Jones Waldo v. 3293 Harrison Blvd.

2023 UT App 8

THE UTAH COURT OF APPEALS

JONES WALDO HOLBROOK & MCDONOUGH PC, KENNETH A.
OKAZAKI, AND CHRISTOPHER L. PAULSON,
Appellants,
v.
3293 HARRISON BLVD. LLC,
Appellee.

Opinion
No. 20220142-CA
Filed January 20, 2023

Second District Court, Ogden Department
The Honorable Jennifer L. Valencia
No. 200906357

Kenneth B. Black, Wesley Harward, and Samuel C.
Straight, Attorneys for Appellants
Aaron R. Harris, Steven C. Smith, and Kipp S. Muir,
Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and RYAN D. TENNEY
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Kenneth A. Okazaki and his law firm, Jones Waldo
Holbrook & McDonough PC (Jones Waldo), assisted their client,
Christopher L. Paulson, (collectively, Appellants) in recording a
Notice of Lis Pendens against property located in Ogden, Utah
(the Property), which was owned by 3293 Harrison Blvd. LLC
(Harrison). At the time, Okazaki and Jones Waldo were
representing Christopher in his divorce from Trishna Paulson,
and Trishna, a member of Harrison, was attempting to sell the
Property. Harrison subsequently filed a complaint alleging
wrongful lien and intentional interference with economic
Jones Waldo v. 3293 Harrison

relations. In the course of discovery, Harrison sought documents
from Jones Waldo that Appellants alleged were protected by the
attorney-client and work-product privileges. Harrison filed two
statements of discovery issues (SODIs) 1 relating to Jones Waldo’s
compliance with the discovery requests. The district court granted
relief with respect to both SODIs. Appellants sought, and this
court granted, interlocutory review of the district court’s orders.
On appeal, we are asked to determine whether the district court
erred in granting the requested relief. Because the justification
provided by the district court in its order did not support its
decision to require production, we reverse its grant of one of the
two SODIs.

BACKGROUND

¶2 Okazaki, an attorney who worked for Jones Waldo,
represented Christopher in his divorce from Trishna. The district
court’s temporary orders in the divorce case prohibited either
party from “dissipat[ing] any marital asset outside of the regular
course of the parties’ businesses and their historical practices.”
(Quotation simplified.)

¶3 During their marriage, Christopher and Trishna organized
and were co-managers of Harrison. Harrison owns the Property.
A trust created by the Paulsons held an 89.22% membership
interest in Harrison, while the Paulsons’ four children each held a

1. Rule 37 of the Utah Rules of Civil Procedure outlines the
procedure parties must follow when seeking the court’s
resolution of a discovery dispute and a discovery order. Parties
alleging incomplete discovery responses or that responsive
documents have been withheld must first file a short “statement
of discovery issues” with the court outlining, among other things,
the relief sought and certifying that the party has in good faith
conferred or attempted to confer with the other affected parties.
Utah R. Civ. P. 37(a).

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2.695% membership interest. The Property was purchased using
premarital funds belonging to Trishna, and the operating
agreement for Harrison prohibited any equity owner from
recording a lis pendens on property owned by the company.

¶4 While the temporary orders for the Paulsons’ divorce were
in place, Harrison finalized a commercial real estate purchase
contract (the REPC) to sell the Property for $2,050,000. Upon
learning of the REPC, Okazaki, on behalf of Christopher, recorded
a Notice of Lis Pendens 2 with the Weber County Recorder and
sent a letter to the Property’s listing agent demanding that the
agent immediately withdraw any offers or acceptance of offers on
the Property. Subsequently, the buyer for the Property canceled
the REPC.

¶5 Eventually, Appellants released the lis pendens, and in the
divorce proceedings, Trishna succeeded in an unopposed motion
for summary judgment determining that the trust’s membership
interest was her separate property rather than marital property.
Harrison then sued Appellants, alleging claims for wrongfully
recording the lis pendens and intentional interference with
economic relations.

