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. 21-C-734

VERSUS FIFTH CIRCUIT

213 UPLAND, LLC; MARGARET W. TONTI; COURT OF APPEAL
ROBERT J. TONTI; OHIO MANAGEMENT,
LLC; CORPORATE REALTY LEASING STATE OF LOUISIANA
COMPANY, INC.; MARY CARRONE; EMILY
KRAMER; CHARLES R. CANNON, III;
JODYCORP, LLC; DUFF FRIEND; AND R.
LEWIS MCHENRY

February 04, 2022

Susan Buchholz
First Deputy Clerk

IN RE R. LEWIS MCHENRY

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

The relator, R. Lewis McHenry, seeks review of the district court’s
judgment denying his motion to quash a subpoena compelling his testimony at a
January 20, 2022 hearing. The relator states that the court erred by refusing to
quash the subpoena of a lawyer when the respondent, plaintiff Renton Properties,
LLC, failed to comply with the procedural or substantive requirements of
Louisiana Code of Evidence article 508.

The relator represented co-defendant 213 Upland, LCC, in connection with a
real estate transaction with the respondent. 213 Upland, LLC, was sued by the
respondent for specific performance of an agreement to purchase and sell property.
The respondent later amended its petition to add several parties, including
Margaret Tonti, the member and owner of 213 Upland, LLC, and the relator.1

The respondent filed a motion for new trial, seeking reconsideration of the
prior trial judge’s ruling denying his leave to amend his petition to assert a claim
against the relator relating to his notarization of Ms. Tonti’s signature of Upland’s

1
In a previous writ, this Court reversed the district court and found summary judgment in favor of the relator,
dismissing all of the respondent’s claims against him in his personal capacity. Renton Properties, LLC v. 213
Upland, LLC, 20-133 (La. App. 5 Cir. 10/5/20), 304 So. 3d 1083, writ denied, 20-1395 (La. 1/26/21), 309 So. 3d
345.

21-C-734

Act of Sale to an alternative purchaser. The motion was set for hearing, and the
respondent issued a subpoena to the relator on November 19, 2021 to compel his
testimony at the hearing. The relator filed a motion to quash.

At the December 16, 2021 hearing on the motion to quash, the district court
judge found that the respondent was not calling the relator 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.

La. C.E. art. 508 provides:

Neither a subpoena nor a court order shall be issued to a lawyer or his
representative to appear or testify in any civil or juvenile proceeding,
including pretrial discovery, or in an administrative investigation or
hearing, where the purpose of the subpoena or order is to ask the
lawyer or his representative to reveal information about a client or
former client obtained in the course of representing the client unless,
after a contradictory hearing, it has been determined that the
information sought is not protected from disclosure by any applicable
privilege or work product rule; and all of the following:
(1) The information sought is essential to the successful completion of
an ongoing investigation, is essential to the case of the party seeking
the information, and is not merely peripheral, cumulative, or
speculative.
(2) The purpose of seeking the information is not to harass the
attorney or his client.
(3) With respect to a subpoena, the subpoena lists the information
sought with particularity, is reasonably limited as to subject matter
and period of time, and gives timely notice.
(4) There is no practicable alternative means of obtaining the
information.

In this case, the respondent failed to file a motion seeking to subpoena the
relator before issuing the subpoena, despite the fact that the respondent has filed a
motion to compel the relator’s testimony on two previous occasions.2 The
respondent argues that it is not required to comply with La. C.E. art. 508 because
the information sought is relevant to the relator’s notary duties. However, La. C.E.
art. 508 states that the purpose of subpoena is to “ask the lawyer. . .to reveal
information about a client or former client obtained in the course of representing
the client.” In this case, the relator notarized the act of sale for Ms. Tonti while
“in the course of representing” his client, 213 Upland L.L.C., and the respondent
wants to inquire as to “information about a client or former client.” Therefore, this
subpoena to the relator, an attorney and notary, implicates La. C.E. art. 508.

The respondent also alleges that the issue of authenticity or capacity
concerning a document which the lawyer signed as a witness or as a notary is not
privileged under La. C.E. art. 506(c)(4). However, La. C.E. art. 508 requires more
than a finding of privilege, the court must also find the other four factors required
by the article.

2
At an August 21, 2020 hearing, the court denied as premature the respondent’s request for motions to compel the
relator’s deposition. Similarly, on February 3, 2021, the court denied as premature the respondent’s motion to
compel testimony of the relator.

