Archive for August, 2013

Avoiding Estate Litigation – And Why a Corporate Trustee Could be a good idea.

August 30, 2013 Leave a comment

I have written posts in the past about lawsuits – how they usually do not get resolved when they should when the parties take the matter personally.

Never is this more evident than when fights erupt over a deceased loved one’s wishes about “who gets what” – so to speak.

Estate Litigation cases are very contentious and generally stem from a few issues:

1. Decedent Didn’t Create a Proper Estate Plan.

This could mean they didn’t create a will, or trust, or it could mean that they created the estate plan themselves without an attorney involved and used some online form (see my blog post – take caution when using such forms)

Not creating a proper estate plan could result in loved ones simply not knowing what the decedent intended. Even if the family members have no animosity, it may mean that an attorney needs to be retained to file a petition with the probate court to reform or interpret a Trust or Will.

2. Decedent Didn’t Communicate With All Beneficiaries About Their Estate Plan.

This is more often the case that I see. Even if an Estate Plan is carefully drawn up – there could still be problems if a decedent’s wishes aren’t communicated properly to all beneficiaries.  Maybe one sibling takes care of mom or dad in their old age, because the rest live out of town, and that sibling is more closer to mom or dad than the rest.  sibling takes mom or dad to attorney to “update” an estate plan to that sibling’s benefit and the rest of the kids simply didn’t hear it from mom or dad’s own mouth that this new estate plan was indeed their intentions. Communication is key.

3. Decedent Listed Family Member as Trustee/Executor

Don’t hear me wrong – I am not saying it is never a good idea to list a child as a “fiduciary” for an estate. But, see point number 2 above. Issues can arise when communication has broken down and the other siblings simply do not trust their “fiduciary” sibling.

This sensitive situation can be compounded by the fact that “Fiduciary” sibling is held to a high standard of care, as a fiduciary.   A person acting as an executor of an estate or Trustee of a Trust is a “fiduciary”. They have duties to act in the best interest of the beneficiaries, and the Trust.  These duties are codified in Michigan statute.

Beneficiaries are entitled to certain disclosures pursuant to MCL 700.3703, “a personal representative is under a duty to settle and distribute the decedent’s estate in accordance with the terms of a probated and effective will and this act, and as expeditiously and efficiently as is consistent with the best interest of the estate.

Further, “the personal representative shall keep each presumptive distributee informed of the estate settlement.

Until a beneficiary’s share is fully distributed, the personal representative shall annually, and upon completion of the estate’s settlement, account to each beneficiary by supplying a statement of the activities of the estate and of the personal representative, specifying all receipts and disbursements and identifying property belonging to the estate.

Simply put, if a sibling is acting as a fiduciary, without intending, they  might not know or follow all of their legal requirements. This creates problems and can open up a fiduciary to be sued for breach of fiduciary duties.

To Avoid this problem, it may be a good idea to list a “corporate fiduciary” as maybe a co-executor, or co-trustee, to walk along side the sibling fiduciary and assist them in complying with their legal duties. This also may dispel any level of mistrust from the other beneficiaries.

4. What You Can Do If you Suspect Someone of Breaching Their Fiduciary Duty Owed to Beneficiaries of an Estate or Trust.

a. Communicate

The First thing you should do when problems arise is talk to the fiduciary. Let them know your concerns.  Ask for transparency.  If an executor is not providing information to the beneficiaries to keep them apprised of the Estate (what the assets are, what money is coming in, what money is going out, and for what purposes), at the very least that can create mistrust. If after communicating your concern with the fiduciary you do not get an appropriate response, consult an attorney. If fiduciary already has an attorney involved, you  might want to consult with an attorney.


b. Consult with an Attorney About your Options.

If there is evidence of breach of fiduciary duties, fraud, concealment, embezzling from the estate, or undue influence, an attorney can file a petition with the Probate Court to hold the fiduciary responsible for breach of fiduciary duties, and seek their removal.  Often, an attorney will seek that all estate funds be held in a “constructive trust” – during the litigation.

