The Anti-Lockout Statute specifically states that “any tenant in possession of premises whose possessory interest has been unlawfully interfered with by the owner, lessor, licensor, or their agents shall be entitled to recover the amount of his actual damages or $200.00, whichever is greater, for each occurrence and, where possession has been lost, to recover possession.” (emphasis added).  This statute prohibits a landlord from attempting self-help eviction of a tenant, or eviction without legal process.

In Christie, plaintiff tenant filed a complaint alleging that defendant landlord unlawfully locked them out of the rental premises and also moved a large quantity of valuable equipment from the rental premises to storage, where it was subsequently damaged.  Defendants argued that the plaintiffs were behind in rent, the plaintiffs had abandoned the premises, and that plaintiffs had numerous opportunities to retrieve their personal property after it was moved.

At trial, the court gave the jury an instruction regarding the award of exemplary damages.  Specifically, the jury was instructed that “an award of exemplary damages is proper if it compensates a plaintiff for humiliation, sense of outrage, and indignity resulting from injustices maliciously, willfully, and wantonly inflicted by the defendant.”  After a jury found for plaintiffs and against defendants on plaintiffs’ claim for violation of the anti-lockout statute, MCL 600.2918, they awarded plaintiffs treble damages for the anti-lockout claim, or three times the actual damages amount.

Defendants appealed on this issue, arguing that a statutorily based cause of action will not allow for damages other than those specified in the statute.  Exemplary damages are not specifically provided for in the Anti-Lockout Statute.

Although Michigan Court of Appeals in Christie agreed with Defendants argument, it did not reverse the ruling.  The Court reasoned that, under Michigan law, recovery under the Anti-Lockout Statute may include damages for emotional distress, embarrassment, and humiliation, as part of actual damages.  Therefore, although a separate award for exemplary damages is not appropriate in a statutorily based action unless the statute in question specifically provides for such damage, damages for mental distress are allowable as part of a plaintiff’s actual damages. As a result, the Court allowed plaintiffs to recover the damages awarded as emotional distress damages under the Anti-Lockout Statute.

This article was written by Natalie C. Najarian, Associate at Demorest Law Firm.

]]> http://www.detroitbusinesslaw.com/2010/03/damages-under-the-anti-lockout-statute/feed/ 0 http://www.detroitbusinesslaw.com/2010/03/when-opportunity-knocks-should-you-answer/ http://www.detroitbusinesslaw.com/2010/03/when-opportunity-knocks-should-you-answer/#comments Fri, 05 Mar 2010 10:31:21 +0000 Jay Kossen, CPA http://www.detroitbusinesslaw.com/?p=865 There is a quote from William James that reads:

“He who refuses to embrace a unique opportunity loses the prize as surely as if he had failed.”

A couple of weeks ago, I received a unique opportunity from Renee Warnimont, the business development officer who supports the Charter One Bank branches in the Downriver communities of Dearborn, Southgate, Taylor and Trenton, Michigan. Each month, Charter One conducts a conference call to discuss relevant topics in the banking industry.  Because February’s call focused on how the state of the economy in Michigan & Ohio is affecting small businesses, Renee offered me the chance to be the only CPA in the State of Michigan to present on the economic and tax issues that are having an adverse affect on small business owners today.

I decided to embrace this unique opportunity even though public speaking is not my expertise. In hindsight this proved to be a tremendous marketing opportunity. Initially, I expected the conference call would only include the branches of the Detroit metropolitan market and Toledo, Ohio. Instead, it turned out that the call included 40 bankers, 6 Regional Directors and the Michigan State Director of Charter One, along with branches representing Akron, Canton, Cleveland, Columbus and Toledo, Ohio. Not only did I have exclusive access to all of these decision makers, but the following week I was able to meet the Michigan State Director for lunch to follow up on the conference call and to provide him with additional information about Numerico, P.C.

In closing, I want to give special thanks to Renee for this incredible opportunity. If you have any banking questions or would like to hear a different point of view regarding the banking industry, you can email Renee at Renee.Warnimont@CharterOneBank.com

This article was written by Jay Kossen, CPA at Numerico, PC. Click here to view Numerico’s website.

