NEW ORLEANS – The winning bidder to develop New Orleans' former World Trade Center, embroiled in a court battle with one of the losing bidders, will ask an appeals court to reconsider its decision to revoke a lower court judge's order that a Florida business man appear for deposition.
In only part of what proved to be a busy day in the case, the Louisiana's Fourth Circuit Court of Appeal on Wednesday reversed Orleans Civil District Court Judge Tiffany Chase's May 2 order compelling Stuart C. "Neil" Fisher of Palm Beach, Florida, to appear for deposition. Fisher, who has been dodging deposition for months, owns Two Canal Street Investors, which is suing the city and winning bidder Carpenter-Woodward over that bidding process.
"Although defendants-intervenors argue that Stuart C. "Neil" Fisher is the sole shareholder, President, and Director of TCSI, defendants-intervenors have failed to make any showing that Stuart C. Fisher is anything other than a possible shareholder of TCSI," the appeal court said in its decision. "Upon the record, Stuart C. Fisher is a non-party, nonresident witness in this litigation. A Louisiana court cannot order a non-party, nonresident witness to appear or produce documents at a deposition in Louisiana."
The proper procedure in this case, the appeal court's decision said, is to obtain Fisher's deposition via a "letter rogatory," or letter of request, and to go through the Florida courts if necessary.
"We note that as a result of our ruling the hearing on the defendants-intervenor' Motion to Dismiss and for Sanctions based upon the trial court's May 2, 2016 judgment is moot," the court ruled.
Attorneys for Two Canal Street Investors consider that a win, according to a statement emailed to the Louisiana Record by Charline K. Gipson, an attorney with the New Orleans Davillier Law Group. Davillier Law Group represents the plaintiffs in its two lawsuits. The New Orleans Building Corporation (NOBC), a city-appointed committee, is named in a defendant in both suits.
"TCSI is pleased that the Fourth Circuit Court of Appeal has rendered moot the attempt by Carpenter -Woodward to dismiss TCSI's case, and avoid a trial on the merits, based on a discovery dispute over where a deposition of a non-party, non-resident fact witness needs to occur," Gipson said. "TCSI is looking forward to its day in court where it can focus on the real issues in this case, namely, whether the city and the NOBC violated the Public Lease Law when they leased the public property at 2 Canal Street to the lowest bidder, and passed on over $60 million in additional rent in the first year and over $1 billion in additional rent over the term of the lease based on all four of the other bids."
Carpenter-Woodward stands by Chase's May 2 order and will ask the appeals court to reconsider, Greg Beuerman, spokesman for Carpenter-Woodward's litigation team, which works with developer Four Seasons New Orleans, said during a Louisiana Record email interview.
"We believe today's Fourth Circuit's ruling was based on incomplete information and a last-minute filing by TCSI, which attorneys for Carpenter-Woodward had no opportunity to review or oppose," Beuerman said. "It is our belief that TCSI intentionally failed to disclose sworn testimony that Neil Fisher is more than just the sole shareholder in TCSI, and that in fact, he also serves as president and director of the corporation."
Beuerman said attorneys for Carpenter-Woodward will file a Motion for Reconsideration, in addition to a factual and true brief supporting Chase's earlier ruling that compelled Fisher to appear in New Orleans for a deposition.
"We are confident that Judge Chase's earlier ruling was correct and will be reinstated," Beuerman said.
The last-minute filing to which Beuerman referred is a supervisory writ application by Two Canal Street Investors that Beuerman said was made available to defendants in the case only little more than an hour before a scheduled hearing before Chase. The writ asked for expedited consideration and stay of the sanctions, largely to ask the judge to reconsider her order about making Fisher appear for deposition.
Chase considered the writ, along with a defense motion to dismiss the case, during the morning hearing and announced she would render a decision at a later date. Given the appeals court's ruling the same day as the hearing before Chase, it is not clear what decision she can render based on that hearing. Beuerman, however, said Carpenter-Woodward's challenge to Two Canal Street Investor's right of action in the case, backed up by a 4-inch binder of supporting documents, remains on the table.
"We are pleased the court took our motion on No Right of Action under consideration, and feel strongly that our attorneys presented a compelling and factual case for dismissal," Beuerman said.
Fisher, whose previous investments in New Orleans include failed development attempts at the Market Street power plant and Plaza Tower, is not a named plaintiff, or visibly and directly involved in the case. That means, theoretically, Fisher cannot be forced to appear in Louisiana for deposition before attorneys who represent the developers who did get the city's nod to convert the former World Trade Center into a Four Seasons hotel.
The development of New Orleans' 33-story World Trade Center, located on the riverfront, was leased last year to the team led by Carpenter & Co. of Massachusetts and Woodward Interests of New Orleans.
Last winter, New Orleans Building Corp., considered proposals from five national and local hotel-residential developers. Acting on analyst reports that said the Four Seasons' proposal would provide the city with the greatest economic benefit, its members selected Four Seasons New Orleans' $360 million proposal for the riverfront property. The proposal includes a Four Seasons hotel, and condominiums by Carpenter & Co. and Woodward Interests.
The proposal by Two Canal Street Investors, partnered with Woodbine Development Corp. of Dallas, Monday Properties of New York and Washington D.C., and Valencia Hotel Group, was for a $228 million renovation of the World Trade Center. That proposal would have included the 318-room Hotel Alessandra and 240 apartments.
Two Canal Street Investors maintains its bid should have prevailed because it offered the highest rent payments to the city. For its part, the city claims that Four Seasons' proposal will bring in greater economic benefit above and beyond rents paid to the city.
Trial in the case is scheduled to begin in October.