Author Archives: Jacob Sartz

Discovery Requests in Litigation

Discovery in Civil Cases

Parties are not expected to know everything when they file or answer a civil complaint. Thanks to Michigan’s court-rules, parties have plenty of opportunities to find out what the other side has prior to proceeding to a trial or summary motion. Discovery requests are a huge in civil cases.

In contrast to cases involving criminal charges, there is no mandatory discovery required on either party. In some situations, neither party may need much discovery at all from the opposing party. Every case is different and tactics vary significantly depending on a litany of factors.

Instead, it is up to the respective parties to pursue their own discovery requests within the confines of court-rules, court-orders, scheduling orders, the restraints of the clients, subject matter, etc. Civil litigation is an adversarial process; the other side may not just hand over stuff that will help you win your case.

Interrogatories, admission-requests, and a request for document production are known as “discovery” requests. With civil litigation, each side can ask the opposing side about their case and ask for documents related to their case. Requests for discovery in some manner are standard in a vast majority of civil cases and these requests are very important with larger, more complicated civil cases filed in Circuit court.

Attorneys have the resources to discover a vast majority of information about their respective case through these methods. Online Forums such as Facebook or other programs are often key targets of information requests. Even deleted texts, messages, or e-mails could possibly be recovered.

These discovery requests may be made in a variety of ways.

Depositions

For more information on Depositions, click here.

Admissions

For more information on Admissions, click here.
Interrogatories

For more information on Interrogatories, click here.

Demand for Production

For more information on Demands for Production, click here.

The rules may be different for family-law cases, criminal cases, or other types of proceedings. Please note these articles and pages focus on the general rules for discovery in general civil litigation filed in Michigan’s District or Circuit courts. Further, the rules and methods may also be impacted by local court-rules and scheduling orders.

Requests for discovery in civil cases may not be allowed in Michigan’s District Courts or in Small-Claims matters without a court-order permitting them. However, these requests are frequently made if a civil-claim is pending in Michigan’s Circuit Courts.

Our experienced trial attorneys fight hard for our Michigan clients. We represent clients statewide. For a free initial consultation, feel free to contact us at (517) 507-5077.

If you need specific legal advice for your particular circumstances, I encourage you to privately consult with a lawyer. Circumstances may vary significantly. If you need specific legal advice, please privately consult with a lawyer.

 

Landlord-Tenant; Notices to Quit/Terminate Tenancy, a necessary first step

Evictions are an unfortunate but necessary legal remedy that may be available to a landlord if their relationship with a tenant starts to break-down.

These breakdowns in the landlord-tenant relationship range from more straightforward matters such as unpaid rent, rules issues, or could be as serious as alleged narcotics activity on the property.

Prior to starting any legal proceedings to reclaim possession of property, landlords are required to provide their tenants adequate “notice” to proceed under the Summary Proceedings Act. See MCL 600.5701 et al.

Landlords are required to include a copy of a notice to quit/terminate tenancy to the tenant if they wish to sue to recover possession under the Summary Proceedings Act.

However, simply because a tenant receives this form from the landlord, the parties are not required to proceed with litigation. This notice period gives both sides a chance to resolve their issues prior to getting the courts involved.

Tenants may elect to move out or stay during the period of time noted on the form. If they stay, the Landlord is allowed to proceed and file a complaint in District Court to attempt to obtain an order from the court evicting the tenant. Landlords are prohibited from using “self help.”

Tenants have varying amounts of time depending upon the reason for the potential eviction. It is imperative that landlords use the correct form so the tenant is provided adequate notice, as explained in the Summary Proceeding Act.

For landlords, using the free forms published by the Supreme Court of Michigan (SCAO) is the best option to ensure that they are providing tenants with the correct notice for the reason they may be seeking an eviction. Be wary of multi-state forms or other free forms; the Michigan Supreme Court’s (SCAO) forms are drafted specifically to comply with the requisite law and many civil district-court clerks will reject pleadings unless they see the SCAO form. Further, a tenant can ask to have a pending case dismissed if the wrong form was used or not served properly.

Please keep in mind that the rules are slightly different for mobile/modular homeowners/renters. If the tenant is in a mobile/modular home park, most landlords will use a DC 100d. Landlords in these situations are required to provide a settlement meeting with a tenant if the tenant makes a timely request prior to the commencement of any eviction proceedings.

