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0001 1 2 CIVIL DISTRICT COURT FOR 3 THE PARISH OF ORLEANS 4 IN THE STATE OF LOUISIANA 5 6 THE UPTOWNER, INC. * NO.

2007-136 7 * c/w 2007-2497 8 VERSUS * 9 * 10 CITY OF NEW ORLEANS and * DIVISION "B" 11 BOARD OF ZONING * 12 ADJUSTMENTS FOR THE CITY* 13 OF NEW ORLEANS * SECTION (15) 14 * * * * * 15 16 17 1442 deposition of BURTHEVILLE 18 ASSOCIATION OF NEIGHBORS, through its 19 designated representative, KENT U. BLACKWELL, 20 6330 Laurel Street, New Orleans, Louisiana, 21 70118, taken in the offices of HERMAN, 22 HERMAN, KATZ & COTLAR, 822 O'Keefe Avenue, 23 New Orleans, Louisiana, 70113, on Wednesday, 24 the 31st day of October, 2012. 25 0002 1 APPEARANCES: 2 3 KILLEEN & STERN 4 Attorneys at Law (BY: ROBERT C. STERN, ESQUIRE) 5 400 Poydras Street Suite 1710 Texaco Center 6 New Orleans, Louisiana 70130 (504) 535-8111 7 E-mail: rstern@killeen-law.com 8 (Attorneys representing The Uptowner, Inc.) 9 10 HERMAN, HERMAN, KATZ & COTLAR Attorneys at Law 11 (BY: SOREN E. GISLESON, ESQUIRE) 822 O'Keefe Avenue 12 New Orleans, Louisiana 70113 (504) 581-4892 13 E-mail: sgisleson@hhklawfirm.com 14 (Attorneys representing Burtheville 15 Association of Neighbors) 16 DISTRICT ATTORNEY FOR 17 THE CITY OF NEW ORLEANS

18 19 20

(BY: DANIEL McNAMARA, ESQUIRE) 1300 Perdido Street, 5th Floor New Orleans, Louisiana 70112 (504) 658-9800 E-mail: dmcnamara@nola.gov

(Attorneys representing 21 The City of New Orleans) 22 ALSO PRESENT: Greg Sonnier; Eddie Sapir 23 REPORTED BY: 24 KATHY A. MARTINY, CSR Certified Court Reporter 25 State of Louisiana 0003 1 EXAMINATION INDEX 2 3 EXAMINATION BY MR. STERN: Page 6, Line 5; Page 147, Line 8 4 EXAMINATION BY MR. GISLESON: Page 130, Line 5 6 6 EXAMINATION BY MR. McNAMARA: 7 EXHIBITS 8 9 KENT BLACKWELL DEPOSITION EXHIBIT NUMBER B-1: Page 7, Line 4 10 (Copy of Notice of the Steongraphic LA CCP 11 Arts. 1441 and 1442 Deposition of Burtheville Association of Neighbors, LLC) 12 KENT BLACKWELL DEPOSITION EXHIBIT 13 NUMBER B-2: Page 90, Line 3 14 (Burtheville Association of Neighbors Urgent Action Alert) 15 KENT BLACKWELL DEPOSITION EXHIBIT 16 NUMBER B-3: Page 75, Line 10 17 (Articles of Incorporation of Burtheville Association of Neighbors, Inc. (BAN)) 18 19 KENT BLACKWELL DEPOSITION EXHIBIT NUMBER B-4: Page 119, Line 14 20 (Burtheville Association of Neighbors' 21 Submission to City Planning Commission of New Orleans via Ms. Yolanda Rodriguez) 22 KENT BLACKWELL DEPOSITION EXHIBIT 23 NUMBER B-5: Page 130, Line 6

24 (November 12, 2009 Memo from Michael Sherman Re: Spot Zone Petition of Lucy Holding, LLC 25 (438 Henry Clay Avenue - Uptowner d/b/a 0004 1 EXHIBITS (CONTINUED): 2 KENT BLACKWELL DEPOSITION EXHIBIT 3 NUMBER B-6: Page 132, Line 11 4 (November 4, 2009 Memo from Michael Sherman Re: Spot Zone Petition of Lucy Holding LLC 5 (438 Henry Clay Avenue - Uptowner d/b/a Gabrielle)) 6 KENT BLACKWELL DEPOSITION EXHIBIT 7 NUMBER B-7: Page 132, Line 18 8 (BAN Notes of March 5, 2007) 9 KENT BLACKWELL DEPOSITION EXHIBIT NUMBER B-8: Page 133, Line 15 10 (Time line of Burtheville 11 Association of Neighbors) 12 KENT BLACKWELL DEPOSITION EXHIBIT NUMBER B-9: Page 137, Line 17 13 (Opposition to Spot Zone at 438 14 Henry Clay Avenue) 15 KENT BLACKWELL DEPOSITION EXHIBIT NUMBER B-10: Page 140, Line 15 16 (Motion, and Incorporated 17 Memorandum, for Summary Judgment) 18 19 20 21 22 23 24 25 0005 1 STIPULATION 2 3 It is stipulated by and agreed by 4 and between counsel for the parties hereto 5 that the deposition of the aforementioned 6 witness is hereby being taken for all 7 purposes allowed under Article 1421, et seq., 8 of the Louisiana Code of Civil Procedure, in 9 accordance with law, pursuant to notice; 10 That the formalities of reading 11 and signing are specifically not waived; 12 That the formalities of filing, 13 sealing, and certification are specifically

14 waived; 15 That all objections, save those 16 as to the form of the question and the 17 responsiveness of the answer, are hereby 18 reserved until such time as this deposition, 19 or any part thereof, may be used or sought to 20 be used in evidence. 21 22 KATHY A. MARTINY, CSR, Certified 23 Court Reporter in and for the State of 24 Louisiana, officiated in administering the 25 oath to the witness. 0006 1 KENT U. BLACKWELL, 2 after having been first duly sworn by the 3 above-mentioned Certified Court Reporter, was 4 examined and testified as follows: 5 EXAMINATION BY MR. STERN: 6 Q. Good afternoon, Mr. Blackwell. 7 We met previously; actually, just a few 8 minutes ago; my name is Bob Stern; I 9 represent the Uptowner, Inc. in a lawsuit 10 that is presently pending in Civil District 11 Court in New Orleans. We're here today to 12 take the deposition of the Burtheville 13 Association of Neighbors, which, if it's 14 agreeable to you, I will simply refer to as 15 BAN? 16 A. Perfect. 17 Q. And my understanding is that, 18 pursuant to the Articles of our Code of Civil 19 Procedure that I won't bore you with, you 20 have been designated as BAN's representative 21 to respond on its behalf to the areas of 22 inquiry that we provided in the Notice of 23 this deposition. 24 MR. STERN: 25 What I'd like to do is mark the 0007 1 Deposition Notice, which I believe you have a 2 copy of in front of you, as B, for 3 Burtheville, 1. 4 (Whereupon, the instrument referred 5 to was marked KENT BLACKWELL DEPOSITION 6 EXHIBIT NUMBER B-1 and is attached to the 7 transcript). 8 Q. (BY MR. STERN). I'd just ask 9 you to look at this (indicating); and make 10 sure this is the same Deposition Notice, 11 albeit on shorter paper, that you have 12 previously seen. 13 A. It appears to be. 14 Q. And am I correct in

15 understanding that BAN has designated you as 16 its representative to respond to all 13 areas 17 of inquiry that are raised in the Deposition 18 Notice? 19 A. That's correct. 20 Q. Have you ever given a deposition 21 before? 22 A. Yes. 23 Q. I'm assuming, then, that you're 24 familiar with the ground rules; but there are 25 a couple of things that I would ask you to 0008 1 do, in particular, in this deposition. 2 One is, if I ask you a question 3 you don't understand, you will not hurt my 4 feelings if you tell me you have no idea what 5 I'm talking about; and I will, at that point, 6 try to ask a clearer, or better, question. 7 Fair enough? 8 A. Fair enough. 9 Q. If you don't tell me that you 10 don't understand the question, then I am 11 going to assume that you did understand the 12 question; and the answer you gave is your 13 best answer under oath. Is that fair enough? 14 A. That's fair. 15 Q. Thirdly, I will do my best to 16 wait until you finish answering a question 17 before I ask another; I would also ask that 18 you wait until I'm done asking the question 19 before you begin to answer; and that's for 20 two reasons. 21 One, it's hard for the court 22 reporter if we're talking over each other; 23 and secondly, the question could turn out to 24 be slightly different than what you were 25 anticipating; in which case, if you begin 0009 1 answering before I'm done asking, you might 2 not be answering the question that I intended 3 to ask. 4 And also, your attorney may have 5 an objection to a question; and by waiting 6 until the question is completed, that gives 7 him an opportunity to make his objection 8 before you give your answer. 9 And, finally -- and you've 10 already done a good job of this -- I would 11 ask that you answer verbally, rather than 12 shaking, or nodding, your head; and, also, 13 that you avoid "Uh-huh", and "Unh-unh"; 14 because they can look the same on paper; and 15 then we end up arguing about whether you

16 meant to say yes or no. Okay? 17 A. That's clear. 18 Q. And, lastly, for any reason, if 19 you need to take a break, just let me know 20 that you do; and all I will ask is that, if 21 there's a question on the table, you simply 22 answer that question before we take the 23 break; and then we'll be happy to accommodate 24 you. 25 With that in mind, would you 0010 1 give me your full name, and your residence 2 address, for the record again, please? 3 A. Kent U. Blackwell; 6330 Laurel 4 Street, New Orleans, Louisiana, 70118. 5 Q. What is your present position 6 with BAN? 7 A. President. 8 Q. How long have you been President 9 of BAN? 10 A. Since May of 2010. 11 Q. Before becoming President of 12 BAN, did you hold any other offices with that 13 organization? 14 A. Uh, Committee Chair; Zoning 15 Committee Chair. 16 Q. When did you become the Zoning 17 Committee Chair of BAN? 18 A. October of 2006; somewhere in 19 that time line. 20 Q. Is the Zoning Committee Chair an 21 appointed position, where the officers of BAN 22 appoint the individuals that belong to that 23 committee; or is that an elected position, 24 where the membership votes? 25 A. It's a voluntary position. 0011 1 Q. Now, when you say it was a 2 voluntary position, was that a position that 3 was created by virtue of your volunteering 4 for it; or was that a position that existed; 5 and you volunteered to fill it? 6 A. It was -- it was to fill a need; 7 there was some zoning issues in the 8 neighborhood; and I suggested it; and it was 9 discussed at a meeting; and, um, I assumed 10 that position. 11 Q. Now, I assume -- and we'll get 12 to this in more detail in a few minutes -13 that you're familiar with the by-laws of BAN? 14 A. Yes. 15 Q. Is the Zoning Committee a 16 position that is provided for in the by-laws?

17 A. No; it's not. 18 Q. Were the by-laws ever amended to 19 provide for it? 20 A. No. 21 MR. GISLESON: 22 Greg, Mr. Sonnier is here. If 23 it's okay, we're going to bring him in? 24 MR. STERN: 25 Yeah; that's fine. 0012 1 (Whereupon, there was a recess). 2 MR. STERN: 3 Back on the record. 4 Q. (BY MR. STERN). At the time 5 that you suggested the Zoning Committee, was 6 your suggestion that that position be filled 7 by a single individual; or a committee of a 8 number of people? 9 A. A committee of a number of 10 people; my wife's a licensed architect here 11 in New Orleans; and she knows zoning well; we 12 had zoning issues that were not being 13 addressed; and we had chose to fulfill those 14 positions together. 15 Q. When you suggested the Zoning 16 Committee, did you suggest a number of 17 committee members? 18 A. No. 19 Q. When the position, or the 20 positions, of the Zoning Committee were 21 created, how did that come about; was there a 22 vote of the full membership of BAN; did the 23 officers decide that there would be a Zoning 24 Committee created; how did that work? 25 A. At the time we, again, saw a 0013 1 need for someone to pay attention to the 2 zoning; and we volunteered at the meeting; 3 everyone agreed -- was in agreement with 4 having us take -- assume those positions. 5 Q. Okay. Now, when you say "at the 6 meeting", was this a general membership 7 meeting; was it a board meeting; what type of 8 meeting was this? 9 A. A general membership meeting. 10 Q. Do the by-laws of BAN require a 11 quorum for votes? 12 A. Not that I know of. 13 Q. Have you ever reviewed the by14 laws, to determine if a quorum is required? 15 A. I have reviewed them; and I 16 don't -- it doesn't indicate such. 17 Q. Are votes formally recorded?

18 A. Um, no. 19 Q. Are votes simply done by voice 20 vote? 21 A. Yes. 22 Q. And who determines whether or 23 not a proposition is passed, or defeated, 24 based upon the voice vote? 25 A. Um, these meetings are generally 0014 1 10 to 20 people; and it's pretty easy to 2 count if somebody is not -- or someone is in 3 opposition, it's pretty apparent; we discuss 4 that from that point on; and all come to 5 terms with it. 6 Q. Is there a Secretary for BAN? 7 A. No. 8 Q. Or let me -9 A. Well, let me ask you a question. 10 Are you talking about from the -11 Q. Let me ask a better question. 12 A. Yeah; okay; sure. 13 Q. Does BAN have a position that is 14 referred to as "Secretary"; or referred to by 15 any other title, one of whose functions it is 16 to record what takes place at the membership 17 meeting; and to, then, prepare some type of 18 written record of what's taken place? 19 A. There's a President; and there's 20 a Vice President, as I recall; beyond that, 21 there are people at the meeting that 22 volunteer to take notes; sometimes those 23 notes are retained; sometimes they are just, 24 um -- they're not actually distributed. 25 Q. As far as you know -- and let's 0015 1 go back to October of 2006, when I believe 2 you said the Zoning Committee was created. 3 From October of 2006 forward, have there been 4 any official records kept of what takes place 5 at BAN meetings? 6 A. Um, prior to, um, May of 2010, I 7 wasn't President; and those records were not 8 kept by me; I believe Mr. Mike Sherman was 9 President at the time; and you should have a 10 copy of most all those documents that were 11 filed. 12 Q. As I assume that, from October 13 2006 forward, you did attend the membership 14 meetings? 15 A. Yes. 16 Q. Were any minutes, or records, of 17 previous meetings distributed at meetings you 18 attended?

19 A. Not that I recall. 20 Q. Is there an official membership 21 role of BAN? 22 A. Um, yes; there is. 23 Q. And who is responsible for 24 keeping, and updating, the membership role? 25 A. Claire Morrison. 0016 1 Q. And does she have a title with 2 BAN? 3 A. No. 4 Q. Since October of 2006, has she 5 held that responsibility of keeping, and 6 updating, the membership role? 7 A. I can only -- I can only tell 8 you that, after May of 2010, she has; prior 9 to that, I'm not sure. 10 Q. When did you first join BAN? 11 A. Um, on or about, um, October of 12 2006. 13 Q. Does that coincide with when you 14 moved into the neighborhood? 15 A. No; I've lived there since '86. 16 Q. So it would have been, roughly, 17 20 years from your originally moving into the 18 neighborhood before you joined; is that 19 correct? 20 A. Um, that sounds close. 21 Q. And what is your understanding 22 of how long BAN has existed? 23 A. It was incorporated in 1986; so 24 I think it's January 1986. 25 Q. So from the year you moved to 0017 1 the neighborhood, BAN has existed; you just 2 didn't join for approximately 20 years; is 3 that correct? 4 A. Correct. 5 Q. What prompted you to join after 6 20 years? 7 A. We have, um, experienced issues 8 -- zoning issues -- not limited to the one 9 we're talking about now; but there have been 10 a number of zoning issues that were not being 11 addressed; for instance, driveways are being 12 poured without permits; businesses were 13 operating outside of the law. 14 And there was, really, nobody -15 there's no organization, in our area, that 16 was paying attention; there are other 17 neighborhood groups; but none of them 18 actually paid much attention to these -19 these violations.

