I have over 30 years experience with real estate negotiations and litigation.
Below are some examples of cases that we have tried in northern Michigan.
EASEMENTS / RIPARIAN RIGHTS
ESTATE / ESTATE PLANNING LITIGATION
ZONING / MUNICIPAL / REGULATORY LAW
LANDLORD / TENANT ISSUES
CONSTRUCTION / CONTRACTOR LIABILITY
QUIET TITLE / PARTITION / MORTGAGE FORECLOSURE
EASEMENTS / RIPARIAN RIGHTS
Adams v Vezino, et al. (Antrim County Circuit Court File No: 06-8225-CH)
Client front lot Clam Lake owners filed lawsuit against back lot owners to restrict the size of dock and mooring along an easement for “ingress and egress.” Suit resolved following facilitative mediation by drafting of agreement defining back lot owner rights and restrictions and formation of back lot owner association.
Arbutus Beach Association v Jose Aguilar (Otsego County Circuit Court File No: 03-10300-CH)
The Arbutus Beach Subdivision on Otsego Lake was originally platted with a public “Lake Park.” In 1992, front lot owners filed a suit to vacate the entire park and add it to their property. In 1994, the Otsego County Circuit Court issued an order indicating that back and front lot owners had the same right to use the park, resulting in a settlement agreement converting the park into a private park for the use of all subdivision property owners, but barring usage by the public. In addition, it was agreed that front lot owners would place their docks and boats in the portions of the park directly in front of their property, while the back lot owners would place their docks and boats in those portions of the park beyond the road ends. Due to an inability to agree on the replatting of the subdivision to conform with the settlement agreement, this lawsuit was filed by the Association in 2003 to finalize the 1994 settlement agreement. On October 15, 2009, a trial was conducted in order to interpret the provisions of the 1994 settlement agreement. Almost one year later on September 30, 2010, the trial court issued an opinion limiting the back lot owners rights to use Lake Park to the areas immediately beyond the road ends, thereby granting “quasi” riparian rights to the park front lot owners.
Britton v Fifth Third Bank (Otsego County Circuit Court, File No: 03-10288-CH)
Modular home placed too close to client’s property line, resulting in easement to 11-acre backlot becoming unusable pursuant to County Zoning Ordinance. Case dismissed upon agreement to move modular home and pay attorney fees.
Chenevere v Burt Township (Cheboygan County Circuit Court, File No: 06-7612-AA)
Township Supervisor objected to client back lot owners using lake access lot next to his property. Following appeal from Burt Township Zoning Board of Appeals to Cheboygan County Circuit Court, Township supervisor and Township Planning Commission reached agreement with back lot owners to allow dock and permanently moor boats.
Churches v Ruttman, et al (Montmorency County Circuit Court, File No:02-000042-CH, Court of Appeals Docket 259162)
Client, front lot owner, filed suit against back lot owners to prevent use of easement and dock. Motion for Summary Disposition granted in favor of client, Court of Appeals affirmed May, 2006.
Cox, et al v Bofysil, et al (Crawford County Circuit Court, File No: 02-5921-CH)
Suit on behalf of front lot owner adjacent to public road end being used by back lot owners. Dock removed without necessity of trial.
Fowlie v Moore (Otsego County Circuit Court File No: 06-11983-CH)
Plaintiff lakefront owner attempted to force an easement by necessity across client defendant lakefront owner properties, since Plaintiffs’ property did not have access to a public road. The claim was defended by asserting that Plaintiffs could obtain a license across a railroad track, that the parcel may have been deliberately landlocked by its original grantor that the owners of the parcel purchased it knowing that it had no access and that if an easement had ever existed, it had been eliminated by adverse possession. The case was eventually settled by one of the clients’ purchasing the landlocked parcel and adding it to his property at a greatly discounted price.
Griffith v Budzynowski, et al (Alcona County Circuit Court, File No: 06-724-CZ)
Client’s family originally owned 170 acres, which was subsequently sold and/or inherited by various family members. The issues involved included proper division of oil and gas revenues, competency of original owner to sell property, and easement by necessity for a landlocked remainder parcel owned by client. Resolved through consent judgment.
Hoffman v Caron, et al. (Otsego County Circuit Court, File No: 17- 16702-CH)
Client Plaintiff and her Defendant sister purchased adjacent parcels of property, both of which were believed to have waterfront rights on Little Bear Lake. During the course of a 1988 lawsuit by an adjacent property owner, it was learned that the Plaintiff’s parcel allegedly did not have riparian rights. Therefore, the Plaintiff and Defendant sister entered into a Grant of Easement, giving the Plaintiff riparian rights on the Defendant’s parcel. More recently, the Defendant sister and husband and the Defendant successor owners of the adjacent parcel blocked the Plaintiff from mooring her boat at the end of the easement. Complaint filed to confirm Plaintiff’s right of usage included theories of res judicata, acquiescence, adverse possession, interpretation of easement language, slander of title and Defendants’ misappropriation of park land along the shore line of Little Bear Lake. Case settled by recording clarifications of order in original lawsuit and easement agreement, to confirm property lines, and Plaintiff’s right to install dock and moor boat.
Kobylczak v Hatmaker (Charlevoix County Circuit Court File No: 16-0811-25-CH)
Plaintiff client’s family originally owned a 160-acre quarter section. Over time, parts of the property were sold to third parties, or split and given to family members. One of the family parcels was foreclosed upon by First Federal of Northern Michigan (Charlevoix County Circuit Court File No: 16-0483-25-CK) which resulted in the loss of that property together with a compromise $18,000 deficiency judgment. This foreclosure also resulted in a 40 acre parcel owned by the Plaintiff, being landlocked. Suit filed against new owner of the foreclosed property in order to force an easement from the 40 acres to a public road based on theories of implied easement, easement by necessity, and prescriptive easement. Case settled by Defendant granting requested easement.
