Chad Atherton v. Jarred Sper

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 STATE OF MICHIGAN COURT OF APPEALS DESIREE DURGA and JUSTIN DURGA, UNPUBLISHED August 13, 2025 Plaintiffs-Appellees, 9:04 AM v No. 371891 Benzie Circuit Court MEMBERSELECT INSURANCE COMPANY, LC No. 23-012025-CZ Defendant-Appellant.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 Plaintiffs alleged that defendant breached their automobile insurance contract when it rescinded their policy based upon an allegation that Desiree Durga made a fraudulent misrepresentation in the application process.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

30 June 4, 2025 No. 484 IN THE COURT OF APPEALS OF THE STATE OF OREGON Richard GRIFFITH and Reta Griffith, husband and wife, Plaintiffs-Appellants Cross-Respondents, v. PROPERTY AND CASUALTY INSURANCE COMPANY OF HARTFORD, Defendant-Respondent Cross-Appellant, and ALPINE ABATEMENT ASSOCIATES, INC., Defendant. Wallowa County Circuit Court 22CV10452; A181951 Wes Williams, Judge. On appellants’ petition for reconsideration filed March 28, 2025, and respondent’s response filed April 2, 2025. Opinion filed March 19, 2025. 339 Or App 40, 566 P3d 1235 (2025). Kelly Vance for petition. Thomas M. Christ and Sussman Shank LLP for response. Before Tookey, Presiding Judge, Kamins, Judge, and Jacquot, Judge. TOOKEY, P. J. Reconsideration allowed; former opinion modified and adhered to as modified. Cite as 341 Or App 30 (2025) 31 TOOKEY, P. J. Plaintiffs petition for reconsideration of our deci- sion in Griffith v. Property and Casualty Ins. Co. of Hartford, 339 Or App 40, 566 P3d 1235 (2025), asserting, among other reasons that we should reconsider our decision, that we “committed factual error in opining that all plaintiffs’ counsel did was file a complaint, which was contrary to the evidence.” Plaintiffs assert that “the trial court file shows far more activity than is depicted by the panel’s opinion.” We grant reconsideration, modify our previous opinion in two respects, and adhere to it as modified. First, in our opinion, we stated, “The complaint and Hartford’s answer were the only filings relating to Hartford in plaintiffs’ civil action. Shortly thereafter, plaintiffs and Hartford executed a ‘Release and Settlement Agreement,’ under which the parties settled plaintiffs’ insurance and breach of contract claims ‘and all related controversies.’ ” Id. at 42. We modify those sentences to read, “After Vance filed the civil action, plaintiffs and Hartford executed a ‘Release and Settlement Agreement,’ under which the parties settled plaintiffs’ insurance and breach of contract claims ‘and all related controversies.’ ” Second, in our opinion, we stated, “Prior to the par- ties’ settlement and release, there was minimal litigation by plaintiffs’ counsel (the filing of a complaint) with respect to plaintiffs’ claims against Hartford.” Id. at 48. We mod- ify that sentence so that it reads, “Prior to the parties’ set- tlement and release, litigation by plaintiffs’ counsel with respect to plaintiffs’ claims against Hartford included fil- ing a complaint and amended complaint, filing a reply to Hartford’s affirmative defenses, filings related to summary judgment, and oral argument before the court.” We have also considered the other reasons that plaintiffs assert that we should reconsider our opinion and have determined that reconsideration is not warranted. Reconsideration allowed; former opinion modified and adhered to as modified.

