In an issue of first impression, the court held that a plaintiff may maintain an action for statutory conversion for violations of the MBTFA. However, the trial court did not err in ruling that the plaintiff failed to establish statutory or common-law conversion. Further, while a criminal conviction was not required to hold defendant-VanPopering personally liable for violation of the MBTFA, the trial court did not err in refusing to do so in light of the evidence that he did not misappropriate the funds. The court also upheld the trial court's rulings on the breach of contract and construction lien issues. The case arose from the construction of a condo development. Defendant-Northland, solely owned by VanPopering, was the general contractor on the project. Northland contracted with plaintiff to perform carpentry work and painting on the project. The court concluded that the trial court's factual findings in the parties' bench trial were supported by the evidence, and that it accurately applied the law. As to whether a plaintiff may maintain statutory conversion and MBTFA claims cumulatively, the court applied the rationale employed by the Michigan Supreme Court in Appletree. "Like the ACMA, there is nothing in the MBTFA to suggest that it provides the sole remedy for an MBTFA violation." Also as in the ACMA, "a general contractor subject to the MBTFA holds its funds in trust until its laborers, subcontractors, and materialmen are paid . . . ." However, as to whether Northland "converted" the funds, there was no evidence that plaintiff and its president/owner did not consent to Northland receiving the payments for the condos, "holding the funds in trust, and then remitting payment to plaintiff at the appropriate time." While plaintiff did not consent to Northland failing to ever pay the owed funds, "Northland obtained the funds with plaintiff's consent to the creation of a debtor-creditor relationship . . . ." As to plaintiff's claim that the trial court erred by failing to hold VanPopering personally liable, there was "no evidence that VanPopering did anything with the funds received for the project other than try to keep the project afloat amid rising costs, unrelated litigation, and deficiencies to the project's principal financier," a bank. His "uncontroverted testimony established that he personally loaned Northland significant amounts of money in an ultimately unsuccessful attempt to keep the project on track." As the trial court found, it appeared that "VanPopering put more funds into the project than Northland actually received in payment," defeating any suggestion that he misappropriated those payments for personal use.
The petitioner bears the burden of establishing reasonable cause for issuance of a PPO, and of establishing a justification for the continuance of a PPO at a hearing on the respondent’s motion to terminate the PPO.
Plaintiff’s lot was landlocked. Plaintiff argued his easement to access the highway was a gravel driveway. Defendants argued plaintiff’s easement was a two-track dirt trail that wound through the woods.
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.
DIVORCE 70: Plaintiff filed an ex parte motion for temporary custody of the marital home and children.
Defendant filed an answer, countering that it was in the children’s best interests for the parties to share joint legal and joint physical custody. During the divorce proceedings, plaintiff filed an ex parte motion for temporary custody of the marital home and children, which the trial court granted.
Driving under the influence of alcohol is a severe matter and type of offense. The short answer to the question, Are there ever situations when you can legally refuse to take a breathalyzer? is no. However, that doesn’t mean you...
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.
Opening a business is a significant undertaking, and it’s also a great way to make a living. It’s a chance to showcase your talents and knowledge and follow your passion. While it may seem like a good idea initially, you need to...
REAL ESTATE 87: Defendants were required to remove the portion of the home that was outside the timber line.
The court found that the restrictions, taken as a whole, were clearly in place to create, in part, a uniform western boundary and to preserve lot views, and that the location of the defendants’ home violated both of these clear objectives.
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.
Originally posted on 07/27/2018 Anyone who owns real estate in Michigan has made a valuable investment. Whether you acquire a home, business, or other property, you want to make sure that the transaction works in your favor and all documents...
The parties had several meetings about dissolving their marriage and dividing their assets. These conversations culminated in a marriage settlement agreement, drafted by D, which the parties both signed in June 2016.
DIVORCE 68: A change that substantially reduces the time a parent spends with a child could potentially cause a change in the established custodial environment.
If the proposed change alters the established custodial environment, the party seeking the change must demonstrate that the change is in the child’s best interests.
In this case, the adult children contend that the probate court abused its discretion by appointing public administrator as successor guardian and conservator, and that the probate court instead was required by EPIC to give priority to the children because there was no evidence that they were unsuitable for those appointments.
FAMILY LAW 81: The fact that a child has grown old enough to attend school is not a change in circumstance.
Defendant also argued that SG’s attainment of school age was a change of circumstances; however, the fact that a child has grown old enough to attend school is a normal life change.
REAL ESTATE 85: Plaintiffs alleged that the property line had changed through adverse possession and acquiescence.
Without dispute, plaintiffs showed that plaintiffs, defendants, and their predecessors in ownership, treated the historic boundary as the actual property line for the requisite statutory period.
PROBATE 52: Court ordered the return of all estate property in his possession or face a per-day fine.
