Fields v. Stauffer Publications, Inc.

• Decision Date: 19 May 1978
• Docket Number: No. 49158,49158
• Citation: 2 Kan.App.2d 323,578 P.2d 1138
• Parties: John H. FIELDS, Appellant, v. STAUFFER PUBLICATIONS, INC., Appellee.
• Court: Kansas Court of Appeals

Page 1138

578 P.2d 1138

2 Kan.App.2d 323

John H. FIELDS, Appellant, v. STAUFFER PUBLICATIONS, INC., Appellee.

No. 49158.

Court of Appeals of Kansas.

May 19, 1978.

Syllabus by the Court

1. Where a party seeking relief in a civil action exercises a constitutional privilege and refuses to testify concerning evidence which is discoverable under K.S.A. 60-226, the party's action will be judged in the same manner and by the same rules as though that party had refused to comply with any other discovery order.

2. The scope of relevancy in deposition proceedings is broader than the scope of relevancy at trial and should be liberally construed.

3. The record is examined in an action wherein plaintiff's cause of action was dismissed with prejudice for plaintiff's failure to answer interrogatories as ordered by the trial court, and under the circumstances shown in the opinion it is held : The trial court did not abuse its discretion in dismissing the plaintiff's cause of action.

John Anderson, Jr. of Anderson, Granger, Nagels & Lastelic, Overland Park, and Scott I. Asner of Carson, Fields & Boal, Kansas City, for appellant.

J. Nick Badgerow and Bill E. Fabian of McAnany, Van Cleave & Phillips, P. A., Kansas City, for appellee.

Before PARKS, P. J., and ABBOTT and MEYER, JJ.

ABBOTT, Judge:

This is an appeal from an order dismissing plaintiff's cause of action with prejudice for his failure to answer a certified question.

This action was commenced by the plaintiff, John H. Fields, on August 6, 1975, the day following the publication of an article in The Kansas City Kansan, a newspaper owned by the defendant, Stauffer Publications, Inc. The article was entitled "Bid May Violate Ethics." The general tenor of the article was that the law firm of Carson, Fields, Kugler & Boal, over the signature of John H. Fields, had submitted an unsolicited proposal to handle all the legal work of the Board of Public Utilities, and that the proposal might violate Canon No. 2 of the Code of Professional Responsibility. Canon No. 2 prohibits a lawyer from recommending employment of himself, his partner or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer. The article made mention that the written proposal stated it was submitted in response to a request by the board. The article, however, went on to attribute statements to board members and employees of the Board of Public Utilities that they had not requested the proposal. Although not material to our disposition of this appeal, evidence developed during discovery reveals that some members of the board did specifically invite the proposal. John H. Fields was of the opinion that the article was libelous and damaging to his law practice. This suit followed.

Defendant, in the course of its discovery, took Fields's deposition on April 14, 1976. The following took place:

"Q (By Mr. Fabian) Had you or any member of your association supported any of the then constituted Board in their election efforts?

"A (By Mr. Fields) I personally feel that that is immaterial and I respectfully decline to answer that unless the court orders me to.

"MR. FABIAN: We had better certify that one.

"Q (By Mr. Fabian) Had you or any member of your association contributed monetarily to the election efforts of any of the then constituted members of the Board of Public Utilities?

"A (By Mr. Fields) Same response.

"MR. FABIAN: Certify it."

The two questions were certified to the district judge and a motion was filed by defendant to require Fields to answer the certified questions. Fields filed a motion for a protective order. A hearing was held and the district judge ordered Fields to answer.

A second deposition of Fields was taken on February 21, 1977. Fields again refused to answer the certified questions on the grounds the questions were not relevant or material to any issue involved in the litigation.

The questions were again certified. The Honorable Don Musser was assigned to hear the matter. (Judge Musser allowed the parties an opportunity to brief the issue, but no briefs were filed.) Judge Musser, by letter dated March 30, 1977, directed that:

"The plaintiff answer in writing under oath the following by April 15, 1977, sending a copy of the answer to counsel for defendant and to the court, but the same need not be filed in the case as a public record.

"Question: Did you or the law firm of Carson, Fields, (Kugler) and Boal monetarily contribute to the campaign of Shirley Cahill, Joe Mulich, Al Bukaty, or Paul Haas in the Board of Public Utilities election?

"Failure to answer the above question as directed by the court by April 15, 1977, will result in the dismissal of plaintiff's claim in this case, with prejudice, on April 18, 1977. Counsel for the defendant may prepare a formal Journal Entry to this affect (sic ) if desired."

