Michael Joseph Viator v. Wendell R. Miller, Indiv. as in His Capacity as Judge for the 31st Judidical District Court

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-1199

MICHAEL JOSEPH VIATOR

VERSUS

WENDELL R. MILLER

**********
APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-790-03
HONORABLE GEORGE BRADFORD WARE, PRESIDING

**************
SYLVIA R. COOKS
JUDGE
**************

Court composed of Sylvia R. Cooks, Jimmie C. Peters and J. David Painter, Judges.

AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED WITH INSTRUCTIONS.

J. Ogden Middleton, II
1412 Centre Court, Suite 403
Alexandria, LA 71301
(318) 443-4377
COUNSEL FOR PLAINTIFF/APPELLANT:
Michael Joseph Viator

M. Allyn Stroud
Wiener, Weiss & Madison
333 Texas Street, Suite 2350
P.O. Box 21990
Shreveport, LA 71120-1990
(318) 226-9100
COUNSEL FOR DEFENDANT/APPELLEE:
Wendell R. Miller

COOKS, Judge.

Plaintiff, Michael Viator, appeals the trial court’s ruling granting, in part,

defendant, Wendell Miller’s, exception of no cause of action based on the doctrine

of judicial immunity. Defendant answered the appeal and argues the trial court erred

in failing to dismiss Viator’s action in its entirety.

FACTS AND PROCEDURAL HISTORY

In December of 1992, Heather Viator became Wendell Miller’s secretary in his

private law practice. Heather was married at that time to Michael Viator. At some

point in 1993, Heather and Miller became involved in a sexual relationship. After the

sexual relationship between Miller and Heather began, and while still married to

Michael, Heather became pregnant. A baby boy, A.V., was born on September 1,

1994. The baby’s conception date occurred between November and December of

1993.

Miller became city court judge in Jennings in December of 1993. He worked

two days a week as City Court Judge, and continued to work in private practice for

three days a week. Heather continued to work as Judge Miller’s secretary, and their

affair continued as well. In 1996, the Viators were having marital problems and were

contemplating divorce. Michael alleged Judge Miller advised Heather she and her

husband could continue to live under the same roof for the 180-day separate-and-

apart period required by La.Civ.Code art. 102, as long as they did not engage in

sexual relations. This advice was communicated to Michael by Heather, and they

relied on it and lived in the same house for the 180-day period.1 In October of 1996,

Heather, represented by counsel, filed a petition for divorce in the Thirty-First

1
There are cases which hold, in order to fulfill the “separate and apart”
criterion, the parties must actually reside in different dwellings. Singleton v. Rogers, 160 La. 196, 106 So. 781 (1926); Billac v. Billac, 464 So.2d 819 (La.App. 5 Cir.
1985).
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Judicial District Court, Heather Lynn Chisolm Viator v. Michael Joseph Viator, No.

C-963-96. Although Heather was represented by counsel, Michael alleged Judge

Miller assisted in the preparation of the divorce petition. In 1996, Judge Miller was

elected as a district judge on the Thirty-First Judicial District Court and assumed the

bench on January 1, 1997. He retained Heather as his personal secretary.

On May 16, 1997, Heather filed a rule directing Michael to show cause why

a judgment of divorce should not be granted. Michael alleged Judge Miller assisted

Heather in drafting, editing and finalizing that rule. On May 20, 1997, Judge Miller

presided over the “Rule to Show Cause” hearing and subsequently issued a divorce

judgment pursuant to La.Civ.Code art. 102. According to plaintiff, Judge Miller did

this despite the failure of the parties to live separate and apart in different dwellings.

Joint custody of A.V. was granted and Michael was ordered to pay child support.

According to Michael, neither he, his wife nor any legal representative of either was

present at the “Rule to Show Cause” hearing. He alleges only a court reporter and

bailiff were present, but minutes were created which reflected that a hearing took

place.

