In these consolidated cases, the court held that the trial court did not abuse its discretion in refusing to set aside the default judgment or in refusing to hear the plaintiff's "untimely and improperly filed" written motion to withdraw admissions. It also rejected her arguments that the defendants failed to mitigate their damages, and concluded that the trial court did not abuse its discretion in awarding them attorney fees. As to case evaluation sanctions, plaintiff could not show that the trial court abused its discretion by setting the hourly rate at $200. Thus, in Docket No. 314767, the court affirmed the trial court's judgment in favor of defendant-Hertler, individually and d/b/a/ Hertler Construction, on his counterclaim after a default judgment and a trial on damages. In Docket No. 316118, it affirmed the trial court's amended judgment, which imposed case evaluation sanctions against plaintiff. The parties entered into a written contract for Hertler to rebuild plaintiff's lake house. When she did not pay an invoice, Hertler filed and recorded a construction lien on the property. Plaintiff sued to remove the lien, and alleged breach of contract, conversion, and misappropriation. Hertler filed a counterclaim for breach of contract, foreclosure of the lien, implied contract, and unjust enrichment. When plaintiff did not timely answer the counterclaim, the trial court entered a default against her, and after a hearing, granted Hertler's motion for default judgment. Hertler successfully moved to deem his requests for admissions admitted after plaintiff did not answer them, and the trial court granted him summary disposition as to the claims in plaintiff's complaint, relying on her admissions. A bench trial was held on damages as to Hertler's counterclaims. The trial court awarded Hertler the requested $11,190.59 in construction-related damages and $32,269.48 in attorney fees. It later awarded Hertler case evaluation sanctions, and signed an amended judgment awarding Hertler $11,190.59 in construction-related damages, $32,269.48 in attorney fees under the CLA and the parties' contract, plus $15,331.55 in case evaluation sanctions, for a total of $58,791.62. As to plaintiff's claim that the trial court abused its discretion by not setting aside the default and default judgment, the court held that she failed to show a meritorious defense. Also, contrary to her assertion, the counterclaim stated claims upon which relief could be granted. "It stated claims for breach of contract, implied contract, and unjust enrichment, as well as for foreclosure under the CLA. There was nothing insufficient with regard to these claims." Further, the alternative counterclaims for implied contract and unjust enrichment were permissible. The court also concluded that the trial court sufficiently examined the factors required to determine an attorney fee's reasonableness, and the record supported its findings.
MICHIGAN CRIMINAL 21: PPO criminal contempt proceedings exempted from the right to a jury trial.
Defendant argued the Court should recognize the right to a jury trial for criminal contempt proceedings involving PPO violations.
MICHIGAN DIVORCE 79: Plaintiff intentionally hindered the sale of the house.
The court found that the parties were equally at fault for the breakdown of the marriage, and it found that Plaintiff had intentionally hindered the sale of the house after the court ordered that it be listed so it could receive a realistic determination of the house’s value. The record showed that Plaintiff had declined several showings.
MICHIGAN WILLS/TRUSTS 33: Trustees required to provide notice informing recipients that they may challenge the validity of a trust and the period allowed for bringing such a challenge.
The notice sent clearly advised her that if she wanted to contest the validity of the Trust in a judicial proceeding, the law required her to do so within six months from the date of the letter. Nothing in the statute requires a trustee to inform the recipients of the specific legal consequences of not acting during the time allowed.
MICHIGAN REAL ESTATE 98: Trial court granted quiet title under the doctrine of acquiescence because the fence and post had been in place for more than 15 years.
Plaintiff obtained a survey to get a permit to install a fence. Plaintiff’s survey showed that the chain link fence and post encroached on plaintiff’s recorded property line.
MICHIGAN FAMILY LAW: DHHS filed its petition in Wayne Circuit Court requesting that the trial court assume jurisdiction over the child.
At the jurisdictional trial, H admitted that she had a substance abuse addiction that somewhat affected her ability to parent her children. The trial court ordered that CKM would remain with M until the custody hearing in a few months.
MICHIGAN REAL ESTATE 97: The court imposed a constructive trust on defendant’s one-half interest in the property in favor of plaintiff.
The trial court found that plaintiff sustained her burden of establishing that a constructive trust was necessary to prevent defendant from being unjustly enriched. Accordingly, the court imposed a constructive trust on defendant’s one-half interest in the property in favor of plaintiff and ordered defendant to convey his interest in the property to plaintiff.
MICHIGAN FAMILY LAW 96: The trial court did not have the authority to modify the out-of-state support order.
The trial court held that it lacked subject-matter jurisdiction to modify the out-of-state spousal-support order. The trial court denied the plaintiff’s motion to terminate spousal support.
MICHIGAN REAL ESTATE 96: Under Michigan law, parties may acquiesce to a new property boundary line.
This case is a quiet title action, claiming adverse possession and acquiescence regarding the disputed area, a bordering strip of land between the parties’ properties.
MICHIGAN DIVORCE 78: Mother and father were both unable to adequately parent the children.
Father and mother’s relationship involved domestic violence, and they both abused substances.
MICHIGAN PROBATE 60: The court ruled that the purported marriage between the decedent and petitioner was invalid.
The court ruled that the purported marriage between the decedent and SMM was invalid because the license expired before the wedding ceremony was held, and that acceptance of the completed marriage certificate by the clerk’s office did not create a valid marriage.