20 Q. When you joined BAN, what did 21 you understand the geographic boundaries to 22 be? 23 A. Uh, you -24 Q. In other words, what was the 25 neighborhood that the Burtheville 0018 1 Neighborhood Association encompassed? 2 A. The Burtheville Neighborhood -3 I'm sorry; I spoke too soon; those historic 4 boundaries are, roughly, Jefferson; the 5 river; Exposition; and Camp. 6 Q. At least during the period of 7 time that you've been President of BAN, is 8 there anything done to determine whether 9 somebody who wishes to join lives within 10 those, as you referred to them, "historic 11 boundaries"? 12 A. I'm not sure of the question. 13 Are you asking do we go to their home 14 address; and make sure, or verify, they're 15 there; or do we just take for granted that 16 they are? 17 Q. Do you look at the home address 18 to see, at least, that the home address 19 that's being provided is within the 20 geographic boundaries -21 A. Yes. 22 Q. -- or the historic boundaries 23 that you've referred to? 24 A. Yes; we do. 25 Q. Does BAN have any members who do 0019 1 not live inside what you've referred to as 2 the "historic boundaries"? 3 A. Not that I'm aware of. 4 Q. Does BAN accept businesses as 5 members; or only individuals? 6 A. The by-laws don't -- or the 7 Articles of Incorporation, by-laws, don't 8 allow for it. 9 Q. You do not allow businesses to 10 be members? 11 A. It's not mentioned; and we have 12 no business membership that I'm aware of. 13 Q. Does Eddie Sapir live within 14 what you refer to as the "historic 15 boundaries" of BAN? 16 A. Yes. 17 Q. Now, you said you joined in 1986 18 -- excuse me, in 2006 -- because there were 19 zoning issues that were not being addressed. 20 Did anyone bring any of these zoning issues

21 to your attention; or were these zoning 22 issues that you, and/or your wife, observed; 23 and brought to other people's attention? 24 A. I'm not sure of the question. 25 Q. Okay. Let me rephrase. You 0020 1 said that you joined in 2006 because there 2 were zoning issues that were not being 3 addressed by BAN. And my question is: Did 4 you become aware of those zoning issues 5 because of your own investigation, or 6 observation, and/or your wife's investigation 7 and observation; or were other people in the 8 neighborhood bringing these zoning issues to 9 your attention? 10 A. I want to clarify something; 11 there were a number of issues that were not 12 being addressed; not -- it wasn't that BAN 13 wasn't addressing the issues; they just 14 simply weren't being addressed by either the 15 City, or regulatory agencies, first. 16 Secondly, we pay attention to 17 our neighborhood; um, our neighbors are very 18 close; and it was brought to our attention; 19 there were -- neighbors talk; papers write; 20 and, uh, we read there were issues; and knew 21 that some of these issues would affect our 22 property value, and quality of life, that 23 were not addressed. 24 Q. Were any issues regarding zoning 25 and/or permitting brought to your attention 0021 1 in 2006 prior to the time that you suggested 2 the formation of the Zoning Committee? 3 A. Uh, yes. 4 Q. And can you tell me what those 5 zoning issues were? 6 A. Um, the property at 438 Henry 7 Clay Avenue was sold. 8 MADAME REPORTER: 9 At what? 10 WITNESS: 11 438 Henry Clay Avenue was sold 12 to Mr. Sonnier; he made it quite public that 13 he intended to open a restaurant there; that 14 would have required a Spot Zoning Application 15 process, and a spot zone of that property, 16 which would have been changed for -- forever, 17 for that matter; um, it was zoned RD4, it 18 always has been; he requested a B1A zoning, 19 which is much more intensive use; and, uh, 20 the most impacted neighbors objected. 21 Q. (BY MR. STERN). What was your

22 understanding of the use that was being made 23 of 438 Henry Clay Avenue prior to 2006; from 24 1986, when you moved in the neighborhood, to 25 2006? 0022 1 A. Ms. Tisdale, as I understand, 2 was the owner of the property; um, she ran a 3 very intermittent reception hall; meaning, 4 maybe once a month, if that, we would see 5 some activity there; it was usually the 6 little ladies -- real estate ladies of the 7 neighborhood getting together, and having 8 coffee. 9 In August of 2003, we phoned 10 them to inquire about my son's bar mitzvah, 11 and were not even called back; there was no 12 -- there was a recording on the phone; um, it 13 was pretty common knowledge that there was 14 relatively little activity; it was common 15 knowledge that she was looking to sell the 16 place, because she really just couldn't make 17 it there, is my recollection of the 18 circumstances of that property. 19 Q. Did you, or anyone else, to your 20 knowledge, make any objection to the use of 21 438 Henry Clay Avenue as a reception hall 22 from the time you moved into the neighborhood 23 until the time it was sold by Kathy Tisdale 24 Johnson? 25 A. Not that I'm aware of. 0023 1 Q. Now, you said that the property, 2 you appreciate, was zoned as RD4; is that 3 correct? 4 A. That's correct. 5 Q. And what was, and what is, your 6 understanding of what an RD4 zoning 7 designation permits? 8 A. It's a residential multi-family 9 structure. 10 Q. In your opinion -- and I'm not 11 asking for a legal opinion, because, correct 12 me if I'm wrong, you're not a licensed 13 attorney? 14 A. (Witness shaking head 15 negatively). 16 Q. In your opinion, from the time 17 you moved to the neighborhood, until the time 18 that Kathy Johnson sold the property, in 19 2006, is the RD4 zoning permit the use that 20 was being made of the property by Ms. 21 Johnson? 22 A. The RD4 zoning does not permit

23 that use. 24 Q. When did you first become aware 25 of how the property was zoned? 0024 1 A. Um, I'd like you to clarify. 2 You're talking about the zoning of the 3 property; or you're talking about the 4 Conditional Use Permit? 5 Q. I'm talking about -- right now, 6 I'm talking about the zoning. 7 A. When we moved to that 8 neighborhood, we built the home we have 9 there; and, uh, again, as I said, my wife's 10 an architect; we paid attention to the 11 zoning; we went through the zoning process to 12 get a permit for building; and when I was at 13 BZA for waivers, I became quite familiar with 14 the zoning, and process to move through the 15 zoning. 16 Q. When you moved to the 17 neighborhood, and you went through the 18 permitting process for your own property, did 19 you have any understanding of whether or not 20 the property at 438 Henry Clay enjoyed a non21 conforming use? 22 A. I wasn't aware at the time. 23 Q. When is the first time you even 24 became aware of the issue of whether or not 25 that property enjoyed a nonconforming use? 0025 1 A. I would have to say certainly at 2 the time of the sale from Ms. Tisdale to Mr. 3 Sonnier. 4 Q. You were aware, before that, 5 that it could not operate as zoned, under 6 your appreciation; correct? 7 A. I was aware that it didn't have 8 -- it was not zoned for commercial use at the 9 time; it had a permit to operate 10 commercially; but it wasn't zoned for it; 11 that's the distinction. 12 Q. When did you first become aware 13 it had a permit to operate as a reception 14 hall? 15 A. Again, about the time that it 16 was sold, questions were raised; because, uh, 17 it was quite clear, after Mr. Sonnier bought 18 the property, he had no intention of 19 operating as -- as I understand it -- as a 20 reception hall; he wanted to open a 21 restaurant. 22 Q. Here's what I'm trying to 23 understand. When you went through your own

24 permitting process, you were aware that the 25 property was zoned, as you said, RD4? 0026 1 A. Uh-huh. 2 Q. And that is for multi-family 3 residential; correct? 4 A. That's correct. 5 Q. At some point -- and correct me 6 if I'm wrong -- between 1986 and 2006, you 7 became aware that Kathy Johnson was operating 8 it as a reception hall; because I believe you 9 said, in 2003, you called her about, perhaps, 10 having a reception for your son's bar 11 mitzvah; correct? 12 A. I assumed there was some 13 arrangement to operate commercially there; at 14 the time, I really didn't understand the, um, 15 difference between being allowed to do it, 16 under certain permits, and doing it; it was 17 not really something that, um, I paid much 18 attention to, quite frankly, at the time; 19 because it was such an intermittent operation 20 that, really, nobody paid attention to it, 21 for the most part. 22 Q. But you did pay attention, 23 originally, to how it was zoned; because you 24 said you became aware, in '86, when you did 25 your own zoning requests, you were aware that 0027 1 it was zoned RD4? 2 A. We looked at the zoning apps; we 3 saw there was no commercial anything in the 4 neighborhood; and that's, when I refer to 5 zoning, that's what I'm referring to; there 6 was really no -- it was not zoned on the 7 zoning maps as commercial; and that's what I 8 saw; and that's what I paid attention to. 9 Q. When you first became aware that 10 it was operating as a business, which, 11 correct me if I'm wrong, was either 2003, or 12 some time earlier than that; correct? 13 A. Um, that's correct. 14 Q. And certainly in 2003; because 15 you attempted to see if you could use it as 16 the business that it was doing; correct? 17 A. Correct. 18 Q. When you found out that it was 19 doing business as a business, did you make 20 any inquiry, then, as to how it obtained a 21 permit to do business, when it was zoned RD4? 22 A. It wasn't a concern of mine; um, 23 again, she had the permit; it really wasn't 24 for me to, uh, bird dog; it was not -- again,

25 it was -- it was a business there that was 0028 1 operating very intermittently; it just didn't 2 raise any eyebrows, to speak of; and, quite 3 frankly, unless you have an issue, most 4 people don't look at these things. 5 Q. So your concern about the 6 Uptowner, the property at 438 Henry Clay, was 7 based upon your perception of its impact on 8 the quality of life, and property values, at 9 the time that you first raised the issue; 10 correct? 11 A. Those are two, certainly, big 12 concerns; the intensification of use; the 13 changing of the zoning to something -- Mr. 14 Sonnier talked about a restaurant there. But 15 when he goes away, what's left? We have a 16 permanent zoning change; it could be a number 17 of things; a gas station; a bank; it could be 18 a sports bar; it could be any number of 19 things. 20 And, again, these were major 21 issues; when you start looking into the 22 zoning law, you understand that, once you 23 change it, it's done; and it can be -- it's 24 just a bottomless pit of things that it could 25 be. 0029 1 Q. When you first found out that 2 the property at 438 Henry Clay had a permit 3 to operate as a business, did you make any 4 inquiry, or investigation, into how that 5 permit was obtained? 6 A. No. Let me ask you a question. 7 Are you talking about City Hall; or are you 8 talking about asking -- I mean, looking at 9 the records; I mean, what are you -10 Q. My question -- my original 11 question -- was in the broadest possible 12 sense. When you found out, either in 2003, 13 or earlier, that, notwithstanding its RD4 14 zoning designation, that the Uptowner had a 15 permit from the City to do some type of 16 business, did you make any inquiry as to how 17 that permit was obtained? 18 A. I did not go to City Hall, to 19 Safety and Permits, to look at the record; 20 no. 21 Q. Did you make any inquiry, from 22 anyone, whether they were in an official 23 capacity; a neighbor; Kathy Johnson; did you 24 make any inquiry at all? 25 A. Uh, there was certainly a great

0030 1 deal of discussion within the neighborhood; 2 next door neighbors; neighbors down the 3 street; neighbors around the block; a huge 4 amount of discussion; who all those people 5 were, I couldn't really be accurate, and tell 6 you that, on this day, we had this 7 discussion, or that; but I can tell you, it 8 was a great deal of discussion. 9 Q. And chronologically, when would 10 this have been? 11 A. Uh, very close to the time of 12 the sale; after the sale, I should say. 13 Q. From 2003 to 2006, was there any 14 of this discussion, or concern? 15 A. I don't recall. 16 Q. Do you know how many businesses 17 there are, whether zoned as businesses, or 18 permitted to operate as businesses, or both, 19 within one mile of 438 Henry Clay? 20 A. I could take a wild guess; but, 21 no; I don't; I know there are quite a few; 22 you have a commercial corridor on Magazine; 23 and one on Tchoupitoulas; and there are 24 conditional uses sprinkled about the 25 neighborhood; but I'd have to count. 0031 1 Q. Do you know how many restaurants 2 there are within one mile of 438 Henry Clay? 3 A. I could only guess. 4 Q. Has BAN, either since you have 5 been on the Zoning Committee from October 6 2006 through May of 2010, or since you've 7 been President, from May of 2010 forward, 8 ever conducted any inquiry into, first of 9 all, the total number of businesses within 10 the historic boundaries of BAN? 11 A. Uh, no. 12 Q. Secondly, the same question, but 13 with particular respect to restaurants. 14 A. No. 15 Q. When you first found out that 16 438 Henry Clay was permitted to operate as a 17 business, did you also determine what type of 18 permit it held? 19 A. Um, it was a Conditional Use 20 Permit for a reception hall. 21 Q. Was it your understanding that 22 there was a particular permit entitled 23 "reception hall" (in finger quotes)? 24 A. At the time Mr. Sonnier bought 25 it, as I understand, there wasn't a license 0032

1 -- an occupational license -- which coincides 2 with the permit to operate, as I understand 3 it. 4 Q. My question was very particular. 5 When you first found out that, notwith6 standing the RD4 zoning designation of 438 7 Henry Clay, that it had a permit from the 8 City of New Orleans to operate as a business, 9 did you find out the name of the permit that 10 it held? 11 A. I know it to be a Conditional 12 Use Permit. 13 Q. Okay. But a "Conditional Use", 14 according to the stated name of the permit, 15 did you find out what the permit granted a 16 conditional use to do, based upon the wording 17 of the permit itself? 18 A. I have not seen the permit; I'm 19 not sure exactly what's on it; but, again, 20 everything I read, um, was reception hall. 21 Q. Well, you say everything you've 22 read? 23 A. Newspaper -24 Q. What were you reading? 25 A. Newspaper accounts. 0033 1 Q. When you -- and let me go back 2 to clarify something. When the Zoning 3 Committee of BAN was formed, in October of 4 2006, first of all, was there a vote of the 5 membership as to who the members of the 6 Zoning Committee would be? 7 A. Yes. 8 Q. And who were the members; there 9 was yourself; correct? 10 A. (Witness nodding head 11 affirmatively). 12 Q. And if I understand correctly, 13 your wife was also a member? 14 A. Correct. 15 Q. And what is your wife's name? 16 A. Cecilia. 17 Q. Were there any other members? 18 A. Not at the time; no. 19 Q. Okay. From October of 2006 20 until now, have there ever been more members? 21 A. I'm sorry. Members on the 22 Zoning Committee? 23 Q. On the Zoning Committee. 24 A. Uh, yes. 25 Q. Okay. The Zoning Committee 0034 1 started in October of 2006 with two members;

2 yourself, and your wife? 3 A. Let me explain a little bit 4 about that situation; there are, um -- our 5 members have several architects; we have a 6 couple of engineers; we have land use people; 7 and when issues come up, we draw from those 8 people's information. 9 Q. My question, particularly, is -10 and correct me if I'm wrong -- there is a 11 formal Zoning Committee in BAN; correct? 12 A. Uh-huh. 13 Q. And that formal Zoning Committee 14 was established in October of 2006; correct? 15 A. Correct. 16 Q. And so I'm crystal clear, the 17 original formulation of that Committee, in 18 October of 2006, was yourself, and your wife? 19 A. That's correct. 20 Q. And has the Committee ever 21 numbered more than two? I understand that 22 the two may change over time. But have there 23 ever been more than two members at a time? 24 A. I'm gonna' say no. 25 Q. How many different individuals 0035 1 have formally served on the designated Zoning 2 Committee of BAN from October of 2006 until 3 now? 4 A. I'm gonna' say two. 5 Q. Yourself; and your wife? 6 A. Myself; and my wife. 7 Q. When you became President of BAN 8 in May of 2010, did you also retain your 9 membership in the Zoning Committee? 10 A. Uh, no. 11 Q. Were you replaced on the Zoning 12 Committee by someone else; or is the Zoning 13 Committee now composed solely of your wife? 14 A. It is composed solely of my 15 wife, uh, at this point; we've not taken a 16 vote; or no one's volunteered to assume that 17 position; after that point, there really 18 haven't been any issues to be dealt with of 19 any substance in terms of zoning. 20 Q. So do I understand correctly 21 that, while there were a number of zoning 22 issues before 2006, there's only been one 23 zoning issue after 2006; and that is 438 24 Henry Clay? 25 A. That's incorrect. 0036 1 Q. All right. Did I understand you 2 correctly that you said that you joined BAN

3 because there were a number of zoning issues; 4 and that's what caused you to join? 5 A. There were a number of zoning 6 issues, um, across the neighborhood; and when 7 I say "zoning", let me clarify; there are 8 people that were pouring driveways; there are 9 people that were trying to open businesses 10 that were not allowed to be zoned; um, there 11 was another restaurant, on Magazine Street, 12 that had, um, some issues; uh, we were -- we 13 talked about that; the bottom line is, we 14 simply talked to these people; and a lot of 15 these issues just go away. 16 Q. And those were all pre-2006 17 issues? 18 A. Uh, no. 19 Q. Okay. Which ones were after 20 2006, besides 438 Henry Clay? 21 A. Um, specifically, I really 22 couldn't tell you. 23 Q. Has BAN ever retained counsel to 24 represent it in any zoning, or permitting, 25 issue since you joined in 2006 until today, 0037 1 besides the 438 Henry Clay issue? 2 A. Um, prior to me being President, 3 Michael Sherman handled those issues; that 4 might be a question for him. 5 Q. But you were on the Zoning 6 Committee; correct? 7 A. Correct. 8 Q. During the period of time you 9 were on the Zoning Committee from October of 10 2006 until you became President, in May of 11 2010, as a member of the Zoning Committee, 12 are you aware of BAN ever retaining counsel 13 to address any zoning, or permitting, issue, 14 other than 438 Henry Clay? 15 A. Uh, no; I wasn't. 16 Q. As President of BAN now, who do 17 you understand has the authority to retain 18 counsel on behalf of your organization? 19 A. Uh, that would be me. 20 Q. And under what circumstances do 21 you understand that you have the authority to 22 retain counsel? 23 A. Well, that's a very good 24 question; um, if there is ever an issue that 25 arises that requires legal action, there 0038 1 would be a vote of the Board; we would 2 certainly, um, have to understand what the 3 issues are; and at that point, we would