Please also note that the rules are very different for land-contract forfeitures. With land-contract forfeitures, the landowner may foreclose on the property or seek an eviction under the Summary Proceedings Act; however, proceeding under the Summary Proceeding Act may limit their potential damage claims. For forfeitures under the Summary Proceedings Act, form DC 101 is usually recommended. Generally speaking, obtaining an eviction after forfeiture of a land-contract is a longer and more complicated process than a traditional eviction.

If a tenant stops paying rent, the DC 100a is the correct form. This provides a tenant with seven days to pay the amount owed prior to the landlord suing to evict. This form should only be used if rent is the exclusive issue.

If a tenant is “doing extensive and continuing damage to the rental property, or a serious and continuing health hazard to the rental property,” the DC 100b is the correct form. “This notice must be given within 90 days of discovering the damage” and the tenant will be provided seven days to fix the issue prior to starting any legal proceedings.

DC 100c is a catchall type of form. Landlords may use this if tenants are not following rules in the leases, if the tenancy has ended due to expiration of time, or other factors. This notice provides thirty-days notice, so it should not be used if a tenant is failing to pay rent.

If a tenant is allegedly dealing narcotics; landlords, if they have a police report, can seek an eviction after only twenty-four hours  if they provide a DC 100e.

These notices are vital step in the process. They provide both sides an opportunity to resolve their differences prior to filing of complaints. It is imperative that landlords use the correct form.

Our experienced trial attorneys fight hard for our Michigan clients. We represent clients statewide. For a free initial consultation, feel free to contact us at (517) 507-5077.
For information on the Summary Proceedings Act, under Michigan Law, click here.

For information on the new ways to deliver notices to quit/termination of tenancy notices, click here.

For information on the differences between month-to-month versus fixed term leases, please click here.

If you need specific legal advice for your particular circumstances, I encourage you to privately consult with a lawyer. Circumstances may vary significantly. If you need specific legal advice, please privately consult with a lawyer.

Michigan’s Driver Responsibility Fees are being phased out

Michigan’s Driver Responsibility fees are being phased out by 2019. The Legislature took an important step to help lessen some of the harsher collateral consequences from certain types of traffic convictions or high point accumulation with the passage and implementation of Public Act 250 of 2014, now codified as MCL 257.232a.

However, this relief is not necessarily immediate and is not immediate for all.

Michigan’s Department of State has more information on the new laws. For more information, click here and here.

Our experienced trial attorneys fight hard for our Michigan clients. We represent clients statewide. For a free initial consultation, feel free to contact us at (517) 507-5077.

Latest News: Client acquitted of Domestic Violence Charges after Jury Trial

Another win for Crowley, Cornish, Rockafellow & Sartz, PLLC.

Attorney Stephen Cornish successfully defended a client from allegations of Domestic Violence, First Offense, before a jury in Eaton County, Michigan. After a thoroughly contested case, the jury’s verdict was not guilty on all charges.

 

For more information on Domestic Violence allegations, click here.

Our experienced trial attorneys fight hard for our Michigan clients. We represent clients statewide. For a free initial consultation, feel free to contact us at (517) 507-5077.

Anyone charged, of course, is presumed innocent. The prosecutor would need to prove the elements of the offense beyond a reasonable doubt if the matter proceeded to trial. Simply because a person is charged does not mean that they will be convicted.
If you need specific legal advice for your particular circumstances you are encouraged you to consult with a lawyer. Circumstances may vary significantly.

If you are charged with an offense and cannot afford to pay for your own defense, the court may appoint you an attorney payable at the public’s expense. You have a right to counsel.

Squatting Update

Squatters Update

While there are important protections for tenants, not all alleged tenants have the same rights. Michigan’s Legislature, in an effort to crack down on alleged “squatters,” passed a series of laws that made “squatting” illegal and removed certain protections which “squatters” had previously enjoyed. For a summary of the legislation, click here.

First, though, it is important to define the term “squatter.” The term “squatter” only refers to individuals who use “forcible entry,” take “possession by force” or who take possession “by trespass without color of title or other possessory interests.” See MCL 600.2918 (5).
This is a narrow definition. If a tenant stays after their lease expires, for example, they are not “squatters.” People in these situations had legal rights to the property. The term “squatter” is narrowly applied and usually used to describe individuals who break into houses or apartments and try to take possession by force.
Among other reforms, the legislature gave landlords protections to recover their property. “Squatters” cannot sue for damages for forcible entry, MCL 600.2918 (5). Under MCL 600.5711, landlords can use forceful entry to enter the property, as long as their efforts do not include assaultive behavior (or worse, i.e., violations of Michigan’s penal-code MCL 750.81-750.90h.).
The Legislature also made “squatting” illegal and possibly grounds for either a misdemeanor (for first-time alleged offenders, see MCL 750.553); or a felony charge punishable up to two years in prison for alleged repeat-offenders. Id.

