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Subcontractor can collect on bond for public works project

The plaintiff, a subcontractor on a public works project who was not paid, could recover on a bond posted under the PWBA after providing the required "notice" to the general contractor. The trial court determined that plaintiff-Wyandotte Electric Supply "complied with MCL 129.207 when it notified defendants by certified mail within 30 days of first supplying materials to" defendant-Electrical Technology Systems (ETS), the electrical subcontractor on the project. Thus, Wyandotte was entitled to recover on the surety bond. The defendants unsuccessfully tried to "engraft an actual receipt requirement onto the statute[,]" but the trial court correctly ruled that it was "irrelevant that the 30-day notice did not reach its destination." MCL 129.207 does not provide for "actual receipt" of the notice when the claimant uses certified mail. The trial court "correctly determined that if the claimant uses the method of service outlined in the statute - certified mail - then proof of actual receipt is not required. The undisputed evidence showed that Wyandotte used certified mail to send the 30-day notice" to defendant-KEO. "It complied with the statute and was not required to prove actual receipt." The defendants also argued that the trial court should have granted their motion for reconsideration of the summary disposition order "based on Wyandotte's alleged failure to comply with the 90-day notice requirement." However, the trial court acted within its discretion in denying their motion given that they "made no mention of the 90-day notice requirement in response to Wyandotte's summary disposition motion despite that the necessary evidence was available to them." They also contended that the trial court erred by awarding "the time-price differential and attorney fee award outlined in Wyandotte's open account credit agreement with ETS." The court disagreed, holding that these sums were "'justly due' to Wyandotte under the contract." Thus, the trial court "correctly determined that defendants were liable for those amounts." Defendants' "reliance on their lack of privity with Wyandotte to avoid the contractual time-price differential and attorney fee provisions is completely inconsistent with the PWBA." As for post-judgment interest, the trial court "correctly determined that MCL 600.6013(7) applied in this case and awarded interest at the rate of 1.5% per month, capped at 13% per year." Affirmed.

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.

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.

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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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