4 retain counsel, if needed. 5 Q. Is it your understanding, as 6 President today, that the Board has the 7 authority to retain counsel without a vote of 8 the membership? 9 A. It's my understanding that the 10 Board can vote to retain counsel. 11 Q. Well, I understand the Board may 12 be able to vote to retain counsel; but 13 ultimately, is it your understanding that the 14 Board's decision does, or does not, have to 15 be ratified by the membership? 16 A. I'm not sure. 17 Q. Does the Board have authority to 18 expend the funds without approval of the 19 membership? 20 A. I'm not sure, to tell you the 21 truth. 22 Q. Since you've been a member of 23 BAN, to your knowledge, does BAN have a 24 budget? 25 A. BAN does not have a budget; we 0039 1 have chosen not to collect any amount of 2 money, because it would have triggered, 3 certainly, tax returns; other things that, 4 um, are really, uh, a major expense; and not 5 needed. 6 Q. Is BAN, as an organization, 7 expending any funds for the litigation 8 involving 438 Henry Clay? 9 MR. GISLESON: 10 Objection; I'm going to 11 instruct you not to answer; it goes to 12 attorney/client privilege. 13 MR. STERN: 14 Again, I will reserve my 15 rights; because I don't think the question of 16 whether or not the organization has expended 17 funds is a privileged matter. 18 Q. (BY MR. STERN). Did BAN, as an 19 organization, retain counsel to litigate the 20 438 Henry Clay Avenue zoning, and permitting, 21 issues? 22 A. Again, prior to, uh, May of 23 2010, that wasn't my position to, uh, keep 24 record of any of that. 25 Q. Okay. You are President now; 0040 1 correct? 2 A. Correct. 3 Q. Do you know when the Amended 4 Intervention of this matter was filed,

5 substituting BAN, as an entity, for David 6 Sherman, as an individual? 7 A. I'm not sure David Sherman is -8 MR. SAPIR: 9 Not David. 10 MR. STERN: 11 I'm sorry; Michael; David was 12 in school with me; so I just had it in my 13 mind; let me change the question. 14 Q. (BY MR. STERN). Do you know 15 when Amended Intervention was filed, which 16 changed the Intervenor from Michael Sherman 17 to BAN, as an entity? 18 MR. GISLESON: 19 Object as to form. You can 20 answer. 21 WITNESS: 22 Um, as I understand it, 23 January, or February, of 2007; somewhere -24 um, let me just -- hold on a second. 25 MR. STERN: 0041 1 Soren, if you want to tell him; 2 this is not a memory test; it's just a 3 preparatory question. 4 WITNESS: 5 No; I'm just trying to get the 6 time line correct. 7 MR. STERN: 8 If that's not correct, I don't 9 want you to proceed on any incorrect premise. 10 Do you have the date, Soren? 11 WITNESS: 12 March, 2010. 13 MR. GISLESON: 14 Go ahead. 15 WITNESS: 16 March 2010 is what I recollect. 17 Q. (BY MR. STERN). As President of 18 BAN at the present time, do you have custody 19 of BAN's documents? 20 MR. GISLESON: 21 Of BAN's what? 22 MR. STERN: 23 Documents. 24 MR. GISLESON: 25 Documents. 0042 1 WITNESS: 2 I have custody of documents 3 after I took over as President; prior to 4 that, I have given you everything I have. 5 Q. (BY MR. STERN). Have you ever

6 seen a contract for legal services between 7 BAN and any attorney with respect to 8 representation involving the 438 Henry Clay 9 Avenue matter? 10 MR. GISLESON: 11 I'm going to object, and 12 instruct him not to answer; because it is 13 outside the areas of inquiry. 14 MR. STERN: 15 No. Question 9 is: "All 16 documents authorizing BAN to retain counsel 17 in the captioned matter". Are you telling me 18 that's outside the area of that inquiry? 19 MR. GISLESON: 20 Oh! Then I retract my 21 direction not to answer; but at the same 22 time, I'm going to direct him -- I'm going to 23 say he can answer the question related to -24 MR. STERN: 25 I'm not asking for the 0043 1 contents; I'm simply asking if he's seen a 2 document. 3 MR. GISLESON: 4 Right; and I need to clarify 5 that with you (indicating Witness). You can 6 answer the question as to whether you've seen 7 such a document; but you can't testify as to 8 the contents of that document. So if you 9 want to restate the question for him? 10 MR. STERN: 11 Okay. 12 Q. (BY MR. STERN). The question 13 is: Have you ever seen, in your capacity as 14 a member of the Zoning Committee, or as 15 President of BAN, a document which 16 constitutes a contract for legal services 17 between BAN and any attorney, or group of 18 attorneys, for representation with respect to 19 the 438 Henry Clay Avenue matter? 20 MR. GISLESON: 21 I'm going to object just as to 22 form. You can answer. 23 WITNESS: 24 I, personally, have not. 25 Q. (BY MR. STERN). Has anyone made 0044 1 you aware that such a document exists? 2 MR. GISLESON: 3 Objection as to form. You can 4 answer. 5 WITNESS: 6 Um, no.

7 Q. (BY MR. STERN). When you became 8 President of BAN, were you provided with any 9 information from the outgoing President with 10 respect to the reason for the Amendment of 11 Intervention to substitute BAN for Mr. 12 Sherman as the Intervenor in this matter? 13 A. Yes; the explanation was that, 14 uh, Michael Sherman was hired by the City of 15 New Orleans; the Mayor's office; and he felt 16 it important to divest of any and all 17 neighborhood dealings. 18 Q. To your knowledge, was there a 19 meeting of the officers of BAN to vote on 20 this substitution? 21 A. Um, let me explain about 22 neighborhood groups a little bit; they're 23 basically -- uh, these are advocacy groups; 24 and they're voluntary; and, um, the bottom 25 line is that, um, it was a voluntary 0045 1 position; and I volunteered to do it. 2 Q. Okay. But my question is: At 3 the time -- and let me just lay a little bit 4 of a foundation. Who was the outgoing 5 President of BAN at the time you became 6 President? 7 A. Michael Sherman. 8 Q. Who was the Vice President? 9 A. I don't know if there was one at 10 the time. 11 Q. Okay. There was a position of 12 Vice President; correct? Whether it was 13 filled or not, in May of 2010, when Mr. 14 Sherman resigned as President, the position 15 of Vice President existed; correct? 16 Provided for by the by-laws. 17 A. I'm not sure, actually. 18 Q. As President now, do you have an 19 understanding of when the position of Vice 20 President came into existence? 21 A. Um, according to the Secretary 22 of State, when the registration -- when we 23 did this transfer, the registration required 24 two positions; either Vice President, or 25 Secretary-Treasurer; um, I think either/or 0046 1 works, the way I understand it. 2 Q. When was the registration? 3 A. Um, let's see; uh, May of 2010. 4 Q. Were you President at the time 5 of the registration? 6 A. Um, let me -- let me clarify 7 something; the registration; it was simply an

8 application transferring the agents at the 9 Secretary of State level; I used the word 10 "registration"; I'm not sure if that's 11 actually the right term. 12 Q. When was BAN incorporated, as 13 you understand it? 14 A. 1986. 15 Q. As you understand it, as the 16 current President, at the time that BAN was 17 incorporated, in 1986, did its Articles of 18 Incorporation, or by-laws, provide for both a 19 President, and a Vice President? 20 A. I'm not sure. 21 Q. Do you know if it provided for 22 any officers, other than a President, in 23 1986, when it was incorporated? 24 A. Not sure. 25 Q. In May of 2010, when its filings 0047 1 with the Secretary of State, let's just use 2 the term "updated"? 3 A. Uh-huh. 4 Q. When those filings were updated 5 in May of 2010, were you President; or were 6 you not President? 7 A. As I understand it, the update 8 was done transferring Michael off the record, 9 and me onto it; at that point, that's -- I 10 assumed, at that point, officially, with the 11 Secretary of State, I was seen as President 12 in the eyes of the State. 13 Q. And again, using the term 14 "update", as to whatever the actual legal 15 jargon is, but using the term updated for the 16 May 2010 filing, is it your understanding 17 that, if it didn't already exist, a position 18 of Vice President was created by that filing? 19 A. I don't know the answer to that, 20 actually. 21 Q. When you became President, in 22 May of 2010, was there an already serving 23 Vice President? 24 A. I don't know. 25 Q. From May 2010 until today, has 0048 1 BAN ever had a serving Vice President? 2 A. Yes. 3 Q. When is your first recollection 4 of there being a serving Vice President? 5 A. When the transfer was done. 6 Q. And who was the Vice President, 7 or who became the Vice President, when the 8 transfer was done in May of 2010?

9 A. Lee Rea; R-E-A. 10 Q. Was there a vote of the 11 membership to elect Lee Rea as Vice 12 President? 13 A. I don't recall. 14 Q. Based on the Articles of 15 Incorporation, and the by-laws of BAN, could 16 officers be appointed without a vote of 17 membership? 18 A. Um, I'm not actually sure. 19 Q. Okay. Well, you are the 20 President now; correct? 21 A. I am. 22 Q. Have you ever looked at the 23 Articles of Incorporation, and by-laws, to 24 determine, for example, if you wanted to have 25 a Secretary-Treasurer at this point? 0049 1 A. I have. 2 Q. Would you have have a vote of 3 the membership? 4 A. I have looked at the articles; 5 but I'm not sure, exactly, um, what it 6 requires. 7 Q. Have you ever asked for a legal 8 opinion as to the circumstances under which 9 officers can be appointed to BAN? 10 A. Um, I actually have; which I was 11 not given -- I talked to an attorney once 12 about the Articles of Incorporation; and by13 laws; that really is in the process, now, of 14 giving him information; I've never, really, 15 gotten to the bottom of determining what 16 these mean; or what they need to mean. 17 Q. Who is the attorney that you 18 spoke to? 19 A. Mike Duplantier. 20 Q. And when did you speak to him? 21 A. Hmm, about two years ago. 22 Q. Did you provide him with copies 23 of the Articles of Incorporation, and by24 laws? 25 A. I did not provide it to him; but 0050 1 he knew where to get it; the Secretary of 2 State; all this is on record with the 3 Secretary of State of Louisiana. 4 Q. To your knowledge, has he 5 reviewed those documents? 6 A. No; I don't know, I should say; 7 to my knowledge, I don't know. 8 Q. Did you have an understanding, 9 as a member of the Zoning Committee from 2006

10 until May -- well, until present, because 11 you're still on it; correct? 12 A. Um. 13 Q. Or are you? 14 A. I would assume to be; I handle 15 most of the zoning matters; or not handle; 16 but we certainly pay attention when people 17 have questions about zoning, and law; or the 18 zoning laws, rather; they would either come 19 to me, or my wife, to get -- ask these 20 questions; and get answers. 21 Q. Okay. 22 A. In terms of a formal resigning 23 from the Zoning Committee, um, I don't know 24 that that's ever happened. 25 Q. What are the terms of the 0051 1 officers of BAN? 2 A. The, um, Articles of 3 Incorporation don't term officers out. 4 Q. So is it your understanding 5 that, once elected an officer, you can simply 6 remain an officer as long as you care to? 7 A. That's what I understand. 8 MR. SAPIR: 9 Rob, can we take a little two10 minute bathroom break? 11 MR. STERN: 12 Sure; sure. 13 (Whereupon, there was a recess). 14 MR. STERN: 15 Can you read the last question 16 back? I lost my train of thought. 17 (Whereupon, the preceding question 18 was read back by the reporter). 19 Q. (BY MR. STERN). Is that your 20 understanding? 21 A. Um, that is my understanding. 22 Q. To your knowledge, is there any 23 procedure for the membership to oust an 24 officer who does not choose to voluntarily 25 leave the position, if the membership is 0052 1 dissatisfied? 2 A. I understand a vote of the 3 membership could be taken; and an officer, or 4 member, could be ousted; that's my 5 understanding. 6 Q. Do you have an understanding as 7 to the percentage of the membership that 8 would have to vote in favor of such a 9 proposition? 10 A. Majority.

11 Q. Simple majority? 12 A. The way I understand it; I don't 13 know. 14 Q. Is that a majority of the people 15 voting; or a majority of the membership? 16 A. Um, I -- um, I just simply 17 remember, uh, a vote of the membership; I'm 18 not sure exactly. 19 Q. When the original Intervention 20 was filed in this matter by Mr. Sherman, as a 21 member of the Zoning Committee, did you have 22 any understanding with respect to whether he 23 was acting on behalf of BAN; or acting on his 24 own behalf? 25 MR. GISLESON: 0053 1 Objection as to form. 2 MR. STERN: 3 Subject to the objection, 4 unless there's an instruction not to answer. 5 MR. GISLESON: 6 You can go ahead. Nope. 7 WITNESS: 8 Uh, Mr. Sherman is an attorney; 9 and, um, we understood that he was, um, going 10 to handle the legal matters. 11 Q. (BY MR. STERN). But in terms of 12 making decisions; for example, in terms of 13 deciding whether or not the matter should be 14 settled; or whether certain funds should be 15 expended in the course of the litigation, is 16 it your understanding that he was acting as a 17 private individual; and he would reserve 18 those decisions to himself; or was it your 19 understanding that he was acting on behalf of 20 BAN; and would have to obtain BAN's 21 authorization in order to make those 22 decisions? 23 MR. GISLESON: 24 Just, again, I'd object, just 25 as to form; you're asking him questions about 0054 1 somebody else's thinking. But subject to 2 that, you can go ahead and answer. 3 Q. (BY MR. STERN). Let me make 4 sure my question's clear; I'm asking what 5 your understanding was as a member of the 6 Zoning Committee; not what you thought he 7 thought; or what your understanding was. 8 When your Intervention was undertaken by Mr. 9 Sherman -- and let's start, for example, with 10 respect to settlement. 11 If there was going to be a

12 decision to settle the litigation, or to 13 proceed with it, as a Zoning Committee member 14 since 2006, was it your understanding that 15 these were Mr. Sherman's personal decisions; 16 or that these were decisions that BAN would 17 reach a decision on? 18 A. Um, I really don't have an 19 opinion on that, one way or the other; I, uh 20 -- at the time, again, I explained my 21 position, as a Zoning Committee, person was 22 really there to explain the law; explain the 23 zoning law, for instance; but in terms of 24 Counsel, that was something I didn't, uh -25 Q. When the decision was made to 0055 1 substitute BAN as an entity for Mr. Sherman 2 as an individual in the Intervention, was it 3 your understanding that that was a decision 4 that BAN had to make as an organization? 5 MR. GISLESON: 6 Objection as to form. You can 7 answer it. 8 WITNESS: 9 Uh, again, it was a voluntary 10 position; and I -- Michael said he could no 11 longer assume that position; and asked if I 12 would take it on; and that's, really, the 13 long and short of it. 14 Q. (BY MR. STERN). Is it your 15 understanding that the current Intervenor in 16 this case is BAN, the organization; or 17 yourself, as an individual? 18 A. Uh, it's my understanding that 19 it's BAN. 20 Q. All right. And was it your 21 understanding, at the time that you agreed to 22 the substitution of BAN as the Intervenor in 23 this case, that that was a decision that had 24 to be made by BAN, as an organization, 25 according to its Articles of Incorporation, 0056 1 and by-laws? 2 MR. GISLESON: 3 Objection as to form. You can 4 answer. 5 WITNESS: 6 Um, again, I relied on Michael, 7 as an attorney, to, um, say it was perfectly 8 okay to do what we were doing. 9 MR. STERN: 10 And before I ask this question. 11 If the issue of reliance on counsel for 12 taking a particular action is raised, that

13 waives the attorney/client privilege as to 14 what the advice of counsel that was relied on 15 was. 16 Q. (BY MR. STERN). So my question 17 is: Did you have a particular discussion 18 with Mr. Sherman about the hows, and whys, of 19 substituting BAN as the Intervenor in this 20 case? 21 A. You know, as I said, I'm not a 22 lawyer; we talked about that; in terms of 23 understanding the, um, law, I can't honestly 24 tell you that I understood fully, uh, the, 25 um, ramifications of me being substituted for 0057 1 Michael in terms of the position. 2 Q. Well, what you said -- and 3 correct me if I'm wrong -- was that you had a 4 conversation with Mr. Sherman; who assured 5 you that it was perfectly okay. 6 A. No; that's not what I said. 7 MR. STERN: 8 Okay. Would you read back the 9 prior answer, please? 10 WITNESS: 11 Or that's not what I meant, I 12 should say. 13 Q. (BY MR. STERN). Well, I just 14 want to make sure we're on the same page. 15 A. Sure. 16 Q. Do you acknowledge that's what 17 you said, albeit that's not what you meant; 18 or do you have a dispute as to what you said? 19 A. I trusted Michael to make sure 20 that we were not doing anything that would, 21 um, be not in keeping with the law. 22 Q. My specific question is: Did 23 you have any conversation with him, whether 24 he initiated it, or whether you initiated it, 25 that included discussion of the formalities 0058 1 that would have to be observed in order to 2 substitute BAN, as an organization, as the 3 Intervenor in this case, as opposed to Mr. 4 Sherman, as an individual? 5 MR. GISLESON: 6 Objection as to form. You can 7 answer. 8 WITNESS: 9 I don't recall. 10 Q. (BY MR. STERN). What did BAN do 11 to effectuate the substitution; was there a 12 meeting called? 13 A. I don't recall.

