RENTON PROPERTIES, LLC NO. 22-C-360
VERSUS FIFTH CIRCUIT
213 UPLAND, LLC, ET AL. COURT OF APPEAL
STATE OF LOUISIANA
August 05, 2022
Susan Buchholz First Deputy Clerk
IN RE R. LEWIS MCHENRY, LORI MARSHALL, AND ROBIN RIVIERE
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JUNE B. DARENSBURG, DIVISION "C", NUMBER 775-357
Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and John J. Molaison, Jr.
WRIT GRANTED
Relators seek review of the trial court’s judgment dated August 4, 2022 granting the (1) “Motion for Issuance of a Subpoena for Appearance and Testimony of Robin Reviere [sic] and Lori Marshall at Trial Pursuant to LA C.E. Art. 508” and (2) “Motion for Issuance of a Subpoena for Appearance and Testimony of Lewis McHenry and for the Production of Certain Documents in His Possession at Trial Pursuant to LA C.E. Art. 508” filed by plaintiff, Renton Properties, LLC. For the reasons that follow this writ application is granted.
Relator, Lewis McHenry, represented 213 Upland, LCC, in connection with a real estate transaction with the respondent. Relators Robin Riviere and Lori Marshall are non-lawyer members of his legal staff. 213 Upland, LLC, was sued by the respondent for specific performance of an agreement to purchase and sell property. Respondent filed an amending petition including Mr. McHenry as a defendant in the lawsuit. Mr. McHenry was later dismissed from the lawsuit when this Court granted his motion for summary judgment and dismissed all of Renton’s claims against him, with prejudice. Renton Properties, LLC v. 213 Upland, LLC, 20-133 (La. App. 5 Cir. 10/5/20), 304 So. 3d 1083, 1097, writ denied, 20-1395 (La. 1/26/21), 309 So. 3d 345.
Respondent then sought to have Mr. McHenry testify at a hearing in this matter. Finding that the trial court abused its discretion by denying Mr. McHenry’s motion to quash the subpoena compelling his testimony, this Court granted Mr. McHenry’s writ application, reversed the trial court’s denial of Mr. Lewis’ motion to quash, and rendered judgment quashing the subpoena compelling the testimony of Mr. McHenry at the hearing in this matter. Renton Properties, LLC v. 213 Upland, LLC, 21-734 (La. App. 5 Cir. 2/4/22), 2022 WL 533343.
On July 7, 2022, respondent filed a motion requesting the issuance of a subpoena for the appearance and testimony of Mr. McHenry and for the production of documents in his possession at the trial in this matter set for August 8, 2022. On that same date, respondent filed a motion for issuance of subpoenas for the appearance and testimony of Robin Riviere and Lori Marshall, non-lawyer members of Mr. McHenry’s legal staff, at the trial in this matter set for August 8, 2022. In requesting the issuance of these subpoenas, respondent argued that the matter for which they sought testimony and documents was not privileged, the subpoenas provide evidence essential to the case for which there is no practicable alternative means of obtaining the evidence, what is sought is reasonably limited to subject matter and time period, and the subpoenas are not interposed to harass Mr. McHenry, Ms. Riviere, and Ms. Marshall. Respondent argued that these subpoenas were in compliance with La. C.E. art. 508.
In Writ No. 21-C-734, supra, this Court found that the trial court erred in holding that respondent was not calling Mr. McHenry to testify in his capacity as an attorney, but his role as a notary, which does not have the same protection as a lawyer under La. C.E. art. 508. The same holds true in the subpoenas requested that form the basis of this writ application. Hence, article 508 applies.
Although the trial court has held a hearing pursuant to La. C.C. P. Art. 508A, the judgment does not state that there has been a determination by the trial court that the information sought satisfies all five of article 508A’s criteria, as the article requires. Nor do we have a transcript showing that the court has affirmatively made those determinations.
