Consumer Protection

Michigan consumers are granted various protections under Michigan law. However, it is important to understand exactly what these rights entail. More importantly, if you believe your consumer rights have been violated, it is important to seek the assistance of an attorney to ensure you proceed in the appropriate manner. Aldrich Legal Services will always be glad to help you out in this situation.


This week, the Michigan Court of Appeals attempted to offer some clarification upon the Michigan Consumer Protection Act; which is the law that generally governs all consumer protection situations. In the first case, the plaintiffs hired the defendant, a contractor, to refinish their wooden deck. The plaintiffs requested the use of a specific sealing product, C, which defendant sold. However, C had been discontinued and replaced with product S, a clear stain. Plaintiffs disliked the color of the replacement stain and requested the use of S brand semi-transparent deck stain, a product that was not a “cross over product” for C. The next spring, after the winter’s snow and ice melted, plaintiffs observed the deck peeling and cracking. D performed a lab test upon samples from the deck, which resulted in a finding that the product did not fail, but rather the deck’s wood was delaminating. Plaintiffs sued defendant under a theory of express and implied warranties. The trial court determined a critical element of establishing an implied warranty was that a “defect in the stain was a proximate cause of the damage(s).” The trial court distinguished that to establish an express warranty, the failure of the stain would have to be the proximate cause of P’s damage. That a condition is “the” proximate cause implies that it was the only cause of the damage. This is a much higher standard to meet than asserting something is “a” reason the damage occurred. The Michigan Court of Appeals determined that the trial court was incorrect in emphasizing that the stain used must be the only cause of the damage, under either theory. Rather, for a consumer protection claim under breach of warranty, the plaintiff only needed to prove that the product used was a “reasonably likely” cause of the deck’s damage. The case was sent back to the trial court to analyze the potential breach of warranty under this lower standard of proof. Fox v. Sherwin-Williams Co.


A second case the Michigan Court of Appeals decided involved a denial of plaintiff’s insurance claim. Plaintiff purchased a used Mercedes-Benz in 2002 for $35,000. He obtained insurance through defendant. Five days after the car was purchased, it was stolen. Plaintiff notified defendant, but the car was recovered shortly after the theft. Upon recovery, plaintiff testified the car’s engine was removed and the ignition was “messed up.” Defendant felt the claim was “suspicious” and conducted an investigation, ultimately deciding it was fraudulent and denied the claim. Plaintiff sued for breach of contract, a determination that payment under the policy, intentional infliction of emotional distress, and violation of the Consumer Protection Act. The breach of contract claim went to trial and it was decided that the loss of car was not intentionally caused by plaintiff, and plaintiff was awarded $15,000 by the jury, which was reduced by the court to $8,000. All of plaintiff’s other claims were dismissed. Plaintiff appealed this decision to the Michigan Court of Appeals, and the decision was affirmed. They held the claims, other than breach of contract, were properly dismissed. The defendant concluded the claim was fraudulent in good faith, and this was not extreme or outrageous conduct nor an intent to cause emotional injury. Thus there was no violation of the Michigan Consumer Protection Act either. It was also affirmed defendants would pay plaintiff $8,000, for breach of contract. Hall v. Allstate Ins. Co.

Employment issues

Plaintiff was a temporary employee of defendant’s, and on September 11, 2001, he was perceived “as exhibiting signs of celebration when the World Trade Center was attacked.” A, one of defendant’s labor relations employees, and the union agreed plaintiff could finish his temporary employment, but was told he may only be considered for future positions at other locations. Plaintiff was unsuccessful in obtaining any of these positions, with no explanation. Defendant later instituted a buy-out program for employees and needed to hire temporary employees. C, who was in charge of these hiring decisions, compiled a list of temporary employees who had worked within the past two years, and those who received a referral from other employees. Plaintiff did not meet either of these criterions, and was denied a temporary position. Plaintiff sued, alleging he was denied this opportunity due to unlawful discrimination based on his national origin. The trial court determined that the plaintiff did not provide enough evidence to support this assertion, and this week the Michigan Court of Appeals agreed. The only evidence plaintiff provided was A’s reaction to the 9/11 incident. The court concluded that finding discrimination based on this was purely speculative. He also did not provide any evidence he should have been included on C’s compiled list of candidates, as he clearly did not meet either of the criterions. The case was dismissed in the trial court, and the Appellate Court affirmed. Shariff v. Ford Motor Co.

The defendant-driver struck plaintiff’s vehicle. An arbitrator awarded plaintiff over $501,000.00 and a judgment for this amount was entered against defendant. If defendant were acting within the scope of her employment at the time, her employer (CS) would also be liable for this amount. The trial court determined she was not within the scope of her employment, and dismissed CS from the case. Defendant-driver appealed this decision, arguing that she was acting within the scope of her employment. The trial court determined she was merely driving to work at the time, and there was no evidence she did any sales work that day before the accident occurred. The Michigan Court of Appeals reversed this decision, saying that there was enough evidence to reasonably conclude that defendant was within the scope of her employment, and whether she was is a determination a jury should make. There was evidence most of defendant’s job involved driving to various places, and 60% of her duties were conducted outside of the office. However, a performance review after the accident had indicated she was now required to start and end her day in the office. This left room for a jury to conclude that prior to the accident, there was no requirement for her to start and end her day in the office, thus rendering the accident within the scope of her employment. The Appellate Court decided a jury could reasonably decide her normal place of employment was her car, and CS would be liable. Since the evidence was not definitive either way, CS was reinstated in the case, and a jury should make a further determination regarding the scope of her employment. Daniels v. Petrosky-Clark.

Real property ownership and disputes

Ownership in property held by joint owners is generally described either as joint tenants with rights of survivorship, or as tenants in common. Joint tenancy does not allocate a specific percentage of ownership between the tenants. Rather, upon one owner’s death, the ownership right passes to the other joint owners. The last surviving joint tenant becomes the full owner. Tenants in common each hold an undivided interest as if they were the sole owner. Thus, these rights can be inherited and become part of someone’s estate upon death. If a conveyance does not specify which of these methods are being utilized, the law presumes a tenancy in common has been created.

