Opinion
2020 CA 1211 R, 2020 CA 1212 R, 2020 CA 1213 R
03-23-2022
April MARKIEWICZ, Wife of/and Mark Markiewicz v. SUN CONSTRUCTION, L.L.C., Penn Mill Lakes, L.L.C., and Cooper Engineering, Inc., A Professional Engineering Corporation Janet Shea, Wife of/and Alphonse Shea v. Sun Construction, L.L.C.; Sunrise Construction and Development, L.L.C.; Penn Mill Lakes, L.L.C.; Cooper Engineering, Inc., A Professional Engineering Corporation Patricia Grant Wife of/and Richard Grant; et. al., Individually and on Behalf of All Others Similarly Situated v. Sun Construction, L.L.C., Penn Mill Lakes, L.L.C., Sunrise Construction and Development, L.L.C., and Cooper Engineering, Inc., A Professional Engineering Corporation
Maurice LeGardeur, Covington, Louisiana and Adam S. Lambert, New Orleans, Louisiana, COUNSEL FOR APPELLANTS PLAINTIFFS—April Markiewicz, Mark Markiewicz, Janet Shea, Alphonse Shea, Patricia Grant, Richard Grant, Marguerite Guarino, William Guarino, Sheron Sprawls, Vernon Sprawls, Dianne White, Johnny White, Jo Anne Youngblood, William Youngblood, Lynell Rowan Alvin Rowan, Gayle Ayo, James Ayo, Deborah Lascari, Daniel Lascari, and on behalf of All Others Similarly Situated Thomas P. Anzelmo, Sr., Lynda Tafaro, New Orleans, Louisiana, COUNSEL FOR APPELLEES DEFENDANTS—St. Tammany Parish Government, James A. (Red) Thompson, and Jean M. Thibodeaux Louis E. Koemer, Jr., New Orleans, Louisiana, APPELLEE DEFENDANT—Pro Se Glen E. Mercer, Kourtney French Twenhafel, New Orleans, Louisiana, COUNSEL FOR APPELLEE DEFENDANT—Clarendon America Insurance Company Robert I. Siegel, Tucker T. Bohren, COUNSEL FOR APPELLEE DEFENDANT—Insurance Company of the State of Pennsylvania Adrian G. Nadeau, Baton Rouge, Louisiana and Brad M. Barback, Baton Rouge, Louisiana, COUNSEL FOR APPELLEES DEFENDANTS—John E. Bonneau and John E. Bonneau and Assoc., Inc. David M. Moragas, Mandeville, Louisiana, COUNSEL FOR APPELLEE DEFENDANT—Zurich American Insurance Co. J. Scott Loeb, Jonas P. Baker, Mandeville, Louisiana and Carl T. Conrad, C. T. Williams, Jr., Aldric C. Poirier, Jr., Mandeville, Louisiana and John S. Lawrence, Jr., Mandeville, Louisiana, COUNSEL FOR APPELLEES DEFENDANTS—Sun Construction, LLC; Lawrence A. Komman; Penn Mill Lakes, LLC; and Sunrise Construction Development, LLC
Maurice LeGardeur, Covington, Louisiana and Adam S. Lambert, New Orleans, Louisiana, COUNSEL FOR APPELLANTS PLAINTIFFS—April Markiewicz, Mark Markiewicz, Janet Shea, Alphonse Shea, Patricia Grant, Richard Grant, Marguerite Guarino, William Guarino, Sheron Sprawls, Vernon Sprawls, Dianne White, Johnny White, Jo Anne Youngblood, William Youngblood, Lynell Rowan Alvin Rowan, Gayle Ayo, James Ayo, Deborah Lascari, Daniel Lascari, and on behalf of All Others Similarly Situated
Thomas P. Anzelmo, Sr., Lynda Tafaro, New Orleans, Louisiana, COUNSEL FOR APPELLEES DEFENDANTS—St. Tammany Parish Government, James A. (Red) Thompson, and Jean M. Thibodeaux
Louis E. Koemer, Jr., New Orleans, Louisiana, APPELLEE DEFENDANT—Pro Se
Glen E. Mercer, Kourtney French Twenhafel, New Orleans, Louisiana, COUNSEL FOR APPELLEE DEFENDANT—Clarendon America Insurance Company
Robert I. Siegel, Tucker T. Bohren, COUNSEL FOR APPELLEE DEFENDANT—Insurance Company of the State of Pennsylvania
Adrian G. Nadeau, Baton Rouge, Louisiana and Brad M. Barback, Baton Rouge, Louisiana, COUNSEL FOR APPELLEES DEFENDANTS—John E. Bonneau and John E. Bonneau and Assoc., Inc.
