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Verite asks judge to reverse highly unusual order [1]

['Richard A. Webster', 'More Richard A. Webster']

Date: 2023-06-26

Verite has filed a motion in Orleans Civil District Court seeking to unseal the record of a six-year-old lawsuit involving the historic Whitney Bank building on South Carrollton Avenue. The property has been the focus of a yearslong legal battle between owner Tommy Ngo and tenant Nidal Jaber, a local real estate investor with a legally contentious history.

Verite argues in its motion, filed Friday (June 23) by attorney Caleb Didriksen, that Orleans Civil District Court Judge Jennifer Medley’s September 2022 order to seal the record violates the U.S. and Louisiana constitutions, both of which protect the public’s right to access the courts. The Whitney case is of significant public interest, according to the news organization, as it involves a historic building that, due to the litigation, has sat empty for nearly a decade, negatively impacting the surrounding community and its real estate values.

Built in 1921, the three-story stone Whitney building is considered one of the finest examples of the Beaux Arts style of architecture in New Orleans, similar to the Supreme Court building in the French Quarter and the old post office at Lafayette Square, according to a report from the New Orleans Historic Districts Landmark Commission which designated the building as a landmark in 2010.

Under their jointly owned company, Carrollton & Oak, LLC, Jaber and a business partner signed a lease for the Whitney in 2014 with an option to purchase, according to court records. But several years later, after falling out with his partner, Jaber sued Ngo, claiming he attempted to illegally evict him, among other allegations, according to court documents obtained by Verite and interviews with some of the parties involved. Ngo denied those claims. He said Jaber fell behind on rent dozens of times and that it was Jaber who broke the lease when he failed to pay a promissory note of more than $700,000.

In May of last year, Medley ruled in favor of Jaber and ordered Ngo to pay his tenant $6.4 million in damages. As a result, the Ngos declared bankruptcy and were forced into Chapter 7 which requires the liquidating of all their assets, including the Whitney building.

Four months later, Medley ordered the entire record sealed and “removed from the view of the public domain.”

Medley’s order to seal the entire record of more than 350 documents is exceedingly rare and typically reserved for cases involving the most sensitive of material, according to an analysis of court records by Verite. Since 2018, there have been 60,102 cases filed in Civil District Court. During that time, judges sealed in their entirety the records of 47, or .0008% of all cases. Of those 47, more than 91% involved children, health or medical issues, physical and sexual abuse, or divorce. Only two appear to deal with real estate cases.

Even when there are children involved, it is not automatic that the record will be sealed. In its filing, Verite points to the divorce of fried chicken magnate Al Copeland, who asked that the record in the case be hidden from public view for the safety and protection of his children. The Times-Picayune challenged that request, and in 2007 the Louisiana Supreme Court ruled in the newspaper’s favor, ordering that only the name of the children’s school and the location of the family home be redacted.

An order to protect the children must be “narrowly tailored to cause the least interference possibly with the right of public access,” the court ordered.

“Verite submits that the Supreme Court’s reasoning in Copeland could be carbon-copied to the sealed documents in this case,” Didriksen wrote. “It is clear that there are no minors to protect, so nothing to seal under the generally prevailing rules.”

In the majority of cases in Orleans Civil District Court in which the record is sealed, the judge’s order is not accessible. But in the few that can be seen, the judges spelled out their reasoning, such as “exhaustive references to mental health and treatment history” or “allegations involving a minor.”

Medley did not include a reason in her Sept. 22 order as to why the record should be sealed, which could be a significant problem, said Blaine LeCesne, a professor at the Loyola University New Orleans College of Law. The public has a First Amendment right to access court records and that right should be denied only under the “rarest of circumstances.” That Medley did so over a real estate dispute without explanation is “highly irregular, and suspect on its face,” LeCesne said

“I don’t know what was behind the motivations of Judge Medley, but to do so under these circumstances could very well be an abuse of discretion,” LeCesne said.

Mail stacks up inside the lobby of the historic Whitney Bank building on South Carrollton Avenue as a legal fight over the property continues. Credit: Charles Maldonado/Verite

The Whitney building has two commercial spaces on the first floor, six residential units on the second and third, and is located in one of the city’s most desirable neighborhoods. And yet the last two businesses to occupy the building – Pho Bistreaux and a nail salon – have long since closed due to the ongoing legal battle.

