As we’ve shown before, some cases aren’t content to reach the right appellate result; they try to ensure the “right” trial-court result, too. Others tackle head-on the easy issues and sidestep the harder ones. This one does both.

Simon Lewis objected to the informal probate of Frances Lewis’ estate and sued its executor, Mark Lewis. The court ordered Simon, who lives out of state, to appear personally for a pretrial conference. Never he nor his counsel did, though, so the court called counsel, who said he was ready to proceed telephonically and didn’t know why Simon wasn’t there. He also gave an excuse about why he hadn’t filed a response to Mark’s counterclaim, which was due before the pretrial conference. So the court struck Simon’s pleadings and gave Mark relief on the counterclaim. Counsel then filed an motion for reconsideration, admitting that he wasn’t ready after all because of some disruptions in his practice and that Simon was indigent and couldn’t come. Then Simon himself filed something saying that counsel hadn’t told him to come. The court denied these, whereupon counsel withdrew and Simon appealed pro se.

Mark argued that as to “certain aspects” of the matter there was no final judgment. “Given the overlapping subject matter of the original probate proceeding and the claims and counterclaims presented, as well as the consolidation of all proceedings below, we conclude we have jurisdiction to review the entirety of the court’s  . . .  order.” So, you’re clear on why the Court of Appeals has jurisdiction, yes? Maybe so, but when something like this looks like its being swept under the rug, it too often is.

Simon argued that the whole thing was his lawyer’s fault and that the court should have held a hearing to determine that before sanctioning him.

The Court of Appeals begins by discussing the background of Rule 16, for reasons not clear since nobody argued that the trial court didn’t have the power to order Simon’s personal appearance at a Rule 16 hearing. (Although in this regard the court notes in passing Armstrong v. Hooker, a much more important case that all litigation types should know.)

Severe sanctions such as dismissal are improper unless there is willfulness/bad faith/gross negligence.  The trial court has to hold a hearing on this. The pretrial conference didn’t count as that since Simon couldn’t explain himself and it didn’t determine where the fault lay.

That’s enough to decide the case but the court apparently fears that it isn’t enough to change the result, so it goes on to say that under these facts dismissal wouldn’t be appropriate even if Simon had known of the order to appear. Throughout, the court is careful to signal to the trial judge what his findings should be on the hearing he hasn’t held yet.

And the opinion also suggests that the trial court’s failure to award Mark his costs  — the opinion does not suggest that he asked for them – is another reason why the order in his favor should be set aside. If noncompliance is not “substantially justified,” according to a 1984 Bar committee note, the judge should award fees; so, you see, failure to award fees doesn’t mean that the judge was trying to give Simon a break, it means that he either thought Simon justified or wasn’t thinking. (This smells so strongly of midnight oil that we wonder whether it was non-lawyer Simons’ idea or the court’s concoction.)

As to giving Mark judgment on his counterclaim, default judgment is another thing about which, when there’s an issue, you need a hearing to see whether the lawyer or the client was the culprit. You also need a hearing for default after an appearance, which Simon had done through counsel. And you need a hearing on damages. The court makes this all sound like a slam dunk by ignoring the fact that the trial court referred to it not as a default but as a waiver. Is there a difference? That’s the question, the answer to which the court assumes rather than explains. (It may be, though, that Mark argued it that way.)

Lastly, Mark argued that there were other reasons, not cited by the trial court, justifying sanctions. The opinion doesn’t say whether he argued those below and lost or didn’t argue them there at all. Either way, he loses them on appeal. But instead of saying that the court explains factually why they shouldn’t result in severe sanctions.

The court concludes by telling Simon what to do at the hearing: appear, present evidence, and call your former lawyer to testify.

(The opinion goes out of its way to identify that lawyer repeatedly. An earlier age would have avoided this, on the theory that he doesn’t deserve possibly-unjustified blame or what is in any event pointless public humiliation. Why do the courts think their modern lack of decorum an improvement?)

(link to opinion)

A minor piece about corporate attorney-client privilege.

Bennett was injured at a Salvation Army day camp. The SA’s lawyers hired a private investigator to take statements from the witnesses – including SA employees and volunteers – a couple of weeks after the accident. Bennett sued. HIs lawyers took everybody’s deposition but also requested production of the statements; SA objected that the statements were privileged and work product. The trial court ordered the SA to “redact the work product” and produce them. (The Court of Appeals assumes, perhaps charitably, that he meant redact the mental impressions, etc. of counsel.) The SA took this special action. (You wouldn’t at first know that it was a special action since court names it using only the name of the real-party-in-interest. That’s an improvement over naming the judge, which we’ve complained about several times before, but why not just say “Superior Court,” as we used to before the rule was changed to require that the judge be identified in the caption on the pleadings, so that people can spot the posture of the case right away?)

The Court of Appeals starts by noting that work product and privilege are separate issues that apparently weren’t analyzed separately below. It discusses work product first.

Work product does not apply to privileged items. Work product is prepared in anticipation of litigation and is discoverable only on a showing of substantial need and an inability to obtain the information otherwise. Having told us that, the court tells us that its irrelevant, at least to the employee’s statements, because they’re privileged, an issue it only then proceeds to analyze. (In fairness to the court, the odd structure of the opinion might be its way to avoid having to say that the trial court didn’t understand the issue and used the wrong law. The court implies that the parties confused things but there was a day when trial judges knew the law of evidence; we mean no special blame to this particular guy, by the way, that’s just a sign of the times.)

The attorney-client privilege statute, 12-2234, includes a lawyer’s “paralegal, assistant, secretary, stenographer, or clerk” and protects communications with employees in order to provide legal advice to the corporate client. That covers the employee statements. (Bennett didn’t argue that a PI is not an “assistant.” That argument has apparently been generally given up, though the statute says “stenographer” because law offices used to be cautious enough to take statements themselves, going to the client’s office with court reporter in tow. As with many other things, that wise bit of lawyering was insufficiently “cost-effective” for the non-lawyers who nowadays control, on both sides, how cases are handled.)

As to the interviews of the SA volunteers, the statute applies to employees and “agents.” The court says that the record doesn’t show  whether the volunteers were agents so it remands.

(link to opinion)

What we wonder is why a trial court judge with years of experience on the bench didn’t know what to do in this situation.

Grubb’s husband was killed by the explosion of a gas heater. She sued Southwest Gas and those in the chain of distribution, including the wholesaler, DIB. DIB won summary judgment, which included Rule 54(b) language. When Grubb appealed the DIB judgment the trial judge worried about his jurisdiction over the rest of the case. Southwest argued that he still had it, Grubb that he didn’t and that if he did he should stay proceedings until after the DIB appeal. The trial court stayed its proceedings; when the defendants moved to lift it, the court announced that it had no jurisdiction.

So Southwest filed a special action. In response, Grubb argued mostly that the court shouldn’t take it. But the trial court’s order was not appealable, Southwest had no other relief available since the trial court had stayed everything, the question is purely one of law, and it will be moot once DIB’s appeal is over.

The court accepts jurisdiction and grants relief. Rule 54(b) expressly allows the court to enter judgment as to less than all parties or claims. “It is logical, if not axiomatic, that the rule thereby permits the portion of the case that is not part of the appeal to proceed in the trial court while the appeal moves forward.” Egan-Ryan (1990) held that the trial court retains jurisdiction over other claims after granting judgment as to one.

The court softly suggests that the way to handle these things is to be careful about Rule 54(b) language. Having granted it, though, and the propriety of that grant not being at issue here, the trial court has jurisdiction to proceed with the rest of the case.

The court remands for further proceedings, which presumably means an argument about a discretionary stay.

(link to opinion)