08/08/2025 IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON April 23, 2025 Session SHIRLEY JEAN CUPPLES BLANKENSHIP v. CHARLES GARY BLANKENSHIP SR. AND CHARLES GARY BLANKENSHIP II v. SHIRLEY JEAN CUPPLES BLANKENSHIP Appeal from the Chancery Court for Gibson County No. H6329, H6634 Michael Mansfield, Chancellor ___________________________________ No. W2024-01248-COA-R3-CV ___________________________________ This appeal arises from the death of the husband during a divorce proceeding. While the divorce was pending, the spouses sold real property they owned as tenants by the entirety and deposited the proceeds with the clerk of the court pursuant to an agreed order. Subsequently, the husband died and the wife filed a motion to dismiss the case and to distribute the proceeds. The chancery court determined that the husband’s death abated the divorce proceedings and that the proceeds had been owned by the spouses as tenants by the entirety. Thus, the court granted the motion to dismiss and determined that the wife was entitled to distribution of the proceeds as the surviving tenant by the entirety. The spouses’ son, acting as administrator of the husband’s estate, appeals. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed. CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which KENNY W. ARMSTRONG and VALERIE L. SMITH, JJ., joined. Michael R. Flynn, Germantown, Tennessee, for the appellants, Charles Gary Blankenship II and Probate Advance, LLC. Jonathan O. Steen, Nicholas B. Latimer, and Sara E. Barnett, Jackson, Tennessee, for the appellee, Shirley Jean Cupples Blankenship. OPINION I. Facts and Procedural History Charles Gary Blankenship Sr. (“Husband”) and Shirley Jean Cupples Blankenship (“Wife”) were married on August 22, 1981, in Jackson, Tennessee. One child was born of the marriage, Charles Gary Blankenship II (“Son”). Son is serving as the administrator of Husband’s estate and is one of the appellants in this matter. During the marriage, the spouses obtained the following pieces of real property in Humboldt, Tennessee: 157 Pleasant Hill Road, 3855 East End Drive, and a lot adjacent to the 3855 East End Drive property (collectively “the Properties”). The spouses owned the Properties as tenants by the entirety. On March 6, 2020, Wife filed a complaint for divorce in the Madison County Chancery Court. The spouses later agreed for the case to be transferred to the Gibson County Chancery Court. Litigation ensued, and on September 30, 2022, Husband filed a motion requesting that a guardian ad litem be appointed on his behalf. The motion was granted by order entered on January 20, 2023. The guardian ad litem subsequently submitted a report explaining that Husband had experienced several health issues and recommended that Son be appointed as conservator over Husband’s person and that a certified public accountant be appointed as conservator over his property. On January 5, 2023, an “Agreed Order” was entered in which the spouses agreed that the proceeds derived from the sale of any marital property would be paid to the Clerk and Master of the Chancery Court of Gibson County. Although it is unclear from the record when this occurred, the spouses subsequently sold the Properties. The proceeds derived from the sale of the Properties were deposited with the Gibson County Clerk and Master. On August 15, 2023, Husband died prior to a final decree of divorce having been entered. Wife filed a “Motion to Dismiss and for Distribution of Funds” on September 8, 2023, in which she asserted that Husband’s death abated the divorce proceedings. Wife also claimed that the proceeds derived from the sale of the Properties had been owned by the spouses as tenants by the entirety and thus the proceeds had “vested” in her upon Husband’s death as the surviving tenant by the entirety. Meanwhile, on October 27, 2023, Son filed a verified complaint in his capacity as the administrator of Husband’s estate in the Chancery Court of Hamilton County, Tennessee.1 The complaint alleged that the funds being held by the Gibson County Clerk and Master were assets of Husband’s estate. Son further sought an order enjoining Wife from obtaining the funds pending resolution of the complaint. This case was eventually transferred to the Gibson County Chancery Court. Subsequently, the court entered an order consolidating the divorce proceeding, the above- described action filed by Son, and a “Probate Action” Son had also filed in the Hamilton County Chancery Court. The court determined that all three cases were predicated on the disposal of a single issue: “who is entitled to receive disburse

