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CONTRACTS 11: Plaintiff contended defendant breached the purchase agreement by failing to pay it as agreed.

This case arises out of the sale of an insurance agency.

In 2009, Plaintiff sold the insurance company in what he described as a fire sale. The parties entered into an asset purchasing agreement (the “APA”) on September 4, 2009. Under the terms of the contract, defendant agreed to pay plaintiff for certain assets. This dispute involves plaintiff’s personal lines of business, commercial lines, and a benefits book. Each of these items represents a revenue stream of commissions generated by plaintiff’s book of business.

Regarding the personal lines, defendant agreed to pay $350,000 total, with $150,000 due up front and the remaining $200,000 payable over two years in $50,000 installments every six months. Each of those installments was conditioned on defendant meeting a certain benchmark. This benchmark required that certain accounts be reviewed and if more than 88% of those accounts were retained, then defendant would pay the installment, but if less than 70% of the benchmark was retained, then no such payment was due, and the purchase price was reduced by $50,000.00. The APA also provided that plaintiff was entitled to regular reports from carriers as to commissions received by defendant in connection with the purchased books.

Regarding the commercial lines and benefits book, the APA provided that defendant would pay plaintiff in the following manner: 45% of commissions actually received for any type of insurance sold to customers from the Commercial Book and 35%· of commission actually received for any type of insurance sold to customers in the Benefits Books.

Plaintiff filed a complaint in January 2016, alleging breach of contract and requesting an accounting and specific performance of the contract.

Plaintiff contended defendant breached the APA by failing to pay it as agreed despite the achievement of the APA’s benchmarks, by failing to provide periodic reports pursuant to the APA, and by failing to pay commissions on the commercial lines and benefits book.

At trial, the parties presented evidence regarding the value of the benchmark.

The trial court awarded plaintiff $162,678.37 in connection with its claims and statutory interest.

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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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