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City wrongfully denied requested extensions of time on road construction project, contractor awarded costs and attorney fees

The court held that the trial court did not err by finding that the defendant-city wrongfully denied the plaintiff-road contractor's requested extensions of time, or by awarding only 10 days of liquidated damages. Plaintiff sued defendant for breach of contract and unjust enrichment when defendant refused to pay plaintiff the remaining $121,872.52 due under the parties' road replacement contract. Defendant countersued, alleging it was entitled to liquidated damages of $88,350 for plaintiff's failure to complete the project on time. The trial court granted plaintiff the full amount of its contract claim, set off by an award to defendant of 10 days of liquidated damages of $15,500, for a net judgment of $106,372.51. Plaintiff was later awarded an additional $24,381.20 for costs and attorney fees. On appeal, the court rejected defendant's argument that the trial court erred by finding that it wrongfully denied plaintiff's requests for time extensions on the project. "Defendant contends that it denied plaintiff's requests because they were not timely, did not include the requisite information, and were not formally made." However, the court held that the record supported the trial court's finding that defendant wrongfully denied plaintiff's extension requests related to delays and additional quantities. It also held that defendant's denial of plaintiff's extension request related to signage was unreasonable and, thus, the trial court's award of 10 days liquidated damages was proper. Further, as to plaintiff's extension requests for additional work requested by defendant, the court found that, "[w]ithout question, the record shows that defendant requested the emergency work without complying with the writing requirements in the contract and subsequently issued a contract modification providing for" that work, and "had previously waived other provisions of the contract to permit the project to move forward more quickly. Thus, the parties established a course of performance whereby the parties could orally inform one another of issues and subsequently provide a writing regarding the same issue. Under such circumstances, where defendant knew its emergency requests would require [plaintiff] to stop working on the project, the trial court justifiably concluded that it was unreasonable for defendant to deny requests for" the extensions. Finally, the court rejected defendant's argument that the trial court erred by applying an equitable standard and refusing to apply the contract's liquidated damages provision. "Viewed in context, the trial court's statement was not that the liquidated damages provision was unenforceable, but that, given that [plaintiff's] extension requests were appropriate and that defendant had unreasonably refused to grant them, once those extensions were accounted for, only 10 days of liquidated damages were appropriate." Affirmed.

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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