14 Q. Was there a vote taken; whether 15 it was by officers, or the membership? 16 A. I don't recall. 17 Q. Do you know of any document that 18 reflects authorization by BAN, as an entity, 19 to substitute itself for Mr. Sherman, as the 20 Intervenor in this case? 21 A. I don't recall. 22 Q. Have you ever seen such a 23 document? 24 A. I don't recall seeing any 25 document like that; um, let me take that 0059 1 back; what I have seen is the transfer -- the 2 documents that are -- that were sent to the 3 Secretary of State, transferring these, uh -4 these entities; I'm not sure that there's 5 anything else required. 6 Q. What I'm asking, in particular, 7 is, have you seen any resolution, record of a 8 vote, or authorization, that specifically 9 authorizes BAN as an entity to substitute 10 itself for Mr. Sherman as the Intervenor in 11 this litigation? 12 A. I don't recall seeing that. 13 Q. Does BAN, as an entity, have a 14 contract for legal services with any attorney 15 in this case? 16 A. Um, that's something you'd have 17 to talk to Mr. Sherman about. 18 Q. Since the substitution of BAN as 19 an entity for Mr. Sherman as the Intervenor, 20 has any representative of BAN, to your 21 knowledge, as President, signed a contract 22 for legal services with any attorney in this 23 case? 24 A. Not that I'm aware of. 25 Q. Do you have an understanding, 0060 1 either as a Zoning Committee member from 2006 2 to the present, or as President from 2010, 3 May 2010, to the present, of whether the 4 original contract for legal services in this 5 matter was between BAN and the attorneys; or 6 Mr. Sherman, as an individual, and the 7 attorneys? 8 A. Again, that's, um, something you 9 would have to talk to Mr. Sherman about. 10 Q. Okay. What do you understand 11 the relationship between BAN, as an entity, 12 and Mr. Gisleson and Mr. Sapir, to be? 13 MR. GISLESON: 14 Are you -- what are you asking;

15 are you asking him for BAN's lawyers? 16 MR. STERN: 17 I'm asking him what his 18 understanding of the relationship between 19 BAN, as an entity, your firm, and Mr. Sapir 20 is. 21 MR. GISLESON: 22 Are you really challenging the 23 fact that Herman, Herman, Katz represents 24 BAN? 25 MR. SAPIR: 0061 1 Or Eddie Sapir? 2 MR. STERN: 3 I'm asking him -4 MR. GISLESON: 5 Or Eddie Sapir? 6 MR. STERN: 7 I'm not challenging anything; 8 I'm simply asking him what his understanding 9 is. 10 MR. GISLESON: 11 Okay. 12 WITNESS: 13 I understand they're the 14 attorneys for -- representing BAN. 15 Q. (BY MR. STERN). And is it your 16 understanding that they have been the 17 attorneys representing BAN since the original 18 Intervention in this matter was filed? 19 A. Um, again, prior to, uh, May of 20 2010, I'm not sure exactly; but after that, I 21 mean, I've certainly gotten papers, asking 22 for depositions; I've gotten requests to come 23 down to represent the Organization; so, yes; 24 I'm under the impression that these are, in 25 fact, my lawyers; and they're representing, 0062 1 uh, the Organization. 2 Q. Is it your understanding, as 3 President, that BAN has any responsibility 4 for any of the costs of this litigation? 5 MR. GISLESON: 6 Objection as to form; that goes 7 to the contract. I'm going to instruct you 8 not to answer. 9 MR. STERN: 10 Again, I'll reserve my rights. 11 Q. (BY MR. STERN). What is your 12 understanding of who has the authority to 13 make decisions on BAN's behalf in this case; 14 in other words, if BAN gets a recommendation 15 from its attorneys to take one course of

16 action, or another course of action, what is 17 your understanding of who, in BAN, has the 18 authority to instruct the attorneys as to 19 which of the proposed courses they should 20 take? 21 MR. GISLESON: 22 I'm going to -- I mean, that's 23 dangerously close. 24 MR. STERN: 25 I'm not asking him -0063 1 MR. GISLESON: 2 -- to attorney/client 3 communications. 4 MR. STERN: 5 I'm not asking him anything 6 about what the communications from the 7 attorneys are; I'm asking him who, on behalf 8 of BAN, has the authority to speak for the 9 Organization to the attorneys; there's 10 nothing privileged about that. 11 MR. GISLESON: 12 Who has the authority to speak 13 -14 MR. STERN: 15 On behalf of BAN. 16 MR. GISLESON: 17 With the lawyers on behalf of 18 BAN? 19 MR. STERN: 20 Who has the authority to -21 MR. GISLESON: 22 That's fine. 23 MR. STERN: 24 My question is -- let me make 25 sure the question is crystal clear on the 0064 1 record. 2 Q. (BY MR. STERN). Who, from BAN, 3 has the authority to deal with the lawyers 4 with respect to the conduct of this 5 litigation on BAN's behalf? 6 A. From May 2010 to this point, I 7 would assume the Board. 8 Q. And what is the source of that 9 assumption? 10 A. Um, as I understand the 11 Articles, um, that are written, if there is, 12 hypothetically, an issue that arises that 13 needs legal representation, the Board would 14 convene; weigh the situation; and make a 15 decision; that's what I understand. 16 Q. And do you have any

17 understanding with respect to whether the 18 membership has any say-so with respect to the 19 conduct of litigation by BAN? Not the Board 20 members; but the membership. 21 A. I'm not sure. 22 Q. Do you have an understanding as 23 to whether there is a vote of the membership 24 required before BAN, as an organization, 25 undertakes litigation? 0065 1 A. I'm not sure. 2 Q. Have you ever looked? 3 A. Um, I have; I just don't 4 remember. 5 Q. Are you aware of any vote of the 6 membership to undertake the Intervention in 7 this case? 8 A. Again, prior to May of 2010, I 9 was not a Board member, um, or a President; 10 and that's when I understand this, um, was 11 initiated. 12 Q. It's your understanding this 13 Intervention was not initiated until 2010? 14 A. Um, repeat that, please? 15 Q. It's your understanding that the 16 Intervention in this case was not initiated 17 until 2010? 18 A. When you say "Intervention", I 19 -- you're talking specifically about this 20 suit; or you're talking about the transfer 21 from the President's position from Michael to 22 me? Explain, please. 23 Q. Well, that's what I want to make 24 sure I have an understanding of from your 25 standpoint. Is it your understanding that 0066 1 BAN, as an entity, was not involved in this 2 litigation until the transfer of the 3 Presidency from Mr. Sherman to yourself? 4 A. Um, it was -- it was -- it was 5 known that there was a, um, legal action to 6 challenge the nonconforming use; it was 7 pretty common knowledge amongst the 8 neighborhood; now, exactly to what extent, 9 and how that happened originally, um, again, 10 it was a long time ago; I honestly don't 11 remember exactly how; and, not being a Board 12 member at the time, it wasn't my 13 responsibility. 14 Q. Well, all I'm asking is, at the 15 time of the transfer of the Presidency of BAN 16 from Mr. Sherman to yourself, was it your 17 understanding that, up until that point, that

18 BAN, as an entity, as opposed to Mr. Sherman, 19 as an individual, was not a party to the 20 litigation? 21 MR. GISLESON: 22 Objection as to form. You can 23 answer. 24 Q. (BY MR. STERN). Now, you could 25 have an understanding it was; an 0067 1 understanding it wasn't; or no understanding, 2 one way or the other. I just want to know, 3 whatever your understanding was, what was it? 4 MR. GISLESON: 5 Objection as to form. You can 6 answer. 7 WITNESS: 8 Um, I'm not sure exactly how to 9 answer that, to tell you the truth; it's a 10 little confusing; again, it was -- it was 11 known that there was a BZA -- or, I'm 12 sorry -- a, um, a CPC Hearing -- I'm sorry -13 BZA Hearing; and it was known that there was, 14 um, some issues with about that with Mr. 15 Sonnier. 16 Um, it was very confusing at the 17 time; and, uh, I honestly can say that we 18 really -- a number of us really, uh, were 19 glad to see the issue over with at the time 20 of the Hearing; so past that point, I just 21 don't know. 22 Q. (BY MR. STERN). When there was 23 a changing of the guard from Mr. Sherman's 24 Presidency to your Presidency, did you have 25 any conversations with Mr. Sherman about what 0068 1 I'll refer to, for lack of a better term, as 2 "unfinished business"; that is, things that 3 were started when he was President that were 4 not resolved by the time you were going to be 5 President? 6 MR. GISLESON: 7 Objection as to form. You can 8 answer. 9 WITNESS: 10 Um, there was discussion; what 11 took place during that discussion, I don't 12 honestly remember; but I know we did have a 13 talk about him leaving the neighborhood, 14 actually; and, uh, going to work for Mitch; 15 and it was very important, uh, for him to, 16 um, move on. 17 Q. (BY MR. STERN). Was there any 18 talk about the lawsuit over 438 Henry Clay?

19 Not the BZA Hearing. 20 A. Uh-huh. 21 Q. Not anything that might have 22 taken place with respect to rezoning 23 attempts; but the litigation in Civil 24 District Court. Was there any conversation 25 with Mr. Sherman about that litigation during 0069 1 the transfer of the Presidency? 2 A. I don't recall. 3 Q. When did you first become aware 4 of a lawsuit involving 438 Henry Clay? And, 5 again, not the BZA Hearing; not anything in 6 the City itself; but I'm talking about the 7 actual lawsuit in Civil District Court. When 8 did you, personally, first become aware of 9 that lawsuit? 10 A. Um, certainly during, on, or 11 about the time that it was filed, I would 12 assume; again, I wasn't President, really, at 13 that point; uh, you know, there were a lot of 14 things going on then; and, um, I just recall, 15 at that point, um, a legal initiation. 16 Q. When did you first become aware 17 that Mr. Sherman, as an individual, whether 18 it was in his own capacity, or a 19 representative capacity, was involved in the 20 lawsuit? 21 A. I don't recall exactly. 22 Q. When did you find out that he 23 would be getting out of the lawsuit? 24 A. I don't know that he is out of 25 the lawsuit, if that's what you're asking me; 0070 1 he -- assuming his position, I assumed, with 2 BAN, that because the lawsuit -- again, the 3 documents I've seen -- I assumed that the 4 lawsuit was filed on BAN's behalf; and, 5 again, this is all after the fact; but at the 6 time, I may not have known exactly what was 7 going on with that. 8 Q. Was your first understanding, 9 correct or incorrect, that BAN was involved 10 in this litigation; and by "BAN", I mean BAN, 11 as a separate entity from any member of the 12 organization. 13 A. Repeat the question? 14 Q. When did you first become aware 15 that BAN was a party to the litigation 16 involving 438 Henry Clay, in any fashion 17 whatsoever? 18 A. Again, I have to assume certain 19 things, uh, in terms of fully understanding;

20 again, I'm not an attorney; I relied on 21 Michael, as an attorney, to, uh, handle these 22 things; uh, but again, I wasn't a Board 23 member; I'm sorry, not a Board member; yeah; 24 I wasn't a Board member; and, uh, it really 25 wasn't my forte to really pay attention. 0071 1 All I know is that the non2 conforming use of, we assumed it was gone 3 long before Mr. Sonnier had bought the 4 property; the rule is six months of no use, 5 you lose it; and I think all of us were -- a 6 number of us were concerned that it would -7 this property would morph into something much 8 more than just a simple reception hall. 9 Q. When you became President of 10 BAN, how many Board members did it have? 11 A. The day I became President? 12 Q. Yes. 13 A. Um, two of us. 14 Q. Okay. 15 A. Shortly thereafter, we were -16 we asked for volunteers; and had a meeting; 17 and now there are six of us. 18 Q. How many members do the Articles 19 of Incorporation, and the by-laws, of BAN 20 provide for as Board members? 21 A. Seven, as I recall. 22 Q. Is it your understanding that 23 that's based upon the Articles of 24 Incorporation, and by-laws, that was up to 25 seven; or that it had to have seven? 0072 1 A. Hmm, I'm not sure about that; I 2 know -3 Q. You understand the distinction? 4 A. I remember seven; I remember the 5 number seven; I don't know if it's required 6 to be seven, drop dead; or up to seven. 7 Q. Well, now it has six; correct? 8 A. Um, that's correct. 9 Q. Have you ever looked to see 10 whether it's operating according to its 11 Articles of Incorporation, and by-laws? 12 A. Um, not lately; no. 13 Q. Okay. How about ever? You said 14 "not lately". That implies to me that, at 15 some point, you did? 16 A. I read them, actually, 17 yesterday; and I just don't recall whether it 18 says mandatory seven, or up to seven; I just 19 don't recall. 20 Q. Do you know whether it's a

21 mandatory minimum; whether it's seven, or any 22 other number? 23 A. No; I don't know. 24 Q. I take it you've served on 25 boards before, other than BAN? 0073 1 A. Never. 2 Q. You've never served on 3 committees, other than BAN? 4 A. Not that I recall. 5 Q. And what I'm getting at is, are 6 you aware of the fact that it's very unusual 7 to have boards, and committees, that are 8 composed of two members, because of the 9 possibility of stalemate; and, typically, 10 boards and committees have even numbers as a 11 minimum? 12 A. Again, this is a voluntary, uh, 13 group of people; we are simply neighborhood 14 advocates; this is not -- we're not elected; 15 we're not -- um, we don't go out into -16 we're here, really, just as a group of 17 neighbors that are concerned with their 18 property values, and their quality of life. 19 Q. But you are elected. In other 20 words, you can't -- you can't be a Board 21 member, or an officer, of BAN simply by 22 declaring yourself one; correct? 23 A. Uh, that's correct. 24 Q. So? 25 A. I understand; but again -0074 1 Q. The reality is, you are elected; 2 you may not be elected as part of a political 3 process; as part of a governmental 4 organization. But you do have Articles of 5 Incorporation; correct? 6 A. Yes. 7 Q. And you do have by-laws; 8 correct? 9 A. Um, I don't know if they're by10 laws, or not, actually. 11 Q. All right. 12 A. I think the Articles of 13 Incorporation act as the by-laws; the way 14 they're written, the way I see them, it sort 15 of is Articles of Incorporation that, um, 16 have the same language -- some of it that I 17 can remember, anyway -- of the by-laws. 18 Q. But you do agree that the entity 19 has to abide by those; don't you? 20 A. Yes. 21 Q. And it can't simply choose to

22 disregard them because it's easier; correct? 23 A. Um, I would think that's 24 probably a reasonable assumption. 25 Q. And you would agree with me 0075 1 that, if it operates outside of its Articles 2 of Incorporation, then, with respect to the 3 entity, the decisions that are made are not 4 valid; correct? 5 MR. GISLESON: 6 Objection as to form. You can 7 answer. 8 WITNESS: 9 Um, that probably makes sense. 10 (Whereupon, the instrument referred 11 to was marked KENT BLACKWELL DEPOSITION 12 EXHIBIT NUMBER B-3 and is attached to the 13 transcript). 14 Q. (BY MR. STERN). Were you aware 15 that the Articles of Incorporation of the 16 Burtheville Association of Neighbors 17 specifically refers to the membership being 18 based upon the payment of dues? 19 A. No; I wasn't aware of that; um, 20 what I do recall is, at some point -- we have 21 a lot of elderly neighbors that, um, were 22 having trouble paying anything; and I think 23 we -- at some point, I recall a meeting, I 24 don't recall when, that we decided to, uh, 25 not collect dues because, um, it was a burden 0076 1 on these neighbors, A. 2 And, B, if you collect money, 3 you have to account for it; and it triggers 4 an expensive tax return; I remember 5 specifically, um, discussing that with them 6 at one of our meetings. 7 Q. According to Article VIII of the 8 Articles of Incorporation, it says: "The 9 members of this corporation shall consist of 10 all persons who have paid all current fees, 11 dues and/or assessments of this corporation 12 as assessed by the Board of Directors, which 13 membership could be evidenced by a receipt 14 for the fees and dues aforesaid ". 15 And let me ask you first. To 16 your knowledge, has BAN ever collected dues? 17 A. Um, I have not collected the 18 dues; but I know there have been dues 19 collected, um, prior to Michael Sherman being 20 involved. 21 Q. To your knowledge, have the 22 Articles of Incorporation ever been amended,

23 to change the membership requirements? 24 A. Uh, no; but it clearly says, uh, 25 that we can waive things, like, due to 0077 1 requirements -- dues requirements, or 2 assessments; I mean, that's what I 3 understand. 4 Q. Now, it goes on to say, in 5 Article VIII: "Membership requirements shall 6 be provided for in the corporation's 7 by-laws". Are there by-laws? 8 A. Um, I'm not aware of them, 9 actually. 10 Q. Do you know what the membership 11 requirements are? 12 A. Um, we, in general, consider 13 most people in the neighborhood members; um, 14 again, you come volunteer; sign up; and, uh, 15 that's really the only requirement we've had. 16 Q. Well, the Articles of 17 Incorporation specifically state that the 18 "Membership requirements shall", as in the 19 mandatory; not the permissive, "shall be 20 provided for in the corporation's by-laws". 21 Have you ever seen any documents that purport 22 to set forth the membership requirements of 23 BAN? 24 MR. GISLESON: 25 Objection as to form. You can 0078 1 answer. 2 WITNESS: 3 Um, the woman that actually had 4 these documents passed away; we've never been 5 able to recover the actual by-laws, um, 6 that -- I'm certain they were written; when I 7 say "certain", I mean -8 Q. (BY MR. STERN). That's what I 9 want to be crystal clear about. Are you 10 assuming there are by-laws; or you know there 11 are by-laws; you simply don't know where they 12 are? Because those are two different things. 13 Do you know, for a fact, as we sit here 14 today, and you're testifying under oath, that 15 BAN has ever had written by-laws? 16 A. No. 17 MR. GISLESON: 18 Objection as to form. 19 WITNESS: 20 No; I don't. 21 Q. (BY MR. STERN). Have you ever 22 seen a document, at any time, whether you 23 were a member of BAN, or not, that purported

