Saturday, December 21, 2013

Your 30-year shingles are just like your 50,000 mile tires!

So you think you have a 30-year replacement warranty for those 30-year shingles on your house?

Think Again.  A recent December 2013 Michigan Appeals Court case affirmed a defendant Shingle Supplier's win over a grieved Plaintiff who sued the supplier after about 13 years because his 30-year shingles were failing.

The plaintiff claimed that there was a breach of implied warranty and a violation of the Magnuson-Moss Warranty Act (Federal Law).  The court ruled that where a plaintiff seeks to recover for economic loss caused by a defective product, the exclusive remedy is provided by the Uniform Commercial Code(UCC).  There was no evidence of any express warranty.

Unfortunately for the Homeowner Plaintiff, the UCC has a defined statute of limitations.  The UCC, codified at MCL 440.2725, has a four-year limitations period for a breach of implied warranty.  Therefore the filing of the lawsuit after 13 years was way past the limitations period and therefore time-barred.  The claim under the Magnuson-Moss act also failed for the same reason.

While the shingles were marketed as “30 year shingles,” that is NOT the same as having an express warranty with full coverage for 30-years.  In this case, there was no proof of any express warranty, therefore the lawsuit was filed over an implied warranty and it was too late for that.

Today, the reality is you will be given an express warranty that reads something like this:   During the first five years defendant would pay the full cost of labor and materials to repair defective shingles or apply new shingles to replace defective shingles. After five years, a limited warranty provides for prorated coverage for materials only.

The Homeowner loses!  Your 30-year shingles are just like your 50,000 mile tires!

Wednesday, December 11, 2013

Do you need a driver's license to "travel"?

I've never heard the argument in person, before today.  I am certainly not advocating their position, but it was interesting hearing it in open court this morning. 

The defendant was caught for driving without a valid license.  The defendant engaged in a "sovereignist" argument,  making the argument that because one of the fundamental rights under the US Constitution is the right to travel, there should be no licensing requirements that would impinge on that right.   He repeatedly referred to himself as a "traveler", not a "driver" of a car.

In short, here's his argument:

1. It is well established that a Fundamental Right under the US Constitution is the right to travel.

2. The claim and exercise of a constitutional right cannot be converted into a crime.  Miller v. US, 230 F.2d 486, 490 (1956).
3. By requiring a drivers license to "travel", a state has converted this right to a privilege, a privilege that can be, and is often, taken away.  If you drive without a license, the city and state laws and ordinances make it a crime.

4.  Therefore, any law or ordinance that requires a driver's license is invalid and the court has no jurisdiction to convict or sentence someone for not having a drivers license, as it can't be a crime to do so.

Predictably, this argument did not go very far with the Judge. It is well established that the states have the right to license and regulate for the safety and security of their residents.  Requiring a driving test, a written test, and an eye test certainly fall within established parameters providing for the safety and security of the state's residents, whether they are the drivers, passengers or pedestrians.

This "sovereignist" argument can be akin to the movement that believes the IRS doesn't have the power to collect taxes, and so those in the movement either file under protest or don't file at all.

Saturday, December 7, 2013

Issue -- Family Law, Change of Circumstance for Custody purposes

Issue -- Family Law/Custody:  Is it a "change of circumstances" if there is an escalation or expansion of disagreements between the parents?

In November 2013, the Michigan Court of Appeals said yes in Gates v. Kadoguchi.

The court held that the trial court properly awarded the defendant-father sole legal and sole physical custody of the parties' children.  On appeal, the court first rejected the plaintiff-mother's argument that the trial court's finding of proper cause or COC was against the great weight of the evidence, holding that an incident involving plaintiff calling the police, which occurred after the judgment of divorce, constituted a COC. It found the incident relevant to several best interests factors, and noted that plaintiff's subsequent "inability to control the children" based on the incident was "a change in the children's environment that would have a significant effect on their well being."

The court found that the trial court did not commit clear legal error and its findings regarding best interest factors (a), (b), (d), (e), (h), (j), and (l) were not against the great weight of the evidence. "The trial court did not abuse its discretion in changing custody."

Tuesday, December 3, 2013

Does your adult Child have Powers of Attorney?

Does your College Student have a Durable Medical Power of Attorney (patient advocate)?    Many parents don't think about this document even for themselves, much less for their child when that child turns 18 and goes to college or moves out.  Once the child turns 18, parents are not necessarily the default decision maker in medical decisions for that child.  Having an attorney draft up and execute this document will memorialize the intent of your now adult child in regards to medical decisions for that child in the event of his incapacity.
The same applies for a Durable Power of Attorney, but given the lack of assets of most young adults, this may not be as critical as having a Durable Medical Power of Attorney.

Saturday, November 23, 2013

Divorce involving a Military Member -- Dividing the Military Pension

            Any lawyer who has taken on a divorce client in Michigan knows the statutory language and other  statutory requirements from the start of the action through the Judgment of Divorce.  But, many lawyers are not well-versed in the specific requirements and language necessary to effect an attachment to a military spouse's "accounts" or pension(s).  Here are just a few gotchas that can trip up any attempt to divide a military pension through a court order:

            - A military pension is not a pension in regards to ERISA and is not affected by a QDRO.  When submitting the court order and other documentation of the judgment to the military, you do NOT use a QDRO.  Furthermore, if the member has more than one pension or Savings Plan, you must specifically identify (with the proper account names) which accounts are to be effected.

            - Dividing a military pension must be done with specific language so that the military finance department can determine how exactly to pay out on the court order.   The court order dividing retirement pay may be rejected (and frequently are rejected) for failure to provide this specific guidance.

