In Re CMG3, LLC D/B/A USA Foundation Repair v. the State of Texas

NUMBER 13-25-00400-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG IN RE CYNTHIA ARTEAGA ON PETITION FOR WRIT OF MANDAMUS MEMORANDUM OPINION Before Justices Silva, Peña, and Cron Memorandum Opinion by Justice Cron1 By petition for writ of mandamus, relator Cynthia Arteaga contends that the trial court abused its discretion by: (1) denying relator “the opportunity to conduct discovery upon the real parties in interest’s ten newly asserted affirmative defenses”; (2) denying relator’s motion for a level three scheduling order and denying her motion to compel discovery because “a continuance of the trial date re-set all of the deadlines included in 1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so. When granting relief, the court must hand down an opinion as in any other case.”); id. R. 47.4 (distinguishing opinions and memorandum opinions). a prior scheduling order”; and (3) failing to enforce a Rule 11 Agreement regarding discovery. See TEX. R. CIV. P. 11. “Mandamus relief is an extraordinary remedy available only on a showing that (1) the trial court clearly abused its discretion and (2) the party seeking relief lacks an adequate remedy on appeal.” In re Ill. Nat’l Ins., 685 S.W.3d 826, 834 (Tex. 2024) (orig. proceeding); see In re Liberty Cnty. Mut. Ins., 679 S.W.3d 170, 174 (Tex. 2023) (orig. proceeding) (per curiam); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 138 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). “The relator bears the burden of proving these two requirements.” In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam); Walker, 827 S.W.2d at 840. Mandamus is intended for use in circumstances “involving manifest and urgent necessity” and is not used “for grievances that may be addressed by other remedies.” Elec. Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 641 (Tex. 2021) (quoting Walker, 827 S.W.2d at 840). “An appeal is inadequate ‘when parties are in danger of permanently losing substantial rights,’ which occurs when ‘the appellate court would not be able to cure the error, when the party’s ability to present a viable claim or defense is vitiated, or when the error cannot be made part of the appellate record.’” Id. (quoting In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 211 (Tex. 2004) (orig. proceeding) (per curiam). The Court, having examined and fully considered the petition for writ of mandamus and the applicable law, is of the opinion that relator has not met her burden to obtain mandamus relief. See Elec. Reliability Council of Tex., Inc., 619 S.W.3d at 641. The 2 underlying case has been pending since 2018, has been set for trial on at least seven previous occasions, and has been the subject of two separate original proceedings pertaining to these same and related issues. See In re Arteaga, No. 13-25-00026-CV, 2025 WL 291269, at *1 (Tex. App.—Corpus Christi–Edinburg Jan. 24, 2025, orig. proceeding) (mem. op.); In re Arteaga, No. 13-24-00578-CV, 2024 WL 4906774, at *1 (Tex. App.—Corpus Christi–Edinburg Nov. 27, 2024, orig. proceeding [mand. denied]) (mem. op.). The record before the Court fails to show that the trial court abused its discretion or that it has denied or compromised relator’s “ability to present a viable claim or defense—or reasonable opportunity to develop the merits of the case.” In re Euless Pizza, LP, 702 S.W.3d 543, 548 (Tex. 2024) (per curiam) (cleaned up); see Walker, 827 S.W.2d at 843. We deny the petition for writ of mandamus. JENNY CRON Justice Delivered and filed on the 11th day of August, 2025. 3