The subpoenas attached to the motions for issuance of the subpoenas do not contain any subject or time restrictions. In addition, the trial court’s judgment orders “the production of certain documents in [Mr. Lewis’] possession” but does not describe these documents with any particularity and does not contain any language to protect any privileged documents. Further, the trial court’s order does not take into account that there are other means by which respondent can present this information at trial, in violation of the requirement in article 508 that “there is no practicable alternative means” to present this information.
With regard to the subpoenas for Ms. Riviere and Ms. Marshall, non-lawyer members of Mr. McHenry’s staff, they are entitled to some protections under La. C.E. art. 508 via La. C.E. art. 506A(4), as “representatives of the lawyer.” The writ application reflects that respondents are in possession of the videotaped depositions of Ms. Riviere and Ms. Marshall. Hence, the information requested from Ms. Riviere and Ms. Marshall is available by alternative means.
For the foregoing reasons, this writ application is granted. The portion of the August 4, 2022 judgment granting (1) the “Motion for Issuance of a Subpoena for Appearance and Testimony of Robin Reviere [sic] and Lori Marshall at Trial…” and (2) the “Motion for Issuance of a Subpoena for Appearance and Testimony of Lewis McHenry and for the Production of Certain Documents in His Possession at Trial” is vacated and set aside. This matter is remanded for further proceedings consistent with this writ disposition.
Gretna, Louisiana, this 5th day of August, 2022.
JJM MEJ SJW SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON FREDERICKA H. WICKER INTERIM CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 08/05/2022 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-C-360 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable June B. Darensburg (DISTRICT JUDGE) Eva J. Dossier (Relator) Richard C. Stanley (Relator) Jefferson R. Tillery (Respondent) Elwood F. Cahill, Jr. (Respondent) Robert L. Raymond (Respondent) Matthew J. Paul (Relator) Gerald A. Melchiode (Respondent) Howard E. Sinor, Jr. (Respondent) Michael E. Botnick (Respondent) John T. Balhoff, II (Respondent) James M. Garner (Respondent) Brian G. LeBon, Jr. (Respondent) Micah C. Zeno (Respondent) Sara E. Huffman (Respondent)
MAILED Michael S. Ricci (Respondent) C. Barrett Rice (Respondent) James J. Reeves, II (Respondent) Jonathan L. Schultis (Respondent) Heather K. Trosclair (Respondent) Attorney at Law Attorneys at Law Attorney at Law 639 Loyola Avenue 101 West Robert E. Lee Boulevard 201 St. Charles Avenue Suite 2550 Suite 400 Suite 5100 New Orleans, LA 70113 New Orleans, LA 70124 New Orleans, LA 70170
Christian Chaney (Relator) Melissa R. Harris (Respondent) Attorney at Law Attorney at Law 909 Poydras Street 909 Poydras Street Suite 2500 Suite 2800 New Orleans, LA 70112 New Orleans, LA 70112 • Complete Items 1, 2, and 3.
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RENTON PROPERTIES, LLC NO. 22-C-360
VERSUS FIFTH CIRCUIT
213 UPLAND, LLC, ET AL. COURT OF APPEAL
STATE OF LOUISIANA
August 05, 2022
Susan Buchholz First Deputy Clerk
IN RE R. LEWIS MCHENRY, LORI MARSHALL, AND ROBIN RIVIERE
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JUNE B. DARENSBURG, DIVISION "C", NUMBER 775-357
Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and John J. Molaison, Jr.
WRIT GRANTED
Relators seek review of the trial court’s judgment dated August 4, 2022 granting the (1) “Motion for Issuance of a Subpoena for Appearance and Testimony of Robin Reviere [sic] and Lori Marshall at Trial Pursuant to LA C.E. Art. 508” and (2) “Motion for Issuance of a Subpoena for Appearance and Testimony of Lewis McHenry and for the Production of Certain Documents in His Possession at Trial Pursuant to LA C.E. Art. 508” filed by plaintiff, Renton Properties, LLC. For the reasons that follow this writ application is granted.
