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BUSINESS LAW 4: Does your business contract waive trial by jury?

In this case, Plaintiff alleged that Defendant had not fully paid for the pipe that Plaintiff supplied; Defendant asserted that the pipe was of poor quality and had not been delivered on time. Plaintiff filed for a breach of contract.  One month after, Defendant and Subcontractor filed jury trial demands. Plaintiff moved to strike them, contending that Defendant had contractually waived its right to a jury trial.

Defendant drafted both contracts.  They contained identical provisions titled “Article XIX – DISPUTES” stating in relevant part:

WAIVER OF JURY TRIAL: The parties hereto shall and they hereby do waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way connected with this Agreement, the relationship of Contractor and Subcontractor, and/or any claim of injury or damage.

Defendant insists that despite the clear contractual language, a subcontractor’s presence in the suit permitted the trial court to exercise its discretion and order the entire case submitted to a jury. No case law, court rule, or other precedent supports that argument.  Defendant responded that the subcontractor was not a party to the contracts and had not waived his jury trial right.  Defendant reasoned that once one party timely demands a jury trial, all of the other parties in the litigation may rely on that demand without doing anything further – irrespective of whether the other parties would have otherwise waived a right to jury trial.

The subcontracts written by Defendant and signed by Plaintiff unambiguously contemplated that if any disputes related to their subcontract found their way to a courtroom, a jury would not be impaneled to resolve them.  Had Plaintiff sued only subcontractor, the contractual waiver would have had no effect. But subcontractor’s presence in the case as a codefendant could not have negated the subcontracts, and his jury demand did not magically erase the jury trial waiver that Defendant had inserted in the parties’ agreements.

If you are a business owner facing litigation, obtaining the right legal representation is essential. Many business litigation matters center on complex financial agreements and contracts.  At Aldrich Legal Services, you will work with an attorney who has the extensive litigation experience necessary to help you reach an effective resolution that protects your interests.

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FAMILY LAW 83: A trial court can terminate a parent’s rights and permit a stepparent to adopt a child.

A trial court has discretion to terminate a parent’s rights and permit a stepparent to adopt a child when the conditions of MCL 710.51(6) are met. MCL 710.51(6)(b) requires the petitioner to establish that the other parent had the ability to visit, contact, or communicate with the children, and substantially failed or neglected to do so for a period of two years.

PROBATE 53: The trust agreement included an Incontestability Provision.

A settlor’s intent is to be carried out as nearly as possible. Generally, in terrorem clauses are valid and enforceable. However, a provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding contesting the trust or another proceeding relating to the trust.

FAMILY LAW 82: Court stated it would terminate the personal protection order (PPO) after the parties present documentation of the initiation of the divorce proceedings.

However, the trial court concluded that these matters should, in fact, be in the province and the jurisdiction of the Family Division and in that respect, having issued a personal protection order, the Court stated it would terminate the personal protection order after the parties present documentation of the initiation of the divorce proceedings.

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FAMILY LAW 77: Court awarded plaintiff sole legal custody; defendant was unwilling to work with plaintiff.

For joint custody to work, parents must be able to agree with each other on basic issues in child rearing including health care, religion, education, day to day decision making and discipline and they must be willing to cooperate with each other in joint decision making. If two equally capable parents are unable to cooperate and to agree generally concerning important decisions affecting the welfare of their children, the court has no alternative but to determine which parent shall have sole custody of the children.

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