¶6 Appellants filed a motion for summary judgment on
Harrison’s claims, but the district court denied the motion. The

2. Under Utah’s lis pendens statute, “[a]ny party to an action . . .
that affects the title to, or the right of possession of, real property
may file a notice of pendency of action.” Utah Code Ann. § 78B-6-
1303(1)(a) (LexisNexis 2018). “The recording of a lis pendens
provides constructive notice to all persons that the rights and
interests in the property at issue are controverted. One who
purchases property subject to a lis pendens acquires only the
grantor’s interest therein, as determined by the outcome of the
litigation.” Jordan Constr., Inc. v. Federal Nat’l Mortgage Ass’n, 2017
UT 28, ¶ 38, 408 P.3d 296 (quotation simplified).

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court explained that, based upon the undisputed facts submitted
for purposes of the motion, it was “reasonable to infer that at the
time the Notice [of Lis Pendens] was recorded . . . , all the
[Appellants] knew the . . . Property was not an asset subject to
division in the divorce and that no legal action against it had been
filed,” and that the Notice of Lis Pendens was therefore
“groundless and consequently contained an intentional material
misstatement or false claim.”

¶7 In the course of subsequent discovery in the wrongful lien
litigation, Harrison requested that Appellants identify “each
communication between any attorney, paralegal, legal secretary,
and/or other agent of Jones Waldo” and Christopher “that related,
in any way, to the preparation and/or recording” of the Notice of
Lis Pendens (Interrogatory No. 1). Harrison also made the same
request regarding Jones Waldo’s internal communications
(Interrogatory No. 2) and requested that Jones Waldo produce all
documents identified in Interrogatory No. 1 and Interrogatory
No. 2. Jones Waldo objected to these discovery requests on the
ground that they sought information protected by the attorney-
client privilege and the attorney-work-product privilege. 3 The
parties participated in a “meet and confer” regarding Jones
Waldo’s objections, and Jones Waldo agreed to provide a limited
response to the interrogatories and to produce a privilege log of
withheld and redacted documents that it deemed privileged.

¶8 Harrison then filed two SODIs with the district court. The
first SODI alleged that Jones Waldo had refused to respond to
Interrogatory No. 1 and had not provided a privilege log
regarding communications between Jones Waldo and
Christopher. The second SODI asked the court to order Jones
Waldo to produce the requested documents and communications
on the grounds that (1) Jones Waldo waived attorney-client
privilege by denying allegations in Harrison’s complaint, (2) Jones

3. The divorce litigation was still ongoing at that time.

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Waldo had put any communications related to the lis pendens at
issue by denying the allegations in Harrison’s complaint, and
(3) the privilege does not apply to communications made in
furtherance of fraud. Both SODIs also asked for an award of
attorney fees.

¶9 Jones Waldo responded that it had, in fact, included
“multiple communications between Jones Waldo and
[Christopher]” in its privilege and redaction logs and that it had
fully responded to Interrogatory No. 1. It further explained that
the parties did not actually discuss Interrogatory No. 1 during the
meet and confer and that Harrison had never “indicated, prior to
the filing of [the first SODI], that Jones Waldo’s logs did not
contain the communications between Jones Waldo and
[Christopher].” Jones Waldo also continued to assert that the
attorney-client and work-product privileges applied to the
requested communications.

¶10 The district court did not hear oral argument on the SODIs.
Instead, it issued orders granting the relief requested by Harrison.
As to the first SODI, the court determined that Jones Waldo had
not responded to Interrogatory No. 1, “as modified by the parties’
meet and confer,” and ordered it to do so within seven days. As
to the second SODI, the court made the following determination:

[F]acts and communications related to any of the
following subjects are directly at issue in this case
and, therefore, are not protected from discovery by
the attorney-client communication and/or work
product privilege(s): [1] any Defendant’s
consideration of the Notice of Lis Pendens at issue
in this case, [2] research regarding facts and/or law
related to the Notice of Lis Pendens at issue in this
case, [3] drafting of the Notice of Lis Pendens at
issue in this case, [4] recording, or causing to [be]
recorded, the Notice of Lis Pendens at issue in this

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Jones Waldo v. 3293 Harrison

case, and/or [5] any response to any demand by
Plaintiff to remove, release, and or withdraw the
Notice of Lis Pendens at issue in this case.

