 32,521 (La. App. 2 Cir. 12/8/99), 747 So.2d 1234, 1241, writ denied, 788
So.2d 441 (La. 2001). Judges are absolutely immune from 42 U.S.C. § 1983
liability for all acts performed within their subject matter jurisdiction, even if the
acts are malicious. Id. This immunity extends to justices of the peace as well as
those that sit on the Supreme Court and shields judges unless they act either in “the
clear absence of all jurisdiction over subject matter” or in a nonjudicial capacity.
Id., citing Moore v. Taylor, 541 So.2d 378 (La. App. 2d Cir.1989).3
There are only two circumstances under which judicial immunity may be
overcome. First, a judge is not immune from liability for non-judicial actions, i.e.,
3
See also Conques v. Hardy, 337 So.2d 627 (La. App. 3d Cir. 1976), where the Third
Circuit found that a justice of the peace was protected by judicial immunity.
actions not taken in the judge’s judicial capacity. Second, a judge is not immune
for actions, though judicial in nature, taken in the complete absence of all
jurisdiction. Mireles, 502 U.S. at 11-12, 112 S.Ct. at 288. Allegations of bad faith
or malice are not sufficient to overcome judicial immunity. Mireles, 502 U.S. at
11, 112 S.Ct. at 288. Whether an act by a judge is a “judicial” one relates to the
nature of the act itself, i.e., whether it is a function normally performed by a judge,
and to the expectations of the parties, i.e., whether they dealt with the judge in his
judicial capacity. Mireles, 502 U.S. at 12, 112 S.Ct. at 288.
The scope of a judge’s jurisdiction must be construed broadly where the
issue is the immunity of the judge. A judge will not be deprived of immunity
because the action he took was in error, was done maliciously, or was in excess of
his authority; rather, he will be subject to liability only when he has acted in the
“clear absence of all jurisdiction.” Stump v. Sparkman, 435 U.S. 349, 356-57; 98
S.Ct. 1099, 1105, 55 L.Ed.2d 331 (1978).
Justices of the peace have concurrent jurisdiction with the trial court in cases
where the amount in dispute does not exceed five thousand dollars. La. C.C.P. art.
4911; see also La. R.S. 13:2586. A justice of the peace who renders a judgment
shall retain original jurisdiction over that judgment, the enforcement, and
collection of garnishments, judgment debtor examinations, and the issuance of any
writ to enforce its judgment. La. R.S. 13:2586(E)(1).
Upon de novo review, we find that plaintiffs’ allegations in the petition
against Mr. Spears arise out of the underlying case in the Second Justice Court
action before Mr. Spears. Mr. Spears’s signing and issuing of the judgments in the
underlying case, including the rulings in the garnishment proceedings, were normal
functions of a justice of the peace and within his judicial capacity. Also his actions
were not performed in the clear absence of all jurisdiction. Thus, Mr. Spears is
entitled to judicial immunity.
Further, though the petition seeks to declare the three judgments null and
void, the proper avenue to seek review of adverse judgments is applicable appellate
review/nullity actions, and not a declaratory action suit against the justice of the
peace.
Plaintiffs also claim in their petition that Mr. Spears was disqualified from
his position as justice of the peace for failure to file his oath of office pursuant to
La. R.S. 42:141 and La. R.S. 42:162, and as such, the judgments in question should
be declared absolutely null. A public officer’s failure to qualify under La. R.S.
42:141 will not vitiate his acts if he fulfills the requirements of a de facto officer.
Cossich v. Plaquemines Par. Gov’t, 09-1522 (La. App. 4 Cir. 10/8/10), 50 So.3d
869, 877, writ denied, 11-0003 (La. 2/18/11), 57 So.3d 334 (citing Thibodeaux v.
Comeaux, 243 La. 468, 145 So.2d 1 (La. 1962); State v. Hargis, 179 La. 623, 154
So. 628 (La. 1934)). For reasons of public policy, the acts of a de facto officer are
valid as to third persons and the public until the officer’s title to office is adjudged
insufficient. In the meantime, the officer’s authority may not be collaterally
attacked or inquired into by third persons. State v. Johnson, 249 La. 950, 192
So.2d 135 (1966), writ denied, 388 U.S. 923, 87 S.Ct. 2144, 18 L.Ed.2d 1374
(1967). Thus, even accepting the allegations of plaintiffs’ petition on this claim as
true, plaintiffs’ petition fails to state a cause of action on this claim as well.
DECREE
For the foregoing reasons, we find that plaintiffs’ petition failed to state a
cause of action against Mr. Spears, and the trial court thus erred in denying Mr.
Spears’s exception of no cause of action. Accordingly, we reverse the trial court’s
judgment denying the peremptory exception of no cause of action, sustain the
exception of no cause of action, and dismiss all claims against Mr. Spears with
prejudice.
We further deny Mr. Spears’s request for a stay of the trial court proceeding
as moot.
Gretna, Louisiana, this 29th day of June, 2022.
JGG
HJL
JJM
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
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www.fifthcircuit.org
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22-C-183
E-NOTIFIED
24th Judicial District Court (Clerk)
Hon. Scott U. Schlegel (DISTRICT JUDGE)
Vladimir Thomas (Respondent)
Justin Lester (Relator)
MAILED
Ronnie Cancienne (Respondent) Honorable Jeffrey M. Landry (Relator) Erin C. Day (Relator)
Erica Cancienne (Respondent) Attorney General Brett Robinson (Relator)
In Proper Person Louisiana Department of Justice Attorney at Law
137 Cottonwood Drive Post Office Box 94005 Post Office Box 94005
Gretna, LA 70056 Baton Rouge, LA 70804 Baton Rouge, LA 70804
Erin C. Day (Respondent)
Brett Robinson (Respondent)
Attorney at Law
Post Office Box 94005
Baton Rouge, LA 70804
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ErinC. Day
Assistant Attorneys General
Post Office Box 94005
Baton Rouge, I .A 70804
22-C-183 06-29-22
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Erica Cancienne
Ronnie Cancienne
13 7 Cottonwood Drive
Gretna, LA 70056
22-C-183 06-29·22
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