Desiree Durga v. Memberselect Insurance Company

Appeal Dismissed and Memorandum Opinion filed August 12, 2025. In The Fifteenth Court of Appeals NO. 15-25-00092-CV BRIGHT HEALTH MANAGEMENT, INC., Appellant V. CANTILO & BENNETT, L.L.P., SPECIAL DEPUTY RECEIVER OF BRIGHT HEALTHCARE INSURANCE COMPANY OF TEXAS, Appellee On Appeal from the 455th District Court Travis County, Texas Trial Court Cause No. D-1-GN-23-008361 MEMORANDUM OPINION The underlying case is an insurance receivership proceeding under Chapter 443 of the Texas Insurance Code, in which the Texas Department of Insurance (TDI) sought and placed Appellant Bright Health Management, Inc.’s subsidiary, Bright Health Insurance Company of Texas (BHICOT), into liquidation. Bright Health Management attempts to appeal the trial court’s May 6, 2025, order (the Order) that enforces a permanent injunction that was entered over two years ago and that requires Bright Health Management to produce certain books and records of BHICOT to the Special Deputy Receiver, Appellee Cantilo & Bennett, LLP (the Receiver). We issued a letter notifying the parties this appeal was subject to dismissal for want of jurisdiction because the record does not contain either a final judgment or an appealable interlocutory order unless any party filed a response showing meritorious grounds for continuing the appeal. See Tex. R. App. P. 42.3(a); Tex. Civ. Prac. & Rem. Code § 51.014(a); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Both parties submitted briefing on jurisdiction. After reviewing the parties’ briefing, the record, and the applicable law, we conclude we do not have jurisdiction and dismiss the appeal for want of jurisdiction. BACKGROUND In November 2023, the trial court signed an order appointing the Commissioner of the TDI as Liquidator of BHICOT and entered a permanent injunction ordering Bright Health Management to, among other things, promptly surrender BHICOT’s property to the Liquidator. The November 2023 order further authorized appointment of the Receiver to perform the Liquidator’s functions. Bright Health Management did not appeal the November 2023 order or the permanent injunction. A dispute later ensued regarding the practicalities and cost of turning over electronically stored documents that relate to BHICOT to the Receiver. The Receiver eventually filed a Motion to Enforce the Permanent Injunction and Bright Health Management filed a Response and Cross-Motion for Entry of Order 2 Governing Electronically Stored Information (ESI Cross-Motion). A hearing was held before the court-appointed Special Master, who issued a recommendation to the trial court. On May 6, 2025, the trial court confirmed the Special Master’s recommendation, granted the Receiver’s Motion to Enforce, denied Bright Health Management’s ESI-Cross Motion, and ordered Bright Health Management to produce certain categories of BHICOT documents to the Receiver. This appeal followed.1 DISCUSSION Bright Health Management first argues the Order is an appealable, interlocutory order because it “functions as a temporary injunction,” or alternatively, is an order that modifies an order appointing a receiver. See Tex. Civ. Prac. & Rem. Code §§ 51.014(a)(1), (a)(4). We disagree. The Order simply enforces the November 2023 permanent injunction that requires Bright Health Management to promptly surrender BHICOT’s property. It does not grant any modified or additional authority to the Receiver. Bright Health Management next argues the Order is a final judgment because it resolves all issues between Bright Health Management and the Receiver regarding production of documents. We disagree that this characterization of the Order, even if correct, renders the Order a final, appealable judgment. The underlying proceeding is an insurance receivership, and the Order does not dispose of all parties and claims in the receivership action. See Lehmann, 39 S.W.3d at 1 Bright Health Management contemporaneously filed a mandamus action challenging the Order, which we denied. In re Bright Health Mgmt., Inc., No. 15–25–00108–CV, 2025 WL 1872554, at *1 (Tex. App.—15th Dist. July 8, 2025, orig. proceeding). 3 195. There are certain discrete decisions by insurance receivership courts that are considered final, appealable judgments, but the Order at issue here is not one of those. See Tex. Ins. Code §§ 443.055 (order on petition commencing delinquency proceedings); 443.257(c) (final disposition of a disputed claim). Accordingly, we dismiss the appeal for want of jurisdiction. See Tex. R