As to both SODIs, the court ordered Jones Waldo to pay
Harrison’s attorney fees incurred in pursuing the court’s
resolution of the discovery issues.

¶11 Jones Waldo sought—and we granted—interlocutory
review of the district court’s determination that Jones Waldo had
not fully responded to the discovery request, its determination
that the requested documents and communications were not
privileged, and its award of attorney fees. Jones Waldo also
obtained a stay of enforcement of the court’s orders pending the
outcome of this appeal.

ISSUE AND STANDARD OF REVIEW

¶12 Appellants challenge the district court’s determination that
the attorney-client and work-product privileges do not apply in
the context of this case. “The existence of a privilege is a question
of law for the court, which we review for correctness, giving no
deference to the district court’s determination.” Chard v. Chard,
2019 UT App 209, ¶ 31, 456 P.3d 776 (quotation simplified).

ANALYSIS

I. The First SODI

¶13 On appeal, Appellants contest the district court’s ruling on
both SODIs. However, their entire argument focuses on the
applicability of the attorney-client and work-product privileges to
the discovery requested by Harrison. While this argument is
persuasive with respect to the district court’s grant of relief with
respect to the second SODI, see infra section II, it does not

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adequately address the district court’s basis for granting relief
with respect to the first SODI.

¶14 In the first SODI, Harrison alleged that Jones Waldo had
not provided “any response to Interrogatory [No.] 1, and did not
provide any log of withheld (based on privilege) communications
between Jones Waldo and Christopher.” Jones Waldo objected
that it had, in fact, responded to Interrogatory No. 1 and had
turned over a privilege log. Nevertheless, the court granted relief
with respect to the first SODI on the basis that Jones Waldo had
“not responded to [Harrison’s] Interrogatory No. 1 (as modified
by the parties’ meet and confer), and the deadline for responding
has passed.” Thus, the court’s determination on the first SODI
appears to have turned, not on the question of privilege, but on
whether Jones Waldo had provided the response to Interrogatory
No. 1 that it had agreed to provide in the parties’ meet and confer.
But Appellants’ arguments on appeal do not address this
question; rather, they focus solely on the question of privilege.
Because Appellants have not adequately addressed the basis of
the district court’s decision with respect to the first SODI, we
decline to disturb that decision. See, e.g., Carlton v. Brown, 2014 UT
6, ¶ 48, 323 P.3d 571 (declining to consider a claim on appeal
where the appellant did not “engage the district court’s analysis”
of that issue).

¶15 Appellants’ argument is likewise deficient with respect to
the district court’s award of attorney fees in relation to the first
SODI. Their attorney fee argument asserts that even if the district
court correctly granted the first SODI, it abused its discretion in
awarding fees because their position regarding privilege was
“substantially justified.” See Utah R. Civ. P. 37(7)(K) (providing
for an award of attorney fees in relation to discovery issues if a
“party, witness, or attorney did not act in good faith or asserted a
position that was not substantially justified”). However, they
have not argued that their position that Jones Waldo had
complied with Interrogatory No. 1, as modified by the meet and

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confer, was substantially justified. Thus, we have no basis on
which to reverse the district court’s award of attorney fees with
respect to the first SODI. 4

II. The Second SODI

¶16 With respect to the second SODI, the district court
determined that the attorney-client and work-product privileges
do not apply to this case and that Jones Waldo was therefore
required to produce the requested communications. However, the
only justification the district court provided for this determination
was that subjects relating to the lis pendens “are directly at issue
in this case.” 5 We do not agree that subjects generally being at

4. In the district court, Jones Waldo did argue that it had complied
with Interrogatory No. 1 and that its response to Interrogatory
No. 1 was not discussed during the meet and confer. It is unclear
why the district court did not address this assertion in its order,
but as Jones Waldo has not raised any arguments regarding the
adequacy or accuracy of the district court’s findings regarding its
compliance with Interrogatory No. 1, we are not in a position to
review the court’s finding that Jones Waldo had not responded.

