Civil Practice & Procedure

Editor: 

John S. Sandberg, Esquire Filing of late notice of appeal not allowed in statutory proceedings such as unemployment claims; Supreme Court Rule 81.07 does not apply. Williams  v. Labarge Products, Inc. and Division of Employment Security, No. 96161 (Mo. App. E.D., March 22, 2011), Richter, CJ.
In this appeal, claimant appealed from a decision of the Labor Industrial Relations Commission which reversed the appeals tribunal's decision to award unemployment benefits to the Claimant.  Claimant admittedly filed a late Notice of Appeal, claiming the decision of the Commission was not received in a timely fashion because his girlfriend held his mail out of an act of revenge. Held:  Appeal dismissed. 
The unemployment statute set forth stringent guidelines for the filing of the notice of appeal and made no provision for filing a late notice of appeal, so the provisions of Supreme Court Rule 81.07 do not apply to special statutory proceedings such as unemployment claims.

A pleading of "acting without malice" in a malicious prosecution case does not constitute a waiver of attorney/client privilege. Discussion of procedure when privilege against self-incrimination is waived.  State ex rel. Behrendt v. Honorable Neill, Twenty-Second Judicial Circuit, City of St. Louis, Missouri, No. 95541 (Mo. App. E.D., March 15, 2011), Scott, J.
In this original proceeding in prohibition the Relators are defendants in malicious prosecution case pending before Respondent in which it is alleged that two federal lawsuits were filed without legal or factual basis.  The federal cases were dismissed and this malicious prosecution case followed.  The plaintiffs in the malicious prosecution case obtained partial summary judgment with the only remaining issue being whether the federal lawsuits were instituted maliciously.  Plaintiffs subpoenaed the other documents about the lawyer for the Relators' investigation.The subpoena was quashed when the Relators waived their right to assert the advice of counsel as a defense.  Plaintiffs then moved for production of e-mails between Relators and their lawyer claiming Relators had waived their attorney/client privilege by pleading an affirmative defense that they acted reasonably and without malice, and admitted to opposition that they relied on their lawyer.  Respondent agreed and this prohibition followed.
Held: Prohibition made absolute.
The fact that Relators pleaded that they acted without malice did not waive the attorney/client privilege, because malice is an element of the plaintiffs' malicious prosecution case, not the defendants'.  Secondly, they did not lose the privilege by answering opposing counsel's deposition question because waiver extorted in a cross-examination is not voluntary.  Finally, the plaintiffs argued the fraud exception to the attorney/client privilege.  The court held this is an open question under Missouri law and the court did not reach the issue in this case because here the plaintiffs were not claiming they were defrauded but instead, claim a fraud was perpetrated on the federal court.

The Missouri Bar Courts Bulletin, 11-May