Caplan v. Benator (Ex parte Sikes)

• Decision Date: 26 August 2016
• Docket Number: 2150469.
• Parties: Ex parte Griffin SIKES, Jr. (In re Rosalyn M. Caplan v. Patty S. Benator et al.).
• Court: Alabama Court of Civil Appeals

218 So.3d 839

Ex parte Griffin SIKES, Jr.

(In re Rosalyn M. Caplan

v.Patty S. Benator et al.).

2150469.

Court of Civil Appeals of Alabama.

Aug. 26, 2016.

Griffin Sikes, Jr., Montgomery, for petitioner.

Jack Owen of Ball, Ball, Matthews & Novak, P.A., Montgomery, for Patty S. Benator.

James T. Patterson of Vernis & Bowling of Southern Alabama, LLC, Mobile, for Linda S. Fleet.

PER CURIAM.

Griffin Sikes, Jr., an attorney, challenges a February 10, 2016, order of the Montgomery Circuit Court ("the trial court") that ordered him to pay $3,000 as a sanction for vexatious discovery practices.

The record¹ indicates that Sikes represented Rosalyn M. Caplan in a tort action in the trial court in which Caplan sought an award of damages from Patty S. Benator ("Benator"), Gene A. Benator, Linda S. Fleet ("Fleet"), and Stuart L. Fleet; later, a probate-court action involving the estate of Edgar K. Simon, Jr., was removed to the trial court and consolidated with the tort action. Caplan and Simon were in a relationship for a number of years, and they lived together in Simon's home in Montgomery from approximately 2005 until Simon's death on April 22, 2015. Benator and Fleet are Simon's daughters and are the coexecutors of Simon's estate ("the estate"); Gene Benator and Stuart Fleet are, respectively, Benator's husband and Fleet's husband. Under the terms of Simon's will, the house Simon and Caplan had shared during their relationship was left to Benator and Fleet, but the will also contained a provision allowing Caplan to live in the house for 90 days following Simon's death. Simon also made a specific bequest to Caplan from his estate. In her June 16, 2015, complaint in the tort action, Caplan alleged, among other things, that the defendants' conduct toward her since Simon's death had caused her to suffer a heart attack.

The history of the discovery dispute that forms the basis of this petition for a writ of mandamus is as follows. On June 18, 2015, Caplan filed a notice of intent to serve a nonparty subpoena on Gerald Hartley, Wade Hartley, and Davis Hartley of the law firm Hartley & Hartley, seeking the production of

"all written or recorded materials generated or acquired by the law firm of Hartley & Hartley, including all of its members, associates and staff in the course of administering the Estate of Edgar K. Simon, Jr., including but not being limited to all notes, letters, emails, pleadings, interview notes or transcipts [sic], memos, tape recordings, transcripts, etc."

On June 21, 2015, Caplan filed a motion in limine seeking a ruling from the trial court determining that no communication between Fleet and Benator, who, as previously mentioned, are the coexecutors of the estate and the attorneys from Hartley & Hartley ("the Hartley attorneys"), who represented the estate, could be considered subject to the attorney-client privilege and, therefore, not discoverable. Caplan argued that, in the tort action, she had named Benator and Fleet as defendants in their individual capacities rather than as defendants in their capacities as coexecutors of the estate. In that motion, Caplan alleged that the Hartley attorneys had withdrawn from their representation of the estate.² The essence of Caplan's argument in support of her motion in limine is best summarized in her statement in that motion that,

"[w]hether [Benator] and [Fleet] engaged in the course of conduct they took in April, May, and June 2015, as alleged in the Verified Complaint, in open, knowing, deliberate and intentional violation of their fiduciary duties, i.e., after having been specifically advised by the [Hartley attorneys] that such conduct was violative of their duties and specifically advised against continuing in that course of conduct is highly relevant to most of [Caplan's] claims herein."³

Benator and Fleet filed an objection to Caplan's notice to serve a nonparty subpoena, arguing that the documents requested were subject to the attorney-client privilege, were attorney work product, and were not relevant. They also filed an opposition to Caplan's motion in limine. The trial court set the discovery dispute for a hearing, and the parties filed supplemental briefs in the trial court in support of their respective positions.

