*1 533 reviewing rulings requires the dealing this in this case appeal. for We are the trial Motion, willing speculate Mr. as to whether and I am to trust Callum, not abuse its discre- respected member of the court would or would Courtroom, Cole, P.2d 832 People in to indicate if he 654 bar this tion. See v. something absolutely (Colo.1982)(trial needs to discre- thinks courts have broad made, contemporaneous pre- record controlling have a extent of tion in mode and evidence, and I will do that. clear sentation of and absent shall rulings of discretion thereon abuse court, granting The the defen- review). petition- not be disturbed on part part, denying dant’s motion prior hypothetical at er’s motion to trial is that, request, properly acknowledged upon valid, provides no best reviewable contemporaneous it would make a record of judgment record to render a as to whether judge, conferences.1 The trial in de- bench trial court abused its discretion. part hypothetical portion nying discharge improvidently the rule as motion, reserved to the court its discre- granted. tion in the conduct of the trial. Standard 6-2.41, ABA Jus- Standards Criminal (2d 1980). ed. tice majority agrees page at 530 of its holding applying 6-
opinion, Standard
2.41, judge may, “the trial in the exercise of discretion, argument.
sound cut off further argument permit or not to further
Whether
a later time
is also within
The MOUNTAIN STATES TELEPHONE
judge’s discretion.”
COMPANY,
AND
TELEGRAPH
Col
Stauffer,
corporation,
my opinion
ruling by
the absence
orado
Kent J.
objection
the trial court on a current
Public Administrator
for El Paso
DiFede,
County,
proof by
during
trial ren-
and Anne
offer
counsel
Petition
Cross-Respondents,
opinion advisory.
ders the
Iron Arrow
ers/
Heckler,
v.
Soc’y
Honor
U.S.
v.
(1983)(to
104 S.Ct.
tions
Cir.1984)); Ener- Metzenbaum Federal Comm’n,
gy Regulatory 675 F.2d (D.C.Cir.1982) (dismissal for lack of nothing in
ripeness appropriate where suffered appellants
record shows that have far, injury and the law’s future thus wholly speculative). The
effect remains reflecting trial court
lack of a trial record that, objections it sustains. which majority opinion raneous records concludes if coun- 1. The contempo- requests, must make sel so the court *2 Martin, Ray- Stacy,
Eiberger, Smith & Hodapp, and and Paul F. mond W. Martin Communications, Dept., Law West U.S. Rowe, Denver, petition- P. for Russell er/cross-respondent Mountain States Tel. and Tel. Co. Retherford, Johnson,
Rector, Mullen & Bruce, Anthony A. Johnson and Neil C. Springs, petitioner/cross-re- Colorado spondent Anne DiFede. Larson, P.C., Kofoed,
Kofoed & David L. Costello, P.C., Eugene Englewood, and F. Eugene and Bernadette M. Bau- F. Costello man, Denver, respondent/cross-petition- er Susan DiFede. VOLLACK delivered
Justice Opinion the Court. Telephone
In Mountain States & DiFede, P.2d 298 Telegraph Co. v. appeals re- (Colo.App.1988),the court of judgment in favor of Mountain versed a Company Telephone Telegraph and States (Mountain Anthony’s employer) Bell (the DiFedes or Anne DiFede John and Anthony’s parents). It held that the trial entering judgment court erred both notwithstanding the verdict favor of parents Anthony Bell and the Mountain (Anthony) treating DiFede (Susan) of Susan DiFede favor advisory. It also held that the trial merely Mountain Bell prohibiting court erred questioning Anthony’s parents from she had with about the conversation concluding may a client attorney, an attorney-client privilege to not invoke testifying about conversations avoid attorney. We reverse client had with appeals judgment of the court the court of the case to remand reinstate the trial instructions to office, Anthony arrived at Wilder’s Bell When in favor of judgment court’s agree- signed he and Susan DiFedes. Among things, the ment. other change Anthony to permitted I. policy insurance beneficiary of the life strategic, and substan- procedural, Bell;2 employer, Mountain by his provided in this case involve a issues tive involved claiming interest from prohibited Susan clarity, factual detail. For great amount of *3 Anthony acquired by real estate in certain into sub- divide the facts various we will marriage;3 prohibited and Su- his before headings. inheritance.4 claiming right san from up torn at that Anthony’s previous will was BEFORE A. EVENTS quitclaimed at that time meeting. Susan DEATH ANTHONY’S property to had in the real any interest she $5,000 lump-sum Anthony received a and De- Anthony were married on Susan and support maintenance settle- spousal and 1979, Anthony 28, early 1976. In cember of the Anthony from under the terms ment April terminal cancer. learned he had agreement. separation 28, 1979, they decided to divorce.1 On June signing separation days Ten after 1979, Anthony petition filed a for dissolu- Foutch, a agreement, met with Jack County El Susan marriage in Paso District tion of Springs attorney, to discuss the day. served the next Colorado Susan was Court. said dur- agreement. What was agreed separation to meet at Antho- Anthony She and is also relevant to July sign ing that conversation attorney’s office on ny’s dispute. this separation agreement. 1979, Anthony executed a August 2, 1979, privately met On July Susan