These reforms were substantial. Previously, “squatters” had significant protections. These new changes have made it easier for landlords evict squatters and take their property back. Further, the fact it can be a criminal charge now should be a significant deterrent. However, squatting remains and will remain a significant potential issue in the future, especially with the large stock of properties that are still being sold off after the real-estate market crash.

Our experienced trial attorneys fight hard for our Michigan clients. We represent clients statewide. For a free initial consultation, feel free to contact us at (517) 507-5077.
For information on the Summary Proceedings Act, under Michigan Law, click here.

For information on the new ways to deliver notices to quit/termination of tenancy notices, click here.

For information on the differences between month-to-month versus fixed term leases, please click here.

If you need specific legal advice for your particular circumstances, I encourage you to privately consult with a lawyer. Circumstances may vary significantly. If you need specific legal advice, please privately consult with a lawyer.

Michigan Landlord-Tenant Law: New change will allow for Demands for Possession/Notices to Quit to be served By E-Mail or Social Media

When Landlords seek to evict residential tenants, they must first provide notice through a Demand for Possession/Notice to Quit. These notices serve, essentially, as a warning that if a tenant does not move out after the specified period, the landlord has the option to file a summons and complaint with the local district court to seek their eviction. The amount of time varies depending upon the potential reason listed by a landlord. This notice period provides the parties a chance to resolve the dispute. Further, it provides a tenant with a reason or reasons why their landlord is seeking to evict them. Courts, in a majority of landlord-tenant disputes, require these notices to be attached to any summons and complaint asking for an eviction. New changes to the laws will permit more options for landlords to deliver these notices.

Under the old law, pursuant to MCL 600.5718, this notice must be served “by delivering it personally to the person in possession, or by delivering it on the premises to a member of his family or household or an employee, of suitable age and discretion, with a request that it be delivered to the person in possession, or by sending it by first-class mail addressed to the person in possession.

On Thursday, May 21, 2015, Governor Snyder signed a bill that will amend this law. It will permit landlords and tenants, with mutual consent, to have these notices served electronically. However, landlords are not permitted to discriminate and withhold leases from people who refuse to agree to electronic service of these documents. Id. For additional information, here are the bill summaries from the House and Senate.

It is about time for these types of changes. In my opinion, the Legislature should look for more opportunities to permit parties to use electronic service, especially in situations where the time-tables are accelerated, as they are under the Summary Proceedings Act.

If someone has an active and frequently used e-mail account, it is, in my opinion, a much more reliable and better option for service than mail. Further, this option will save landlords money on additional service costs, save tenants the hassle of possibly being confronted and personally served, and reduce some of the potential confusion over whether these notices were served. Notices to quit/demands for possession are very important documents for eviction proceedings. If they are not served properly or completed correctly, courts may throw out an eviction complaint. This option, if utilized correctly, will benefit both landlords and tenants since they will both have adequate notice and it will eliminate sources of potential confusion over service.

Our firm has a lot of experience representing landlords and tenants all over Michigan. Feel free to call us at (517) 507-5077 for a free initial consultation and ask for either Jacob or Andrew.

For more information on Michigan’s Summary Proceeding Act, click here.
For information on the differences between month-to-month versus fixed term leases, please click here.

Disclaimer: This blog-post is only general legal advice. If you need specific legal advice, please privately consult with a lawyer. Circumstances vary significantly depending on the alleged facts.

 

Michigan Property Law: Nuisance

WHAT A NUISANCE

“Good fences,” to quote Robert Frost, “make good neighbours.”

Unfortunately, for property owners, a good fence might not be enough. Actions by their neighbors may impact their quality of life and their “bundle” of property rights, including the right to use and the right to enjoy their property. Further, actions by individual property owners may be detrimental to an entire community. There may be, however, legal remedies available to assist both private individuals and groups of people with these issues.