The Michigan Court of Appeals recently decided a case that dealt specifically with this distinction. Plaintiff (Z) and decedent (S) were married in Poland in 1967, and had two children. S moved to the US alone in 1972, and fathered a child by another woman, named Stanley (defendant). S purchased property in 1978 on land contract, and in 1982 received title in his name and Stanley’s name. The 1982 deed did not specify the type of tenancy created. In 1987, S requested a “corrected” deed from one of the original transferors. At this time, S executed an affidavit that said although he requested Stanley be included in the title, he always intended that the property be conveyed only to S and his daughter, M, as joint tenants with rights of survivorship. His reason for revising the deed was his belief that Stanley (a minor) was incompetent to hold or convey title. During the course of this case, Stanley alleged that S requested this change at a time when S was obligated to pay a large amount of child support arrearage to Stanley’s mother, and his mother was pursuing collection upon this. In 1996, presumably believing child support was no longer an issue, M and S quitclaimed the property to themselves and Stanley, as joint tenants with full rights of survivorship. S died in 2006, at which time this dispute over ownership of the property arose. Plaintiff died to quiet title based on her dower rights, and Stanley sought to quiet title and for partition (dividing ownership into separate parts). The court agreed with plaintiff’s claim that she was entitled to a dower interest in S’s ownership, and S had no authority to alienate her dower rights. In 1982, as S was silent as to the type of tenancy created, it was held by S and Stanley as tenants in common. Dower rights were attached to the 1982 deed. The court held that the 1987 “corrected” deed was void and had no effect upon changing these rights. Therefore, at the time of S’s death, S and Stanley held the property as tenants in common. Plaintiff was allowed to claim her dower rights in S’s ½ ownership interest. Kopec v. Kopec.

In another recent case, plaintiff’s property was sold at a sheriff’s sale, after he failed to pay escrow and other various amounts due. Plaintiff sought to invalidate this sale. The trial court granted this request, stating that the plaintiff-homeowner’s contractual obligation to pay the full monthly payment was waived by the defendant-mortgage company, and thus the default was improper. The Michigan Court of Appeals reversed the trial court’s decision; ruling in favor of the defendant and upholding the sale. The plaintiff erred in failing to attach the mortgage and note (the written instruments) to their complaint initiating this action. The court also noted that there was no waiver of the obligation to pay the full amount each month, as the obligation was clearly stated in the mortgage. The mortgage also clearly stated that the defendant’s acceptance of less than the full amount on one occasion does not constitute a subsequent waiver of the right to accept full payment, unless defendant agreed to this waiver in writing (which did not occur). Plaintiff did not pay the escrow amount as required, and there was no evidence of any waiver on behalf of the defendant. Riddle v. Everhome Mortgage Co.

Antitrue (Unfair Competition)

Antitrust laws are designed to protect trade and commerce from unfair competition; they can also be looked at as “anti-monopoly” laws. The US Court of Appeals for the Sixth Circuit decided a case regarding antitrust issues this week. The plaintiff, Kentucky Speedway, LLC, sued NASCAR and an affiliated company (who owns multiple racetracks). The plaintiff alleged the defendants violated federal antitrust laws, specifically the Sherman Act, by not holding a Sprint Cup race at plaintiff’s racetrack, and also alleged they prevented plaintiff from purchasing other racetracks already hosting Sprint Cup races. The trial court granted summary judgment in favor of defendants. This decision was made because the court felt plaintiff’s expert witnesses were unreliable, and they failed to establish sufficient proof of any antitrust injury. Plaintiff said defendants were directly responsible for their loss of the Sprint Cup race; and defendants secretly agreed to shut out competition in the Sanctioning and Hosting markets. Plaintiff claimed they lost at least $175 million in injury from defendant’s anticompetitive conduct. They alleged the defendant’s anticompetitive conduct was deliberately calculated to drive independent tracks like plaintiff’s out of business, while seeking to prevent future businesses from challenging NASCAR’s dominance in the Sanctioning Market. Since plaintiff’s expert testimony was deemed unreliable, the plaintiffs had no evidence to prove impact on “relevant markets.” Inability to identify a relevant market is an essential element to establish causation under the Sherman Act. The plaintiff’s claim was properly dismissed, and the case was affirmed in favor of the defendants. Kentucky Speedway, LLC v. National Ass'n of Stock Car Auto Racing, Inc.

Defendant, M, was vice president of a company, QM, for about ten years. He notified K (the president and sole shareholder of QM) that he was going to resign. According to M, he resigned because K failed to honor his repeated promise to grant M 50% ownership in the company. M then incorporated his own business, QW, which directly competed with QM. Employees from QM voluntarily chose to become employees at the new QW; and many former customers made this switch to QW as well. QM sued M, claiming that M violated his fiduciary duties as vice president of QM- not by starting the new business; but rather QM claimed that M had breach his duty by planning to start a competitive business while still working at QM, resigning unexpectedly, and “taking” the employees and customers with him. QM failed to cite any legal authority for the claim that M was required to give “specific notice” of his intention to resign. Michigan law says that an officer “may resign with written notice to the corporation,” and an officer can be removed with or without cause, and no notice is required. This is permissive language, not mandatory, so the Michigan Court of Appeals decided that M did not have to provide any particular notice. Additionally, M did not have an employment contract with QM, rendering him at “at-will” employee terminable by M at anytime, for any reason. The trial court’s decision the fiduciary duty was breached was erroneous and reversed. Quality Mfg., Inc. v. Mann.

Insights In Law: Chapter 13 Bankruptcy

In the third part of this series on bankruptcy law in Michigan Attorney Benjamin Henry discusses Chapter 13. He explains the process, what is involved, and the types of debt that addressed.

Children

Heather, a high school freshman, was injured while playing soccer during her gym class at school. She was on the field with her team when her classmate, Travis, attempted to kick the ball away from her. He missed the ball and kicked her knee, breaking her femur. There was no evidence he had any intent other than to kick the ball. Plaintiff sued for ordinary negligence and reckless misconduct. Defendant argued ordinary negligence did not occur, because the children were engaging in a recreational activity and the risk of her injury was inherent in the game. Plaintiff contended that Travis was not a participant in the game, because he was not on any of the teams playing on the field. Travis testified that he was playing within the game, but there was no evidence why he was coming onto the field. The Michigan Court of Appeals decided that the trial court had interpreted “participant” too narrowly. The parties both testified he was trying to get the ball away from Heather, so it was not proper to only look at whether he was an assigned team member. The trial court, in finding in favor of plaintiff, improperly relied on Heather’s speculation that Travis should not have been on the field. As he was engaged in the activity, plaintiff assumed the risk of the injury that occurred. The Court of Appeals reversed the trial court’s decision, and made a decision in favor of the defendant. Willford v. Thorington.