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 20-JUN-2025 07:58 AM Dkt. 63 SO NO. CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI‘I MERVINA KAUKINI MAMO CASH-KAEO, Plaintiff-Appellee, v. GUY K. BARRETT; RONETTE BARRETT, Defendants-Appellants, DUSTIN K. BARRETT; SHEENA ANN BARRETT; RICHARD BARRETT; LEZLEY K. BARRETT aka LEZLEY BRADBURY, Defendants-Appellees, and JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 1-10; DOE CORPORATIONS 1-10; and DOE ENTITIES 1-10, Defendants APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT WAI‘ANAE DIVISION (CASE NO. 1DRC-XX-XXXXXXX) SUMMARY DISPOSITION ORDER (By: Hiraoka, Presiding Judge, Nakasone and Guidry, JJ.) Defendants-Appellants Guy K. Barrett and Ronette Barrett (collectively, the Barretts) appeal from the District Court of the First Circuit's (district court)1 May 17, 2022 Judgment for Possession. They raise three points of error, contending that the district court abused its discretion when: 1 The Honorable Darolyn H. Lendio entered the Judgment for Possession. The Honorable Michelle N. Comeau presided over the April 26, 2022 hearing on Plaintiff-Appellee Mervina Kaukini Mamo Cash-Kaeo's (Cash- Kaeo) motion for summary judgment (MSJ).  NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER (1) "it defaulted [the Barretts] for [their] non[-]appearance [at the MSJ hearing] where the facts show [the Barretts had] defended themselves in this action by retaining counsel" who "made eight court appearances at hearings in defense of [the Barretts]"; (2) "it applied the extreme sanctions methodology" by entering default judgment against the Barretts "for the failure of their counsel to appear at the hearing on [Cash- Kaeo's] [MSJ]"; and (3) "it allowed the hearing on [Cash-Kaeo's] [MSJ] to proceed without first addressing [counsel's] non[- ]appearance at this hearing." Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised, we resolve the Barretts' appeal as follows. The Barretts contend that the district court entered default judgment against them pursuant to District Court Rules of Civil Procedure (DCRCP) Rule 55. The record reflects, however, that the district court entered the May 17, 2022 Judgment for Possession against the Barretts because Cash-Kaeo demonstrated she was entitled to summary judgment as a matter of law under DCRCP Rule 56. Pursuant to DCRCP Rule 56(c), a motion for summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 2  NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." We review the grant or denial of summary judgment de novo. Kanahele v. State, 154 Hawaiʻi 190, 201, 549 P.3d 275, 286 (2024). The Barretts point to no evidence in the record indicating a genuine issue of material fact disputing that Cash- Kaeo is the sole surviving lessee of the subject property, and that Cash-Kaeo is therefore entitled to judgment of possession against the Barretts as a matter of law. The Barretts also cite no authority indicating the district court was required to address their counsel's non-appearance at the MSJ hearing before it could grant the MSJ. Even if the district court was required to do so, the Barretts fail to identify any legal theory or issue of fact that could have or would have been presented in opposition to the MSJ to defeat the motion. We therefore conclude the district court did not err in granting the MSJ, and affirm the May 17, 2022 Judgment for Possession. DATED: Honolulu, Hawaiʻi, June 20, 2025. On the briefs: /s/ Keith K. Hiraoka Presiding Judge Barry L. Sooalo, for Defendants-Appellants. /s/ Karen T. Nakasone Associate Judge Jay T. Suemori, for Plaintiff-Appellee. /s/ Kimberly T. Guidry Associate Judge

RENDERED: JUNE 20, 2025; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1311-MR KHALIL COLEMAN APPELLANT APPEAL FROM FRANKLIN CIRCUIT COURT v. HONORABLE THOMAS D. WINGATE, JUDGE ACTION NO. 23-CI-00759 KENTUCKY GENERAL ASSEMBLY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND A. JONES, JUDGES. ACREE, JUDGE: Appellant Khalil Coleman appeals from the Franklin Circuit Court’s order dismissing his complaint against Appellee, the Kentucky General Assembly. Finding no error, we affirm. BACKGROUND Khalil Coleman, a state inmate, filed a pro se lawsuit seeking a declaration regarding certain sections of the Kentucky Revised Statutes. He named the General Assembly of Kentucky as the sole defendant. The General Assembly moved to dismiss the action, arguing Coleman failed to state a claim, and alternatively, if Coleman had stated a claim, the General Assembly is shielded by legislative immunity under Section 43 of the Kentucky Constitution. The Franklin Circuit Court granted the General Assembly’s motion to dismiss for failure to state a claim and declined to assess the immunity defense. Coleman now appeals. ANALYSIS We review de novo a motion to dismiss for failure to state a claim upon which relief may be granted. Davenport Extreme Pools and Spas, Inc. v. Mulflur, 698 S.W.3d 140, 150 (Ky. App. 2024). Trial courts must construe pleadings “in a light most favorable to the plaintiff.” Gall v. Scroggy, 725 