No. 706 August 6, 2025 399 IN THE COURT OF APPEALS OF THE STATE OF OREGON Antonio CORNELIO, as Personal Representative of the Estate of Vickie Marie Pobanz, Plaintiff-Respondent, v. PREMERE REHAB, LLC, an Oregon limited liability company, dba Infinity Rehab, Defendant-Appellant. Deschutes County Circuit Court 21CV48494; A180698 Michelle A. McIver, Judge. Argued and submitted January 29, 2025. Michael J. Estok argued the cause and filed the briefs for appellant. Also on the briefs was Lindsay Hart, LLP. Christopher J. Kuhlman argued the cause and filed the brief for respondent. Also on the brief was Kuhlman Law, LLC. Before Shorr, Presiding Judge, Powers, Judge, and Pagán, Judge. SHORR, P. J. Affirmed. 400 Cornelio v. Premere Rehab, LLC Cite as 342 Or App 399 (2025) 401 SHORR, P. J. Defendant Premere Rehab, LLC, dba Infinity Rehab appeals from an interlocutory order denying its motion to compel arbitration. ORS 36.730(1)(a). Plaintiff is the personal representative of the estate of Vickie Pobanz (decedent), who died following complications that arose during her residence at Bend Transitional Care (BTC). Defendant is a separate legal entity that provided therapy services to decedent at BTC. Defendant moved to compel arbitration of plaintiff’s wrongful death action against it based on an arbitration agreement that decedent had executed with BTC. The trial court denied that motion. Defendant appeals, raising two assignments of error, arguing that the trial court erred in deciding the issue of arbitrability and in denying arbitration on the merits. For the reasons that follow, we affirm. The relevant facts are undisputed. In March 2018, decedent was admitted as a resident at BTC to recover from an ankle fracture. Upon her admission, decedent signed an Admission Agreement and an Arbitration Agreement. There is no dispute that decedent had the mental capacity to sign those agreements. A representative of BTC countersigned the agreements for “the Facility.” Both agreements were between the Facility and the Resident and both had Bend Transitional Care’s name and address printed on the first page. Defendant is not named in either document. The Admission Agreement references a Resident Handbook, which states that the Facility provides various therapy services to its residents. The arbitration agreement provides, in relevant part: “The Resident and/or Legal Representative and/or Resident Representative, collectively known as the ‘Resident Group’ and the Facility, on behalf of themselves and all others claiming by, through or under them, agree that they shall submit to binding arbitration all disputes against each other and their respective Legal Representatives, affili- ates, governing bodies and employees, arising out of, or in any way connected with, the care provided at this Facility under the terms of the Admission Agreement. * * * “All such disputes shall be determined by binding arbitra- tion in the county in which the Facility is located, before one arbitrator. The arbitration shall be administered 402 Cornelio v. Premere Rehab, LLC by JAMS (a private arbitration service) pursuant to its Comprehensive Arbitration Rules and Procedures * * *.” As relevant to this appeal, JAMS Rule 11(b) (the delega- tion provision) delegates initial issues of arbitrability to the arbitrator: “Jurisdictional and arbitrability disputes, including dis- putes over the formation, existence, validity, interpreta- tion or scope of the agreement under which Arbitration is sought, and who are proper Parties to the Arbitration, shall be submitted to and ruled on by the Arbitrator. The Arbitrator has the authority to determine jurisdiction and arbitrability issues as a preliminary matter.” The JAMS Rules do not appear to have been attached to the Arbitration Agreement or provided to decedent. While at BTC, decedent developed wounds on her hips, which became infected and led to her death in August 2019. In 2020, plaintiff filed a wrongful death and survival action against BTC and other affiliated entities and individ- uals allegedly involved in the operation, management, and/ or ownership of BTC. The defendants in the first lawsuit filed a motion to compel arbitration. The court granted the motion, and the parties accordingly submitted to arbitration. Plaintiff then filed the complaint commencing this case against defendant, who was not a party in the first lawsuit, alleging that defendant improperly sized decedent for a wheelchair, which led to her hip wounds. Defendant provides therapy and rehab services a

Court of Appeals Tenth Appellate District of Texas 10-25-00156-CV TDJ Corporation d/b/a Infinity Nails, Tiffany Thuy Do and Don Kim Do, Appellants v. CBL RM-Waco, LLC, Appellee On appeal from the 74th District Court of McLennan County, Texas Judge Gary R. Coley, presiding Trial Court Cause No. 2021-3652-3 JUSTICE SMITH delivered the opinion of the Court. MEMORANDUM OPINION On June 11, 2025, the appellants, TDJ Corporation d/b/a Infinity Nails, Tiffany Thuy Do and Don Kim Do, filed a motion to dismiss this appeal because the parties have reached a settlement. The motion indicates that the appellants no longer desire to pursue the appeal due to the settlement which resolves all issues and disputes in the case.  The motion to dismiss the appeal is granted. Accordingly, pursuant to the written settlement agreement of the parties, this appeal is dismissed. See TEX. R. APP. P. 42.1(a). STEVE SMITH Justice OPINION DELIVERED and FILED: June 18, 2025 Before Chief Justice Johnson, Justice Smith, and Justice Harris Appeal dismissed CV06 TDJ Corporation v. CBL RM-Waco, LLC Page 2