Maldonado v. Queens Vil. Mgt. Corp.

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 20-JUN-2025 07:58 AM Dkt. 63 SO NO.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  NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER (1) "it defaulted [the Barretts] for [their] non[-]appearance [at the MSJ hearing] where the facts show [the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

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

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

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA FILED June 27, 2025 LATONYA BURTON, ASHLEY N. DEEM, CHIEF DEPUTY CLERK Plaintiff Below, Petitioner INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA v.) No. 24-ICA-339 (Cir. Ct. Kanawha Cnty. Case No. CC-20-2024-C-462) WEST VIRGINIA DIVISION OF CORRECTIONS and JOHN AND JANE DOES, Defendants Below, Respondents MEMORANDUM DECISION Petitioner Latonya Burton appeals the July 26, 2024, order from the Circuit Court of Kanawha County granting Respondent West Virginia Division of Corrections (“WVDCR”) and John and Jane Does’ (collectively “the Does”) Motion to Dismiss and denying Ms. Burton’s July 22, 2024, motion moving the circuit court to reconsider its ruling dismissing all Ms. Burton’s claims against the Does. WVDCR and the Does filed a response.1 Ms. Burton filed a reply. 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 circuit court’s order is appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure. Ms. Burton was incarcerated at Eastern Regional Jail (“ERJ”) located in Martinsburg, West Virginia. ERJ is a correctional facility owned and operated by WVDCR. On April 11, 2022, Ms. Burton alleges she was being loaded into a prison transportation van to be taken from ERJ to Potomac Highlands Regional Jail and Correctional Facility (“PHRJ”) for a one-night layover before she reached Lakin Correctional Center and Jail (“Lakin”). During the process of being loaded into a transport van, Ms. Burton alleges both her arms and legs were shackled. The complaint alleges “[t]he corrections officer did not help the plaintiff into the van and did brace her from behind as she attempted to lift her body into the van while shackled.” Ms. Burton further alleges she struck her head on a 1 Ms. Burton is represented by Joseph H. Spano, Jr., Esq. WVDCR and the Does are represented by Matthew R. Whitler, Esq. 1 metal pole while trying to enter the van, fell backwards down metal steps, and fell headfirst onto the ground suffering injury. She alleges the corrections officer moved out of the way and allowed her to fall. Finally, she alleges she did not receive medical care while she was at PHRJ or Lakin. On April 18, 2024, Ms. Burton filed her complaint against WVDCR and John and Jane Does. The complaint alleges a claim for negligence against all respondents, a claim for negligent infliction of emotional distress against all respondents, and a claim for negligent hiring, retention, and supervision against WVDCR only. On May 20, 2024, respondents filed a motion to dismiss arguing they were entitled to qualified immunity. Ms. Burton filed a response and respondents filed a reply. At the July 12, 2024, hearing on the motion, Ms. Burton’s counsel clarified that although the complaint states that the unidentified officer did “brace [Ms. Burton] from behind as she attempted to lift her body into the van while shackled,” it was intended to state that Ms. Burton was not braced during her attempt to enter the van. After hearing arguments from the parties, the circuit court found that the unknown correctional officer engaged in discretionary acts and that Ms. Burton failed to plead that the respondents were in violation of a clearly established right. The circuit court then granted qualified immunity to all respondents, dismissed all three counts of the complaint, and granted the motion to dismiss. That same day, Ms. Burton filed a motion moving the circuit court to reconsider its ruling to dismiss the negligence and negligent infliction of emotional distress claims against the Does. On July 22, 2024, after respondents submitted their proposed order, Ms. Burton filed a renewed objection to the dismissal. On July 26, 2024, the circuit court entered a written order granting the motion to dismiss on all claims with prejudice and denying Ms. Burton’s objections because there was no cause to reconsider its ruling. It is from this order that Ms. Burton now appeals. This Court reviews a circuit court’s rulings on a motion to dismiss under a de novo standard of review. Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995) (“Appellate review of a circuit court’s order granting a motion to dismiss