“The public has a right to know how such deals are conducted and adjudicated in order to make informed decisions about laws, ordinances, and zoning issues that affect all residents,” Verite stated in its motion. “Just because the litigants cross-allege unsavory behaviors on the part of their opponents does not trigger a right or privilege of shielding their unsavory strategies from the view of the public.”

Jaber has been a part of numerous real estate transactions that have resulted in litigation. Since 2010, he has been both a plaintiff and defendant in at least 14 lawsuits in Orleans Parish Civil District Court. These involved various disputes between former business partners, landlords and tenants. He has also been sued once in federal court and twice in Jefferson Parish.

Several of these lawsuits have resulted in significant financial losses. Jaber sued his former partner in the Whitney Bank venture, Gerard McGovern, twice – once in 2016 and again in 2018. Jaber claimed McGovern was pocketing rent money from their Whitney building tenants, failing to properly maintain the building, and that he was trying to sell the Whitney out from under him. The lawsuits were later consolidated.

Civil District Court Judge Robin Giarrusso entered a default judgment – which typically occurs when a defendant doesn’t appear in court – for Jaber in December 2019, ordering McGovern to pay $2.3 million. The judgment was later vacated because McGovern had not been notified about the default hearing or that the judgment had been granted by the court. The case is pending.

McGovern, who denied Jaber’s allegations, said the Whitney ordeal drained his resources and, eventually, forced him to file for Chapter 7 bankruptcy. Jaber then filed a proof of claim against him for $4.1 million in the bankruptcy case, including attorneys’ fees, property damage and lost rental revenue. McGovern settled for $1.2 million and his properties have all been sold off to pay his debts, said his bankruptcy attorney Jonathan DeTrinis. Jaber and his associates were among the buyers.

“I went from being a multimillionaire to having no monthly stipend for food, shelter, water, gasoline, anything,” McGovern said. “I have had no access to a dime in over two and a half years.”

Jaber’s attorney, former judge and mayoral candidate Michael Bagneris, declined comment on behalf of his client. Jaber “does not wish to communicate with you or anyone from your organization,” Bagneris wrote in an email to Verite. “He will consider any contact after this email is transmitted to be harassment and intimidation.”

Bagneris was recently involved in another suit where the full record was, temporarily, sealed.

Last year, Bagneris sued the New Orleans Jazz and Heritage Festival and Foundation Inc. He claimed that as a past president of the nonprofit board he was entitled to and denied dozens of free tickets to Jazz Fest, in addition to discounted posters, free parking, and access to a private lounge, among other perks.

An Orleans Parish judge initially ruled in favor of Bagneris, but that decision was later overturned by the 4th Circuit Court of Appeals.

Bagneris had asked the court to seal the record due to “private, sensitive subject matter” that “should be protected from public scrutiny.” But the Times-Picayune successfully moved to have it unsealed, asserting that the “matter is of significant public concern throughout the New Orleans Metropolitan area.”

