Friday, March 3, 2023

TRO Blocks Owner's Arrest in Battle of Briarwood

The Battle of Briarwood 1 continues in Hinds County Chancery Court after Chancellor Tamertrice Hodges stopped the demolition of the building or imprisonment of its owner, Mike Kohan, with a restraining order Tuesday. Jackson Municipal Court Judge Jeff Reynolds ordered the New York resident's arrest on February 14.

Kohan owns the building through his company, Briarwood Holding Realty, LLC.  To say the building fell into a state of disrepair is an understatement.  Fallen limbs blocked the parking lot, numerous windows were busted out, the underground parking garage was flooded, mold was present, and the residency challenged took over the place as they destroyed the property.   

Jackson Code Enforcement officers cited Kohan for the violations.  Judge Reynolds held a trial in January but the defendant did not appear in court.  The Court found him guilty and sentenced Kohan to serve six months in jail if he did not demolish the building or bring it in compliance with the municipal code.   Kohan's lawyer, John Martin, filed an emergency motion to vacate the judgement and appealed the conviction to Hinds County Court, arguing his client was never properly served. However, Kohan did not pay the $1 million appeal bond set by Judge Reynolds.  Judge Reynolds denied the motion and ruled the appeal was invalid since the defendant did not pay the appeal bond.  The Court issued an arrest warrant for Kohan since he did not comply with the Court order regarding the building.  

Kohan asked Chancellor Hodges to issue a temporary restraining order and a preliminary injunction on his arrest.   The new Chancellor decreed:

There exists a substantial likelihood that the plaintiff will prevail on the merits, due to the great dispute regarding whether the City actually sent citation, summons or notice to Briarwood and/or the owner of the Property. The injunction is necessary to prevent irreparable harm, as there is the immediate threat of (a) demolition of the Property; and (b) arrest of Kohan, individually, for not demolishing the Property, which greatly outweighs the harm an injunction might do to the defendant. Entry of a preliminary injunction is consistent with the public interest.

The Court issued the temporary restraining order and barred Jackson from enforcing Judge Reynolds' order against Kohan.  

The order is in effect for 30 days.  The Court ordered Kohan to post a $10,000 bond.  

Kingfish note: Can a Chancellor issue a TRO on a criminal case? 

Synopsis of case. 

Kohan owns the building through his company, Briarwood Holding Realty, LLC.  The building was neglected for years and fell into a serious state of disrepair.  Jackson Code Enforcement officers found numerous violations and cited Kohan. 

Jackson Municipal Court Judge Jeffrey Reynolds held a trial in absentia on January 10 as Kohan failed to appear in court.

The Court found the building suffered from severe sanitation problems, drainage problems, pervasive mold, water "everywhere", and electrical wiring exposed to water. A multitude of residency-challenged individuals inhabited the building, committing more destruction of the property as broken windows and graffiti mushroomed throughout the premises.

Judge Reynolds ruled the building was "dangerous" to the citizens of Jackson and ordered it demolished if it was not brought up to the code to the reasonable satisfaction of the Court. The Court suspended a six-month jail sentence for Mr. New York pending demolition of the building. Judge Reynolds set his appeal bond at $1 million. 

Kohan's lawyer, John Martin filed an emergency motion to vacate the January 10 ruling and rescind the arrest warrant.  Judge Reynolds held another hearing on February 14.  JJ reported that day: 

(John Martin) argued neither he nor his client received a copy of the citation or notice of any hearings.  The Court did not have jurisdiction over the non-traveling Kohan since he was never properly served.  

Judge Reynolds said the city prosecutor stated under oath at the trial that she sent Kohan a copy of the notice and citation through certified mail as tell as notifying him over the phone.  She said she emailed copies as well at Kohan's direction.  

Martin argued that even if such correspondence occurred, his client was still not properly served under the rules. He claimed the summons must be personally served upon his client as actual notice does not cure defective process.  He also said Kohan is not the owner of the building but instead claimed Briarwood Holding Realty, LLC owns the building and the company was not given notice of the citation.  

City Prosecutor Jeffrey Graves said notice can be sent through certified mail, as it was in this case.  Judge Reynolds said Environmental Court does not serve any defendants through personal service.  All citations are delivered via the United States Postal Service.  "I don't believe we issue a citation here and Jackson, Mississippi and serve it personally in New York," opined the jurist.  Section 3.2 (d) of the Mississippi Rules of Criminal Procedure states: 

The summons may be served by personally delivering a copy of the summons to the defendant by any officer authorized by law to execute arrest warrants or by delivering a copy of the summons by U.S. mail, addressed to the defendant at the defendant's usual residence, business or post office address. 

Kohan appealed to Hinds County Court but did not pay the bond.  His attorney asked the Court to reduce the bond but Judge Reynolds refused to do so as he was determined to keep the ball in his court.  

Beaten but undeterred, Kohan filed his emergency petition the next day in Hinds County Chancery Court.  He asked the Chancellor to stop the city from enforcing the judgement as he argued the demolition would be a "classic taking without the due process of law."  

The petitioner said a citation was never served upon him nor the proper owner, Briarwood Realty Holding, LLC.  