Relator, Lewis McHenry, represented 213 Upland, LCC, in connection with a real estate transaction with the respondent. Relators Robin Riviere and Lori Marshall are non-lawyer members of his legal staff. 213 Upland, LLC, was sued by the respondent for specific performance of an agreement to purchase and sell property. Respondent filed an amending petition including Mr. McHenry as a defendant in the lawsuit. Mr. McHenry was later dismissed from the lawsuit when this Court granted his motion for summary judgment and dismissed all of Renton’s claims against him, with prejudice. Renton Properties, LLC v. 213 Upland, LLC, 20-133 (La. App. 5 Cir. 10/5/20), 304 So. 3d 1083, 1097, writ denied, 20-1395 (La. 1/26/21), 309 So. 3d 345.
Respondent then sought to have Mr. McHenry testify at a hearing in this matter. Finding that the trial court abused its discretion by denying Mr. McHenry’s motion to quash the subpoena compelling his testimony, this Court granted Mr. McHenry’s writ application, reversed the trial court’s denial of Mr. Lewis’ motion to quash, and rendered judgment quashing the subpoena compelling the testimony of Mr. McHenry at the hearing in this matter. Renton Properties, LLC v. 213 Upland, LLC, 21-734 (La. App. 5 Cir. 2/4/22), 2022 WL 533343.
On July 7, 2022, respondent filed a motion requesting the issuance of a subpoena for the appearance and testimony of Mr. McHenry and for the production of documents in his possession at the trial in this matter set for August 8, 2022. On that same date, respondent filed a motion for issuance of subpoenas for the appearance and testimony of Robin Riviere and Lori Marshall, non-lawyer members of Mr. McHenry’s legal staff, at the trial in this matter set for August 8, 2022. In requesting the issuance of these subpoenas, respondent argued that the matter for which they sought testimony and documents was not privileged, the subpoenas provide evidence essential to the case for which there is no practicable alternative means of obtaining the evidence, what is sought is reasonably limited to subject matter and time period, and the subpoenas are not interposed to harass Mr. McHenry, Ms. Riviere, and Ms. Marshall. Respondent argued that these subpoenas were in compliance with La. C.E. art. 508.
In Writ No. 21-C-734, supra, this Court found that the trial court erred in holding that respondent was not calling Mr. McHenry to testify in his capacity as an attorney, but his role as a notary, which does not have the same protection as a lawyer under La. C.E. art. 508. The same holds true in the subpoenas requested that form the basis of this writ application. Hence, article 508 applies.
Although the trial court has held a hearing pursuant to La. C.C. P. Art. 508A, the judgment does not state that there has been a determination by the trial court that the information sought satisfies all five of article 508A’s criteria, as the article requires. Nor do we have a transcript showing that the court has affirmatively made those determinations.
The subpoenas attached to the motions for issuance of the subpoenas do not contain any subject or time restrictions. In addition, the trial court’s judgment orders “the production of certain documents in [Mr. Lewis’] possession” but does not describe these documents with any particularity and does not contain any language to protect any privileged documents. Further, the trial court’s order does not take into account that there are other means by which respondent can present this information at trial, in violation of the requirement in article 508 that “there is no practicable alternative means” to present this information.
With regard to the subpoenas for Ms. Riviere and Ms. Marshall, non-lawyer members of Mr. McHenry’s staff, they are entitled to some protections under La. C.E. art. 508 via La. C.E. art. 506A(4), as “representatives of the lawyer.” The writ application reflects that respondents are in possession of the videotaped depositions of Ms. Riviere and Ms. Marshall. Hence, the information requested from Ms. Riviere and Ms. Marshall is available by alternative means.
For the foregoing reasons, this writ application is granted. The portion of the August 4, 2022 judgment granting (1) the “Motion for Issuance of a Subpoena for Appearance and Testimony of Robin Reviere [sic] and Lori Marshall at Trial…” and (2) the “Motion for Issuance of a Subpoena for Appearance and Testimony of Lewis McHenry and for the Production of Certain Documents in His Possession at Trial” is vacated and set aside. This matter is remanded for further proceedings consistent with this writ disposition.