A nuisance, broadly stated, is something that interferes with either the use or enjoyment of property. Nuisance tort-law is certainly not a new concept. These types of legal concerns have been adjudicated for centuries in various forms.  There are numerous categories and sub-categories for this term. Generally speaking, all nuisances start with a key division between actions that are classified as either private nuisances or public nuisances.

A private nuisance is a civil wrong that occurs when one person uses their property in a way that interferes with the use or enjoyment of another person’s property. Examples of private nuisances include: pollution of soil; streams; or underground water supplies, any interference with comfort such as foul odors, noxious gas, smoke, loud noises, excessive lighting, and more. Robert Frost, for example, in his poem Mending Wall, describes some additional scenarios which could be classified legally as private nuisances.

While a private nuisance is aimed at use and enjoyment of an individual or small group’s personal property, a public nuisance concerns an interest shared by the public as a whole, and is considered a minor crime. While the interest of deterring a private nuisance is to increase the use and enjoyment of land, the interest of deterring a public nuisance is to maintain the safety, comfort, and convenience of a community. Examples of public nuisances under Michigan law include, firing fireworks in a street, obstructing a roadway, polluting a waterway, harboring a dangerous animal, and more. As stated previously, public nuisances are a crime, and are dealt with in criminal court.

In Michigan, nuisances can be broken down even further into four additional categories: nuisance per-se, nuisance in fact, intentional nuisance, and negligent nuisance. A nuisance per-se, broadly stated, is an act, occupation, or structure that is at all times and under any circumstances considered hurtful to the health, tranquility, or morals of the community, regardless of location or surroundings.

A nuisance in fact, broadly stated, is an act, occupation, or structure that is considered becomes a nuisance because of its relation to certain circumstances or surroundings. Thus, a nuisance in fact can be caused by either the location of the premises, or the type of business being conducted on the premises.

An intentional nuisance is simply a nuisance caused by the intentional act to cause such nuisance, where a negligent nuisance is when there is an unreasonable risk of injury to others because of the failure to act by the person charged with causing a nuisance.

NUISANCE STATUTES/EXAMPLES OF NUISANCES

MCL 600.2940 is Michigan’s private nuisance statute, and awards damages to a party that can prevail on a nuisance claim.

MCL 600.3801 is Michigan’s public nuisance statute, and it bans the use of property for activities that are harmful to a community, such as, prostitution, gambling, illicit transfer of intoxicants, animal fighting, and human trafficking.

Other types of Michigan public nuisance statutes are: MCL 41.411 (for township and village public services), MCL 46.201 (concerning county parking lots), MCL 252.202 (concerning the use of junkyards), MCL 259.441 (concerning airports), MCL 280.423 (concerning sewage), MCL 286.218 (concerning pests and plant disease), MCL 286.473 (concerning farms), MCL 324.11520 (concerning the environmental protection act), MCL 324.3109 (concerning water resources), and MCL 287.277 (concerning dogs). This is not an exhaustive list, but it provides an idea of the type of public nuisances that exist.

ELEMENTS OF A NUISANCE/STATUE OF LIMITATIONS

In order to be liable for damage caused by a nuisance, the defendant must have 1) created the nuisance, 2) owned or controlled the property from which the nuisance arose, OR (3) employed another to do work that he or she knew was likely to create a nuisance. Gelman Sciences v. Dow Chem Co., 202 Mich. App. 250 (Mich. 1993).

Other elements may exist, and depend on what type of nuisance is claimed, who the parties are, and a variety of other factors. Finally, the statute of limitations to bring a claim is three-years, and is controlled by MCL 600.5805 (10). If you are dealing with the abatement of a public nuisance, however, this timeline is more complicated and may vary. MCL 600.3815.

REMEDIES

A plaintiff can recover money damages if s/he has suffered actual damages from the nuisance. Injunctive relief may also be appropriate in situations where money damages are inappropriate or inadequate. For example, if a nuisance is on-going, injunctive relief may be appropriate to stop the nuisance.

CLOSING THOUGHTS

Nuisances come in many different shapes and sizes. For example, if a neighbor puts up a large building that blocks all of the sunlight from getting to your property, you may have a private nuisance claim against that neighbor. Similarly, if your neighbor is continuously working with loud power tools that are so loud that they interfere with the use and enjoyment of your property, you may have a private nuisance claim. These are only some possible examples of a private nuisance claim.