Lake Louise Christian Community
Several thousand-acre Christian camp with lake and residential community, considered allowing the drilling of 20-30 gas wells (with associated 1-acre drill sites pipelines and service roads). Homeowners within community objected based on possible groundwater and lake contamination, disruption of wildlife, and violation of their long-term leases which state that common areas will be managed in such a way so as to “ensure the continuing unity, integrity, and cohesiveness of the community of all lessees of property from lessor, and to ensure that aesthetic values, property values and Christian standards of conduct are maintained.” In the face of the imminent filing of lawsuit and request for injunction, plans for oil and gas exploration on the property were dropped.
Lepper v Berry (Roscommon County Circuit Court File No: 13-721610-CH)
Plaintiff clients filed suit against sellers of Houghton Lake cottage, seller’s realtors and their own realtors. Clients had purchased the property in the middle of winter, in reliance on an MLS listing by the seller’s realtor, stating that the property had a seawall. The next spring, after the ice melted, they determined that there was no seawall and that the beach had been very heavily eroded. The buyer’s realtors were dismissed on summary disposition. The case settled, following case evaluation, by the seller’s and seller’s realtors, making contribution toward the construction of a concrete seawall.
Maczik v Davis (Roscommon County Circuit Court File No: 99-720867-CK, Court of Appeals Docket 273220)
Back lot owner claimed right to partition riparian rights of client front lot owner, based on misreading of prior September 10, 1974 Judgment. Court of Appeals reversed decision of lower court, thereby confirming that back lot owner had no riparian rights to shore of Houghton Lake in front of clients’ property.
Nelson v Renner (Mackinac County Circuit Court File No: 09-6774-CH) (Court of Appeals Docket No: 332948)
Plaintiffs filed suit against the seller clients, the client’s realtors, various tribes and the U.S. Government. The primary issues in the case are: (1) why is there a 35-foot difference between the property line as surveyed and described in the deeds; (2) do the owners of the beachfront own a pier, or is it located on bottomland owned by the State of Michigan; (3) did the realtors make misrepresentations to the Plaintiffs during the course of the original sale. The United States and Tribes have been dismissed with prejudice from the case based on sovereign immunity. The trial court also issued an administrative dismissal of the lawsuit against the client and realtors, without prejudice based on failure to progress. The Plaintiffs filed an appeal to the Court of Appeals regarding the dismissal, while the client and realtors filed a cross appeal with regard to the Court’s failure to dismiss with prejudice and to award attorney fees and costs. Case remanded to Circuit Court with instruction from Court of Appeals to decide all outstanding motions.
Owen v Royal (Otsego County Circuit Court File No: 10-13701-CK (A))
Plaintiff filed complaint for prescriptive easement in favor of her property on Big Bear Lake, across the Defendant client’s property. Defendant denied prescriptive easement for numerous reasons, including argument that no prescriptive easement could arise since the parties were related and the driveway was used with the Defendant’s express or implied permission. Following a three day bench trial, the Court issued a judgment in favor of the Defendant, denying Plaintiff’s claim for a prescriptive easement.
Petrucci v Great Lakes Energy Cooperative (Otsego County Circuit Court File No: 08-12844-CZ)
Defendant power company placed a bank of pole mounted transformers on clients’ vacant subdivision lot pursuant to an unrecorded general easement across thousands of acres of unplatted land. Suit filed to remove the transformers based on fact that the easement was not recorded, was an unreasonable burden on the property and constituted a trespass and slander of title. The case was resolved by the Defendant paying more than the market value of the property for damages, costs and attorney fees and agreeing to no further expansion of the equipment on the property.
Rhadigan v Jeffries (Montmorency County Circuit Court File No: 18-004409-CH)
Defendant clients owned a cottage, whose title history included a five-foot easement and right to maintain a dock on West Twin Lake. Plaintiff purchasers of property which easement crossed, claimed that Defendants’ right to install a dock did not include any mooring or sunbathing, and then caused the Albert Township Zoning Administrator to cite the clients for installation of a hoist too close to the Plaintiffs’ property line. Clients filed a counterclaim asserting that the Plaintiffs had been trespassing to reach their cottage, the location of the Plaintiffs’ home and pole barn violated the green belt and setback requirements of the zoning ordinance, Defendant clients’ activities were allowed pursuant to the doctrines of adverse possession and prescriptive easement, or that the easement should be reformed to move it in front of the Plaintiffs’ cottage. The parties subsequently entered into a consent judgment confirming the validity of the easement (while placing some definition on its maintenance and use), allowing installation of a hoist and the mooring of a single watercraft. The clients’ request for a variance to allow a dock was subsequently denied by the Township Zoning Board of Appeals, based on its conclusion that the dock problem was self created by the original owner of the Defendants’ property, since the zoning ordinance prohibiting such a dock within 10 feet of the property line was in existence at the time the easement was created.
Sevenski v Sevenski (Charlevoix County Circuit Court File No: 08-0338-22-CH)
Plaintiff client purchased property on land contract with two mobile homes from a family member which was immediately adjacent to another parcel owned by a different family member. A garage was subsequently constructed along the boundary between the two properties, with the client receiving assurances that if any part of the garage was located on the adjacent property, he would be able to buy or lease that property. Lawsuit filed and preliminary injunction sought when family relationships deteriorated and relative seized control of the garage. The case was settled by the Plaintiff receiving cash in exchange for allowing cancellation of the land contract.