“A constructive trust may be imposed when property “‘has been obtained through fraud, misrepresentation, concealment, undue influence, duress, taking advantage of one’s weakness, or necessities, or any other similar circumstances which render it unconscionable for the holder of the legal title to retain and enjoy the property….” Ooley v. Collins, 344 Mich. 148, 158, 73 N.W.2d 464 (1955).


Lesson: Consult an Attorney and Communicate with loved ones about your intentions when you pass away. This can ensure that family members do not end up in a bitter legal battle over the Estate. 


Do you have an interesting legal issue ? I’d love to hear about it.   

Email or call me.  Ph: (616) 454-3883; Email:


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Business Disputes In Closely Held Companies: A Warning Why Business Partners Should Not be Quick to File Lawsuits

August 27, 2013 1 comment

No one likes to be wronged. But there are plenty of good reasons to avoid acting on that gut response of suing for everything you feel you are entitled to.


There is a reason why closely held companies can sometimes result in some of the most bitter lawsuits – the relationships between business partners are usually very close, and often involve family.  Business partners in smaller businesses have a lot of hands on involvement – blood, sweat and tears go into forming the Company.


So when a dispute arises, it is not only a business conflict, it is personal.


However, there are many good reasons to avoid making personal.


Don’t Sue For the Principal of the Matter.


As a general rule – suing “on the principal of the matter” is never a good idea. It is always wise, especially in the business context, to try and take a big picture approach of the situation. Weigh the costs and benefits. Make a good, sound business decision. Is the issue worth spending potentially tens (maybe hundreds) of thousands of dollars in legal fees in order to achieve an uncertain outcome?

A recent unpublished Court of Appeals Case, Vidosh v. Trans Audit, Inc., 306746, 2013 WL 4081106 (Mich. Ct. App. Aug. 13, 2013), illustrates good reasons for business partners to take pause and consider before filing a lawsuit for a perceived wrong.

See the Opinion here:


I. Facts

Defendant was a minority shareholder and member of the board of directors of Trans Audit, Inc (TAI),
In 2008, TAI entered into an agreement with plaintiff to form Trans Audit Parcel Services, LLC (TAPS) a Michigan limited liability company.
Pursuant to the agreement, plaintiff owned 33.33% of TAPS, and TAI owned the remaining interest.
Plaintiff was to serve as TAPS’ president and as a member of TAPS’ board of directors.
Defendant was also a member of the TAPS board.
Plaintiff was entitled to 40% of the first $250,000 of TAPS’ annual revenue and she was also entitled to a percentage share of TAPS’ distributed profits based on her ownership interest.
Plaintiff did not receive any of the profit-sharing distributions in 2008 or 2009. She was either fired or resigned in September of 2009.
On January 26, 2010, plaintiff filed a six-count complaint against defendant, TAI, TAPS, and three other TAI and TAPS board members.
In her complaint, plaintiff demanded a formal accounting and alleged breach of contract, unjust enrichment, breach of fiduciary duty, oppression, and statutory conversion. Vidosh v. Trans Audit, Inc., 306746, 2013 WL 4081106 (Mich.
Ct. App. Aug. 13, 2013)
Defendant, minority shareholder responded that Plaintiff’s lawsuit was completely frivolous,  and it should be dismissed and Plaintiff should be required to pay all of Defendant’s attorney fees.  The Circuit Court dismissed Plaintiff’s Complaint, but did not award Defendant attorney fees.
Defendant appealed, and the Court of Appeals found that “yes” – Plaintiff’s complaint was frivolous and therefore Plaintiff should be required to pay Defendant’s attorney fees.
II. Law
There are Penalties for Filing a Frivolous Lawsuit.
In General, each party pays its own attorney fees incurred in a lawsuit; “[a]wards of costs and attorney fees are recoverable only where specifically authorized by a statute, a court rule, or a recognized exception.” Keinz, 290 Mich.App at 141. Courts may award attorney fees as a Sanction to a party who brings a frivolous lawsuit.
“The purpose of imposing sanctions for asserting frivolous claims is to deter parties and attorneys from filing documents or asserting claims and defenses that have not been sufficiently investigated and researched or that are intended to serve an improper purpose.” BJ’s & Sons Constr. Co., Inc. v. Van Sickle, 266 Mich.App 400, 405; 700 NW2d 432 (2005); Vidosh v. Trans Audit, Inc., 306746, 2013 WL 4081106 (Mich. Ct. App. Aug. 13, 2013).
Pursuant to MCL 600.2591, a claim is frivolous if one of the following conditions is met:
(i) The party’s primary purpose in initiating the action or asserting the defense was to harass, embarrass, or injure the prevailing party.
(ii) The party had no reasonable basis to believe that the facts underlying that party’s legal position were in fact true.
(iii) The party’s legal position was devoid of arguable legal merit.