24 to be the by-laws of BAN? 25 A. Uh, no. 0079 1 Q. Now, according to Article XI of 2 the Articles of Incorporation, it says: "The 3 powers of this corporation shall be exercised 4 by a Board of Directors which shall consist 5 after the first annual meeting of not more 6 than seven (7) members in good standing of 7 the corporation to be elected or chosen as 8 follows"; then, in subpart "a", it says: 9 "There shall be two directors chosen by the 10 President of the corporation". 11 Were you chosen by Michael 12 Sherman to be President? 13 A. Um, I volunteered to be 14 President. 15 Q. Are you aware of anybody else 16 volunteering, or being chosen, to be Vice 17 President at the time that you volunteered to 18 be President? 19 A. Repeat the question? 20 Q. Are you aware of anybody else, 21 either having been chosen, or having 22 volunteered, to be Vice President at the time 23 that you volunteered to be President? 24 A. Uh, Lee Rea, I understand. 25 Q. Was she chosen by Mr. Sherman; 0080 1 or did she volunteer? 2 A. It was a he; and he was -- he 3 volunteered, as is my understanding. 4 Q. Then subsection "b" of Article 5 XI says: "There shall be five directors 6 elected by the membership of the corporation 7 at an annual meeting of the corporation". 8 Was there ever an annual meeting to choose 9 directors after you became President? 10 A. Um, there was; when that 11 happened, I'm not sure; but, um, we did have 12 a meeting; or two; or three; or four. 13 Q. Okay. And at one of those 14 meetings, were Directors elected? 15 A. Um, yes; as I recall. 16 Q. How many Directors were elected. 17 A. When you say "directors", again, 18 we look at these as Board members; you say -19 Q. Let me be clear; I'm not saying 20 "directors"; I'm reading to you from the 21 Articles of Incorporation of the corporation; 22 and that's the term that it uses. 23 A. Right. But I'm asking you, when 24 you say "directors", do you mean Board

25 members? 0081 1 Q. I'm using the term as it's used 2 in the Articles of Incorporation. 3 A. No; I understand. 4 Q. So I can't tell you what whoever 5 wrote these (indicating Articles of 6 Incorporation) meant to say; I can only read 7 to you what they did say. 8 A. I understand. 9 Q. And what they did say is: 10 "There shall be five directors elected by the 11 membership of the corporation at an annual 12 meeting of the corporation. The Board of 13 Directors shall elect a President, Vice14 President, Secretary, and from the board's 15 membership annually to serve until the next 16 board shall be duly elected". 17 And my question is: Were five 18 members elected to the Board of Directors, as 19 required by Article XI, subsection "b"? 20 MR. SAPIR: 21 You're talking about when he 22 was President? 23 Q. (BY MR. STERN). From the time 24 that you became President, in May of 2010, 25 forward? 0082 1 MR. GISLESON: 2 Objection as to form. You can 3 answer. 4 WITNESS: 5 As I recall, there were Board 6 members elected; I'm going to call them 7 "Board members"; you're the attorney; you 8 tell me if it means the same as directors; 9 I'm going to say we use the term Board 10 members. 11 One of the ladies is an 12 attorney; she used the word "Board members"; 13 um, and it's semantics, at this point, it 14 seems like; but that's what the paper says; 15 if that answers your question. 16 Q. (BY MR. STERN). Has BAN ever 17 had, since you've been President, seven 18 Directors, or Board members? 19 A. Um, I do recall seven, um. 20 Q. It actually had seven? Not that 21 seven may be required. But there were 22 actually seven people on the Board? 23 A. Um, let me count. 24 MR. GISLESON: 25 Doesn't it just say "not more

0083 1 than seven"? 2 MR. STERN: 3 Well, it says -4 MR. SAPIR: 5 No more than seven. 6 MR. STERN: 7 It says: "Shall consist after 8 the first annual meeting of not more than 9 seven"; "There shall be two directors chosen 10 by the President"; and "There shall be five 11 directors elected by the membership". 12 Q. (BY MR. STERN). So you've got 13 one "shall consist"; and two "shall be"s. 14 A. There were seven people that 15 were Board members. 16 Q. When? 17 A. Shortly after I became 18 President, we had a meeting; I -- this is 19 after Katrina; there was a lot of people 20 discombobulated; we had to reorganize; it was 21 difficult. 22 Q. Well, you became President in 23 '10; correct? That's five years after 24 Katrina. 25 A. Right; it is; but, again, it was 0084 1 still -- you know, people were just, uh, all 2 over the place; anyway, I, uh, as I recall, 3 there were seven people that were Board 4 members. 5 Q. Two volunteered; correct? The 6 President and Vice President volunteered; 7 correct? 8 A. Well, in a neighborhood group, 9 you don't go around knocking on doors, 10 demanding people be President, or Vice 11 President; everybody volunteered; that's the 12 nature of the group. 13 Q. Were there any elected Board 14 members ever, to your knowledge, since you've 15 been President? 16 A. When you say "elected", you're 17 talking about by the membership? 18 Q. Let me read to you Article XII 19 of your Articles of Incorporation; it says: 20 "The annual meeting of the voting members of 21 the corporation shall be held on the third 22 (3rd) Sunday of the month of January"? 23 A. Uh-huh. 24 Q. Has there ever been an annual 25 meeting held on the third Sunday of the month 0085

1 of January, since you've been President? 2 A. Um, actually, we do it around 3 Mardi Gras; it's more convenient; people are 4 here; we've chosen to do it the Sunday before 5 Mardi Gras, which moves around. 6 Q. And then it goes on to say: "On 7 the first Sunday" -- or "on the first Sunday 8 thereafter which is not a legal holiday."; it 9 goes on to say: "It shall be the duty of the 10 President, and upon his or her failure or 11 neglect, then of the Secretary or any officer 12 or member to mail notices at least ten (10) 13 days prior to the annual meeting to all 14 members entitled to be president". Is a 15 notice mailed to all the members? 16 A. Um, not all; no. 17 Q. Are you aware that the Articles 18 of Incorporation require that all the members 19 be notified? 20 A. Those were written in '86, long 21 before computers were, um -- when I say mail, 22 as in e-mail; is that -- is it talking about 23 parcel post? Um, you know; yeah. Do we 24 stamp letters; and send them out? No; we 25 send -0086 1 Q. Does each member get a notice? 2 A. Um, as far as I know, yes. 3 Q. Is there a membership list that 4 the notices are mailed from? 5 A. Um, there is. 6 Q. Okay. Who has that list? 7 A. Um, I'm not sure, to tell you 8 the truth. 9 Q. Who's in charge of sending out 10 the notices for the annual meeting? 11 A. A number of people; um, it 12 depends on who, um, has the time to do it; 13 and I, personally, don't have the list at 14 this point; it's updated; deleted; added to. 15 Q. Is there a requirement, in the 16 Articles of Incorporation, that there be a 17 vote before BAN spends any money? 18 A. Um, I think I read that; yes. 19 Q. Do you recall reading an Article 20 XIV that states that: "Matters pertaining to 21 capital outlay must be approved by at least 22 five (5) of the Board of Directors"? 23 A. Um, I did read that. 24 Q. Does BAN obtain the vote of at 25 least five members of the Board of Directors 0087 1 for any capital outlays?

2 A. Um, again, prior to me being 3 there, I'm not sure exactly how that was 4 handled; but. 5 Q. From May of 2010 forward, has 6 there been a meeting held at which at least 7 five of the members of the Board of Directors 8 have approved any capital outlays? 9 A. Um, no; because we have had no 10 capital outlays. 11 Q. So, since you've been President, 12 BAN hasn't spent any money on this 13 litigation? 14 MR. GISLESON: 15 Objection. Don't answer that 16 question. 17 MR. STERN: 18 He's already answered it; I'm 19 asking him in particular. 20 MR. GISLESON: 21 I'm telling him not to answer 22 the question; don't answer the question. 23 Q. (BY MR. STERN). Do you intend 24 that BAN locate its by-laws? 25 A. Um, I intend to have them 0088 1 rewritten; which is why I contacted Michael 2 Duplantier to begin with. 3 Q. Do you know if the by-laws that 4 were originally drafted, and form a portion 5 of the references in the Articles of 6 Incorporation, have any requirements with 7 respect to the authorization of litigation? 8 A. I'm sorry. Repeat the question? 9 Q. Do you know if the original by10 laws of BAN have any requirements contained 11 in them with respect to the authorization of 12 BAN to conduct litigation? 13 A. I'm not quite sure, to tell you 14 the truth; I don't recall. 15 Q. Who records the votes that are 16 taken by the Board members, if anyone? I'm 17 not talking about the membership votes; I'm 18 talking about the Board member votes. 19 A. It's simply a show of hands; 20 it's not hard. 21 Q. And no record is made of what 22 the votes have been? And by "record", I mean 23 there's no document reflecting what was voted 24 on; and what the votes were? 25 A. Uh, no. 0089 1 Q. Does BAN have a web site? 2 A. We do.

3 Q. Okay. Is there any cost 4 associated with the maintenance of that web 5 site? 6 A. Um, I pay my daughter's tuition; 7 she builds it for us. 8 Q. I'm talking about the -- I'm not 9 talking about the construction. 10 A. I'm kidding. 11 Q. I'm talking about the physical 12 maintenance, and existence, of the web site 13 itself? 14 A. No. 15 Q. Who decides what the content of 16 the web site is? 17 A. Um, actually, my daughter. 18 Q. Is she on the Board? 19 A. No. 20 Q. Is she an officer? 21 A. She doesn't -- no; she does it 22 as a favor. 23 MR. STERN: 24 I'm going to show you a document 25 which I'll mark as Exhibit 2, if I can figure 0090 1 out what I did with my exhibit stickers; 2 there they are. 3 (Whereupon, the instrument referred 4 to was marked KENT BLACKWELL DEPOSITION 5 EXHIBIT NUMBER B-2 and is attached to the 6 transcript). 7 Q. (BY MR. STERN). And I'll ask 8 you if you've ever seen that document before 9 (handing to Mr. Gisleson). And I'm not 10 talking about the handwritten portion of it; 11 I'm just simply talking about the printed 12 portion; and I'll stipulate that predates 13 your Presidency; but postdates your 14 membership on the Zoning Committee. 15 MR. GISLESON: 16 (Handing to Mr. Blackwell). 17 WITNESS: 18 I -- I don't recall. 19 MR. SAPIR: 20 Let me see that (indicating) 21 before you answer. Can I take a look at it? 22 MR. STERN: 23 Yeah. 24 MR. SAPIR: 25 Here you go (handing). 0091 1 MR. GISLESON: 2 Let me see that? 3 MR. STERN:

4 (Handing). 5 MR. GISLESON: 6 Did you finish reading it? 7 WITNESS: 8 No. 9 MR. GISLESON: 10 (Handing). 11 MR. STERN: 12 While he's reading it, I'm just 13 going to mark the Articles of Incorporation 14 we've referred to previously as Exhibit 3 15 (previously identified.) 16 MR. STERN: 17 And I'm going to ask that 1, 2, 18 and 3 be attached to the deposition. 19 WITNESS: 20 Yeah; I don't ever recall 21 seeing that (indicating) document before 22 (handing). 23 Q. (BY MR. STERN). You were a 24 member of the Zoning Committee? 25 A. Um, I was; but let me explain 0092 1 something; there were a lot of very angry 2 people in the neighborhood that were sending 3 out a lot of things that, uh, didn't 4 necessarily go over my desk; and I'm not sure 5 who typed that (indicating Exhibit 2); and 6 where it went; or even how it got here. 7 Q. Well, who had authorization, on 8 behalf of BAN, to send out documents that 9 purport to be from BAN? 10 MR. SAPIR: 11 When? 12 Q. (BY MR. STERN). Let's talk 13 about when this (indicating) document was 14 prepared; which was November 24th of 2009; 15 you were on the Zoning Committee at that 16 point. Do you know who had authorization to 17 send out documents like that (indicating 18 Exhibit 2) on behalf of BAN? 19 A. Um, again, I'm not sure who sent 20 that (indicating Exhibit 2) out; or how it -21 personally, that's not something I would have 22 ever sent out. 23 Q. Was there a meeting held at your 24 house on that -- on the date that's indicated 25 on that (indicating) document? 0093 1 A. Uh, may I see that again? 2 MR. McNAMARA: 3 (Handing). 4 WITNESS:

5 Um, there were many meetings 6 held at my house; and specific to this, um, 7 City Planning Commission Hearing, um, we 8 certainly met before that Hearing; um, as far 9 as this (indicating Exhibit 2) document goes, 10 there were -- um, again, I'm not sure who 11 sent this (indicating) out; it wasn't me. 12 Q. (BY MR. STERN). Okay. My 13 question -- my specific question, to which I 14 would like a specific answer, is: Was there 15 a meeting held at your house on the date 16 reflected on Exhibit 2? 17 A. Um, I would have to say no; 18 because -- um, you're asking Tuesday, 19 November 29th -- or 24th, 2009, was there a 20 meeting at my house? 21 Q. Yes. 22 A. Um. 23 Q. That's my question. 24 A. I would have to say no; I mean, 25 that I recall; because, um, the reason I'm 0094 1 saying that is because we would have all been 2 at the City Planning Commission Hearing, and 3 not at my house; but I'm assuming that. 4 Q. Well, I want to be crystal clear 5 about this; because there's a "Yes" answer; a 6 "No" answer; and "I don't recall" answer; I 7 want to make sure I understand which one 8 you're giving me. 9 A. Okay. I'll give you -10 Q. Are you giving me the "Yes"; or 11 the "I don't recall"? 12 A. I'm gonna' say I don't recall -13 Q. Okay. 14 A. -- a meeting at my house on 15 that day. 16 Q. Were there meetings held at your 17 house that purported to be BAN meetings that 18 related to the 438 Henry Clay Avenue issue? 19 A. Yes. 20 Q. And were notices sent out of 21 those meetings of any type; whether they were 22 e-mails; slipped under people's doors? 23 MR. SAPIR: 24 Okay. Rob, can you clarify? 25 When you say "issue", there were several 0095 1 issues; there was a nonconforming use issue. 2 MR. STERN: 3 Let me make it as broad as 4 possible. 5 MR. SAPIR:

6 Wait, now; hold on. There's a 7 Planning Committee issue; there's a City 8 Council issue. Can you clear that up for Mr. 9 Blackwell, please? 10 MR. STERN: 11 I'll make it very simple for 12 you. 13 Q. (BY MR. STERN). Were there any 14 meetings held at your house on any issue 15 related to 438 Henry Clay Avenue -- whether 16 it was zoning; permitting; conditional use; 17 or anything else -- that purported to be 18 meetings of BAN? 19 A. Yes. 20 Q. Who called those meetings? 21 A. Um, it could have been any 22 number of people; um, and when you say 23 "called", it's simply, um, you know, we're 24 dealing with a lot of elderly people; we're 25 dealing with a lot of folks who just happen 0096 1 to make it on this night; "We need to talk 2 about this; this is coming up". 3 In terms of an official, uh, 4 blanket notice going out, either by e-mail, 5 by voice, um, again, it's -- it could have 6 been done any number of ways; this is a 7 neighborhood group; it's not a city 8 regulatory agency; we're neighbors that get 9 together. 10 A lot of times we're talking 11 over the fence; we're talking on the porch; 12 we're talking at the playground; you can call 13 these meetings, too; but we've had several 14 meetings at my house; and, again, this is 15 over a long period of time. 16 Q. Did anyone from BAN attend any 17 city regulatory meeting of any type relating 18 to any issue having to do with 438 Henry Clay 19 Avenue, whether it was zoning; permitting; 20 conditional use; or any other matter, where 21 that individual appeared, and purported to 22 speak, not on their own behalf, but on behalf 23 of BAN as an entity, or organization? 24 A. I can only speak for myself; um, 25 I was at a number of those City Council 0097 1 meetings; City Planning Commission meetings; 2 and BZA meetings; I spoke at most of those 3 meetings. 4 Now, as for anybody else, in 5 terms of representing BAN, or themselves, or 6 anybody else, there were a number of people

