She was hit from behind by a pickup truck. Plaintiff argued that (1) she proffered documentary evidence that showed a genuine issue of material fact for trial, (2) the trial court failed to view the evidence in the light most favorable to her, (3) the trial court's decision was based on erroneous legal and factual determinations, and (4) the trial court improperly made credibility and factual determinations that were within the jury's province. The court agreed. Plaintiff proffered evidence on the issue of causation. Thus, whether defendant was liable for any injuries that she may have suffered in the accident was a question of fact. "However, the trial court was looking for objective evidence." After thoroughly reviewing published and unpublished Michigan case law, the court found "no basis for concluding that plaintiff was required to proffer evidence showing objective manifestations of her injuries in order to establish a genuine issue of material fact on the issue of causation for purposes of MCL 500.3105." Rather, it held that, when viewed in the light most favorable to plaintiff, the medical records, reports, and deposition testimony of her treating doctors, which were based on her subjective complaints of pain as well as their objective observations, supported a "finding that the accident may have caused various injuries that resulted in reasonable and necessary medical expenses and other PIP benefits." Reversed and remanded.Â
The trial court discussed the difference between the parties’ care for WPS’s medical needs, noting plaintiff was much more involved and defendant’s refusal to provide his schedule contributed to his own frustrations regarding his lack of involvement.
The court determined that plaintiff had established by clear and convincing evidence that the change of domicile was in the best interests of the children.
PROBATE 56: Court finds that an examination via a videoconferencing software is sufficient for clinical certificate.
Respondent argues that he was entitled to an in-person, rather than remote, personal examination.
DIVORCE 75: The trial court agreed that the long morning commute on school days satisfied the threshold burden for reconsidering custody.
The court expressed concern regarding plaintiff’s failure to appreciate how her actions left the children in a position of having to keep secrets from defendant, caused them uncertainty about their future schooling, and made them feel guilty for telling defendant the truth.
Plaintiff acknowledges that the land contract states on its face that the annual interest rate is 7%. But plaintiff argues that a blending approach must be undertaken to account for the surplus funds that defendant received pursuant to the Affidavit of Non-Redemption (AONR).
FAMILY LAW 88: The trial court found that the children did not have an established custodial environment with defendant because, before the separation, he did not have a large role in the children’s lives.
The trial court credited plaintiff’s testimony that, before the parties’ separation, defendant spent minimal time helping to care for the children, so its finding that the children would not have looked to defendant for guidance, discipline, the necessities of life, and parental comfort during that time was not against the great weight of the evidence.
FAMILY LAW 87: The court concluded that plaintiff’s request for 50-50 custody was more about plaintiff’s needs and wants than the children’s best interests.
By the time of the trial court’s order, custody and parenting time of the children had been governed by the interim order for nearly a year. The trial court was appropriately mindful that from the children’s perspective, any change to their established custodial environment should be minimal.
The smell of burned marijuana does provide probable cause to search a defendant’s vehicle, in that the Michigan Medical Marijuana Act does not allow for the use of marijuana in a vehicle or in a place opened to the public. You don’t necessarily have to be under the influence of marijuana, but the use of marijuana suffices.
CONTRACTS 22: Trial court granted defendant summary disposition, finding the statutory limitations period had already run for plaintiff’s claims.
Plaintiff filed a three-count complaint on December 3, 2019, alleging breach of contract, unjust enrichment, and requesting foreclosure of the property. Defendant answered, pleading affirmative defenses, including that the statutes of limitations barred plaintiff’s claims. Defendant moved for summary disposition.
DIVORCE 74: Tax debt generated by the sale of business would be divided equally between the parties.
Plaintiff claims that this debt should be Defendant’s debt alone since he controlled the finances and she had little input on what happened with the money gained from the sale. The court disagrees and finds that she cannot enjoy the fruits of the marital business decisions for 17 years and then disavow herself the debt that comes from those same business decisions.
When defendant petitioned to close the estates and admit the wills to probate, plaintiffs objected, arguing that decedents were subject to coercion and undue influence by defendant.
FAMILY LAW 86: Change in custody and parenting time because defendant repeatedly disobeyed court orders.
The change in custody and parenting time was primarily brought about by evidence that defendant repeatedly disobeyed court orders and parenting-time rules, prioritized his personal vendettas, and continuously made unsupported allegations that plaintiff and her family were abusive.
The trial court agreed that third-party intervention in domestic-relations matters was only permitted in limited circumstances that did not apply to DHHS, and denied DHHS’s motion for reconsideration.
REAL ESTATE 92: Owner of more than 75 percent of the real estate in industrial park was authorized to revoke the restrictive covenants.
The revocation in this case was executed by the requisite 75% super-majority and it did not subject the property in the industrial park to additional encumbrances.