5. This is a vague justification, and the court did not elaborate on
this conclusion or make any factual findings in support of it.
Appellants interpret the district court’s ruling as concluding that
the communications and work product in this case are not subject
to privilege at all and argue that we should reverse on the basis
that this conclusion was clearly in error. Harrison, on the other
hand, urges us to read the district court’s ruling as incorporating
all the arguments it made to the district court concerning waiver
and the crime/fraud exception and to infer factual findings in
support of those arguments.
We are not convinced that the district court would have
concluded that the privileges were entirely inapplicable to the
(continued…)

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Jones Waldo v. 3293 Harrison

issue in a case is a sufficient basis to disregard the attorney-client
or work-product privileges. 6

types of communications at issue in this case, as Appellants
suggest. And as we will discuss, see infra note 6, we do not believe
the district court’s decision may be reasonably read as relying on
the crime/fraud exception. Rather, the decision is most logically
read as relying on a theory of waiver, as waiver may be based on
the client placing attorney-client communication “at issue” in the
case, see Chard v. Chard, 2019 UT App 209, ¶ 63, 456 P.3d 776
(quotation simplified), and the court’s conclusion rested on the
communications being “at issue.” Accordingly, our analysis
focuses primarily on the question of whether the attorney-client
or work-product privileges were waived.

6. Harrison urges us to read the district court’s decision as
adopting Harrison’s argument that the crime/fraud exception to
the attorney-client privilege applies. See generally Utah R. Evid.
504(d)(1) (providing an exception to the attorney-client privilege
where “the services of the legal professional were sought or
obtained to enable or aid anyone to commit . . . a crime or fraud”).
However, there is nothing in the district court’s decision to
suggest that it applied that exception to defeat the privilege.
Harrison nevertheless argues that we should affirm on the
alternative basis of the crime/fraud exception. To affirm on an
alternative basis, we would have to do so on a ground or theory
that is “apparent on the record,” see Bailey v. Bayles, 2002 UT 58,
¶ 10, 52 P.3d 1158 (quotation simplified), that is, we would have
to conclude that “sufficient and uncontroverted evidence
support[s] the ground or theory” so as “to place a person of
ordinary intelligence on notice that the prevailing party may rely
thereon on appeal” and that the ground or theory is “sustainable
by the factual findings of the trial court,” see In re A.B., 2022 UT
39, ¶ 45 (quotation simplified). A ground is not apparent on the
(continued…)

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¶17 With respect to the attorney-client privilege, the Utah Rules
of Evidence provide,

A client has a privilege to refuse to disclose, and to
prevent any other person from disclosing,
confidential communications if: (1) the
communications were made for the purpose or in
the course of obtaining or facilitating the rendition
of legal services to the client; and (2) the
communications were: (A) between (i) the client . . .
and (ii) the legal professional [or] the legal
professional’s representatives . . . .

record where “further record development [is] necessary.”
Pentalon Constr., Inc. v. Rymark Props., LLC, 2015 UT App 29, ¶ 26,
344 P.3d 180.
Harrison maintains that the court made “findings” in its
earlier ruling denying Appellants’ motion for summary judgment
that should be construed as a determination that the
communications at issue were made in furtherance of a crime or
fraud. But the court did not find in its summary judgment ruling
that Appellants committed fraud—indeed, courts do not make
factual findings in ruling on motions for summary judgment. See
Larson v. Stauffer, 2022 UT App 108, ¶ 25, 518 P.3d 175; iDrive
Logistics LLC v. IntegraCore LLC, 2018 UT App 40, ¶ 51, 424 P.3d
970. Instead, it merely determined that a finder of fact could find,
considering the “facts in a light most favorable to” Harrison, that
Appellants had made “an intentional material misstatement or
false claim.” “To invoke the crime-fraud exception, a party
challenging the attorney-client privilege must make a prima facie
showing that the communication was made in furtherance of a
crime [or] fraud.” Transonic Sys., Inc. v. Non-Invasive Med. Tech.,
192 F.R.D. 710, 715 (D. Utah 2000) (quotation simplified). There is
simply nothing to suggest that such a prima facie showing was
made, much less that it was apparent on the record.