7 that spoke; I don't recall anybody, other 8 than me, saying: "I'm the President; I am 9 affiliated with BAN". 10 They were simply neighbors that 11 got up to speak; it's public record; you can 12 look it up; again, I don't recall anyone 13 saying, um, or purporting to be: "I'm a BAN 14 member; I have something to say to the City 15 Planning Commission". 16 Q. When is the first time you spoke 17 on behalf of BAN on any of these issues 18 involving 438 Henry Clay Avenue at any 19 government regulatory meeting? 20 A. Um, after I was elected 21 President, I spoke at a number of these 22 meetings; but I never introduced myself as a 23 BAN Board member; simply as "I'm Kent 24 Blackwell"; "State your address; and say what 25 you have to say". 0098 1 Q. Were there any meetings held of 2 the BAN Board, prior to the first time you 3 spoke at a regulatory meeting, and identified 4 yourself as a BAN Board member; and speaking 5 on behalf of BAN? 6 A. I don't recall. 7 Q. Do you know how many Board 8 members BAN had at the time that you first 9 spoke at a governmental regulatory meeting; 10 and identified yourself as a BAN Board 11 member? 12 A. Um, there were seven of us at 13 the first meeting; or the first time I spoke, 14 rather. 15 Q. And do you know how the other 16 five, besides the President, and Vice 17 President, were selected? 18 A. To speak or -19 Q. No? 20 A. -- to be selected? 21 Q. To be members of the Board. 22 A. Um, as I recall, uh, we saw the 23 need for Board members; we, again, got that 24 information around; um, people volunteered; 25 and, at some point, there was a meeting; and 0099 1 a show of hands; everybody agreed; and that 2 was pretty much the long and short of it. 3 Q. Do you know how many people 4 appeared? 5 A. Don't recall. 6 Q. Do you know how many members BAN 7 had at the time that the other five Board

8 members volunteered; and then, as you put it, 9 were voted on by a show of hands? 10 A. Um, I don't recall; I really 11 didn't, um, handle that at the time, in terms 12 of the membership list. 13 Q. Do you know if it was a 14 majority? 15 A. I don't recall. A majority of 16 the Board members? 17 Q. No; a majority of the members of 18 BAN. 19 A. Uh, I don't recall. 20 Q. When BAN conducts regularly 21 scheduled meetings now, or members -- or I 22 should say, meetings of the organization now, 23 where are they held? 24 A. Um, St. Paul's Church; I'm 25 sorry; not St. Paul's Church; we actually 0100 1 tried to get the last meeting there; Sabis 2 School was our last membership meeting; we 3 had Commander Paul Noel there; some of the 4 staff members; and I want to say it was in 5 the spring. 6 Q. And again, I take it there is no 7 agenda; and there were no minutes; correct? 8 A. Um, there was an agenda; I don't 9 have it here; but, um, I know there was; 10 because we had several speakers; Kelly 11 Butler, from Suzanne Guidry's office, was 12 there; Paul Noel was there; he spoke about a 13 number of issues in their neighborhood; Kelly 14 gave us a recap of -15 Q. Does the agenda still exist? 16 A. Um, I don't know; it wasn't 17 asked for; so I didn't look for it. 18 Q. Let me go through some of these 19 areas of inquiry on the Deposition Notice 20 with you; just so I can determine what 21 documents exist, and what documents do not 22 exist. 23 Item Number 4 -- excuse me -24 Item Number 5 requests: "All documents 25 authorizing BAN's intervention in the 0101 1 captioned matter"; meaning the lawsuit. Are 2 there any documents that specifically 3 authorize BAN's Intervention in the lawsuit? 4 A. Uh, that would be a question for 5 Michael Sherman, and the attorneys. 6 Q. Did you discuss Item Number 5 7 with Michael Sherman to determine whether 8 there were any documents authorizing, not his

9 Intervention, but BAN's Intervention? 10 A. I don't recall. 11 Q. Did you discuss with your 12 attorneys whether there were any such 13 documents? 14 A. Um, again, after -- after I was, 15 uh, President, um, I met with Soren at some 16 point; um, I don't recall exactly when; but. 17 Q. Let me be more specific. In 18 response to the requests in the Deposition 19 Notice, which specifically asks that you 20 produce, at the deposition, all documents 21 relevant to the 13 areas of inquiry, did you 22 discuss, with anyone, whether there were any 23 documents, written documents, authorizing 24 BAN, as an entity's, Intervention into the 25 lawsuit we're here about today? 0102 1 A. Um, no; I didn't discuss; I 2 simply brought what I had; I received -3 Q. Did you do anything to determine 4 that you had everything? 5 A. I picked up the folder where I 6 keep it all; and brought it with me. 7 Q. My question was: Did you do 8 anything to determine whether what you 9 maintained in your folder was all there was? 10 A. Um, I keep those documents in 11 one place; and I brought the entire folder 12 with me. 13 Q. So if it's not in the production 14 that you've made today, your testimony is 15 that it doesn't exist, to your knowledge? 16 A. I'm simply saying I don't have 17 it; I'm not saying it doesn't exist. 18 Q. And that's what I'm trying to 19 determine. What did you do to determine 20 whether the documents in your folder were all 21 the documents that were responsive to our 22 request? 23 A. Um, again, I answered the 24 question as best I could; that's my answer. 25 Q. Item Number 8 requests: "All 0103 1 written materials disseminated to the City of 2 New Orleans, it's Boards, and employees 3 concerning the Uptowner". Did you bring with 4 you all documents disseminated by BAN? 5 A. Um, as far as I know, yes. 6 Q. Okay. And, again, what did you 7 do to determine that what you've produced 8 today is all there is? 9 MR. GISLESON:

10 I think he said that's all 11 that's in his possession. 12 MR. STERN: 13 He hasn't said that yet. 14 WITNESS: 15 It's all that's in -16 everything in the folder came with me; that's 17 -- you have a copy of it. 18 Q. (BY MR. STERN). Did Mr. Sherman 19 pass documents on to you when he left the 20 Board? 21 A. Um, all that I have are the -22 um, what's sitting on your desk right there 23 (indicating); or your pile; the Articles of 24 Incorporation; along with the documents that 25 transferred -- um, the documents that were 0104 1 sent to the Secretary of State; that's what I 2 have from Mr. Sherman. 3 (At this time, Mr. Sapir left the 4 proceedings). 5 Q. (BY MR. STERN). Okay. Item 6 Number 10 requests: "All documents" -- or: 7 "All communications between BAN and Michael 8 Sherman concerning the Uptowner". Have you 9 produced all of the documents that exist, to 10 your knowledge? 11 A. Uh, yes; actually, there -12 yeah; there's really been no communication; 13 Michael made it very clear that he, um, has a 14 job that -15 Q. But you understand that this 16 Deposition Notice was sent to the 17 Organization, not to you; and does not relate 18 solely to the period of time after which you 19 assumed the Presidency? 20 A. Correct. 21 Q. But did you discuss with Mr. 22 Sherman whether there were documents that 23 predate your Presidency that constitute 24 communications between BAN and himself? 25 A. No. 0105 1 Q. What led you to believe that you 2 did not have to do that? 3 A. Um, I assume that everything 4 that Michael had prior to me taking that 5 position was in Soren's possession; which I 6 assumed that all was copied, and sent to you; 7 because that's the rule. 8 Q. Did you verify with them that 9 was the case by him; Mr. Gisleson? 10 MR. GISLESON:

11 Don't testify as to things that 12 we talked about. 13 MR. STERN: 14 Let me make it simpler. 15 (At this time, Mr. Sapir returned to 16 the proceedings). 17 Q. (BY MR. STERN). Did you 18 communicate with anyone to confirm all 19 communications between Michael Sherman and 20 BAN were provided; to make sure that you had 21 all of the documents? 22 MR. GISLESON: 23 You can answer that so far as 24 it doesn't include your lawyer. 25 MR. STERN: 0106 1 Well, for the record, it's our 2 position that, in responding to a Document 3 Request, that when you designate the 4 individual who is going to respond to a 1442 5 deposition, you cannot assert the attorney/ 6 client privilege as to whether or not he 7 exercised due diligence, including whether 8 determining whether Counsel is in possession 9 of responsive documents. 10 You cannot give documents to 11 Counsel, and then shield them from the 12 obligation to be produced in a 1442 13 Deposition Notice; I'm not asking for the 14 substance of any communications; I'm simply 15 asking whether he inquired as to whether 16 there were responsive documents. 17 Now, if you want to instruct him 18 not to answer, we'll reserve our rights on 19 that issue, as well; but the question, so 20 that Mr. Blackwell can either answer it, or 21 you can instruct him not to, is: Did you 22 communicate with anyone to determine if there 23 were documents responsive to our Request 24 Number 10 for all communications between BAN 25 and Michael Sherman concerning the Uptowner? 0107 1 MR. GISLESON: 2 You can answer the question as 3 to everyone but your Counsel. 4 WITNESS: 5 Um, again, my answer is, I gave 6 you every document I had; I did not, uh, call 7 Michael, and ask for anything; I, um -- I 8 simply brought what I had in my possession. 9 Q. (BY MR. STERN). Did anyone tell 10 you that your obligation to respond to the 11 requests in the 1442 Deposition Notice were

12 limited to your Presidency? 13 MR. GISLESON: 14 Again, you can answer the 15 question as to everybody but Counsel. 16 WITNESS: 17 I'm sorry. Repeat the 18 question? 19 Q. (BY MR. STERN). Did anyone tell 20 you that your obligation to produce 21 responsive documents with respect to the 22 areas of inquiry in the 1442 Deposition 23 Notice were limited to the period of time 24 that you have been President of BAN? 25 MR. GISLESON: 0108 1 Again; you can answer as to 2 everyone else but Counsel. 3 MR. STERN: 4 And I'll reserve my rights on 5 that; but subject to the reservation. 6 Q. (BY MR. STERN). Did did anyone 7 tell you that, other than your Counsel? 8 A. Um, I read the piece of paper; 9 and, again, I brought everything within my 10 power to this meeting; and, um, beyond that. 11 Q. Okay. Item 13 requests: "All 12 documents demonstrating any purported harm to 13 BAN's membership as a result of the 14 Uptowner's actual or proposed operations". 15 Do you have any documents responsive to that 16 Request? 17 A. Uh, I don't. 18 Q. To your knowledge, do any such 19 documents exist? 20 A. Well, it depends if you mean web 21 sites, or not; um, in a previous meeting, Mr. 22 Sonnier was asked to remove slanderous 23 allegations from his web site. 24 MR. SAPIR: 25 Can I intervene, Rob? I don't 0109 1 understand; because I don't think Mr. 2 Blackwell understands what you're talking 3 about. 4 MR. STERN: 5 Wait, Eddie; we've got one 6 attorney per side, per deposition. 7 MR. SAPIR: 8 Okay. Well, if you're going to 9 object to me just getting the record 10 clarified, you need to say that; because I 11 don't know if you're talking about public 12 meetings that he attended, where people

13 voiced their harm versus -- the question is 14 just not clear. 15 MR. STERN: 16 Yes; the question is very 17 clear; it's "all documents", which is not 18 limited in any way; "all" means all; there's 19 nothing unclear about what the word all 20 means. 21 MR. SAPIR: 22 Documents from public hearings 23 that are public records? Is that -- those 24 records exist; they're there. 25 MR. STERN: 0110 1 The Request is abundantly 2 clear; it was not objected to when the 3 Deposition Notice was sent. 4 MR. SAPIR: 5 I'm just asking for some 6 clarity, so Mr. Blackwell can get some; there 7 were public meetings where all his harm was, 8 and those records still exist; they're still 9 there -10 MR. STERN: 11 I'm as clear -12 MR. SAPIR: 13 -- with the Planning 14 Commission; City Council. 15 MR. STERN: 16 I'm as clear as the word all 17 can be; that "all" means all. 18 MR. GISLESON: 19 Go ahead; answer. 20 WITNESS: 21 I produced all the documents in 22 my possession; and that's as clear as I can 23 be. 24 Q. (BY MR. STERN). Okay. To your 25 knowledge, does BAN have any documents of any 0111 1 type that are not in your possession? 2 A. Um, does BAN have any documents 3 that are not in my possession? 4 Q. BAN is an organization; correct? 5 A. Correct; correct. 6 Q. And it has Articles of 7 Incorporation; correct? 8 A. Correct. 9 Q. And it exists as an entity; 10 correct? 11 A. (Witness nodding head 12 affirmatively). 13 Q. And my question is: Does BAN,

14 as an entity, have any documents in its 15 possession, irrespective of when created, 16 that are not in your possession? 17 MR. SAPIR: 18 That's been asked and answered; 19 he said that before; that Michael Sherman -20 MR. STERN: 21 It has not been asked and 22 answered. 23 MR. SAPIR: 24 Yes; it has; yes; it has; check 25 the record. 0112 1 WITNESS: 2 Let me clarify. If somebody 3 brought a newspaper to a meeting, do I have 4 that newspaper? No; if that's what you're 5 asking. If you're asking for documents in 6 relation to this case; is that what you're 7 asking? 8 MR. STERN: 9 I'm asking -10 WITNESS: 11 I have no idea if I have every 12 piece of paper; one was produced a minute ago 13 that I have not seen. Now, what I control 14 now; do I control every person in the group; 15 or every neighbor I have? No. 16 Now, I can't be any clearer than 17 that; I know where you're going with this; 18 but let me be clear to you; I've done my due 19 diligence; I've produced every piece of paper 20 I have in my possession. Did I go to City 21 Hall; and dig through the records? No. 22 Q. (BY MR. STERN). No. Did you go 23 to Michael Sherman; and ask him whether, as 24 the former President of BAN, he maintained 25 any documents he didn't turn over to you? 0113 1 MR. SAPIR: 2 He answered that, too; it's 3 been asked and answered. 4 MR. STERN: 5 You are not Counsel for 6 purposes of this deposition. 7 WITNESS: 8 Let me answer your question. 9 The answer is no; I did not go to Michael to 10 get any documents that might exist; nor did I 11 go to City Hall; City Planning; City Council; 12 or anybody else. 13 MR. SAPIR: 14 Now you're talking; now you're

15 talking. 16 Q. (BY MR. STERN). Putting aside 17 public documents; that is, records of BZA 18 meetings; City Planning meetings; City 19 Council meetings; in terms of documents that 20 BAN generated. Do you understand what I mean 21 by "generated"; created? 22 A. Yes. 23 Q. Did you go to Mr. Sherman; and 24 ask him whether BAN ever generated any 25 documents that he did not give to you when 0114 1 you transitioned to the Presidency, in order 2 to respond to the subpoena? 3 A. Uh, no; I did not go to Michael 4 Sherman to ask that question. 5 Q. Why not? 6 A. Uh, Michael's a lawyer; I assume 7 he understood the law; I assume that he -8 those documents were in the court record; um, 9 I assume that any of those documents that you 10 might be looking for, you have possession of. 11 Q. And what is the basis of that 12 assumption? 13 A. Um, that's what lawyers do. 14 Q. And who told you that's what 15 lawyers do? 16 A. "Perry Mason"! I mean, come on; 17 it's -- that's -- lawyers, um, they -- they, 18 um -- they study law; they study documents; 19 they study rules; I mean, it's not my job to 20 bird dog documents in terms of what I assume 21 these gentlemen had in their possession. 22 Q. Did you assume that the lawyers 23 already had, in their possession, all the 24 documents that you produced today? It's been 25 two years since you became President. 0115 1 A. Uh, no; I had a folder that I 2 thought might not have every single document; 3 I read the piece of paper that was sent to me 4 by you; and just to, um, do due diligence, he 5 told me I should bring everything I had; even 6 though certain things are duplicated here; 7 but it's all that I have. 8 Q. When did you find out, 9 specifically, that BAN, as an organization, 10 had been substituted for Mr. Sherman as the 11 Intervenor in the case; was it before you 12 were President; or after you were President? 13 A. Um, I'm not sure, actually. 14 Q. How did you find out? 15 A. Um, again, I'm not a lawyer; and

16 in terms of when these rules -- or when this 17 transfer, and the ramifications of the 18 transfer, transpired, I'm really not quite 19 sure. 20 Q. I'm not asking about the 21 ramifications; I'm simply asking when you 22 found out it happened, whatever the 23 ramifications might, or might not, be. When 24 did you find out that it had happened; and 25 how did you find out that it had happened? 0116 1 A. Um, I assumed, when Michael 2 left, and I took over, that any dealings that 3 BAN had with its attorneys, I would have to 4 take responsibility for those; so I guess I 5 could say that at the time I signed those -6 the papers you have here (indicating) that 7 were sent to the Secretary of State, I 8 assumed that I was taking on that 9 responsibility at that point. 10 Q. But you don't know whether the 11 Court papers had already been filed that made 12 that substitution? 13 MR. GISLESON: 14 What; what are you asking? 15 MR. STERN: 16 I'm asking him whether he knew 17 whether the court papers of the Amended 18 Intervention had already been filed that made 19 the substitution before the Secretary of 20 State documents were filed. 21 MR. GISLESON: 22 Oh! You can answer; I just 23 didn't know what he was asking. 24 MR. SAPIR: 25 If you know. 0117 1 WITNESS: 2 Again, you know, I -- I'm not 3 sure where you're going with all that. 4 Q. (BY MR. STERN). It's a simple 5 question; I'm not going anywhere with it; I'm 6 asking you a question; and I'm asking you to 7 answer it. 8 MR. GISLESON: 9 Yeah; if you know, go ahead and 10 answer it. 11 WITNESS: 12 Um, I really don't know; I 13 mean, I don't know. 14 MR. SAPIR: 15 That's an answer. 16 Q. (BY MR. STERN). Has BAN ever

17 provided any written documents to any 18 regulatory agencies, specifically setting 19 forth what BAN, as an entity, claims the harm 20 to its membership is a result of the 21 operations of the Uptowner? 22 A. Um, let me be clear here; it's 23 not the harm that it did; it was -- it's the 24 harm that a zoning change would do to the 25 quality of life, and the property value, of 0118 1 our neighborhood; there was no harm done, 2 that I could see, up until the point that 3 there would be a zoning change. 4 Q. Has BAN ever submitted a 5 document to any regulatory body with respect 6 to potential harm? 7 A. Yes. 8 MR. SAPIR: 9 With respect to what? I'm 10 sorry. 11 MR. McNAMARA: 12 To potential harm. 13 Q. (BY MR. STERN). Is that 14 (indicating) the document? 15 A. Yes. 16 Q. May I see it, please? 17 MR. GISLESON: 18 It was turned over to you. 19 MR. STERN: 20 I just want to see which one it 21 is. 22 MR. GISLESON: 23 That's fine; that's 24 (indicating) the one I had; it'll look 25 different, though. 0119 1 MR. SAPIR: 2 If you want to know, it's a 3 public record; submitted publicly, if you 4 want to know, to the Planning Commission, and 5 City Council. 6 MR. GISLESON: 7 Do you want to take a five8 minute break, so you can look at all the 9 documents? 10 MR. STERN: 11 No; I just wanted to look at 12 this (indicating) one. Let's mark this as 13 Exhibit 4. 14 (Whereupon, the instrument referred 15 to was marked KENT BLACKWELL DEPOSITION 16 EXHIBIT NUMBER B-4 and is attached to the 17 transcript).

