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JERRY LEE GAUDET v. MOSAIC FERTILIZER, LLC, ET AL.
On February 5, 2025, this Court issued its decision in Gaudet v. Mosaic Fertilizer, LLC, --- So.3d ----, 2025 WL 397020, 24-389 (La. App. 5 Cir. 2/5/25) in which the majority affirmed the trial court's granting of a motion to compel filed by Savage Services Corporation (“Savage”). Appellants, Mosaic Fertilizer, LLC and Mosaic Crop Nutrition, LLC (collectively “Mosaic”) have filed an application for rehearing from that decision. In its application, Mosaic presents two issues for our reconsideration. First, Mosaic argues that the majority failed to properly interpret and apply the compulsory provision of La. C.C.P. art. 1354(H). Second, Mosaic argues the majority failed to recognize that the trial court did not rule on its specific and categorical substantive objections to the documents identified in Savage's subpoena duces tecum. Mosaic does not seek reconsideration of our decision on other errors assigned in its appeal.
In our majority decision, we concluded the trial court did not abuse its discretion in denying the request made in Mosaic's opposition to Savage's motion to compel compliance with the subpoena duces tecum. Paragraph (H) of La. C.C.P. art. 1354 states: “Subpoenas duces tecum shall produce in full the provisions of this Article.” However, the legislature did not instruct what penalty is to be imposed for non-compliance with that provision. In its original briefing and in its application for rehearing, Mosaic argues that inclusion of the word “shall” in this provision must be interpreted to nullify a non-conforming subpoena duces tecum.
We are aware of no case law, and the parties have supplied none in brief, that supports Mosaic's interpretation of La. C.C.P. art. 1354(H). Mosaic's argument relies heavily on jurisprudence interpreting another article of the Louisiana Code of Civil Procedure. Cited by Mosaic are three cases: Auricchio v. Harriston, 20-01167 (La. 10/10/21), 332 So.3d 660, 663; Zatarains & Gallagher Bassett Servs., Inc. v. Rodney, 24-128 (La. App. 5 Cir. 12/27/24); and, Freeman v. Ochsner Clinic Found., 21-401 (La. App. 5 Cir. 2/23/22), 362 So.3d 720, 723, writ denied, 22-00608 (La. 6/1/22), 338 So.3d 492. Each of these cases involved interpretation of La. C.C.P. art. 966(B)(2), which provides for a fifteen-day deadline for filing an opposition to a motion for summary judgment. In those decisions, the courts ruled that La. C.C.P. art. 966(B) is to be strictly construed, citing Louisiana Fed'n of Tchrs. V. State, 13-0120 (La. 5/7/13), 118 So.3d 1033, 1051 for the interpretation to be given to the word “shall” as meaning “imperative, of similar effect and import with the word must,” and is not subject to discretion. However, defining the term “shall” for purposes of La. C.C.P. art. 966(B)(2) was not the conclusion to the analysis of that article.
In Auricchio v. Harriston, the Louisiana Supreme Court went on to address whether application of its interpretation could lead to “absurd consequences.” The court noted that strictly construing La. C.C.P. art. 966(B)(2) is consistent with the intention of summary judgments to “secure the just, speedy, and inexpensive determination of every action.” Citing La. C.C.P. art. 966(A)(2). This Court in Zatarains & Gallagher Bassett Servs., Inc. v. Rodney likewise noted that “[T]he application of the rule in this manner coincides with the summary judgment purpose, which is ‘to secure the just speedy, and inexpensive determination of every action.’ ”
In our original opinion, the majority of this Court did not find within the text of La. C.C.P. art. 1354 an expression of legislative intent for the mandatory invalidation of subpoenas duces tecum which do not contain a full reproduction of that Article. A plain reading of La. C.C.P. art. 1354 defines a subpoena duces tecum, instructs the recipient on how to comply with the subpoena, and informs the recipient on how to object to requests contained in the subpoena. La. C.C.P. art. 1354 further provides that a trial judge possesses the discretion to vacate or modify a subpoena which is found to be “unreasonable or oppressive.” The Article does not include failure to comply with La. C.C.P. 1354(H) as grounds for vacating a subpoena. In comment (c) to the Article, we noted that “[I]t is suggested that the subpoena forms include a prominent notice that Article 1354 appears in full on the back of the form.” (Emphasis added.)
At this juncture, it is important to note the process for issuance of a subpoena duces tecum. The remedy sought by Mosaic for the subpoena's non-conformity with La. C.C.P. art. 1354(H) is invalidation. It argues that omission of a full reproduction of La. C.C.P. art. 1354 is a substantive violation rendering the subpoena unenforceable, and that “Savage could have, and should have, simply remedied their clerical error by reissuing a compliant subpoena.” That argument reflects a flawed understanding of the Louisiana Code of Civil Procedure.