A public nuisance may exist if a stream in your community is being polluted by a business. In that case you, and the rest of the members of the community, may have a public nuisance claim against the polluting business. Another possible public nuisance claim would be if a business is opened that deals in the type of unlawful activities noted above, such as gambling or prostitution. If this happens, you, as well as the rest of your community members, may have a public nuisance claim against that establishment.

Nuisance law can be very complicated, depending on the situation at hand, and should not be taken lightly. If you think you might have a nuisance claim, or are the defendant in a nuisance action, I highly you recommend that you seek an attorney.

Our experienced trial attorneys fight hard for our Michigan clients. We represent clients statewide. For a free initial consultation, feel free to contact us at (517) 507-5077.

For information on Deeds under Michigan Law, click here.
For information on the Summary Proceedings Act, under Michigan Law, click here.
For information on real-estate litigation, notably lawsuits involving homeowners and builders, click here.

The attorneys at Crowley, Cornish, Rockafellow and Sartz, PLLC would like to thank the contributions of Dan Barnett, second-year law student at Michigan State University College of Law, and legal assistant for Crowley, Cornish, Rockafellow & Sartz, PLLC for his contributions as co-author of this blog post.

Yes, thanks to Michigan’s Court Rules, you will get a copy of your police report

When you are a Criminal Defense attorney, police reports are a big deal. They are very important documents. While they are, in my opinion, not always accurate and they obviously come from a biased source, having access to police reports is essential. They are useful in so many different ways. These reports contain the blue-print for a prosecutor’s case. Additionally, they help us find other potential issues which may need further examination through discovery requests. How do we get access to police reports? The answer is found in Michigan’s court-rules and laws.

 

Criminal law, in some ways, is more “civil” than civil law. The goals are very different. In some aspects, in my opinion, the rules are fairer.  Prosecutors, if I ask them to, have to give me certain stuff and I have the option to ask for a court-order if they do not. Prosecutors do not have the option to bury me with huge interrogatory requests or ambush me with short-notice depositions. They cannot, unless it’s an usual circumstance, force my client to answer questions prior to trial. Further, prosecutors are required to turn over key chunks of their case to defense counsel upon request. This is all possible because of the discovery rules for criminal cases under Michigan law.

 

Discovery, broadly stated, is the process whereby the parties in both civil and criminal cases allow the respective sides to examine their potential evidence, take witness testimony, ask for documents, see potential exhibits, examine video/audio evidence, or other steps to examine their respective cases. The Michigan Court Rules and laws contain guidelines for appropriate steps and procedures. Ultimately, the presiding judge, subject to potential appellate review, has the final say over these matters.

 

With criminal cases under Michigan law and court-rules, discovery is different, depending on the type and severity of the charge. The court rules and applicable statutes explicitly require both the prosecutor and defense to turn over certain types of information, especially with felony charges. This is in stark contrast to civil cases. With civil cases, judges generally have much more discretion and may even prohibit discovery unless they  grant a court-order (district court civil-litigation, for example) to start the process.

 

With felony charges, prosecutors are required to turn over certain types of information to the defense, if requested to do so, as required pursuant to sub-chapter 6.200 et. al. of the Michigan Court Rules. In particular, MCR 6.201(A) requires that the prosecutor, among other things, turn over witness lists, witness statements, the curriculum vitae of all expert witnesses, and this rule requires that the prosecutor allow the defense to inspect “any tangible physical evidence that the party may introduce at trial.” MCR 6.201(A)(6).

 

MCR 6.201(B) is key rule because it requires a prosecutor to provide “any exculpatory information or evidence known to the prosecuting attorney,”MCR 6.201(B)(1). It also all police reports, written or recorded statements, regardless of whether the person testifies, of the defendant, co-defendant, or accomplice relating to a case, copies of warrants, and copies of any agreements related to the procurement of potential testimony in the case. This particular rule is absolutely vital. MCR 6.201(B)(2-5).

 

Discovery is also reciprocal. MCL 767.94a requires that the defense turnover certain types of potential evidence to the prosecutor as well.

 

There are limits to discovery. MCR 6.201(C) lists some of the restrictions and the rest of the court-rules under this sub-chapter deal with the procedures to resolve any disputes over discovery. Some information, for example, may be redacted or protected by court-order, there are certain time-frames involved, and other considerations as well. MCR 6.201(D & E, et. al).

