Bernstein Dissents from Supreme Court’s Ruling to Overturn Appeals Court’s Decision on a City Park Commission, Governmental Immunity

The Michigan Supreme Court, in a 6-1 decision, held that the Court of Appeals was wrong to rule on whether a park commission was a governmental entity. In one of his first written opinions, Justice Richard Bernstein dissented.

Case: Nash v. Duncan Park Commission. You can read the 2 page Order and Justice Bernstein’s dissent here: Click Here.

The case involved the death of Diane Nash’s son while he was sledding in Duncan Park. The park land was donated to the city, but how the board functioned related to whether it could claim governmental immunity. The trial court held the city could not be sued.

The Court of Appeals had ruled that the Duncan Park Commission was, in fact, not a “board” of the City of Grand Haven, and therefore was not entitled to claim governmental immunity in tort liability.

The Michigan Supreme Court rejected that ruling, as the majority stated the issue of whether the commission was a governmental entity was not raised and therefore the Court of Appeals should not have reached such a decision on its own.

However, Justice Bernstein would have left intact the Court of Appeals ruling in order to emphasize that simply designating a commission as a “board” does not transform a private entity into a “political subdivision” of a governmental entity. Justice Bernstein stated, “[G]overnmental immunity should not be so readily accessible to an entity operating without governmental oversight in a manner similar to a private entity.”

And, the Court of Appeals and Justice Bernstein agreed, the Duncan Park Commission operated independently and autonomously from the City of Grand Haven as a private body that administers privately held land. The majority on the Supreme Court simply held that the Court of Appeals should not have reached such a conclusion on its own, without the issue being raised previously.

Fausone Bohn, LLP represents municipalities in Western Wayne County and has experience handling issues of governmental immunity and “political subdivisions” of a city. If you need counsel or advice on municipal law issues, the team at Fausone Bohn, LLP is here to help. Contact us today at (248) 468-4536 or online at www.fb-firm.com. 

Could Same Sex Marriage Case Affect Same Sex Adoptions in Michigan?

Melissa Cox, Esq.

A Michigan same-sex couple, April DeBoer and Jayne Rowse, have been at the center of the recent news coverage on the upcoming United States Supreme Court case on same sex marriage. The Supreme Court heard arguments on the case last week.

DeBoer and Rowse are both nurses who have each separately adopted two children. The Michigan Adoption Code allows individuals or married couples to adopt but not two unmarried persons.  Effectively, the law does not permit same-sex couples to jointly adopt.

The couple originally did not expect to be leading the way on marriage equality. However, after a health scare with one of their sons and a near-miss on what could have been a deadly car accident, they started to look more closely into the state’s laws. The couple discovered that if one of them died, a judge could give the children to someone other than their partner.

That led to their challenge of Michigan’s marriage law.

An estimated 110,000 thousand children across the country live with gay parents. If the Supreme Court strikes down same-sex marriage prohibitions, then states like Michigan that currently ban same-sex marriage would almost certainly see an increase in adoptions by same sex spouses.

If such couples are allowed to legally marry after the Supreme Court’s decision, then, DeBoer and Rowse, for example, could jointly adopt their four children together through a stepparent adoption, whereby a child can be adopted by their legal parent’s spouse.

However, other types of adoption may not increase so easily, as efforts are already underway in Michigan and other states that would may preempt the Supreme Court’s impending decision on gay marriage. In particular, legislation was recently introduced that would allow an adoption agency to select who they service based on “sincerely held religious beliefs contained in a written policy” (of the adoption agency).

Thus, whatever the Supreme Court’s decision on gay marriage, it appears the debate over same-sex adoption will continue in the coming years.

If you have any questions about adoptions in Michigan or questions about the Michigan Adoption Code, don’t hesitate to contact Attorney Melissa Cox. The adoption process can be complex, and at Fausone Bohn, LLP we serve as strong client advocates. Contact our Metro Detroit Office today at 248-468-4536 or visit us online at www.fb-firm.com.

You can read more on the upcoming Supreme Court case here: http://www.npr.org/2015/04/20/401007033/meet-the-accidental-activists-of-the-supreme-courts-same-sex-marriage-case

Nursing Homes Requiring Families to Sign Arbitration Agreements Before Admittance

Daniel J. Williams, Esq.

Recent news out of Oklahoma shows why having competent legal representation is important if you are looking for a nursing home for a loved one. And, importantly, having such representation before making the choice of which nursing home to go with.

Many of Oklahoma’s 300-plus nursing homes require potential residents to sign arbitration agreements prior to their being admitted to the nursing home. The arbitration agreement means that the family would be bound to arbitration if a disagreement over care arose, which would effectively strip the family’s ability to sue in court. And the damages awarded in arbitration would probably be less than if a civil suit in court were filed.

Arbitration is an alternative form of dispute resolution that takes place outside the courts. While this method has its uses, it can limit the rights of victims of elder abuse.  

Other downsides of arbitration in the case of potential nursing home abuse include: enforcing an award to be paid can be more complicated, the proceedings can be made confidential, which allows the nursing home to potentially cover up their wrongdoings, and there are limited avenues for appealing a bad decision, among other negatives.

If you are considering putting a loved-one in a nursing home, you should contact a knowledgeable elder abuse or elder law attorney to review any agreements the nursing home might have you sign prior to admittance. Planning ahead of time can help prevent possibly tragic situations of elder abuse; and, you can ensure that if anything does go wrong, you will have legal recourse to seek justice and compensation.

Even if the state prohibits such arbitration agreements, as they do in Oklahoma, nursing homes could argue that such agreements are permissible under federal law. That is the argument the Oklahoma nursing homes have made.