Vidosh v. Trans Audit, Inc., 306746, 2013 WL 4081106 (Mich. Ct. App. Aug. 13, 2013) citing MCL 600.2591

The Court of Appeals analyzed every cause of action raised by Plaintiff and found that Plaintiff had no reasonable basis to bring forth her claims and therefore Defendant was entitled to have his attorney fees paid for.
III. Lesson
The Vidosh case is a lesson for business partners who feel like they have been wronged. Certainly Vidosh had a reasonable feeling for being wronged – her Presidency and board position were terminated and she did not benefit from what she expected to gain by entering the business relationship.
However, a careful investigation of the motives for bringing a lawsuit should be undertaken before filing suit- try to separate the “personal indignation” from the perceived wrong versus the sound business decision that should be made. Because at the end of the day, Vidosh did not get the outcome she hoped for by pursuing the lawsuit – in fact, she had to pay her attorneys, as well as the Defendant’s attorneys.  Hindsight is 20/20, but the end result was certainly not a good business decision.
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Lesson From Court: Unresolved Family Issues Can Be Costly

August 21, 2013 Leave a comment

I was recently in Probate Court over the settlement of an Estate Litigation Case.

The facts were a classic case of a family dispute that inevitably bubbles up into a lawsuit –


Elderly Dad is a widower, lives by himself. His 6 kids are grown and living their own lives out of town.

Dad, after retiring, has amassed a large retirement fund, held in Trust for the benefit of his kids when he passes away.

In comes the “girlfriend”.

Dad is lonely and starts spending a lot of time with “girlfriend” – who is much younger.

Kids, who already don’t hear much from dad, hear even less from him, as girlfriend moves in and “redirects” dad’s disposable income towards her.

Kids are eventually frozen out of any relationship with dad, presumably at “girlfriend’s” direction.

“girlfriend” becomes power of attorney of Dad’s finances

Dad changes his estate plan to largely benefit “girlfriend” when he passes away.

Litigation ensues between kids and girlfriend. Kids claim girlfriend “unduly influenced” Dad, to change his estate plan.




“To establish undue influence it must be shown that the grantor was subjected to:

1. threats, misrepresentation, undue flattery, fraud, or physical or moral coercion

2. sufficient to overpower volition, destroy free agency and

3. impel the grantor to act against his inclination and free will.

Motive, opportunity, or even ability to control, in the absence of affirmative evidence that it was exercised, are not sufficient.” In re Estate of Karmey, 468 Mich 68, 75; 658 NW2d 796, 799 (2003). 



Therefore if girlfriend’s actions overpowered Dad’s free will, girlfriend could be liable to Kids. This is a pretty high standard. It’s not illegal for girlfriend to persuade Dad to change his estate plan – it iIF Dad’s will was overpowered, so that essentially he wasn’t making his own decision.


a. If Girlfriend acted under a Power of Attorney, then undue influence is presumed

Further, such undue influence may be presumed girlfriend  was acting as a fiduciary of Dad’s with regard to  estate planning.


In re Estate of Karmey, 468 Mich 68, 73 (2003) the Michigan Supreme Court held: “[t]he presumption of undue influence is brought to life upon the introduction of evidence which would establish (1) the existence of a confidential or fiduciary relationship between the grantor and a fiduciary, (2) the fiduciary or an interest which she represents benefits from a transaction, and (3) the fiduciary had an opportunity to influence the grantor’s decision in that transaction.”


III. Outcome of this Case


This case ended up settling.  But only after months of emotional turmoil, and six-figure legal bills, paid out by the Trust.



Resolve Family Issues Ahead of time by clear and open communication.