After testimony from several witnesses, and argument from the parties, the trial court found, in relevant part, that the evidence demonstrated Kenneth took and kept various items of estate property in flagrant and continual violation of court orders.
An easement by prescription results from use of another’s property that is open, notorious, adverse, and continuous for a period of fifteen years.
DIVORCE 67: The parties agreed to submit their post judgment of divorce issues to binding arbitration.
The arbitration agreement broadly granted the arbitrator the authority to decide the post judgment of divorce issues that were pending before the trial court.
Since 1955, homeowners insurance has helped owners protect their property and belongings against damages and theft. According to the Insurance Information Institute, over 93% of homeowners in the US have homeowners insurance coverage, paying around...
To establish a negligence claim, a plaintiff must show: (1) that the defendant owed a duty to the plaintiff, (2) that the defendant breached the duty, (3) that the defendant’s breach of the duty caused the plaintiff injuries, and (4) that the plaintiff suffered damages.
Originally posted on 10/20/2017 If you are charged with a crime, you could face severe penalties that could include financial fines, public service, or even jail time. For those in the Michigan area, hiring an attorney experienced in...
The trial court noted plaintiff’s testimony that the move was designed to provide KSJ with more stability, however, that since the evidentiary hearing, plaintiff’s employment changed again, with her new work hours resulting in frustrating the current parenting time exchange schedule.
WILLS/TRUSTS 31: Petitioner disputes transfers to trust and filed petitions to have the funds and property returned to her.
The court found no basis to void the transfers based on EC’s evidence. Based on her testimony, the probate court had evidence to support the finding that ED did know what she had signed and the effects of it but simply did not remember.
REAL ESTATE 83: Circuit court entered an order vacating the district court’s termination of redemption rights and permitting KN to redeem the property.
In October 2017, the circuit court entered an order vacating the district court’s default judgment, and the affidavit of termination of redemption rights, and permitting KN to redeem the property before January 5, 2018.
In Michigan, the Child Custody Act of 1970 (CCA) governs custody, parenting time, and child support issues for minor children; it is the exclusive means by which to pursue child custody rights.
Originally posted on 02/23/2018 Real estate litigation can happen to anyone, from buyers and sellers to real estate agents, there’s always a potential for a lawsuit. With a lot of money on the line, it’s crucial to have an...
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.
Originally posted on 07/19/2017 While the “right to remain silent” represents one of your most inalienable rights, many people have a few misconceptions about how it works. Many people receive their understanding of this...
REAL ESTATE 82: Plaintiff filed quiet title asserting that it could satisfy the elements of adverse possession.
A party claiming adverse possession must show clear and cogent proof of possession that is actual, continuous, open, notorious, exclusive, hostile, and uninterrupted for the relevant statutory period.
When one significantly assists in the acquisition or growth of a spouse’s separate asset, the court may consider the contribution as having a distinct value deserving of compensation.
DIVORCE 65: Both parties were ordered to cooperate with the supervised parenting time and reunification therapy.
The trial court entered a consent judgment of divorce, awarding sole legal and physical custody of the children to mother, but awarding father supervised parenting time.
Originally posted on 02/10/2017 Law enforcement agencies are always looking for an edge in fighting crime. As cell phones have become an indispensable part of life for many people, authorities have taken to using these devices to track...
PROBATE 50: Court held that she was not a beneficiary of his will or trust because they were revoked when he and her mother divorced.
Under the EPIC, absent express terms to the contrary in the governing instrument, when a testator who has executed a will subsequently divorces his spouse, the divorce revokes any disposition or appointment of property to either the former spouse or the former spouse’s relatives.
Respondent moved to terminate the PPO. Respondent asserted that petitioner’s allegations were false. A proceeding on respondent’s motion to terminate was held with a family court referee, not a trial court judge.
Originally posted on 01/20/2017 When potential clients ask us questions about criminal defense representation (particularly for drunk driving offenses) one of the most common is whether they will lose their job. Naturally, this...
Respondent argues that the Mental Health Code, MCL 330.1001 et seq., requires that two separate, independent examinations be conducted before a hearing can be held on a petition for involuntary treatment.
Originally posted on 12/22/2016 Estate planning can induce fear for wealthy parents. Anyone who has seen the movie “Arthur” (either the Dudley Moore or Russell Brand versions) can understand the frustrations wealthy parents...
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.
Defendant, EV Condominium Association, denied plaintiff’s record-inspection requests because, according to defendant, the requests did not state a proper purpose. This led plaintiff to file a complaint in the trial court to compel his record inspection requests.
WILLS/TRUSTS 30: Bank cannot assert standing as a personal representative because the court held that it was not a successor co-personal representative.
Following the hearing, the court entered an order appointing B as sole personal representative. The court stated that the will contained no language indicating the ‘successors and assigns’ of N Bank would act as Personal Representative if N Bank was unable to act.