Subpoenas are not issued by parties, as Mosaic suggests. Rather, the issuer of a subpoena is a court, through its clerk of court. La. C.C.P. 1351. This is clearly reflected in the limited designated record on appeal. In this case, the subpoena duces tecum of deposition directed to Mosaic was issued by the 23rd Judicial District Court, and states “YOU ARE HEREBY COMMANDED in the name of the State of Louisiana and of this Honorable Court ․” The form of subpoena is created and controlled by the issuing court – not the requesting parties. Contrary to Mosaic's averments, Savage did not issue the subpoena.
Mosaic advocates for an interpretation of La. C.C.P. 1354(H) to require invalidation of a subpoena duces tecum because the form used by its issuer, the 23rd Judicial District Court in this case, did not include a full reproduction of La. C.C.P. art. 1354. Supporting its argument, Mosaic relies only on well-established rules for interpreting the word “shall,” and contends that an interpretation leading to a remedy other than mandatory invalidation of a non-conforming subpoena is a departure from the law. We disagree.
As the cases cited by Mosaic reflect, arriving at the meaning of a word in a codal article or statute is the first prong of a civilian analysis. The second is whether the interpretation proposed is consistent with the purpose of the statute such that it will not lead to absurd consequences. Use of the word “shall” in La. C.C.P. art. 1354(H) must be interpretated to mean mandatory. La. R.S. 1:3. However, exclusion or inclusion of instructions for complying with or objecting to a subpoena duces tecum will not, in every case, advance the purpose of protecting the recipient from consequences for non-compliance with a court issued command.
In this case, where the facts in the record and argument of counsel clearly indicate appellant knows what a subpoena duces tecum is, how to comply with the subpoena, and how to object to requests contained in the subpoena, adopting the remedy proposed by Mosaic would not be consistent with the legislative intent of La. C.C.P. art. 1354. Furthermore, in our opinion, Mosaic's proposed remedy would produce the absurd consequence of requiring the clerk of court to reissue a subpoena duces tecum only for the purpose of giving Mosaic notice of procedures of which it obviously is already well aware. In light of the fact that the legislature did not instruct what penalty is to be imposed for non-compliance with La. C.C.P. art. 1354(H), a determination for the legal effect given to a subpoena issued in contravention of La. C.C.P. art. 1354(H) is best left to the discretion of the trial judge under whose name the subpoena is issued.
Concerning appellant's second argument, we note that appeals are taken from the judgment, not the reasons for judgment. Greater New Orleans Expressway Comm'n v. Olivier, 02-2795 (La. 11/18/03), 860 So.2d 22, 24. The April 26, 2024 judgment of the trial court states only that the motion to compel is granted. It was not granted in part and denied in part or taken under advisement. Mosaic elected to raise their objections to the subpoena under La. C.C.P. art. 1469(2), rather than file a motion for a protective order under La. C.C.P. art. 1426. The judgment reflects that the motion to compel was taken up, considered, and ruled upon. We find no error in this ruling.
For the foregoing reasons, the application for rehearing is denied.
I concur that a rehearing should be denied. But I would deny without reasons. Furthermore, I disagree with the majority's reasons.
FIFTH CIRCUIT
101 DERBIGNY STREET (70053)
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054
www.fifthcircuit.org
SUSAN M. CHEHARDY CHIEF JUDGE
FREDERICKA H. WICKER
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL
JUDGES
CURTIS B. PURSELL CLERK OF COURT
SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK
LINDA M. WISEMAN FIRST DEPUTY CLERK
MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF
(504) 376-1400
(504) 376-1498 FAX
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 03/05/2025 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:
CURTIS B. PURSELL CLERK OF COURT
24-CA-389
E-NOTIFIED
23rd Judicial District Court (Clerk)
Honorable Steven C. Tureau (District Judge)
Louis M. Grossman (Appellant)
Matthew C. Nodier (Appellee)
Mark A. Marionneaux (Appellant)
Robert L. Raymond (Appellee)
MAILED
Renee C. McKay (Appellee)
Attorney at Law
1100 Poydras Street
Suite 1700
New Orleans, LA 70163
J. Robert Ates (Appellee)
Attorney at Law
Post Office Box 368
New Sarpy, LA 70078
Amanda E. McGowen (Appellee)
Daniel E. Brauner (Appellee)
Kimberly L. Wood (Appellee)
Attorneys at Law
6663 Jefferson Highway
Baton Rouge, LA 70806
Katie D. Bell (Appellant)
Attorney at Law
Post Office Drawer 3513
Baton Rouge, LA 70821
Forrest E. Guedry (Appellant)
Jay M. Jalenak, Jr. (Appellant)
John F. Jakuback (Appellant)
Lana D. Crump (Appellant)
Attorneys at Law
Post Office Box 3513
Baton Rouge, LA 70821
Honorable Joel T. Chaisson, II (Appellee)
District Attorney
Twenty-Ninth Judicial District Court
Post Office Box 680
Hahnville, LA 70057
MARCEL, J.
CONCURS IN PART WITH REASONS SUS
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Docket No: NO. 24-CA-389
Decided: March 05, 2025
Court: Court of Appeal of Louisiana, Fifth Circuit.
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