 

With misdemeanor charges, though, discovery is not as clearly and explicitly defined. Most prosecutors will turn over essentially the same documents as they would for a felony charge; however, some courts request a properly filed motion by the defense first. Regardless of the charge, defense counsel usually needs to file a formal request with the prosecutor to receive discovery.

 

This “request” usually is made through a “discovery demand” often filed when defense counsel files an appearance on behalf of an alleged defendant in a pending criminal case. However, either the prosecution or defense may file additional motions requesting discovery as the case proceeds and ask for a court-order. MCR 6.201(D & E, et. al).

 

These mandatory discovery requirements, especially the provision requiring prosecutors to turn over exculpatory evidence, are essential for the criminal justice system. When prosecutors fail to turn over exculpatory evidence, the odds of a wrongful conviction may rise exponentially.

It is not a perfect system, of course. There have been tragic examples of situations where prosecutors failed to disclose exculpatory evidence, defense attorneys played games with discovery, or other various types abuses. Gamesmanship with discovery is certainly not dead.

However, Michigan, at least, has rules that put the emphasis on the prosecutor to level the playing field a little bit.

Our experienced trial attorneys fight hard for our Michigan clients. We represent clients statewide. For a free initial consultation, feel free to contact us at (517) 507-5077.

For more information on Michigan criminal law, click here.

Anyone charged, of course, is presumed innocent. The prosecutor would need to prove the elements of the offense beyond a reasonable doubt if the matter proceeded to trial. Simply because a person is charged does not mean that ultimately, they will be convicted.

If you need specific legal advice for your particular circumstances, I encourage you to privately consult with a lawyer. Circumstances may vary significantly. If you need specific legal advice, please privately consult with a lawyer.

If you are charged with an offense and cannot afford to pay for your own defense, the court may appoint you an attorney payable at the public’s expense. You have a right to counsel.

 

OUI’s and Owner Responsibility…Pick your Designated Driver wisely….

**Hypoth148138443_4e3998a4cd_zetically, a group of friends, including the owner of a vehicle, decide to go out and enjoy an evening at a nice restaurant followed by a trip to their local, favorite bar for a few drinks. These friends make a smart choice; they pick a designated driver. Unfortunately, this “designated driver” could not resist the temptation of a few cold ones and a glass of wine prior to driving home.*
Could the owner of the vehicle be held responsible if the selected designated driver gets charged with operating the vehicle while intoxicated or impaired?
The answer is yes, absolutely. Under Michigan law, while the actual operator’s potential charges may be serious, the owner/controller of the vehicle who “knowingly permits” or “knowingly authorizes” the operator to drive their vehicle while impaired or intoxicated could face criminal charges as well.

Anyone charged, of course, is presumed innocent. The prosecutor would need to prove the elements of the offense beyond a reasonable doubt if the matter proceeded to trial. Simply because a person is charged does not mean that ultimately, they will be convicted.
Owners and operators may be charged if they allow someone to operate their vehicle while intoxicated or impaired. As noted in MCL 257.625 (2):
The owner of a vehicle or a person in charge or in control of a vehicle shall not authorize or knowingly permit the vehicle to be operated upon a highway or other place open to the general public or generally accessible to motor vehicles, including an area designated for the parking of motor vehicles, within this state by a person if any of the following apply:
(a) The person is under the influence of alcoholic liquor, a controlled substance, other intoxicating substance, or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.

(b) The person has an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine or, beginning October 1, 2018, the person has an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.

(c) The person’s ability to operate the motor vehicle is visibly impaired due to the consumption of alcoholic liquor, a controlled substance, or other intoxicating substance, or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.

The consequences for a conviction for the owner or controller of the vehicle depend on the underlying charge for operator of the vehicle. MCL 257.625 (10) explains the list of possible maximum penalties in terms of jail/prison and fines.

If, for example, the intoxicated operator caused a death, the person who permitted the operator to use the vehicle may be charged with a felony “punishable by imprisonment for not more than 5 years or a fine of not less than $1,500.00 or more than $10,000.00, or both.” MCL 257.625 (10)(b).

Granted, this charge is not as serious as the charge for the alleged operator at the time. The alleged operator would have been charged with a felony “ punishable by imprisonment for not more than 15 years or a fine of not less than $2,500.00 or more than $10,000.00, or both,” see MCL 257.625 (4)(a), or “not more than 20 years or a fine of not less than $2,500.00 or more than $10,000.00, or both” if the deceased was a “police officer, firefighter, or other emergency response personnel.” MCL 257.625 (4)(c). Ultimately, a bulk of the liability will fall on the operator of vehicle; however, a felony charge punishable by up to five years in prison against the owner/controller is still a serious offense.

