Glenn Damond v. Frank A. Marullo III, Paul A. Bonin, Nicholas Stephen Bergeron, Judiciary Courts of the State of Louisiana, Frank A. Marullo, and City of New Orleans

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 0675

GLENN DAMOND

VERSUS

FRANK A. MARULLO III, PAUL A. BONIN, NICHOLAS STEPHEN
BERGERON, JUDICIARY COURTS OF THE STATE OF LOUISIANA, FRANK
A. MARULLO, JR., AND CITY OF NEW ORLEANS

JUDGMENT RENDERED: JUN 2 2 2020

Appealed from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge • State of Louisiana
Docket Number 675084 • Section 24

The Honorable R. Michael Caldwell, Judge Presiding

Glenn Damond APPELLANT
Baton Rouge, Louisiana PLAINTIFF— In Proper Person

Jeff Landry ATTORNEYS FOR APPELLEES

Attorney General DEFENDANTS— Judge Frank A.
Marullo, Jr., Judge Paul Bonin,
David G. Sanders and Frank A. Marullo, III
Assistant Attorney General
Baton Rouge, Louisiana

David M. Fink ATTORNEYS FOR APPELLEE
Bernard L. Charbonnet, Jr. DEFENDANT— Nicholas Stephen
New Orleans, Louisiana Bergeron

BEFORE: MCCLENDON, WELCH, AND HOLDRIDGE, JJ.
n
r M?G L .

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WELCH, J.

The plaintiff, Glenn Damond, devolutively appeals the trial court' s judgment

sustaining a peremptory exception raising the objections of prescription and no

cause of action on the basis of judicial immunity filed by the defendants— retired

Orleans Parish Judge Frank A. Marullo, Jr., Orleans Parish Judge Paul A. Bonin,

and Minute Clerk for the Criminal District Court of Orleans Parish Frank A.

Marullo, III—and which dismissed all of the plaintiffs claims against those

defendants, with prejudice. For the following reasons, we affirm.

THE ALLEGATIONS OF THE PETITION

Mr. Damond filed this lawsuit on October 16, 2018, against retired Judge

Marullo, Judge Bonin, Minute Clerk Marullo, Orleans Parish Assistant District

Attorney (" ADA") Nicholas Stephen Bergeron, the Judiciary Courts of the State of

Louisiana (" Judiciary Courts"), and the City of New Orleans (" City"). Mr.

Damond alleged that the defendants engaged in a conspiracy to use fraudulent

documents to deprive him of liberty, subject him to confinement and cruel and

unusual punishment, and gain an unjust enrichment. Specifically, Mr. Damond

alleged that he was arrested on October 27, 1996, and that on December 12, 1996,

the City filed a " fraudulent document" titled a true bill of indictment and converted

him " into a thing" by modifying his name to " DAMOND GLENN." Mr. Damond

further alleged that he was coerced into signing a guilty plea on March 23, 1996,

another fraudulent document," that caused him to serve fourteen years and nine

months in prison.

Mr. Damond claimed that on December 17, 1998, retired Judge Marullo,

through the Judiciary Courts, " securitized" the fraudulent document and sold the

instrument" on the open stock market. Mr. Damond alleged that the " securitized

bond" has a value of $52, 270, 000. 00 and is being traded on the stock market " until

the retirement of [defendant' s] off book accounts."

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Mr. Damond further alleged that on July 27, 2018, he submitted the

foregoing information to Judge Bonin and ADA Bergeron to " correct," but that

Judge Bonin, ADA Bergeron, and Minute Clerk Marullo " ignored the paperwork,

disregarded it[,] and held [ four] private meetings to destroy those documents."

Based on his allegations, Mr. Damond claimed entitlement to damages.

DEFENDANTS' EXCEPTIONS

On November 30, 2018, retired Judge Marullo, Judge Bonin, and Minute

Clerk Marullo filed a peremptory exception raising the objection of prescription

and the objection of no cause of action on the basis of judicial immunity. On

December 26, 20185 ADA Bergeron filed a declinatory exception raising the

objection of improper venue; a dilatory exception objecting to the nonconformity

of the petition with the provisions of La. C. C. P. art 891, ambiguity, and vagueness;

and a peremptory exception raising the objection of no cause of action on the basis

of prosecutorial immunity. Mr. Damond opposed the defendants' exceptions.

TRIAL COURT' S RULING AND THE APPEAL

The trial court heard the defendants' exceptions on February 11, 2019.