On November 11, 2002, Judge Miller contacted Michael by phone. In the

ensuing conversation, Judge Miller confessed to the ten-year sexual relationship he

had with Heather. Judge Miller also told Michael he believed he was the biological

father of A.V., and demanded that Michael consent to a voluntary DNA test of the

minor child. Michael refused. According to Michael, he asked Judge Miller if he

realized he had presided over his divorce while he was sleeping with his wife. Judge

Miller responded, “[I]f you want to challenge that then you go right ahead.” Judge

Miller eventually filed a paternity action

Michael filed suit against Judge Miller, individually and in his capacity as a

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judge, to have the May 20, 1997 judgment of divorce declared absolutely null and to

assert a claim for damages. Michael’s claim for damages was based upon theories of

bad faith, detrimental reliance, intentional infliction of emotional distress, and general

Louisiana tort law. As the suit was filed in the Thirty-First Judicial District Court,

Judge Miller issued an order recusing himself. Judge Miller was the only district

judge on the Thirty-First JDC. The Louisiana Supreme Court subsequently appointed

a judge ad hoc to preside over the action.

Judge Miller filed a peremptory exception of no cause of action asserting that

the doctrine of judicial immunity insulated him from any civil action by Michael to

recover damages for the conduct alleged and to declare the May 20, 1997 divorce

judgment a nullity. The trial court subsequently granted the exception of no cause of

action dismissing Michael’s action to annul the divorce judgment and to recover

damages for any alleged acts or omissions from the time Judge Miller took the bench

as a city court judge up to the present time, with the following exceptions:

The trial court denied the exception (1) as to any claim plaintiff might
have against the defendant for intentional infliction of emotional distress
based on a phone conversation that occurred between plaintiff and
defendant on November 11, 2002; and (2) any claim plaintiff may have
against defendant for “civil fraud” prior to the time defendant became
a City Court Judge.

At Michael’s request, the district judge certified the order as a final judgment, and

this appeal followed. Michael argues it was “reversible legal error to grant

defendant’s peremptory exception of no cause of action and grant defendant

protection under the judicial immunity doctrine for all acts/omissions from when

defendant became city court judge through his tenure as district court judge.” His

brief also questions whether “the trial court [was] correct in ruling that the appellant

had no cause of action to seek a judgment declaring the May 20, 1997 divorce

judgment null and void.”

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Defendant answered the appeal and argues the trial court erred by failing to

dismiss Michael’s action in its entirety, because all claims asserted against Judge

Miller during the performance of his judicial duties are barred by the doctrine of

judicial immunity and all the remaining allegations referring to acts performed

outside of his judicial duties do not state a cause of action against him under

Louisiana law.

ANALYSIS

A. Nullity Action

Michael’s petition contains numerous allegations attacking the validity of the

divorce judgment, including references to Judge Miller failing to recuse himself,

granting the judgment of divorce despite the failure of the parties to live in separate

dwellings, and holding the divorce hearing when none of the parties or their legal

representatives were present. However, there is no allegation in the petition that

Michael did not desire to obtain a divorce or that he opposed the divorce proceedings

in any way. Thus, on the face of the petition the divorce was consensual and entered

into with Michael’s full knowledge. Further La.Code Civ.P. art. 2004(B)provides:

B. An action to annul a judgment on these grounds must be
brought within one year of the discovery by the plaintiff in the nullity
action of the fraud or ill practices.

There can be no question that Michael was aware of the grounds which he contends

amounted to fraud or ill practices at the time the divorce was granted. Thus, he did

not timely seek annulment of the divorce judgment. The lapse of the one-year

peremptive period, which extinguishes the cause of action, may be noticed by this

court, on its own motion. La.Code Civ.P. art. 927(B). Further, the fact that Judge

Miller may have violated the judicial canons that control his professional behavior

as a member of the judiciary did not create an independent basis for nullity of the

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judgment of divorce at issue. See Guidry v. First Nat’l Bank of Commerce, 98-2383

(La.App. 4 Cir. 3/1/00), 755 So.2d 1033, 1036, writ denied, 00-920 (La. 5/26/00), 726

So.2d 1106, where the appellate court affirmed the trial court’s conclusion that

“although a violation of the Judicial Code would justify disciplinary action by the

Supreme Court, there was nothing in the law suggesting that a judge’s failure to

recuse would be grounds to nullify a judgment.”

