Charles B. W. Palmer v. Hon. Elizabeth P. Wolfe

NOT FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-895 c/w 09-896

CHARLES B. W. PALMER, RINA M. PALMER
AND CHARLES B. W. PALMER, III

VERSUS

HONORABLE ELIZABETH P. WOLFE

**********
APPEAL FROM THE
TWENTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF ST. HELENA, NO. 19236 and 19236
HONORABLE RUCHE J. MARINO, PRESIDING
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Sylvia R. Cooks, Marc T. Amy, and Elizabeth A. Pickett, Judges.

AFFIRMED; MOTION TO SUPPLEMENT DENIED.

Charles B. W. Palmer
P.O. Box 356
Amite, LA 70422
(985) 748-9423
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Charles B. W. Palmer, Rina M. Palmer and Charles B. W. Palmer, III

David Sanders
Patricia Wilton
Department of Justice
1885 North 3rd Street
Baton Rouge, LA 70804
(225) 326-6300
COUNSEL FOR DEFENDANT-APPELLEE:
Honorable Elizabeth P. Wolfe

COOKS, Judge.

The genesis of this suit began back in 1972 when the Charles B.W. Palmer,

representing the “Gladys Spears Group,” prevailed in certain litigation against the

“Mutt/Ethel Group.” There were various subsequent counter-suits over the next

twenty-five to thirty years. In 1983, Mr. Palmer successfully provoked a sheriff’s

sale, resulting in he and the “Gladys Spears Group” becoming full owners of certain

real estate comprising 84.60 acres and part owners along with the “Mutt/Ethel Group”

of other property comprising 80.00 acres.

According to Mr. Palmer, he subsequently became aware he was not “being

treated fairly” by his own clients in the “Gladys Spears Group” and the “Mutt/Ethel

Group.” Thus, he obtained a series of judgments of abandonment against both the

“Gladys Spears Group” and the “Mutt/Ethel Group.” On May 16, 2005, Mr. Palmer

also obtained a money judgment in excess of $200,000.00 against both the “Gladys

Spears Group” and the “Mutt/Ethel Group.” Mr. Palmer then caused a fifa to be

issued to seize and sell all of the 164.60 acres of real estate acquired in the previously

discussed sheriff’s sale.

One of the heirs of the “Mutt/Ethel Group,” Ethel Harrison, attacked the fifa

and sheriff’s sale and sought to obtain a temporary restraining order. On November

15, 2005, Judge Elizabeth P. Wolfe of the Twenty-First Judicial District Court

enjoined the sheriff’s sale against only the sheriff, concluding Plaintiff was not a

party defendant. Plaintiff’s request for appeal was denied by Judge Wolfe. Mr.

Palmer has maintained throughout these proceedings that Judge Wolfe had no right

to refuse to grant his appeal.

Plaintiff contends he attempted then to file a writ, but was unable to bring same

within the fifteen day delay in which to take a writ. Feeling there was only one

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recourse remaining, Plaintiffs filed a “Writ of Mandamus” in which it was prayed that

“the Honorable Beth B. Wolfe recuse herself as defendant-in-mandamus,” that the

trial court grant the mandamus “in order to perfect plaintiffs’ appeal, or to answer

same, and show cause why this want of mandamus should not be granted,” and for

all general and equitable relief. District Judge Wayne Ray Chutz denied the

Mandamus, holding the proper remedy was by appeal.

Despite his apparent desire to file an appeal, and Judge Chutz’s apparent ruling

allowing him to do so, Mr. Palmer did not do so and, instead, filed a pleading styled

a “Motion for New Trial.” In that motion, he added Judge Chutz as a party defendant

contending he “exceeded his authority by relegating it to the Court of Appeal, a

costly, time-consuming move, which violates the very purpose of mandamus.” In

opposition to this filing, Judges Wolfe and Chutz filed a peremptory exception of no

cause of action, contending the “Motion for New Trial” did not state a cause of action

as to them.

The Louisiana Supreme Court appointed the Honorable Ruche J. Marino for

the purposes of hearing the Peremptory Exception filed herein. A hearing was held,

wherein all parties acknowledged Judges Wolfe and Chutz enjoyed judicial immunity

from damages claimed as a result of their official action. Judge Marino issued

judgment to that effect. Plaintiff was allowed to argue his case relative to Mandamus.