On separation incorporating the Wilder, attorney, will Anthony’s new Raymond parents lega- naming his arrived, agreement ef- and Anthony to discuss the before par- He also made his devisees. pre- he had tees and separation fect of a of the life insurance ents the beneficiaries sign and to communicate pared for her to Bell. On Au- policy provided by Mountain Anthony longer was no her concern 16, 1979, conveyed the real Anthony gust capacity. What was acting in a rational Anthony on parents. died to his the essence estate during that said conversation 1979, however, sepa- before the August dispute. of this following Susan, lan- is based on the According 3. This conclusion decision to divorce 1. separation agree- Paragraph Anthony guage 1 of the not mutual. She testified longer ment: he no to divorce not because wanted treating physician but because his loved her prop- agree all of said real Anthony himself from to disassociate advised ap- improvements erty, together and with all spread his own of cancer in her to avoid the remain the sole purtenances shall be and body turmoil of his mar- due to the emotional [Anthony], shall have property and [Susan] Anthony’s riage will had been over- because title, interest, and right, claim or de- no further by he was treatment come the radical cancer or thereto. mand therein Anthony’s parents receiving efforts of problems. following his lan- portray as the source of on the conclusion is based 4. This agree- Paragraph wanted to di- guage testified that she never 11 of the She also merely acquiesced his Anthony but vorce ment: days of life less make his final demands to hereby, herself do Parties hereto intolerable. heirs, himself, personal repre- or his her and assigns, all waive and release sentatives following lan- is based on the conclusion inheritance, 2. This statutory or other- rights either agree- Paragraph guage wise, property estate of the in and to ment: including allowance party, widow’s other allowances, statutory and each by and all policies Any held and all insurance hereby especially waive and re- [Susan], party does [Anthony] shall by either owned whatever demands of claims and separate property lease all their be and remain party hereto nature owned kind and change so right beneficiaries party. opposite of such time of the death desire. Property Case and 1. agreement could submitted for Consolidation ration Beneficiary Case court, a decree approval of a and before of dissolution could be entered. 21, 1980, granted trial court May On request to consolidate the
Mountain Bell’s beneficiary case. On property case and the OF B. PROCEDURAL EVOLUTION court set the December THE THREE CASES two-and-a-half-day consolidated cases for a begin August even jury trial to September filed a On though party requested jury trial no had complaint County District Court in El Paso for those cases. 79CV1840, (No. real-property-transfer case) against the DiFedes property case or 2. Bifurcation of Issues August of real to set aside the 16 transfers July On DiFedes moved property grounds on the of undue influence summary judgment property case on part incapacity DiFedes ground that Susan’s claim was barred Susan, in part Anthony. Neither *4 separation agreement. by the Mountain DiFedes, in their complaint, her nor the beneficiary in this motion in joined Bell the answer, requested jury trial in the real- a August on 1980. On case November property-transfer case. granted partial the trial court sum- mary judgment in favor of the DiFedes and 17, 1979, September filed a On Bell, holding in El complaint declaratory judgment for agreement subject was enforceable to Su- (No. 79CV1858, County Paso District Court fraud, concealment, san’s claim of failure change-of-beneficiary case or benefi- the assets, misrepresentation. to disclose case) ciary against Mountain Bell and the 19, 1980, two after On December weeks change Anthony’s set aside of DiFedes to sponte court sua the trial set the cases for beneficiary grounds on the of life-insurance trial, jury DiFedes to the moved bifurcate incapacity. influence and Neither undue property beneficiary case the case Susan, complaint, in her nor Mountain Bell litigate the so as to first issue of enforce- DiFedes, answers, the in their demand- ability separation agreement. of