The Michigan Court of Appeals decided another case regarding children this week, in which they determined that a mother’s parental rights were properly terminated. She had ingested a bag of cocaine before his birth; and claimed that she did not intentionally harm the child, and did not know the potential effects on unborn children. She completed parenting classes and therapy, but violated her probation and pleaded no contest to possessing cocaine approximately one year after her children were removed from her care. She admitted to smoking marijuana everyday since she was 12 years old, and denied having a cocaine abuse problem. She contended the only time she ingested cocaine was to avoid being caught with it; the evidence showed she previously tested positive for cocaine on at least one previous occasion while pregnant with the child. The evidence showed she failed to effectively address her substance abuse issues. Additionally, she had no legal employment at the time of termination. She had only worked for 3-4 months during the trial court proceedings, the last of which was over a year before trial. She had no income with which to support the children, and proposed her and her five children would share a mobile home with her mother and sister. During interviews, two of the children had disclosed evidence of domestic and sexual abuse as well. The trial court properly terminated her parental rights. In re Goins.

Insights In Law: Chapter 7 Bankruptcy

In the second part of this series on bankruptcy law in Michigan Attorney Benjamin Henry discusses Chapter 7. He explains the process, what is involved, and the types of debt that addressed.

Insurance

In a decision from the Michigan Court of Appeals this week, the defendant was a nonprofit corporation that provided housing to 16 to 19-year olds transitioning into adulthood. Defendant leased a building from plaintiff. Plaintiff alleged that two of the residents engaged in an argument that resulted in one of the teenagers setting fire to a room the resident supervisor was sleeping in. The lease provided that both parties were waiving their right of recovery against each other, and that each party would maintain separate insurance. After the fire, the plaintiff sued defendant under various theories, including negligent hiring, and sought to recover the replacement value of the property and other damages. The trial court denied defendant’s motion for summary disposition. The Court of Appeals reversed, and ruled in favor of the defendant. They found that the lease provision was broad enough to encompass fire insurance. The risk of loss was allocated to the plaintiff in the lease. The plaintiff had already recovered $30,000 from their insurer, which was the maximum the policy allowed. They could not further recover from the defendant. Gilmore v. Spectrum Human Servs., Inc.

Plaintiff was injured in an automobile accident with an uninsured motorist. He submitted a timely claim for first-party benefits, but did not notify the defendant-insurance company of this claim until more than a year after the accident. The defendant denied his claim; relying on the contractual language that states written notice of an uninsured claim must be received by defendant within one year of the accident. The plaintiff argued that this contract provision was not valid, as it was “unconscionable” or unfair to him, because he had no power to bargain with defendant at the time the contract was signed. The Michigan Court of Appeals found the provision to be fair to Plaintiff, and enforced the contract as written. The language was also unambiguous. The defendant’s decision to deny plaintiff’s insurance claim was upheld. Marshall v. Farm Bureau Gen. Ins. Co. of MI.

Michigan Real Estate Law: Tax Assessments

Torts

Torts are civil wrongs that people commit against each other, resulting in damage. In order to sue someone for injuries that they have caused to you, it must be proved that person had a duty to you, and that duty was breached.

The Michigan Court of Appeals decided a case this week that involved the duty owned by a building owner to apartment tenants. The plaintiff was asleep in his apartment unit when a fire broke out. By the time he woke up, the fire was blocking the only door to his apartment, preventing him from being able to safely exit the apartment. He jumped from his second floor apartment window, suffering severe burns, broken bones, and paralysis. He later developed pneumonia and passed away. To determine whether the defendant-building owner owed plaintiff a duty to provide more than one way into/out of the apartment, the court looked to the Building Official and Code Administration law in Michigan. The law clearly states that if a building owner wishes to provide an alternate means of entry into the apartments, it must service the entire floor and cannot be accessed by going through another living unit. The plaintiff’s proposed secondary exit- a portable ladder- would not service the entire floor without having to enter another unit. Therefore, defendant was not required to provide one. The plaintiff lost at the trial court, and the Court of Appeals herein affirmed. Estate of Brannon v. KZ Props., LLC.

The Michigan Court of Appeals decided another case regarding the duty owed by defendant to the plaintiff. The plaintiff’s windshield was struck by a large object, striking her in the head and causing her death. Defendant was driving along the road in the opposite direction at the time, carrying large pieces of slag from a nearby steel mill. Plaintiff’s theory was that a large piece of slag was lodged in defendant’s tire, and it hit the windshield after becoming dislodged. Plaintiff claimed the defendant was negligent in not inspecting the tires and discovering the slag leaving the steel mill. The court determined that the defendant owed plaintiff a duty to use “reasonable care,” and at the trial, and whether this duty was breached is a determination for a jury to make. There was also a lack of evidence that the slag was definitely the cause of plaintiff’s death. The jury had found the defendant was not negligent, and the Court of Appeals affirmed. Heikkila v. North Star Steel Co.

Real Estate Law: Zoning

Parental Rights

This week, the Michigan Court of Appeals heard an appeal from a decision terminating a mother’s parental rights. The facts provided that the mother had failed to take her special needs child to clinics for treatment, as well as experiencing problems taking all of her children to the doctor. She provided all of the children with unstable housing, as she could only keep them in transitional housing provided to her by the Hope Community; and proved unable to move beyond this. The court also looked at the fact the mother engaged in substance abuse. She was heavily involved with alcohol, before relapsing and using marijuana. The Court has previously attempted to provide her help for her substance abuse, which she did not take advantage of; and at the time of trial, she did not have the ability to even care for herself. She had lied to caseworkers that were trying to help her reunite with her children. Her entire “social support” system throughout the proceedings was with a person who assaulted her. The mother’s undisputed love for her children was not enough for the Court to reinstate her parental rights, affirming the lower court’s decision in favor of termination. In re Hackney-Jackson.

The Michigan Court of Appeals also held up another termination of a father’s parental rights, again affirming the decision the lower court had made. The evidence was determined to be “clear and convincing.” The father had broken the arm of the child’s half-brother. While beating the half-brother with a belt, the child attempted to cover himself, and the father yanked his arm so hard the child’s upper arm suffered a “spiral fracture,” meaning the bone had been twisted apart. He waited several days before even seeking medical treatment for the child. There was evidence the father had sexually and physically abused the half-brother, as well as evidence of “inappropriate touching” with another child. Considering all this, the trial court determined there was a reasonably likelihood the child in question would also be abused if placed under the father’s care. This supported termination of his parental rights. The trial court also did not err in relying on “anticipatory negligence;” the abuse of the sibling child was enough to determine the father would not be able to provide another child proper care. In re Layton.

Real Estate Law: Adverse Possession

In the first part of this series on real estate law in Michigan Attorney Brad Aldrich discusses the issue of Adverse Possession. He explains the time line of this process, the players involved, and a high level strategy for parties entered into adverse possession.

Adverse Possession is the process by which title to another's real property is acquired without compensation, by holding the property in a manner that conflicts with the true owner's rights for a specified period. This can be done by a city, county, or state.