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If you share our stories on social media, please tag us in your posts using @VeriteNewsNola on Facebook @VeriteNewsNola on Twitter. If you have any other questions, contact managing editor Tim Morris. Verite asks judge to reverse highly unusual order sealing real-estate suit <h1>Verite asks judge to reverse highly unusual order sealing real-estate suit</h1> by Richard A. Webster, Verite June 26, 2023 Verite has <a href="https://www.documentcloud.org/documents/23861510-verite-motion-to-unseal-record-6232023">filed a motion in Orleans Civil District Court</a> seeking to unseal the record of a six-year-old lawsuit involving the historic Whitney Bank building on South Carrollton Avenue. The property has been the focus of a yearslong legal battle between owner Tommy Ngo and tenant Nidal Jaber, a local real estate investor with a legally contentious history. Verite argues in its motion, filed Friday (June 23) by attorney Caleb Didriksen, that Orleans Civil District Court Judge Jennifer Medley’s September 2022 order to seal the record violates the U.S. and Louisiana constitutions, both of which protect the public’s right to access the courts. The Whitney case is of significant public interest, according to the news organization, as it involves a historic building that, due to the litigation, has sat empty for nearly a decade, negatively impacting the surrounding community and its real estate values. Built in 1921, the three-story stone Whitney building is considered one of the finest examples of the Beaux Arts style of architecture in New Orleans, similar to the Supreme Court building in the French Quarter and the old post office at Lafayette Square, according to a<a href="https://www.documentcloud.org/documents/23789779-1200scarrollton-report_001"> report</a> from the New Orleans Historic Districts Landmark Commission which designated the building as a landmark in 2010. Under their jointly owned company, Carrollton & Oak, LLC, Jaber and a business partner signed a lease for the Whitney in 2014 with an option to purchase, according to court records. But several years later, after falling out with his partner, Jaber sued Ngo, claiming he attempted to illegally evict him, among other allegations, according to court documents obtained by Verite and interviews with some of the parties involved. Ngo denied those claims. He said Jaber fell behind on rent dozens of times and that it was Jaber who broke the lease when he failed to pay a promissory note of more than $700,000. In May of last year, Medley ruled in favor of Jaber and ordered Ngo to pay his tenant $6.4 million in damages. As a result, the Ngos declared bankruptcy and were forced into Chapter 7 which requires the liquidating of all their assets, including the Whitney building. Four months later, Medley ordered the entire record sealed and “removed from the view of the public domain.” Medley’s order to seal the entire record of more than 350 documents is exceedingly rare and typically reserved for cases involving the most sensitive of material, according to an analysis of court records by Verite. Since 2018, there have been 60,102 cases filed in Civil District Court. During that time, judges sealed in their entirety the records of 47, or .0008% of all cases. Of those 47, more than 91% involved children, health or medical issues, physical and sexual abuse, or divorce. Only two appear to deal with real estate cases. Even when there are children involved, it is not automatic that the record will be sealed. In its filing, Verite points to the divorce of fried chicken magnate Al Copeland, who asked that the record in the case be hidden from public view for the safety and protection of his children. The Times-Picayune challenged that request, and in 2007 the Louisiana Supreme Court ruled in the newspaper’s favor, ordering that only the name of the children’s school and the location of the family home be redacted. An order to protect the children must be “narrowly tailored to cause the least interference possibly with the right of public access,” the court ordered. “Verite submits that the Supreme Court’s reasoning in Copeland could be carbon-copied to the sealed documents in this case,” Didriksen wrote. “It is clear that there are no minors to protect, so nothing to seal under the generally prevailing rules.” In the majority of cases in Orleans Civil District Court in which the record is sealed, the judge’s order is not accessible. But in the few that can be seen, the judges spelled out their reasoning, such as “exhaustive references to mental health and treatment history” or “allegations involving a minor.” Medley did not include a reason in<a href="https://www.documentcloud.org/documents/23789853-20220909-signed-order-sealing-record"> her Sept. 22 order</a> as to why the record should be sealed, which could be a significant problem, said Blaine LeCesne, a professor at the Loyola University New Orleans College of Law. The public has a First Amendment right to access court records and that right should be denied only under the “rarest of circumstances.” That Medley did so over a real estate dispute without explanation is “highly irregular, and suspect on its face,” LeCesne said “I don't know what was behind the motivations of Judge Medley, but to do so under these circumstances could very well be an abuse of discretion,” LeCesne said. <figure