2

“Louisiana Code of Evidence article 508(A) provides that in a subpoena of a
lawyer in a civil case the trial court shall conduct a contradictory hearing to
determine that the information sought is not protected from disclosure by any
applicable privilege or work product rule.” Porter v. Baton Rouge Police Dep't,
16-0625 (La. App. 1 Cir. 4/12/17), 218 So.3d 150, 157 (emphasis in original). A
district court will be found to have abused its discretion in denying the motion to
quash the subpoena without a contradictory hearing, in which the district court
considers La. C.E. art. 508 and determines that: the information sought is not
protected by any applicable privilege or work product rule; the purpose of seeking
the information is not to harass the attorney or his client; the subpoena lists the
information sought with particularity, is reasonably limited as to subject matter and
period of time, that it gives timely notice; and that there is no practicable
alternative means of obtaining the information. Id., citing State v. Gates, 08-0006
(La. App. 1 Cir. 5/15/09), 17 So.3d 41, 47, writ denied, 09-1342 (La. 10/9/09), 18
So.3d 1283.

After review, we find that the district court abused its discretion by denying
the relator’s motion to quash the subpoena compelling his testimony. The
subpoena was sent to a lawyer, before a contradictory hearing, to ask him to reveal
information about a client obtained in the course of his representation.
Furthermore, the trial court erred in denying the motion to quash by failing to make
all of the prerequisite findings pursuant to La. C.E. art. 508(A). Accordingly, we
grant this writ, reverse the trial court’s denial of the motion to quash, and render
judgment quashing the subpoena compelling R. Lewis McHenry’s testimony at the
hearing.

Gretna, Louisiana, this 4th day of February, 2022.

JJM
MEJ

3

RENTON PROPERTIES, LLC NO. 21-C-734

VERSUS FIFTH CIRCUIT

213 UPLAND, LLC; MARGARET W. TONTI; COURT OF APPEAL
ROBERT J. TONTI; OHIO MANAGEMENT,
LLC; CORPORATE REALTY LEASING STATE OF LOUISIANA
COMPANY, INC.; MARY CARRONE; EMILY
KRAMER; CHARLES R. CANNON, III;
JODYCORP, LLC; DUFF FRIEND; AND R.
LEWIS MCHENRY

WINDHORST, J., CONCURS WITH REASONS
I agree that this writ should be granted, reversing both the trial court’s ruling
denying relator, R. Lewis McHenry’s motion to quash, and the specific finding that
Mr. McHenry was “properly subpoenaed” by Renton Properties, LLC (“Renton”),
and granting the motion to quash the subpoena for the following additional reasons.

La. C.E. art. 508 A provides:
Art. 508. Subpoena of lawyer or his representative in civil cases
A. General rule. Neither a subpoena nor a court order shall be issued to a
lawyer or his representative to appear or testify in any civil or juvenile
proceeding, including pretrial discovery, or in an administrative
investigation or hearing, where the purpose of the subpoena or order is
to ask the lawyer or his representative to reveal information about a
client or former client obtained in the course of representing the client
unless, after a contradictory hearing, it has been determined that the
information sought is not protected from disclosure by any applicable
privilege or work product rule; and all of the following:
(1) The information sought is essential to the successful completion of
an ongoing investigation, is essential to the case of the party
seeking the information, and is not merely peripheral, cumulative,
or speculative.
(2) The purpose of seeking the information is not to harass the attorney
or his client.
(3) With respect to a subpoena, the subpoena lists the information
sought with particularity, is reasonably limited as to subject matter
and period of time, and gives timely notice.
(4) There is no practicable alternative means of obtaining the
information. [Emphasis added above.]

La. C.E. art. 508 A clearly provides that no subpoena “shall be issued” to a
lawyer to testify unless a contradictory hearing is held and it “has been determined”
by the trial court that the information sought satisfies the article’s five criteria, i.e.,
that the information sought is neither privileged or work product, as well as the four
enumerated conditions which follow. In this case, the subpoena was issued without
all of these specific determinations having first been made by the trial court.

21-C-734

Even in the absence of a hearing prior to the issuance of the subpoena, the
subpoena, on its face, does not comply with La. C.E. art. 508 A(3) in that it does not
list the information sought with particularity, and is not reasonably limited as to
subject matter and period of time. To the contrary, the subpoena does not list any
information which would be sought, any subject matter, or fix any time period.

Hearing on Motion to Quash

Although the trial court was not asked to conduct a hearing or to rule pursuant
to La. C.E. art. 508 A, the trial court did conduct a contradictory hearing on relator’s
subsequent motion to quash the subpoena during which some issues related to La.
C.E. art. 508 A were raised. The hearing on the motion to quash and the court’s
ruling thereon did not satisfy the requirements of La. C.E. art. 508 A in several ways.

