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Prevailing plaintiff in claim under Construction Lien Act is entitled to attorney fees

Holding that the plaintiff was a prevailing party under MCL 570.1118(2) because it substantially prevailed on the amounts it sought under the claim of lien, the court vacated the portion of the trial court's order denying its request for attorney fees under the Construction Lien Act and remanded. However, the trial court was not required to award attorney fees on remand. Rather, it must "exercise its discretion in deciding whether to award attorney fees." After filing a claim of lien, plaintiff sued defendant-Lofts on the Nine alleging breach of contract, foreclosure of lien, and unjust enrichment. Since the contract required the submission of claims to arbitration, the parties stipulated to stay the trial court action and proceeded with arbitration, where defendant asserted claims of its own. The arbitrator awarded plaintiff a total of $636,058.72. However, the arbitrator specifically declined to address plaintiff's request for attorney fees as a prevailing lien claimant under MCL 570.1118(2), expressly reserving that issue for the trial court. The arbitrator awarded defendant $185,238.36 on its counter-claims, resulting in a net award of $450,820.36 to plaintiff. Defendant paid the net award amount plus interest. Plaintiff filed a motion to lift the stay, to confirm the arbitration award, and to request attorney fees and costs under MCL 570.1118(2). The trial court determined that plaintiff could not be deemed a prevailing lien claimant. The court concluded that this case was analogous to Bosch, where it affirmed the award of attorney fees under the predecessor statute, the Mechanics' Lien Act, noting that the facts here were "remarkably similar to those in Bosch." Both plaintiffs filed a breach of contract claim and a claim for foreclosure of lien. In both cases, "the amount that was owed under the contract/lien was established in a proceeding distinct from any actual lien foreclosure proceeding." Notably, in both cases, "the amount finally determined to be owed was less than the initial amount claimed on the lien." The defendants in both cases also paid the amount determined to be "owed under the contract before any lien foreclosure proceedings commenced." Thus, the court concluded that this case was entitled to the same outcome as Bosch. Pursuant to Solution Source, the fact that "no foreclosure ever occurred is not pertinent." Further, Decina, on which defendant and the trial court relied, was not applicable because the facts were distinguishable. Here, it was "undisputed that the landowner, defendant, did not pay the full amount of the contract price to the general contractor, plaintiff." There also was no question that plaintiff's lien had attached to the property.

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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PROBATE 51: Trust filed a petition to determine title to credit union account.

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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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