Following the hearing, the trial court orally sustained the peremptory exception

raising the objection of prescription and objection of no cause of action on the

basis of judicial immunity relative to retired Judge Marullo, Judge Bonin, and

Minute Clerk Marullo. The trial court signed a judgment in accordance with that

ruling on March 6, 2019. On March 11, 2019, Mr. Damond filed a motion to

devolutively appeal the trial court' s March 6, 2019 judgment, which the trial court

granted in an order of appeal signed on March 13, 2019.

Also following the February 11, 2019 hearing, the trial court orally sustained

the peremptory exception raising the objection of no cause of action on the basis of

prosecutorial immunity relative to ADA Bergeron. The trial court thereafter

signed a judgment on April 8, 2019, sustaining the peremptory exception raising

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the objection of no cause of action on the basis of prosecutorial immunity relative

to ADA Bergeron and ruling that his objections of improper venue, nonconformity,

vagueness, and ambiguity were moot.

However, jurisdiction of the trial court over all matters reviewable under the

appeal is divested, and that of the appellate court attaches, on the granting of the

order for a devolutive appeal. La. C. C. P. art. 2088( A). Further, an appellate court

not only has an independent duty to consider whether it has subject matter

jurisdiction over the matter, but also has the sole authority to determine whether an

appeal is properly before it once the trial court' s jurisdiction has been divested.

Hernandez v. Excel Contractors, Inc., 2018- 1091 ( La. App. 1St Cir. 3/ 13/ 19), 275

So. 3d 278, 284. Once the jurisdiction of the trial court is divested, the appellate

court alone may determine whether an appeal is properly before it. This right in

the appellate court rests solely within the power and jurisdiction of the appellate

court by virtue of its supervisory jurisdiction over the lower tribunal. Gros v.

STMG Lapeyre, LLC, 2014- 0848 ( La. App. 1St Cir. 5/ 6/ 15), 2015 WL 2169680,

at * 3 ( unpublished).

Any order or judgment rendered subsequent to the order granting an appeal

is null if that order or judgment purports to address a matter which is at the time

reviewable under the appeal. Hernandez, 275 So. 3d at 283; see also La. C. C. P.

art. 2088. Although the trial court may still correct
any misstatements,

irregularities or informalities, or omission of the trial record as provided in La.

C. C. P. art. 2132, there is no authority for a trial court to correct a judgment after it

is divested of jurisdiction. Costanza v. Snap- On Tools, 2013- 0332, 2013- 0333

La. App. Pt Cir. 3/ 5/ 14), 2014 WL 886021, at * 4 ( unpublished). Thus, even when

an appellate court ultimately determines that it lacks appellate jurisdiction,

jurisdiction over the issues and the parties included in that judgment is divested

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from the trial court upon the signing of the order of appeal. Hernandez, 275 So.

3d at 283- 84.

Herein, Mr. Damond sought and was granted a devolutive appeal from the

trial court' s March 6, 2019 judgment, which included a ruling on Mr. Damond' s

claims relative to retired Judge Marullo, Judge Bonin, and Minute Clerk Marullo.

The March 6, 2019 judgment appealed from specifically excluded any ruling

relative to Mr. Damond' s claims against ADA Bergeron. Accordingly, the trial

court retained jurisdiction over Mr. Damond' s claims against ADA Bergeron

pursuant to La. C. C. P. art. 2088. Therefore, the April 8, 2019 judgment sustaining

the peremptory exception raising the objection of no cause of action on the basis of

prosecutorial immunity relative to ADA Bergeron rendered by the trial court

subsequent to the granting of the March 13, 2019 order of appeal is not a nullity.

However, the April 8, 2019 judgment sustaining ADA Bergeron' s exception

and dismissing Mr. Damond' s claims against him is not before us in this appeal.

The record does not indicate when notice of that judgment was mailed. Mr.

Damond did not file a motion to appeal the April 8, 2019 judgment. When an

appellant fails to timely appeal a final judgment, the judgment acquires the

authority of a thing adjudged, and a court of appeal has no jurisdiction to alter the

judgment. Salvador v. Main St. Family Pharmacy, L.L.C., 2017- 1757 ( La. App.

1St Cir. 6/ 4/ 18), 251 So. 3d 1107, 1114. Lacking jurisdiction to review the April 8,

2019 judgment, we do not consider any assignment of error, any brief, or the

answer to the appeal directed to the April 8, 2019 judgment.

PRESCRIPTION

Liberative prescription is a mode of barring actions as a result of inaction for

a period of time. La. C. C. art. 3447. Mr. Damond' s claims comprise a delictual

action that is subject to a liberative prescription of one year, which commences to

run from the day injury or damage is sustained. See La. C. C. art. 3492.

