Punturo v. Kern

BRYAN PUNTURO, FAWN PUNTURO, and B&A HOLDINGS, LLC d/b/a PARKSHORE RESORT LLC, Plaintiffs-Appellees, v. BRACE KERN, Defendant-Appellant, and SABURI BOYER and DANIELLE KORT f/k/a DANIELLE BOYER, Defendants.

Nos. 359612, 359676

Court of Appeals of Michigan

January 26, 2023

UNPUBLISHED

Grand Traverse Circuit Court LC No. 2017-032008-CZ

Before: RIORDAN, P.J., and MARKEY and REDFORD, JJ.

PER CURIAM.

In Docket No. 359612, defendant Brace Kern appeals by leave granted the trial court's December 7, 2021 order denying his motion for a protective order and directing him to appear inperson for his deposition. In Docket No. 359676, Kern appeals by leave granted the trial court's December 7 2021 order denying his motion to disqualify plaintiffs' counsel Jonathan Moothart. On appeal, Kern argues that the trial court erred by not allowing him to be remotely deposed due to his COVID-19 concerns and by declining to disqualify Moothart because Moothart is a necessary witness in this matter. We disagree on both counts. Therefore, we affirm the trial court and remand to that court for further proceedings.

I. FACTS

On February 16, 2017, plaintiffs filed their complaint against defendants, alleging as follows. Plaintiff Bryan Punturo ("Punturo") is a 50% owner of Parkshore Resort, a hotel and conference facility, and his spouse, plaintiff Fawn Punturo is employed by Parkshore Resort. In 2014, defendant Saburi Boyer ("Boyer") attempted to eliminate competition for his nearby parasailing business, and his activities in this regard included signing an agreement with Punturo providing that the Punturos would not operate a competing parasailing business in the area. Shortly thereafter, Boyer became "financially overextended" and stopped making required payments to the Punturos pursuant to that agreement. When Boyer defaulted on the payments, Punturo threatened to, and then eventually did, commence a legal action against Boyer. Boyer, on the advice of his counsel defendant Brace Kern, contacted the Grand Traverse Prosecutor Office and the Michigan Attorney General, accusing Punturo of violating the Michigan Antitrust Reform Act (MARA), MCL 445.711 et seq. This led to a criminal investigation against Punturo, which was covered by media outlets, and eventually the Attorney General filed a criminal extortion charge against Punturo. In addition, Kern "aggressively talked" to the media about the case and filed a civil action on behalf of Boyer against Punturo, which alleged violations of MARA. Both the criminal and civil cases were subsequently dismissed. In the matter before us now, the Punturos sought damages exceeding $25,000 from defendants, claiming that defendants made defamatory representations to the media about the events at issue.

In March 2017, defendants moved for summary disposition, essentially arguing that Kern and Boyer gave legitimate statements of opinion to the media or otherwise provided fair and accurate reports of matters contained in the public record. The trial court denied the motions for summary disposition, and after granting leave to appeal, this Court affirmed. Punturo v Kern, unpublished per curiam opinion of the Court of Appeals, issued October 16, 2018 (Docket Nos. 338727, 338728, 338732). Our Supreme Court directed oral argument on the application but ultimately denied leave to appeal. Punturo v Kern, 506 Mich. 1009 (2020).

Facts Relevant to Docket No. 359612

On September 22, 2021, plaintiffs noticed Kern's deposition for November 30, 2021, stating that the deposition would be conducted at the board room of the Cambria Suites Hotel in Traverse City and that "there will be room enough for social distancing and wearing masks is acceptable."

On November 10, 2021, Kern moved for a protective order, requesting that his deposition be conducted virtually. The motion explained that "Mr. Kern has two small daughters at home -the oldest is three and a half years old and the baby is eight months old - who cannot be vaccinated, on account of whom Mr. Kern takes significant precautions, both professionally and personally, to protect his family from COVID-19." The motion added that all previous court hearings, as well as "certain depositions," have been conducted by Zoom without objection from plaintiffs. The motion argued that the trial court should order Kern's deposition be conducted virtually "to mitigate the risk to Mr. Kern's family."

On November 19, 2021, plaintiffs filed a response, arguing that Kern previously had been uncooperative with respect to depositions; that Kern was recently photographed at an outdoor restaurant table with a few other people, thus showing that his purported concern with COVID-19 was exaggerated; and that "[i]t is important to Plaintiffs to take this deposition in person due to the documents and subject matter involved." Plaintiffs added that all participants would wear masks to protect against the spread of COVID-19 if Kern requested it.