QUIET TITLE / PARTITION / MORTGAGE FORECLOSURE
Descoteaux v Westerfield (Otsego County Circuit Court File No: 13-14839-CH)
Client purchased parcel on land contract, paid off the land contract but the land contract vendors failed to provide a warranty deed. Issue was discovered when client attempted to sell the property to a third party. Complaint to quiet title filed against heirs of deceased land contract vendors, with request to allow service on those unknown heirs by publication. Request to quiet title granted, following a motion for summary disposition in June 2013.
Dundas v Laubengayer, et al. (Cheboygan County Circuit Court File No: 19-8767-CH)
Plaintiff purchased property from Defendant client, subsequently discovering that the Defendant neighbors’ septic system and pole barn were across the property line. Defendant neighbor entered into a consent judgment agreeing to remove the septic system in exchange for an easement allowing their encroaching structures to remain. Defendant client was dismissed for nuisance value settlement.
Geer v Cosby (Otsego County District Court File No: 19-34373-SP-3, Otsego County Circuit Court File No: 19-18031-CH (H))
Clients filed complaint for land contract forfeiture based on the Defendants failure to make a final balloon payment on the land contract. In response, the Defendants filed a new circuit court complaint alleging misrepresentation and fraud because the home had allegedly not been properly affixed to the land. Clients’ answer to the circuit court action asserted that the property had been purchased “as is,” the Defendants inspected the mobile home before purchase, the Defendants had requested the affidavit of affixture to which they now objected, the clients did not install it on its foundation, and if the land contract was void for any reason the clients were entitled to the value of the rental of the property pursuant to the doctrines of quantum meruit and unjust enrichment. The case remains pending.
Jones Construction, LLC (2010)
Contractor constructed spec home prior to collapse of real estate market, subsequently being unable to sell it for the cost of construction. Negotiated settlement agreement between contractor and bank based on greatly reduced principal and monthly payments in exchange for quit claiming house to bank.
Kasper Trust v Bellant, et. al (Mackinac County Circuit Court File No: 16-7898-CH)
Client purchased property at tax sale and subsequently decided to sell it to a third party. However, title companies refused to insure property purchased at a tax sale without a court order confirming ownership. In addition, a title search revealed various title problems including previous failures to record deeds after satisfaction of land contracts. Therefore, lawsuit filed against all owners and/or their heirs for the past 50 years to confirm current ownership in client. Default Judgment entered in favor of the client, allowing sale to proceed to the third party.
Kroh Trust v Greene Trust (Otsego County Circuit Court File No: 15-15827-CH (A))
Parent willed vacation property to his three children; one of the children subsequently transferred her interest to her brother. After both the brother and client died, their trusts were unable to agree upon price for which the property should be sold, or a buyout price for the client’s 1/3 share. Therefore, this partition action was filed to allow for appraisal, the addressing of alleged owelty claims by the brother’s trust against the client’s trust, and possible buyout of the client’s trust’s interest in the property. Case was settled following mediation by the parties agreeing to a buy-out for the client’s one-third share.
Larson v Cullinan (Cheboygan County Circuit Court File No: 19-8740-CH)
After clients purchased their property, they learned that their property and the Defendants’ neighboring property had been owned by various individuals who treated both properties as a sort of family compound. Over the years the Defendants small tag along trailer near the property line had been expanded with various additions, a well, LP tank and a shed. There was also confusion concerning the location of the actual property line, since it had apparently been set by the subdivisions’ non-surveyor developer. Settled by Defendants demolishing their structure (since it was likely a public health hazard), removing the LP tank and transferring the shed to the Plaintiffs, but retaining an easement to use the well until it failed.
LeVanseler v LeVanseler (Oscoda County Circuit Court File No: 15-005603-CH)
Father set up land trust concerning hunting property for client and client’s brother. The trust made specific reference to the property, was signed by the father, client and brother, and a deed was subsequently signed by the father to himself, the client and brother as joint tenants. Brother filed complaint seeking partition. Client filed counter complaint asserting that trust was valid, and that the filing of the partition action both triggered the trust provision terminating the brother’s interest in the property, and responsibility for the client’s attorney fees. Case settled following mediation by client buying out brother’s interest at a reduced price.
Lewandowski v Steward (Roscommon County District Court File No: 19-87-LT-2, Circuit Court File No: 19-724789-CH)
The Defendant clients entered into a purchase agreement in December 2012. Subsequently, due to financing problems, the parties signed various documents including an Addendum to Buy and Sell Agreement, Lease Agreement, and Option Agreement. Pursuant to these documents and oral agreement, half of the balance was due in July 2019. Several months before half the balance was due, the Plaintiffs claimed that the option was nullified due to the Defendants failing to repay them for the winter 2018 taxes, and filed a landlord tenant action to evict the clients as simple tenants (not optionees). Defendants filed a counter complaint alleging breach of contract, violation of the Michigan Truth in Renting Act (TIRA) (MCL 554.631, et seq.), violation of Michigan Consumer Protection Act (MCPA) (MCL 455.901, et seq.), unjust enrichment, and quantum meruit. The case remains pending.
Marques Trust v Peters and Beck (Cheboygan County Circuit Court File No: 12-8474-CH)
Client trust filed a suit to quiet title concerning property which the Settlor of the Trust had purchased on Land Contract. While the Settlor had received a warranty deed, questions arose as to whether or not the signer of that warranty deed had authority to do so. Issues included whether a previous owner in the chain of title continued to hold a half-interest in the property, and whether the signer of the deed had authority to sign on behalf of her deceased husband. Since prior owners in the chain of title prior to the grantor were deceased, the lawsuit was served on unknown heirs of the prior owners by publication, all unknown heirs were defaulted, and default judgment was granted in favor of the Estate.