David M. Moragas, Mandeville, Louisiana, COUNSEL FOR APPELLEE DEFENDANT—Zurich American Insurance Co.
J. Scott Loeb, Jonas P. Baker, Mandeville, Louisiana and Carl T. Conrad, C. T. Williams, Jr., Aldric C. Poirier, Jr., Mandeville, Louisiana and John S. Lawrence, Jr., Mandeville, Louisiana, COUNSEL FOR APPELLEES DEFENDANTS—Sun Construction, LLC; Lawrence A. Komman; Penn Mill Lakes, LLC; and Sunrise Construction Development, LLC
BEFORE: WHIPPLE, C.J., WELCH, AND CHUTZ, JJ,
WELCH, J. This matter is before us on remand from the Louisiana Supreme Court for the sole purpose of clarifying this Court's opinion in Markiewicz v. Sun Construction, L.L.C., 2020-1211 (La. App. 1st Cir. 6/22/21), 328 So.3d 487, as to whether we intended to affirm the trial court's ruling granting the motion for summary judgment filed by the St. Tammany Parish Government ("STPG") on the issue of discretionary immunity as to all defendants, including STPG. See Markiewicz v. Sun Construction, L.L.C. 2021-01073 (La. 11/23/21), 328 So.3d 66 -67. In accordance with these instructions from the Louisiana Supreme Court, we issue this opinion.
Although the factual and procedural history of this case is set forth in detail in this Court's prior opinion, Markiewicz, 328 So.3d at 490-493, a brief review of the salient underlying background is essential to understanding our disposition herein. Essentially, this litigation arose out of several consolidated lawsuits involving a drainage project and the subsequent flooding of Penn Mill Lakes Subdivision ("the Subdivision") in St. Tammany Parish, Louisiana. The plaintiffs, who are homeowners in the Subdivision, filed suit against various entities involved in the drainage project and their insurers seeking to recover damages resulting from the flooding. Among the many defendants in this suit were: STPG; James A. "Red" Thompson, the St. Tammany Parish Councilman for the geographic area that included the Subdivision; and Jean Thibodeaux, P.E., the Director of Engineering and Parish Engineer for the STPG (collectively referred to as "the STPG defendants"). Markiewicz, 328 So.3d at 490-491.
The plaintiffs’ claims against the STPG defendants were asserted in their third amended class action petition. As to Mr. Thompson and Mr. Thibodeaux, the plaintiffs made claims of conspiracy, fraud, and unfair trade practices relative to the approval of the subdivision, the non-enforcement of subdivision and flood ordinances, and the issuance of building permits. However, as to STPG, the plaintiffs’ claims were two-fold. First, the plaintiffs contended that STPG was vicariously liable for the above actions of Mr. Thompson and Mr. Thibodeaux, i.e., their conduct occurred within the course and scope of their employment and/or in furtherance of their duties with the STPG. Second, the plaintiffs alleged that STPG was liable for the flooding and other damages because STPG accepted dedication of the streets, swales, drainage system, and retention ponds/lakes into the parish/public ownership and was responsible for maintenance of same. Markiewicz, 328 So.3d at 491-492.
In response to the allegations regarding the approval of the Subdivision, the enforcement or non-enforcement of subdivision and flood ordinances, and the issuance of building permits, STPG, Mr. Thompson and Mr. Thibodeaux asserted the affirmative defense of discretionary immunity. STPG, Mr. Thompson, and Mr. Thibodeaux then filed a motion for summary judgment on that issue, seeking the dismissal of the plaintiffs’ claims of conspiracy, fraud, and unfair trade practices. Markiewicz, 328 So.3d at 492.
Thereafter, on the issue of responsibility for maintaining the drainage ponds/lakes in the Subdivision, the plaintiffs filed a motion for partial summary judgment seeking a declaration that the Subdivision's drainage system, including the ponds/lakes, were subject to a public servitude of drainage such that STPG was responsible for the upkeep and maintenance. The STPG responded with a cross-motion for summary judgment seeking a declaration that the Subdivision's homeowners’ association ("HOA") was owner of and solely responsible for the operation and maintenance of the drainage pond/lakes. Markiewicz, 328 So.3d at 492-493.
After a hearing on all three motions, the trial court ruled in favor of STPG, Mr. Thompson, and Mr. Thibodeaux as to all issues and dismissed them from this suit, and an amended judgment was signed by the trial court on June 17, 2020. Markiewicz, 328 So.3d at 493.