On July 31, 2015, Caplan filed a notice of her intent to serve a nonparty subpoena on the Hartley attorneys, seeking the production of

"full, complete, legible copies of all written or recorded materials generated or acquired by the law firm Hartley & Hartley, or by any of its members or staff, including Gerald W. Hartley, G. Wade Hartley, and Davis B. Hartley in the course of the administration of the Estate of Edgar K. Simon, Jr. Such written or recorded materials shall include, but not be limited to all pleadings, notes, letters, emails, text messages, notes of telephone calls or conversations, phone logs, billing records, interview notes, transcripts, memos, audio recordings, or other materials containing informational content in any case file or case files kept or maintained concerning the Estate of Edgar K. Simon."

Benator and Fleet objected to the July 31, 2015, notice of intent to serve a nonparty subpoena, and Caplan moved the trial court to overrule that objection.

The parties filed briefs in support of their positions on the discovery dispute, and the trial court conducted a hearing to consider the arguments of counsel. On August 18, 2015, the trial court entered an order ruling on the discovery dispute concerning Caplan's requests for nonparty subpoenas that sought certain information from the Hartley attorneys. That order reads as follows:

"Before the court is [Fleet and Benator's] objection to issuance of a subpoena. [Caplan] is a beneficiary of the will of Mr. Simon. [Fleet and Benator] are the personal representatives of Simon's estate. The personal representatives hired the firm of Hartley & Hartley to advise the estate. Caplan then sought to subpoena the attorney's files concerning that representation and [Fleet and Benator] protested. Both attorneys filed excellent briefs and, in the absence of controlling precedent on point in Alabama, made persuasive policy arguments for their positions. The Court concludes, however, that the weight of authority in Alabama is to the effect that when the personal representative employs an attorney to advise on estate matters, the attorney's client is the personal representative and none other. Furthermore, no exception is delineated in Rule 502 Alabama Rules of Evidence which would abrogate the privilege in this instance. The subpoena is quashed."

(Emphasis added.)

Caplan did not seek appellate review of the August 18, 2015, order. Rather, on September 10, 2015, Caplan filed requests for production that, in pertinent part, requested copies of e-mails, text messages, letters, written correspondence, or recordings of any communications between Benator and Fleet and the Hartley attorneys or Jack Owen, Benator's attorney; any other documents pertaining to Benator's and Fleet's dealings with the Hartley attorneys; any documents containing information regarding whether the Hartley attorneys had advised Benator and Fleet concerning their conduct toward Caplan and the content of any such advice; and any documents or recordings that might substantiate the nature of that advice.

On October 4, 2015, Caplan served a notice of intent to serve a nonparty subpoena on the Hartley attorneys and a notice of intent to depose those attorneys. In both notices, Caplan demanded that the Hartley attorneys produce

"all billing statements and records, time sheets or other written or recorded materials stating, showing, evidencing, or indicating charges for legal services, the amounts of time expended in providing legal services, and the dates and times legal services were rendered for the Estate of Edgar K. Simon, Jr., or its executors, Patricia S. Benator and/or Linda S. Fleet."

Benator and Fleet each objected to the deposition notice and the notice of intent to serve the nonparty subpoena, arguing that Caplan was repeating her earlier efforts to access information that the trial court had already determined was barred by the attorney-client privilege. Caplan argued that the records she had requested were not privileged and not within the scope of the August 18, 2015, order.

On October 21, 2015, Caplan filed a notice of intent to depose Benator and directed Benator to bring with her

"[a]ll written or recorded materials constituting, containing, memorializing, recording, noting, or reflecting any written or oral communications, including but not being limited to emails, texts, letters, conversations, or telephone conversations, that occurred between April 1, 2015 and the present between Linda S. Fleet and any of the following persons:

"Rosalyn Caplan, Stan Caplan, Carol Caplan Sawyer, Davis Hartley, Gerald Hartley, [and] Wade Hartley."

On November 20, 2015, Benator and Fleet moved for a partial summary judgment on Caplan's claim in the tort action asserting trespass. The trial court scheduled a hearing on that motion. Caplan opposed that partial-summary-judgment motion. The trial court later granted the motion for a partial summary judgment on Caplan's trespass claim.

On December 4, 2015, Caplan propounded her "third discovery requests," which were composed of interrogatories and a demand for a "privilege log." In her interrogatories to Benator and Fleet, Caplan demanded information regarding whether either Benator or Fleet had received legal advice with regard to their interactions with Caplan in April 2015 and, if so, the nature of any such advice. Caplan then requested that, for each communication that Benator or Fleet might claim was subject to the attorney-client privilege, Benator and Fleet create a "privilege log" setting forth detailed information regarding why that communication might be privileged.⁴ Caplan sought similar information with regard to other specific factual inquiries and, in addition, sought a statement from...