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Court finds that mortgage lien has priority over construction lien

The trial court properly released the escrow funds from the condo sale to the mortgage holder (defendant-bank) without satisfying the plaintiffs' construction liens because the bank's lien had priority. Defendant-Alpinist Endeavors was comprised of two separate trusts, the defendant-Jack Sr. Trust and the defendant-Jack Jr. Trust. It financed a condo project with a mortgage from the bank. Plaintiffs-construction companies made improvements to the condos (Units 4 and 5) at the request of Jack Jr. only. When the business deal for which the improvements were made fell through, the plaintiffs sued to foreclose on their liens, and for various other contract claims and intentional torts. The trial court approved the sale of Unit 4 and released part of the sale proceeds to the bank. It later released the entire escrow fund to the bank, "finding that its mortgage had priority over plaintiffs' liens." Because the plaintiffs did not appeal the "final order" regarding the sale of Unit 4, that claim was not properly before the court. The court affirmed the initial partial release of funds, finding that the plaintiffs' claim that the trial court erred by not accounting for "attorney fees and costs" was "meritless." The trial court also did not err by granting the bank summary disposition on their lien-foreclosure claim "without first determining the validity of their construction liens." The plaintiffs conceded on appeal that the trial court correctly ruled on the priority issue, and they abandoned any argument that the trial court should have held an evidentiary hearing because they failed to timely request a hearing on the matter. The trial court properly ruled that the claim that the trusts engaged in a "concert of action" to defraud was "frivolous." The plaintiffs failed to "'show that all defendants acted tortiously, pursuant to a common design'" - they offered no evidence to support a claim against Jack Sr. Their "agency" theory of liability regarding their belief that Jack Sr. "'controlled everything behind the scenes[,]'" was not supported by the evidence. The defendants were also entitled to summary disposition on the plaintiffs' claims for unjust enrichment. Finally, because Jack Jr. was not timely served within the time provided in MCR 2.102(D), the action against him was properly dismissed without prejudice. The court reviewed all the remaining claims and found them "without merit." 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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