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Krahenbuhl v. Cottle Firm

Court of Appeals of Utah

July 12, 2018

James Krahenbuhl, Kayleen Krahenbuhl, and Estate of Tanner Krahenbuhl, Appellants,
v.
The Cottle Firm, Robert W. Cottle, Mainor Eglet Cottle LLP, Miller Toone PC, and P. Matthew Muir, Appellees.

          Third District Court, Salt Lake Department The Honorable Robert P. Faust No. 150906163

          Karra J. Porter, Kristen C. Kiburtz, and Bruce M. Pritchett, Attorneys for Appellants Matthew N. Evans, Attorney for Appellees The Cottle Firm, Robert W. Cottle, and Mainor Eglet Cottle LLP

          Gregory J. Sanders and Sarah C. Vaughn, Attorneys for Appellees Miller Toone PC and P. Matthew Muir

          Judge Gregory K. Orme authored this Opinion, in which Judges Kate A. Toomey and Diana Hagen concurred.

          OPINION

          ORME, JUDGE

         ¶1 This case involves alleged legal malpractice on the part of the Appellees-two attorneys and the firms for which they worked during the pendency of the underlying case (collectively, Prior Counsel)-for failure to timely file several product liability claims after Tanner Krahenbuhl was killed in a motor home accident. James Krahenbuhl, Kayleen Krahenbuhl, and the Estate of Tanner Krahenbuhl (collectively, the Krahenbuhls) appeal from the district court's interlocutory order denying their objection to Prior Counsel's subpoena duces tecum.[1] The Krahenbuhls assert that the district court erred in denying their objection because the subpoena violates the attorney-client privilege. We agree and therefore reverse.

         BACKGROUND

         ¶2 In August 2009, Tanner Krahenbuhl was killed while riding in a motor home that was traveling down a steep mountain road near Powder Mountain Resort. Several witnesses stated that the motor home was traveling at a high rate of speed down the road and that its brakes were smoking before it crashed. The Krahenbuhls hired Prior Counsel to pursue several claims, including a negligence claim against Powder Mountain on a theory of premises liability as well as product liability claims against the manufacturer of the motor home's brakes.

         ¶3 Two years and one day after Tanner's death, Prior Counsel filed a one-count complaint for negligence against Powder Mountain. Powder Mountain's answer asserted that the two-year statute of limitations barred the claim because it was filed one day late. In November 2012, over a year after the complaint was filed, Prior Counsel withdrew from the case. In December 2012, the Krahenbuhls retained a new attorney (Successor Counsel). Thereafter, Powder Mountain moved for summary judgment, arguing that the claim against it should be dismissed because it was not timely filed. The district court granted the motion.

         ¶4 In August 2015, the Krahenbuhls, through Successor Counsel, filed a legal malpractice action against Prior Counsel for failing to timely file the lawsuit against Powder Mountain and for failing to file any claims against the brake manufacturer. In their answer, Prior Counsel asserted the affirmative defense of comparative negligence, contending that the Krahenbuhls and Successor Counsel were at least in part responsible for the untimely filing of the Krahenbuhls' claims. After Prior Counsel moved for summary judgment, the parties stipulated to dismissing the Krahenbuhls' claims as to Prior Counsel's failure to timely file the negligence claim against Powder Mountain, because the district court had determined in a subrogation lawsuit that Powder Mountain did not owe a duty to the Krahenbuhls.

         ¶5 Discovery continued on the issue of whether Prior Counsel committed legal malpractice for failing to assert the product liability claims in an action filed before the expiration of the statute of limitations. Prior Counsel filed a notice of issuance of a subpoena duces tecum (the Subpoena), requesting all documents in Successor Counsel's file that related to the underlying lawsuit. The Krahenbuhls objected, arguing that the Subpoena sought materials protected by the attorney-client privilege. In response, Prior Counsel filed a statement of discovery issues, seeking an order requiring the Krahenbuhls to comply with the Subpoena. Prior Counsel argued that the Krahenbuhls waived the attorney-client privilege as to communications between themselves and Successor Counsel because the privileged communications were "at issue." First, citing a number of cases from other jurisdictions, Prior Counsel argued that "suing one attorney for malpractice amounts to a waiver of the privilege as to all attorneys involved in the underlying litigation." Second, they argued that Successor Counsel was at fault because he "could have amended the complaint to add the claims he now argues [Prior Counsel] should have brought." The district court agreed, without explanation, and ordered the Krahenbuhls to comply with the Subpoena. This interlocutory appeal followed.

         ISSUE AND STANDARD OF REVIEW

         ¶6 The Krahenbuhls contend that the district court erred by determining that they had waived the attorney-client privilege as to communications between them and Successor Counsel and by ordering them to comply with the Subpoena.[2] "Whether a party has waived the attorney-client privilege is an issue of law, which we review for ...


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