B.E. v. Pistotnik

Decision Date23 September 2022
Docket Number124,400
PartiesB.E., Appellant, v. Brad Pistotnik, Tony Atterbury and Brad Pistotnik Law, P.A., Appellees.
CourtKansas Court of Appeals

NOT DESIGNATED FOR PUBLICATION

Appeal from Sedgwick District Court; WILLIAM S. WOOLLEY, judge.

Stephen L. Brave, of Brave Law Firm, LLC, of Wichita, for appellant.

Richard A. Olmstead, of Kutak Rock LLP, of Wichita, for appellees.

Before GARDNER, P.J., MALONE and CLINE, JJ.

MEMORANDUM OPINION

PER CURIAM.

B.E appeals the district court's grant of summary judgment to Brad Pistotnik, Tony Atterbury, and Brad Pistotnik Law, P.A. (collectively Defendants). Defendants previously represented B.E. in a tort claim against G.G. that ended with a mutual release agreement between the parties. B.E. later claimed she never signed the mutual release agreement but thought she was signing a document that would allow Defendants to withdraw as her attorneys. She claimed Defendants attached her signature to a mutual release agreement without her knowledge and consent. G.G. moved to enforce the settlement and the district court held an evidentiary hearing. After hearing sworn testimony, the district court enforced the settlement agreement, finding that B.E knowingly and voluntarily signed the mutual release agreement, and that Defendants did not obtain her signature through fraud or bad faith. B.E. appealed but this court found the district court's decision was supported by substantial competent evidence.

B.E. brought this action against Defendants alleging that they violated the Kansas Consumer Protection Act (KCPA), committed fraud, acted negligently, and breached their fiduciary duty. In her verified petition, B.E. reasserted her factual contentions that Defendants tricked her into settling the prior lawsuit by attaching her signature to the mutual release agreement without her knowledge or consent. The KCPA claim asserted that Defendants engaged in false advertising that induced her to hire Defendants in the first place. The negligence or legal malpractice claim asserted that Defendants failed to litigate her prior lawsuit within the applicable standard of care because they failed to adequately investigate her claim, take depositions, and retain an expert witness within the deadline. B.E. claimed that if not for Defendants' actions, she would have retained counsel who would have competently handled her case and obtained a judgment for her. Before completion of discovery, the district court granted summary judgment for Defendants on all claims mainly under the doctrine of collateral estoppel. After thoroughly reviewing the record and the parties' arguments on appeal, we affirm the district court's judgment in part but reverse in part and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The prior lawsuit and appeal

The facts of B.E.'s prior lawsuit were summarized by this court in her first appeal. B.E. v. G.G., No 117,924, 2018 WL 4167678 (Kan. App. 2018) (unpublished opinion). In May 2016, B.E. hired Defendants to represent her in a tort claim against G.G., alleging he transmitted HIV to her. B.E.'s case was handled by Atterbury, a lawyer in the Pistotnik law firm. G.G. filed a counterclaim against B.E. The case seemingly concluded in February 2017 when B.E. signed a mutual release agreement to settle. But B.E. then asserted that she did not wish to settle which led to G.G. moving to enforce the mutual release agreement. 2018 WL 4167678 at *1.

The district court heard arguments on the motion. B.E. asserted that she did not intend to settle, and that she only signed a piece of paper which she believed would allow Atterbury and Pistotnik to withdraw as her attorneys. She claimed that Atterbury later attached the signature page to the mutual release agreement without her knowledge. The district court noted that, although the mutual release was signed by both parties, B.E. was raising a factual defense to its enforcement. The court scheduled the matter for an evidentiary hearing on B.E.'s claims. 2018 WL 4167678 at *2.

B.E. represented herself at the hearing and testified consistent with her previous argument to the court. Atterbury testified that he developed concerns about causation issues in B.E.'s case after some discovery. He explained these issues to B.E. and informed her that he would withdraw as counsel. He offered to help her enter a mutual release agreement before withdrawing if she wanted to do so. Atterbury testified that B.E. met with him and his legal assistant, Barbara Cooper, on February 13, 2017. According to Atterbury, B.E. decided to go through with the mutual release agreement at this meeting. Atterbury testified that he read through the mutual release with B.E. and Cooper notarized her signature. Cooper corroborated Atterbury's testimony. 2018 WL 4167678 at *3.

