SAMUEL MARKOVICH AND DIAMOND PROPERTIES NORTHSHORE, L.L.C.
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
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',
S. Reich Lawrence R. Plunkett, Jr. Metairie, Louisiana
Counsel for Plaintiffs/Appellants Samuel Markovich and
Diamond Properties Northshore, L.L.C.
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
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.
AND PROCEDURAL HISTORY
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.
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
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
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.
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. 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
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.
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.
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
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.
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
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.
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.
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.
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.
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.
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
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