the jury change-of-beneficiary a trial in the ed bifurcate, their motion to the DiFedes re- case. quested enforceability of that the issue 30, 1979, separation agreement be tried to the November Susan filed a On jury court rather than to a because re- intestacy petition adjudication for separation agreement, of the scission appointment personal represent- her for Susan, sought by equitable remedy was an Anthony’s estate in El Paso Coun- ative jury action not entitled to a trial. A hear- 79PR0582, (No. pro- ty District Court ing on the motion to bifurcate was held on case). She asked that the will be bate March 1981. The issue of consent to a 9, 1980, probated informally. January On jury trial in the two consolidated cases request to have the court denied Susan’s only following exchange in the arose be- probated informally appointed the will the court and the for the tween Raymond personal representative of Wilder DiFedes: Anthony’s according estate to the terms of [representing MR. the Di- JOHNSON 13,1980, Anthony’s February Wil- will. On that have also asserted Fedes]: petition probate der filed a formal Court, to the trial should be one and that petition for objected to the the will. Honor, may premature, Your because probate on March 1980. She formal I think if the Court orders that this be capacity alleged Anthony that lacked bifurcated, I think I am entitled to a and that the DiFedes exerted execute a will telling why pleading from the other side Anthony designate undue influence on agreement they think the settlement legatees. as his devisees and She them aside, plead- and there no should be set is jury paid file, of six and ing demanded a trial I don’t—I in the wouldn’t to rule on whether probate case. want Court fee $25.00 having held indicated that trial was to be before a entitled to a trial without are at, pleading by attorneys to look jury. because made Statements aware, says case law pretrial Court and Susan at the con- the DiFedes is what whether pleading determines August 5, indicated that on ference not, right to a there is a trial pretrial impaneled.5 The jury would be or not. equity it is a case in whether August day entered order .... begin, also stated trial was scheduled to jury, THE COURT: ... the Plaintiff was to trial be held before [I]f fraud, this on wants to attack concealment, failure to disclose Case With Consolidation Probate jury question, sounds like a Mr. Johnson. Consolidated Cases filed May the DiFedes On be, It may MR. JOHNSON: well very probate case motion consolidate the why question I said and that’s previously cases. the two consolidated put pleading until should be off we had a granted court the DiFedes’ motion trial respond respect to the to which 11,1981, August day on consolidate agreement. settlement property case and the benefi- trial hearing, Following the begin. ciary case was scheduled to granted motion to It de- bifurcate. delayed deciding court at that time issue, how- jury-trial clined to decide six-person jury whether the adviso- ever, through made re- until Susan clear binding jury ry or until the close of evi- sponsive pleadings the basis of her attack dence.6 agree- validity *5 ment. THEORY THE CASE C. OF
3. Pretrial Statements nominally Susan, Although Di- the three cases con- statements the Pretrial of Fedes, May change of and property and Mountain Bell filed cern transfers real Well, course, directly you jury-trial 5. The issue did not arise THE COURT: of elected pretrial attorney proceed this were to manner. You not conference. The DiFedes’ indi- mentioning anything separation the rectly acknowledged possibility jury about the of a you just trial, however, agreement, filed a direct action by stating depositions he that against grantees, actually, the under the deeds anticipated taken of witnesses he had not had separation agree- that arose because of the organized calling not been had summarized and you it And can control to that ment. whether easily jury.” a "in a manner Also, understandable to done, is not there extent on what done and Anthony's Susan’s said state- that question. That’s I’m concerned about. what admitted his state of ments could be to show why capacity but not his and that was mind that [the COURT: I we discussed THE think Anthony’s evidence of statements would Susan’s jury] advisory at the possibility of an first a limited at the “have to have instruction [sic] pretrial. jury." time of the [representing the MR. JOHNSON DiFedes]: it in context of a motion I We discussed the following selecting jury, 6. the con- Prior to the case, Honor, jury in the Your made to strike advisory juries occurred: versation related action Court felt since this was and the appended that setting Is aside of the THE COURT: ... the law, jury to a claim at