In Kennedy v Hayduk, the plaintiff’s attorney claimed that a settlement had not been reached.  The Michigan Court of Appeals disagreed.  The defense attorney sent a letter summarizing the terms of a proposed settlement.  There were more detailed settlement documents still to be prepared.  The plaintiff’s attorney then signed and returned to the defense attorney a stipulation and order to dismiss the case.  The plaintiff later argued that there were terms of the settlement that had not been agreed upon, so there was no binding settlement.    The Court of Appeals ruled that: “The signed stipulation was unconditional acceptance of defendants’ offer. … The objective evidence shows that an agreement was reached.”

A lesson from this case:  Don’t sign a settlement until all terms have been agreed upon.

Download a PDF of the decision by clicking here.

This article was written by Mark S. Demorest, Managing Member of Demorest Law Firm.

Key provisions of the CARD Act include:

• Interest rates on existing balances cannot be changed unless (1) your payment is 60 or more days late; or (2) you have an introductory rate that expires.
• If a payment is more then 60 days late, but your payments for the next 6 months are all on-time, the credit card company must reduce your interest rate back to the original rate.
• Interest rates on new purchases can be changed, but the credit card company must give you 45 days notice before raising your rate.  You can opt out of the rate change, but that means your account will be closed and you will have five years to pay off the existing balance at the existing interest rate.  There are some exceptions to this rule, however.  For example, if you have a variable rate card tied to the prime rate, this provision does not apply.
• Credit card companies can no longer use the “universal default” provision that some were using.  If you pay late or default on any account (credit card, utility, etc.), other card issuers can no longer raise your interest rate on your existing balance on those cards.
• Credit card companies can no longer approve a charge that exceeds your limit and then charge you an over-limit fee and penalty interest rate.  Beware of “opt-in” offers to avoid over-limit fees, as this is a scam.
• You cannot be charged for paying online, by mail, or over the phone, unless you speak to a live operator and then they must disclose the fee before you pay.
• Payment due dates must be the same every month, and if the due date falls on a holiday or weekend, the payment is due the next business day.
• Your bill must now disclose how long it will take to pay off the current balance if you only pay the minimum amount each month, as well as the total amount of principal and interest you would pay over that time period.
• Anyone under 21 cannot get a credit card without either (1) proof of income to pay the bills or (2) an adult co-signer.

One problem with the CARD Act, however, is that it was signed into law in May 2009, but did not become effective until this week.  This gave credit card companies significant time to find ways around the new laws, including cutting credit limits and raising interest rates before the restrictions on such practices went into effect.  Some other new negative practices include:

• Closing accounts or charging fees for inactivity or even for “low activity”
• The return of annual fees to many cards – even if you have never had an annual fee on a particular card, there is nothing to stop the card issuer from charging one now
• Converting fixed rate cards to variable rate cards, and setting these rates with a floor that they will never fall below
• Redefining terms of certain fees, such as what is considered an “international transaction”
• Increasing balance transfer fees and cash advance fees
• Adding fees for paper statements
• Changing the terms of rewards programs or eliminating such programs altogether
• Stricter review of who is issued credit
• Reducing credit limits without warning

Pay attention to all correspondence from your credit card company, and if they are acting in a way that should be covered by the CARD Act, call and complain.  If that doesn’t work, contact your US Senator or Representative.

This article was written by Melissa L. Demorest, Associate at Demorest Law Firm.

To download a PDF of the case click here.

This article was written by Mark S. Demorest, Managing Member of Demorest Law Firm.

They rarely mix and are frequently toxic to the environment.

Although it should be noted that there are of course occasions of success, the most likely outcome is entrenched employees that are nearly impossible to remove, strained relations and uncomfortable holiday dinners. In fact, you could probably make an argument that it is easier to remove a unionized government employee than a family member who is your employee.

I recently read an interesting article that deals with this topic in the New York Times on February 11, 2010, entitled “Fire Your Relatives. Scare Your Employees. And Stop Whining” by Kermit Pattison. (Click here to read).

While some of his suggestions may be too aggressive for your average small business owner, they get right down to my point.

As a business owner you are either in it to win it or you are not.

Which are you?

This article was written by Jay Kossen, CPA at Numerico, PC. Click here to view Numerico’s website.

