Dyson v. Hempe

• Decision Date: 23 July 1987
• Docket Number: No. 85-1933,85-1933
• Parties: Janice DYSON, Plaintiff-Appellant, v. A. Henry HEMPE, Charles A. Holznecht, and George Blakely, Defendants- Respondents.
• Court: Wisconsin Court of Appeals

Page 379

413 N.W.2d 379

140 Wis.2d 792

Janice DYSON, Plaintiff-Appellant, v. A. Henry HEMPE, Charles A. Holznecht, and George Blakely Defendants- Respondents.

No. 85-1933.

Court of Appeals of Wisconsin.

Argued Feb. 25, 1987.

Opinion Released July 23, 1987.

Opinion Filed July 23, 1987.

Review Denied.

John H. Correll, Milwaukee, argued for plaintiff-appellant; Thomas M. Croke, Milwaukee, on brief.

Robert J. Ruth, Beloit, argued for defendants-respondents; and Bolgrien, Ruth & Rentz, S.C., Beloit, on brief.

Before GARTZKE, P.J. and EICH and SUNDBY, JJ.

SUNDBY, Judge.

Janice Dyson appeals judgments dismissing her legal malpractice action pursuant to sec. 804.12(2)(a)3, Stats., with prejudice and costs, as a sanction for failing to make discovery. She brought this action against three attorneys who represented her in her divorce action at different times. At defendants' oral examination of Dyson pursuant to sec. 804.05, she failed to produce requested documents and refused to answer a number of questions, asserting several privileges, including a lawyer-client privilege under sec. 905.03, Stats. ¹

Upon defendants' motion, the court ordered Dyson to answer questions she had refused to answer and all reasonable followup questions and to "forthwith" provide each defense counsel with a complete copy of her entire divorce file, and to file the original with the court. The order found that,

3. There is no attorney/client privilege which plaintiff, Janice Dyson, may claim in this case with respect to the following:

A. Any conversations between plaintiff, Janice Dyson, and any attorney relating to any topic or subject which plaintiff, Janice Dyson, claims to constitute negligence in this case, including without limitation the subject of maintenance; or

B. Any conversations between plaintiff, Janice Dyson, and any attorney where there was any discussion of any defendant herein or legal services rendered by any defendant herein to plaintiff, Janice Dyson.

The order compelled James E. Welker, an attorney consulted by Dyson about her divorce and the defendants' representation of her, to answer, at his deposition and at trial, all questions relating to his conversations with Dyson about the defendants' representation of Dyson in her divorce action.

Thereafter, the defendants again conducted an oral examination of Dyson. Dyson dropped some of her claims of privilege, including physician-patient privilege and battered women's shelter privilege ² but did not produce her file. She continued to claim a lawyer-client privilege with respect to a number of the questions she had been ordered to answer. ³

The defendants then moved to dismiss Dyson's complaint as a sanction for failing to make discovery. At the hearing, Attorney Welker, upon direction by the court but over the objection of Dyson, testified to communications between himself and Dyson relative to her divorce and the defendants' representation of her. The court concluded that Dyson's communications with other attorneys relative to her divorce and the defendants' representation of her were not privileged lawyer-client communications because they fell within sec. 905.03(4)(c), Stats., which provides that there is no privilege as to a communication relevant to a breach of duty by the lawyer to his client. The court therefore ruled that Dyson, without excuse or justification, had failed to make discovery as ordered and dismissed her complaint with prejudice and costs. Judgments were entered dismissing her action as to each defendant. Dyson claims that the trial court erred in imposing discovery sanctions against her because the questions she refused to answer were subject to a lawyer-client privilege, which she claimed.

I. STANDARD OF REVIEW

We will not reverse the trial court's dismissal of an action for plaintiff's failure to comply with pretrial discovery orders unless the trial court abuses its discretion. Trispel v. Haefer, 89 Wis.2d 725, 731, 279 N.W.2d 242, 245 (1979). Abuse of discretion need not involve an arbitrary or capricious misuse of discretion. The trial court abuses its discretion when it bases its decision on an error of law. Earl v. Gulf & Western Mfg. Co., 123 Wis.2d 200, 205, 366 N.W.2d 160, 163 (Ct.App.1985). As we explain in part IV of this opinion, the trial court erred when it concluded that sec. 905.03(4)(c), Stats., applied and Dyson could claim no privilege. The court abused its discretion to the extent that it based its decision on this error of law.