I am sure in hind sight, the Kids look back and think of ways that they could have communicated more openly with Dad about his wishes and expectations for when he passed away., and also their reservations about “girlfriend.” There were numerous instances at various stages of the progression of the dispute that could head been taken advantage of, but weren’t.


In estate planning, expectations and intentions of an individual when they die should be clearly discussed among all family members when possible, so that any miscommunication can be cleared up. This lesson applies in the context of Estate matters, but also in Family Businesses. The reason that business disputes and estate disputes lead to litigation in family businesses is exacerbated by the “personal” nature of the dispute. It is hard to make a good “business decision” to resolve a dispute when there is some much personal emotions intertwined.


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Real Estate Disputes Between “Tenants in Common”

August 15, 2013 Leave a comment

I just met with a client (lets call him “Mr. Martin”) who was “added to the deed” of some real estate owned by “Mr. Smith”.

The parties’ relationship has since then deteriorated; with that questions naturally arise:

what to do with the property?

Who owns what?

What are each parties’ rights?

In coming to a right solution to this problem, the first question to ask is, how is the property “titled”?

I. The Parties own the Property as Tenants in Common

This Property was titled simply as “Mr. Smith and Mr. Martin.” Therefore Michigan law deems this relationship to be one of “Tenants in Common”.

The other common way to hold a joint title to real estate is by Tenants with Full Rights of Survivorship. To learn more about the unique legal ramifications of that ownership, see my previous article:

In my case the individual who first owned the property “Mr. Smith” – claims that he originally purchased it, it is his property and he should be entitled to all of it.

However, Mr. Martin provided significant funds to improve the property, and Mr. Smith claimed that, maybe, he would provide Mr. Martin some of what he put in.

As much as Mr. Smith may think his proposed solution is “common sense”  – it is not the law.

II. Law:

a. Tenants in Common -in General

A tenancy in common is a legal estate, with each tenant having a separate and distinct title to an undivided share of the whole.  Kay Inv. Co., L.L.C. v. Brody Realty No. 1, L.L.C. (2006) 731 N.W.2d 777, 273 Mich.App. 432

When Mr. Smith conveyed the Property to himself AND Mr. Martin, he conveyed an undivided one-half interest in the Property.

Mr. Martin is therefore 50% owner and entitled to enjoyment of the Property as much as Mr. Smith is.

b. Disputes Among Tenants in Common? Partition is an Option.

If the parties’ cannot agree on how to split up their 50% interest in the property, one party can file a lawsuit with the circuit for “Partition”.  There, the court would use its “equitable powers” to order the sale of the Property.

c. Party Who Provided Improvements – Can Recover the added value to the Property

Under Michigan law, the Courts will look to “equity” to permit a co-tenant who has made improvements to  property to recover the value of those improvements.

The Michigan Supreme Court in Fenton v Miller, 116 Mich 45, 74 NW 384 (1894) stated “

[w]hen premises are susceptible of division, the court will award to the party making the improvements the part on which the improvements are situated, and, when the entire premises are sold, it is equitable that the same result should be reached by awarding the increased value of the premises, by reason of the improvements, to the party making them.” Id. “At a minimum, if a tenant in common on his or her own volition improves the common property and seeks to recover from the co-tenants…he or she can recover… the value of the improvements have added to the common property.” Id.

This is also provided under Michigan Compiled Laws § 600.3336.
(1) When it appears to the court ordering partition that partition cannot be made equally between the parties without prejudice to the rights and interests of some of the parties the court may adjudge that 1 party compensate another in such a way as to equalize the partition according to the equities of the case.

 (2) When partitioning the premises or dividing the money received from a sale of the premises among the parties the court may take into consideration the equities of the situation, such as the value of the use of the premises by a party or the benefits which a party has conferred upon the premises.

Therefore, not only is Mr. Martin entitled to 50% of the Property, but also to the added value attributable to his improvements to the Property. In that instance, the Court would necessarily have to value the Property by a separate evidentiary hearing to determine the value of the improvements Mr. Martin made.

III. Lesson:

The lesson is clear: Whenever entering into real estate transactions individuals and businesses need to fully understand the consequences of their actions, including how they legally title ownership of real estate.