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Appellate review applicable to a peremptory exception depends on the

manner in which the exception is heard. Evidence may be introduced to support or

controvert the exception of prescription when the grounds thereof do not appear

from the petition. La. C. C. P. art. 931; Shannon v. Vannoy, 2017- 1722 ( La. App.

Pt Cir. 6/ 1/ 18), 251 So. 3d 442, 448. In the absence of evidence, the exception

must be decided on the facts alleged in the petition, which are accepted as true.

Shannon, 251 So. 3d at 448- 49. When evidence is received at the trial of the

exception, the appellate court reviews the trial court' s factual findings under the

manifest error -clearly wrong standard. Shannon, 251 So. 3d at 449. However, in

a case involving no dispute regarding material facts, only the determination of a

legal issue, a reviewing court must apply the de novo standard of review, under

which the trial court' s legal conclusions are not entitled to deference. Shannon,

251 So. 3d at 449. In this matter, no evidence was introduced at the hearing on the

exception. Accordingly, we accept as true the facts alleged in the petition and

apply the de novo standard to our review of the trial court' s legal conclusions.

All of Mr. Damond' s claims against retired Judge Marullo stem from events

that he alleged occurred in 1996 and 1998: his criminal indictment, coercion into

pleading guilty, and the securitization of a " fraudulent document." Mr. Damond

does not specify the date or dates when Judge Bonin and Minute Clerk Marullo

allegedly acted, only that Mr. Damond filed " paperwork" on July 27, 2018. As

delictual actions are subject to a prescriptive period of one year, these claims

against retired Judge Marullo are clearly prescribed on the face of Mr. Damond' s

petition that was filed on October 16, 2018.

Ordinarily, the party urging prescription bears the burden of proving such at

the trial of the exception; however, if the petition is facially prescribed, as in this

matter, the burden shifts to the plaintiff to show his action is not prescribed.

Quinn v. Louisiana Citizens Property Insurance Corp., 2012- 0152 ( La.

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11/ 2/ 12), 118 So. 3d 1011, 1017. Mr. Damond did not submit any argument or

evidence to the trial court to satisfy this burden of proof. Therefore, the trial court

properly sustained the peremptory exception raising the objection of prescription.

NO CAUSE OF ACTION

As used in the context of the peremptory exception, a " cause of action"

refers to the operative facts which give rise to the plaintiff' s right to judicially
assert the action against the defendant. Scheffler v. Adams and Reese, LLP,

2006- 1774 ( La. 2/ 22/ 07), 950 So. 2d 641, 646. The purpose of the peremptory

exception raising the objection of no cause of action is to test the legal sufficiency

of the petition by determining whether the law affords a remedy on the facts

alleged in the petition. Scheffler, 950 So. 2d at 646. No evidence may be

introduced to support or controvert the exception of no cause of action. La. C. C. P.

art 931. The exception is triable on the face of the pleadings, and, for purposes of

resolving the issues raised by the exception, the well -pled facts in the petition must

be accepted as true. The issue at the trial of the exception is whether, on the face

of the petition, the plaintiff is legally entitled to the relief sought. Scheffler, 950

So. 2d at 646.

Louisiana retains a system of fact pleading, and mere conclusions of the

plaintiff unsupported by facts will not set forth a cause or right of action. The

burden of demonstrating that a petition fails to state a cause of action is upon the

mover. Scheffler, 950 So. 2d at 646- 47. Because the exception of no cause of

action raises a question of law and the trial court' s decision is based solely on the

sufficiency of the petition, review of the trial court' s ruling on an exception of no

cause of action is de novo. The pertinent inquiry is whether, in the light most

favorable to the plaintiff, and with every doubt resolved in the plaintiff's favor, the

petition states any valid cause of action for relief. Scheffler, 950 So. 2d at 646- 47.

A peremptory exception raising the objection of no cause of action is a proper

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procedural vehicle to raise judicial immunity defenses. See, g. g., Allen v.

1st
Childress, 2014- 0879 ( La. App. Cir. 12/ 23/ 14), 2014 WL 7332289

unpublished).

JUDICIAL IMMUNITY

On appeal, Mr. Damond maintains that retired Judge Marullo, Judge Bonin,

and Minute Clerk Marullo are not immune for their actions committed in a purely

administrative, nonjudicial capacity. Mr. Damond implies that the allegations of

his petition allege facts that support a finding that the defendants acted outside

their official capacities.