Proulx, as Conservator for Vanderpool v. Baker Trust (Montmorency County Circuit Court File No: 15-003724-CH)
Client entered into land contract to purchase property, which was already encumbered by a mortgage. When land contract was paid off by client, a substantial balance on mortgage was still owed by Defendants. Settlement reached which allowed client to pay off Defendants’ mortgage and a judgment in double the amount of the mortgage pay off against the Defendant.
Reynolds v Reynolds (Cheboygan County Circuit Court File No: 10-8050-CH)
Father died leaving parcel of property to three children. One of three children quit claimed interest in property to Plaintiff child. However, a third child refused to pay taxes or other costs associated with maintenance of the property. After suit was filed for partition, third sibling quit claimed interest in property to client, making client sole owner of property.
Sisovsky v GLFP, Inc. and Kasubowski (Ogemaw County Circuit Court File No: 15-659610-CH)
The client wished to have some trees cut down around his home to make it more attractive for sale. He contacted Defendants, who caused him to sign a contract allowing the logging of his entire 78.4 acres of property. Suit was filed to cancel the contract, based on theories of fraud, unilateral mistake, contract void for vagueness, failure of consideration, and temporary incapacity of Plaintiff. Defendant agreed to cancel logging contract in exchange for small payment.
Superior Property Ventures LLC v Miles Apiaries, Inc. (Otsego County District Court File No: 17-31004-LT-3)
Plaintiff entered into a land contract to sell an office building and associated warehouses to the Defendant, supposedly to house a beekeeping supply company. Almost immediately, the Defendant began missing scheduled land contract, tax and utility payments. Instead of primarily using the buildings for beekeeping supplies, the Defendant began to use them for storage of boats and recreational equipment. The pipes eventually froze, and the building was red-tagged by the Building Department since an occupancy permit had not been obtained. On the day when the forfeiture trial was initially scheduled, the Defendant demanded a trial by jury, delaying the hearing for several more months. Finally, when it was learned that the Defendant had deliberately cancelled the insurance on the property, the Defendant agreed to turn possession of the property back to the Plaintiff while forfeiting its initial down payment and all subsequent land contract, insurance and tax payments.
Yeasting v Geyer (Chippewa County District Court File No: 12-3340-LT1)
Plaintiff filed post mortgage foreclosure eviction proceedings against client defendants. Defendants filed a counter complaint to nullify the Sheriff’s deed based on lender’s failure to provide 30-day notice of acceleration as required by mortgage. In lieu of filing third party complaint against involved lender, lender issued deed to clients and granted a 30-year mortgage.
ZONING / MUNICIPAL / REGULATORY LAW
Argue v Wolverine Power (Elmwood Township Zoning Board of Appeals/Leelanau Circuit Court File No: 08-7749-AV/Michigan Public Service Commission)
Client adjacent property owners appealed the Township Zoning Administrator’s approval of huge electrical substation in rural/agricultural area designated for preservation in the M-72 corridor study. After a 6 ½ hour hearing, Township ZBA determined substation allowed by existing zoning ordinance by a 3-2 vote on February 7, 2008. Decision of the ZBA was upheld by the Leelanau County Circuit Court in an order dated April 11, 2008. However, in the meantime, the Zoning Ordinance was amended. During the course of subsequent hearings, the Township confirmed that the substation was now prohibited due to the amendment. Unfortunately, Wolverine Power subsequently filed a petition with the Michigan Public Service Commission to override the Elmwood Township Zoning Ordinance, allowing construction of the substation.
Boudakian v Montmorency County/District Health Department #4
Client obtained permission to remodel small cottage on West Twin Lake from Albert Township Zoning Department, the Montmorency County Building Department and District Health Department #4 prior to purchase. In the middle of reconstruction, the Health and Zoning Departments shut down the project on the basis that the reconstruction was so extensive that it might place an unacceptable load on the existing septic system. Following hearing before the Zoning Board of Appeals, and upon consultation with the Building Department, both the Zoning Administrator and District Health Department #4 lifted their objection to completion of construction.
City of Gaylord v Totten, et. al. (Otsego County Circuit Court, File No: 04-10967-CZ, Court of Appeals Docket 266954)
Client businesses were annexed to the City of Gaylord and required to pay special assessments for extension of water and sewer systems from the City. However, when the City insisted that clients actually buy and use City water, which was inferior to their own well water, they filed suit on various theories, including a claim that the City was taking their property without just compensation and taxing them in violation of the Headlee tax limitation provision of the Michigan Constitution. Clients lost at the Circuit Court level, and decision appealed to the Michigan Court of Appeals. In its opinion, the Court of Appeals upheld the decision of the trial court, stating that the City could prohibit a property owner from using their own well water, that there was no requirement that the City show that the property owners water was contaminated or use of it posed a risk to the public, and that the compulsion to pay for city water did not constitute taxation in violation of the Headlee Amendment.
Comber (Briley Township Clerk) v LaMore (Montmorency County Circuit Court File No: 19-4544-CZ
When Defendant clients believed that Briley Township had improperly disposed of township documents that they were seeking, they retrieved them from a dumpster. The Township filed a complaint for injunctive relief requesting immediate return of the records and a prohibition of dissemination of their contents to the public. The case was defended by asserting that dumpster diving is legal in the state of Michigan, and was voluntarily dismissed when it was revealed that the documents had been turned over to the State Police.