that would agreement separation these various on be in order. equitable grounds in nature? position taking is an the that this advis- I’m [representing I think Susan]: MR. KOFOED sought is the ory relief re- because the degree. Honor. There are it is to a Your contract, remedy and that is scission think, involved, questions fact I which that, therefore, equity, this is an advis- and in ory jury. jury-oriented. would be aside, setting our far as the it’s And as It in the nature THE COURT: sounds they position up an af- that have set this advisory to set aside the the action defense, seeking admittedly and to avoid agreement, we are separation firmative which are, essence, saying going bridge that we signed, I think I’m not to cross that it. but asserting by go we the the ahead and can have breached contract this time. want to at impanel, get get into agreement. saying separation We’re that we selected avoiding evidence. the contract. are Foutch must have because agreement and August beneficiary on agreement August separation signed her that the a will on told dispositions under purposes by the court. dispute prior approval for our the real enforceable separation argument, validity corollary centers on to the third As a signed Anthony on agreement DiFedes contended Bell and the in all three The defendants July 1979. July 13 that on told Susan that if Foutch on the basis of defended their actions cases enforceable, agreement separation con- separation agreement. of fraud-in-the-induce- claim then Susan’s separation validity of the only cerned doctrine of barred ment would be only agreement, and the issue submitted bring the fraudulent- failure to laches for was induced to was whether Susan all to the attention of inducement claim through separation agreement sign the soon as the fraud is discovered. parties fraud. Co., 57 See, Altura Farms e.g., Ponder v. (1914) 519, 525-26, 143 P. Colo. based her fraud-in-the-inducement Anthony’s seeking rescind contract (party theory on her contention Wilder, “must, told her on attorney, Raymond ground had inducement of fraudulent facts, July separation 2 that the would discovery of the at once upon the approved by not be until was purpose” or else will be announce his agreement by law could objection and waived the deemed have approved by court for at least not be contract). Because of the by the be bound Antho- ninety days. Because she believed fraudulent-inducement invalidity of Susan’s ninety ny for an additional live DiFedes con- theory, Mountain Bell and the days, she believed separation agreement was en- tended the enforceable. agreement could never be and as a result the transfers forceable signed the claims she would not have She change beneficiary property, real separation agreement had she not relied on dispositions under the will were valid. Wilder’s statement ap- until agreement was not enforceable TRIAL D. allegedly
proved by a court. Based on this inducement, sought she to re- fraudulent attempt- Mountain Bell and DiFedes separation agreement and subse- scind *6 the con- Susan about ed to cross-examine quently August 16 transfers of avoid the ten had with Jack Foutch versation she change property, August 16 real meeting Raymond Wilder. days after employment beneficiary of insurance and objections court sustained The trial benefits, August dispositions under the ground that those questions those on 14 will. protected by the at- were communications three Bell and the DiFedes had Mountain torney-client privilege. responses to Susan’s fraud-in-the-induce- case, the trial the close of Susan’s At First, Ray- theory. they claimed that ment against her on all directed verdicts court separation her the mond never told Wilder in- except the issue of fraudulent issues immediately enforce- agreement was not jury eventually The returned ducement. Second, they claimed Susan able. indicating that special for Susan verdict signed agreement not because of sign induced to she had been by Raymond Wilder but false statement through fraud. The trial court Anthony contention that of her because stating whether jury without dismissed sepa- parents sign her to and his forced advisory. binding or jury was verdict agreement through emotional black- ration Third, they amounting duress. mail reasonably rely
claimed that Susan did
PROCEEDINGS
E. POST-TRIAL
by Raymond Wilder
any false statement
1,1981,
Bell and
September
On
attorney
Foutch
she met with
Jack
because
judgment
filed motions
the DiFedes
signed the
days
ten
after she
THE
OF
COURT
F. JUDGMENT
notwithstanding the verdict on a number
APPEALS
OF
court
including
of the trial
grounds,
failure
Susan
permit
them to cross-examine
appeals
judg-
reversed the
The court of
attorney
her conversation with
about
It held that the
the district court.