However, more likely, an owner or controller of the vehicle will be charged with a misdemeanor, “punishable by imprisonment for not more than 93 days or a fine of not less than $100.00 or more than $500.00, or both.” MCL 257.625 (10)(a).

Possible jail and fines are only a few of the potential sanctions if convicted. MCL 257.625 (10) lists only some of the possible sanctions, monetary and otherwise, if person is convicted.
Obviously, the prosecutor would need prove the “authorize or knowingly permit” portion of this charge against the owner/person in charge of the vehicle. This would be a key issue. However, they may prove this circumstantially. This question is ultimately a question of fact that may not be resolved until a trial.

Further, if there is evidence that the group of friends had selected the driver in advance, it would be challenging to claim that the hypothetical designated driver was driving the vehicle without the owner’s permission.

The bottom line is very straightforward; pick your designated driver carefully if you want someone to drive your vehicle for a night out. If the “designated driver” may want to partake and will struggle with refusing alcoholic beverages, it may be time to pick someone else. Otherwise, the owner/controller of the vehicle may be charged criminally if they “knowingly authorize or permit” their intoxicated or impaired driver gets charged. Of course, taking a cab or using alternative modes transportation may help avoid these issues.

If you need specific legal advice for your particular circumstances, we encourage you to privately consult with a lawyer. Our office frequently handles this types of matters. For a free initial consultation, please contact us at (517) 507-5077. Drive safely.file000244831962
*Please note that this discussion is only focused on one potential component of a situation involving allowing a intoxicated or impaired operator to use another person’s vehicle; it does not explore the possible civil issues (i.e., the owner could be sued through the civil courts if, for example, the operator gets in accident) or the possible administrative (i.e., there could be significant license sanctions if convicted) sanctions.

Our experienced trial attorneys fight hard for our Michigan clients. We represent clients statewide. For a free initial consultation, feel free to contact us at (517) 507-5077.

For more information on other traffic offenses, such as Operating While Intoxicated, click here.
For information on additional Michigan Traffic offenses such as operating on a suspended/revoked/denied license, click here.

Anyone charged, of course, is presumed innocent. The prosecutor would need to prove the elements of the offense beyond a reasonable doubt if the matter proceeded to trial. Simply because a person is charged does not mean that ultimately, they will be convicted.
If you need specific legal advice for your particular circumstances, I encourage you to privately consult with a lawyer. Circumstances may vary significantly. If you need specific legal advice, please privately consult with a lawyer.
If you are charged with an offense and cannot afford to pay for your own defense, the court may appoint you an attorney payable at the public’s expense. You have a right to counsel.

 

 

Tips for Homeowners considering remodeling projects….

Homeowners, for a litany of potential reasons, may need to remodel or 38286807_7bcf7bb83c_zreconstruct portions of their home. Unfortunately, things do not always turn out well and litigation may ultimately be necessary.

However, prior to starting any remodeling projects, there are a few basic questions and things a homeowner can do to help avoid some significant issues in the future. This is not an exhaustive list, by any means. These are just some general observations based on my years of litigating these types of cases. These projects are often much more legally complicated than they appear.