Gretna, Louisiana, this 5th day of August, 2022.
JJM MEJ SJW SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON FREDERICKA H. WICKER INTERIM CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 08/05/2022 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-C-360 E-NOTIFIED 24th Judicial District Court (Clerk) Honorable June B. Darensburg (DISTRICT JUDGE) Eva J. Dossier (Relator) Richard C. Stanley (Relator) Jefferson R. Tillery (Respondent) Elwood F. Cahill, Jr. (Respondent) Robert L. Raymond (Respondent) Matthew J. Paul (Relator) Gerald A. Melchiode (Respondent) Howard E. Sinor, Jr. (Respondent) Michael E. Botnick (Respondent) John T. Balhoff, II (Respondent) James M. Garner (Respondent) Brian G. LeBon, Jr. (Respondent) Micah C. Zeno (Respondent) Sara E. Huffman (Respondent)
MAILED Michael S. Ricci (Respondent) C. Barrett Rice (Respondent) James J. Reeves, II (Respondent) Jonathan L. Schultis (Respondent) Heather K. Trosclair (Respondent) Attorney at Law Attorneys at Law Attorney at Law 639 Loyola Avenue 101 West Robert E. Lee Boulevard 201 St. Charles Avenue Suite 2550 Suite 400 Suite 5100 New Orleans, LA 70113 New Orleans, LA 70124 New Orleans, LA 70170
Christian Chaney (Relator) Melissa R. Harris (Respondent) Attorney at Law Attorney at Law 909 Poydras Street 909 Poydras Street Suite 2500 Suite 2800 New Orleans, LA 70112 New Orleans, LA 70112 • Complete Items 1, 2, and 3. • Pr1nt yotr name and address on the reverse so that we can return the card to you. • Attach this card to the back of the mallplece, or on the front If space permits. D. Is delvely addre6s c11tr.nnt mn 11am 1? 0 Yee James J. Reeves, II HYES, enter delivery address below: a No Attorney at Law 639 Loyola Ave Suite 2550 New Orleans, LA 70113 08-08-22 22-C-360
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1a1b 2010 aaaa D954 5727 PS Form 3811, July 2015 PSN 753<>-02-000-9053 • Complete Items 1, 2, and 3. • Print your nmne and addrass on the nMnSe so that we can return the card to you• • Attach this card to the back of the mallplece, or on the front If space permits. Christian Chaney Attorney at Law 909 Poydras St. Suite 2500 New Orleans, LA 70112 22-C-360 08-08-22
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7016 2010 aaaa a~s4 5741 ... PS Fonn 3811, July 2015 PSN 7530-02--000-9053 • Complete Items 1, 2, and 3. • Pr1nt yow name and address on the reverse so that we can retum the card to you. • Attach this card to the back of the mallplece, _or on the front If space permits. Heather K. Trosclair C. Barrett Rice Attorneys at Law 20 I St. Charles Ave. Suite 5100 New Orleans, LA 70170 ??-C-160 08-08-22
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'-:,PS Form 3811, July 2015 PSN 7530-02-()()().8053 Domestic RsUn Receipt •
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• Complete Items 1, 2, and 3. A. Signature • Print your name and address on the reverse so that we can ratum the card to you. x 0.Agent D Addressee • • Attach this card to the back of the mallplece, B. Reoelved by (Printed Name) C. Date of Delivery or on the front If space pennlts. D. Is de8very ac1c1ress d!l'f9Alnt from Item 1? D Yes Melissa R. Harris If YES, enter clellvery address below: D No Attorney at Law 909 Poydras Street Suite 2800 New Orleans, LA 70112 27-C-360 08-08-22
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701b 2010 0000 0954 5734 1 PS Form 3811, July 2015 PSN 7530-02.()()0-9()53 Domestic Return Receipt