REAL ESTATE 91: The Condo Association was entitled to recover fees and costs for all aspects of the proceedings.
Regarding the award of attorney fees, Michigan follows the American Rule, which states that attorney fees are not recoverable as an element of costs or damages unless expressly allowed by statute, court rule, common-law exception, or contract.
REAL ESTATE 90: Owners demonstrated possession of disputed property because use had been more significant and continuous for a longer period.
Although the neighboring landowners testified that they also made similar recreational use of the land west of Creek, the trial court concluded that the B owners use had been more significant and continuous for a longer period.
When parents are unable to cooperate and make joint decisions, a trial court may be required to grant sole custody to one parent.
REAL ESTATE 89: RM had not included any language in the deed providing that the property was a joint tenancy with full rights of survivorship, the property instead became a tenancy in common.
RM drafted the deed without seeking counsel and mistakenly believed that, if either she or FK died, the property would fully pass to the surviving tenant. FK’s will provided that if his wife predeceased him—which she did—the personal representative of his estate should sell any residual property that he owned and divide the cash proceeds equally among his surviving children.
MCR 2.602(B)(3), the so-called seven-day rule, allows a party to serve a copy of the proposed judgment or order on the other parties, with a notice to them that it will be submitted to the court for signing if no written objections to its accuracy or completeness are filed with the court clerk within 7 days after service of the notice.
DIVORCE 71: Court determined house was marital property and defendant was not entitled to spousal support.
In addition, the trial court noted that plaintiff did not have the means to pay spousal support because she had substantial debt and was financially supporting her unemployed adult son.
PROBATE 54: The probate court removed the current bank as trustee because the Trust could not afford the fees.
The court questioned whether the fees, which were standard for the bank, were reasonable for the Trust. The Court reiterated its concern that this particular Trust cannot afford the bank as a trustee.
The petitioner bears the burden of establishing reasonable cause for issuance of a PPO, and of establishing a justification for the continuance of a PPO at a hearing on the respondent’s motion to terminate the PPO.
Plaintiff’s lot was landlocked. Plaintiff argued his easement to access the highway was a gravel driveway. Defendants argued plaintiff’s easement was a two-track dirt trail that wound through the woods.
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.
DIVORCE 70: Plaintiff filed an ex parte motion for temporary custody of the marital home and children.
Defendant filed an answer, countering that it was in the children’s best interests for the parties to share joint legal and joint physical custody. During the divorce proceedings, plaintiff filed an ex parte motion for temporary custody of the marital home and children, which the trial court granted.
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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.
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REAL ESTATE 87: Defendants were required to remove the portion of the home that was outside the timber line.
The court found that the restrictions, taken as a whole, were clearly in place to create, in part, a uniform western boundary and to preserve lot views, and that the location of the defendants’ home violated both of these clear objectives.
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.
Originally posted on 07/27/2018 Anyone who owns real estate in Michigan has made a valuable investment. Whether you acquire a home, business, or other property, you want to make sure that the transaction works in your favor and all documents...
The parties had several meetings about dissolving their marriage and dividing their assets. These conversations culminated in a marriage settlement agreement, drafted by D, which the parties both signed in June 2016.
DIVORCE 68: A change that substantially reduces the time a parent spends with a child could potentially cause a change in the established custodial environment.
If the proposed change alters the established custodial environment, the party seeking the change must demonstrate that the change is in the child’s best interests.
In this case, the adult children contend that the probate court abused its discretion by appointing public administrator as successor guardian and conservator, and that the probate court instead was required by EPIC to give priority to the children because there was no evidence that they were unsuitable for those appointments.
FAMILY LAW 81: The fact that a child has grown old enough to attend school is not a change in circumstance.
Defendant also argued that SG’s attainment of school age was a change of circumstances; however, the fact that a child has grown old enough to attend school is a normal life change.
REAL ESTATE 85: Plaintiffs alleged that the property line had changed through adverse possession and acquiescence.
Without dispute, plaintiffs showed that plaintiffs, defendants, and their predecessors in ownership, treated the historic boundary as the actual property line for the requisite statutory period.
PROBATE 52: Court ordered the return of all estate property in his possession or face a per-day fine.
After testimony from several witnesses, and argument from the parties, the trial court found, in relevant part, that the evidence demonstrated Kenneth took and kept various items of estate property in flagrant and continual violation of court orders.
An easement by prescription results from use of another’s property that is open, notorious, adverse, and continuous for a period of fifteen years.
DIVORCE 67: The parties agreed to submit their post judgment of divorce issues to binding arbitration.
The arbitration agreement broadly granted the arbitrator the authority to decide the post judgment of divorce issues that were pending before the trial court.
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