Berens v. Berens

• Decision Date: 19 April 2016
• Docket Number: No. COA15–230.,COA15–230.
• Citation: 247 N.C.App. 12,785 S.E.2d 733
• Court: North Carolina Court of Appeals
• Parties: Michael M. BERENS, Plaintiff, v. Melissa C. BERENS, Defendant.

247 N.C.App. 12

785 S.E.2d 733

Michael M. BERENS, Plaintiff,

v.Melissa C. BERENS, Defendant.

No. COA15–230.

Court of Appeals of North Carolina.

April 19, 2016.

Horack Talley Pharr & Lowndes, P.A., Charlotte, by Christopher T. Hood and Gena G. Morris, for Plaintiff–Appellee.

Wyrick Robbins Yates & Ponton LLP, Raleigh, by Michelle D. Connell, and Tom Bush Law Group, Charlotte, by Tom J. Bush, for Defendant–Appellant.

Thurman, Wilson, Boutwell & Galvin, P.A., Charlotte, by John D. Boutwell, for Brook Adams.

INMAN, Judge.

This appeal presents the question of whether a party to litigation who engages her friend as an agent to participate in meetings with her attorney waives the protections of attorney-client communications and attorney work product for information arising from the meeting with her attorney and any work product created with the assistance of or shared with the agent as a result of those meetings. Based on our caselaw and the record here, the answer in this case is no. Defendant–Appellant Melissa Berens ("Defendant") appeals the interlocutory order denying her request for a protective order and her motion to quash Plaintiff–Appellee Michael Berens's ("Plaintiff's") subpoena duces tecum to Brooke Adams Healy ("Ms. Adams") compelling production of all documents relating to Ms. Adams's communications with Defendant; her communications with the Tom Bush Law Group ("the law firm"), the firm representing Defendant in her divorce; and her communications with any third party regarding "one or more members of the Berens family" and the legal proceedings that are the subject of the underlying divorce case. On appeal, Defendant argues that Plaintiff's subpoena to Ms. Adams seeks information protected by the attorney-client privilege and by the work product doctrine because Ms. Adams was Defendant's agent. Consequently, according to Defendant, Ms. Adams's presence during Defendant's meetings with her attorney did not waive the privileges nor did her involvement in the preparation of materials for litigation defeat the privileges. Defendant also contends that the subpoena exceeds the scope of Rule 45 of the North Carolina Rules of Civil Procedure.

After careful review, we reverse the trial court's order and remand for proceedings consistent with this opinion.

Factual and Procedural Background

Plaintiff and Defendant were married on 23 September 1989 and separated on 20 July 2012. Six children were born of the marriage. On 4 June 2014, the trial court entered a temporary parenting arrangement order in an effort to best address each child's needs. In it, the court noted that there were several allegations that Plaintiff had engaged in physical confrontations with his children, including one incident in which Plaintiff grabbed one child and pushed him up against the wall. The court found that all the children have complained about "Plaintiff/Father acting weird or creepy," citing several instances of Plaintiff's inappropriate attempts at jokes or inappropriate behavior when he does not "get his way." The court also stated that when "[Plaintiff] does not get his way, he acts inappropriately, gets up and has ‘mini explosions.’ "

The trial court held that it was in the children's best interest that Plaintiff have temporary supervised parenting only with the two youngest children and no contact with the four oldest children. The court calendared the permanent child custody trial to begin on 1 December 2014.

Prior to the trial, on 9 September 2014, Plaintiff's counsel issued a subpoena duces tecum to Ms. Adams. Ms. Adams, an attorney who is now on inactive status with the North Carolina State Bar, is a friend of Defendant's and asserted in an affidavit that she had been "acting as a consultant/agent on behalf of [Defendant] and the Tom Bush Law Group, and acting in a supporting role for [Plaintiff]." Ms. Adams stated that her friendship with Defendant began prior to the current proceedings. As part of her role as a consultant and agent of Defendant, Ms. Adams stated that she had

attended meetings with [Defendant] and her attorneys and [has] had access to various documents and tangible things, including ... emails and documents from and to [Defendant], her attorneys and/or other consultants/experts; correspondence and documents form and to [Defendant], her attorneys and/or other consultants/experts; notes of meetings between [Defendant] and her attorneys; drafts of Court pleadings; potential Court exhibits and documents; case law; statutes; settlements offers during mediation; and, [sic] strategy planning documents.