18 MR. GISLESON: 19 Just so the record is clear, 20 you're asking questions about the documents 21 produced; and the various areas of inquiry; 22 I'm going to ask my client to go ahead and 23 read this (indicating) document; and notice 24 it by date; when it was sent; and list the 25 documents as to the Table of Exhibits; if you 0120 1 can just go ahead and identify each one, by 2 date and recipient. 3 Q. (BY MR. STERN). Yes. 4 A. December 6, 2010; a letter 5 addressed to Yolanda Rodriguez, Executive 6 Director of the City Planning Commission. 7 MR. GISLESON: 8 If you can identify all the 9 documents you attached to that letter, 10 please? 11 WITNESS: 12 Oh, okay. 13 MR. GISLESON: 14 Just read them slow enough for 15 the court reporter to transcribe them. 16 WITNESS: 17 Table of Exhibits; A is Lucy, 18 LLC, Lucy Holdings, LLC, Mary B. Sonnier, 19 Gregory J. Sonnier and Linda Mayer versus 20 Thomas J. -- I'll spell the last name -21 G-I-R-O-I-R;. 22 B: Uptowner, Incorporated 23 versus City of New Orleans Board of Zoning 24 Adjustments;. 25 C: Purchase Agreement;. 0121 1 D: Counter offer for 438 Henry 2 Clay Avenue;. 3 E: Letter of Withdrawal from -4 I'll spell the last the word is K-I-L-L-E-E5 N -- Killeen and Stern, PC;. 6 Um, F is Denied Application to 7 Safety and Permits;. 8 G is Denied Application to 9 Department of Health;. 10 H: Photos of Commercial 11 Properties;. 12 J: Photos of Commercial 13 Properties;. 14 K: Photos of Comparable 15 Residences;. 16 L: Letter from senior traffic 17 engineer;. 18 M: Burtheville Association of

19 Neighbors Parking Study;. 20 N: 438 Henry Clay, Uncontained 21 Refuse;. 22 O: 438 Henry Clay, Offensive 23 Signage;. 24 P: 438 Henry Clay, MSL 25 Listing;. 0122 1 And the last is Q: 438 Henry 2 Clay, Fenced in Parking Area. 3 Q. (BY MR. STERN). With respect to 4 Exhibit 4, which is the document you just 5 identified, together with its attachments, 6 was there a meeting of the BAN Board that 7 specifically approved this filing? 8 A. Yes. 9 Q. When was that meeting? 10 A. Um, prior to December 6, 2010. 11 Q. When? 12 A. Don't recall. 13 Q. Was the document, as it appears 14 in Exhibit 4, presented to the Board? 15 A. Yes. 16 Q. And how many Board members voted 17 on it? 18 A. Six. 19 Q. How many members were on the 20 Board at the time? 21 A. Um, as I recall, seven. 22 Q. Do you know where the seventh 23 member was at the time of the vote? 24 A. Uh, he wasn't at the meeting; I 25 don't know where he was. 0123 1 Q. Was the meeting noticed to all 2 the Board members? 3 A. As I recall; yes. 4 Q. Is there any document reflecting 5 that notice? 6 A. No. 7 Q. Is there any document reflecting 8 the vote? 9 A. Uh, no. 10 Q. Was the December 6, 2010 11 correspondence, and its attachments, 12 including the Table of Exhibits, disseminated 13 to the membership prior to being sent to 14 Yolanda Rodriguez at the City Planning 15 Commission? 16 A. I don't recall. 17 Q. Did the membership ever vote on 18 the position taken by you in the December 19 6th, 2010 correspondence to Ms. Rodriguez?

20 A. There were several meetings; and 21 we were encouraged, by membership, everyone 22 there, to put together a Table of Contents; 23 and to best have CPC, and City Council, 24 evaluate this zoning change; this proposed 25 zoning change. 0124 1 Q. My question is: Was the 2 December 6th, 2010 correspondence, and its 3 attachments, ever disseminated to the 4 membership, as a whole; and did the 5 membership, as a whole, ever vote on its 6 contents? 7 A. I don't recall. 8 Q. Was it your position, as 9 President when this (indicating Exhibit 4) 10 correspondence was sent, that the membership, 11 as a whole, had to vote to approve 12 correspondence sent to Ms. Rodriguez, such as 13 your December 6, 2010 letter? 14 A. I don't recall. 15 (Whereupon, there was a discussion 16 out of the hearing of the reporter between 17 Mr. Stern and Mr. Sonnier). 18 Q. (BY MR. STERN). Since you have 19 a been a member of the Zoning Committee of 20 BAN since 2006, in October of 2006, has BAN 21 ever taken the position that a zoning change, 22 or modification, should be approved? 23 A. The Board; or the membership. 24 Q. Well, do you draw a distinction 25 between the two? 0125 1 A. No. 2 Q. Then why did you ask? 3 A. I'm asking you to clarify. 4 Q. Has the Board ever taken the 5 position that a zoning modification, or 6 change, should be approved? 7 A. Should be approved by the City 8 Council; is that what you're asking? 9 Q. By any regulatory agency for 10 whom approval would have to be obtained in 11 order to obtain a modification, or change, of 12 the zoning. 13 A. I'm sorry. Ask the question one 14 more time? I just -15 Q. Has BAN ever submitted a 16 position to any city regulatory agency with 17 respect to a request for a zoning variance, 18 modification, or change, within its historic 19 boundaries; and taken the position that that 20 request should be approved, rather than

21 denied? 22 A. Yes; we have. 23 Q. Okay. How many times; and on 24 what issues? 25 A. Um, it's really just one issue; 0126 1 it's -- it's -- well, in terms of, again, 2 it's a little confusing here; because there 3 is a conditional use issue; and there is a 4 spot zoning issue; and so, in relation to the 5 spot zoning issue, that has been, um, vetted; 6 and I think it was quite clear, to everyone 7 within the membership, that it was not 8 something that was acceptable in our 9 neighborhood by its members. 10 Q. Did -11 MR. GISLESON: 12 Could we take a one-second 13 break? I'm sorry; I'm not leaving; I've got 14 to make sure my secretary's working on 15 something. 16 (Whereupon, there was a recess). 17 Q. (BY MR. STERN). And just so I'm 18 clear, on what spot zoning conditional use, 19 or other permitting, or zoning, issues has 20 BAN taken the position that a request for a 21 spot zoning, or a conditional use, or a 22 zoning variance, should be approved, if any? 23 A. Um, it was an issue at Whole 24 Foods recently; they asked for, um -- there 25 were -- they went to CPC to have provisos 0127 1 changed; rules that they were allowed to come 2 into the neighborhood with, they asked that 3 these rules be waived; or they asked that 4 they be allowed to change the provisos; it 5 was a huge issue; they ultimately were denied 6 most of these rule changes; there was one 7 issue -8 Q. Did BAN take a position? 9 A. We did. 10 Q. And what was BAN's position? 11 A. Um, that the -- that the rules 12 were vetted early on, when they were allowed 13 to move into the neighborhood; and that the 14 rules should not change; they need to live 15 within the provisos that they signed on to. 16 Q. And that's what I thought you 17 meant; so I want to make sure my question was 18 clear; I'm trying to find out if anybody has 19 ever requested a spot zoning, or a 20 conditional use, or a modification, or change 21 of zoning, where BAN has gone on record as

22 being in favor of the request; not opposed to 23 it? 24 MR. SAPIR: 25 At what time are you talking 0128 1 about? 2 Q. (BY MR. STERN). Sir, since you 3 have been on the Zoning Committee of BAN 4 through today. 5 A. Um, the only time I can really 6 think of -- and it really wasn't an issue 7 that got before City Council. But the only 8 other time was, there's a restaurant around 9 the corner from Magazine Street; um, I think 10 he calls it, um, Johnny V's now; or I'm not 11 sure what the name of the restaurant is; but 12 he, again, wanted our support. 13 He -- basically, the way I 14 understand it, from what I understand is, he 15 was allowed to build out; didn't follow the 16 drawings; Safety and Permits, and the City 17 Fire Marshall, came in after the build-out; 18 and said: "You're busted; you will not get 19 your certificate of occupancy". 20 We were contacted; asked for 21 their support; I said, um -- and, again, it 22 wasn't a vote; it was just my opinion at the 23 time; but I told him that: "It would be 24 impossible for me to go to membership, and 25 ask for support, when you can't follow simple 0129 1 rules; you had your permit". 2 That was the only other issue; 3 it eventually was opened; they went to City 4 Council; they got permission to open; that's 5 the only other time; you know, we've 6 supported restaurants that are zoned for 7 their use; but other than that, there's 8 really been very little activity that's 9 required any sort of councilmatic action. 10 Q. Well, I'm not talking about just 11 the Council now; I'm talking about the CPC; 12 or the BZA, as well; so if your answer is 13 different when you encompass those two 14 entities, as well as the City Council, now's 15 the time to tell me. 16 Have you ever -- has BAN ever 17 supported a request for a conditional use, a 18 zoning modification, a zoning adjustment, a 19 spot zoning, or the issuance of a permit, on 20 behalf of any business? 21 A. Not that I'm aware of. 22 MR. STERN:

23 I'll pass the Witness. 24 MR. GISLESON: 25 Okay. Just to make a couple of 0130 1 things clear; this can be kind of tedious; 2 but since the issue was raised about 3 documents that were produced, I want to make 4 sure that the record's clear as to what was 5 produced. 6 (Whereupon, the instrument referred 7 to was marked KENT BLACKWELL DEPOSITION 8 EXHIBIT NUMBER B-5 and is attached to the 9 transcript). 10 EXAMINATION BY MR. GISLESON: 11 Q. Isn't it true that you produced 12 a November 12, 2009 memo by Mike Sherman, on 13 behalf of the Burtheville Neighborhood 14 Association (sic), that extensively discusses 15 the issue of spot zoning by the Uptowner? 16 A. Uh-huh. 17 Q. Yes? 18 A. Yes. 19 Q. You also produced March 5th, 20 2007 notes -21 MR. STERN: 22 Let me just mark these 23 (indicating) as you refer to them; and we'll 24 just attach them all; and that way it's 25 clear. 0131 1 MR. GISLESON: 2 Well, yeah. Is this your only 3 copy? 4 MR. STERN: 5 We can attach the copies you 6 gave me; so just tell me which ones we're 7 doing. 8 MR. GISLESON: 9 Hand me your stack; and I'll do 10 your stack. 11 WITNESS: 12 Those were -13 MR. STERN: 14 Here's my stack (handing), if 15 you just want to mark them; that way we'll 16 keep everything straight. 17 MR. GISLESON: 18 We're on 5? 19 MR. STERN: 20 Yeah; the next one will be 5. 21 MR. GISLESON: 22 So that's the November 12th 23 Memo; which is seven pages; correct? Is that

24 right? 25 WITNESS: 0132 1 Yes. 2 Q. (BY MR. GISLESON). You also 3 provided a five-page memo from Michael 4 Sherman, written on behalf of the Burtheville 5 Neighborhood Association (sic), also 6 concerning the spot zoning participation; 7 correct? 8 A. Yes. 9 MR. GISLESON: 10 I'll attach that as Exhibit 6. 11 (Whereupon, the instrument referred 12 to was marked KENT BLACKWELL DEPOSITION 13 EXHIBIT NUMBER B-6 and is attached to the 14 transcript). 15 MR. GISLESON: 16 You also produced a March 5th, 17 2007 memo, by the B-A-N. 18 (Whereupon, the instrument referred 19 to was marked KENT BLACKWELL DEPOSITION 20 EXHIBIT NUMBER 7 B-1 and is attached to the 21 transcript). 22 Q. (BY MR. GISLESON). Correct? 23 A. Yes. 24 Q. And attached to that is an 25 actual agenda; correct? 0133 1 A. Yes. 2 Q. And this 2007 meeting would, 3 obviously, have predated your tenure as 4 President; correct? 5 A. Correct. 6 MR. GISLESON: 7 I'll attach that as Exhibit 7 8 (previously identified). 9 Q. (BY MR. GISLESON). You also 10 produced a time line that you created to 11 better assist in your testimony today; right? 12 A. Right. 13 MR. GISLESON: 14 I'll attach that as Exhibit 8. 15 (Whereupon, the instrument referred 16 to was marked KENT BLACKWELL DEPOSITION 17 EXHIBIT NUMBER B-8 and is attached to the 18 transcript). 19 Q. (BY MR. GISLESON). You 20 reviewed, if I'm not mistaken, but did not 21 produce -- or actually, did you produce the; 22 yeah -- the transcript of the testimony of 23 Kathy Tisdale Johnson? 24 A. Yes.

25 Q. I'm not going to attach that. 0134 1 But there were a number of items -- right -2 that were submitted into the public record 3 that you brought with you today; right? 4 A. Correct. 5 Q. And one of those is the Order 6 signed by Judge Ledet, dated February 5th, 7 2007; right? 8 A. Correct. 9 Q. There's also an April 4th, 2007 10 letter addressed to Greg Sonnier, written by 11 the Department of Safety and Permits for the 12 City of New Orleans; and is written by Paula 13 May, that you brought with you today; 14 correct? 15 A. Correct. 16 MR. STERN: 17 Are you going to mark these in 18 globo? 19 MR. GISLESON: 20 These (indicating) are already 21 in your possession; I'm just going to run 22 through them, so that they're on the record; 23 I have no intention of attaching them; if you 24 want to, you can. 25 MR. STERN: 0135 1 That's all right. 2 Q. (BY MR. GISLESON). You brought 3 with you, as well, the letter from the 4 doctor, Mary Sonnier's doctor, dated November 5 4th, 2011; right? 6 A. Right. 7 Q. And it stated that she was 8 unable to sit for a deposition; right? 9 A. Right. 10 Q. You submitted numerous Orders 11 from the Civil District Court; right? 12 A. Those (indicating) are just 13 copies from the Hearing. 14 Q. Right. And these (indicating) 15 would have been things you received from your 16 lawyers at Herman, Herman & Katz; right? 17 A. Correct. 18 Q. And as you sit here today, 19 there's no question, in your mind, that 20 Herman, Herman & Katz represents the 21 Burtheville Association of Neighbors; 22 correct? 23 MR. STERN: 24 Objection to form. 25 WITNESS:

0136 1 Yes, sir. 2 Q. (BY MR. GISLESON). And in the 3 course of Herman, Herman & Katz's 4 representation of you, a number of pleadings 5 have been filed; right -6 A. Correct. 7 Q. -- concerning this matter? And 8 in those -- I don't know why why this 9 (indicating) is different. Oh! 'Cause I 10 didn't finish going through these 11 (indicating); did I? Let me back up, just so 12 that I'm clear. 13 You also produced, today, a 14 November 4th, 2009 Memo done by Mike Sherman 15 dealing with spot zoning; I think I may have 16 attached the same one twice. 17 MR. GISLESON: 18 I'm going to substitute Exhibit 19 6; this (indicating) is the November 4th, 20 document. 21 Q. (BY MR. GISLESON). You also 22 attached correspondence from Mr. Stern's 23 office; and attachments concerning zoning 24 issues dated October 3rd, 2008; right? 25 A. Correct. 0137 1 Q. You attached another memo from 2 Mike Sherman, dated October 6, that was 3 written on behalf of the Burtheville 4 Association of Neighbors to the City Planning 5 Commission staff; right? 6 A. Correct. 7 Q. You submitted an e-mail from a 8 Mr. Moen (phonetic), to Mike Sherman, 9 concerning the zoning docket of which the 438 10 Henry Clay property was discussed; correct? 11 A. Correct. 12 MR. GISLESON: 13 Not only that; you also 14 produced a 15-page list of, basically, a 15 sign-in sheet of people who were opposed to 16 the spot zoning at 438 Henry Clay. 17 (Whereupon, the instrument referred 18 to was marked KENT BLACKWELL DEPOSITION 19 EXHIBIT NUMBER B-9 and is attached to the 20 transcript). 21 Q. (BY MR. GISLESON). Correct? 22 A. Correct. 23 MR. STERN: 24 Soren, to the extent that 25 you're not attaching these (indicating), are 0138

1 you going to give me back my copies? 2 MR. GISLESON: 3 Sure. 4 Q. (BY MR. GISLESON). So on this 5 (indicating) list, there are probably in 6 excess of 50 people from the neighborhood who 7 were opposed to the spot zoning? 8 A. Um, yes. 9 Q. You also produced, today, a 10 November 24, 2009 Preliminary Staff Report 11 from the City Planning Commission; correct? 12 A. Correct. 13 Q. This (indicating) report is 14 approximately 11 pages long; you also 15 produced to him a Memo from the City Planning 16 Commission, dated November 17th, 2009, from 17 Yolanda Rodriguez, to Pena Moaz Fields, 18 requesting legal advice on the Henry Clay 19 property; correct? 20 Q. You also produced a July 14th, 21 2011 Memo that was from you -- I'm sorry -22 by you, to a number of different people 23 concerning an unrelated case; but a zoning 24 issue, nonetheless; correct? You want to 25 take a look (handing)? 0139 1 A. Ha, ha, ha! Yeah; this 2 (indicating) is a condo in Florida I was 3 buying. 4 Q. Okay. 5 A. I don't know how that 6 (indicating) got in there. 7 Q. Does it have anything to do with 8 the B-A-N? 9 A. Nothing. 10 Q. Okay. We'll put that to the 11 side. You produced a February 14, 2012 12 Burtheville Meeting Agenda; correct? 13 A. Correct. 14 Q. (Handing). 15 A. Yes. 16 Q. And you produced, for his 17 benefit, a New Orleans City Planning 2011 18 Master Plan Amendment Applications; correct? 19 A. Correct. 20 Q. You appeared to have produced a 21 media news articles concerning various zoning 22 issues in the uptown area? 23 A. Correct; this (indicating) is 24 unrelated; but it does have to do with the 25 zoning in the uptown area. 0140 1 Q. It does have to do with what?

