STATE OF MINNESOTA

IN COURT OF APPEALS

A06-642

Stephanie A. Boldt,
Respondent,

vs.

Margaret Burns,
Appellant,
and
Professional Administration Corporation, et al., nominal defendants,
Appellants,
and
Stephanie A. Boldt,
Respondent,

vs.

Mahoney & Hagberg, et al.,
Appellants.

Filed April 10, 2007

Affirmed

Stoneburner, Judge

Hennepin County District Court

File No. 03-16797

William R. Skolnick, Sean A. Shiff, Skolnick & Associates, P.A., 2100 Rand Tower, 527 Marquette Avenue South, Minneapolis, MN 55402 (for respondent)

Michael C. Mahoney, Mahoney & Foster, Ltd., 539 Lake Street East, Wayzata, MN 55391 (for appellants)

Considered and decided by Minge, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

U N P U B L I S H E D O P I N I O N

STONEBURNER, Judge

Appellants challenge the district court’s orders requiring production of information and documents that were sealed as a part of the settlement of previous lawsuits. Respondent asserts that the issue is moot because the documents have already been disclosed in another pending lawsuit. As to the documents disclosed, we conclude that the issue is moot, but as to any information or documents covered by the district court’s order and not yet disclosed, we affirm.

FACTS

In this protracted litigation, respondent Stephanie A. Boldt is suing to recover money that she claims she is owed by reason of her past association with Professional Administration Corporation and its purported successor, Professional Administration, LLC (PAC/PAL). Boldt and appellant Margaret Burns, through PAC/PAL, provided office support to the law firm of Mahoney & Hagberg, P.A., under a 1997 contract that provided for compensation to PAC of “a monthly management fee equal to twenty-five percent (25%) of [the law firm’s] revenues.” Boldt brought derivative actions on behalf of PAC/PAL against Burns, PAC/PAL, and Mahoney & Hagberg, P.A. and its successor (law firm) alleging that under the contract, PAC/PAL was entitled to a share of the contingency fees earned by law firm in two cases, Johnson v. City of Minneapolis and Siegel v. City of Minneapolis, which were ultimately consolidated and decided by the Minnesota Supreme Court in 2003. See Johnson v. City of Minneapolis, 667 N.W.2d 109 (Minn. 2003). Boldt asserts that by reason of her ownership interest in PAC/PAL, she is entitled to some of those fees.

Appellants have repeatedly asserted that Boldt’s actions are precluded under the settlement agreement reached in the litigation between Michael Mahoney (Burns’s father) and Steven Hagberg (Boldt’s father) when Hagberg, who left law firm in 2003, sued Mahoney seeking to recover a portion of the fees resulting from the substantial award Mahoney received in Johnson and Siegel. But appellants have simultaneously asserted that the terms of the settlement and all information and documents associated with the settlement were sealed by the district court’s order containing the terms of the settlement. Michael Mahoney has asserted that the confidentiality order in that settlement and related orders preclude any party—including himself—from disclosing the amount of the fees recovered and any information relating to disbursements of the fees. Boldt has continually sought to compel production of this disputed discovery.

On March 22, 2006, the district court issued two orders, one denying appellants’ motion for summary judgment and the other setting scheduling deadlines. In the order denying summary judgment, the district court stated:

To the extent that any court order in another case requires that documents submitted in that other case are sealed and unavailable in this case, that order is modified to permit full use of those other documents and information in this case. However the parties and their attorneys are not to disclose that information except to persons who have a need to know in connection with those cases.

In the incorporated memorandum, the district court stated that it reviewed the orders that appellants rely on and does not read those orders as precluding disclosure in these cases. The district court identified the orders reviewed as the orders of Judge Catherine Anderson (a) in the Siegel case dated October 23, 2003; (b) in the Johnson case dated October 23, 2003; (c) [settlement order in the Hagberg v. Mahoney case], dated September 16, 2004; (d) in the Bushaway case dated March 1, 2005; and (e) in the Hagberg v. Mahoney case, File No. 03-15198, dated March 1, 2005. Only the order in the Siegel case dated October 23, 2003, was provided to this court by appellants.

In the scheduling order, the district court stated:

To the extent that any prior order of another judge in Hennepin County could be interpreted to preclude disclosure in this case of the award and recovery in the cases of Johnson v. City of Minneapolis and Siegel v. City of Minneapolis, that order is modified to require that the award and recovery, and all documents showing the award, recovery, and disbursements to attorneys be disclosed by Mr. Mahoney in an affidavit attaching the relevant documents to verify the gross recovery and the fees and expenses that were paid from that recovery. That affidavit with the attached documents shall be furnished to [Boldt’s attorney] and to the undersigned judge on or before 4:30 p.m. on March 31, 2006. [Boldt’s attorney] and [Boldt] shall make no disclosure of that information except to persons who have a need to know in connection with this litigation.

To the extent that any prior order of the Hennepin County District Court would expressly or arguably seal any other document or information which would not otherwise be privileged (such as an attorney-client communication), that order is modified to require production of that document and disclosure of the alleged sealed information, if the document or information has been requested in discovery, ordered produced by the Court, or ordered produced by the Special Master (Mark Gehan).

This appeal from both orders followed.

Boldt moved to dismiss the appeal, arguing that because the order of Judge Anderson dated September 16, 2004, with attachments was filed in district court in connection with another lawsuit, the appeal of the disclosure orders in this case is moot, and appellants’ remaining claims are not appealable on an interlocutory basis. Appellants opposed dismissal and moved to strike the September 16, 2004 order and attachments, which were attached to Boldt’s motion, and to seal the appellate record. By special-term order, this court denied Boldt’s motion to dismiss the appeal of the disclosure orders, deferred the issue of mootness to the panel, and dismissed the remainder of the appeal. Appellants’ motion to strike and to seal the appellate record was denied, and Judge Anderson’s September 16, 2004 order and attachments were accepted for the purpose of determining the issue of mootness.

