Sapp v. Wong

Decision Date31 March 1980
Docket NumberNo. 6597,6597
Citation62 Haw. 34,609 P.2d 137
PartiesDavid M. SAPP, Phillip Gillin, Etta Palin, Gene Neste, Nello Neste, Ephraim P. Kranitz, S. Gerald Stone, Julian Weinstein, James Melvin, John J. Rogers, Nathan E. Gillin, S. Dell Scott, Jerry Tennant, Joel Coleman, Neil Stein, Kenneth D. Belgum, Jack Wormser, and H. B. Rothbard, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, Cross-Appellees, v. Willard M. P. WONG, Mary S. Wong and Howard M. Y. Wong, Defendants-Appellees, Cross-Appellants, and H. T. Wong, James Morikawa and L. W. Carmody, Intervenors.
CourtHawaii Supreme Court

Syllabus by the Court

1. The attorney-client privilege authorizes a client to refuse to disclose and to prevent others from disclosing certain communications between attorney and client.

2. Before the claimant can invoke the privilege as to the substance of the communication, he must first reveal specific facts to establish a sufficient factual basis for the claim of privilege.

3. Whether a client's whereabouts is a privileged communication will depend on an analysis of the facts of the case and the nature of the communication involved.

4. The whereabouts of parties to a suit or the identities of third parties with knowledge of their whereabouts are not a privileged communication where the information was sought to serve the clients with subpoenas duces tecum.

5. A court has the discretion to grant or refuse a continuance of a proceeding in the orderly administration of justice. This discretion is a judicial one and is subject to review for abuse.

6. Generally, to constitute an abuse it must appear that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant.

7. Where the trial court refused to grant a reasonable continuance in a case where the appellees were subpoenaed as witnesses, but such subpoenas were returned unserved by the sheriff, and the record showed that their testimonies were indispensable to the case, such refusal would amount to an abuse of discretion.

8. Where on appeal the judgment for defendants is vacated and the case is remanded for a new trial, the defendants are not entitled to statutory attorney's fee, under HRS § 607-14 (1976) even if the action is one in the nature of assumpsit.

William W. Saunders and Jack C. Morse, Honolulu, for plaintiffs-appellants, cross-appellees except H. B. Rothbard.

Thomas L. Mui, Honolulu, for plaintiff-appellant, cross-appellee, H. B. Rothbard.

Jerry A. Ruthruff, Honolulu (Brian D. Sugimoto, Honolulu, on the brief, Chanin & Ruthruff, Honolulu, of counsel), for defendants-appellees, cross-appellants.

Before RICHARDSON, C. J., OGATA and MENOR, JJ., and MARUMOTO and KOBAYASHI, Retired Justices, Assigned by Reason of Vacancies.

OGATA, Justice.

Plaintiffs-appellants, cross-appellees, David M. Sapp, Phillip Gillin, Etta Palin, Gene Neste, Nello Neste, Ephraim P. Kranitz, S. Gerald Stone, Julian Weinstein, James Melvin, John J. Rogers, Nathan E. Gillin, S. Dell Scott, Jerry Tennant, Joel Coleman, Neil Stein, Kenneth D. Belgum, Jack Wormser, 1 and H. B. Rothbard 2 (who will hereinafter be referred to as "appellants") appeal from a judgment entered against them and in favor of defendants-appellees, cross-appellants, Willard Wong, Mary Wong and Howard Wong (who will hereinafter be referred to as "appellees"). Appellees have cross-appealed from the trial court's judgment which denied their attorney's fees and other costs and also damages resulting from the filing of lis pendens. On the appeal, we reverse, vacate the judgment and remand for a new trial; we dismiss the cross-appeal.

In May 1973, the United States District Court for the District of Hawaii rendered a class action judgment in favor of appellants and others similarly situated who were, on November 22, 1968, stockholders of Hawaii Pacific Venture Capital Corporation, formerly known as Hawaii Jet Aire, also known as Air Hawaii, Inc., a Hawaii corporation, and against one of the appellees, Willard Wong, in the amount of $647,508. In November 1973, a writ of execution in the federal case for satisfaction of judgment was returned nulla bona by the United States marshal. Appellants then filed suits in federal court and in the court below against Willard Wong, his wife, Mary Wong, and his brother, Howard Wong, to obtain a declaration by the respective courts that appellees Mary and Howard Wong are constructive or resulting trustees of appellee Willard Wong's interest in certain lands situate in Honolulu, and that appellee Mary Wong is liable to appellants as a partner of appellee Willard Wong because of her active participation in the conspiracy and scheme to defraud these appellants.

Trial began in the court below on March 17, 1977. As of that date, the subpoenas duces tecum, issued to each of the three appellees on the morning of March 16, 1977, 3 were still outstanding. Appellees were not present in the courtroom and were not available to testify. Appellants' position was and has been that they could not proceed with their case without the appellees. Appellants' attorney, Mr. Saunders, requested the trial judge to

inquire of Mr. Weisman (appellees' attorney) what if any discussions he's had with his clients about the propriety of their appearing today . . . (and) as to the present whereabouts of these three parties. The problem being that as in the past, the sheriff has been unable to find them because they secrete themselves from service.

Appellants' attorneys, Mr. Saunders and Mr. Morse, repeated their request several times. Mr. Weisman refused to answer and stated that, "I think that I have an obligation not to disclose any discussions that I've had with the defendants, including their whereabouts. A short answer to it is I don't know where they are." The trial judge then asked Mr. Weisman how he intended to notify his clients to testify in their own behalf if he had no knowledge of their whereabouts, and Mr. Weisman replied, "(t)hrough third parties who know where they are." Mr. Saunders then requested disclosure of the identities of the third parties or altering the sequence of the trial so that the appellees' counterclaim could be tried first and the appellees could be subpoenaed when they appeared in court. At this time, Mr. Weisman refused to make disclosure and explained: 4

Mr. Saunders has made the allegation that my clients have secreted themselves and that that is a crime. So he's now accused my clients of criminal conduct. He's done that both in court and in his pre-trial statement. He's accused them of obstructing justice.