The June 17, 2020 amended judgment provided as follows:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Plaintiffs’ motion for partial summary judgment against St. Tammany Parish Government is DENIED.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that St. Tammany Parish Government's cross-motion for summary judgment against Plaintiffs is GRANTED. Penn Mill Lakes Homeowners’ Association owns the greenspace in the Subdivision including the ponds and/or lakes, these ponds/lakes have not been accepted into the Parish Maintenance System, and therefore, Penn Mill Lakes Homeowner's Association is responsible for the operation and maintenance of the ponds and/or lakes in the Penn Mill Lakes Subdivision.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that St. Tammany Parish Government, Parish Councilperson James A. "Red" Thompson, and Jean Thibodeaux, P.E.’s motion for summary judgment is GRANTED, and these defendants are dismissed with prejudice.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all parties are to bear their own costs.
The plaintiffs appealed this judgment, and on appeal, this Court made two holdings. First, this Court held:
... the trial court properly granted STPG defendants’ motion for summary judgment and dismissed the plaintiffs ’ claims against them relative to the approval of the Subdivision and issuance of permits, as well as the claims of conspiracy, fraud, and unfair trade practices. Therefore, that portion of the June 17, 2020 judgment of the trial court granting the STPG’ defendants’ motion for summary judgment and dismissing the plaintiffs’ claims against Mr. Thompson and Mr. Thibodeaux is affirmed.
(Emphasis added.) Markiewicz, 328 So.3d at 499.
Next, this Court held:
to the extent that the trial court granted summary judgment declaring the HOA to be the owner of [the] greenspace in the Subdivision including the ponds/lakes, we find no error and affirm that part of the judgment. However, because we find genuine issues of material fact exist as [to] who is responsible for maintaining the ponds/lakes or drainage system/servitude in the Subdivision, we affirm the judgment insofar as it denied
the plaintiffs’ motion for partial summary judgment and reverse the judgment insofar as it granted the cross-motion for summary judgment filed by the STPG declaring that the HOA was responsible for maintaining the ponds/lakes and dismissed the plaintiffs’ claims against the STPG related to the maintenance of the ponds/lakes and/or drainage system/servitude.
Markiewicz, 328 So.3d at 503.
Notably, the amended judgment on appeal, as set forth above, did not dismiss any particular "claims" of the plaintiffs; rather it dismissed, with prejudice, "these defendants," i.e., Mr. Thompson, Mr. Thibodeaux, and STPG. Indeed, since all of the plaintiffs’ claims against these three defendants were dismissed by the cumulative effect of the trial court's ruling, all three defendants were entitled to be dismissed from this suit.
In this Court's ruling, we determined that the only claims levied against Mr. Thompson and Mr. Thibodeaux by the plaintiffs had been properly dismissed; therefore, we affirmed that portion of the judgment dismissing Mr. Thompson and Mr. Thibodeaux from this suit. However, as to STPG, while this Court determined that the trial court properly dismissed the plaintiffs’ claims regarding conspiracy, fraud, and unfair trade practices relative to the approval of the subdivision, the enforcement or non-enforcement of subdivision and flood ordinances and issuance of building permits on the basis of discretionary immunity, this Court also determined that the trial court erred in dismissing the plaintiffs’ claims regarding STPG's alleged responsibility for maintaining the ponds/lakes and/or drainage system/servitude. For this reason, we specifically excluded STPG from our decree affirming the dismissal of Mr. Thompson and Mr. Thibodeaux from this suit. Stated differently, given the precise language of the judgment on appeal and the ruling of this Court, Mr. Thompson and Mr. Thibodeaux were entitled to be dismissed from this suit, whereas STPG was not.
Therefore, in accordance with the remand instructions issued by the Louisiana Supreme Court, we now clarify our first holding in Markiewicz , 328 So.3d at 499, as set forth above, as follows: (1) that portion of the trial court's judgment granting the motion for summary judgment filed by STPG, Mr. Thompson and Mr. Thibodeaux on the issue of discretionary immunity is affirmed and judgment is rendered dismissing, with prejudice, the plaintiffs’ claims against STPG, Mr. Thompson, and Mr. Thibodeaux based on conspiracy, fraud, and unfair trade practices relative to the approval of the Subdivision, the enforcement and non-enforcement of subdivision and flooding ordinances, and the issuance of building permits; (2) that portion of the trial court's judgment dismissing Mr. Thompson and Mr. Thibodeaux from this suit is affirmed; and (3) that portion of the judgment of the trial court dismissing the STPG from this suit is reversed. This Court's second holding in Markiewicz, 328 So.3d at 503, as set forth above, remains unchanged. See Markiewicz, 328 So.3d at 67 ("In all other respects, the writ is denied").