Do you have an interesting issue related to business or real estate? I’d love to hear about it.   

Email or call me. Email: / Ph: (616) 454-3883.
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Real Estate Boundary Disputes: What is Acquiescence?

August 12, 2013 Leave a comment


I had posted an article in June that I drafted about Adverse Possession:

The contested matters that I handle on a routine basis are business, real estate, and estate matters. All of these matters are contentious – real estate matters seem to take on a different level  of discord- simply put, people get real personal when their property is threatened – disputes can get ugly real fast.

A recent unpublished Court of Appeals decision came out providing some background of a closely related area of law to adverse possession, known as “acquiescence”. Andrews v. Alter, 305666, 2013 WL 3942389 (Mich. Ct. App. July 30, 2013).



The case was a property dispute between plaintiffs, Edward and Alan Andrews (“Brothers”) and defendant, Denise Alter (“Ms. Alter”), who own adjoining parcels of lakefront property on Pine Lake in West Bloomfield, Michigan.
Brothers own Lot 32 of “Orchard Beach”.  Ms. Alter owns the southeasterly half of Lot 31.
In 1983, The Brothers’ father, who then owned Lot 32, granted a five-foot maintenance easement to Ms. Alter’s predecessors-in-interest, Joe Cabot and Ruth Cabot, to allow set-back for the construction of a house on Lot 31 at the border with Lot 32, in order to comply with West Bloomfield zoning laws.
The Brothers and Ms. Alter had been using and maintaining their property without an extensive property survey  to mark their respective boundary lines until Brothers had their property surveyed in 2008.
They had been using a line extending from an elevated metal pole in the seawall ion Pine Lake to a narrow point between the parties’ driveways at the road as the boundary line between the properties.
Once Brothers discovered that their actual property line was different than the line they had been using, Brothers sued.
 – again, back to my observation that people get particularly heated when Property is involved – ESPECIALLY lake front property.
The Trial Court found for Brothers. Ms. Alder appealed and claimed that the Trial Court should have found that the Brothers “acquiesced” to the boundary line.
The Court of Appeals agreed with Ms. Alder!
II. Law – ACQUIESCENCE – “the parties treated the boundary line like was the actual boundary line”

 “[t]he doctrine of acquiescence provides that, where adjoining property owners acquiesce to a boundary line for a period of at least fifteen years, that line becomes the actual boundary line.” West Mich. Dock & Market Corp v. Lakeland Investments, 210 Mich.App 505, 511; 534 NW2d 212 (1995).
“The underlying reason for the rule of acquiescence is the promotion of peaceful resolution of boundary disputes.Killips v. Mannisto, 244 Mich.App 256, 260; 624 NW2d 224 (2001).
“Unlike a claim based on adverse possession, an assertion of acquiescence does not require that the possession be hostile or without permission.” Id.“Although Michigan precedent has not defined an explicit set of elements necessary to satisfy the doctrine of acquiescence, case law has held that acquiescence is established when a preponderance of the evidence establishes that the parties treated a particular boundary line as the property line.” Mason v. City of Menominee, 282 Mich.App 525, 529–530; 766 NW2d 888 (2009). Andrews v. Alter, 305666, 2013 WL 3942389 (Mich. Ct. App. July 30, 2013)

Like proving adverse possession, acquiescence is a heavily factually based inquiry. Unlike Acquiescence, there is only required a “preponderance of the evidence (lesser standard than “cogent proof”), and no hostility between the parties need be shown – stated otherwise, a party does not to show the actions taken were “without permission.”


There are legal consequences for the way you treat your property and hold it out to the public. Just like there are legal ramifications for the manner in which you hold your property, i.e. Joint tenancy, tenants with full rights of survivorship.


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Lesson From Court: Pitfalls of a “Backwards Business Formation”

August 9, 2013 Leave a comment

I was recently in Court for a hearing that involved a contentious business dispute. Suffice it to say, that parties will not be doing business together any time soon.


This case provides an excellent illustration to individuals and companies considering creating a new business relationship It reveals some of the pitfalls that anyone could fall into. I can guarantee you this, neither my client, nor their former business partner thought that their business relationship would end with a lawsuit.


