Hernandez v. Pistotnik
| Decision Date | 23 July 2021 |
| Docket Number | 121,593,122,389 |
| Citation | 494 P.3d 203 |
| Court | Kansas Court of Appeals |
| Parties | Yudi HERNANDEZ (Stephen Brave), Appellant, v. Brad PISTOTNIK and Brian Pistotnik, Appellees. |
Stephen L. Brave, of Brave Law Firm, LLC, of Wichita, for appellant.
N. Russell Hazlewood, Donald N. Peterson II, and Nathan R. Elliott, of Graybill & Hazlewood LLC, of Wichita, for appellees.
Before Atcheson, P.J., Gardner and Warner, JJ.
This appeal challenges several postjudgment rulings the district court made regarding a protective order it entered before granting summary judgment for defendants Brad and Brian Pistotnik. But those rulings, which include sanctions against plaintiff's attorney Stephen Brave, occurred while the district court's summary judgment decision was on appeal. We must thus address a number of procedural issues, including our jurisdiction to hear this appeal. Finding we have jurisdiction, we find part of the appeal moot and find no abuse of discretion in the postjudgment sanctions orders.
Yudi Hernandez was 17 years old when she was in a car accident that left her severely injured. While she was in a coma, her father, Ernesto Hernandez, hired the Affiliated Attorneys of Pistotnik Law Offices (AAPLO) on Yudi's behalf to pursue a bodily injury claim against the drivers of the vehicles involved in the accident. Brad and Brian Pistotnik, brothers, worked as attorneys for AAPLO at the time.
Brian worked on Yudi's case and, while doing so, received settlement offers from the liability insurers of the drivers involved in the accident for $150,000. But Ernesto fired AAPLO before accepting these offers. Ernesto then hired Brave, a former AAPLO employee who had started a competing law firm. Yudi and Ernesto, through Brave, then entered into settlement agreements for the same amount previously offered to Brian.
Shortly after Ernesto fired AAPLO, Brian filed a notice of attorney's lien for the firm and served it on the liability insurers. That lien sought costs and attorney fees against any funds, proceeds, or monies payable to Yudi. Brian later sued Ernesto in 16 CV 172 to recover the amount sought in the lien. Yudi, represented by Brave, then filed this case—16 CV 285—and sued Brian and Brad for fraud and violation of the Kansas Consumer Protection Act (KCPA) based on Brad's allegedly misleading television advertisements. Brave has filed several lawsuits against Brad, Brian, and AAPLO on behalf of his clients and himself.
The district court partially consolidated those two cases (16 CV 172 and 16 CV 285) for discovery purposes. Several discovery disputes arose throughout the litigation of Yudi's case. Ultimately, the district court granted summary judgment in favor of Brad and Brian, which another panel of this court affirmed. Hernandez v. Pistotnik , 58 Kan. App. 2d 501, 472 P.3d 110, rev. denied 312 Kan. 891 (2020). Although Yudi's case has now concluded, a protective order filed during her case spawned postjudgment litigation about its enforcement. The district court's orders resolving those disputes give rise to this appeal.
Discovery disputes arose early in Yudi's case. The parties made several competing requests in the district court to either allow broad use of deposition material (Brave's position) or to preclude or limit discovery of materials and information that contained trade secrets or other confidential information (Brad's position). Brad moved for a protective order, and the district court entered a protective order limiting or precluding use of confidential materials.
Later, in anticipation of his upcoming deposition, Brad filed an amended motion for a protective order. He argued that if Brave deposed him, Brave would use the information to embarrass and harass him in other cases or to find new plaintiffs to file additional lawsuits against him. Judge David Dahl entered an amended protective order classifying Brad's deposition as confidential and prescribing the procedure for its dissemination and use. The amended protective order provided:
After Brad's deposition, Brave moved the district court in December 2016 to determine what parts, if any, of that deposition were confidential. Brad responded that Brave had made no designations, although designations were required by the protective order, so Brad refused to counter-designate any part of his deposition transcript as confidential.
At a January 2017 hearing on this issue, Brave maintained that nothing in the depositions was confidential and that the entire transcript of Brad's deposition was discoverable. Judge Dahl set the matter for a hearing in February 2017, but the record does not show that he made any decision before recusing himself from Yudi's case in December 2017.
Judge William Woolley took Yudi's case after Judge Dahl recused. But he did not consider the merits of Brave's motion to determine the confidentiality of the deposition transcript until April 2019—almost six months after Yudi appealed the court's summary judgment decision.
In August 2018, Brad moved for summary judgment on Yudi's claims. His brief in support of his motion attached as an exhibit excerpts from the parties' depositions, including his own. The district court granted summary judgment for Brad and dismissed Yudi's claims of fraud and KCPA violations.
Yudi appealed the district court's summary judgment ruling, but this court affirmed it. Hernandez , 58 Kan. App. 2d 501, 472 P.3d 110. The panel did not consider any issues related to the use of Brad's deposition, however, as neither party raised that issue in the appeal of Yudi's case. Nor did the panel rely on Brad's deposition in resolving the issues on appeal.
After Yudi perfected her appeal, Brave raised several postjudgment challenges to the protective order to try to declassify Brad's deposition and add the entire deposition transcript to the record on appeal. (On November 1, 2018, Brave filed a notice of appeal and docketing statement challenging the summary judgment ruling.) Brave maintained that the only reason he sought declassification was so he could use Brad's deposition to help make his appellate arguments in Yudi's case. But it became apparent that Brave also wanted to use Brad's deposition transcript in two of Brave's other lawsuits against Brad:
Brad objected to each of Brave's attempts to declassify the transcript or to add it to the record. He moved four times to enforce the amended protective order. We summarize those disputes below.
Brad's first motion for protective order
At a hearing in December 2018, the district court considered whether Brave could add copies of AAPLO settlement agreements, related emails, and the transcript of Brad's deposition to the record on appeal. Brave argued that the district court lacked the authority to deny an appealing party's request for additions to the record on appeal. But the district court correctly noted that it did not have to include documents that were not part of the trial record. The district court found that the settlement agreements were not a part of the trial record and denied Brave's request to add them to the appellate record.
But the district court found that Brad's deposition testimony was part of its record because it had been used as an exhibit to the parties' summary judgment filings. So the court granted Brave's request to add all of Brad's deposition transcript to the record on appeal, as long as it remained under seal.
Brad's proposed order journalizing that hearing provided, however, that only the portions of the transcript that the parties had submitted to the district court in their summary judgment filings were a part of the district court record, so only those portions would be part of the appellate record. Brave objected to the proposed order, arguing that the district court's order had included the entire transcript. The district court had to intervene and again held that Brad's entire deposition transcript could be added to the record on appeal.
But before the district court filed its written order, Brave moved a second time to allow the additions to the appellate record. He then delivered Brad's deposition transcript to the Clerk's Office in the Kansas Judicial Center for immediate filing but failed to notify the Clerk that the transcript was confidential or subject to a protective order, thus meriting protection from public dissemination. As a result, Brad's entire deposition transcript was filed without being sealed.
Brave's actions prompted the district court to sua sponte reconsider its...
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