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LITIGATION 4: Plaintiff claimed installation of hardwood flooring breached the condo bylaws.

Plaintiff and defendants’ own condominiums in the same building; defendants’ unit is directly above plaintiffs.

In 2016, plaintiff filed suit against defendants, alleging that they had installed new hardwood flooring in their unit that caused noise to resonate down into her unit, disturbing her sleep and otherwise bothering her during both night and day. Plaintiff further alleged that defendants refused to rectify the problem even though she offered financial assistance.

Plaintiff claimed that the installation of the hardwood flooring was in breach of the condominium master deed and bylaws; she additionally asserted counts alleging nuisance, nuisance per se, breach of quiet enjoyment, trespass, and intentional infliction of emotional distress.

Defendants filed a counterclaim for abuse of process and tortious inference with a business relationship. The trial court dismissed defendants’ counterclaim.

In 2017, the parties participated in a mediation that resulted in a written settlement agreement (the agreement). The agreement provided for the following:

1. Carpeting would be installed with standard padding in the bedrooms of defendants’ unit.

2. The hardwood flooring in the living room, main hallway, and kitchen of defendants’ unit would be taken up and reinstalled with new flooring material of defendants’ choosing over an unspecified sound deadening underlayment to be chosen by plaintiff.

3. Plaintiff would have the right to supervise the work, either individually or through an agent(s).

4. The parties would share the costs equally, but the total costs would not exceed $15,000.

5. The project would be completed by August 20, 2017.

6. The agreement would be a recordable covenant that runs with the land, which would end when plaintiff permanently vacated her unit.

7. The agreement was the entire agreement between the parties, and it could not be amended except in a writing signed by all parties.

In July 2017, plaintiff moved to enforce the agreement, contending that defendants had not performed their contractual obligations. Plaintiff asserted that she had had the right to observe and inspect the project as it was being completed. Plaintiff also complained that she had not received notice of when the project would get underway and that defendants had failed to provide her with information regarding the materials being installed.

Defendants completed the project. Plaintiff did not pay for any of the costs of the project. Defendants moved to compel plaintiff to pay one-half of the costs under the agreement. Plaintiff responded that defendants had materially breached the agreement in several ways, including by denying her the right to supervise the project, by refusing to give her an installation schedule, and by starting work before plaintiff approved of the start date.

Plaintiff argued that she was not required to perform under the agreement because of defendants’ material breach. The court found that defendants did not materially breach the agreement, plaintiff was not relieved of her payment obligation.  The trial court granted defendants’ motion and entered the judgment of payment.

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REAL ESTATE 40: Tax Tribunal denied petitioner’s claim of a principal residence exemption (PRE).

MCL 211.7cc(2) provides that an owner of property can claim the PRE by filing an affidavit that must state that the property is owned and occupied as a principal residence by that owner of the property on the date that the affidavit is signed and shall state that the owner has not claimed a substantially similar exemption, deduction, or credit on property in another state.

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REAL ESTATE 38: Plaintiff fails to make land contract payments.

The land contract stated that T Company sold real property to plaintiff. The land contract further stated that if plaintiff failed to make a monthly payment, T Company could execute the quitclaim deed, thereby terminating plaintiff’s rights to the real property under the land contract.

CONTRACTS 6: Do you understand the clauses in your Purchase Agreement?

The trial court granted defendants’ motion for summary disposition, concluding that the claims against the realty companies were barred by the valid release contained in the purchase agreement and that the claims against sellers were required to be resolved in arbitration because they fell within the scope of the arbitration clause in the purchase agreement.

DIVORCE 29: Spousal support in gross is non-modifiable, whereas periodic is subject to modification.

As the name implies, periodic spousal support payments are made on a periodic basis. Periodic spousal support payments are subject to any contingency, such as death or remarriage of a spouse, whereas spousal support in gross is paid as a lump sum or a definite sum to be paid in installments. In addition, one major difference between the two types of spousal support is modifiability. Spousal support in gross is non-modifiable, whereas periodic spousal support is subject to modification pursuant to MCL 555.28.1.

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PROBATE 28: Probate court enters a protective order providing support for a community spouse.

A probate court’s consideration of the couple’s circumstances cannot involve an assumption that the institutionalized spouse should receive 100% free medical care under Medicaid or an assumption that a community spouse is entitled to maintain his or her standard of living. Medicaid is a need-based program, and a Medicaid recipient is obligated to contribute to his or her care.

REAL ESTATE 36: Plaintiff argued that her claim was not time-barred because it did not accrue until the grandmother’s death.

Plaintiff’s interest in the subject property is best characterized as a remainder estate, because her right to possession of the property was postponed until the occurrence of a specific contingency, that being the deaths of the grandparents. Plaintiff pursued this action within the 15-year limitation period; accordingly, this action is not barred by MCL 600.5801(4).

LITIGATION 6: The terms of the agreement prevails over the course of performance.

The trial court determined that under the UCC, the express terms of the parties’ agreements prevailed over the course of their performance and course of dealing. Although a course of performance may show that parties have waived a specific contractual term under MCL 440.1303(6), the statute does not similarly provide that a course of dealing may demonstrate waiver.

PROBATE 27: Petitioner filed a petition for mental-health treatment.

In support of the allegations, petitioner attached clinical certificates from a physician and a psychiatrist who observed respondent at the hospital. Both doctors diagnosed respondent with bipolar disorder, determined that she displayed a likelihood of injuring herself and that she did not understand the need for treatment, and recommended a course of treatment that consisted of 60 days of hospitalization and 90 days of outpatient care.

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FAMILY LAW 32: Trial court committed error in failing to address whether there was an established custodial environment.

On appeal, plaintiff argues that the trial court failed to make any findings regarding (1) the child’s established custodial environment, (2) the child’s best interests regarding the grant of primary physical custody to defendant, (3) the child’s best interests with respect to parenting time, and (4) the child’s best interests pertaining to the parties’ dispute over daycare.

PROBATE 25: Daughter removed as personal representative of the estate.

the probate court determined that Daughter J had managed the estate in a manner that promoted her own interests as a beneficiary over the interests of the estate. The probate court found that such management demonstrated mismanagement of the estate and that removal of Daughter J was therefore in the best interests of the estate.

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REAL ESTATE 32: Plaintiffs and defendants executed a second easement.

Plaintiffs requested that the trial court, either through reformation of the First Easement or interpretation of the Second Easement, quiet title in favor of plaintiffs and declare them to be the owners of an easement to access Lake Superior through the ravine on defendants’ property, enjoin defendants from interfering with their use of the easement, and order compensation for damages to the stairs.

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