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Contractors awarded damages for unjust enrichment

In these consolidated appeals after remand, the court held, among other things, that neither the law of the case nor res judicata precluded the trial court from considering unjust enrichment on remand. It affirmed the trial court's decision to award unjust enrichment damages to the appellees-contractors-Lakeview Contracting, ASI, and A & R, holding that the "unique circumstances" of the case precluded them "from practical and timely recovery on their construction liens." It also affirmed the attorney fee awards, holding that the amount of the awards was consistent with the attorney fee provision in the CLA. This lawsuit initially arose from disputes involving the priority of various claims against a golf course developer that defaulted on its payment obligations to appellant-WVC and to the contractors. After a prior appeal, WVC argued that the trial court exceeded its authority on remand by awarding money damages for unjust enrichment and that res judicata barred the trial court from considering unjust enrichment on remand. The court held that the trial court on remand "properly implemented the prior panel's directives." The panel's decision primarily addressed the CLA. In keeping with that decision, the trial court "set aside its order requiring sale of the golf course and its order attaching the construction liens to the golf course real property." It "implemented the prior panel's decision by ordering that the liens attach only to the improvements. Nothing in the prior panel's decision" precluded the trial court from considering unjust enrichment on remand. "The panel made no definitive decision" as to the viability of unjust enrichment claims. "Rather, in the section of the opinion addressing possible alternative remedies, the prior panel noted that foreclosure on improvements is not a lien claimant's sole remedy." The panel recognized, "Lakeview, ASI, and A & R could arguably pursue a claim against WVC outside" the CLA for unjust enrichment. "This statement neither required nor prohibited the circuit court from considering unjust enrichment on remand." Thus, the law of the case did not preclude it from considering unjust enrichment. As to res judicata, according to WVC, the contractors abandoned any claim for unjust enrichment by opting not to cross-appeal the trial court's construction lien judgment. The court disagreed, for two reasons. "First, an appellee need not cross-appeal to maintain alternate grounds of support for the relief granted by the circuit court." A cross-appeal "is required if the appellee seeks relief that is more favorable than that granted by the circuit court." In the prior appeal, "the contractors did not seek more favorable relief, so they were not required to file cross-appeals." Second, the doctrine of res judicata did not extend to the particular issue presented here, "which involved an alternate ground for relief in the same proceeding on remand."

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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PROBATE 51: Trust filed a petition to determine title to credit union account.

The probate court explained that the owners of the account are S and J. When S passes, J becomes the owner of the account. J is the one who had the authority to make the designation. Nowhere in any documents is there a designation by J that SJ be the owner -- or the beneficiary of the account. The designation made by his father was no longer binding because he was no longer the owner at the time J passed away.

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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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