Foreclosure and Defamation

The Michigan Court of Appeals decided a case this week relating to a deed purchased through foreclosure proceedings under the General Property Tax Act. The trial court had ordered the cancellation of a quitclaim deed issued to the respondent-appellant (C) by the petitioner-county treasurer, and quieted titled in K and B. The property was involved in a mass foreclosure action instituted by the county treasurer, who possessed title pursuant to a foreclosure judgment. K was the only legal titleholder at the time of foreclosure. After the property was sold to C, B and three others claiming to be lessees moved to set aside the foreclosure judgment, cancel C’s deed, and quiet title in B, as the lessees did not get notice of foreclosure and thus denied constitutional due process. There was a lack of factual evidence regarding the steps the county treasurer took to notify K of the action, and the certified mailings that were presented were questionable. It was also questionable whether the county treasurer also made an attempt to visit the property and give the lessees notice. The Court of Appeals noted that whether these personal visits happened was critical, and it must be determined whether they actually occurred before determining whether there was sufficient notice of foreclosure; because a “change in ownership could affect occupancy.” In re Petition of Wayne County Treasurer.

In another case coming from the Michigan Court of Appeals, the plaintiff was a state-chartered credit union, which the defendant owned an account at. In October 2001, defendant received an automotive loan from the plaintiff, which she defaulted on in 2005. Plaintiff filed suit to recover possession of the car, and collect the rest of the money defendant owed. Defendant claimed that plaintiff had taken or misappropriated funds from her account, and presented a transaction summary she received from an “inside source” at the credit union. Plaintiff claimed this summary was fraudulent, and did not engage in the $40,000 worth withdrawals defendant alleged. Defendant sent plaintiff’s CEO a letter, enclosing materials she intended to distribute that detailed how untrustworthy the credit union was. She appeared three days later at the main branch to picket, with a sign reading “see how Detroit Teacher’s credit union now known as Michigan First stole my $40,000.” She also passed out flyers, stating that plaintiff stole her money. Several customers witnessed this, and went into the credit union to question what was going on. Plaintiff’s attorney sent defendant a letter, asking her to cease this behavior, including passing out disparaging information about them. She picketed and passed out the flyers several more times. Plaintiff sued defendant on the basis of slander, libel, and defamation. Plaintiff was granted summary disposition, on the basis that there was no question of fact whether these three allegations were met. The Court of Appeals reversed this decision and remanded the case to the trial court, concluding there were questions of fact in dispute. Michigan First Credit Union v. Smith.

Insights In Michigan Law: Property Tax Foreclosures

Car accidents

Michigan Court of Appeals decided a couple cases this week that involved automobile accidents. In the first, the Plaintiff sustained lower, front-end damage to her car in an accident. She took it to the Defendant-repair shop for repairs. After she picked up the vehicle, she complained to Defendant the vehicle vibrated when driven, and it did not do so before the accident. Defendant told her the tires were out of balance. The vibration continued and worsened, and she took the vehicle to another repair shop, where the front axle and motor mount were repaired. She sued Defendant for failing to fix this damage. Less than two months later, she lost control of the vehicle when it began to shake, it veered off the road, flipped over, and caused her severe injuries. The mechanic who inspected the vehicle determine that there was serious problems with the steering system, which a proper inspection by Defendant would have revealed, both after the initial accident and after she complained of vibration. She again sued Defendant, and Defendant asserted that her claim was barred by the previous lawsuit she had filed. The Court of Appeals determined that this was a separate cause of action, based on different facts, and Defendant had a duty to exercise reasonable care. They denied Defendant’s allegation the claim was barred, and sent the case back to the trial court to determine whether Defendant, in fact, breached the duty that was owed to Plaintiff. Webb v. David Eric Williams, L.L.C.

In another case, the Plaintiff was struck from behind in an automobile accident with Defendant. This caused Plaintiff to strike his mouth on the steering wheel, causing damage to his front tooth. The tooth was fractured and needed to be removed. His dentist had previously told him that at some point in the future, he would need dentures to replace his front teeth. His injury accelerated this necessity, and Plaintiff had 14 teeth extracted and replaced with an upper denture. The court decided that although he had existing dental problems, "the aggravation or triggering of a preexisting condition can constitute a compensable injury." Plaintiff could not eat without the device, he experienced pain and difficulty, and it altered his speech. The court compared this situation with a recent case in which an automobile accident victim required his knee be replaced with a prosthetic joint, and the court allowed compensation to the victim. The same analysis applies here, as he must forever rely on the prosthetic device to participate in everyday activities. The court concluded this was a “serious impairment of body function,” and it amounted to permanent serious disfigurement. They sent the case back to the lower court, to analyze the seriousness of the injury to assign damages. Fisher v. Blankenship.

Insights In Michigan Law: Insurance Disputes

Bankruptcy

Although the debtor was not living in her cabin when she filed a petition for bankruptcy, she requested the U.S. Bankruptcy Court for the Eastern District of Michigan determine she was “constructively” occupying it at the time. She and her late husband purchased the cabin in 1993 as a recreational home for the summer, weekends, and holidays. After her husband died, the debtor and her mother moved into the cabin. They decided they needed more space, and bought the home next door (the Carter home). While the debtor lived in the Carter home, she rented the cabin to her daughter and son-in-law. After losing her job, she consulted with a bankruptcy attorney and decided to move back into the cabin, as she could not afford the payments on the Carter home. She was having difficulty convincing her daughter to vacate the cabin, and thus remained in the Carter home, including at the time she filed for bankruptcy. Again, the issue in this case was whether she could claim the cabin as her primary residence, thus allowing her to take a homestead exemption for it in her bankruptcy proceedings. The standard the court utilized to make this determination was first, whether she moved out of the cabin involuntarily, and second, whether the move was coupled with the intent to move back into the cabin at a later time. There was no evidence supporting either of these factors. The court denied her attempt to claim the cabin as her primary residence for bankruptcy purposes. In re Hickmott.

The U.S. Bankruptcy Court for the Eastern District of Michigan decided yet another bankruptcy case this week as well. Before filing for bankruptcy, the debtor and his wife divorced. The consent judgment of divorce was entered in January 2008, and did not award spousal support, but provided the debtor pay his ex-wife child support, a debt related to a motor home, and some money owed to American Express. The debtor did not pay his ex-wife any of these amounts. On April 22, 2009, the divorce court ordered the debtor to pay spousal support of $22,875, to cover these amounts he was previous ordered to pay. The debtor again failed to pay his ex-wife this amount, and filed for bankruptcy on June 2, 2009. On June 5, 2009, Ford Motor Company issued debtor a check for $44,100, as employment buyout proceeds. The bankruptcy trustee argued this entire amount was part of debtor’s estate, and the ex-wife argued that this money should be used to satisfy the judgment she received on April 22, 2009. The court noted that the ex-wife’s claims should be allowed when “it is necessary to do equity.” The court concluded that the ex-wife should be entitled to the proceeds from the employment buyout. In re Burlett.

