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.
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.
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.
Krause/Headwaters Land Conservancy. This matter concerns the negotiation of a conservation easement, to be held by the Headwaters Land Conservancy, covering approximately 350 feet of Otsego Lake shoreline.
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.
Lesar v Kovacs. (Montmorency County Circuit Court File No: 10-002641-CH) Plaintiff filed lawsuit requesting that Defendant clients remove archway which they had placed over jointly used easement prior to Plaintiff's purchasing their property. Consent judgment was entered allowing both parties to post specified information on archway, and granting Plaintiff limited rights to improve and maintain the easement itself.
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.
Needham v Peterson. (Montmorency County Circuit Court File No: 10-002557-CZ) Pine Beach Subdivision on East Twin Lake has a number of streets which intersect the subdivision beach perpendicularly. The Defendant front lot owner parked within one of these streets near the area where it intersected with the beach. Following Plaintiff backlot owners' motion for summary disposition to prohibit such parking, the parties entered into a stipulated order which prohibited parking on Sprucewood Court near the beach.
Owen v Royal (Otsego 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. Answer denied prescriptive easement for numerous reasons, including argument that no prescriptive easement could arise since the parties are related and the driveway was used with the Defendant's express or implied permission.
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.
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.
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.
Campbell v Sindles. (Chippewa County Circuit Court File No: 11-011593-CH) Decedent left his cottage to his seven children. Five client siblings wished to sell the property, while the remaining two did not. Suit was filed by clients to partition the property and/or force sale. Case was resolved by two of the clients buying out the interest of the other five siblings.
Estate of James DeCorte (Grand Traverse 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.
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 the Matter of the Dorothy I. Rohde Trust. (Grand Traverse County Probate Court File No: 11-31604-TV) Following the death of the Settlor of the Trust, the Successor Trustee failed to sell the decedent's home or provide a proper accounting to their trust beneficiaries for a period of four years. As a result, the client beneficiaries filed a "Petition for Inventory, Accounting and Removal of Trustee," which resulted in an accounting and immediate negotiations concerning distribution of the trust assets.
CONSTRUCTION/CONTRACTOR LIABILITY
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 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.
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.
Hogan v Timberline Logging, Inc. (Otsego 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 redpine 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.
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. Lawsuit resolved by obtaining certificate of occupancy for “stick built home” and payment of damages by Defendant.
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.
MORTGAGE FORECLOSURE/QUIET TITLE
Addy v PHH Mortgage Corporation (Otsego County Circuit Court File No: 10-13418-CZ, Michigan Court of Appeals Docket No: 299824. The Plaintiff and his partner were the owners of three vacation rental condominium units. Following default on the mortgages covering the three units, over a year of negotiations occurred between Plaintiff, PHH Mortgage Corporation and the Plaintiff’s partner. After the Plaintiff and PHH initially reached a settlement based on the Plaintiff granting deeds in lieu of foreclosure for all three units, PHH withdrew from the settlement claiming that they could recover deficiencies from the Plaintiff after provision of the deeds in lieu of foreclosure. Circuit Court upheld PHH’s position that there had been no final settlement concerning the deeds in lieu, resulting in a Claim of Appeal to the Michigan Court of Appeals. Subsequently, Plaintiff’s partner’s bankruptcy petition was dismissed and deeds in lieu were agreed to in exchange for a greatly reduced deficiency award.
Fronczak v PHH. (2011) Following negotiations lasting over one year, PHH Mortgage Corporation was forced to accept a loan modification dropping the interest rate to 3.162%, with a maximum cap of 4.5%.
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.
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.
Warren v Bank of America. (Luce County Circuit Court File No: 11-5481-CK) Plaintiff clients declared bankruptcy, defaulted on their home mortgage and moved to another location in Michigan. However, they left a substantial portion of their personal property within the subject home and BAC did not begin foreclosure proceedings. Instead, BAC hired a contractor to "winterize" the home. The next time the Plaintiff visited the property, they found that the door had been broken down and that the family's possessions had either been burned in the fireplace, piled into heaps or stolen. Suit was filed against BAC to recover the value of the burned or stolen personal property.
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.
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 that Township could reject specific site plans proposed by the developer.
Duke v DNRE (2010) Client purchased parcel of property, with existing home, adjacent to state property in Montmorency County. Seller informed client that the division between her property and the adjacent state land was marked by a wire fence. However, following a survey in 2010, the DNRE took the position that the property line is several hundred feet further to the west, running directly through the client’s home. Negotiations are in progress with the DNRE, sellers, realtor, and Plaintiff’s mortgage company to resolve the issues without the necessity of a lawsuit.
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.
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.
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. In 2007, counsel became involved on behalf of the backlot owners in order to insure their rights pursuant to the 1994 orders. In 2009, the frontlot owners, backlot owners, State, Bagley Township, Otsego County Road Commission and the Court agreed to amendments to the 1994 Orders guaranteeing backlot owner usage of the road ends, but leaving the issue of usage of the remainder of the beach by the backlot owners for trial in October 2009. In October 2010, the Court issued an opinion severely restricting the backlot owners usage of the beach outside of the road ends, resulting in an appeal to Michigan Court of Appeals.
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.
Enchanted Forest Property Owners Association v Schilling. In an earlier lawsuit in which counsel was not involved, the Plaintiff had successfully claimed that the Restrictive Covenants and Bylaws of the development prohibited short term vacation rental by the Defendant. However, the Plaintiff then filed an attorney's lien of $32,933 associated with the prior lawsuit, without receiving Court approval. When Plaintiff filed suit to collect the lien, counsel filed an answer, a motion to lift the lien and bar any claim of attorney fees and a countersuit for slander of title. Thereafter, the Association dismissed its lien and released any claim for attorney fees.
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.
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.