In the case decided by the Michigan Court of Appeals, the plaintiff purchased a manufactured home from the defendant.   Soon after the plaintiff took possession, she discovered several serious defects and sued the defendant.    The parties reached an out-of-court settlement, wherein the defendant agreed to repair all the various defects and pay plaintiff and her attorney $8,500.  After the repairs were made, plaintiff inspected the repairs with her attorney and signed off on them, signing both a release and satisfaction.

A year later, plaintiff discovered high levels of toxic mold, later filing suit against the same defendant arguing that the defendant breached the settlement agreement by not completing the original repairs in a workmanlike manner.

The Court of Appeals affirmed the trial court’s holding that nothing prevented the plaintiff from having a professional inspect the defendant’s work before she signed the original satisfaction.   Just because the mold was not visible to the naked eye does not mean the satisfaction does not cover it.    Thus, plaintiff’s second lawsuit was an attempt to repudiate the release that she gave defendants originally.    The Court held that because plaintiff signed the release and satisfaction, and because defendants made the repairs and paid her, the contract was complete.    The Court held because plaintiff was attempting to repudiate the release she must give back the consideration before filing suit.    If she had not signed the satisfaction, she could have filed suit without having to return the money first.

Click here to download a PDF copy of the Michigan Court of Appeals Decision in Bain v Community Sales.

This article was written by Michael R. Dorfman, Senior Associate at Demorest Law Firm.

Click here to download a PDF of the Court of Appeals decision in Mossing v Demlow.

This article was written by Mark S. Demorest, Managing Member of Demorest Law Firm.

Though the idea of life as an endless struggle or fight for survival is romantically appealing, it’s not very efficient. Those who go through life in this way waste so much energy and time waging short-term battles that they lose the long-term war. In this case, the long-term war is productive change.

Though you can force some productive change through continual frontal assaults, there are more efficient means of accomplishing your objectives. It is shortsighted to handle all challenges with the same tactic. Different situations require different methods. By understanding the environment around the situation, you can use tactics that blend into and solve the conflict harmoniously.

If a conflict is solved in a way that creates discord (future conflict), then the situation hasn’t been resolved. You may think you have come out on top, but the conflict will usually be revisited, with much more intensity. Your short-term gain will produce long-term pain, either for you or for the other parties involved.

A basic law of the universe is that “for every action, there is an equal and opposite reaction”. The universe demands that equilibrium is maintained. Imbalances have a way of righting themselves, with the unknown variable being the time it takes for resolution. If we push a situation toward further imbalance, the time table is accelerated. The greater the imbalance becomes, the greater the force against us.

The principle of avoiding negative conflict, yet accomplishing your objectives, is the essence of a martial art called aikido. In aikido, the aggressor’s strength is never met head-on. Instead, the aikidoist, yields to the force in such a way that it is unable to cause harm and, at the same time, the force is redirected, usually to the opponent’s detriment. This is like redirecting the flow of a river instead of opposing it. Much less energy is expended, equilibrium is maintained, and the objectives are met. This principle works in most every situation.

All things in life have a balance. By approaching all situations in life as confrontations and attacking relentlessly, we eventually, upset many balances. This is not to say that you should never use a direct attack. However, by looking at the environment (which shapes the situation and its outcomes) and considering alternatives, we can accomplish our objectives and maintain a healthy, natural balance.

Individual taxpayers who itemize their deductions for 2009 may deduct on their 2009 income tax return cash contributions to qualifying charities for Haitian earthquake relief made after January 11, 2010 and before March 1, 2010.  A “qualifying charity” for this purpose is a charity which is (1) based in the United States, and (2) is either (a) listed in IRS Publication 78 or (b) a bona fide church.

Publication 78 lists charities which have applied for, and been granted, IRS recognition that contributions to them are deductible as charitable contributions for Federal income tax purposes.  An online version of Publication 78 can be found at http://www.irs.gov/app/pub-78/.

To designate that a contribution is for Haitian earthquake relief, you should specify on the memo line of the check or otherwise in the documentation for the contribution that the contribution is for Haitian earthquake relief.

If you have any question about making a qualifying contribution, please feel free to contact us.

[1] IR 2010-12, Jan. 25, 2010.

This article was written by Stephen J. Dunn, Of Counsel to Demorest Law Firm.