Concerned Citizens of Acme Township v Acme Township, Village at Grand Traverse, LLC and Meijer, Inc. (Grand Traverse County Circuit Court File No. 05-024483-CH, Court of Appeals Docket 264109, Supreme Court Docket 135171)
Acme Township developed a Master Plan calling for the development of a neo-traditional village center on M-72 and Lautner Road. Developer, Village at Grand Traverse, LLC, gained control of the property intended for the Village center and sought to develop the largest mall in Northern Michigan. Township Board chose to disregard its own Master Plan and approve the proposed mall. Clients, Concerned Citizens of Acme Township, sued Acme Township, the mall developer and Meijer on the basis that the proposed development was not in compliance with the Master Plan. Subsequently, the entire Acme Township Board was removed from office. On July 6, 2005, the Grand Traverse County Circuit Court reversed the granting of the SUP for the development on the basis that it violated the Township Master Plan and improperly attempted to control the new township government. The Michigan Court of Appeals partially reversed decision of Circuit Court and reinstated SUP, while holding that Township could reject specific site plans proposed by the developer.
Cooper v Albert Township (Albert Township Zoning Board of Appeals 2017)
Client owned a cottage on West Twin Lake which had been in her family since 1946, and was originally constructed in 1885 as an office for the Hanson Lumber Company. The client wanted to build a new, expanded cottage in the same location on the property. However, the existing cottage was located approximately 41 feet from the shore line, while the Albert Township Zoning Ordinance stated that new cottages must be constructed outside the 75-foot greenbelt surrounding West Twin Lake. The new cottage was not grandfathered, since the square footage within the prohibited greenbelt would have been greater than the existing cottage. Following a hearing, the Zoning Board of Appeals granted a variance allowing construction of a new cottage, because of the unique circumstances or physical conditions present on the property, the client did not create the circumstances or conditions, strict compliance with the zoning ordinance would be unnecessarily burdensome, the variance was the minimum necessary, and the variance would not have an impact on surrounding property.
In Re: The Determination of a Lake Level for Pratt Lake of Sage Township, Michigan (Gladwin County Circuit Court File No: 85-8254-CE)
In July 1985, the Gladwin County Prosecuting Attorney filed a petition with the circuit court pursuant to the Inland Lake Level Act of 1961, PA 146 of 1961 as amended (MCL 281.61, et seq.) to determine a normal lake level for Pratt Lake. In a subsequent order, the circuit court set the normal lake level at 851.4 feet, not to exceed 852.3 feet. After 1985, the County continued to use an extractive gravel pit along the clients’ property line to direct water from the Foran drain into Pratt Lake without their permission; and consistently maintained the lake level above 852.3 feet, thereby intermittently flooding the clients’ property. In 2019, Counsel became engaged in discussions with the current prosecuting attorney to grant permission to use the gravel pit as a connection between the drain and Pratt Lake and maintain a proper lake level.
Federal Communications Systems v Miller
Clients, licensee of certain 800 MHz frequencies used for critical infrastructure industry (cii) communication, was required by the Federal Communications Commission (FCC) to relocate to a different frequency in order to allow a reorganization of the 800 MHz bandwidth to reduce interference between different types of users. Was involved in negotiating frequency reconfiguration agreement with FCC on behalf of client, including appropriate compensation and damages.
Golden Township Sewer System (Oceana County, 2019)
Counsel was retained by citizens after Golden Township announced that it once again planned on constructing a sewer system near Silver Lake. Instead of proceeding under the usual Act 188 PA 1954 (MCL 41.721 et seq.), which allows a township to set up a sewer special assessment district if it is supported by the majority of the property owners in the district, the Township had worked with various large landowners and county, state and federal officials to simply impose a sewer special assessment district pursuant to Act 185 PA 1957 (MCL 123.731 et seq.). Opposition began by drafting Freedom of Information Act requests to the Township, County and USDA. A 501C3 corporation was set up to act as coordinator of opposition activities and to collect funds. Tax Tribunal attorneys were retained to file hundreds of individual tax tribunal appeals (if necessary) regarding the fluctuations in the estimated costs of the project, the favoring of vacant and commercial properties, and the method of calculating costs per residential equivalent unit (REU). Experts volunteered to testify that any nitrogen and phosphorus contamination in Silver Lake could be better handled with modern septic fields or cluster septic systems. In March and April 2019, letters were sent to all property owners by the “Silver Lake Dunes Area Property Owners,” describing the group’s reasons for opposing the project, alternative solutions, and urging owners to attend meetings opposing the project. After approximately 500 people appeared at Township meetings in April to oppose the sewer, the Township Board voted to withdraw its support during a meeting on May 14, 2019.
Otsego County Rural Alliance v Bagley Township (Otsego County Circuit Court 01-9003-CE)
Represented Citizen’s group challenging legality of formation of Bagley Downtown Development Authority and construction of a million square foot mall. Lost Motion for Summary Disposition before Circuit Court, lost before Court of Appeals, but entire project collapsed during course of litigation process.
Radzwion v Blue Lake Township (Blue Lake Township Zoning Board of Appeals 2017/Kalkaska Circuit Court File No. 17-012725-AA and 18-012185-AA, Court of Appeals File No: 347710)
Clients purchased a large vacant residential parcel with frontage on Squaw Lake, adjacent to another residential parcel which contained a home and storage building. A year later, the neighboring parcel was purchased by a local township resident who began placing oversized pole barns, construction equipment and junk on the property. Formal petitions were filed with the Township Zoning Board of Appeals (ZBA), asserting that these activities constituted an improper accessory use of residential property, that the buildings were improper accessory structures, than an illegal home occupation in violation of the zoning ordinance was being conducted, and that piling of a foot and a half of dirt against the sidewalls of a pole barn did not correct its sidewall height violations of the ordinance. Following several hearings, the ZBA upheld all of the neighbors’ uses, buildings and activities. The issues were then appealed to the Kalkaska County Circuit Court, which determined that it was required to uphold the ZBA decisions, not because they were necessarily correct, but instead because the decision was supported by competent, material and substantial evidence on the record. (MCL 125.3606) The Petitioners’ Application for Leave to Appeal was denied by the Court of Appeals in June 2019.
