Nick Merrifield v. Ats Advisors

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 20-JUN-2025 07:58 AM Dkt. 63 SO NO.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  NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER (1) "it defaulted [the Barretts] for [their] non[-]appearance [at the MSJ hearing] where the facts show [the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 DESIREE DURGA and JUSTIN DURGA, UNPUBLISHED August 13, 2025 Plaintiffs-Appellees, 9:04 AM v No. 371891 Benzie Circuit Court MEMBERSELECT INSURANCE COMPANY, LC No. 23-012025-CZ Defendant-Appellant. Before: O’BRIEN, P.J., and BOONSTRA and WALLACE, JJ. PER CURIAM. This action arises out of a motor vehicle accident that occurred in June 2023, when plaintiff Desiree Durga was driving a Chevrolet Silverado that was involved in a collision with another motor vehicle. This accident resulted in extensive damage to the Silverado, which was insured by defendant MemberSelect Insurance Company (MemberSelect). Plaintiffs alleged that defendant breached their automobile insurance contract when it rescinded their policy based upon an allegation that Desiree Durga made a fraudulent misrepresentation in the application process. The trial court entered a July 2, 2024 amended order granting plaintiffs’ motion for summary disposition on their breach of contract claim pursuant to MCR 2.116(C)(10) and denying defendant’s cross-motion for summary disposition in which it had argued that it was entitled to rescind the policy. On July 9, 2024, the court entered an order of judgment in favor of plaintiffs in the amount of $82,476.04, and this appeal of right by defendant followed. We affirm. I. FACTS As a result of plaintiff Justin Durga having two or more substance abuse convictions in seven years, his Michigan operator’s license was mandatorily revoked from June 9, 2007 “until requirements have been met.” MCL 257.303(2)(c). -1-  In June 2012, plaintiff Justin Durga’s wife, Desiree, applied to obtain automobile insurance from defendant MemberSelect for a Jeep Grand Cherokee that she owned.1 According to plaintiff Desiree Durga, “[a]t that time I fully disclosed to AAA that my husband, Justin Durga, did not have a valid driver’s license.”2 Defendant’s insurance records reflect that plaintiffs have been “AAA Insured” since June 29, 2012. While defendant MemberSelect claims that Desiree Durga’s application for insurance contained a material misrepresentation, it has not produced a copy of her June 2012 application in this case. In response to a request for production of documents seeking to have defendant “[p]roduce the application for insurance that Plaintiff(s) filed with Defendants for the Policy,” defendant responded “This application for insurance no longer exists.” In the lower court, MemberSelect relied upon two documents, a “New Declaration Certificate” (certificate), and an “Automobile Application Addendum and Authorization” (addendum), the latter of which was only signed by AAA sales representative, Jeanine Michalski, at 9:53AM on February 25, 2013. Under a line item labeled “Driver Type,” the certificate states that Desiree Durga is “ASSIGNED”3 and Justin Durga is “NOT LICENSED”; and under another line item labeled “Years Licensed” it states “7” for Desiree Durga and “0” for Justin Durga. Contrarily, in the addendum, next to a line asking “Do all drivers have a valid driver’s license including drivers 16 years of age with a graduated license?” the box marked “Yes” is checked. Again, the addendum reflects a signature by Jeanine Michalski on the “Sales Representative” line, but the “Signature of Applicant” line above it is blank. In her affidavit, Desiree Durga’s avers that “I never stated that Justin Durga had a valid driver’s license, nor did I ever prepare or sign this Addendum.” The addendum indicates that the Durgas carried automobile insurance with Farmers Insurance Exchange through March 15, 2013, and consistent with the certificate, it appears MemberSelect first insured Desiree Durga’s Jeep for the February 25, 2013-August 25, 2013 policy term. This policy was renewed and continued for ten years through the February 25, 2023- August 25, 2023 term at issue in this litigation. Desiree Durga’s affidavit also avers that “every renewal from AAA or MemberSelect continued to state that Justin Durga was not licensed—as 1 The policy of insurance that was in effect on the date of the accident was issued by defendant MemberSelect. In various documents prepared by defendant in this matter, including documents sent to plaintiffs, it refers to itself as “MemberSelect Insurance Company,” “AAA In

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

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS § MORRIS REID, III, No. 08-25-00155-CV § Appellant, Appeal from the § v. 112th District Court § HOLLOMAN CORPORATION, of Crockett County, Texas § Appellee. (TC# 21-02-08136-CV) § § MEMORANDUM OPINION This appeal is before the Court on its own motion to determine whether it should be dismissed for want of jurisdiction. Because we find that Appellant Morris Reid III did not timely perfect his appeal, we dismiss for want of jurisdiction. Appellate courts generally have jurisdiction over appeals from final judgments filed within 30 days after the appealable order is signed, or within 90 days after the appealable order is signed if a party timely files one of the pleadings listed in Texas Rule of Appellate Procedure 26.1. Tex. R. App. P. 26.1 (providing deadlines to perfect an appeal in a civil case); Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696. 697 (Tex. 1986) (per curiam). A proper motion to reinstate under Texas Rule of Civil Procedure 165a extends the deadline to file a notice of appeal from 30 days to 90 days. Tex. R. App. P. 26.1(a)(3). The Texas Supreme Court has held that a proper motion to reinstate must be verified and filed with the clerk within 30 days of the order of dismissal. McConell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (per curiam); See Tex. R. Civ. P. 165a(3) (requiring the motion to be verified by the movant or his attorney). An unverified motion does not extend the trial court’s plenary jurisdiction or the deadlines for perfecting an appeal. Allstate Ins. Co. v. Barnet, 589 S.W.3d 313, 317 (Tex. App.—El Paso, no pet.). On May 16, 2025, Reid filed a notice of appeal stating his desire to appeal from an order “rendered on April 17, 2025” granting Holloman Corporation’s Motion to Dismiss. However, upon further review of the clerk’s record, the order granting Holloman Corporation’s motion was signed by the trial court on March 4, 2025. The clerk’s record also contains Reid’s unverified motion to reinstate pursuant to Texas Rule of Civil Procedure 165a, filed on March 21, 2025. Although filed within 30 days of the date of the judgment, because Reid’s motion was unverified, it did not extend the time for filing a notice of appeal. Accordingly, Reid’s notice of appeal was due April 3, 2025—30 days after the trial court signed its dismissal order, and the notice of appeal filed May 16, 2025, is untimely. The Clerk of this Court sent notice to Reid that his appeal would be dismissed as untimely on or after June 15, 2025, unless he responded and established a basis for our jurisdiction. Tex. R. App. P. 42.3(a). As of the date of this memorandum, we have received no response. Accordingly, we dismiss the appeal for want of jurisdiction. MARIA SALAS MENDOZA, Chief Justice June 25, 2025 Before Salas Mendoza, C.J., Palafox, J., and Rodriguez, C.J. (Ret.) Rodriguez, C.J. (Ret.) (Sitting by Assignment) 2