Click the following link to download this free guide to Understanding Bankruptcy. A 13 page PDF created by the National Consumer Law Center.

Understanding Bankruptcy PDF

Insights In Michigan Law: Unemployment

Child custody and mold problems

In this case, the Plaintiff was going through divorce proceedings, and requested full custody of his daughters. The daughters subsequently made complaints about their father to their daycare provider, including allegations of inappropriate sexual conduct. The Department of Human Services filed a petition to terminate his parental rights, and the county prosecutor brought criminal charges against him. The children later withdrew their allegations, and the prosecutor moved to dismiss the petition and charges, which was granted. Plaintiff brought an action for gross negligence against the government agencies that had investigated him, saying their conduct was “objectively unreasonable.” The Michigan Court of Appeals affirmed the lower court’s decision that the children’s allegations were a sufficient reason for the investigation to be conducted. The Plaintiff attempted to argue that the defendants should have known the children’s allegations were false, as they were made during a bitter custody battle. The Court also rejected this argument, and the Plaintiff’s action failed. McCarthy v. Scofield.

The Michigan Court of Appeals also ruled on a real property case this week. The plaintiff-buyer purchased a house from defendant-seller. The plaintiff elected to have an inspection done before completing the sale, which did not reveal leaks in the basement, but indicated there was water damage. The plaintiff believed this was from the air conditioner, and did not contact the defendant-seller to say she was dissatisfied with the home’s condition. After moving in, plaintiff discovered the basement wall was stained, and puddles were on the floor. She discovered the basement contained a toxic type of mold. A few months later, her children began getting sick, and she moved out of the home. The plaintiff sought to cancel the contract, claiming there was a “mutual mistake” about the mold. The trial court agreed, saying neither party knew about the mold and the plaintiff was entitled to cancel the contract. The Appellate Court reversed this decision, pointing out the sale was “as is.” When as sale is conducted “as is,” the risk of the home’s condition, whether it was known or not, should lie with the buyer. Hunt v. Elephant Real Estate, Inc.

Insights In Michigan Law: Divorce

Employment insurance, liability for trees on residential property, and pedestrian accidents

D approached W in response to a “Help Wanted” sign. D started performing work for W and his company (the defendant), but there was no hourly arrangement. D worked at W’s business and home 5-6 days a week, slept in a vehicle in W’s driveway, lived rent-free in a spare residence owned by W, and W routinely gave D food and small amounts of case. D was severely injured while working on W’s business premises. Defendant did not have worker’s compensation insurance, but had a commercial auto policy that excluded coverage for bodily injury caused to employees within the course of employment. The plaintiff-insurance company sought to avoid paying benefits on this exclusion, claiming D was not an employee. The trial court found in favor of the defendant, saying that D was not an employee. The Michigan Court of Appeals determined that there was evidence of employment, and remanded the case back to the trial court, to allow a jury to make the determination whether D was an employee or not. Progressive MI Ins. Co. v. Contract Towing, Inc. This goes to show that in the absence of a structured employment agreement, it is still possible to use a company’s actions to deem individuals as “employees” for insurance purposes.

A 16-year old was walking down the sidewalk adjacent to defendant’s property, and a large tree cracked and fell on him, causing his death. The tree broke due to extensive interior rotting. Plaintiff claimed the tree was dead and in a hazardous condition for an extended time, and defendants were negligent for not removing the tree. Defendants claimed they did not know or have reason to know of the tree’s condition, as it appeared healthy. Plaintiff relied on the testimony from neighbors, stating that many birds lived in the tree and ate insects living on the tree, thus indicating that it was diseased. Experts testified the presence of birds regularly roosting in the tree did not indicate a structural problem with the tree. Defendants regularly hired a tree trimmer to perform maintenance upon the tree, and nothing was ever observed to indicate the tree was dead or diseased. The Michigan Court of Appeals found in favor of the defendant, stating that hindsight cannot create liability where defendants did not have, or have reason to know, the tree could possibly fall. Amin v. Marino S. Papalas Trust.

Plaintiff, a high school student, and a group of his friends were standing on the side of the road, waiting to cross. The defendant-driver testified she saw them standing on the side of the road, but did not see them make any movements indicating they would move into the road. She heard a “thud” and saw Plaintiff on the ground. All witnesses said that plaintiff hit the side of the car. The trial court determined that there was not adequate evidence to determine that the defendant swerved toward the plaintiff, as the damage to the car was on the front passenger door. There was insufficient evidence to show defendant was negligent; a jury who made this decision would be merely guessing. There was no reasonable evidence of speeding, and no evidence defendant was talking on her cell phone at the time. The accident occurred sometime between 3:30 and 4:15 pm. Cell phone records indicated use of defendant’s phone between 3:49 and 4:39, but a finding she was talking on her cell phone would be mere speculation, as the exact time of the accident was unknown. The Michigan Court of Appeals affirmed the decision that the defendant was not liable for negligence. McCuish v. Jaffe.

Insights In Michigan Law: Traffic Violations

"Black Book" and "Black Ice"

This case arose from an incident that occurred at the Greektown Casino (the defendant). Staff members thought that plaintiff’s conduct was suspiciously indicative of money laundering. Ford, a state police officer, was called. Ford saw the suspicious activity on the surveillance tapes, and decided to further investigate. He approached the plaintiff for questions, and she was detained for approximately three and a half hours. During this time, Ford took the $29,000 in cash she possessed. Ford said she could not have it back until she brought documentation of how she received the cash, which she alleged was through refinancing a mortgage. She brought documentation two days later, and was never charged with an offense. She sued defendants, for false arrest and imprisonment. She claimed that during the time she was detained, she was not given anything to drink and was not allowed to use the bathroom. Ford defended himself on the basis that he had good cause for plaintiff’s detention, which would give him government immunity for his actions. The trial court found that he did not have sufficient probable cause the plaintiff was engaging in money laundering. The burden of proving probable cause was on defendant, and he failed to meet this. The Court of Appeals agreed with the trial court, and affirmed their decision. Simmons v. Greektown Casino, LLC.