On November 22, 2021, the trial court held a Zoom hearing to consider the matter. At the hearing, the trial court asked Kern's counsel whether there was "anything special" about the children that made them susceptible to COVID-19, and counsel indicated that the only concern was their vaccination status. The trial court ruled in favor of plaintiffs with the following exchange:

The Court: . . . I don't for a minute believe that Mr. Kern needs to be protected from in-person contact just because he's got little kids. Lots of people have little kids. If you're to pick any age group that has less - the least exposure, it's little kids. So this is ridiculous.

This is - on the other hand, there's no good reason not to do it by Zoom. What's the problem?

Mr. Moothart: The problem, your Honor, is that I've got a lot of documents that I'm going to want to show them. I don't want to have to give them to them in advance, and I don't want to have to scroll them up and down the screen on - on a Zoom call.

* * * The Court: . . . I've done - we've done several non-jury trials by Zoom. And I try - we don't do that anymore, because it is logistically complex and difficult; and inevitably something gets lost that can't be presented. It's not the way to do it.

I don't see any reason why it should be - he is the key witness - a key defendant, Mr. Kern, and I think that an opportunity to show him documents and question him about it is appropriate. So I'll order that it occur in person. I will order that all - all people present must wear a mask.

On December 7, 2021, the trial court entered an order providing that "Kern's deposition shall proceed in person and not remotely, with all participants wearing a mask and remaining six feet apart."

Two days later, Kern moved to stay the deposition pending an appeal. On December 16, 2021, the trial court denied the motion. On December 17, 2021, Kern filed an application for leave to appeal and a motion to stay his deposition. The same day, this Court granted the motion to stay. Punturo v Kern, unpublished order of the Court of Appeals, entered December 17, 2021 (Docket No. 359612). We later granted the application. Punturo v Kern, unpublished order of the Court of Appeals, entered January 31, 2022 (Docket No. 359612).

On July 8, 2022, plaintiffs moved to dismiss the appeal as moot because the CDC had recently approved two COVID-19 vaccines for children six months or older.^[1] We denied the motion. Punturo v Kern, unpublished order of the Court of Appeals, entered August 12, 2022 (Docket No. 359612.)

Facts Relevant to Docket No. 359676

On August 13, 2021, Kern moved to compel the deposition of Moothart, in significant part regarding telephone communications between the two about a potential settlement of the earlier case, or alternatively rule in limine that plaintiffs could not introduce "any evidence or argument of the settlement discussions in the Anti-Trust Case" because Moothart was a necessary witness in that regard. In the motion, Kern explained as follows:

2. Plaintiffs' theory of the case as pled in their Complaint turns on several events directly involving their attorney Jonathan Moothart:

a. Mr. Moothart filed the lawsuit for breach of the contract that is at the heart of the statements at issue.

b. The Michigan Attorney General contacted Mr. Moothart to notify him that Punturo was being investigated "for criminal antitrust activity."

c. Mr. Moothart defended Punturo in the civil action the Boyers filed against Punturo ("Anti-Trust Case") and was responsible for the litigation strategy in that case.

d. Mr. Moothart was the recipient of the allegedly "extortionate" settlement demand in the Anti-Trust Case that Punturo asserts is evidence of Mr. Kern's malicious intent.

e. Mr. Moothart initiated and surreptitiously recorded a call with Mr. Kern about the settlement demand in the Anti-Trust Case.

f. Mr. Moothart was the recipient of an email repeating the allegedly extortionate settlement demand.

g. Mr. Moothart provided the Attorney General with a transcript of the recording of the allegedly "extortionate" settlement demand.

3. In his deposition, Punturo admitted he had no personal knowledge of the phone call or email or of his counsel providing the email and recording of the call to the Attorney General....[Citations omitted.]

Accordingly Kern argued, plaintiffs "must either allow Mr. Moothart to be a witness subject to discovery or agree not to introduce at trial any argument or evidence of the 'extortionate' settlement negotiations."

In response, plaintiffs argued that Kern failed to satisfy his burden of showing that a deposition of opposing counsel was warranted due to "need and propriety." Plaintiffs stated that they had a voice identification expert, Barry Dickey, who would testify at trial that...