Grubaugh v. Blomo

• Decision Date: 22 September 2015
• Docket Number: No. 1 CA–SA 15–0012.,1 CA–SA 15–0012.
• Citation: Grubaugh v. Blomo, 238 Ariz. 264, 359 P.3d 1008, 722 Ariz. Adv. Rep. 23 (Ariz. App. 2015)
• Parties: Karen GRUBAUGH, a single woman, Petitioner, v. The Honorable James T. BLOMO, Judge of the Superior Court of the State Ofarizona, in and for the COUNTY OF MARICOPA, Respondent Judge, Andrea C. Lawrence and John Doe Lawrence, wife and husband; Hallier & Lawrence, P.L.C. d/b/a Hallier Law Firm, a public limited company; ABC Corporations I–X; Black and White Partnerships and/or Sole Proprietorships I–X; John Does I–X and Jane Does I–X, Real Parties in Interest.
• Court: Arizona Court of Appeals

238 Ariz. 264

359 P.3d 1008

722 Ariz. Adv. Rep. 23

Karen GRUBAUGH, a single woman, Petitioner

v. The Honorable James T. BLOMO, Judge of the Superior Court of the State Ofarizona, in and for the COUNTY OF MARICOPA, Respondent JudgeAndrea C. Lawrence and John Doe Lawrence, wife and husband; Hallier & Lawrence, P.L.C. d/b/a Hallier Law Firm, a public limited company; ABC Corporations I–X; Black and White Partnerships and/or Sole Proprietorships I–X; John Does I–X and Jane Does I–X, Real Parties in Interest.

No. 1 CA–SA 15–0012.

Court of Appeals of Arizona, Division 1.

Sept. 22, 2015.

Sternberg & Singer Ltd., Phoenix By Melvin Sternberg and Law Office of Paul M. Briggs PLLC, Phoenix By Paul M. Briggs, Co–Counsel for Petitioner.

Broening Oberg Woods & Wilson PC, Phoenix By Donald Wilson, Sarah L. Barnes, Kevin R. Meyer, Counsel for Real Parties in Interest.

Presiding Judge JOHN C. GEMMILL delivered the opinion of the Court, in which Judge DONN KESSLER and Judge KENTON JONES joined.

OPINION

GEMMILL, Judge:

¶ 1 Plaintiff/petitioner Karen Grubaugh brought this legal malpractice action against her former attorneys, defendants/real parties in interest Andrea Lawrence and the Hallier Law Firm (collectively “Lawrence”), seeking damages for allegedly substandard legal advice given to Grubaugh during a family court mediation. Grubaugh challenges the superior court's ruling that the Arizona mediation process privilege created by Arizona Revised Statutes (“A.R.S.”) section 12–2238(B) has been waived or is otherwise inapplicable. We accept special action jurisdiction and grant relief as described herein. Any communications between or among Grubaugh, her attorney, or the mediator, as a part of the mediation process, are privileged under § 12–2238(B). Based on the statute and the record before us, that privilege has not been waived. Because these communications are neither discoverable nor admissible, the superior court is directed to dismiss any claims in the complaint dependent upon such communications.

¶ 2 Grubaugh alleges that Lawrence's representation of Grubaugh in marital dissolution proceedings fell below the applicable standard of care. Grubaugh's malpractice claim is premised, in part, on the distribution of certain business assets. Agreement regarding the method of distribution, and the handling of the tax liability resulting therefrom, was reached during a family court mediation involving Grubaugh, her ex-husband, their attorneys, and the neutral mediator. Before formal discovery began in this matter, Lawrence asked the superior court to order that the A.R.S. § 12–2238(B) mediation privilege was waived as a result of Grubaugh's allegations of malpractice. Lawrence seeks to utilize as evidence communications between herself and Grubaugh, occurring during and after mediation, which led to Grubaugh's ultimate acceptance of the dissolution agreement. In the alternative, Lawrence moved to strike Grubaugh's allegations relating to the mediation if the court held the pertinent communications are protected as confidential.

¶ 3 The superior court granted Lawrence's motion in part, concluding the mediation privilege was waived as to all communications, including demonstrative evidence, between the mediator and the parties and between Lawrence and Grubaugh. The court reasoned in part that the privilege was not applicable in this instance because the statute did not contemplate the precise issue presented. The court then ruled that Lawrence's alternative motion to strike was moot.

¶ 4 Grubaugh filed this special action challenging the court's order. Because this is a matter involving privilege and imminent disclosure of potentially privileged information, remedy by appeal is inadequate and we therefore accept special action jurisdiction. See Roman Catholic Diocese of Phoenix v. Superior Court ex rel. Cnty. of Maricopa, 204 Ariz. 225, 227, ¶ 2, 62 P.3d 970, 972 (App.2003) ; Ariz. Bd. of Med. Exam'rs v. Superior Court, 186 Ariz. 360, 361, 922 P.2d 924, 925 (App.1996).