B. Judicial Immunity

The appellate court in McCoy v. City of Monroe, 32,521, pp. 7-8 (La.App. 2

Cir. 12/8/99), 747 So.2d 1234, 1241, writ denied, 00-1280 (La. 5/30/01), 788 So.2d

441, discussed the doctrine of judicial immunity:

In Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d
555 (1988), the United States Supreme Court recognized the long
history of judicial immunity and its importance in protecting judges
from vexatious actions prosecuted by disgruntled litigants. The judge
is entitled to absolute immunity where he performs “judicial” acts.
Moore v. Taylor, 541 So.2d 378 (La.App. 2d Cir.1989). A judge, of
whatever status in the judicial hierarchy, is immune from suit for
damages resulting from any act performed in the judicial role. 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. 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. Moore v. Taylor, supra.
The Louisiana jurisprudence on judicial immunity mirrors the
federal doctrine. A judge may not be cast for damages for his errors
unless he has acted outside of his judicial capacity. Moore v. Taylor,
supra. Even where the judge has technically acted outside his
jurisdiction and contrary to law, he will remain protected, unless his
actions were based on malice or corruption. Moore v. Taylor, supra.
Therefore, to state a cause of action against Judge Moore, the
plaintiff must allege facts showing not only malice and corruption, but
that Judge Moore acted beyond his jurisdiction or outside his judicial
capacity.

If the acts alleged involve both judicial and nonjudicial conduct, the

unprotected behavior must be separated from the shielded, and judges are liable for

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the acts that were not judicial. Brewer v. Blackwell, 692 F.2d 387 (5th Cir. 1982).

Counsel for Judge Miller acknowledges “that the date Judge Miller became a city

judge is not the controlling factor for purposes of judicial immunity.” When

defendant was a city court judge, he maintained a separate office in which he spent

a majority of his time in furtherance of his private practice. Contrary to the trial

court, we find the acts complained of by plaintiff prior to the court proceedings in

1997, i.e., the alleged faulty legal advice and the alleged fraudulent acts, which began

shortly after Michael’s wife started working for defendant, are not protected by the

doctrine of judicial immunity. The acts alleged were not acts invoking the judicial

machinery, but were by-products of the defendant’s private practice or were

undertaken outside of his judicial capacity. Therefore, we reverse the portion of the

trial court’s judgment granting defendant protection under the judicial immunity

doctrine for all acts/omissions during the period he was a city court judge and a

private legal practitioner.

C. No Cause of Action Exception

However, defendant argues even if the acts alleged by Michael are not

protected by judicial immunity, they do not give rise to any cause of action

recognized by law. He contends there is “no Louisiana jurisprudence that supports

the proposition that a person can be held liable for intentional infliction of emotional

distress on the basis of informing another person of unpleasant facts, no matter how

disturbing those facts may be to the recipient.” In Louisiana, to establish intentional

infliction of emotional distress, a plaintiff must demonstrate: “(1) [T]hat the conduct

of the defendant was extreme and outrageous; (2) that the emotional distress suffered

by the plaintiff was severe; and (3) that the defendant desired to inflict severe

emotional distress or knew that severe emotional distress would be certain or

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substantially certain to result from his conduct.” LaBove v. Raftery, 00-1394, 00-

1493, pp. 16-17 (La.11/28/01), 802 So.2d 566, 577, (quoting White v. Monsanto Co.,

585 So.2d 1205, 1209 (La.1991)).

We initially note the courts in Louisiana have consistently refused to recognize

a cause of action for alienation of affection. Moulin v. Monteleone, 165 La. 169, 115