D E C I S I O N

I. Mootness

Boldt asserts that appellants’ challenge to the modification of Judge Anderson’s protective orders is moot because the settlement agreement and documents that appellants assert were protected by Judge Anderson’s September 16, 2004 order (the settlement order) have since become public. The determination of whether a cause of action is moot presents a question of law, which is reviewed de novo. Isaacs v. Am. Iron & Steel Co., 690 N.W.2d 373, 376 (Minn. App. 2004), review denied (Minn. Apr. 4, 19, 2005). An appeal is moot if an appellate court cannot provide effectual relief. Chaney v. Minneapolis Comty. Dev. Agency, 641 N.W.2d 328, 332 (Minn. App. 2002) (citing In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989)), review denied (Minn. May 28, 2002). This court will decide only actual controversies and will not issue advisory opinions. In re McCaskill, 603 N.W.2d 326, 327 (Minn. 1999). When an appeal is pending, if an event occurs that makes a decision on the merits unnecessary or an award of effective relief impossible, the appeal should be dismissed as moot. N. States Power Co. v. City of Sunfish Lake, 659 N.W.2d 271, 274 (Minn. App. 2003), review denied (Minn. June 25, 2003). Courts consider “mootness a flexible discretionary doctrine, not a mechanical rule that is invoked automatically.” Kahn v. Griffin, 701 N.W.2d 815, 821 (Minn. 2005) (quotation omitted).

The settlement order states in part: “the undersigned shall retain jurisdiction over this matter and any enforcement of these agreements and this Order [and] . . . this Order and the agreements contained herein shall remain sealed and confidential.” But the settlement order provided for disclosure as permitted by an order of the court, on notice by any party with provisions for an objection by other parties. Because the information has been disclosed, all issues pertaining to disclosure of the settlement order are moot.

Appellants assert that the appeal is not moot because there is additional protected information that has not been made public. The settlement order only pertains to the order itself and “the agreements contained herein.” Therefore, the settlement order does not purport to seal or make confidential the additional information that appellants argue should be sealed and confidential. Appellants have not identified any order that they rely on to argue that such additional information has been ordered sealed and not subject to disclosure by order of the court. The only other order provided to this court, Judge Anderson’s order in the Siegel matter dated October 23, 2003, permits disclosure of the sealed documents with permission “of the Court,” which has been provided by the disclosure order now on appeal. But because, on this record, we are not able to conclude definitively that all of the disputed discovery has been disclosed, we will address the merits of appellants’ arguments regarding the disclosure orders in this case.

II. Modification of protective orders

Appellants first argue that Boldt did not follow the proper procedure in seeking review of the previous confidentiality orders. Procedure is a legal issue reviewed de novo. Barrera v. Muir, 553 N.W.2d 104, 108 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996) (stating that procedural questions are reviewed de novo).

Appellants assert that the proper procedure for a party seeking review of an order sealing information is to move to intervene in the action in which the order was issued and then move for relief from the order. Appellants’ reliance on Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197 (Minn. 1986), for this proposition is misplaced. In Star & Tribune Co., the procedure in district court to challenge the sealing of records was not at issue. And although the Star & Tribune Co. decision discussed third-party intervention, it does not purport to limit the manner of obtaining relief from such orders. Id. at 201-202, 207-209. We find no merit in appellants’ unsupported argument that there is a fatal procedural error in this case.

Appellants next argue that the district court is without authority to modify a final order of another judge of the district court and that the disclosure orders constitute an impermissible collateral attack on the prior protective orders. Appellants rely on Davis v. Danielson, 559 N.W.2d 286, 287-88 (Minn. App. 1997), review denied (Minn. Mar. 18, 1997). Davis involved an action by pro se litigants against a judge to enjoin him from enforcing protective orders that the judge had issued prohibiting them from contacting certain people directly, rather than through counsel, about their pro se lawsuit against Group Health Plan, Inc. Id. at 287-88. We held in Davis that the appellants’ action against the judge was an impermissible collateral attack because the judge had jurisdiction to issue the order and the order was directly appealable. Id.at 288.

But the confidentiality provisions in this case specifically provide for disclosure with permission of the court and are not limited to permission from the judge who issued the orders. The request for disclosure in this case is not a collateral attack on the prior orders, but merely a request to the court for permission to disclose, which is provided for in the orders.

Appellants assert that they were denied a hearing before the challenged orders were issued. But the record indicates that a hearing on appellants’ summary-judgment motion was held in which disclosure was argued. After the hearing, the judge who presided at the hearing recused himself because of a conflict that suddenly arose due to a change of counsel. The file was transferred, with notice to the parties that the recusing judge would provide a detailed memorandum on the background of the case to the judge to whom the case was transferred and who issued the challenged orders. There is no indication in the file that any party requested additional argument. We find no merit in appellants’ claim that they were denied a hearing.

Appellants also argue that apart from the issue of collateral attack, Minnesota courts have “been loathe to disclose private settlement documents to the public.” But the current orders specifically preclude disclosure to the public and limit disclosure to those having a “need to know” in connection with this case.

“[T]he trial judge has wide discretion to issue discovery orders and, absent clear abuse of that discretion, normally its order with respect thereto will not be disturbed.” Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990). We conclude that, to the extent that the issue of disclosure of the disputed discovery is not moot, the district court did not abuse its discretion or commit any error in its order compelling discovery in this case.

Affirmed.