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 DEBRA B. FORD, UNPUBLISHED June 20, 2025 Plaintiff-Appellant, 12:09 PM v No. 371805 Calhoun Circuit Court CITY OF MARSHALL, BAILEY EXCAVATING, LC No. 2020-000348-NO INC., LIBERTA CONSTRUCTION COMPANY, doing business as CIOFFI & SON CONSTRUCTION, and GIVE-EM A BRAKE SAFETY, LLC, Defendants, and CONSUMERS ENERGY COMPANY, Defendant-Appellee. Before: BOONSTRA, P.J., and REDFORD and MARIANI, JJ. BOONSTRA, P.J. (concurring). I fully concur in the majority opinion. I write separately to offer additional reasons to affirm the trial court’s order granting summary disposition in favor of defendant Consumers Energy Company. Plaintiff continues to advance the argument that her claim against Consumers sounded in ordinary negligence. But whether plaintiff’s claim sounds in negligence or in premises liability is determined by considering the plaintiff's complaint as a whole, regardless of the labels attached to the allegations by the plaintiff. Jeffrey-Moise v Williamsburg Towne Houses Coop, Inc, 336 Mich App 616, 625; 971 NW2d 716 (2012).. And the nature of a claim (as either premises liability or ordinary negligence) is generally determined by the nature of the hazard itself. As we held in Ford -1- v City of Marshall, unpublished per curiam opinion of the Court of Appeals, issued January 13, 2022 (Docket No. 355541) (Ford I), p 4: On appeal, plaintiff argues that her claim sounded in ordinary negligence rather than premises liability because Consumers lacked possession and control of the sidewalk on the date of plaintiff’s injuries. Plaintiff’s argument lacks merit. As already noted, the question of whether a claim sounds in premises liability or ordinary negligence hinges on the nature of the hazard. Buhalis, 296 Mich App at 692.[1] . . . [W]hether Consumers had possession and control of the sidewalk had no bearing on the nature of plaintiff’s claim, i.e., whether it sounded in ordinary negligence or premises liability. This Court has held that, in certain situations, a contractor whose negligent workmanship creates a hazardous condition on the land may be held liable not only to its contractee, but also in negligence to third parties who later incur foreseeable harm upon encountering the hazard. See Kapalczynski v Globe Construction Co, 19 Mich App 396, 403 n 10; 172 NW2d 852 (1969) (citing 2 Restatement Torts, 2d, § 385, p 293); Feaster v Hous, 137 Mich App 783, 789; 359 NW2d 219 (1984). This potential for liability arises after the contracted-for work has been completed and accepted by the premises possessor, and is based on the contractor’s negligent performance of a contractual duty. See Feaster, 137 Mich App at 789. By contrast, contractors who are currently engaged in contractual duties with respect to the land on behalf of the premises possessor/owner are “subject to the same liability, and enjoy[] the same freedom from liability, as though [they] were the possessor[s] of the land . . . .” Finazzo v Fire Equipment Co, 323 Mich App 620, 626; 918 NW2d 200 (2018).2 Effectively, the premises possessor has “loaned” possessory rights to the contractor. Id. at 627-628, citing Orel v Uni-Rak Sales, Co, Inc, 454 Mich 564, 567 n 2; 563 NW2d 241 (1997) and Quinlivan v Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244, 269; 235 NW2d 732 (1972) (“This ‘loaning’ gives a quantum of ‘control and possession’ to another party.”). This Court in Finazzo noted that “our Supreme Court has explicitly recognized the principles underlying the rule set forth in 2 Restatement Torts, 2d, §384, p 289,” which provides: One who on behalf of the possessor of land erects a structure or creates any other condition on the land is subject to the same liability, and enjoys the same freedom from liability, as though he were the possessor of the land, for physical harm caused to others upon and outside of the land by the dangerous character of the structure 1 Buhalis held that “If the plaintiff’s injury arose from an allegedly dangerous condition on the land, the action sounds in premises liability rather than ordinary negligence; this is true even when the plaintiff alleges that the premises possessor created the condition giving rise to the pla