Now, for me to make disclosures of what my clients have told me would put me in a position of if he's correct and by no means I concede he's correct but if he's correct, of making admissions of criminal liability for my clients, and that I certainly can't do.

The trial judge then asked, "What conduct on your part or what act on your part would amount to that?" and Mr. Weisman replied:

I've got to be very careful of how I phrase it so that I don't make such admissions but if I take the hypothetical case, if your Honor please. If my client told me, "You contact me through X," and if Mr. Saunders is correct that that amounts to obstruction of justice on the part of my client, then by revealing X's name, I would be revealing part of, in effect, be testifying against my client and establishing criminal claims that they allege. I don't concede that there's any such crime, but they have made the allegation. It's a very serious allegation.

The trial court accepted Mr. Weisman's denial of any knowledge as to his clients whereabouts and denied appellants' request to compel disclosure of the identities of the third parties through whom the Wongs could be contacted.

Mr. Mui, attorney for appellant Rothbard, moved for a continuance of the case so that the appellees could be subpoenaed. The trial court denied the motion.

The two questions we consider relevant in this appeal are:

1. Whether the trial court erroneously sustained the asserted attorney-client privilege and

2. Whether the trial court abused its discretion in denying a reasonable continuance?

We discuss the issues in turn.

I

Is there a valid claim of the attorney-client privilege?

The attorney-client privilege authorizes a client to refuse to disclose and to prevent others from disclosing certain communications between attorney and client. To invoke the privilege, the party asserting it must establish that the communication occurred in the manner as follows:

(1) where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.

8 Wigmore, Evidence, § 2292 (McNaughton rev. 1961).

Because the privilege works to suppress otherwise relevant evidence, the limitations which restrict the scope of its operation, above summarized by Wigmore, must be assiduously heeded. E. v. E., 76 Misc.2d 2, 349 N.Y.S.2d 623 (1973). An ipse dixit claim of privilege is insufficient. Proper practice requires preliminary judicial inquiry into the existence and validity of the privilege and the burden of establishing the privilege rests on the claimant. United States v. Gurtner, 474 F.2d 297 (9th Cir. 1973); In re Bonanno, 344 F.2d 830 (2nd Cir. 1965); In re Kinoy, 326 F.Supp. 400 (S.D.N.Y.1970); State v. Hanna, 150 Conn. 457, 191 A.2d 124 (1963). Any other rule would "foreclose meaningful inquiry into the existence of the relationship, and any spurious claims could never be exposed." In re Bonanno, supra, 344 F.2d at 833. No questions were put to Mr. Weisman designed to provide the factual basis needed to determine if the privilege existed....

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49 cases
  • State v. Wong, No. 22671
    • United States
    • Hawaii Supreme Court
    • February 22, 2002
    ...meaningful inquiry into the existence of the relationship, and any spurious claims could never be exposed." Sapp v. Wong, 62 Haw. 34, 38-39, 609 P.2d 137, 140(1980) (citations omitted; emphasis added). See also DiCenzo v. Izawa, 68 Haw. 528, 536, 723 P.2d 171, 176 (1986) ("A proper applicat......
  • Blair v. Ing, No. 22401.
    • United States
    • Hawaii Supreme Court
    • February 27, 2001
    ...a minimal, adverse effect upon the attorney-client privilege. But see Noble v. Bruce, 709 A.2d at 1277-78. Compare Sapp v. Wong, 62 Haw. 34, 38, 609 P.2d 137, 140 (1980) (noting that, "[b]ecause the privilege works to suppress otherwise relevant evidence, the limitations which restrict the ......
  • Gentry v. State, 86-50
    • United States
    • Wyoming Supreme Court
    • August 29, 1986
    ... ... Evans, Wyo., 704 P.2d 1296 (1985); Urich v. Fox, Wyo., 687 P.2d 893 (1984); Gonzales v. Harris, 34 Colo.App. 282, 542 P.2d 842 (1974); Sapp v. Wong, 62 Hawaii 34, 609 P.2d 137 (1980); Winkelman v. Allen, 214 Kan. 22, 519 P.2d 1377 (1974); Griffiths v. Hammon, Utah, 560 P.2d 1375 (1977); ... ...
  • 82 Hawai'i 32, State by Bronster v. U.S. Steel Corp.
    • United States
    • Hawaii Supreme Court
    • June 24, 1996
    ...to "losing parties," and, in view of our remand of this case, the state cannot be considered the "losing party." See Sapp v. Wong, 62 Haw. 34, 42, 609 P.2d 137, 142 (1980) ("[I]n view of what we have said, we must reverse this case on appeal, vacate the judgment and remand for a new trial. ......
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1 books & journal articles
  • Case Notes
    • United States
    • Hawaii State Bar Association Hawai’i Bar Journal No. 24-05, May 2020
    • Invalid date
    ...but not proved[.]" Ipse Dixit, Black's Law Dictionary (11th ed. 2019). "An ipse dixit claim of privilege is insufficient." Sapp v. Wong, 62 Haw. 34, 38, 609 P.2d 137, 140 (1980). [Page 26] Intermediate Court of Appeals Family JWv. RJ, No. CAAP-19-0000328, March 16, 2020, (Hiraoka, J.). In t......

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