Ramsey v Otsego County. (Otsego County Circuit Court, File No: 01-9332-AS)
Client, an owner of an apartment complex, objected to the rezone of a parcel of property across the street, which would have allowed traffic from an industrial park to enter his quiet residential neighborhood. After filing of lawsuit, County admitted that approval of the rezone was invalid; rezone was subsequently resubmitted to the Township and rejected.
Wagner v Otsego County (Otsego County Circuit Court, File No: 03-010453-AV)
Client challenged construction of sewer project to service Bagley Downtown Development Authority. Approval of project by County reversed by Circuit Court due to Township and County’s failure to comply with Otsego County Zoning Ordinance requirement.
Way v Eveline Township and Parks, et al. (Charlevoix County Circuit Court, File No: 03-1939-19-CZ)
Action by Plaintiffs to rezone 160-acre agricultural parcel, whose existing zoning allowed 19 homes to 425-unit residential project, including 275-unit mobile home park. Township capitulated, but clients comprising surrounding property owners intervened, to block consent judgment allowing development. Plaintiff responded with amended Complaint alleging damages against intervening property owners. Circuit Court first threw out damage claim and then following a six-day trial, issued a decision in January 2006 upholding existing zoning and nullifying the consent judgment agreed to by the developer and township. Developer elected not to appeal in exchange for surrounding property owners’ waiver of claim for attorney fees.
CONSTRUCTION / CONTRACTOR LIABILITY
Barnett v Citizens Insurance, Ferrellgas, and Northwoods Restoration (Roscommon County Circuit Court File No: 08-727087-CZ)
Clients’ home suffered severe water damage as a result of freezing following the failure of gas supply. Contractor hired by insurance company to perform water restoration services, failed to complete those services in a timely manner, resulting in the growth of mold. Client filed complaint against insurance company for damages pursuant to policy, gas company for damages to the home and consequential economic damages and the restoration company for costs associated with mold remediation. Case resolved by large damage award to clients against insurance company and gas company following mandatory arbitration.
Bencin v Lewy (Otsego County Circuit Court File No: 16-16330-CH)
Plaintiff purchased the real estate and business constituting Heart Lake Resort Cottages from client/Defendant, after numerous appraisals, inspections and negotiations lasting months. Shortly after closing, Plaintiff failed to pay the balance of $50,000 for the purchase of the business and personal property, and filed a lawsuit alleging that the Defendant had continued to use the email addresses of the business, and that there was a defect in the sewage system of one of the cottages. Client Defendant filed a counter complaint for the $50,000 final payment, fraud, and for costs and attorney fees. Case resolved with nondisclosure agreement.
Caillouette v Homesite Insurance Company, Family Heating & Cooling and KB Well Drilling (Montmorency County Circuit Court File No: 08-002129-CH)
Plaintiff clients’ home sustained damage when ground water heat pump furnace failed. Suit filed against insurance company to repair damage to home and furnace, against drilling company for failing to drill a well capable of sustaining a heat pump furnace and against the furnace company for failing to insure an adequate water supply before installation of furnace. Case settled by payment of damages by the insurance company and the insurance company assuming the Plaintiff’s rights to sue drilling company and furnace company.
County Materials v Misiak, Five Star Landscaping, IWI Group, LLC, Alpena Agency, Inc., et al. (Dane County Circuit Court, Case No: 12-CV-3076, Alpena County Circuit Court, Case No: 13-5228-CK)
Defendant client, Randall Misiak, was in the process of disassembling cement block manufacturing equipment in Wisconsin, when a plastic liner inside of a hopper started on fire damaging the building where the equipment was located. The owner of the building sued the Defendant client and his insurer, Hastings Mutual, in Wisconsin. Eventually, other parties including the purchaser of the equipment, the wholesaler of the equipment, the agency obtaining insurance for Defendant client were added to the Wisconsin lawsuit. In March 2013, eight months after the original Wisconsin lawsuit was filed, Hastings Mutual filed a declaratory judgment action in the Alpena County Circuit Court claiming that it did not provide coverage for the type of business activity that the Defendant client was involved in at the time of the fire. Following a mediation in Madison in November 2013, which all parties in both the Michigan and Wisconsin cases were required to attend, the case was settled for a greatly reduced amount, with no payment by the Defendant client at all, based on evidence that Plaintiff’s claims for fire damage were greatly exaggerated, that Hastings had waived its ability to claim that it had no coverage, and payment of settlement by the other Defendants.
Geikowski v Auto-Owners Insurance Co. (Montmorency County Circuit Court File No: 15-003834-CH)
Client owned home insured by Defendant. When basement wall collapsed, Defendant denied coverage based on exclusion for earth movement or water below the surface of the ground. Suit filed relating to specific coverage for building collapse based on theories of breach of contract, common law fraud and silent fraud. Case settled by insurance company paying for all damages associated with the basement wall collapse.
Hogan v Timberline Logging, Inc. (Otsego County Circuit Court File No: 10-013755-CK (A))
Plaintiff property owner entered into a logging contract with the Defendant concerning his 180 acres of mixed red pine and hardwood. Suit filed when Defendant sold resulting log chips and pulp to other companies without compensating the Plaintiff in the amount required by contract. Default Judgment entered against Defendant.