So. 447 (1927); Greene v. Roy, 604 So.2d 1359 (La.App. 3 Cir.), writ denied, 607

So.2d 544 (La.1992); Scamardo v. Dunaway, 94-545 (La.App. 5 Cir. 2/15/95), 650

So.2d 417. In Scamardo, the plaintiff husband filed a suit for intentional infliction

of emotional distress. Plaintiff alleged that while his wife was being treated by

defendant (a specialist in the field of reproductive medicine) for problems associated

with infertility, defendant engaged in an adulterous affair with her causing her to

abandon him and causing plaintiff’s emotional distress. Defendant filed an exception

of no cause of action which the trial court sustained. The appellate court, after

examining the historical basis for the refusal to recognize a cause of action for

alienation of affection, affirmed the trial court:

In Moulin v. Monteleone, 165 La. 169, 115 So. 447 (1927), after
an in-depth analysis of the state of the law and societal policies, the
Louisiana Supreme Court determined that there is no cause of action in
this state for alienation of affection for several reasons. It is still the law
in this state. Butler v. Reeder, 573 So.2d 1159 (La.App. 5th Cir.1991).

We first note that Moulin was written in 1927. Some of the
reasons cited by the court have since been modified by positive law or
jurisprudence. However, the result is still law and the analysis is
pertinent to deciding whether the infliction of emotional distress tort
remedy under La.C.C. art. 2315 is distinguishable from the action for
alienation of affection or interference with the marital contract.

The first reason, given by the court in Moulin for denying the
remedy to the plaintiff husband in that case, was that money damages for
the alienation of affection is exemplary or punitive in nature and
punitive damages were, then as now, not authorized in civil cases
(except that now they are authorized in certain legislatively provided
instances). Moulin, 115 So. at 448-449. Second, the civil law system
treats the marriage as a civil contract and damages for interference with

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contract was not permitted. Id. at 449-450. That proposition has only
been modified in a limited fashion in recent years.

In Moulin, the court reviewed the history of the claim for
alienation of affection. It noted that the concept of alienation of
affection arose as a common law remedy, given only to the husband, not
the wife or children. Judge O’Neil, the writer, stated that the concept
was based on the obsolete idea that a wife was the chattel of the
husband. Id. at 450.

The third reason given in Moulin was that, under the civil law, in
the absence of a statute conferring the right, there existed no right of
action for the loss of the services, support, companionship or affection
of a human being because no one has a property right in the affections
of another. Id. at 451. Again, this principle has been modified in recent
years. The court then analyzed the development of La.C.C. art. 2315,
noting that under Roman and Spanish law there was no remedy for
alienation of affections. Under Roman and Spanish law, a man who
attempted to seduce or corrupt the morals of a woman was answerable
in damages to her, but not to her husband or other relations. Id. at 451.
The court feared that to allow recovery for such an action “might tend
more to encourage blackmail, than to protect the home”. Id. at 457.

In comparing the two theories of recovery, we find that they are
distinguishable. Neither the policies nor legal principles giving rise to
the claims or framing the rights are the same. Although both have the
emotional distress of plaintiff as a primary element of damages, and
thus, may appear to overlap, the infliction of emotional distress is a
separate, recognizable tort. The law does not limit the action to
non-marital situations. However, the mere seduction and loss of one’s
spouse due to the seduction or affair cannot be the basis for the action.
There must be proof that defendant violated some legal duty to plaintiff,
so that plaintiff is in fact the victim and not just the jilted party. Further,
the burden of proof of outrageous conduct is a heavy one. Otherwise,
the cause of action is for alienation of affections, which is not legally
recognized in this state.

In Greene v. Roy, 604 So.2d 1359 (La.App. 3rd Cir.1992), writ
denied 607 So.2d 544 (La.1992), the Third Circuit was faced with the
claim of alienation of affection, coupled with a claim for intentional
infliction of emotional distress. The court there determined that the
petition failed to allege facts to support the intentional requirement.
Notably, it did not hold that there was no cause of action for intentional
infliction of emotional distress in all marital cases. Thus, we hold that
appellant here does have a cause of action for negligent or intentional
infliction of emotional distress.

Id. at 420-21 (emphasis added) (footnote omitted).

