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Nylen v. Nylen

Supreme Court of South Dakota

December 16, 2015

MOLLY R. NYLEN and BRENDON W. NYLEN, Plaintiffs and Appellees,
v.
MARY ELLEN NYLEN, Defendant and Appellant

Argued October 5, 2015.

As corrected March 4, 2016.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT UNION COUNTY, SOUTH DAKOTA. THE HONORABLE STEVEN R. JENSEN, Judge.

DAVID A. TANK of Dorsey & Whitney LLP, Des Moines, Iowa and DANIEL R. FRITZ, NICOLE O. TUPMAN of Lindquist & Vennum, PLLP, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellees.

STEVEN L. PIER, THOMAS P. REYNOLDS, CRAIG A. KENNEDY of Kennedy, Pier, Knoff, Loftus, LLP, Yankton, South Dakota Attorneys for defendant and appellant.

ZINTER, Justice. GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN, Justices, concur.

OPINION

Page 77

ZINTER, Justice

[¶1] During the time that Mary Ellen Nylen was involved in three lawsuits, she talked and shared documents with a friend who was an attorney. Mary Ellen later claimed that the discussions and documents were privileged attorney-client communications. The circuit court ruled that the privilege applied until Mary Ellen could no longer reasonably believe she was the attorney's client. The court also ruled that Mary Ellen waived the privilege to the extent that she shared otherwise privileged documents with her friend. We affirm.

Facts and Procedural History

[¶2] In 1991, Sioux City attorney Irene Schrunk represented Mary Ellen in a divorce. Over the ensuing years, Schrunk and Mary Ellen developed a friendship and communicated regularly about various matters. Schrunk was also involved with Mary Ellen's will, she provided legal services to Mary Ellen's subsequent husband (Mark Nylen), and she participated on the board of the Mark and Mary Ellen Nylen Foundation.

[¶3] In 2013, family problems involving Mary Ellen and her children spilled over to marital problems between Mary Ellen and Mark. Because of these problems, Mary Ellen moved out of her California home in December 2013. She also contacted Schrunk for legal advice because she expected Mark would file for divorce. On January 1, 2014, Mark served Mary Ellen with a summons and complaint for divorce. That same day, Mary Ellen went to Schrunk's personal residence. During their conversation, Schrunk advised Mary Ellen that Schrunk could not represent her because Schrunk had represented Mark in the past.

[¶4] On July 31, 2014, Molly and Brendon Nylen (Mary Ellen's adult children) commenced the action that underlies this appeal against Mary Ellen. They sought a declaration that in December 2013, Mary Ellen had gifted them personal property. Molly also filed an action for a restraining order against Mary Ellen in California.

[¶5] On November 18, 2014, Molly and Brendon's attorney deposed Mary Ellen in this gift dispute. The following exchange occurred regarding Schrunk's purported ...


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