S.W.2d 867, 869 (Ky. App. 1987) (citing Ewell v. Central City, 340 S.W.2d 479 (Ky. 1960)). In response to a pleading, a party to an action may present the defense of a failure to state a claim upon which relief can be granted by a pre-answer motion. CR1 12.02(f). The General Assembly presented that defense, arguing Coleman’s complaint “does not state any cognizable legal theory related to the General Assembly and alleges no sufficient facts to support one. In fact, the Complaint 1 Kentucky Rules of Civil Procedure. -2- does not even allege any action or inaction by the General Assembly as a body or by its individual members.” (Record (R.) at 55.) Coleman argues his “declaration of rights petition did in fact state several claims, which should have rendered right to relief.” (Appellant’s Brief at 4.) However, even on appeal, Coleman fails to state any claims against the General Assembly. As he did before the Franklin Circuit Court, he again argues that certain statutes are unconstitutional but does not aver in his brief before this Court sufficient facts that would allow the General Assembly to respond with a rational, cogent answer. He asserts no specific wrongdoing by the General Assembly. Rather, he requests that this Court “evoke legislative intent [and] redact statute [sic] of controversy affecting [his] rights.” (Appellant’s Br. at 6.) Although the General Assembly did not submit an Appellee’s Brief, we take that non- response as an expression of its belief there is nothing warranting a response on appeal. While we respect Coleman’s activism, bringing an action against the General Assembly is not a means by which such change can be effectuated. Existence of an actual controversy is a fundamental component of an action. “The court will not decide speculative rights or duties which may or may not arise in the future, but only rights and duties about which there is a present actual controversy presented by adversary parties, and in which a binding judgment concluding the -3- controversy may be entered.” Foley v. Commonwealth, 306 S.W.3d 28, 31 (Ky. 2010) (quoting Veith v. City of Louisville, 355 S.W.2d 295, 297 (Ky. 1962)). “An actual controversy . . . does not involve a question which is merely hypothetical or an answer which is no more than an advisory opinion.” Barrett v. Reynolds, 817 S.W.2d 439, 441 (Ky. 1991). Coleman’s request that the Court redact certain statutes is not an actual controversy. Neither is his request that the Court actually issue an advisory opinion, which we are prohibited from rendering. Nordike v. Nordike, 231 S.W.3d 733, 739 (Ky. 2007) (citations omitted) (“It is a fundamental tenet of Kentucky jurisprudence that courts cannot decide matters that have not yet ripened into concrete disputes. Courts are not permitted to render advisory opin

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS NICK MERRIFIELD and MERRIFIELD UNPUBLISHED MACHINERY SOLUTIONS, August 12, 2025 10:19 AM Plaintiffs-Appellants, v No. 368355 Oakland Circuit Court ATS ADVISORS, JAMES SULLIVAN, and LC No. 2021-191816-NM SHANE RANDELL, Defendants-Appellees. Before: REDFORD, P.J., and RIORDAN and BAZZI, JJ. PER CURIAM. In this accounting malpractice action, plaintiffs, Nick Merrifield (“Merrifield”) and Merrifield Machinery Solutions (“MMS”) (collectively “plaintiffs”), appeal as of right from an October 18, 2023 order, which dismissed plaintiffs’ first-amended complaint in favor of defendants, ATS Advisors, James Sullivan (“Sullivan”), and Shane Randell (“Randell”) (collectively “defendants”). On appeal, plaintiffs challenge the trial court’s July 12, 2023 order, which granted summary disposition in favor of defendants on plaintiffs’ original complaint under MCR 2.116(C)(10) (no genuine issue of material fact). We affirm in part, reverse in part, and remand to the trial court for further proceedings. I. BACKGROUND In 2007, Merrifield opened MMS, which provided service and repair work for “CNC milling and turning machinery.” Richard Rohn (“Rohn”) later became part owner of MMS. According to Merrifield, Rohn had the primary responsibility for MMS’s finances and accounting, including a line of credit from Oxford Bank. In 2017, MMS hired defendants. According to Sullivan, ATS Advisors’ owner, ATS Advisors was hired to prepare tax returns based on information received from MMS’s representatives. Randell, a certified public accountant (CPA) who worked for ATS Advisors, helped prepare certain tax returns for MMS. He also served as MMS’s interim controller for a brief period of time. -1-  In late 2018, or early 2019, Merrifield decided that he no longer wanted to partner with Rohn. Merrifield, who admittedly was not “intimately familiar” with MMS’s “books,” did not consult with legal counsel, or other professionals, to determine MMS’s value. After