The appellate court remanded the case to allow the plaintiff an opportunity to amend

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his petition to state a valid cause of action. After amendment of the petition, the trial

court again granted defendant’s no cause of action; and plaintiff appealed that

decision. The appellate court again affirmed, stating:

Plaintiff, in his amended petition, failed to meet this burden.
Plaintiff attempts in the amendment to the petition to state that the
defendant abused his position of authority with the plaintiff, and
intentionally inflicted emotional distress upon the plaintiff. His
allegations however, are still based upon the underlying fact of the
adulterous relationship between the defendant and plaintiff’s ex-wife,
the same set of facts which we held previously to be insufficient to
support a claim for intentional or negligent infliction of emotional
distress.

Scamardo v. Dunaway, appeal after remand, 96-1036 (La.App. 5 Cir. 4/29/97), 694

So.2d 1041, writ denied, 97-1395 (La.9/5/97), 700 So.2d 517 694 So.2d at 1043.

Clearly, any damages arising from the sexual relationship between Heather and

Judge Miller are not recoverable under Louisiana law. Understandably Michael

experienced emotional distress in this situation, but “the mere seduction and loss of

one’s spouse due to the seduction or affair cannot be the basis for the action.”

Scamardo, 650 So.2d at 420 (emphasis omitted). Although Michael, in addition,

attempts to rest his claim on allegations of bad faith, detrimental reliance, civil fraud

and other general tort law theories, an examination of the facts alleged in the petition

clearly shows the basis of his claims rests on the adulterous relationship between

Judge Miller and his ex-wife.2 Except for the paternity allegations found in

2
We note, as well, the petition contains allegations which refer to defendant’s
professional conduct as a lawyer. Although Miller may have violated the Code of
Professional Responsibility that governs his conduct as a lawyer, the mere violation
of the Code does not give rise to civil liability. The facts alleged in the petition are
insufficient to support a claim that an attorney-client relationship ever existed
between Michael and Miller. Even if we were to conclude a de facto attorney-client
relationship existed between Miller and Michael’s ex-wife, the Louisiana Supreme
Court stated in Penalber v. Blount, 550 So.2d 577, 578 (La. 1989) “no cause of action
lies in favor of a non-client under theories of malpractice and negligence because the
attorney owes no duty to the adversary of his client.” In cases where the courts have
recognized a cause of action against an attorney in favor of a non-client or a third-
party beneficiary under the broad ambit of La.Civ.Code art 2315, they have found the
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paragraphs 85 and 86 of the petition,3 the facts alleged in the petition are insufficient

to support a claim for intentional or negligent infliction of emotional distress or any

other claim based on the noted alternative theories.

The more difficult issue in this case is whether Defendant violated a legal duty

owed to Michael when he knowingly, and in concert with his ex-wife, caused to be

filed a petition for the purpose of securing a judgment ordering Michael to provide

financial support to a child which Michael was not legally obliged to do if the true

facts were known by him and he availed himself of the defenses afforded him by law.

Under La.R.S. 9:305, Michael could have filed a suit for disavowal of paternity

ancillary to the child support requested by Heather in the divorce proceeding.

Louisiana Revised Statute 9:305 provides:

A. Notwithstanding the provisions of Civil Code Art. 189 and for
the sole purpose of determining the proper payor in child support cases,
if the husband, or legal father who is presumed to be the father of the

attorney knowingly violated a prohibitory law or intentionally engaged in a fraudulent
act. Id. For reasons we have expressed, Michael’s nullity action based on the alleged
fraud and ill practices committed by Miller, as a lawyer or a judge, in connection with
preparing the divorce pleadings and obtaining the judgment is prescribed. For
reasons we will express hereafter, except for the conduct referenced in paragraphs 85
and 86, allegations that Miller intentionally had a sexual relationship with Michael’s
ex-wife, failed to disclose such, and later divulged it in a telephone conversation are
insufficient to constitute legal fraud or a violation of any prohibitory law recognized
in this state.
3
Paragraphs 85 and 86 of the petition read as follows:

85.

Defendant signed the Stipulated Judgment with actual knowledge that by not
admitting to plaintiff or otherwise disclosing to plaintiff that defendant might be the
biological father of the minor child [A.V.], he was through his silence defrauding the
plaintiff.

