EASEMENTS/RIPARIAN RIGHTS
Adams v Vezino, et al. (Antrim 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.
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.
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 back lot 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.
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 in the case 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.
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.
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.
Sevenski v Sevenski (Charlevoix County Circuit Court File No: 08-0338-22-CH) Plaintiff client purchased property 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. Plaintiff client seeks the right to continue using driveway along the border of the properties and have ownership of the garage confirmed pursuant to the doctrines of implied easement, prescriptive easement and acquiescence.
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’ 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, is an unreasonable burden on the property and constitutes a trespass and slander of title.
Lake Louise Christian Community Several thousand-acre Christian camp with lake and residential community, considers allowing the drilling of 20-30 gas wells (with associated 1-acre drill sites pipelines and service roads). Homeowners within community object 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.” Negotiations continue in hopes of finding alternative sources of revenue without the necessity of filing a lawsuit.
ESTATE/ESTATE PLANNING LITIGATION
Bogue v Bogue (Otsego 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.
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 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.
Estate of James Edward Spearman, II (Crawford Probate Court File No: 08-7433-DE, 08-7441-CY) Unmarried decedent without a will died leaving a five-year-old son. Mother of son appointed personal representative of estate and conservator of son. During interim between death and appointment of conservator, many assets were appropriated by unknown parties. Investigation into theft of personal property and sale of real property in progress at present time.
CONSTRUCTION/CONTRACTOR LIABILITY
Warner v S&T Services, LLC (Otsego 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.
Kollar v Davidson (Ogemaw 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.
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.
Barnett v Citizens Insurance, Ferrellgas, and Northwoods Restoration (Roscommon 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 therefore makes claim against insurance company for damages pursuant to policy, claim against gas company for damages to the home and consequential economic damages and against the restoration company for costs associated with mold remediation. Claims against insurance company and gas company to be resolved by mandatory arbitration, claim against restoration company in Circuit Court.
ZONING/MUNICIPAL/REGULATORY LAW
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.
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.
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.
Concerned Citizens of Acme Township v Acme Township, Village at Grand Traverse, LLC and Meijer, Inc. (Grand Traverse County Circuit Court file 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 of the Township could reject specific site plans proposed by the developer.
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. Wolverine Power is presently in the process of attempting to have the Michigan Public Service Commission override the Elmwood Township Zoning Ordinance to allow 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.
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 bandwith 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.
HOMEOWNERS’ ASSOCIATIONS
Arbutus Beach Association v Aguilar (Otsego County Circuit Court No: 03-10300-CH(A)) In 1994, front lot and back lot owners in the Arbutus Beach subdivision reached a settlement in the case of O’Connell v Zamler (Otsego County Circuit Court File No: 92-5180) Unfortunately, over the succeeding years, the back lot and front lot owners could not agree how to interpret the orders entered into in 1994, or how the subdivision should be replatted in order to conform to those orders. The current lawsuit was filed by the Association in 2003, to vacate road ends within the subdivision and to create a continuous beach to be owned by the owners Association created in 1994. Clients are back lot owners seeking to insure that their rights to use the park pursuant to the 1994 agreement are honored in any clarifying settlement or judgment.
Hees, Liebold, Pagels and Nordeen v Michawye 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.
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.
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 lake front property owned by Association. Parties stipulated to dismiss lawsuit upon agreement of homeowners association to retract sale attempt and properly comply with Association Bylaws.
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.