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 25-JUN-2025 08:09 AM Dkt. 56 SO NO. CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI‘I MEILING K. AKUNA, Plaintiff-Appellant, v. ANDY STEHL and JIM FALK MOTORS OF MAUI, Defendants-Appellees APPEAL FROM THE DISTRICT COURT OF THE SECOND CIRCUIT WAILUKU DIVISION (CASE NO. 2DRC-XX-XXXXXXX) SUMMARY DISPOSITION ORDER (By: Hiraoka, Presiding Judge, Wadsworth and Guidry, JJ.) Self-represented Plaintiff-Appellant Meiling K. Akuna (Akuna) appeals from the District Court of the Second Circuit's (district court)1 May 3, 2023 Judgment, entered in favor of 1 The Honorable Blaine J. Kobayashi presided.  NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER Defendants-Appellees Andy Stehl (Stehl) and Jim Falk Motors of Maui (Falk Motors) (collectively, the Defendants). Akuna raises three issues on appeal,2 contending that the district court: (1) "erred in giving nominal concern in [Akuna's] case"; (2) "erred on the manner in which the trials were conducted"; and (3) "applied the wrong legal standard in finding [Akuna's] case unmerited." 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 Akuna's appeal as follows. In August 2021, Akuna filed the operative Amended Complaint, alleging that the Defendants committed fraud by selling her a "truck [that] was previously damaged in a rollover accident" that had been represented as being "a new truck." The case proceeded to a bench trial. After Akuna rested her case, the Defendants moved for a directed verdict. The district court ruled as follows, Ms. Akuna, the [c]ourt in this case has listened to the testimony of the witnesses that you've called to support your claim. 2 We note that Akuna's opening brief does not, among other things, include a statement of points of error or arguments on appeal as required by Hawaiʻi Rules of Appellate Procedure Rule 28. We will nevertheless address Akuna's contentions of error to the extent they are discernible. See U.S. Bank Nat'l Ass'n v. Wright, Nos. CAAP-XX-XXXXXXX, CAAP-XX-XXXXXXX, & CAAP-20- 0000364, 2023 WL 4104953, at *2 (Haw. App. June 21, 2023) (SDO) ("[W]e interpret pleadings prepared by self-represented litigants liberally and attempt to afford them appellate review even though they fail to comply with court rules.") (citation omitted). 2  NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER Ah, the [c]ourt has also had the opportunity to review the exhibits which were received in evidence. You know, unfortunately the [c]ourt [cannot] see or find any evidence of your claim that the vehicle that was sold to you on April 4th, 2013 was, in fact, a used vehicle as opposed to a new vehicle. Ah, because of that, your claim fails and you have not proven by a preponderance of the evidence the claim set forth in your complaint. So unfortunately, at this time the [c]ourt has no alternative but to rule in favor of the [D]efendant[s]. The [c]ourt is granting the defense's motion for directed verdict. Judgment is entered in favor of the [D]efendants and against [Akuna]. (Emphasis added.) A motion for a directed verdict in a district court trial shall be considered as a motion to dismiss under District Court Rules of Civil Procedure (DCRCP) Rule 41(b).3 Cf. Ontai v. Straub Clinic & Hosp. Inc., 66 Haw. 237, 252, 659 P.2d 734, 745 (1983) ("A motion for a directed verdict [under Hawaiʻi Rules of Civil Procedure (HRCP) Rule 50(a)4] in a nonjury case will be 3 DCRCP Rule 41(b) states, in relevant part, After the plaintiff has completed the presentation of the plaintiff's evidence, the defendant, without waiving the defendant's right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the

In the Court of Appeals Second Appellate District of Texas at Fort Worth No. 02-25-00085-CV GREGORY S. THOMAS AND T-4 FARM, § On Appeal from the 17th District LLC, Appellants Court § of Tarrant County (17-360705-25) V. § June 19, 2025 BRIAN C. THOMAS, INDIVIDUALLY § Memorandum Opinion by Chief Justice AND ON BEHALF OF POST OAK OIL & Sudderth GAS, LP AND POST OAK OIL & GAS GP, LLC, Appellee JUDGMENT This court has considered the record on appeal in this case and holds that there was no error in the trial court’s judgment. It is ordered that the judgment of the trial court is affirmed. It is further ordered that Gregory S. Thomas and T-4 Farm, LLC shall pay all costs of this appeal, for which let execution issue. SECOND DISTRICT COURT OF APPEALS By /s/ Bonnie Sudderth Chief Justice Bonnie Sudderth