I. Facts;

The basis facts are as follows:

The case surrounds two individuals who entered a business relationship.

Thereafter the individuals formed a limited liability company.

One of the partners solely funded the start up of the business.

Thereafter they could not agree on the written terms that defined their business relationship.

When written business documents were produced by one partner, the other partner claimed “that’s not what we agreed to!” and refused to sign.

Actions were taken and lawsuits filed over control of the Company.




II. Legal Issues:

There were a jumble of legal issues created out of this “backwards business formation.

Some of those include: Claims for Membership Oppression:  For more about this claim see a previous article:

a. Was the party in control oppressing the other member?

b. Because an operating agreement was never agreed, who are the members? MCL 450.4501 provides for a way to admit members, what if those ways aren’t met, and there is no written documents to evidence who owns any interest in the company?

c. If all the parties are members, did one or more breach a duty owed to the Company?

d. Was their an “oral” agreement to pay money?

e. etc…..

– What a mess.  And a mess that needs to be sorted out in Court means a substantial cost in attorney fees to each side.


III. Takeaway Lessons:


a. Pitfalls of a Backwards Business Formation

This case was an example of what I would call a backwards business formation.

The process should have been:

individuals discuss with their respective counsel the business relationship they want to form, including obligations and rights of all owners:

individuals memorialize their business relationship in writing, resulting in

the formation of the Limited Liability Company, Articles of Organization and Operating Agreement.



b. Businesses need to be formed based on clear communication ahead of time, and planning for a way out, if things go bad.

If the parties would have memorialized their relationship in writing, then even if the business relationship deteriorated, most likely the parties could agree on a way out. Because the “way out” would be clearly spelled out in the Partnership, or “Operating” Agreement.

One thing is for certain, these parties would have undoubtedly been better suited by consulting legal counsel prior to forming the business relationship. Who knows, maybe if they communicated their intentions, the relationship might never have been agreed to in the first place, to everyone’s benefit.


c. Communicating Business Expectations ahead of time in writing can also sometimes avoid entering in business relationships that have the unforeseen potential to end in Disputes.

I have a client who asked me to draft a Joint Venture Agreement a few weeks back. I drafted the document and sent it to my clients.  I met with them a week ago and they informed me that they could not agree on mutually beneficial terms with the other side, so they decided to walk away.  They recognized that they were glad to have a contract that clearly formalized their intentions to present to the other side. The fact that they couldn’t reach an agreement was unfortunate, but it would have been much more unfortunate if my client just signed a form document, or worse, no agreement, and then relied on the other side to follow through with what they perceived the agreement to be.

As I already indicated, such decisions could prove costly in litigating over what is owed.



Do you have an interesting issue related to business or real estate? I’d love to hear about it.   

Email or call me. Email: / Ph: (616) 454-3883.


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Real Estate Law Update: Proposed Michigan HB 4830 Would Allow Businesses to Represent Themselves at Landlord/Tenant Hearings

August 5, 2013 Leave a comment


In order to limit liability, many real estate owners will form a Limited Liability Company to hold their investment property.  In order to enforce the LLC’s rights in court, the most common scenario being evicting a non paying tenant, Michigan law requires a business entity to have an attorney appear on the entity’s behalf.  Otherwise such individual would be practicing law on behalf of another, the LLC – this is deemed unauthorized practice of law.

However, some states have gone away with this requirement and carved out an exception. A House Bill proposed back on June 13th would allow an officer of a Corporation, or a member of a Limited Liability Company to appear in court under limited circumstances. See the text to this bill, at the link below:

I understand the economic reasons for state legislatures to create such exceptions, but for reasons that I have mentioned in a previous blog post I would always recommend retaining counsel, if you economically can do so. That being said, there are many real estate professionals who are more than competent in such arena.   However, the old saying goes “a person who is his own attorney has a fool for a client.”

The State Bar of Michigan Committee on Civil Procedure and Courts has taken a position opposing this Bill, see


Do you have an interesting issue related to business or real estate? I’d love to hear about it.   

Email or call me. Email: / Ph: (616) 454-3883.



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