“Black ice” is considered open and obvious only if it would have been visible upon casual inspection, or if there is other substantial evidence of hazardous conditions. The plaintiff in this case slipped and fell on black ice on her way into a mall, owned by defendant. Plaintiff testified that it was sunny and unreasonably warm on the January day that she fell, but it had cooled down by nightfall. Weather records indicate that the daytime temperature was around the freezing point. Plaintiff said that there was no snow to alert her there may be ice, and the entrance was dark so she could not see. A witness testified there was snow and shrubs around the walkway. The witness went out to spread salt, but could see no ice, so he just put salt around the area. The plaintiff and security officer testified that with headlight illumination, the ice was visible and the defendant’s witness should have been able to spread salt over where the ice specifically was. The trial court ruled in favor of the defendant, and the Michigan Court of Appeals decided this evidence was too conflicting and a jury should be able to decide if the ice was “open and obvious.” Brown v. Taubman Co., LLC.

Aldrich Insights In Michigan Law: Bankruptcy

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Some Tax and Insurance Nuances

Most people are familiar with the language “plaintiff” and “defendant” in regards to the parties to a legal action. However, when cases are appealed, the person who presumably lost at the lower court and is appealing the decision is referred to as “petitioner,” and the party that previously “won” is referred to as the “respondent.”

In a case from the Michigan Court of Appeals, the petitioner owned property in the City of Orchard Lake, which was damaged by fire in 2001. 19 days later, petitioner purchased a condominium in Farmington Hills. Petitioner claimed the “homestead exemption” on his taxes for his Orchard Lake residence. He argued this was still his primary residence, as he made extensive repairs to the property without asking for insurance proceeds to do so. Instead, he litigated with the insurance company for five years, in an attempt to obtain the full replacement value for his residence. The Court determined that his Farmington Hills condo was now his primary residence, not the Orchard Lake home. This determination was made on the basis that petitioner and his wife registered to vote in Farmington Hills in 2002, actually voted in elections, and listed the address on his driver’s license. Petitioner failed to establish the Orchard Lake residence was his “principle residence” from 2003 to 2006, and could not claim it under the “homestead exemption” on his taxes. Casey v. City of Orchard Lake.

Defendant married E in 1990. E named Defendant as a beneficiary under an employer-provided life insurance policy. The couple divorced in 1992, and the judgment of divorce states "any of the rights of either party in any policy or contract of life, endowment or any insurance of the other as beneficiary or otherwise, is hereby extinguished unless specifically preserved by this Judgment." E never removed Defendant as a beneficiary of the policy. E died, and Defendant was paid the insurance proceeds, as her name was still on the policy. Plaintiff, as the Personal Representative of E’s estate, sued Defendant on the grounds that Defendant had no right to retain the insurance proceeds, and retention of such was breach of the divorce agreement. The Michigan Court of Appeals agreed with the Plaintiff; the language of the divorce judgment specifically extinguished Defendant’s rights to any of the insurance proceeds. This shows that that parties’ agreements and intentions when they get divorced, as expressed through the language of the judgment, will be governing in subsequent actions such as this, where someone’s name was not removed from an insurance policy. However, if the divorce agreement had not contained this language and was silent as to the insurance policy, the Defendant would have a much stronger case and may be able to keep the insurance proceeds. Brown v. Wright.

Insights In Michigan Law: Probate and Estate Planning

Insights in Michigan Law Probate and Estate Planning from Brad Aldrich on Vimeo.

Employment Discrimination

The Plaintiff in the first case is of Latin-American descent, and this is a “protected class” which cannot be discriminated against for racially prejudiced reasons. He claimed that he was fired from his television producer position for racially prejudiced reasons; as those outside his protected class were not fired. However, the Defendant employer brought forth evidence to show that his layoff was purely due to budgetary constraints; which is a legitimate, non-discriminatory reason. There was also no evidence that the Defendant retaliated against him for pursuing a discrimination suit, by not rehiring him for an open position. The Michigan Court of Appeals determined the lower court properly dismissed these claims. Moralez v. Michigan State Univ. Bd. of Trs.

Another Plaintiff was terminated from her position at the defendant-WSU School of Medicine. She claimed that she was discriminated against based on her gender and subsequently fired because she filed an internal complaint regarding this discrimination. Defendant brought in an investigator to look into Plaintiff’s discrimination claim, and the investigator had determined that there was evidence of discrimination. However, the investigator testified she was using an incorrect analysis of gender discrimination when she prepared the report; thus the court would not admit the report into evidence to be considered, as it posed a risk of unfair prejudice to the Defendant. The Michigan Court of Appeals agreed with the lower court, as it was prejudicial and did nothing to answer the real issue- which was whether she was fired for filing a discrimination complaint. Fitzgerald v. Wayne State Univ. Bd. of Governors.

Yet another Plaintiff was heard on employment discrimination suit in the Michigan Court of Appeals this week. He claimed he was not chosen for a position because he was Caucasian, and the employee chosen was of Middle Eastern descent. He argued the company made this decision because it made her more “appealing” to the population in the surrounding area. This position would have been a promotion for him with “drastically different duties,” based on the greater earning potential and the opportunity for business in new, unestablished braches. The Defendant argued against racially biased motives, and further argued the position was only a lateral transfer and would not have been a promotion for him. The lower court found in favor of the Defendant, and the Appellate Court reversed this decision and remanded the case back to the lower court, with the instruction to conduct more research into whether there was evidence of discrimination. The Appellate Court noted that there was essential information that had not yet been discovered that would help make the determination whether there was discrimination, and this information should be discovered and considered. Gorbe v. TCF Bank.

Mortgage Foreclosures

Dissolving of corporations, home insurance, and auto accidents

The Michigan Court of Appeals heard a case involving a refrigerator company (the Plaintiff), which dissolved its corporate status in October 1975. In 2003, a $188,699.99 check payable to the Plaintiff was deposited in the Department of Treasury’s “Unclaimed Property Division.” Plaintiff’s claim to the funds was denied, and Plaintiff brought this action alleging they were the rightful owner of the funds. They argued that they continued to exist as a legal entity after 1975, and thus could bring this action on behalf of the corporation. The court rejected this argument, saying that corporations are only allowed a “reasonable” amount of time to wind up their affairs. After the “winding up” process, the corporation will cease to exist. They further held that, as 32 years have passed, a “reasonable” amount of time has already passed, and the corporation no longer exists. After a corporation is terminated, it loses the power to sue and be sued. Thus, they could not sue to recover this unclaimed check. Flint Cold Storage, Inc. v. Department of Treasury.