    • First, if you have a project in mind, check your local rules.
      • Your local ordinances and building codes, for example, should be available online or at the city/town hall. If you want a bigger garage, for example, you may need a variance or approval for any sort of expansion from local authorities. Zoning may be an issue as well. Building codes vary significantly depending on where you live. Some cities, for example, are very restrictive. You may need to pull permits and get approval from multiple levels of the government, all the way up to the Feds, depending on where your property is located.
      • You may be restricted by privately negotiated rules as part of a subdivision or local association. These restrictions will often be considerably tougher than local building codes and you risk litigation if you do not comply with them.
      • Certain projects just cannot be built, legally, or may be far too expensive to get all the necessary permits and approvals, especially for people living near environmentally sensitive areas.
    • What’s your budget?
      • Will you need financing?
        • Rates and terms for home-equity lines are different than rates for purchases. Equity lines may add a significant additional monthly payment so factor that in as well.
      • Plan on cost-overruns and try to under-budget these projects.
        • Things will happen which will probably drive up the costs. If everything works out, great; you have a surplus.
    • Check with your property insurer.
      • Remodeling or additions to a house or condo may impact your homeowner’s policy. Further, you will need to know whether damages may be covered under your policy.
    • Check your mortgage and note.
      • Depending on the type of project, you may need to consult with your lender or anyone else with a legal interest in the property. In the fine-print of a mortgage, there may be language which would require the lien-holder’s approval because significant remodels may impact their property interest.
        • A mechanics lien, for example, has important legal ramifications in terms of who has priority to the proceeds of the house if it is sold or foreclosed upon.
    • Are you planning on hiring anyone or doing it yourself?
      • I recommend properly insured and licensed professionals for a vast majority of the work, given the potential risks; however, the legal liabilities and responsibilities are very different depending on whom is doing the work.
      • There are less legal protections available and greater potential liability risks if a homeowner attempts to do the work on their own. However, for a highly skilled and resourceful homeowner who can navigate the permitting process, it may be a way to save money.
      • It may be legally easier for a homeowner to pull a building permit, for example; however, I urge caution if a contractor is asking the homeowner to do this in the homeowner’s name.
        • Some less reputable builders and contractors may hide behind owner-permits to complete jobs which legally, they would not be permitted to do otherwise.
    • What type of professionals will you potentially need?
      • While most general contractors will know what a project requires, different types of professionals charge different rates.
        • Disputes over pay and working conditions between a general contractor and sub-contractors may stall your project, cause significant cost-overruns, or cause other significant headaches.
      • If you do your research in advance, you can anticipate and estimate these costs and build it into your budget.
      • If you are interested in hiring someone, prior to meeting with them, make sure they are properly licensed prior to discussing any terms.
      • Are they insured or bonded? In a vast majority of professions, there is some type of insurance or bonding available for practitioners.
        • It is good to know this information. This will be a big issue if something goes wrong. It is usually acceptable to ask.

 

  • If you decide to hire someone and start the project, make sure you have a written contract and use written agreements.
  • Make sure all the parties sign the agreement.
  • Make sure all the parties carefully review the agreement.
  • Be aware of the fine print…all the language in that contract is in there for a reason.
  • If litigation is ultimately necessary, the written contract will be a key issue. The written contract is the first place the lawyers and court will look at when examining a dispute over terms.
  • If you have concerns, make sure you put those concerns in writing, send the other party a letter informing th7594030640_91d17e5b9b_zem of your concerns, ask them to fix the issues, and save a copy.
    • Do not just rely on texts or calls. Even an e-mail is better than just a phone-call since it creates documentation with a date and time-stamp that could be used later.
    • It is vitally important to document your concerns and make sure the other party has time to address your concerns, i.e., give the person you hired a chance to fix or address your concerns.
    • Put any amendments to the contract in writing. Oral amendments to a contract, for example, are much harder to enforce. If you agree to change something, make sure it is in writing and preferably signed or initialized by the parties.
  • Do not play games with payments and keep clear records of payments and receipts.
    • Make sure the parties are in agreement about how and when payments will be made.
    • You may be better off suing afterwards rather than breaching a contract by just stopping payments.
    • If litigation is ultimately necessary, it is often better to go into the litigation with “clean hands.”  A bounced or stopped check, for example, may have significant ramifications which are not readily apparent.
    • Book-keeping is a big issue if the matter ends up in litigation; especially if insurance payments are involved.
  • Be clear about deadlines and advise the other party of future issues in advance.
    • Communication issues over dates is a key dispute in many of cases if they end up in litigation.
  • Keep the lines of communication open.
    • So many potential disputes may be resolved through simple and direct communication.
  • Give yourself an extra cushion of time for the work to be done. Delays may happen for a variety of reasons (weather, for example) beyond anybody’s control.

Even with all the best preparation, delays and cost-overruns should still be planned for. Ultimately, though, most people are reasonable and will be able to work through any issues they may have.

If you need specific legal advice for your particular circumstances, we encourage you to privately consult with a lawyer. Our office frequently handles this types of matters. For a free initial consultation, please contact us at (517) 507-5077.

For information on Deeds under Michigan Law, click here.
For information on Nuisance claims under Michigan law, click here.
For information on the Summary Proceedings Act, under Michigan Law, click here.
For information on real-estate litigation, notably lawsuits involving homeowners and builders, click here.

 

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