The district court granted G.G.'s motion to enforce the settlement and dismissed the case with prejudice. The district court found that B.E. voluntarily signed the agreement, and her signature was not obtained through fraud or bad faith. On appeal, this court determined that the district court's factual findings were supported by substantial competent evidence and affirmed the district court's judgment. 2018 WL 4167678 at *5.

The current lawsuit

On July 20, 2018, B.E. filed the current lawsuit against Defendants. In her verified petition, B.E. claimed she hired Pistotnik and Brad Pistotnik Law, P.A. because of their ubiquitous advertising in the Wichita area. Her petition included several pages describing these advertisements and screenshots of some of the advertisements. B.E. also explained why she believed each advertisement misrepresented the amount recovered in each case. As for the February 13, 2017, meeting with Atterbury, B.E. alleged:

"118. The February 13, 2017 [meeting] took place as scheduled but was 'an hour of confusion' where Defendant Atterbury again urged her to dismiss the case.
"119. Again, Plaintiff told Defendant Atterbury that she was not interested in dismissing the case and she planned to pursue it.
"120. Plaintiff stated she believed that the purpose of the meeting was for 'releasing Tony' and the Defendants from further representing her and she signed what she thought was a form that allowed them to withdraw as her counsel.
"121. The paper that the Plaintiff was asked to sign, and did sign, was not attached to anything and it [Atterbury] represented to her that it was simply a form authorizing the Defendants to withdraw.
"122. Unbeknownst to the Plaintiff, the form that she signed would be attached to the Release that [G.G.'s] attorney had sent to Defendant Atterbury after he had verbally agreed to dismiss the Plaintiff's case."

After setting forth the factual assertions, B.E.'s petition brought four claims against Defendants-violations of the KCPA, fraud, negligence, and breach of fiduciary duty. The KCPA claim alleged Defendants engaged in false and misleading advertising. She asserted Defendants inflated the amount of money they recovered for clients in their advertisements. B.E. asserted the advertisements duped her into hiring Defendants and had she not done so, it was "virtually certain that she would have retained counsel that would have competently handled her case and she would have obtained a judgment in her favor instead of having her counsel verbally agree to dismiss it without her approval."

The fraud claims also stemmed from Defendants' alleged false advertisement. B.E. also alleged that Defendants committed fraud by concealing the fact that they had retained no expert witnesses to support her claim by the expert disclosure deadline. And she alleged that Defendants fraudulently induced her to dismiss her claims by settling without her knowledge or consent. She claimed they settled to conceal the negligent way in which they handled her case.

For her negligence claims, B.E. alleged that Defendants failed to litigate her case within the applicable standard of care. She cited Defendants' failure to adequately investigate her claim, take depositions, search for and hire an expert witness, deciding that they would no longer litigate her claim only after the expert deadline had passed, entering into a verbal settlement agreement without her consent, and failing to provide her case file to new counsel. B.E. did not elaborate on her claim for breach of fiduciary duty beyond stating that the breach was shown by the facts set forth in her petition.

Defendants moved to dismiss based on the pleadings, asserting that B.E.'s claims were barred by collateral estoppel because she could not prove damages based on the district court's findings about how the prior case settled. After hearing arguments of counsel, Judge David Dahl granted the motion to dismiss the KCPA claims against Atterbury because the pleadings did not sufficiently allege that he engaged in misleading advertising. Judge Dahl otherwise denied the motion, finding it would be "premature to dismiss the case at this point." But Judge Dahl observed that dismissal may be proper "after the close of discovery." Judge Dahl also commented that based on his review of the pleadings, collateral estoppel may not be "applicable" because the parties were not the same and it appeared that different claims were being made in the two lawsuits.

At some point, the case was administratively reassigned from Judge Dahl to Judge Deborah Hernandez Mitchell, and then to Judge William Woolley. B.E. objected to the case being reassigned and asked for it to be returned to Judge Dahl, but Judge Woolley denied her motion for reassignment.

The case proceeded to discovery and B.E. provided a sworn deposition. As in the prior case, B.E. testified that Atterbury tricked her into signing the mutual release...

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