Another interesting case the Michigan Court of Appeals decided was regarding the interpretation of an insurance policy. The Defendant was having dinner with his lady friend, N, when N informed him that her ex-husband, D, had physically abused her. The Plaintiff later returned home, where D and his girlfriend, R, were visiting with each other. Defendant and D got into an altercation over the fact that N had been physically abused. Defendant demanded that D and R leave his residence, and D refused. Defendant got a rifle from his room, and threatened D. In threatening him, he attempted to shoot the rifle at the ground. Unfortunately, the bullet ricocheted off of the floor and struck D in the ankle. Defendant plead guilty to felonious assault. D then sued Defendant for the harm he suffered in regards to his ankle. Defendant filed a claim under his homeowner’s insurance policy; however, his claim was denied. The Plaintiff insurance company determined that they had no duty to defend or indemnify Defendant, as the shooting did not qualify as an “occurrence” under his homeowner’s policy. “Occurrence” was defined as “an accident, including the continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in…bodily injury.” Defendant claimed this qualified as an accident, yet “accident” was not defined in the policy. The Court held that Defendant could not argue how “accident” should be interpreted, as he already plead guilty to the intentional discharge of a firearm at a dwelling. Also, a reasonable person in Defendant’s situation would have foreseen that a substantial risk of injury resulted from his actions. Therefore, the insurance company did not have to pay for his actions. Liberty Mut. Fire Ins. Co. v. Stoutenburg.

In civil trials, the burden of proof that the Plaintiff needs to meet is called “preponderance of the evidence.” This standard means that there must be a greater than 50% chance the Plaintiff’s proposition is true. If it is equally likely the Plaintiff may or may not be correct, the Plaintiff’s claim must fail. Another decision from the Michigan Court of Appeals this week involved an automobile accident. The defendant was driving around 3:15 am, through light rain, when the intoxicated Plaintiff staggered into the middle of the street. Defendant failed to stop in time, striking the Plaintiff. He was taken to the hospital for treatment, where it was discovered the Plaintiff had a BAC of .242 and tested positive for a few other drugs. He sued the Defendant for negligent operation of her car. The Defendant argued the Plaintiff was at least 50% responsible for the injuries, given the substantial evidence of his intoxication. The Court determined that the Plaintiff failed to meet his burden of proof, i.e., he presented no evidence that would prove he was less than 50% responsible for the accident. Therefore, the Plaintiff lost his case for this reason. Williams v. Robinson.

What does "Statute of Limitations" mean?

Plaintiffs obtained a loan with Defendant to purchase a home. Defendants approved an interest rate of 9-10%, but promised Plaintiffs if they made high payments for one year, they would be able to refinance at a lower rate after one year and save a substantial amount of money. After a year, the Defendant refused to refinance the loan. Plaintiffs sued them under various state and federal laws; for breach of contract, conspiracy to commit fraud, wrongful foreclosure, and vicarious liability, among other things. The U.S. District Court for the Western District of Michigan, where this case was heard, is the federal court exercising jurisdiction over the western part of the state. They decided that the Plaintiffs waited too long to bring their federal claims (violating what is known as the “statute of limitations,” which statutorily dictates the time period in which claims must be brought or else they will expire), and dismissed the federal claims. After they had dismissed the federal claims, the court is allowed to use their discretion whether they still wish to deal with the state law claims. In this case, the court declined and dismissed the state law claims, as well, without prejudice. When claims are dismissed with prejudice, it means that the plaintiff cannot re-bring the claims against the defendant in a different court. However, the fact that the state claims were dismissed without prejudice will allow the Plaintiff to still bring their claims in the appropriate state court. Mackie v. Arbor Mortgage Corp. It is important to remember that if you think you might have a cause of action against someone, you need to bring it within a certain amount of time or you will lose this right. These time periods vary greatly, so it is important to get proceed with your case as soon as you can if you are unsure what your time limit is.

Interestingly, the U.S. District Court for the Western District of Michigan made another very similar decision this week, in Robinson v. VanDyk Mortgage. Again, Plaintiffs were deceived into agreeing to a certain mortgage with the promise of refinancing later, and Defendant declined to refinance. The Plaintiff brought similar claims as in the first case; yet the federal claims were brought too late and could not be heard. The Court dismissed the entire case once again, stating that the state law claims should be heard in a Michigan state court. This was to protect Michigan’s interest in interpreting and applying our own mortgage laws, instead of having a federal judge do so for us.

Watch out for ice on the sidewalk! And some thoughts on housing discrimination.

For people in the Michigan area, snow and ice is probably the last thing we want to think about right now! However, it is something we are all too familiar with. In this case before the Michigan Court of Appeals, the Plaintiff fractured his ankle when he slipped on a patch of black ice in a parking lot. He sued the Defendant, claiming that the ice was “open and obvious,” and therefore the Defendant was at fault for not taking care to remove the ice. The Court rejected this argument, claiming that black ice is inherently invisible; therefore it is a contradiction to say it was “open and obvious.” They specifically noted that a longtime Michigan resident should be used to the fact that when it has been snowing, they should look out for ice. The fact that the roads leading to the parking lot, and the parking lot itself, had been plowed during the day did not persuade the Court in favor of the Plaintiff. Keep this in mind when it starts to snow in a few months! Janson v. Sajewski Funeral Home, Inc.

Summary judgment is a procedural tool our courts use, where a judge decides the case without having to go through an entire trial. Summary judgment is appropriate where all of the evidence presented is such that there are no issues left to determine at a trial. Whether or not there was an issue left to be determined at trial was the main issue the US Court of Appeals for the Sixth Circuit (the federal court in Michigan) addressed in Lindsay v. Yates. Defendant Yates refused to sell her home to Plaintiffs, who were qualified African-American home buyers. Defendant claimed that she changed her mind about selling the house, because she wanted to keep the property “in the family.” Plaintiffs sued her for discrimination, claiming she really denied them the sale because for racially motivated reasons. The lower court granted summary judgment to the Defendant. This was granted because, presumably, the Judge determined there was no way the Plaintiffs could have won at trial, specifically because the property did not remain available for sale after the Plaintiffs were denied the sale. However, Defendant agreed to sell Plaintiffs the property before meeting Plaintiffs face-to-face, and cancelled the agreement to sell two days after meeting them in person. The Court of Appeals decided that this close proximity of events would leave open the opportunity for a juror to affirmatively decide there was discrimination going on. Because the facts were not clearly in favor of the Defendant, summary judgment was deemed inappropriate and the case should go to trial.

