Hallie Management Co. v. Perry

• Decision Date: 28 July 2006
• Docket Number: No. S-04-1436.,S-04-1436.
• Citation: 272 Neb. 81,718 N.W.2d 531
• Parties: HALLIE MANAGEMENT CO., a Nebraska corporation, appellant, v. Gail PERRY, an individual, and Baylor, Evnen, Curtiss, Grimit & Witt, LLP, a Nebraska limited liability partnership, appellees.
• Court: Nebraska Supreme Court

718 N.W.2d 531

272 Neb. 81

HALLIE MANAGEMENT CO., a Nebraska corporation, appellant, v. Gail PERRY, an individual, and Baylor, Evnen, Curtiss, Grimit & Witt, LLP, a Nebraska limited liability partnership, appellees.

No. S-04-1436.

Supreme Court of Nebraska.

July 28, 2006.

Clay M. Rogers and Edward F. Pohren, of Dwyer, Smith, Gardner, Lazer, Pohren, Rogers & Forrest, L.L.P., Omaha, for appellant.

Michael J. Mooney and Gregory D. Marchant, of Gross & Welch, P.C., L.L.O., Omaha, for appellees.

HENDRY, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

NATURE OF CASE

Hallie Management Co. (Hallie) filed a legal malpractice action against Gail Perry and Baylor, Evnen, Curtiss, Grimit & Witt, LLP (Baylor), alleging that Perry and Baylor (hereinafter collectively appellees) failed to exercise due care in advising Hallie regarding the implementation of a motorized scooter policy at a Lincoln retirement community managed by Hallie. Hallie claimed that the actions of the appellees subjected Hallie to a housing discrimination lawsuit filed by the U.S. Department of Housing and Urban Development (HUD). The appellees sought discovery of documents related to the HUD lawsuit, and Hallie filed a motion for a protective order claiming the documents were protected by the attorney-client privilege and work product doctrine. The district court overruled Hallie's motion and ordered the documents to be made available to Perry and Baylor. Hallie appeals the order. We conclude that we are without jurisdiction to consider the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

The appellant, Hallie, manages Savannah Pines, an independent retirement community in Lincoln. After developing a written motorized scooter policy addendum (the Scooter Policy) to the Savannah Pines rental agreement, Hallie retained the services of Perry, an attorney with Baylor, to evaluate the Scooter Policy and advise Hallie as to whether the Scooter Policy complied with the law. On September 4, 2001, Perry sent a letter to Hallie, advising that proprietors must provide reasonable accommodation to disabled residents but that a policy permitting unlimited scooter use would pose a greater liability risk than a policy limiting the residents' use of scooters.

In response to the Scooter Policy, several residents of Savannah Pines filed housing discrimination complaints with HUD. Subsequently, Perry sent Hallie another letter, advising Hallie to implement an amendment to the Scooter Policy, allowing scooters to be parked in the residence center rather than in the extended dining room. In November 2001, HUD filed a complaint (the HUD Complaint) against Hallie in federal district court. Perry represented Hallie in connection with the housing discrimination complaints until withdrawing in May 2002. In April 2003, Hallie agreed to a consent order, requiring payment of civil penalties, fines, and damages.

In August 2003, Hallie filed a complaint against the appellees, alleging legal malpractice in their evaluation of and advice regarding the Scooter Policy, which resulted in the charges filed by HUD, the expense of defending those charges, and the resulting penalties and fines required by the consent order, totaling $160,000.

In their answer, the appellees asserted, in part, that Hallie's Scooter Policy was not in violation of law and that Hallie had similarly denied any violation in its answer to the HUD Complaint. Further, the appellees asserted that Hallie agreed to the consent order to economically resolve the claim, avoid litigation costs, and establish a reputation as a facility accessible to disabled persons—not as a result of admitting guilt.