The doctrine of judicial immunity developed at common law as a shield

intended to protect judges from civil suits for damages for actions taken in their

judicial capacity. Palowsky v. Campbell, 2016- 1221 ( La. App. 1St Cir. 4/ 11/ 18),

249 So. 3d 945, 954, certs. rgranted, 2018- 1105, 2018- 1115 ( La. 12/ 3/ 18), 274 So.

3d 569, 569, affd in part, rev' d in part, 2018- 1105 ( La. 6/ 26/ 19), 285 So. 3d 466,

cert. denied sub nom., Winters v. Palowsky, U.S. S. Ct. ( 2020),

2020 WL 1496657 ( reversal in part not based on the cited language). A long line

of United States Supreme Court cases acknowledge 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. The

doctrine of judicial immunity provides judges with absolute immunity from

liability for acts done in their judicial capacities. Ellis v. Louisiana Bd. of Ethics

through State, 2017- 0385 ( La. App. 1St Cir. 11/ 1/ 17), 233 So. 3d 722, 728.

In Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 ( 1967),

the Supreme Court stated that judicial immunity applies even when the judge is

accused of acting maliciously and corruptly, and it is not for the protection or

benefit of a malicious or corrupt judge, but for the benefit of the public, whose

interest it is that the judges should be at liberty to exercise their functions with

independence without fear of consequences. Pierson, 386 U.S. at 554, 87 S. Ct. at

1218. It is a judge' s duty to decide all cases within his jurisdiction that are brought

before him. His errors may be corrected on appeal, but he should not have to fear

that unsatisfied litigants may hound him with litigation charging malice or

corruption.
Imposing such a burden on judges would contribute not to principled

and fearless decision- making, but to intimidation. Pierson, 386 U.S. at 554, 87 S.

Ct. at 1218.

There are only two circumstances under which judicial immunity may be

overcome. First, as Mr. Damond noted, a judge is not immune from liability for

nonjudicial actions, i.e., 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; see, e. g., Palowsky v. Campbell, 2018- 1105 ( La. 6/ 26/ 19), 285 So. 3d

4661 467, cert. denied sub nom., Winters v. Palowsky, U.S. S. Ct.

2020), 2020 WL 1496657 ( The Louisiana Supreme Court ruled that the

plaintiffs' allegations regarding the district court judges' supervision and

investigation of a law clerk' s activities arose in the context of the judges'

administrative functions, rather than in the course of their judicial or adjudicative

capacities.).

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After a careful review of the petition, we conclude that all of the specific

allegations made by Mr. Damond involve action and inaction by retired Judge

Marullo and Judge Bonin in their official capacities. Presiding over proceedings,

such a guilty plea colloquy, were actions uniquely within the providence of retired

Judge Marullo' s duty to decide cases within his jurisdiction that were brought

before him. Likewise, Mr. Damond' s allegation that Judge Bonin failed to act on

his " paperwork" is within the ambit of Judge Bonin' s immunity since an omission

ofjudicial action is likewise conduct within Judge Bonin' s official capacity.

As to Mr. Damond' s specific allegations against Minute Clerk Marullo, we

similarly find that he avers facts that show Minute Clerk Marullo was performing a

judicial function with an integral relationship to the judicial process. His presence

at court proceedings and the allegations that he ignored Mr. Damond' s

paperwork" and held meetings with Judge Bonin and ADA Bergeron regarding

Mr. Damond' s documents are insufficient to place Minute Clerk Marullo outside

the ambit of immunity. As a lower clerk official, the trial court correctly

determined that Minute Clerk Marullo was absolutely immune from lawsuit. See

Johnson v. Foti, 583 So. 2d 1210, 1212 ( La. App. 4" Cir. 1991).

Absent an allegation that retired Judge Marullo, Judge Bonin, and Minute

Clerk Marullo acted outside their judicial capacities or jurisdiction, we conclude

that the trial court correctly sustained the peremptory exception raising the

objection of no cause of action on the basis ofjudicial immunity.

DECREE

For these reasons, the trial court' s March 6, 2019 judgment sustaining the

peremptory exception raising the objection of prescription and objection of no

cause of action on the basis of judicial immunity filed by retired Orleans Parish

Judge Frank A. Marullo, Jr., Orleans Parish Judge Paul A. Bonin, and Minute

Clerk for the Criminal District Court of Orleans Parish Frank A. Marullo, I1I, and

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which dismissed all of Glenn Damond' s claims against those defendants, with

prejudice, is hereby affirmed. Appeal costs are assessed against the plaintiff-

appellant, Glenn Damond.

AFFIRMED.

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