First, the hearing did not occur prior to issuance of the subpoena, as is clearly
mandated by La. C.E. art. 508 A. This defect is more than simply procedural. The
intent of this article is to prevent revelation of privileged information and attorney-
client communication before it is revealed, and prevent vexatious abuse and
unnecessary expense as well. The legislature has therefore intentionally required
that the hearing precede issuance of the subpoena. Further, confidentiality would
not be fully maintained by a determination of inadmissibility during a hearing.
Privileged information, once revealed, or even probed, is not protected by being
disregarded by the trier of fact.

Second, failing to conduct a hearing prior to issuance of the subpoena
effectively shifted the burden of proof from the issuing party, Renton, to McHenry,
who had been prematurely served, to convince the court that the subpoena should be
quashed. It is clear that La. C.E. art. 508 A intends that the burden of proof be on
the party requesting issuance of the subpoena, and that the five “determinations” by
the court are prerequisite to issuance. It is obvious from the transcript that the burden
of proof was on Mr. McHenry to prove the merit of his motion to quash, and not on
Renton to prove that the criteria of La. C.E. art. 508 A were satisfied.

Lastly, in its denial of the motion to quash, the trial court did not make all of
the prerequisite findings pursuant to La. C.E. art. 508 A, nor does the record appear
to support findings that all five of the required conditions were present.

Respondent’s Contention that La. C.E. Art. 508 A Does Not Apply

Respondent, Renton, contends that La. C.E. art. 508 A is inapplicable because
it requires a threshold determination that the purpose of the subpoena be “to ask the
lawyer or his representative to reveal information about a client or former client
obtained in the course of representing the client.” The determination of whether La.
C.E. art. 508 A applies, however, cannot be unilaterally made in advance by an
opposing party who has already chosen to issue the subpoena. Nor can it be made
in advance by the recipient lawyer who is unaware that the subpoena is coming.
Only the trial court can make this determination in a hearing prior to issuance of the
subpoena. Nevertheless, we can consider whether the trial court addressed and ruled
on this threshold issue to determine whether La. C.E. art. 508 A applies in this case.

2

At the conclusion of the hearing on the motion to quash, the trial judge gave
her ruling and reasons:

McHenry’s motion to quash the subpoena is hereby denied.
Under the law there are certain procedures that must be followed
to subpoena a lawyer to reveal information about a client or former
client. [Transcript p. 21, ll. 1-5]

The trial judge then summarized the arguments of each party, then concluded:
A notary public does not have the same protection as a lawyer
under Louisiana Code of Evidence Article 508. Therefore, this
Court finds that Mr. McHenry has been -- has been properly
subpoenaed by Mr. Raymond. [Tr. p. 22, l. 32 -- p. 23, l. 4]

The court made no finding as to whether the purpose of the subpoena was or was not
“to ask the lawyer or his representative to reveal information about a client or former
client obtained in the course of representing the client.” Thus, there was no finding
which could lead to the conclusion that La. C.E. art. 508 A does not apply here. On
the face of the record, La. C.E. art. 508 A clearly appears to apply.

I do not suggest that Renton cannot validly subpoena Mr. McHenry, but it
may do so only after a prior contradictory evidentiary hearing pursuant to La. C.E.
art. 508 A, and appropriate findings by the trial court having considered the specific
conditions enumerated therein.

Accordingly, I would reverse both the trial court’s ruling denying relator,
R. Lewis McHenry’s motion to quash, and the specific finding that McHenry was
“properly subpoenaed” by Renton Properties, LLC (hereafter Renton), and would
quash the subpoena and would remand for further proceedings.

SJW

3

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
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 02/04/2022 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:

21-C-734
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable June B. Darensburg (DISTRICT JUDGE)
Robert L. Raymond (Respondent) Richard C. Stanley (Relator)
James M. Garner (Respondent) Elwood F. Cahill, Jr. (Respondent)
Jefferson R. Tillery (Respondent) Howard E. Sinor, Jr. (Respondent)
Eva J. Dossier (Relator) Matthew J. Paul (Relator)
Michael E. Botnick (Respondent) John T. Balhoff, II (Respondent)
Gerald A. Melchiode (Respondent) Micah C. Zeno (Respondent)
Brian G. LeBon, Jr. (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
Sara E. Huffman (Respondent) Attorney at Law 639 Loyola Avenue
Attorneys at Law 201 St. Charles Avenue Suite 2550
101 West Robert E. Lee Boulevard Suite 5100 New Orleans, LA 70113
Suite 400 New Orleans, LA 70170
New Orleans, LA 70124
Melissa R. Harris (Respondent)
Christian Chaney (Relator) Attorney at Law
Attorney at Law 909 Poydras Street
909 Poydras Street Suite 2800
Suite 2500 New Orleans, LA 70112
New Orleans, LA 70112