            - No "offsets" are allowed to the pension division.  If the amount of the former spouse’s award is expressed as a dollar amount or percentage of  disposable  retired  pay  less  the  amount  of  some  other  obligation  (e.g.,  Survivor Benefit Plan premium or the former spouse’s child support obligation), the entire award is unenforceable.

            There are also myriad issues regarding the unvested retirement plan (military retirement is not vested until the member has 20 years of service (20 "good years" for the reserve components). 

            -What if the service member never gets to 20 years of service, and therefore has no retirement?  What if the member takes a "buy out" to separate from the military (as has been done in past "drawdowns") and in turn also forfeits his retirement pension? 

            -What if the servicemember dies before the ex-spouse?  Under the military pension, the pension is terminated for that member AND any ex-spouse receiving part of the pension, unless a specific action is taken from a court order that specifically addresses that possibility prior to the member's death.
            These are just a few of the landmines one must navigate to properly execute a split of marital assets when there is a military pension involved

Wednesday, November 20, 2013

Do our laws sometimes go too far, too far-reaching?

Sec. 38-41. - Prohibited offenses.
No person shall:
(15)  Possess a laser pointing device unless that person is at least 18 years of age. A person under the age of 18 shall not be in violation of this section if the possession of a laser pointing device is necessary for his employment, trade or occupation.

Friday, November 15, 2013


"When love collides with Money"

            With many people getting married later in life, a couple sometimes come to the marriage with some substantial assets earned before that marriage.   A way to maintain those assets as "personal", versus "marital" is to have an attorney draft up a prenuptial agreement.  Another good reason to consider a prenup is to set financial and property understandings up front, before you say "I do." However, both parties to the marriage must agree to have such an agreement, and the lawyer's office is not the place for one party to spring it on the other party!

            Prenuptial agreements (aka antenuptial agreements) are legal in Michigan.  An antenuptial agreement is a contract entered into before marriage by which the parties can vary or relinquish marital rights.  The agreement must be in writing, must have been entered voluntarily after full disclosure by both parties (i.e. their assets), and must be fair when executed. One common argument raised when a marriage is dissolving is that facts and circumstances have changed since the agreement was executed that would make its enforcement unfair and unreasonable.  But, passage of time and the length of marriage does not by itself make the agreement unreasonable or necessarily unfair.

            Twenty years ago, prenuptial agreements were things that only the rich and famous had drawn up.   Now, partners coming to a marriage tend to be more sophisticated in terms of their finances, and realize the protections that a prenup can provide.  This is especially true if either the husband or wife comes to the marriage with an inheritance or real estate -- for instance, a family vacation home.

            If you are contemplating marriage, and want to protect your assets earned or inherited by you before you start your marriage, a prenuptial agreement may be a good way to protect your assets.

Thursday, November 14, 2013

Stealing contents of an Automobile, Misdemeanor or Felony?

A Quirk of Michigan Criminal Law:   Did you know that under Michigan law, stealing or unlawfully removing property from any motor vehicle can either be a misdemeanor, or a FELONY, depending on either the value of what was taken OR what was taken.  Michigan Compiled Law (MCL) 750.356a(2), makes it a misdemeanor to enter or break into a motor vehicle and “steal or unlawfully remove property” with a value that is less than $200.00.  However, under MCL 750.356a(1), it is a felony to commit a larceny “by stealing or unlawfully removing or taking any wheel, tire, air bag, catalytic converter, radio, stereo, clock, telephone, computer, or other electronic device in or on any motor vehicle . . .  So if you steal a $20 umbrella from a car -- it is a misdemeanor, but if you steal a $20 alarm clock it could be a felony!  It would ultimately come down to what charges the Prosecutor levies against you

Wednesday, November 13, 2013

Beware of Joint and Several Liability in Residential Leases

I've sat through numerous landlord/tenant disputes in the District Courts. One of the least understood and the most contentious issue in rent disputes is with the Defendants and the concept of Joint and Several Liability. I've also dealt with these clauses in my son's college apartment leases.

Joint and Several Liability is a legal principal where any one member of a group can be liable for the actions or inactions (obligations) of any other member of that group. This liability can be established by law, or more commonly, by contract.

It is frequent in a landlord-tenant relationship that the landlord's lease will have a Joint and Several Liability clause in that lease, if the lease is for more than one tenant. By signing that lease you have contractually obligated yourself to that lease. In doing so, the Joint and Several Liability clause will typically make you liable not only for your share of the rent payment, but also the rent due from the other tenants if they fail to pay.

In the typical scenario, one or more tenants have moved out without making contractual arrangements with the landlord. In doing so, they left you (and any others remaining) liable for the absent tenant's rent. It doesn't sound fair--all tenants signed the lease agreeing to pay their share of the rent, why should YOU now have to pay their rent after they skipped out?

This question can best be answered by looking at the Landlord's perspective. If the Landlord had to chase down every tenant in a multi-tenant lease to get his rent, he may very well not rent to multiple parties in the future. Furthermore, it is the Landlord who assumes the risk of renting to the typically unknown parties. In Michigan, the law allows him to mitigate his risk by allowing the landlord to include a Joint and Several Liability clause in your lease agreement.

I've watched a Defendant in court who was the only one being sued (or Plaintiff tried to find the other tenants to sue them, but couldn't). Most defendants do not understand how they are being sued for thousands of dollars in back rent due from other tenants on the lease. The same applies if the lease holds all tenants equally (Joint and Severally) liable for any property damage. The answer is that they contractually agreed to do so by signing the rental agreement that contained a joint and several liability clause.

The little bit of good news in regards to Defendants' rights is that the Defendant being sued has the right of contribution by the other tenants. This means that the Defendant can legally demand that the other tenants pay him for their share of the rent that the Defendant paid in their behalf. However, in reality, the Defendant left holding the bag after the other tenants have moved out may have a difficult time finding and collecting from the other former tenants.