Borrello v. Borrello

614 So. 2d 91, 1992 WL 385075
CourtLouisiana Court of Appeal
DecidedFebruary 8, 1993
Docket92-C-2413, 92-C-2445
StatusPublished
Cited by8 cases

This text of 614 So. 2d 91 (Borrello v. Borrello) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Borrello v. Borrello, 614 So. 2d 91, 1992 WL 385075 (La. Ct. App. 1993).

Opinion

614 So.2d 91 (1992)

Joel L. BORRELLO
v.
Mary Frances Wagnon BORRELLO.

Nos. 92-C-2413, 92-C-2445.

Court of Appeal of Louisiana, Fourth Circuit.

December 29, 1992.
Order On Reconsideration February 8, 1993.

*92 Edith H. Morris, Bennett Wolff, Jean Morgan Meaux, Wolff & Morris, New Orleans, for Mary Frances Wagnon Borrello.

Richard A. Goins, Adams and Reese, New Orleans, for Joel L. Borrello.

Before KLEES, BYRNES and WALTZER, JJ.

WALTZER, Judge.

BACKGROUND FACTS

In these consolidated writ applications we are to decide whether the trial court correctly ruled on certain discovery requests propounded to the law firm of Adams & Reese and to Mr. Joel Borrello, an attorney and partner in that law firm. Subpoena duces tecum and notice of deposition were filed on Adams & Reese. The following items were requested:

a. Copies of any and all documents concerning capital account activity for Joel L. Borrello from January 1, 1989 to date, including information concerning income and expense allocations and partnership distributions, on a monthly, quarterly, and annual basis.
b. Documentation showing any and all actual or proposed distributions and/or contributions in the name of Joel Borrello or Joel L. Borrello to the Supplemental Retirement plan of Adams & Reese from the inception of the plan to the present date.
c. Any and all Adams & Reese partnership balance sheets covering the period January 1, 1989 through the present date, without limitation, monthly, quarterly, and annual balance sheets showing any and all accounts receivable, work in showing any and all accounts receivable, works in process, and case costs advanced.
d. Any and all Adams & Reese monthly income statements for 1989 through the present.
f. Schedule of all monthly, quarterly, and annual Adams & Reese profit and loss statements, on both cash *93 basis and accrual basis, from January 1, 1989 through the present date.
g. Inventory of any Adams & Reese fixed assets and a schedule of acquisition dates and costs.
h. A listing of all contingency fee cases in which the firm has an interest as of the present date.
i. Copies of any and all partnership agreements entered into by Joel L. Borrello between the date of his marriage to Frannie W. Borrello and the present.
j. Any and all partnership federal and state income tax returns for the years 1989 through the present.
k. Document concerning any indebtedness from January 1, 1989 to date between Adams & Reese and Joel L. Borrello, including without limitation, any partnership loans to Joel L. Borrello and any contingent liabilities and any firm indebtedness for which he is assigned guarantor.
l. Any and all state and/or federal income taxes prepared on behalf of Adams & Reese from January 1, 1989 to date.

Adams & Reese moved to quash the subpoena and moved for a protective order. Additionally, Mrs. Borrello moved to compel discovery from Mr. Borrello, seeking the following:

1. Any and all documentation concerning any and all distributions to you from the firm of Adams & Reese during the period January 1, 1991 through the present date.
2. Any and all documentation concerning the 1991 income tax liability, as well as any and all documentation concerning calculation of the 1991 federal and state tax returns.
3. All documentation concerning the monthly financial statements (both cash basis and accrual basis and including the accounts receivable, costs advanced and work in progress totals for each month) from Adams & Reese during the period January 1991 to date, including any and all documentation concerning your capital account with Adams & Reese.
4. The 1991 Adams & Reese federal partnership income tax return.
5. Any and all bank statements and cancelled checks, withdrawal and deposit slips for all checking and/or savings accounts owned by you, either individually or with another, during the period September 1, 1989 to date.

THE TRIAL COURT RULINGS

In regard to the motion to compel, the trial court ordered Mr. Borrello to produce the documents requested in # 1, 2 and 5. Requests for production of items sought in # 3 and # 4 were denied, but as to # 3 the trial court required Mr. Borrello to produce law firm documents relating to his capital account through the present date.

Adams & Reese's motion to quash the subpoena duces tecum was granted except as to items (a) and (i). The deposition subpoena to Adams & Reese was likewise quashed. Both Adams & Reese and Mrs. Borrello seek review of the trial court's orders.

DISCUSSION

In application 92-C-2413, Adams & Reese complains that the trial court erred in ordering production of all partnership agreements from the date of the Borrellos' marriage to the present because Mrs. Borrello has not shown the relevancy of any good cause for production of financial documents of a third party nonlitigant. In application 92-C-2445, Mrs. Borrello complains that the trial court erred in denying discovery of the requested documents because those documents are necessary to determine the value of Mr. Borrello's partnership interest.

THE LAW

C.C.P. art. 1422 provides:

Unless otherwise limited by order of the court in accordance with this Chapter, the scope of discovery is as set forth in this Article and in Article 1423 through 1425.
*94 Parties may obtain discovery regarding any matter, not privileged, which is relevant to subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

To the extent that it is acquired during marriage, a spouse's interest in a partnership is a community asset. Due v. Due, 342 So.2d 161 (La.1977). As such, the non-partner spouse is entitled to one-half of the value of the spouse's interest in the partnership. D'Spain v. D'Spain, 527 So.2d 309 (La.App. 5th Cir.1988), writ granted and remanded 528 So.2d 152 (La. 1988); Martinez v. Posner, Martinez and Padgett, 385 So.2d 525 (La.App. 3d Cir. 1980, writ den. 393 So.2d 727 (La.1980). The trial court is to value the assets of the community as of the time of trial on the merits. R.S. 9:2801(4)(a).

Thus, as to the trial court's order that Adams & Reese produce all partnership agreements since the date of the Borrellos' marriage, the trial court abused its discretion. It is difficult to see how the superseded partnership agreements are relevant to valuing Mr. Borrello's interest or would lead to the discovery of admissible evidence. Therefore, the relief sought by Adams & Reese is GRANTED insofar as it relates to the production of all but the current partnership agreement between Mr.

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Bluebook (online)
614 So. 2d 91, 1992 WL 385075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borrello-v-borrello-lactapp-1993.