St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc.

147 So. 3d 1266, 2014 La.App. 4 Cir. 0286, 2014 La. App. LEXIS 2044, 2014 WL 4242904
CourtLouisiana Court of Appeal
DecidedAugust 27, 2014
DocketNo. 2014-CA-0286
StatusPublished
Cited by10 cases

This text of 147 So. 3d 1266 (St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc.) 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.

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St. Bernard Port, Harbor & Terminal District v. Violet Dock Port, Inc., 147 So. 3d 1266, 2014 La.App. 4 Cir. 0286, 2014 La. App. LEXIS 2044, 2014 WL 4242904 (La. Ct. App. 2014).

Opinion

JOY COSSICH LOBRANO, Judge.

| Appellants, Joseph P. Ruppel and Chaffe & Associates, non-parties to the underlying expropriation suit in the above-captioned matter, appeal the trial court’s December 11, 2013 judgment denying their motions to quash certain subpoenas and subpoenas duces tecum,.1 For reasons that [1267]*1267follow, we reverse and remand for further proceedings.

This appeal involves litigation that began in December 2010, when the plaintiff, St. Bernard Port, Harbor & Terminal District (“St. Bernard Port”), filed an expropriation petition, seeking to acquire property owned by defendant, Violet Dock Port, Inc., L.L.C. (“Violet Dock Port”). Citing its expropriation authority set forth in La. R.S. 34:1708, St. Bernard Port alleged in its petition that the expropriation of the Violet Dock Port property is necessary, and in the public interest, to expand its current Chalmette Terminal facility for the purpose of | creating a port terminal facility capable of accommodating both liquid-bulk and dry-bulk commodities.

During the 2013 valuation trial in the expropriation action, ¾ St. Bernard Port learned, allegedly for the first time, that Mr. Joseph P. Ruppel had sold his approximately 34% membership interest in Violet Dock Port to his heirs on September 15, 2009. Several months prior to that sale, Mr. Ruppel retained Chaffe & Associates, a company providing investment banking and consulting services,' to value his membership interest in Violet Dock Port for tax and estate planning purposes. The report valuing Mr. Ruppel’s interest in Violet Dock Port was issued by Chaffe & Associates on May 31, 2009.

The expropriation petition in the underlying action was filed on December 22, 2010, fifteen months after Mr. Ruppel’s sale of his membership interest in Violet Dock Port and almost nineteen months after the issuance of the valuation report prepared by Chaffe & Associates. In October 2013, when St. Bernard Port learned of the 2009 sale of Mr. Ruppel’s membership interest and the valuation report prepared by Chaffe & Associates prior to the sale, St. Bernard Port served subpoenas and subpoenas duces tecum on Mr. Rup-pel and Chaffe & Associates seeking Mr. Ruppel’s appearance at trial and the production of the 2009 valuation report and certain related documents (hereinafter referred to collectively as “the Chaffe Report”.) St. Bernard Port also had a subpoena issued to Vanessa Brown Claiborne, Chaffe & Associates’ registered agent for service of process, seeking Claiborne’s appearance at the expropriation trial. At no time during the ^expropriation litigation between St. Bernard Port and Violet Dock Port has Mr. Ruppel or Chaffe & Associates or any representative of Chaffe & Associates been named as a party to that action.

Following the issuance of the subpoenas and subpoenas duces tecum, Mr. Ruppel and Chaffe & Associates filed motions to quash, for protective order and for costs,2 contending that the Chaffe Report is privileged and contains confidential information. Alternatively, Mr. Ruppel and Chaffe & Associates argued that St. Bernard Port did not meet its burden of proving both good cause and relevancy to justify the production of documents from non-parties. St. Bernard Port filed a motion to compel production from Violet Dock Port, and alternatively, to enforce the subpoenas duces tecum served on Mr. Ruppel and Chaffe & Associates. No one associated with St. Bernard Port has seen the Chaffe Report, but St. Bernard Port argued that representations and exhibits in motions filed by Mr. Ruppel and Chaffe & Associ[1268]*1268ates indicate that the Chaffe Report is relevant and discoverable. In the December 11, 201S judgment appealed from, the trial court granted St. Bernard Port’s motion to compel, denied Mr. Ruppel’s and Chaffe & Associates’ motions to quash, and ordered the production of the Chaffe Report. The trial court did not provide reasons for judgment. Mr. Ruppel and Chaffe & Associates now appeal the December 11, 2013 judgment.

|4On appeal, Mr. Ruppel and Chaffe & Associates argue that the trial court erred in denying their motions to quash. They argue that the Chaffe Report, prepared almost nineteen months prior to the filing of the expropriation action, and solely for the purpose of valuing a non-party’s minority membership interest in Violet Dock Port for tax and estate planning purposes, is privileged, irrelevant, inadmissible and untimely. The non-party appellants also argue that the trial court erred in denying their motion for costs.3 They further argue that the trial court’s order to produce the Chaffe Report violates La. C.E. article 515, relative to the accountant-client privilege, and La. C.E. article 517(A), relative to the prohibition against ordering an accountant or his representative to reveal information obtained from a client in the course of representing that client.

St. Bernard Port argues that the Chaffe Report is not privileged under La. C.E. article 515 because Chaffe & Associates is not an “accountant” or “representative” as defined by that article and the report is not a “confidential communication” as referred to in that article because Mr. Rup-pel and Chaffe & Associates contemplated production of the report to a third party, i.e., the Internal Revenue Service. They argue that the Chaffe Report is relevant because it is corroborative evidence regarding the key issue before the trial court, i.e., the value of Violet Dock Port. They further argue that it is evidence of Violet Dock Port’s and/or Mr. Ruppel’s belief as to the property’s value, and it is also evidence as to the credibility of St. Bernard Port’s expert appraiser who was the same appraiser | ¿relied upon by Chaffe & Associates in generating its valuation report regarding Mr. Ruppel’s interest in Violet Dock Port.

The main issue on appeal is whether the trial court properly ruled that the Chaffe Report is discoverable. “A trial court has broad discretion in handling discovery matters and an appellate court should not upset such a ruling absent an abuse of discretion.” Sercovich v. Sercovich, 2011-1780, p. 5 (La.App. 4 Cir. 6/13/12), 96 So.3d 600, 603.

La. C.C.P. article 1422 provides, in pertinent part, that “[pjarties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” La. C.E. article 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The Louisiana Supreme Court has noted that a showing of relevancy and good cause has been required where a party seeks production of records from a non-party. Stolzle v. Safety & Systems Assurance Consultants, Inc., 2002-1197, p. 3 (La.5/24/02), 819 So.2d 287, 289, citing Ouachita National Bank v. Palowsky, 554 So.2d 108 (La.App. 2 Cir.1989) (emphasis added).

In an expropriation suit, the property owner is to be compensated at the [1269]*1269market value of the property taken according to its highest and best use, and market value is determined as of the date of the taking. City of New Orleans v. Giraud, 346 So.2d 1113, 1118 (La.App. 4 Cir.1977).

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147 So. 3d 1266, 2014 La.App. 4 Cir. 0286, 2014 La. App. LEXIS 2044, 2014 WL 4242904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/st-bernard-port-harbor-terminal-district-v-violet-dock-port-inc-lactapp-2014.