2 A. It does have to do with zoning 3 in the uptown area. 4 Q. Yeah. All right. There have 5 also been pleadings filed in this case which 6 spell out certain legal arguments, and 7 factual arguments that you're aware of; 8 right? 9 A. Yes. 10 MR. GISLESON: 11 And some of those include a 12 Motion for Summary Judgment, filed by Mike 13 Sherman, and the Burtheville Neighborhood 14 Association. 15 (Whereupon, the instrument referred 16 to was marked KENT BLACKWELL DEPOSITION 17 EXHIBIT NUMBER B-10 and is attached to the 18 transcript). 19 Q. (BY MR. GISLESON). Correct? 20 A. Correct. 21 Q. And you've reviewed these 22 (indicating) motions for Summary Judgment; 23 right (handing)? 24 A. Yes. 25 Q. And are the arguments, and 0141 1 Statements of Damage and Concern, in that 2 document adequately reflecting B-A-N's 3 position in this case? 4 A. Yes. 5 MR. GISLESON: 6 All right. I'll attach this 7 (indicating) as Exhibit -8 MADAME REPORTER: 9 I don't know; you've switched 10 them up so many times. 11 MR. GISLESON: 12 I think it's Exhibit 10. 13 (Whereupon, there was a discussion 14 out of the hearing of the reporter between 15 Mr. Sapir and Mr. Gisleson). 16 Q. (BY MR. GISLESON). And attached 17 to the Motion for Summary Judgment there were 18 a number of documents; correct? That you 19 remember? 20 A. Yes. 21 Q. Some were newspaper articles; 22 there are also a number of Affidavits; right 23 (handing). 24 A. Correct. 25 Q. And although this (indicating) 0142 1 predates you ten years as President, there's 2 even an Affidavit from you; right?

3 A. Correct. 4 Q. And do all these (indicating) 5 Affidavits that were attached to the 6 Plaintiff's Motion for Summary Judgment 7 qualify, and are they consistent with, BAN's 8 position as to what the harm was if there 9 were to be a zoning change? 10 MR. STERN: 11 Objection; form. 12 WITNESS: 13 Uh, yes. 14 MR. GISLESON: 15 I'll attach that as Exhibit 10 16 (previously identified). 17 Q. (BY MR. GISLESON). Just because 18 I'm a little bit unclear, it's true, isn't 19 it, that the Amendment to the Petition that 20 replaced Mike Sherman, or that replaced BAN 21 with -- replaced Mike Sherman with BAN -- was 22 done before you became President; right? 23 A. Yes. 24 Q. What is your occupation? 25 A. Business owner. 0143 1 Q. And what do you own? 2 A. Hardware, Incorporated. 3 Q. Okay. So you're not a lawyer; 4 right? 5 A. Correct. 6 Q. When it comes to interpreting 7 Articles of Incorporation, you just interpret 8 it pursuant to your educational background, 9 and your experience; right? 10 A. That's correct. 11 Q. So is it your understanding that 12 when Mike Sherman filed the Intervention, he 13 was filing on behalf of BAN? 14 A. Yes. 15 Q. And is your understanding that 16 the interests of Mike Sherman, when he filed 17 that Intervention, were the same interests as 18 BAN? 19 A. Correct. 20 MR. STERN: 21 Objection; form. 22 Q. (BY MR. GISLESON). So you agree 23 that, at all times before, during, and after 24 the Intervention, that the interests of BAN, 25 and the interests of Mike Sherman, were one 0144 1 in the same? 2 MR. STERN: 3 Objection; form.

4 WITNESS: 5 Yes. 6 (Whereupon, there was a discussion 7 out of the hearing of the reporter between 8 Mr. Sapir and Mr. McNamara). 9 Q. (BY MR. GISLESON). So would you 10 agree that, as a neighborhood association, 11 it's not a very sophisticated entity? 12 A. I would agree. 13 MR. STERN: 14 Objection; form. 15 Q. (BY MR. GISLESON). I mean, 16 you're not, you know, sort of a board that's 17 overseeing any kind of global conglomerate; 18 are you? 19 A. No. 20 Q. How often do you meet, 21 informally, with other members of the Board? 22 MR. STERN: 23 Objection; form. 24 WITNESS: 25 Once a month. 0145 1 Q. (BY MR. GISLESON). And do you 2 see these people around your neighborhood? 3 A. Daily. 4 Q. And when you see these people, 5 you talk about things that are going on 6 around the neighborhood? 7 A. That's correct. 8 Q. So you're always in constant 9 contact with members of the Board; right? 10 MR. STERN: 11 Objection; form. 12 WITNESS: 13 That's correct. 14 Q. (BY MR. GISLESON). And you do 15 remember discussing all the time issues going 16 on in your neighborhood; correct? 17 MR. STERN: 18 Objection; form. 19 WITNESS: 20 That's correct. 21 MR. GISLESON: 22 Okay. If we could take a quick 23 break, so I can talk to you guys? 24 MR. McNAMARA: 25 Yeah. 0146 1 MR. SAPIR: 2 Sure. 3 (Whereupon, there was a recess). 4 MR. GISLESON:

5 I just have a couple of 6 questions. Are you ready? 7 MADAME REPORTER: 8 Yes. 9 Q. (BY MR. GISLESON). During the 10 course of hearings in front of the City 11 Committees, or whatever else, did ya'll ever 12 -- did BAN ever get Counsel to assist them in 13 advocating the position? 14 A. Yes. 15 Q. And who did you get? 16 A. Eddie Sapir. 17 Q. And what was Ed Sapir's role in 18 that? 19 A. I don't know; he was our 20 attorney; and neighbor; and Board member. 21 Q. Would Ed Sapir go up to the 22 podium; and speak on their behalf? 23 A. Yes. 24 Q. And would he communicate your 25 position to different, I don't know, public 0147 1 officials? 2 A. Yes. 3 MR. GISLESON: 4 All right. That's all I have. 5 MR. STERN: 6 I have a couple of follow-up 7 questions. 8 EXAMINATION BY MR. STERN: 9 Q. Earlier on, when I was asking 10 you questions about the Amendment to the 11 Intervention, when BAN was replaced, or BAN 12 replaced Michael Sherman, it was specifically 13 stated that you didn't know whether you were 14 President, or not, when that substitution 15 took place. 16 When you were answering Mr. 17 Gisleson's questions, you specifically stated 18 that it was before you became President. 19 Which is it; do you not recall; or were you 20 not President? 21 A. Um, I'm not sure of the time 22 line, to tell you the truth, exactly, um, how 23 that went down; I'm not a lawyer; again, I 24 don't know, when I sign a piece of paper, and 25 it's sent to the Secretary of State, when the 0148 1 actual transaction takes place. Is it when I 2 sign it; when it goes in the mail; when it 3 gets to the Secretary of State; when it gets 4 recorded? 5 So, in terms of time line, it's

6 very difficult for me to make that 7 determination; it wasn't a major issue at the 8 time. 9 Q. And I understand; it's just that 10 we've got two different answers to the same 11 question; so I'm just trying to find out; 12 whatever the legal effects are, or not, when 13 I asked you the question, you said you 14 weren't sure; when Mr. Gisleson asked you the 15 question, you said you weren't President; so 16 I just want to make sure the record is 17 crystal clear when we leave here today. 18 A. Okay. 19 Q. Do you know whether you were 20 President of BAN at the time that the 21 Intervention in the lawsuit was amended to 22 replace Michael Sherman with BAN as the 23 Intervenor? 24 A. Um, are we talking about, just 25 so I'm clear in terms of the date you're 0149 1 talking about; Michael Sherman, on 3/30/2010, 2 um, amended the Petition. Is that what 3 you're talking about? 4 Q. That's what I'm talking about. 5 A. Um, I was not President at the 6 time. 7 Q. All right. So the answer to the 8 question is "No"; you were not President; 9 correct? 10 A. Yes. 11 Q. Not that you "don't recall"? 12 A. Yes. 13 Q. Now, Mr. Gisleson also asked you 14 questions about Mr. Sapir, as your -- as 15 BAN's -- attorney, communicating BAN's 16 position to the City Council. What 17 discussions have you had with Mr. Sapir about 18 this matter? 19 MR. GISLESON: 20 Objection, to the extent 21 that -22 MR. STERN: 23 You opened the door. 24 MR. GISLESON: 25 -- it's attorney/client 0150 1 privileges. 2 MR. STERN: 3 You opened the door; you 4 specifically asked him if he presented to the 5 City Council their position; I didn't ask 6 him; you did.

7 MR. GISLESON: 8 No; because that happens all the 9 time with lawyers; lawyers are always asked 10 to advocate on behalf of: "What did you and 11 Soren have conversations about before you 12 argued the Summary Judgment?" 13 MR. STERN: 14 You specifically asked him if 15 he advocated BAN's position to the City 16 Council; I'm entitled to know what the 17 communications were. 18 MR. GISLESON: 19 You can ask about the 20 communications, if he knows them. 21 MR. STERN: 22 That's what I'm asking; the 23 communications with Mr. Sapir to the City 24 Council. 25 MR. GISLESON: 0151 1 No; you can ask him what Mr. 2 Sapir communicated to the public body. 3 MR. STERN: 4 No; I disagree. 5 MR. SAPIR: 6 That's public. 7 MR. GISLESON: 8 Yeah; that's public; you can't 9 do that; that's not public; if you want to 10 answer the question of what your 11 understanding is that Mr. Sapir told whatever 12 public officials, you can say that; but you 13 can't say any communications you had with Mr. 14 Sapir. 15 MR. SAPIR: 16 It's part of the record. 17 WITNESS: 18 It's public record. 19 MR. STERN: 20 I'll reserve my rights on that 21 question, as well. 22 Q. (BY MR. STERN). Now, when you 23 were answering Mr. Gisleson's questions, you 24 also indicated that you received documents 25 from your attorney; specifically, you 0152 1 received certain pleadings from, quote, "your 2 attorneys"; correct? Do you recall answering 3 that question? 4 A. Uh-huh. 5 Q. Other than the documents you 6 identified in response to his question, do 7 you recall what other documents you received

8 from Mr. Gisleson? 9 MR. GISLESON: 10 Just, there were a number of 11 documents, before we went on the record, if 12 you remember, that I said we didn't copy for 13 your behalf. 14 Q. (BY MR. STERN). What I'm asking 15 is: Did you have a list somewhere, 16 irrespective of what was produced today, of 17 all the documents that you received from Mr. 18 Gisleson since you began receiving documents 19 from him? 20 A. Um, this (indicating) is the 21 only other document (indicating) I received 22 from Mr. Gisleson. 23 Q. And when you say "this", can you 24 just identify that for the record? 25 A. Sure; it's the, um, district -0153 1 Civil District Court for the Parish of 2 Orleans, State of Louisiana, um, I guess 3 Docket Number 20207-136 C/W -- I'm not sure 4 what these (indicating) numbers mean. 5 Q. What's the title of the 6 document? That's all I need. 7 A. "Uptowner versus City of New 8 Orleans and Board of Zones Adjustment for the 9 City of New Orleans". 10 Q. What's the title of the document 11 itself? Not the caption of the case; the 12 document. 13 MR. GISLESON: 14 No; no; he's talking about the 15 Notice. 16 MR. STERN: 17 Oh! Not the Notice of 18 Deposition; that's already been marked in the 19 deposition. 20 MR. GISLESON: 21 What about this (indicating) 22 document he marked today; where did that come 23 from? 24 WITNESS: 25 It came from you. 0154 1 MR. GISLESON: 2 What document is this 3 (indicating)? 4 WITNESS: 5 All the complete documents 6 associated with the Petition; the filing of 7 the Petition, as well as -8 MR. GISLESON:

9 Right; if you can just provide 10 the title; just read this (indicating), so 11 they know what document this (indicating) is. 12 WITNESS: 13 Um, I guess it's -- when you 14 say title -- oh; I'm sorry. "Memorandum in 15 Opposition to Intervention of Michael 16 Sherman's Motion for Summary Judgement". 17 MR. GISLESON: 18 Go on. 19 WITNESS: 20 Oh! Am I going too fast? 21 "Memorandum in Opposition to Intervenor, 22 Michael Sherman's, Motion for Summary 23 Judgment, and Incorporated Motion to Strike 24 Affidavits and Exhibits for Failure to 25 Conform to the Requirement of Louisiana CCC, 0155 1 or CCP Arts 966B, and 967, and Statement of 2 Contested Issues of Material Fact. 3 MR. GISLESON: 4 I think I brought this 5 (indicating) document to you today. 6 MR. STERN: 7 That's the question. 8 Q. (BY MR. STERN). Mr. Gisleson 9 asked you a number of questions about the 10 documents that were submitted, and supported 11 for Summary Judgment. Do you know what the 12 outcome of the Summary Judgment was? 13 A. Um, no; I don't; I don't recall. 14 MR. STERN: 15 That's all the questions I 16 have. 17 MR. GISLESON: 18 All right. I just do want to 19 attach one more exhibit; which is the listing 20 of all the people who opposed to the spot 21 zone at 438 Henry Clay Avenue. 22 MR. STERN: 23 I think it's 6; mark it. 24 MADAME REPORTER: 25 No; it's 10. 0156 1 MR. GISLESON: 2 Oh, it's 10. 3 MADAME REPORTER: 4 Do ya'll need a copy? 5 MR. GISLESON: 6 Just me, for my side. Does 7 anybody else want a copy? 8 MADAME REPORTER: 9 Mr. McNamara, do you need a

10 copy? 11 MR. McNAMARA: 12 No; thank you. 13 14 15 (Whereupon, the deposition was concluded). 16 17 18 19 20 21 22 23 24 25 0157 1 2 3 WITNESS' CERTIFICATE 4 5 I, KENT U. BLACKWELL, read or 6 have had the foregoing testimony read to me 7 and hereby certify that is it a true and 8 correct transcription of my testimony, with 9 the exception of any attached corrections or 10 changes. 11 12 13 14 15 _____________________ 16 KENT U. BLACKWELL 17 18 19 20 21 22 23 24 25 0158 1 REPORTER'S CERTIFICATE 2 3 I, KATHY A. MARTINY, Certified Court 4 Reporter, State of Louisiana, do hereby 5 certify that the above-mentioned witness, 6 after having been first duly sworn by me to 7 testify to the truth, did testify as 8 hereinabove set forth; 9 That the testimony was reported 10 by me in shorthand and transcribed under my

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

personal direction and supervision and is a true and correct transcript, to the best of my ability and understanding; That I am not of counsel, not related to counsel or the parties hereto, and not in any way interested in the outcome of this matter.

----------------------------KATHY A. MARTINY, CSR Certified Court Reporter State of Louisiana