The plaintiff did not answer the question and the trial judge dismissed the case with prejudice. This appeal followed.

On appeal, plaintiff raised and briefed two issues. Did the trial court err in ordering the plaintiff to answer the questions, and did the court abuse its discretion in dismissing the plaintiff's cause of action for plaintiff's failure to answer the questions?

At oral argument, plaintiff for the first time contends that the nature of the inquiry falls within the area of privilege as enunciated in K.S.A. 60-226(b )(1). He argues the question sought information concerning political action, which is protected by the First Amendment to the United States Constitution.

Defendant correctly states the rule that an appellate court will not consider an issue that was not presented to the trial court. (Nelson v. Hy-grade Construction & Materials, Inc., 215 Kan. 631, 527 P.2d 1059 (1974).) The Kansas Supreme Court, however, has recognized exceptions to the general rule "where the newly asserted issue involves only a legal question arising on proved or admitted facts and which will be finally determinative of the case, or where consideration is necessary to serve the ends of justice or to prevent a denial of fundamental rights." (Pierce v. Board of County Commissioners, 200 Kan. 74, Syl. P 3, 434 P.2d 858, 859 (1967).)

Although we would not ordinarily consider a question not raised in the trial court, we deem the allegation of a denial of fundamental rights in this case of sufficient importance to further comment. In addition, the defendant, a corporation whose very existence would be threatened by a loss of First Amendment guarantees, would be hard pressed to argue that such a loss would not be a denial of fundamental rights. We do not, however, deem it necessary to ascertain whether or not plaintiff has a First Amendment right that is recognizable as "privileged" under K.S.A. 60-226(b )(1).

Even if we were to hold plaintiff has a First Amendment right privileged under the statute, it would be of no comfort to plaintiff. A court of law will not permit a plaintiff to profit by exercising his constitutional rights to the detriment of a defendant. (Stockham v. Stockham, 168 So.2d 320 (Fla.1964); Levine v. Bornstein, 13 Misc.2d 161, 174 N.Y.S.2d 574 (1958), aff'd 7 App.Div.2d 995, 183 N.Y.S.2d 868, aff'd 6 N.Y.2d 892, 190 N.Y.S.2d 702, 160 N.E.2d 921 (1959); Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483 (1955); Geldback Transport, Inc. v. Delay, 443 S.W.2d 120 (Mo.1969); see, also, 4 A.L.R.3d 545.) The theory is that a plaintiff should not be allowed to benefit financially from litigation in which he has exercised his constitutional rights to conceal relevant information. To allow him to do so would place the defendant at a distinct disadvantage in defending his position. We hold that where a party seeking relief in a civil action exercises a constitutional privilege and refuses to testify concerning evidence which is discoverable under K.S.A. 60-226, the party's actions will be judged in the same manner and by the same rules as though that party had refused to comply with any other discovery order.

Having determined the plaintiff may not claim privilege, we turn to the question of relevancy. The question in this case is whether the information sought from plaintiff is relevant to the subject matter or appears reasonably calculated to lead to the discovery of admissible evidence. If the information sought meets that test, then the fact that the information sought will be inadmissible at the trial is immaterial.

The scope of relevancy in deposition proceedings is broader than the scope of relevancy at trial. (2A Barron and Holtzoff, Federal Practice and Procedure, Civil § 641, p. 14.) Furthermore, the scope of discovery is to be liberally construed so as to provide both parties with information essential to proper litigation on all of the facts. (Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947).) "Relevancy" has been defined to include information which may be useful in preparation for trial. (Carrier Manufacturing Co. v. Rex Chainbelt, Inc., 281 F.Supp. 717 (E.D.Wis.1968).) It has been said that a request for discovery should be considered relevant if there is any possibility that the information sought may be relevant to subject matter of the lawsuit. (Detweiler Bros., Inc. v. John Graham & Co., 412 F.Supp. 416 (E.D.Wash.1976).)

The plaintiff alleged in his petition that the defendant intended to deprive the plaintiff of his good reputation and to bring him into professional disrepute. He further stated that he was not suspected of conduct or practices which would violate in any manner the disciplinary rules of the bar of the state of Kansas. Consequently, defendant suggests the violation of any disciplinary rule became relevant. Defendant contends that as a result of plaintiff's pleading the defendant may inquire as to the possibility of a violation of disciplinary rule 2-103(B), which reads, "(A) lawyer shall not compensate or give anything of value to a person or organization to recommend or...