ARIZONA'S STATUTORY MEDIATION PROCESS PRIVILEGE

¶ 5 Arizona's mediation process privilege is created by A.R.S. section 12–2238(B) :

The mediation process is confidential. Communications made, materials created for or used and acts occurring during a mediation are confidential and may not be discovered or admitted into evidence unless one of the following exceptions is met:

1. All of the parties to the mediation agree to the disclosure.

2. The communication, material or act is relevant to a claim or defense made by a party to the mediation against the mediator or the mediation program arising out of a breach of a legal obligation owed by the mediator to the party.

3. The disclosure is required by statute.

4. The disclosure is necessary to enforce an agreement to mediate.

Subsection (C) of § 12–2238 provides further protection for a mediator against being forced to testify or produce evidence in response to service of process or subpoena:

Except pursuant to subsection B, paragraph 2, 3 or 4, a mediator is not subject to service of process or a subpoena to produce evidence or to testify regarding any evidence or occurrence relating to the mediation proceedings. Evidence that exists independently of the mediation even if the evidence is used in connection with the mediation is subject to service of process or subpoena.

¶ 6 When interpreting a statute, we look to the plain meaning of the language as the most reliable indicator of legislative intent and meaning. New Sun Bus. Park, LLC v. Yuma Cnty., 221 Ariz. 43, 46, ¶ 12, 209 P.3d 179, 182 (App.2009) ; see also Maycock v. Asilomar Dev. Inc., 207 Ariz. 495, 500, ¶ 24, 88 P.3d 565, 570 (App.2004). When the statute's language is “clear and unequivocal, it is determinative of the statute's construction.” Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991). This court will apply the clear language of a statute unless such an application will lead to absurd or impossible results. City of Phoenix v. Harnish, 214 Ariz. 158, 161, ¶ 11, 150 P.3d 245, 248 (App.2006).

¶ 7 The mediation process privilege was not waived when Grubaugh filed a malpractice action against her attorney because none of the four specific statutory exceptions in A.R.S. § 12–2238(B) is applicable. The statute's language is plain, clear, and unequivocal: The privileged communications “are confidential and may not be discovered or admitted into evidence unless one of the following exceptions is met. ” A.R.S. § 12–2238(B) (emphasis added). It provides for a broad screen of protection that renders confidential all communications, including those between an attorney and her client, made as part of the mediation process. Further, of the four exceptions listed in the statute, none excludes attorney-client communications from mediation confidentiality. The legislature could have exempted attorney-client communications from the mediation process privilege, but it did not do so. Cf. Fla. Stat. § 44.405(4)(a)(4) (West 2004) (specifically exempting from the mediation privilege those communications “[o]ffered to report, prove, or disprove professional malpractice occurring during the mediation”).

¶ 8 Our construction of this wide-reaching statute is confirmed by complementary rules of court referencing it. Arizona's Rules of Family Law Procedure emphasize that “all communications” in the context of the mediation are confidential and § 12–2238 is applicable: “Mediation conferences shall be held in private, and all communications, verbal or written, shall be confidential.... Unless specifically stated otherwise in these rules, the provisions of A.R.S. § 12–2238 shall apply to any mediation conference held in conformance with this rule.” Ariz. R. Fam. L.P. 67(A) (emphasis added). Similarly, the Maricopa County Local Rules further express that the only exceptions to mediation confidentiality are found in § 12–2238(B) : “Mediation proceedings shall be held in private, and all communications, verbal or written, shall be confidential except as provided in A.R.S. § 12–2238(B). ” Ariz. Local R. Prac. Super. Ct. (Maricopa) 6.5(b)(1) (emphasis added).

¶ 9 The history of the mediation process privilege further supports its application in this case. From 1991 to 1993, mediation confidentiality was codified in A.R.S. § 12–134. The current statute was created by an amendment in 1993. The 1991 statute differed significantly from the current version by expressly limiting confidentiality to “communications made during a mediation. ” A.R.S. § 12–134 (West 1993) (Emphasis added.) In contrast, the current statute states that the “mediation process” is confidential. When the legislature alters the language of an existing statute, we generally presume it intended to change the existing law. State v. Bridgeforth, 156 Ariz. 60, 63, 750 P.2d 3, 6 (1988). Therefore, by casting a wider net of protection over mediation-related communications, acts, and materials, the legislature altered the statute by increasing its reach.

¶ 10 In holding that the mediation process privilege had been waived, the superior court reasoned that the situation at hand was analogous to one in which a party impliedly waives the attorney-client privilege. The mediation process privilege, however, differs from the attorney-client privilege, which may be impliedly waived. See Church of Jesus Christ of Latter–Day Saints v. Superior Court in & for Maricopa Cnty., 159 Ariz. 24, 29, 764 P.2d 759, 764 (App.1988) ; see also State Farm Mut. Auto. Ins. Co. v. Lee, 199 Ariz. 52, 56–57, ¶¶ 10–11, 13 P.3d 1169, 1173–74 (2000). The attorney-client privilege originated at common law and was subsequently codified by the Arizona legislature. At common law, the privilege was impliedly waived when a litigant's “course of conduct [was] inconsistent with the observance of the privilege.” Bain v. Superior Court in & for Maricopa Cnty., 148 Ariz. 331, 334, 714 P.2d 824, 827 (1986).

¶ 11 Consistent with the common law, the codified attorney-client...