ment of
jury
verdict
July
Foutch on
13 and that
of the district court for
first
two bases
advisory.
merely
notwithstanding
was
granting judgment
As for
verdict were erroneous.
following hear-
On December
granting judgment
court’s third basis for
judgment not-
ing,
trial court entered
verdict,
notwithstanding the
the court
withstanding the
in favor of Moun-
verdict
properly
appeals held that the trial court
DiFedes. The trial court
tain Bell and the
attorney-client privi-
concluded that “the
bases, any one
found three
of which
lege should not
a bar to
have been
[Su-
judgment
support a motion for
notwith-
concerning
testimony
consultations
san’s]
standing the
The first basis for
verdict.
counsel,
appli-
she had with other
since
granting
notwithstanding the
judgment
precludes only
statute
cable
the dead man’s statute
verdict was
testifying without
the consent of his
testifying
prohibited
from
about con-
DiFede,
(citation
client.”
We also stated in
conservator of an
determining
(Young) sought
six-year-old
for
when
consent
man
both
annul
39(c):
binding jury
marriage
ground
trial
his
of mental
to a
under C.R.C.P.
in-
plaintiff
competency. Although
trial
“Where the
demands
no demand
non-jury
complaint,
case
neither
defen
trial was
in the
made
objects,
Young requested
days
a jury
nor the court
consent to such
trial ten
dant
after
parties pre-
given,
is deemed to have
the answer was filed. The
been
pared
objection.
has ‘the
effect as if a
for trial
At
jury’s verdict
same
without
some
”
Young’s
right.’
stage prior
trial had
Id.
to the close of
been matter
case-in-
question
(quoting Kelly
541 findings lege precludes privilege only and of fact in favor because the made its own DiFede, testifying. the from 763 Young. of P.2d at 300. conclude that the court of We judgment the This court reversed scope of the the misconstrued at- trial court. We concluded the torney-client privilege. binding a had consented to attorney-client privilege The common-law equitable “neither defen issue because the has been codified in Colorado section object[ed]” dant court after the nor the (1987), 13-90-107(1)(b), 6A C.R.S. which plaintiff jury trial. demanded a 148 Colo. states: 115, at at 708. 365 P.2d
(1)
particular
There
relations
are
policy
it
of the law to
which
is the
en-
B.
courage
preserve
confidence and to
lead us to
Three factors
conclude that
inviolate; therefore, person
shall not be
Mountain Bell and the DiFedes did not
following
examined as a witness
the
binding jury
failing
trial by
consent to a
cases:
First,
object.
Mountain Bell
the Di-
and
pretrial
specific
objections
Fedes made
(b) An attorney shall not be examined
binding
imposition
of a
trial both
without the consent
his client as to
property
the motion to bifurcate
by
made
communication
client to
beneficiary
case
case
prior
and
him or
given
his advice
thereon
Second,
impaneling
jury.
professional employment;
course of
nor
hearing
court
expressed reservations
attorney’s secretary,
paralegal,
shall
prior
and
on the motion to bifurcate
to trial
legal assistant,
or
stenographer,
clerk be
Third,
binding
impaneling
jury.
about
examined
the consent of his
without
em-
tangled procedural history
of these
fact,
ployer concerning any
the knowl-
cases did not make clear that failure to
edge
acquired in
of which he has
such
object
pretrial proceeding
at each
would be
capacity.
to a
jury.
treated as consent
13-90-107(1)(b)
first
Bell and
Although
time Mountain
the DiFedes
section
does
request by
so,
were confronted
expressly
not
our case
state
law is
August 11,1981,
for a
trial
attorney-client privilege
uniform that the
is
day
probate
the motion to consolidate
personal
protection
for the
benefit
Court,
case
cases
granted
with the other two
client.