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Utah R. Evid. 504(b). However, the privilege may be waived by a
client who “discloses or consents to the disclosure of any
significant part of the matter or communication.” Id. R. 510(a)(1).

¶18 “One common way to waive the attorney-client privilege
is to place at issue in litigation matters that implicate attorney-
client communications.” Chard v. Chard, 2019 UT App 209, ¶ 63,
456 P.3d 776 (quotation simplified). This occurs “when the party
seeking application of the attorney-client privilege places
attorney-client communications at the heart of a case” and
requires that “the client assert[] a claim or defense” and attempt
“to prove that claim or defense by disclosing or describing an
attorney client communication.” Krahenbuhl v. Cottle Firm, 2018
UT App 138, ¶ 9, 427 P.3d 1216 (quotation simplified); see also
Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d
Cir. 1994) (“[A] party can waive the attorney client privilege by
asserting claims or defenses that put his or her attorney’s advice
in issue in the litigation. . . . A defendant may also waive the
privilege by asserting reliance on the advice of counsel as an
affirmative defense.”). In other words, a party “cannot invoke the
attorney-client privilege to deny [another party] access to the very
information that [party] must refute in order to succeed against”
the privilege holder’s claim or defense. See Terry v. Bacon, 2011 UT
App 432, ¶ 17, 269 P.3d 188 (quotation simplified).

¶19 Harrison asserts that Christopher “waived the attorney
client privilege by placing his attorney-client communications at
the heart of this case.” In support of this argument, Harrison
points to the allegations raised in its complaint that (1) Appellants
acted together with authority from each other, (2) recording the
lis pendens went beyond any legitimate representation of
Christopher, (3) Appellants knew or should have known that the
lis pendens was groundless, (4) Appellants lacked an honest belief
that the lis pendens was proper, and (5) Appellants’ conduct was
willful, malicious, or intentional, or it recklessly disregarded the
rights of others. Harrison then asserts that because these

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allegations formed the basis of its claims, Christopher’s denial of
the allegations put any privileged attorney-client
communications pertaining to them at issue.

¶20 We are not persuaded that a mere denial of allegations in a
complaint is enough to waive the attorney-client privilege simply
because the allegations concern matters on which confidential
attorney-client communications may shed light. The fact that a
defendant denies allegations of wrongful conduct does not
necessarily introduce into the case the contents of protected and
confidential attorney-client communications. To waive the
attorney-client privilege, the party asserting the privilege must
rely on a defense that at least requires the examination of the
confidential communications. Were we to accept Harrison’s
position, any person who engages the services of a lawyer and
discloses to their attorney confidential information pertaining to
a case in which they are a defendant would be faced with the
dilemma of either admitting all allegations raised against them in
a complaint or waiving their attorney-client privilege. This would
be an absurd result that does not comport with our caselaw on
waiver of the attorney-client privilege. While we recognize that
“the privilege which protects attorney-client communications
may not be used both as a sword and a shield,” id. (quotation
simplified), Harrison did not argue and the district court did not
find that Christopher attempted to assert the privilege as a sword
in this case. 7 So far as we can tell, Appellants’ denials of liability

7. On appeal, Harrison asserts that Christopher’s “Rule 26
disclosures of witnesses also waived any privilege because he
claims he may testify himself and call his attorneys at Jones Waldo
. . . to testify at trial about Jones Waldo’s representation and the
Lis Pendens.” However, this argument does not appear to have
been made to the district court. And given that Christopher’s
attorneys are parties to this case, we are not convinced that
disclosing them as potential witnesses necessarily has the same
(continued…)