Merrifield and Rohn entered into a purchase agreement, and Merrifield paid Rohn a portion of the agreed price for his ownership interest in MMS, Merrifield discovered that there were issues with MMS’s financial reports. It also was discovered that MMS fell “out of formula” on its line of credit with Oxford Bank. MMS hired a turnaround expert, Fred Leeb (“Leeb”), and CPA Ronald Schlaupitz (“Schlaupitz”) to address MMS’s accounting issues. Meanwhile, Rohn and Merrifield reached a new agreement concerning the amount Merrifield would pay Rohn for his ownership in MMS. In September 2021, plaintiffs filed suit against defendants, alleging accounting malpractice and breach of fiduciary duty. Plaintiffs alleged that they sustained myriad damages, including: (1) tax penalties and interest; (2) an Internal Revenue Services (IRS) audit and associated expenses; (3) attorney fees and costs; (4) accounting fees; and (5) overpayment by Merrifield for Rohn’s ownership interest in MMS. Defendants answered the complaint, and they generally denied liability. Discovery commenced. In May 2023, defendants moved for summary disposition, arguing that plaintiffs could not establish causation or damages. Plaintiffs opposed the motion, arguing that genuine issues of material fact existed for trial. In so arguing, plaintiffs generally referred to the entirety of Schlaupitz’s deposition transcript, which was 214 pages in length. After hearing oral arguments, the trial court granted defendants’ motion for summary disposition, concluding that plaintiffs failed to meet their burden under MCR 2.116(G)(4) to set forth specific facts showing there was a genuine issue for trial. Citing Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 376; 775 NW2d 618 (2009), the trial court held that it was not obligated to “scour the lower court record in search of a basis for denying the moving party’s motion.” The trial court entered the July 12, 2023 order, granting defendants’ motion for summary disposition. Plaintiffs moved for reconsideration. In doing so, they included page citations to the record evidence. Plaintiffs also filed a first amended complaint, the allegations of which are not relevant to the issues raised on appeal. Defendants opposed the motion for recons

Court of Appeals Tenth Appellate District of Texas 10-24-00228-CV Patrick Alan Powers, Appellant v. Teresa Seamon, Appellee On appeal from the County Court at Law No 2 of Johnson County, Texas Judge F. Steven McClure, presiding Trial Court Cause No. CC-P202325571-A JUSTICE SMITH delivered the opinion of the Court. MEMORANDUM OPINION Appellant, Patrick Alan Powers, appeals from a July 10, 2024 order of dismissal. The pertinent part of that order states: As to Defendant’s Rule 91(a) Motion to Dismiss: X The Motion is GRANTED due to lack of capacity; and/or X The Motion is GRANTED due to lack of standing;  On May 29, 2025, the Clerk of this Court notified Powers that there does not appear to be a final judgment from which he can appeal to this Court, and the appeal is subject to dismissal. We specifically directed his attention to In re Vaishangi, Inc., 442 S.W.3d 256, 260 (Tex. 2014) (per curiam) (orig. proceeding) in which the supreme court held that a Rule 11 agreement to dismiss all claims, which contained no decretal language, was not a final judgment. The Clerk of the Court further notified Powers that the Court may dismiss this appeal unless, within fourteen days from the date of the letter, a response is filed showing grounds for continuing the appeal. In his late-filed response, Powers asserts that the order he attempts to appeal disposes of all issues in the phase of the proceeding for which it was brought and is therefore final and appealable. Powers does not address the fact that the July 10, 2024 order of dismissal does not include any decretal language. Our jurisdiction is limited to appeals from final judgments, except as explicitly allowed by statute. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.012; Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). An order merely granting a motion for judgment is nothing more than an indication of the trial court’s ruling on the motion itself and adjudicates nothing. Naaman v. Grider, 126 S.W.3d 73, 74 (Tex. 2003) (per curiam). An order or judgment that does Powers v. Seamon Page 2 not contain decretal language is not a final judgment. See In re Vaishangi, Inc., 442 S.W.3d at 260. Because the order Powers attempts to appeal contains no decretal language, it is not an appealable judgment, and we have no jurisdiction to hear the appeal. See id. We dismiss the appeal for want of jurisdiction. STEVE SMITH Justice OPINION DELIVERED and FILED: June 26, 2025 Before Chief Justice Johnson, Justice Smith, and Justice Harris Dismissed CV06 Powers v. Seamon Page 3