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Markovich v. Villere

Court of Appeals of Louisiana, First Circuit

February 28, 2019

SAMUEL MARKOVICH AND DIAMOND PROPERTIES NORTHSHORE, L.L.C.
v.
DONALD J. VILLERE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF MANDEVILLE; AND CHRISTOPHER BROWN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS BUILDING OFFICIAL FOR THE DEPARTMENT OF PLANNING AND DEVELOPMENT, CITY OF MANDEVILLE

          On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket No. 2015-11258 Honorable Donald M. Fendlason, Pro Tempore', Judge Presiding

          Robert S. Reich Lawrence R. Plunkett, Jr. Metairie, Louisiana Counsel for Plaintiffs/Appellants Samuel Markovich and Diamond Properties Northshore, L.L.C.

          Keith M. Detweiler Gerald J. Nielson Metairie, Louisiana Counsel for Defendants/Appellees Donald J. Villere, Individually and and in His Official Capacity as Mayor of the City of Mandeville; and Christopher Brown, Individually and in His Official Capacity as Building Official for the Department of Planning and Development, City of Mandeville

          BEFORE: WHIPPLE, C.J., McCLENDON, HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.

          HIGGINBOTHAM, J.

         Plaintiffs, Samuel Markovich and Diamond Properties Northshore, L.L.C., seek review of a trial court judgment granting summary judgment in favor of the defendants and dismissing all of plaintiffs' claims against the defendants with prejudice.

         FACTS AND PROCEDURAL HISTORY

         Samuel Markovich is a commercial developer and landlord whose companies, including Diamond Properties Northshore, L.L.C., own properties in the City of Mandeville. Following Mr. Markovich's acquittal of alleged violations of Mandeville's Comprehensive Land Use Regulations Ordinances, Mr. Markovich and Diamond Properties filed the underlying suit against Christopher Brown, Code Enforcement Officer for Mandeville's Department of Planning and Development, and Donald Villere, the Mandeville mayor. Plaintiffs alleged that both defendants engaged in a series of unwarranted and malicious prosecutions against Mr. Markovich without cause. In addition, they alleged that Mr. Brown "negligently and/or maliciously published false, defamatory statements about plaintiffs to third parties" and that he tortiously interfered with Diamond Properties' contractual relationships.

         In November 2010, Mr. Brown went to 3301 Highway 190 in Mandeville in response to a complaint about an unscreened dumpster and excessive trash on the property. Mr. Brown attested that a review of the tax rolls indicated that the property was owned by Mr. Markovich and/or Diamond Properties.[1]

         As a result of Mr. Brown's investigation, on September 22, 2011, the City of Mandeville, through its Planning Director, Louisette Kidd, issued a Warning Notice of Violation to Mr. Markovich and Diamond Properties to notify them that the property located at 3301 Highway 190 in Mandeville was in violation of Mandeville's city ordinances due to excessive trash and having an unscreened dumpster at the rear of the building. The notice indicated that a formal citation would issue within seventy-two hours of the notice unless the violation was corrected or the City's office was contacted and the question of the violation was satisfactorily resolved. Apparently, not receiving a satisfactory response, on October 3, 2011, Mr. Brown contacted Mr. Markovich via e-mail and informed him that the dumpster violation needed to be corrected. Mr. Markovich advised Mr. Brown that the dumpsters were not owned by Diamond Properties and he did not own the property at 3301 Hwy 190.

         On October 21, 2011, Mr. Brown executed an Affidavit in the Mayor's Court for the City of Mandeville attesting that Mr. Markovich d/b/a Diamond Properties violated certain city ordinances related to the proper screening of trash and garbage cans. The affidavit prayed that Mr. Markovich be apprehended and held to answer for the charge. After Mr. Markovich failed to appear to retrieve his summons, a warrant was issued for Mr. Markovich's arrest.

         Additionally, on October 21, 2011, the City issued a notice of a city ordinance violation to a tenant at 725 North Causeway Boulevard in Mandeville for work being performed on the exterior of a building at that location without a permit being obtained to do so.[2] Mr. Brown's affidavit states that he went to the property at issue, where it appeared to him that there had been work performed on the exterior of the building, and no one had applied for and/or received a permit to do the work observed. It was later determined that the property was owned by Mr. Markovich. Mr. Markovich informed Mr. Brown that no exterior work was being done on the property.