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and of the claims of wrongful conduct have not yet injected
defenses into the case that will rely on any protected
communications. 8 And without such a finding, the court’s

impact on the attorney-client privilege as it did in Chard v. Chard,
2019 UT App 209, 456 P.3d 776, where the attorneys were not
parties to the case. See id. ¶¶ 64–65 (holding that listing attorneys
as witnesses in initial disclosures while broadly stating that they
would testify about “matters in the pleadings,” placed “the
attorneys’ knowledge—about all matters raised in the
pleadings—at issue in the litigation” (quotation simplified)). In
any event, we are unwilling to make such a determination where
this argument is unpreserved for our review.
Nevertheless, we acknowledge the possibility that, as
litigation proceeds, Christopher may raise defenses that could
waive the attorney-client privilege. Additionally, Harrison may
have other means of accessing some of the information contained
in the privileged communications, such as by deposing Okazaki
and other attorneys and asking them what they personally knew
at the time the lis pendens was recorded.

8. Harrison points to Christopher’s deposition where he refused,
on grounds of attorney-client privilege, to answer questions about
why he recorded the lis pendens and whether he relied on his
attorneys in doing so. He also stated that he had not made
decisions about the lis pendens independent of his lawyers.
Harrison asserts that these statements implicated the attorney-
client privilege and showed that he had placed his attorneys’
knowledge at issue. We disagree with Harrison’s assessment.
Harrison’s position appears to be that Christopher was required
to either answer questions about communications he claimed
were privileged or waive the privilege by refusing to answer.
Such a conclusion would render the attorney-client privilege
essentially meaningless. Moreover, we do not construe
Christopher’s statement that he did not act independently of his
(continued…)

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conclusion that the attorney-client privilege did not apply under
the facts of this case was erroneous.

¶21 Like attorney-client communications, attorney work
product “prepared in anticipation of litigation or for trial” is
subject to privilege. Utah R. Civ. P. 26(b)(6). And like the attorney-
client privilege, the work-product privilege may be waived
through disclosure. See State v. McNearney, 2005 UT App 133, ¶ 15,
110 P.3d 183. Moreover, a party seeking discovery may overcome
the privilege by showing (1) that they have a “substantial need of
the materials” and (2) that they are “unable without undue
hardship to obtain substantially equivalent materials by other
means.” Utah R. Civ. P. 26(b)(6).

¶22 We reject the district court’s conclusion that Jones Waldo’s
work-product privilege was waived due to the subject matter
being “at issue” for the same reason we reject that conclusion with
respect to attorney-client communications. Harrison also asks us
to infer that the court recognized its need of the materials and
inability to obtain equivalent materials. But we are unable to
stretch the district court’s decision that far. Even if we were to
construe the court’s finding that certain subjects were “at issue”
as a finding that Harrison had a substantial need of the privileged
materials, there is nothing in the court’s ruling that can be
construed as addressing whether Harrison was able “without
undue hardship to obtain substantially equivalent materials by
other means.” See id. Without such a finding, the court could not
readily disregard the work-product privilege.

¶23 Because the court erred in concluding that the attorney-
client and work-product privileges did not apply, its grant of the
relief requested in the second SODI was erroneous. Accordingly,

lawyers to assert a defense of good-faith reliance on counsel. See
generally Doe v. Maret, 1999 UT 74, ¶ 9, 984 P.2d 980, overruled on
other grounds by Munson v. Chamberlain, 2007 UT 91, 173 P.3d 848.

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the court also erred in awarding Harrison its attorney fees related
to the second SODI.

CONCLUSION

¶24 Because Appellants have not adequately challenged the
basis of the district court’s grant of relief with respect to the first
SODI, we decline to disturb its decision concerning that order.
However, we vacate the district court’s grant of relief with respect
to the second SODI, including its award of attorney fees, and
remand this case for further proceedings consistent with this
opinion.

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