Losavio v. District
See
time,
32,
began. By
127, 132-33,
Mountain 188 Colo.
533 P.2d
35
(“As
already objected (1975)
legislature
Bell
the DiFedes had
defined
binding jury
state,
to imposition-
attorney-client
of a
trial. Un-
priv
courts
this
client.”);
Young,
personal
like
and court in
ilege
the defendant
see
also
Bell,
DiFedes,
Morley
and the trial
D.
Law
Bernard
v.
Offices of
(Colo.
merely
possi-
1215,
MacFarlane,
court did more than
raise and
1220
647 P.2d
bly
1982);
Court,
10,
advisory jury.
examine the issue of an
191 Colo.
A v. District
Although
proceedings
20,
315,
denied,
are
a model
550.P.2d
323
cert.
737,
clarity,
1040,
that the
we conclude
defendants
U.S.
tial communications counsel, advice, gaining or the course of III. rights client’s respect to the directions with A. Court, obligations.” District Miller v. (footnote (Colo.1987) P.2d argues ap Losavio, omitted) 188 Colo. at peals concluding (citing erred in she was not 35; Tramway attorney-client P.2d at Co. v. privi- Denver entitled to invoke *9 542 curiam) com (clients cannot be 848, (1971) (per
Owens,
36 P.
855
20 Colo.
their
a letter to
of
pelled to reveal contents
(1894)).
Wigmore described
As Professor
Washington state statute
privi
attorney under
attorney-client
the evolution of the
“the same
to Colorado’s because
lege:
similar
is also
attorney
to the
privilege accorded
pro-
Originally,
privilege
the
did
...
“the
therefore
client” and
granted to the
himself from the usual
tect the client
divulge
forced to
may not be
client
the
discovery
equity.
As
methods of
is
attorney which
from the
communication
close, it came first to be
1700s drew to a
privileged”).
of
privilege
that “the
was that
conceded
time,
recognition
By this
the client.”
B.
given
logical
the
conse-
began to be
interrogated
quence that he could not be
the DiFedes ar
Mountain Bell and
pur-
to communications made
attorney-client
gue that Susan waived
Yet the
pose
litigation at bar.
respect to her conversation
privilege with
of
to the con-
apparently
still
tradition
days after
attorney Jack Foutch ten
with
Carr, in
trary.
Preston v.
The case of
agreement by plac
signing
1826,
preserve this
the last effort to
her
directly
question
issue the
of
ing
immediately
tradition.
It was thereafter
Raymond
Wilder’s
reliance
reasonable
settled,
nearly simulta-
by a series of
alleged statement
rulings, that communications rela-
neous
if An
agreement would not be enforceable
bar, or
in con-
to the cause at
even
tive
ap
thony died
before
it,
protected from dis-
templation of were
agree
proved by the court. We
that Susan
himself.
covery from the client
attorney-client privilege.
her
waived
2294, at 561
Wigmore, Evidence
8 J.
§
attorney-client privilege is not
1961) (footnotes
(McNaughton rev. ed.
Offices, 647
privilege.
Law
absolute
omitted)
original).
there
(emphasis
We
example, may
party,
A
P.2d at 1220.
by the
of
reject any intimation
fore
privilege.
This
protection
waive
Susan,
her status
by
virtue of
to disclo
really
a form of consent
waiver
client,
protection
may
not invoke the
Court,
3,
P.2d
District
668
sure. Clark v.
attorney-client privilege.