         On December 14, 2011, Mr. Brown executed an Affidavit in the Mayor's Court for the City of Mandeville attesting that on October 21, 2011, Acadian Properties II, L.L.C. c/o Samuel Markovich, Director, willfully violated city ordinances by "perform[ing] work requiring permits without obtaining necessary permits as required." Mr. Brown prayed that Acadian Properties II, L.L.C. c/o Samuel Markovich, Director, be summoned and held to answer for the charge.

         Also, on December 14, 2011, the Mandeville Police Department issued Mr. Markovich a summons for failure to obtain a required permit for work done at 725 North Causeway Boulevard, as well as a summons regarding failure to properly screen the dumpsters at 3301 Highway 190.

         On the same day, December 14, 2011, the City issued another notice to Samuel Markovich and/or Diamond Properties for violations at 3301 Highway 190 regarding certain ordinances, including the failure to properly screen the dumpsters at that location.

         Mr. Markovich was summoned for both violations to appear in the Mandeville Mayor's Court for arraignment on February 13, 2012, but he did not appear. Thereafter, he was charged with contempt for failure to appear. The hearing was reset for March 12, 2012, but Mr. Markovich failed to appear. As a result, the court charged Mr. Markovich with contempt for failure to appear.

         On March 16, 2012, the court issued a letter to Mr. Markovich stating that if he "d[id] not request a court date or make payment of $390.00 within ten (10) days from the date of this letter, a warrant [would] be issued for your arrest."

         On October 23, 2012, Mr. Markovich was attending the Zoning and Planning Commission Meeting. Mayor Villere, when he saw Mr. Markovich at the meeting, had Ms. Kidd contact the Mandeville Police Department. At the meeting, Mr. Markovich was arrested and handcuffed in front of the members of the commission and those attending the meeting by the Mandeville Police Department for his contempt/failure to appear.

         On June 10, 2014, the city prosecutor nolle prossed the charges against Mr. Markovich because he determined that there was insufficient evidence in the file to convict. Specifically, he said "with that information in the file...there's no way I could get a conviction out of that." He was then asked by the department head and the mayor why he nolle prossed the charges against Mr. Markovich and when he explained that there was insufficient evidence, he was told that they wanted to go forward with the case, and that Ms. Kidd would get him the information he needed to bring the charges. After Ms. Kidd provided the city prosecutor with additional information, the prosecutor reinstituted the charges against Mr. Markovich.

         On October 15, 2014, Mr. Markovich stood trial in the mayor's court for the two re-instituted municipal charges and for four counts of contempt of court/failure to appear charges in the Mayor's Court for the City of Mandeville. After hearing the testimony of the witnesses and considering the evidence, the magistrate found Mr. Markovich guilty of one count of contempt of court for failure to appear and guilty of the municipal code violation regarding the failure to obtain permits. The magistrate acquitted Mr. Markovich on the remaining contempt charges and the charge related to screening of trash and dumpsters. Mr. Markovich applied his case bond to the $465.00 fine and was refunded the remaining balance of $925.00.

         On November 13, 2014, Mr. Markovich filed a Motion for Appeal to appeal his mayor's court convictions to the 22nd Judicial District Court for the Parish of St. Tammany. Following a trial de novo, the 22nd Judicial District acquitted Mr. Markovich of all charges.[3]

         In the underlying petition filed on April 2, 2015, the plaintiffs allege that both the mayor and Mr. Brown maliciously prosecuted Mr. Markovich. Additionally, the plaintiffs allege that Mr. Brown defamed plaintiffs and tortiously interfered with plaintiffs' business relationships.

         Two years after the suit was instituted, Mr. Brown and Mayor Villere filed a motion for summary judgment seeking dismissal of all claims against them. Plaintiffs opposed the motion for summary judgment.

         Following argument, the trial court found that defendants were entitled to judgment as a matter of law. Thereafter, the trial court signed a judgment on July 11, 2017, dismissing all of the ...


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