Humphrey v Jenkins (Otsego County Circuit Court File No: 15-16095-CH (M))
Client purchased home from Defendant, subsequently learning that a prior potential buyer had decided not to purchase the home because their inspection revealed that the stone fascia on the outside of the house was improperly mounted. Suit filed against seller for damages based on theories of common law, fraud, innocent misrepresentation, and silent fraud. Case settled with nondisclosure agreement.
Kerbyson v Nichol (Michigan Administrative Hearing system, Docket No: 13-009170-CSCLB, Case No: 319565)
Defendant contractor improperly remodeled the client’s home by failing to pull permits, installing leaking windows, poorly installing drywall and window casements and generally doing low quality work. Instead of filing a civil suit, Plaintiff elected to proceed with filing a complaint with the Department of Licensing and Regulatory Affairs, which eventually resulted in a fine of $500 and a suspension if the fine was not paid. Eventually the matter was resolved through the contractor redoing his work in a manner satisfactory to the client.
Kollar v Davidson (Ogemaw County Circuit Court File No: 09-657084-CH)
Plaintiff client purchased what appeared to be a double-wide modular home. Upon attempting to refinance his mortgage on the home, the client learned that the home was constructed of pieces of several modular homes and that an occupancy permit had never been obtained. Suit filed alleging breach of contract, common law fraud, innocent misrepresentation, silent fraud, contractor liability, breach of warranty and rescission. Lawsuit resolved by obtaining certificate of occupancy for “stick built home” and payment of damages by Defendant.
Warner v S&T Services, LLC (Otsego County District Court File No: 07-18023-GC-3)
Suit filed by client against contractor relating to re-roofing a house. Settled by partial replacement of roof.
Arquette, et al v Lake Louise Property Owners Association, et al: (Otsego County Circuit Court, File No: 03-10291-CZ)
Several members of small resort community sued homeowners association regarding failure to follow Bylaws regarding elections and attempt to sell lakefront property owned by Association. Parties stipulated to dismiss lawsuit upon agreement of homeowners association to retract sale attempt and properly comply with Association Bylaws.
Hees, Liebold, Pagels and Nordeen v Michaywe Limited Partnership (Otsego County Circuit Court Case No: 93-9492-NZ) Michaywe, a 2,200 lot development founded in 1970, was still under the control of its original developer in the early 1990’s. Following a seven-year lawsuit, the developer conveyed approximately $6 Million worth of recreational property, including a golf course, clubhouse, pools and tennis courts, to the Michaywe Owners Association, paid $625,000 in damages and gave up control over the development to the Association.
Soden, et al. v Lakes of the North (Antrim County Circuit Court, File No:04-8070-CH)
30 individual lot owners in an 8,000 lot development sued homeowners association relating to failure of the owners association to obey Deed Restrictions concerning procedures for increasing annual assessments and for levying a special assessment. Circuit Court agreed special assessment invalidly levied, but upheld increase in annual assessment. Court of Appeals subsequently ruled increase in annual assessment also invalid.
Thornton v Norris (Otsego County Circuit Court, File No: 02-9832-CH)
Client, newly formed homeowners association, filed suit to enforce Deed Restrictions prohibiting using camper trailers as vacation homes. Circuit Court upheld Deed Restrictions, requiring removal of trailers.
ESTATE / ESTATE PLANNING LITIGATION
In Re: Arquette Trust (Otsego County Circuit Court File No: 17-17031-NZ (M))
Parents created a revocable living trust for the benefit of their two children during the children’s lifetimes. In order to ensure that their children did not waste the trust proceeds, the parents appointed one of their grandchildren as the Successor Trustee after their deaths. Following the death of both parents, suit was filed by Plaintiff daughter against the client/granddaughter/Defendant, requesting further accountings and replacement of granddaughter as trustee. Action dismissed following counsel’s assistance in providing standard accountings.
Estate of Mary M. Becker (Montmorency County Probate Court File No: 11-006758-DE)
Childless decedent willed a 40-acre parcel, including her home, to various friends. When the personal representative issued a deed for 10 acres of the parcel to the client, and closed the estate in August 2012, he failed to obtain approval from the Township for the split. A petition was filed for the client in June 2016 requesting that the estate be reopened, a new personal representative be appointed, the Township approve the split, and the client be repaid for all attorney fees and taxes incurred in correcting the error made by the original personal representative. Case resolved after Township approved split, and client’s property sold at an enhanced price to an individual who also wished to buy other real estate originally belonging to the Estate, thereby allowing the client to be repaid for attorney fees and taxes in addition to receiving a fair price for his ten acres.
Bogue v Bogue (Otsego County Circuit Court File No: 02-9816-CH, Court of Appeals Docket #254568)
Client grandparents made son a joint owner of 80-acre parcel in Vanderbilt as part of their estate plan. When they later attempted to instead transfer the parcel into their trust, their son refused to allow the transfer stating that he was part owner of the property. Grandparents filed suit against the son and several grandchildren intervened on the side of the grandparents. Following a three-day trial, judgment was entered in favor of the grandparents, requiring the son to transfer the property to the grandparents’ trust, since he had only held title pursuant to a “constructive trust.” Judgment upheld by Michigan Court of Appeals in an opinion dated September 13, 2005.
Estate of William Brown. (Iosco County Probate Court File No: 14-002950-DE)
Husband wrote a will leaving his estate to his wife and stepdaughters. Following divorce, he did not revoke his will prior to his death. The decedent’s nieces and nephews contend that the will was automatically revoked as a result of the divorce, while the clients contend that only the bequest to the ex-wife would be revoked. The parties amicably settled by splitting the estate between the blood relatives of the decedent and the decedent’s former stepdaughters.