II. FAILURE TO PROVIDE DIVORCE ACTION FILE

Defendants contend that Dyson's failure to provide them and the court with her divorce file as ordered in itself warrants the sanction of dismissal. She attempted to excuse her failure on the grounds she did not have to provide the defendants with free copies. The trial court in the dismissal order appears to have interpreted the discovery order as requiring Dyson to supply copies of her file without charge. The trial court is the best judge of the meaning of its own order. See Palmi v. Palmi, 273 Minn. 97, 140 N.W.2d 77, 82 (1966) (construction of its own decree must be given great weight in determining intent of trial court).

However, the court's construction of the discovery order was not known to Dyson until the court granted the defendants' motion to dismiss. In any event, we do not consider Dyson's failure to comply with the discovery order in this respect to be egregious. Dismissal for noncompliance with pretrial orders is appropriate only in cases of egregious conduct. Englewood Apartments Partnership v. Grant & Co., 119 Wis.2d 34, 40, 349 N.W.2d 716, 719 (Ct.App.1984). "[I]t is well established that a party's simple negligence or other action grounded in misunderstanding of a discovery order does not justify the 'use of the Draconian remedy of dismissal.' " Searock v. Stripling, 736 F.2d 650, 653 (11th Cir.1984) (citation omitted). If Dyson's failure to timely provide the defendants with copies of her file made discovery more time-consuming and expensive, on remand the defendants may move under sec. 804.12(2)(a), Stats., for some sanction other than dismissal, or under sec. 804.12(2)(b) for reasonable expenses, including attorney's fees, caused by Dyson's failure. The trial court may abate action on such motion pending conclusion of the trial.

III. EXISTENCE OF LAWYER-CLIENT PRIVILEGE

Dyson claimed a lawyer-client privilege with respect to the subject matter of the questions set forth in footnote 3. The trial court concluded that there was no privilege as to any communication between her and any attorney as to the subject matter of these questions because of the exception to the privilege created by sec. 905.03(4)(c), Stats. The defendants contend that there was no privilege for the added reasons that (a) Dyson failed to establish that the communications she sought to protect from disclosure were intended to be confidential; (b) she waived the lawyer-client privilege by voluntary disclosure, sec. 905.11; and (c) she lost the privilege because she sought the services of other attorneys in furtherance of a fraud. Consideration of the nature of the lawyer-client privilege is not necessary to determine these contentions of the defendants. We therefore defer consideration of the privilege and the sec. 905.03(4)(c) exception until we have addressed these contentions.

(a) Failure to Show Communications Were Intended to Be Confidential. Defendants contend that Dyson failed to satisfy the court that the communications she sought to protect were intended to be confidential, sec. 905.03(1)(d), Stats.

A mere showing that the communication was from a client to his attorney is insufficient to warrant a finding that the communication is privileged. When a claim of privilege is challenged, the trial court should hold a hearing on the merit of the contention, not only with respect to the existence of the relationship, but also with respect to the nature of the information sought to be obtained.... The rule is now embodied in sec. 901.04(1), Stats.: 'Preliminary questions concerning ... the existence of a privilege ... shall be determined by the judge.'

Jax v. Jax, 73 Wis.2d 572, 581, 243 N.W.2d 831, 836 (1976) (citation omitted).

While the defendants contend that the hearing on their discovery motion was a Jax hearing, the transcript of the hearing reveals that no questions were raised by the defendants with respect to the existence of the attorney-client relationship between Dyson and other attorneys or whether she intended her communications with them to be confidential. Dyson had the burden of establishing the lawyer-client privilege, Weil v. Investment/Indicators, Research, & Management, 647 F.2d 18, 25 (9th Cir.1981), but the defendants had the burden of indicating to the trial court at the hearing on their motion whether they challenged Dyson's intent that the communications she sought to protect be confidential. The defendants participated in the hearing as if the preliminary questions as to the existence of the privilege had been answered in favor of its existence. The defendants may not now claim that Dyson failed to establish that the communications were intended to be confidential.

(b) Waiver of Privilege By Voluntary Disclosure. Section 905.11, Stats., provides:

A person upon whom this chapter confers a privilege against disclosure of the confidential matter or communication waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter or communication....

Whether Dyson voluntarily disclosed confidential communications to third persons requires a finding of the historical facts. There has been no evidentiary hearing on this issue and the trial court has made no findings. Section 805.17(2), Stats., requires findings. "The purpose of the statute is to protect the rights of the litigants and to facilitate review of the...