Attached to her affidavit was a copy of the "Confidentiality Agreements and Acknowledgement of Receipt of Privileged Information" (the "confidentiality agreement") that Ms. Adams entered into with Defendant, identifying Ms. Adams as Defendant's agent, emphasizing that the privileged information she received would be used "solely for the purpose[ ] of settling or litigating" the divorce proceedings, and affirming the expectation that Ms. Adams's presence and involvement were "necessary for the protection of [Defendant's] interest" and the expectation that all communications would be "protected by the attorney-client privilege."

The confidentiality agreement further provided:

Client's Agent will limit her communications concerning the Client's litigation and dispute with her husband to Client and Client's attorneys and they [sic] will have no communication with anyone, including, but not limited to Wife's experts, accountants, consultants or attorneys, or other advisors and consultants unless Client's attorneys are present.

Based on her assertion that she was Defendant's agent, Ms. Adams's counsel argued before the trial court that all documents and tangible things sought by Plaintiff's subpoena were protected by the attorney-client privilege and by work product immunity because Ms. Adams's presence in a "support role, to be a consultant, a representative" did not destroy the privilege or immunity. Plaintiff's counsel disagreed, arguing that Ms. Adams was engaged in the "unauthorized practice of law" and that the law firm had "assisted" her in that role.

The trial court denied Defendant's and Ms. Adams's motions on 16 November 2014, finding, in pertinent part, that:

19. Defendant/Mother's Motions and Ms. Adams'[s] Motions collectively assert that Ms. Adams has been functioning as a consultant and agent of Defendant/Mother and of the Tom Bush Law Group in this litigation. Ms. Adams states that she has attended meetings with Defendant/Mother and her attorneys, reviewed pleadings, emails, documents, case law, statutes etc.

...

21. Ms. Adams is not an employee of the Tom Bush Law Group, nor has she been retained by the Tom Bush Law Group in this litigation.

22. In truth, Ms. Adams is a good friend of Defendant/Mother and Ms. Adams is helping Defendant/Mother out in this litigation.

23. The Agreement executed by Ms. Adams and Defendant/Mother holds no weight in this litigation.

24. This Court cannot find that any attorney-client privilege or work product immunity exists with respect to the relationship between Ms. Adams and Defendant/Mother and the Tom Bush Law Group.

25. There is no "good friend" exception to the attorney-client privilege or work product immunity warranting entry of an order quashing the Subpoena or protective order relieving Ms. Adams of her obligation to the comply with the Subpoena.

26. One could, argue that Ms. Adams is practicing law if she wishes to utilize either the attorney-client privilege or work product immunity. The Court will not focus on this argument or consider it since Ms. Adams is simply viewed as a good friend of Defendant/Mother.

The trial court concluded in pertinent part that:

2. The Agreement executed by Ms. Adams and Defendant/Mother holds no weight in this litigation.

...

4. No exception to the attorney-client privilege or work product immunity exists warranting entry of an order quashing the Subpoena or a protective order relieving Ms. Adams of her obligation to the comply with the Subpoena.¹

5. Defendant/Mother's Motions and Ms. Adams' Motions should be denied and Ms. Adams should fully comply with Plaintiff/Father's Subpoena.

Defendant and Ms. Adams timely appealed.

Ms. Adams's Appeal

Ms. Adams argues that she constitutes an "aggrieved party" and has a statutory right to appeal the trial court's order pursuant to N.C. Gen.Stat. § 1–271 (2013) and Rule 3 of the North Carolina Rules of Appellate Procedure. In an abundance of caution, however, Ms. Adams filed a petition for writ of certiorari seeking appellate review of the order.

Rule 3 provides that "[a]ny party entitled by law to appeal from a judgment or order of a superior or district court rendered in a civil action or special proceeding may take appeal...." N.C. R.App. P. 3(a) (2014). Our Supreme Court has interpreted Rule 3 to mean that it "afford[s] no avenue of appeal to either entities or persons who are nonparties to a civil action." Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000). Although Ms. Adams filed various pleadings in response to Plaintiff's subpoenas in the trial court and was represented by counsel during the hearing, it does not appear from the record that she took any action to intervene or otherwise become a party in the underlying action. See id. While Ms. Adams is correct that she will be affected by the trial court's order compelling documents and other tangible things, she is not an " aggrieved party" entitled to appeal the order.

The Bailey court addressed a similar request by a nonparty and concluded that because the party had no right to appeal as a nonparty, "no such right could be lost by a failure to take timely action." Id. at 157, 540 S.E.2d at 322. While Rule 21 provides that a writ of certiorari may be issued to permit review of a trial court's order if, among other reasons, there is no right of appeal from an interlocutory order, N.C.R.App. P. 21(a)(1) (2014), Bailey compels a conclusion...