Estate of James DeCorte (Grand Traverse County Probate Court File No: 09-30,407-DE)
When decedent died 18 years earlier, he owned mineral rights near Otsego Lake but an estate was never opened. A gas company subsequently drilled a gas well near the location of the decedent’s mineral rights, but did not obtain a lease of those rights. Eventually realizing its mistake, the gas company set aside a proportionate share of the proceeds from the well and caused an estate be opened, allowing the proceeds to be distributed to the decedent’s heirs.
Joanen v Grant Manufacturing Corporation, et. al (Otsego County Circuit Court Case No: 10-13830-CK (M))
The Grant family was the owner of several thousand acres of largely undeveloped land in Otsego and Antrim Counties. Over a period of years, mismanagement, improper logging, interfamily employment contracts and other disputes gave rise to various claims and lawsuits for compensation between members of the Grant family and their various legal entities. Became involved in 2013 on behalf of one member of the Grant family to insure that a portion of the property was properly sold, at an advantageous price, and that the client received proper satisfaction of his claims from the sale of the proceeds.
In the Matter of Joanna L. Hass, Deceased (Cheboygan Probate Court File No: 05-12549-DE)
Client daughter of the decedent claimed $48,000 in compensation for care given to the decedent prior to her death. Also asserted that brother had used power of attorney obtained from father to wrongfully appropriate father’s entire estate so that it did not become part of mother’s estate. Case settled by payment of client’s claim of compensation for care given to mother.
Markey v Markey (Montmorency Circuit Court File No: 05-001150-CH)
Father willed his children a cottage on Lake Avalon, but did not specifically designate whether they were to hold it as “tenants in common” or as “joint tenants with right of survivorship.” Subsequently, the children purchased an adjacent vacant lot whose deed stated that they owned it as “joint tenants with full rights of survivorship.” Three of the daughters took the position that both properties should be considered owned by the children as “joint tenants with right of survivorship,” meaning that the last of the children to survive would receive all of the property, while the client Defendant son took the position that all the property should be considered to be owned as “tenants in common,” meaning that the heirs of each child would assume ownership of their portion of the properties. The case was eventually settled, but the parties agreed that the terms of the settlement would not be disclosed.
In the Matter of Florence A. Muth, Deceased (Cheboygan Probate Court File No: 05-12629-DA)
Litigation concerned $2.5 Million estate of twice-widowed, childless decedent. Claimants were numerous nieces, nephews, step-children, friends, etc., claiming that they were entitled to the proceeds pursuant to a will, a modified will, or because there was no will. Following case evaluation, 13.5% of estate, plus additional jointly held property, was awarded to client/nephew.
In re: Dorothy Grace Myerscough (Chippewa County Probate Court File No: 16-27378-GA, 16-27379-TV)
Plaintiff/client filed a petition for appointment of a conservator for his mother, and a petition to remove daughter as trustee of mother’s trust and to request surcharge for misappropriation, breach of duty, and improper fiduciary fees. Settled by client receiving early share of mother’s estate and trusts, in exchange for termination of his interests.
In re: Estate of Norma Salgat (Bay County Probate Court File No: 18-51551-DE)
Client Petitioner filed a request to remove an individual who was both the Personal Representative of the Estate and the Trustee of a Trust of the decedent. Petitioner asserted that the Personal Representative/Trustee was dilatory in commencing the estate, failed to perform her fiduciary duties by not providing inventories or accounts in a timely fashion, and was not properly expending and maintaining the assets of the estate. Counsel negotiated a settlement with the Petitioner receiving a fixed sum in exchange for waiving any further interest in the estate or trust.
In re: Estate of Samuels (Ogemaw County Probate Court File No: 11-14697-DA)
Client wife learned after the death of her husband that he had not divorced a prior wife. Client waived right to receive retirement benefits in exchange for the marital home, personal property and a cash settlement.
Estate of George Simunick v Bannister (Otsego County Probate Court File No: 12-8547-CZ)
Defendant married the much older decedent after which the decedent was placed in a nursing home and died. Their November 3, 2006 “Judgment of Separate Maintenance” had made them tenants in common with regard to the home owned prior to their marriage. When the Defendant refused to allow sale of the home, the client Plaintiff estate filed a partition action to force sale and to split the proceeds in such a way that the estate was also compensated for the Defendant’s use and misuse of the property. Following a series of motions, the Court appointed a Receiver for that purpose. The Defendant then died, and the Court issued an order allowing the Plaintiff decedent’s niece to purchase the entire property, with the Defendant’s share being held by a receiver. Following hearings regarding the claims of various creditors, sale was completed, with the majority of Defendant’s share being distributed to Plaintiff estate due to the Defendant’s unethical behavior pursuant to the doctrine of “owelty.”
Estate of Danial W. Span (Roscommon County Probate Court File No: 14-054623-DE, Court of Appeals Docket No: 324432)
Following a divorce, a father consented to allow his daughter to be adopted by her new stepfather. Following the death of the father, the father’s girlfriend asserted that the daughter was no longer an heir, that the decedent’s will was not a forgery, and that the will unambiguously left all the decedent’s assets to her in spite of making specific reference to the daughter. Following a series of motions, the trial court agreed that the daughter remained the decedent’s heir, but found that the will was valid in spite of it being declared a forgery by a handwriting expert and that the will left everything to the girlfriend. The Court of Appeals subsequently confirmed the decision of the probate court.
LANDLORD / TENANT ISSUES
Law firms who refer landlord/tenant issues to us for handling in Court:
- ORLANS ASSOCIATES, P.C.
- POTESTIVO & ASSOCIATES, P.C.
- WELTMAN, WEINBERG & REIS, P.C.
- GRAY & GRAY, P.C.
- LIKENS & BLOOMQUIST, P.C.
- PETER SHEK, ESQ.