MICHIGAN FAMILY LAW 95: Trial court denied the defendant’s motion and granted plaintiff $1,250 in attorney fees.
The court recognize that defendant has made great strides in her sobriety. But the Child Custody Act requires courts to focus on the best interest of the children and to provide a stable environment for children that is free of unwarranted custody changes.
MICHIGAN FAMILY LAW 94: Defendant testified that he had the ability to pay child support, but it was impossible for him to do so due to his religion.
Defendant’s testimony was that he could pay child support, but his religion precluded him from entering a civil contract with a secular court by recognizing an order from the State of Michigan directing him to pay it.
MICHIGAN PROBATE 59: The petition to admit the will was unopposed at the time of the hearing, and the court granted the petition to admit the will.
If a petition is unopposed at the time set for the hearing, the court may either grant the petition on the basis of the recitations in the petition or conduct a hearing.
MICHIGAN CONTRACTS 23: After defendant did not receive payment, it recorded a claim of lien against plaintiff’s property.
The order also required defendant to deliver the HVAC units and required plaintiff to complete its outstanding obligations under the settlement agreement.
MICHIGAN FAMILY LAW 93: Parents’ relationship had become so bitter court determined it was necessary to hold an evidentiary hearing on the issues of custody.
The trial court found that clear and convincing evidence established that a change of custody was in AH’s best interests, noting the parties were unable or unwilling to work together to reach an agreement on AH’s education and medical treatment.
MICHIGAN REAL ESTATE 95: Property owners did not place a condition upon the delivery of the deed; rather, they delivered the deed to themselves.
When the delivery of a deed is contingent upon the happening of some future event, title to the subject property will not transfer to the grantee until the event has occurred. However, in this case A and J did not place a condition upon the delivery of the deed; rather, they delivered the deed to themselves, then deposited the deed with their attorney with the instruction to record the deed only upon the happening of a future event, thereby placing a condition only upon the recording of the deed.
MICHIGAN DIVORCE 21: Plaintiff file a motion to enforcement the judgment of divorce.
The referee recommended that the trial court grant plaintiff’s request for enforcement of the judgment and require the parties to comply with its provisions and further recommended that plaintiff’s request for attorney fees be preserved and awarded should plaintiff have to return to court.
MICHIGAN PROBATE 58: Lady Bird deed did not restrict the grantor’s ability to execute another deed.
The trial court concluded that the first Lady Bird deed did not convey any interest to L until the death of both grantors, and RPC, as the conservator, did not violate any statutory duties but was entitled to execute a Lady Bird deed in fulfilling its fiduciary obligations to the protected individual, B.
MICHIGAN WILLS/TRUSTS 32: The probate court found that the Memo substantially complied with the Trust’s method for amendment.
The probate court also found that the Memo substantially complied with the Trust’s method for amendment, as required by statute, and that the Memo was not merely an attempt to distribute personal property. The probate court granted petitioner’s motion for summary disposition, confirming the validity of the Memo as a trust amendment.
MICHIGAN CRIMINAL 20: Respondent found of criminal contempt for violating the PPO.
The trial court conducted the show-cause hearing, which resulted in a finding of criminal contempt for violating the PPO. The trial court sentenced respondent to a 7- day jail term and a $100 fine but suspended the jail term absent further violations of the PPO and directed respondent to have her fingerprints taken.
MICHIGAN DIVORCE 76: Defendant had not exercised his parenting time with the children to warrant the award of any child support amount.
Plaintiff filed a motion for relief from judgment and child support. Plaintiff characterized the failed parenting-time arrangement as newly discovered evidence that negated her child support obligation.
MICHIGAN PROBATE 57: Brother granted permanent guardianship of siblings.
At a multiday hearing to address the extension of the guardianship, the eldest children, the mother’s relatives and friends, and school personnel testified regarding the mother’s care of the children, appellant’s treatment of and interaction with the children, and the eldest siblings’ role in aiding the mother to raise the children.
REAL ESTATE 94: Short-term lease violates property owners restricted covenants.
Defendant continued to advertise and lease its property for short-term rental. Because plaintiff concluded that defendant used its lot and the home thereon for business purposes, specifically as a rental property, plaintiff filed suit.
FAMILY LAW 92: Defendant objected to the referee’s recommendation on the ground that the record did not support a deviation from the MCSF.
The referee found that the support amount calculated under the MCSF would be unjust and inappropriate, and that a deviation of $750 was warranted.
FAMILY LAW 91: Referee determined that neither party had established grounds for changing custody.
The referee ultimately determined that neither party had established grounds for changing custody and that plaintiff had not established her intended move to Minnesota was in the best interests of the two youngest children.
FAMILY LAW 90: Loss of longtime pediatrician was sufficient to justify addressing legal custody.
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.
FAMILY LAW 89: Motion to change the domicile of the children.
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.
REAL ESTATE 93: Plaintiff argues whether the land contract violates Michigan’s usury act.
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.
CRIMINAL 19: Traffic stop leads to vehicle search after the smell of marijuana.
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.
PROBATE 55: Plaintiffs argue that decedents were subject to coercion and undue influence.
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.
DIVORCE 73: Plaintiff filed a complaint for separate maintenance once husband was disabled.
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.