86.

Defendant in addition to signing the Stipulated Judgment wrongfully granting
his . . . divorce granted the plaintiff joint custody of the minor child [A.V.] and cast
plaintiff for child support.
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child, erroneously believed, because of misrepresentation, fraud, or
deception by the mother, that he was the father of the child, then the
time for filing suit for disavowal of paternity shall be suspended during
the period of such erroneous belief or for ten years, whichever ends first.

B. No provision of this Section shall affect any child support
payment or arrears paid, due, or owing prior to the filing of a disavowal
action if an order of disavowal is subsequently obtained in such action.

Thus, he would have had a valid defense to the future payment of child support had

he been aware he was not the biological father of A.V. See Gallo v. Gallo, 03-794

(La. 12/3/03), 861 So.2d 168.

While there is no jurisprudence in Louisiana dealing with the issue of

misrepresented paternity, we have found the matter addressed in other states. Not

surprisingly, courts have reached conflicting conclusions in deciding whether to

allow claims for recovery of child support and emotional distress in such cases.

Several states have held that public policy concerns bar claims based on

misrepresented paternity. Doe v. Doe, 358 Md. 113, 747 A.2d 617 (2000) (basing its

refusal to recognize such a cause of action on the same public policy considerations

which led to the abolition of the common law cause of action of criminal

conversation); Nagy v. Nagy, 210 Cal. App. 3d 1262 (Ct. App. 1989) (holding that

“developing a close relationship with a child misrepresented to be [your own] and

performing parental acts is not a ‘damage’ which should be compensable under the

law.” Id. at 1269-70); Richard P. v. Superior Court, 202 Cal. App. 3d 1089 (Ct. App.

1988) (stating that some wrongs are “beyond any effective legal remedy and any

practical administration of law” and that attempting to remedy them may cause more

social damage because “the innocent children . . . may suffer significant harm.” Id.

at 1094).

Conversely, other states have dismissed public policy concerns and recognized

claims for misrepresented paternity. The court in Koelle v Zwiren, 672 N.E.2d 868

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(1996), found that “public policy does not serve to protect people engaging in

behavior such as that with which plaintiff’s complaint charges defendant, and we will

not allow defendant to use her daughter to avoid responsibility for the consequences

of her alleged deception.” Courts have also stated if public policy required abolishing

such torts, then the legislatures can act accordingly. G.A.W. v. D.M.V., 596 N.W.2d

284 (Minn. Ct. App. 1999).

The courts that have found a cause of action for emotional distress exists in

misrepresented paternity cases have not based their decisions on a right by the

plaintiffs to be compensated for their loss of love and affection. In Koelle, 672

N.E.2d 868, the court specifically noted the plaintiff did not seek to be paid for the

love and affection he gave the child, but rather sought compensation for the damages

he suffered due to fraud and for the pain and anxiety he experienced due to the

intentional infliction of emotional distress. In Bailey v. Searles-Bailey, 746 N.E.2d

1159 (Ohio 2000), the court held the husband’s claim for his anguish suffered upon

discovering that his wife and her paramour had concealed the parentage of the child

born during his marriage was based upon the emotional distress he sustained in

finding out that the child born during his marriage was not his biological child, and

not on the fact that his wife was having an adulterous affair.

In Miller v. Miller, 956 P.2d 887 (Okla. 1998), the court found the plaintiff had

a cause of action against the spouse as well as her parents for knowingly

misrepresenting to him that the daughter was pregnant with his child, inducing him

to wed her and raise the child. The Ohio appellate court in Bailey, 746 N.E.2d 1159,

found the plaintiff had a cause of action against both his ex-wife and paramour for

intentional infliction of emotional distress for the anguish he suffered upon

discovering that his wife and her paramour had concealed the parentage of the child

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born during his marriage. We are not required at this stage of the proceedings,

however, to issue a dispositive ruling on the viability of a claim based on

misrepresented paternity in this state for the reasons which follow.