Racially Offensive Comments

In the US Court of Appeals for the Sixth Circuit, this week they addressed a case that dealt with employment discrimination. Plaintiff received a “warning” from his employer, stating that they felt he was engaging in making “racially offensive” comments towards another employee. Plaintiff claimed that other employees engage in the exact same speech, against the exact same employee, so he felt his warning was discriminatory since no one else received one. Plaintiff entered into a “settlement agreement,” in which the employer agreed to strike the warning from his record, in exchange for Plaintiff’s admission of his racially offensive comments. Since they had this agreement, his discrimination argument really held no weight. Even without this agreement, the Court felt that his discrimination claim was still invalid, as he did engage in offensive behavior and there is nothing wrong with reprimanding an employee for doing something wrong. Courie v. Alcoa Wheel & Forged Prods. It is important for employees to keep in mind that when they do something that goes against company policy, the fact that others behave similarly is not a reliable defense.

Grandparents- Read this!

Many people may not know this, but under Michigan law, grandparents have rights to visitation with their grandchildren. Grandparents rights can be sought in certain situations, for example when the children’s parents have divorced, deceased, or never been married. The court can compel a “grandparenting time order” when it is found to be in the children’s best interest. This is not an action for custody, but rather just visitation time with the child. Thus, proving the children’s “best interest” looks at things like the mental and physical health of the grandparents, children’s preferences, love and affection, and the amount of time spent together in the past. If you or someone you know is in this situation and is being denied time with your grandchildren, please contact us here at Aldrich Legal Services to explore the options available for grandparents’ rights.

This week, the Michigan Court of Appeals ruled on a case involving the “equitable parent” doctrine. The equitable parent doctrine allows non-biological parents to petition to receive full parental rights. The first step to establishing these rights is to establish that the adult and child mutually acknowledged a parental relationship; or, to alternatively prove the biological parent promoted the establishment of a parental relationship between the non-biological parent and child. The Court determined that the child’s biological parent, in this case the mother, did not contribute to the establishment of a father-child relationship. The husband did not attend any medical appointments, and there was no evidence she had asked him to be a father figure. The mother only allowed her husband to assume the role of sole care provider for a total of 11 hours during the first 4 months of the child’s life. She did not allow him to pick the child up from daycare, did not allow him to provide overnight care, and never lived in the martial home after the child’s birth. Vanderark v. Vanderark. In order to successfully assert the equitable parent doctrine, it needs to be shown that the adult was actively involved in the child’s life, and that there was some intention for that individual to assume a parental role. Being responsible for the monetary costs of raising the child is also necessary.

Spider bites in rental homes... and should NFL players be allowed workers compensation if they are injured?

This week, the Michigan Court of Appeals made a very interesting decision regarding spider infestation in a rental home. Plaintiff was bitten by spiders in the house, and informed the defendant rental company. Defendants denied responsibility for correcting this problem. Two months later, Plaintiff was again bitten, became ill, and moved out of the house. The plaintiff sued the defendant, alleging that the defendant had a duty to eliminate the spider infestation, as it rendered the premises unfit for its intended use. The Court ruled in favor of the defendant. They said that the rental company had a responsibility to keep the house “in reasonable repair.” The presence of spiders is seasonal, just like ice or snow, and rental companies do not need to eradicate them from the premises. The plaintiff would have needed to prove there was actual damage to the house from the spiders that the company failed to repair. Redmann v. Leete.

The Michigan Court of Appeals also decided that the Plaintiff (a professional football player) was not entitled to worker’s compensation benefits during his off-season. After he was injured, he was granted wage-loss benefits. The Court determined that these benefits should not be paid during the off-season, as he would not have been earning income anyways. To get wage-loss benefits for the off-season, he would have needed to prove that the cause of his injury was directly related to the ending of the football season, rather than his shoulder injury. Reece v. Event Staffing, Inc.

Two parcels of real estate were owned as joint tenants by plaintiff and defendant. Plaintiff filed a breach of contract claim, asserting that defendant was not paying what he had agreed to. Plaintiff also attempted to force the Defendant to relinquish all of his rights in the property; the Defendant sought to partition their rights so each would own half. During the course of this litigation, the defendant died suddenly. The Michigan Supreme Court determined that since there was never a decision made in the first case, the two parties still owned the property as joint tenants. Therefore, upon the defendant’s death, all rights to the property transferred to the plaintiff. A mere action for a partition does not sever the joint tenancy. The defendant’s estate had no interest in the property. Jackson v. Estate of Green.

Medical insurance payments, bankruptcy, contracts, and mortgages!

This week, the Michigan Court of Appeals decided a case in which the plaintiff was injured as a passenger in an automobile accident. The plaintiff sued to recover medical costs incurred from the defendant insurance company. The defendant had refused to pay these expenses, claiming they were for unreasonable and unnecessary services. The services in question had been for doctor and subsequent attendant care. The Court determined that the expenses incurred were reasonably necessary. However, as the plaintiff had filed for bankruptcy, she had been relieved of these payments. Therefore she could not collect reimbursement for these services from the insurance agency. James v. AAA Ins. Co.

Again in a case from the Michigan Court of Appeals, Defendant was an escrow agent in the execution of a series of option agreements between plaintiff and four residential development builders. A disagreement arose between plaintiff and the builders regarding how to interpret the option agreement. Plaintiff sued two of the builders and this defendant separately. This case was put on hold, pending the interpretation of the option contract in the first case. After the option contract was interpreted, Plaintiff was prevented from re-litigating this interpretation. Whitney Props., LLC v. Philip F. Greco Title Co.

Defendant obtained a first mortgage from Plaintiff for real estate he owned, and later received a second mortgage secured by the same property. The defendant defaulted on the second mortgage, and the house was sold at a sheriff’s sale. Defendant claimed plaintiff had represented this foreclosure would discharge the second mortgage. The trial court granted Plaintiff the money owed on the second mortgage. The Court of Appeals determined that the possibility of this “promise” the Plaintiff made was not sufficient to discharge the Defendant’s financial responsibilities. Huntington Nat'l Bank v. Dale.

Additionally, www.milawyersweekly.com has an interesting article regarding a Real Estate Attorney watchdog being established in Michigan. Though J. Adam Rothstein says about 75 percent of his commercial real estate practice involves entities outside of Michigan, the retail concerns within the state are just as important. In particular, the Michigan Business Tax (MBT), which, in 2007, supplanted the Single Business Tax (SBT) and brought with it provisions that give many businesses a raw deal, he said. In his role as chair of the State Government Relations Committee for the Michigan chapter of International Council of Shopping Centers, Inc., Rothstein, of Honigman Miller Schwartz and Cohn LLP, is keeping track of pending legislation that affects the retail industry and is active in affecting change to existing laws, such as the MBT.

Welcome to our blog!

Aldrich Legal Services has created this blog to keep you informed about current developments in the legal field that have arisen in Michigan. Weekly, we will summarize the newest case law decisions that have been released.

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