No
of the
See
(Colo.1983).
supported
Waiver must be
8
Court,
Cal.App.2d
Superior
223
well v.
privilege
by
showing that
evidence
(1963) (attor
24
Cal.Rptr.
36
conduct,
expressly
holder, by
or
has
words
ney-client privilege embodied California
of confiden
impliedly
forsaken his claim
virtually identical
to Colorado’s
statute
respect
information in
tiality
to the
by questioning “cannot be defeated
Miller,
(waiver
at 838
question.
737 P.2d
attorney”);
Dunn v.
client instead of
by retaining
attorney-client privilege
Commonwealth,
(Ky.
350 S.W.2d
(waiver
Clark,
543
deprive
privilege
rescission
on fraud-in-
cation
san’s claim for
based
information”).
adversary of vital
her contention that she
the-inducement was
legal
incorrect
statement of
relied on the
Vanice, 221
League
374
v.
Neb.
separation agree-
Raymond Wilder that the
particularly instruc-
N.W.2d 849
is
time it
ment was not enforceable at the
In League,
minority
tive to this case.
gave rise
signed. That contention
to
(League)
corporation
shareholder
sued the
timely
by
raised
the affirmative defense
(Vanice)
president
diverting corporate
Bell and the DiFedes that Su-
funds, authorizing
compensation
excessive
san’s reliance on
incorrect statement
himself,
amounting
and various acts
to
to
by
not
after she met
Wilder was
reasonable
fiduciary duty
breach of
to the sharehold-
with Jack Foutch.
defense
ers. Vanice raised
affirmative
applicable four-year
that
statute
Although
directly
addressed
we have
League
limitations had run.
countered
before,
this issue
it is clear from our re-
begin
of limitations did not
statute
by
from other states that
view of cases
just
to run until
before he filed the claims
placing in issue a .confidential communica-
Vanice concealed the transactions
because
defense,
going directly
claim or
tion
to the
giving rise to the claims until that
time.
party impliedly
attorney-client
waives the
sought
compel League’s
to
former
Vanice
privilege
respect
to that communica-
attorney
testify
to
that he had advised
State,
v.
See Lewis
tion.
565 P.2d
850
question
League about the transactions in
(Alaska 1977) (client
attorney-
4n.
waives
years
more than four
before the claims
privilege
puts
client
when he
in issue the
were filed.
Chica-
attorney);
from his
advice received
The trial court bifurcated the trial
Court,
Superior
go Title Ins. Co. v.
174
litigate
running
first the issue of the
of the
1142, 1149,
Cal.Rptr.
Cal.App.3d
220
League’s
statute of limitations. Over
ob-
(1985) (implied
attorney-client
512
waiver
jection,
attorney
former
his
testified
plaintiff has
privilege occurs “where the
League
years
he informed
more than four
goes
placed in issue a communication which
brought
before the claims were
controversy”);
of the
in
to the heart
claim
president
engaged
had
in the transactions
Vanice,
34, 43,
League v.
221
374
Neb.
question.
testimony,
Based on this
(1985) (party
who raises
N.W.2d
League’s
held that
claims
trial court
were
knowledge
corpo-
issue of his lack of
of a
by the statute of
barred
limitations.
rate transaction in order to avoid a statute-
impliedly
at-
Supreme
of-limitations defense
waives
The Nebraska
Court affirmed
respect
torney-client privilege
part.
to that
It held that
part and reversed
Wolosoff,
issue);
Jersey
United
Bank
properly permitted
the trial court
Vanice
NJ.Super.
question League’s
former
483 A.2d
about
(1984) (when
concerning
League
confidential communications
his conversations with
trial,
corporation
Vanice’s transactions
are made a material issue
fairness
League impliedly
the attor-
attorney-client privilege
because
waived
demands that
Cerrato,
making
ney-client privilege by
his lack of
Sweeney
waived);
Jakobleffv.