During discovery, the appellees issued a subpoena to the attorney who represented Hallie in the lawsuit filed by HUD, seeking to obtain documents pertaining to that representation. Hallie moved for a protective order, claiming that some of the documents were shielded by the attorney-client privilege and the work product doctrine. The parties entered into a stipulation in which Hallie agreed to release documents subject to the subpoena, with the exception of documents identified on a "Privilege Log" attached to the stipulation.

Subsequently, the appellees filed a motion to compel, asking the court to order Hallie to produce several documents identified on the Privilege Log. In response, Hallie filed another motion for protective order.

At a hearing on the motions, the parties agreed that the documents at issue were protected by the attorney-client privilege and work product doctrine. However, the appellees asserted that the protections of the attorney-client privilege and work product doctrine had been waived by Hallie.

At the request of the appellees, the court conducted an in camera review of the documents and sustained the appellees' motion to compel and overruled Hallie's motion for protective order, finding that the documents at issue were protected by the attorney-client privilege and work product doctrine but that Hallie had waived such protections. See State v. Roeder, 262 Neb. 951, 636 N.W.2d 870 (2001). Accordingly, the court ordered Hallie to produce the documents for inspection and photocopying by the appellees.

Hallie filed the present appeal, challenging the court's order compelling disclosure of the privileged documents.

ASSIGNMENTS OF ERROR

Hallie assigns, restated, that the district court erred in determining that the elements set forth in Roeder, supra, were satisfied and that Hallie waived the protections of the attorney-client privilege and work product doctrine. Hallie also argues that "[c]ompelling disclosure of attorney-client communications will have a chilling effect on the client's willingness to give open and full disclosure of facts to its attorney for fear they may be disclosed in future unconsidered litigation." Brief for appellant at 14.

STANDARD OF REVIEW

A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent of the lower court's decision. State of Florida v. Countrywide Truck Ins. Agency, 270 Neb. 454, 703 N.W.2d 905 (2005).

ANALYSIS

Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. Allied Mut. Ins. Co. v. City of Lincoln, 269 Neb. 631, 694 N.W.2d 832 (2005). For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken; conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders. Id.

Although Hallie concedes that the order on appeal here is not a final order, see Brozovsky v. Norquest, 231 Neb. 731, 437 N.W.2d 798 (1989), Hallie argues that this court nonetheless has jurisdiction to hear the appeal pursuant to the collateral order doctrine adopted in Richardson v. Griffiths, 251 Neb. 825, 560 N.W.2d 430 (1997). In contrast, the appellees argue that due to the absence of a final order, Hallie must wait to appeal the order until after final judgment or, alternatively, seek a preemptory writ of mandamus.

Generally, in the absence of a final order from which an appeal may be taken, the appeal must be dismissed for lack of jurisdiction. Id. However, in Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), the U.S. Supreme Court announced a rule providing for appellate review of interlocutory orders that fall within "that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." In Richardson, supra, this court adopted the exception, allowing an appeal of an order granting a motion to disqualify counsel.

"[I]f the appeal from an order of disqualification involves issues collateral to the basic controversy and if an appeal from a judgment dispositive of the entire case would not be likely to protect the client's interests, interlocutory review is appropriate."

Id. at 831, 560 N.W.2d at 435, citing Maddocks v. Ricker; Casson, 403 Mass. 592, 531 N.E.2d 583 (1988). See, also, State of Florida v. Countrywide Truck Ins. Agency, 270 Neb. 454, 703 N.W.2d 905 (2005); Pennfield Oil Co. v. Winstrom, 267 Neb. 288, 673 N.W.2d 558 (2004); Trainum v. Sutherland Assocs., 263 Neb. 778, 642 N.W.2d 816 (2002).

The U.S. Supreme Court has set forth three elements that must be met for an order to fall within the collateral order doctrine: "[T]he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). The Court has emphasized the modest scope of the collateral order doctrine, stating that

the "narrow" exception should stay that way and never be allowed to swallow the general rule . . . that a...