Kohan claims the city never produced "the alleged proof of mailing of the citation to Kohan."  Prosecutor Jeffrey Graves said the citation and summons were sent to Kohan through certified mail but the certified mail receipt was not produced at the February 14 hearing. 

The petition asks the Chancellor to stop the city from enforcing the judgment and to set it aside.

Kohan submitted an affidavit several days later in Chancery Court.  The affidavit states Kohan is the managing member of Briarwood Realty.  The affidavit claims the property has an interested buyer. He claims the property is of no value to a buyer if demolished.  

The affidavit states Kohan is repairing the fence, providing security guards at night, ejected the residency challenged, and pumping water out of the flooded parking garage.  Briarwood asked the city to turn off the water but it has yet to do so.  

Several dumpsters and a port-a-john appeared last week at the site as a crew removed debris from the building.  


Anonymous said...

This entire legal fiasco stems from malpractice on the part of the City Attorney in not obtaining valid service of process before firing his gun.
Think of all the time and money this has cost all involved--for nothing.

Anonymous said...

Kingfish note: Can a Chancellor issue a TRO on a criminal case?

Methinks not - been practicing law here a long time and never heard of such.

Anonymous said...

Such a beautiful building. It would seem that it would be cost effective to renovate vs. tearing it down and rebuilding.

Anonymous said...

The correct question is: "May a chancellor enter an ENFORCEABLE Temporary Restraining Order in a pending criminal case?"

Squeezer said...

@3:56 people aren't working from offices anymore. People are working from home so there's no need for fancy high-rise office buildings anymore

Anonymous said...

Building was beautiful, but previous owner was losing money and somehow had a non-recourse loan. Appears he took advantage of that and bailed.
The elevators quit working several years ago while there were still tenants, and after their eventual abandonment, the building was stripped of all electrical wiring - walls, ceilings, everywhere - along with the copper associated with the HVAC. Renovation a few years ago would have been feasible construction wise; question is whether there would have been a market for the space in the Jackson office market at the cost required to renovate and provide daily security.

Anonymous said...

Graves, the city attorney, can't produce the certified mail receipt.

The story of the Lumumba failure will always be, in part, about an administration that wasn't competent enough to perform even the basics of the job.

Anonymous said...

When was the last time this Mayor went after something this hard?
He lets everything go to shit but inexplicably gives a crap about this location?
What I want to know is who wants the land but doesn't want to pay for the building?

Anonymous said...

March 3, 2023 at 4:06 PM "people aren't working from offices anymore. People are working from home so there's no need for fancy high-rise office buildings anymore" -

Well, "Squeezer" honey, I beg to differ! Lots of people commuting to work every day! Hope you're enjoying yourself in your PJs.

Anonymous said...

Attended one of the debates Hodges participated in when she ran. She was the least knowledgeable of the position of the 3 contenders.

Anonymous said...

Something smells here. Otherwise every prison in MS would be full of dilapidated property owners just from Jackson.

Follow the Money, Right? said...

@4:28 PM and 6:26 PM - Exactly. There is a hidden agenda here, and Chowke'$ fingerprint$ are on it.

Anonymous said...

There is an appellate process to hear Kohan's grievances. He did not timely appeal, bond or not. The Chancellor has no authority to enjoin a criminal conviction. If that were the case, every single defendant found guilty could run to the Chancellor and cry foul. That's not how it works. Chancery Courts have no jurisdiction in criminal matters. Wanna divorce? Wanna probate a will? Got a land dispute? The Chancery Court is where you go. But not for relief of criminal convictions. The Chancellor overstepped, plain and simple. Kohan's remedies, if any, were from the appellate courts, in this case the County Court first, then up the chain. The only thing accomplished by the Chancellor is injecting confusion into a clear order.

Anonymous said...

Behold - the new corporate office for Richard's Disposal!

Garbage trucks will be staged in the back.

Anonymous said...

City court judge got too big for his britches!

Anonymous said...

Hodges is a moron, so whatever she ordered is most likely incorrect.

Anonymous said...

Wow, the check didn't bounce.

Anonymous said...

I'd like to see the resume of each judge involved in this mat....never mind.

Anonymous said...

Chancellor should be and will be reversed immediately and should be sent to school to learn about jurisdictional issues.

Anonymous said...

3:43, already did. Want to appeal it?

Anonymous said...

7:33, agree. Jackson city judges are invincible and infallible. No recourse when you stand before a jackson city judge. Just hope you don’t get a citation next time you trek through Jackson.

Anonymous said...

No, Chancery court does not have jurisdiction. Miss Code 21-23-7 vest powers to proceed on misdemeanors to Municipal court. Article 6 Section 159 of Mississippi Constitution defines Chancery jurisdiction. Over riding another court court order does not appear int he list. Nor does anything criminal related. And this case addresses what happens when a Chancery court oversteps its bounds to interfere with another court order. The real question is whether the City of Jackson has the bandwidth to appeal. If they do, it’s likely a slam dunk. The better remedy would have an immediate petition for interlocutory appeal to Hinds County County court.

Can Someone Help Me Find the Receipt? said...

@ 12:27, bandwidth and actual skill set are two entirely different things.

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