D. No Right of Action Exception

The facts in the present case differ from all the cases we have reviewed in one

notable respect: There has been no paternity test performed to determine who is

A.V.’s biological father. Michael alleges that Judge Miller believes he is the

biological father of A.V. However, Michael has refused to submit to testing to

conclusively establish the paternity of A.V. Without such proof, he has not

established his right to bring an action against Judge Miller under any theory of law,

except the ones the courts of this state have already rejected. See Moulin, 165 La.

169, 115 So. 447; Greene, 604 So.2d 1359; Scamardo, 650 So.2d 417.

While defendant elected to file only the exception of no cause of action,

La.Code Civ.P. art. 927(B) provides this court may recognize a no right of action

exception on its own motion. The exception of no right of action and the exception

of no cause of action have different functions. As stated by our supreme court in

Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 1095-97, 262 So.2d 328, 333-

34 (1972):

There has been much discussion about the purpose of the
exception of no right of action, and many attempts to differentiate that
exception from the exception of no cause of action. One of the best
statements of the definition of no right of action and of the basis of the
distinction between it and no cause of action was given by the late
Henry George McMahon: “The former (no cause of action) is used to
raise the issue as to whether the law affords a remedy to anyone for the
particular grievance alleged by plaintiff; the latter [no right of action]
is employed (in cases where the law affords a remedy) to raise the
question as to whether plaintiff belongs to the particular class in whose
exclusive favor the law extends the remedy, or to raise the issue as to
whether plaintiff has the right to invoke a remedy which the law extends
only conditionally.” McMahon, The Exception of No Cause of Action
in Louisiana, 9 Tul.L.Rev. 17, 29-30. See also McMahon, Parties

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Litigant in Louisiana, 11 Tul.L.Rev. 529-30. . . .

In Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3rd Cir.1967),
Mr. Justice Tate of our court, then writing for the Court of Appeal,
correctly stated the purpose of the exception of no right of action:

“The want of interest raised by the exception relates primarily to
whether the particular plaintiff falls as a matter of law within the general
class in whose favor the Law grants the cause of action sought to be
asserted by the suit, with the factual evidence admissible being restricted
as to whether this particular plaintiff does or does not fall within the
general class having legal interest to sue upon the cause of action
asserted. * * *

“In short, the objection of no right of action raises the question of
whether the plaintiff has a legal interest in the subject matter of the
litigation, assuming (for the purpose of deciding the exception) that a
valid cause of action is pleaded by the petition. LeSage v. Union
Producing Co., 249 La. 42, 184 So.2d 727.”

The pleadings do not establish that Michael has the right to assert a claim for

intentional or negligent infliction of emotional distress based on misrepresented

paternity, even assuming the existence of such a claim in this state. However,

La.Code Civ.P. art. 931 provides evidence may be offered to establish a right of

action when the grounds thereof do not appear in the petition. Merely alleging facts

which place A.V.’s paternity in question is insufficient to establish Michael’s status

to proceed.

Therefore, in the interests of justice, we remand this case to the trial court for

an evidentiary hearing to afford Michael a reasonable opportunity to establish

whether or not he is the biological father of A.V. or that the child is in fact the natural

offspring of Judge Miller. See Babineaux, 261 La. 1080, 262 So.2d 328.4

Should he elect not to move forward with such proof, the trial court is hereby

instructed to recognize and dismiss Michael’s petition based on his failure to state a

4
In Babineaux, 262 So.2d 328, 337, the court remanded the case to determine
the filiation of a child, finding it could “make no final determination of his status on
the record before us.”
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right of action.

DECREE

For the foregoing reasons, we reverse the portion of the trial court’s judgment

granting defendant’s exception of no cause of action under the judicial immunity

doctrine for all acts/omissions during the period he was a city court judge and a

private legal practitioner. We remand this case to the trial court for an evidentiary

hearing on the issue of A.V.’s paternity as instructed above. We pretermit assessment

of costs of this appeal, pending the outcome of further proceedings consistent with

this opinion. See Bourgeois v. Wiley, 02-1420 (La.App. 1 Cir. 5/9/03), 849 So.2d

632.

AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED WITH INSTRUCTIONS.

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