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA FILED FRANK MAYER, June 27, 2025 Claimant Below, Petitioner ASHLEY N. DEEM, CHIEF DEPUTY CLERK INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA v.) No. 24-ICA-462 (JCN: 2023021874) CITY OF CLARKSBURG, Employer Below, Respondent MEMORANDUM DECISION Petitioner Frank Mayer appeals the October 30, 2024, order of the Workers’ Compensation Board of Review (“Board”). Respondent City of Clarksburg (“Clarksburg”) filed a response.1 Mr. Mayer did not reply. The issue on appeal is whether the Board erred in affirming the claim administrator’s order, which denied authorization for a right reverse total shoulder arthroplasty. This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51- 11-4 (2024). After considering the parties’ arguments, the record on appeal, and the applicable law, this Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the Board’s order is appropriate under Rule 21 of the Rules of Appellate Procedure. On May 24, 2023, while employed by Clarksburg, Mr. Mayer was mowing when he slipped and fell, landing with his leg bent underneath him. Mr. Mayer was seen at the United Hospital Center Emergency Room on the date of the injury, with a chief complaint of left knee pain and right shoulder pain. The assessment was a patella fracture and right shoulder strain. Mr. Mayer filed an Employees’ and Physicians’ Report of Occupational Injury dated May 24, 2023, indicating that he suffered an injury to his right shoulder and left leg when he was cutting grass on a hillside, and he fell when the bank gave way. The physician’s portion was signed at United Hospital Center and notes an occupational injury to the right shoulder and left knee. On May 26, 2023, Mr. Mayer was seen by William Dahl, M.D., who assessed a rupture of the left quadricep, a closed fracture of the left patella, and an injury of the right shoulder. Dr. Dahl opined that Mr. Mayer would benefit from surgical fixation of the left 1 Mr. Mayer is represented by J. Thomas Greene, Jr., Esq., and T. Colin Greene, Esq. Clarksburg is represented by James W. Heslep, Esq. 1 quadriceps rupture. The claim administrator issued an order dated May 31, 2023, holding the claim compensable for a strain of muscle, fascia, and tendon involving the right shoulder and upper arm; a strain of the left quadriceps; and a closed fracture of the left patella. Mr. Mayer was seen by Joshua Sykes, M.D., on November 27, 2023, for a follow up subsequent to a left quadriceps repair performed on June 1, 2023. Mr. Mayer reported a constant sharp, burning, and throbbing pain that he rated 5/10, and is worse with activity; that he had numbness and tingling when sitting; that his knee continued to swell; and that he was progressing with physical therapy. On December 28, 2023, Mr. Mayer underwent a CT of his right shoulder, which had the impression of severe acromioclavicular and mild glenohumeral osteoarthritis, retracted tears of the supraspinatus and infraspinatus tendons, a suspected full thickness tear of the superior bundle of the subscapularis, and suspected extensive degenerative labral tearing. On January 23, 2024, Dr. Sykes assessed Mr. Mayer with status post tendon repair, rupture of left quadriceps, and right rotator cuff tear. Dr. Sykes noted that Mr. Mayer has had a work-related shoulder tear for over twenty years that had progressed from his previous MRI. On February 7, 2024, Mr. Mayer was evaluated by Kelly Agnew, M.D. Dr. Agnew noted that Mr. Mayer has a large retracted, irreparable right rotator cuff tear, that was documented in 2003, and that this tear was never repaired. Dr. Agnew opined that there was nothing on the recent CT scan with arthrogram of the right shoulder to suggest an acute injury and that all the changes were chronic. Dr. Agnew further opined that there was no evidence of a lingering strain and that the findings were expected from the chronic rotator cuff disruption. Dr. Agnew found that Mr. Mayer had reached maximum medical improvement from the shoulder and upper arm portion of his injury. Dr. Agnew noted that Mr. Mayer had been offered total shoulder arthroplasty by Dr. Sykes, and he opined that any such treatment would be for the underlying chronic pathology that dates back to 2003; and that arthroplasty could not possibly be ascribed to any identifiable injury involving the right shoulder from May 24, 2023. Mr. Mayer followed u