Renton Properties, LLC Versus 213 Upland, LLC; Margaret W. Tonti; Robert J. Tonti; Ohio Management, LLC; Corporate Realty Leasing Company, Inc.; Mary Carrone; Emily Kramer; Charles R. Cannon, III; Jodycorp, LLC; Duff Friend; And R. Lewis McHenry

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
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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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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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Christian Chaney
Attorney at Law
909 Poydras St. Suite 2500
New Orleans, LA 70112
22-C-360 08-08-22
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Michael S. Ricci 0 · Jsdellwryaddr98Sdlfl'erentmn1tem 11 Yee
11 va;, enter dellwr)i address beloW: a No
Jonathan L. Schultis
Attorneys at Law
101 West Robert E. Lee Blvd. Suite 400
New Orleans, LA 70124
22-C.-~60 OR-OR-22
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... PS Fonn 3811, July 2015 PSN 7530-02--000-9053
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so that we can retum the card to you.
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_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
1111111111111111111111111111111111111111111 H
9590 9402 2434 6249 3625 53
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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
1111111111111111111111111 llll Ill IIllll IIII I Ill
9590 9402 2434 6249 3625 39
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