Judge Marino held as follows:

Under the Extraordinary process the Exception of No Cause of
Action as it appears as to the Writ of Mandamus is DISMISSED and the
mandate of [La.Code Civ.P. art.] 3865 is to be made executory. The
foregoing ruling makes the Motion for a New Trial moot. My
jurisdiction is complete in ruling on the exception and whatever Judge
Chutz does in the future under Article 3865 is LAW.

In response to Judge Marino’s ruling, Mr. Palmer filed a “Motion for New

Trial, or Alternatively, Reconsideration (and/or Reargument).” In that motion, Mr.

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Palmer principally complained that he filed a motion to recuse Judges Wolfe and

Chutz. Judge Marino noted he could find no such affirmative motion, and suggested

that such a motion could be filed and would be heard as any other normal motion

under law in the judicial district court. Judge Marino again noted he only had

authority to handle the Exception of No Cause of Action. Mr. Palmer’s “Motion for

New Trial, or Alternatively, Reconsideration (and/or Reargument)” was denied.

Mr. Palmer then filed a Motion and Order for a Devolutive Appeal with the

First Circuit Court of Appeal, which encompasses the Twenty-First Judicial District

Court. The appeal was subsequently transferred to this Court. Mr. Palmer asserts the

following assignments of error:

1. The Ad Hoc Judge should have ordered Judge Wolfe to recuse
herself;

2. It was error to grant Judge Wolfe immunity from being cast in a
mandamus order.

I. Motion To Recuse.

In the “Motion for New Trial, or Alternatively, Reconsideration (and/or

Reargument),” Judge Marino noted that Mr. Palmer requested the recusal of Judges

Wolfe and Chutz. Judge Marino noted he could find no such affirmative motion, and

suggested that such a motion could be filed and would be heard as any other normal

motion under law in the judicial district court. We agree. Louisiana Code of Civil

Procedure Article 154 requires “[a] party desiring to recuse a judge of a district court

shall file a written motion therefor assigning the ground for recusation.” (Emphasis

added.)

II. Writ of Mandamus.

Mr. Palmer sought a mandamus against Judge Wolfe from the district court.

A district court lacks jurisdiction to hear an application for a writ of mandamus
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against a district judge. Such relief is properly sought from the court of appeal. See

Chicago Tribune Co. v. Mauffray, 08-522 (La.App. 3 Cir. 11/5/08), 996 So.2d 1273.

Therefore, Judge Chutz was correct in denying the mandamus as plaintiff’s proper

remedy was with the court of appeal, not another district court. A district judge

cannot grant or refuse a mandamus against himself. Accordingly, the ad hoc district

judge also lacked jurisdiction to mandamus another district judge.

III. Judicial Immunity.

Mr. Palmer’s allegations in the present case stem from actions Judge Wolfe

took while acting in her official capacity as a district court judge. As a judge in

Louisiana, she enjoys absolute immunity from suit (not simply the imposition of

damages as Mr. Palmer argues) while in the performance of her judicial duties. In

determining whether a judge’s acts are “judicial in nature,” the court in Malina v.

Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993), citing McAlester v. Brown, 469 F.2d

1280, 1282 (5th Cir. 1972), set forth four factors to consider:

1. Whether the precise act complained of is a normal judicial function;

2. Whether the acts occurred in the courtroom or appropriate adjunct
spaces such as the judge’s chambers;

3. Whether the controversy centered around a case pending before the
court;

4. Whether the acts arose directly out of a visit to the judge in the
judge’s official capacity.

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, 541 So.2d 378 (La.App. 2 Cir.1989). 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. Id.

In this case every alleged act occurred in the courtroom or appropriate adjunct

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space occupied by the judge and centered around a case pending before the court.

Therefore, Judge Wolfe’s actions were clearly “judicial in nature” and she is entitled

to absolute judicial immunity from suit.

IV. Motion to Supplement Record on Appeal.

Lastly, we deny Mr. Palmer’s motion to supplement the record on appeal to

include a copy of a letter sent by Judge Wolfe to the Louisiana Disciplinary Board.

This letter is not necessary to decide the matters currently before this court on appeal.

CONCLUSION

For the foregoing reasons, the trial court properly dismissed Judges Wolfe and

Chutz on the grounds of absolute judicial immunity. We also find another district

court judge lacks jurisdiction to issue mandamus ordering another district judge to

act. Such an order must come from the appellate court under its supervisory

jurisdiction. The motion filed to supplement the record on appeal is denied. All

costs of this appeal are assessed against Plaintiffs-Appellants.

AFFIRMED; MOTION TO SUPPLEMENT DENIED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform
Rules, Courts of Appeal.

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