Cohn,
knowledge a critical
issue at
trial. The
&
97 A.D.2d
468 N.Y.S.2d
privi-
implied
of a
(mem.)
court noted
waiver
(1983)
privi-
(attorney-client
lege
following
appropriate
is
where
lege
places
client
is waived “where the
present:
factors are
subject
privileged
matter of the
communi-
(1)
privilege
in issue” or “where invasion of the
of the
was a result
cation
assertion
act,
filing
privilege
required
determine the validi-
some affirmative
such as
(2)
suit,
asserting party;
through
appli-
by
ty of the client’s claim or defense
privilege.
privilege
part
deposi-
We cannot make a
the contents of this
waiver of the
transcript
deposition
No
of this
was made
tion.
available to this
of the defendants' claim of waiv-
determination
court,
did
however.
If Susan
deposition,
er based on Susan’s answers in
however,
attorney-client privilege in re-
not invoke her
sponse
tion,
absence of such a record on
in the
subject
deposi-
questions
at this
review.
as a
then her answers would be admissible
attempts by Moun-
privilege to frustrate
act,
asserting party
this affirmative
prove
Susan’s
at issue
the DiFedes
information
tain Bell and
put
protected
case;
(3)
state of the law
making
knowledge
relevant to
the correct
privilege would have
application
very
foundation
thereby negate the
*11
infor-
access to
opposing party
denied the
claim of
prevail in Susan’s
necessary to
his defense.
mation vital to
inducement.
fraudulent
44,
at 856
221
at
374 N.W.2d
League,
Neb.
the attor-
conclude that Susan waived
We
574,
F.R.D.
581
(quoting
Rhay,
Hearn v.
68
her com-
privilege
respect
ney-client
concluding that
(E.D.Wash.1975)).
In
concerning
Foutch
with Jack
munications
attorney-client
League impliedly waived
separation
he told her that
whether
following ob-
privilege, the
made the
court
2,1979.
July
agreement
enforceable on
was
servations:
reason,
properly
the trial court
For this
concealment, League
alleged
When he
notwithstanding the
judgment
found in its
knowledge, or lack of knowl
injected his
permitted
have
Moun-
that it should
edge,
litigation
as a crucial issue
into
Bell and the DiFedes to cross-examine
tain
of the claims
disposition
relevant
point
trial.
on this
at
Susan
fiduciary
alleged
based on an
breach
duty by
as an officer of VPCI.
Vanice
IV.
permitted to thrust his
League is not
litigation
knowledge into the
as a
lack of
Having
acted in a
concluded
necessary
condition
to sus
foundation or
merely advisory capacity and that the trial
simul
against
claim
while
tain his
Vanice
permitted
Bell
court should have
retaining
lawyer-client
taneously
DiFedes to cross-examine Susan
proof
knowledge
to frustrate
privilege
Foutch told her the
about whether Jack
very
or condi
negating the
foundation
agreement
binding,
we
prevail on the claim
necessary to
tion
disposition of
the correct
must determine
against
Such tactic or
asserted
Vanice.
entering judgment
In
for Moun-
the case.
repudiate the
situation would
sword-
DiFedes, the trial court
tain Bell and the
suggested Cerny
maxim
v. Pax
shield
the evidence
stated that “under all of
Co.,
Gallagher
83
119
ton &
Neb.
her
presented,
did not sustain
bur-
[Susan]
(1908),
16
overruled on other
N.W.
demonstrating
proof” in
fraudulent
den of
Moeller, 176 Neb.
grounds, Caster v.
signing
inducement
(1964)
(“Any other
reversible holding that majority’s
cur with the it held that appeals erred when
court of Young. under
jury’s concur.
Accordingly, specially ENGINEER, Daniel Jeris A.
The STATE
son, Engineer for the Division Wa Witte,
ter, De J. Division No. Steven
fendants/Appellants, *13 Venture, Plaintiff/Appellee,
SRJ Company and
The Travelers Insurance Preisser,
Rodney J.
Plaintiffs/Intervenors/Appellees, INC., CATTLE, corpo a Kansas
SMITH
ration, Co., a and Reid Cattle corporation, Defendants.
Colorado
NO. 88SA349. Colorado,
Supreme Court
En Banc. 2, 1989.
Oct.