class="wp-block-image size-large"><img src="https://veritenews.org/wp-content/uploads/2023/06/Screenshot-2023-06-26-at-1.33.02-PM-1024x765.png" alt="" class="wp-image-7323" /><figcaption class="wp-element-caption">Mail stacks up inside the lobby of the historic Whitney Bank building on South Carrollton Avenue as a legal fight over the property continues. </figcaption></figure> <figure class="wp-block-embed is-type-wp-embed is-provider-verite wp-block-embed-verite"> <div class="wp-block-embed__wrapper"> https://veritenews.org/our-commitment-to-listening/ </div> </figure> The Whitney building has two commercial spaces on the first floor, six residential units on the second and third, and is located in one of the city’s most desirable neighborhoods. And yet the last two businesses to occupy the building – Pho Bistreaux and a nail salon – have long since closed due to the ongoing legal battle. “The public has a right to know how such deals are conducted and adjudicated in order to make informed decisions about laws, ordinances, and zoning issues that affect all residents,” Verite stated in its motion. “Just because the litigants cross-allege unsavory behaviors on the part of their opponents does not trigger a right or privilege of shielding their unsavory strategies from the view of the public.” Jaber has been a part of numerous real estate transactions that have resulted in litigation. Since 2010, he has been both a plaintiff and defendant in at least 14 lawsuits in Orleans Parish Civil District Court. These involved various disputes between former business partners, landlords and tenants. He has also been sued once in federal court and twice in Jefferson Parish. Several of these lawsuits have resulted in significant financial losses. Jaber sued his former partner in the Whitney Bank venture, Gerard McGovern, twice – once in<a href="https://www.documentcloud.org/documents/23790316-jaber-v-mcgovern-carollton"> 2016</a> and again in 2018. Jaber claimed McGovern was pocketing rent money from their Whitney building tenants, failing to properly maintain the building, and that he was trying to sell the Whitney out from under him. The lawsuits were later consolidated. Civil District Court Judge Robin Giarrusso entered a default judgment – which typically occurs when a defendant doesn’t appear in court – for Jaber in December 2019, ordering McGovern to pay $2.3 million. The judgment was later vacated because McGovern had not been notified about the default hearing or that the judgment had been granted by the court. The case is pending. McGovern, who denied Jaber’s allegations, said the Whitney ordeal drained his resources and, eventually, forced him to file for Chapter 7 bankruptcy. Jaber then filed a proof of claim against him for $4.1 million in the bankruptcy case, including attorneys’ fees, property damage and lost rental revenue. McGovern settled for $1.2 million and his properties have all been sold off to pay his debts, said his bankruptcy attorney Jonathan DeTrinis. Jaber and his associates were among the buyers. “I went from being a multimillionaire to having no monthly stipend for food, shelter, water, gasoline, anything,” McGovern said. “I have had no access to a dime in over two and a half years.” Jaber’s attorney, former judge and mayoral candidate Michael Bagneris, declined comment on behalf of his client. Jaber “does not wish to communicate with you or anyone from your organization,” Bagneris wrote in an email to Verite. “He will consider any contact after this email is transmitted to be harassment and intimidation.” Bagneris was recently involved in another suit where the full record was, temporarily, sealed. Last year, Bagneris sued the New Orleans Jazz and Heritage Festival and Foundation Inc. He claimed that as a past president of the nonprofit board he was entitled to and denied dozens of free tickets to Jazz Fest, in addition to discounted posters, free parking, and access to a private lounge, among other perks. An Orleans Parish judge initially ruled in favor of Bagneris, but that decision was later overturned by the 4th Circuit Court of Appeals. Bagneris had asked the court to seal the record due to “private, sensitive subject matter” that “should be protected from public scrutiny.” But the Times-Picayune successfully <a href="http://nola.com/entertainment_life/festivals/the-times-picayune-seeks-to-unseal-lawsuit-against-foundation-that-controls-jazz-fest/article_5121984e-baa8-11ec-96c0-cb1efc9da6fb.html">moved to have it unsealed</a>, asserting that the “matter is of significant public concern throughout the New Orleans Metropolitan area.” <a href="https://veritenews.org/join-our-mailing-list/">Join Verite’s Mailing List</a> | <a href="https://veritenews.org/our-commitment-to-listening/">Get the news that matters to you</a> This <a target="_blank" href="https://veritenews.org/2023/06/26/reverse-order/">article</a> first appeared on <a target="_blank" href="https://veritenews.org">Verite</a> and is republished here under a Creative Commons license.<img src="https://i0.wp.com/veritenews.org/wp-content/uploads/2022/05/cropped-Verite-icon.png?fit=150%2C150&ssl=1" style="width:1em;height:1em;margin-left:10px;"><img id="republication-tracker-tool-source" src="https://veritenews.org/?republication-pixel=true&post=7329&ga3=319934958" style="width:1px;height:1px;"> Copy to Clipboard

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