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

This case arises from a contract dispute between plaintiff and defendant. The parties dispute not whether defendant is contractually obligated to pay plaintiff for certain purchases it made from plaintiff, but rather when that payment was due.

In the 10 years preceding this lawsuit, defendant purchased numerous technology products from plaintiff. Defendant’s purchases from plaintiff were commemorated through purchase orders and corresponding invoices. The purchase orders and invoices identified the products purchased and the price, and each invoice indicated that the payment term was net 45, which the parties agree means 45 days, and also included the statement that a service charge at the rate of 1.5% per month (18% per annum) will be charged on all accounts past due. Any account over 60 days from the date of invoice will be automatically placed on credit hold. But according to defendant, this provision of the parties’ agreement was never enforced.

According to defendant, plaintiff would send defendant an invoice when delivering the goods to defendant, and defendant would pay plaintiff after defendant performed an account reconciliation process, which would take anywhere from 67 days to 390 days from the date the invoice was issued. Defendant contends that despite the contract language, plaintiff never considered such payments late and never placed a credit hold on defendant regardless of when defendant paid.

The parties do not dispute that between July 13, 2016, and January 30, 2017, defendant purchased numerous products from plaintiff. According to plaintiff’s complaint, the amount of defendant’s purchases from plaintiff during this period was $490,039.94. Plaintiff contends that although it sent defendant a balance statement reflecting the transactions between July 13, 2016, and January 30, 2017, defendant failed to pay plaintiff.

Plaintiff initiated action against defendant, alleging breach of contract, account stated, and unjust enrichment. Plaintiff moved for summary disposition under MCR 2.116(C)(10), arguing that there was no genuine issue of material fact regarding defendant’s failure to pay plaintiff.

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.

Although the parties may have developed a course of dealing over their 10-year business relationship in which defendant never tendered payment within 45 days from the issuance of an invoice, MCL 440.1303(5)(a) nonetheless dictates that the 45-day payment term prevails over any course of dealing. Any modification of that term must satisfy the statute of frauds. MCL 440.2209(3). Here, no such written modification exists, and the statute of frauds therefore bars defendant’s argument that plaintiff modified the 45-day payment term.

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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).

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

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PROBATE 25: Daughter removed as personal representative 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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