You can read more on this issue in The Norman Transcript:

http://www.normantranscript.com/news/oklahoma/many-nursing-homes-require-families-to-sign-arbitration-agreements-before/article_09d84ebf-21c4-5b42-8f63-a3bc64d70437.html

Daniel J. Williams is an Elder Abuse Attorney with Fausone Bohn, LLP. The firm has former prosecutors and experienced attorneys who can help you and your family right the wrongs done to your loved one, whether it be nursing home abuse or financial exploitation. Call the Metro Detroit Elder Abuse attorneys today, at (248) 468-4536, or visit us
online at www.fb-firm.com. 

Court of Appeals Issues New Ruling on Municipal Construction Contract Disputes

Paul F. Bohn, Esq.

As a law firm with both municipal clients and construction business clients, we see both ends of construction litigation disputes. The latest case out of the Michigan Court of Appeals, DiPonio Contracting, Inc. v. City of Howell, sheds light on the importance of obtaining competent representation in such cases.

DiPonio Contracting, Inc. (DCI) was awarded a bid for a road reconstruction project in the City of Howell. After the contract was received, DCI received a set of revised plans, and DCI was asked by Howell on at least two occasions to stop work on the project and make some emergency repairs that were unrelated to the road project.

DCI requested project extensions so that work could be completed prior to the deadline, given the various additional requests. DCI eventually ceased working on the project, although they believed their work was complete. The City alleged that they were entitled to liquidated damages at $1,550 per day (for 32-plus days) for DCI failing to complete their work, specifically for street sign replacement. DCI believed the City’s changing of the brackets that were needed to replace the signs precluded them from those damages.

DCI filed a complaint against the City alleging a breach of contract and unjust enrichment, for $121,872.52. The City filed a counter-claim alleging they were entitled to $88,350 in liquidated damages.

The trial court ruled that the City wrongfully denied DCI’s request for extensions of time on the project and awarded DCI the full $121,872.50. But, the court also ruled the City was, in fact, entitled to 10 days of liquidated damages of $15,500, resulting in a net judgement of over $105,000 for DCI. The Court of Appeals affirmed the ruling, and ultimately, DCI was awarded an additional $24,000 in attorney fees.

The City accused the court of not enforcing the liquidated damages clause of the contract. However, the Court of Appeals noted that the trial court simply awarded 10 days of liquidated damages rather than the full amount of $88,000, which the court found to be unreasonable.

Large-scale construction projects such as this one can be complex, especially when the need for emergency repairs arise. Matters only become more complex when breach of contract allegations results from misunderstandings and miscommunication. Whether you are a municipality or a business, Fausone Bohn, LLP attorneys have extensive experience in both municipal matters and construction litigation. Don’t hesitate to contact us for a consultation.

Paul Bohn is a partner at the law firm of Fausone Bohn, LLP, and was named one of the Top Attorneys in Michigan in 2014 by Crain’s Detroit Business, and practices in the areas of construction and municipal law. If you need help on a construction or municipal law issue, contact Fausone Bohn, LLP at 248-468-4536, or visit us online at www.fb-firm.com. 

Livonia Chamber to Kick-Off Business Expo with Business Breakfast Roundtable

The Livonia Chamber of Commerce’s 29^th Annual Business Expo is just around the corner. Once again, the Business Breakfast Roundtable will kick off the event.

The Roundtable will be held on Wednesday, May 6 from 8:00 am to 9:30 pm at the Detroit Marriott Livonia, adjacent to Laurel Park Mall, located at 17100 N. Laurel Park Dr.

The cost is $15 for members and $20 for other guests. f you are interested, check out the event registration page and sign up today: http://files.ctctcdn.com/3be7e289001/c7a673df-a17e-4af4-b7f4-3f9414bf5203.pdf

You can contact the Livonia Chamber at 734-427-6055 to reserve your seats.

The Business Breakfast Roundtable brings together a local media and political panel to talk about policy and business issues that impact the state, and in particular the metro Detroit region. And on Wednesday morning, the fate of Prop 1 and road funding will have been decided by the voters; if the road funding measure fails, a “Plan B” could be a hot topic of discussion.

This year’s panel will feature Nolan Finley of The Detroit News and Tom Walsh of the Detroit Free Press; and, Livonia Mayor Jack Kirksey and Westland Mayor William Wild.

Attendees will have the opportunity to ask questions of the panel. And following the event, attendees will get the first look at the Business Expo throughout Laurel Park Mall. 

What Should You Do if the Police Stop Your Car?

It can make your heart sink: Seeing the red and blue police flashers in your rearview mirror. You are being pulled over.

We have all hear about bad encounters with police officers at a traffic stop, but drivers should also understand that traffic stops are some of the most contentious encounters they experience.

First, the police car will park behind you and run your license plate before approaching your vehicle. They are looking to see if you have any priors. Then, they will approach your car.

Once you have rolled down your window, the most important thing to remember is to not make any sudden movements – keep your hands on the wheel. Police are worried about someone reaching for a gun, trying to stash away contraband, or throwing something out the window. Even a quick duck for your wallet could be noted by the officer.

If you have to reach into a compartment to get your registration or insurance, keep your hands on the wheel, and first tell the officer, “I am going to open the glove compartment to get my registration, is that OK?” Once the officer gives the OK, then, slowly, retrieve your registration.

It is also a best practice to respond to every question with “Yes sir” or “Yes ma’am” – no joking around or being sarcastic. This behavior can especially be problematic for younger drivers or new, teen drivers who the officers may believe already have an attitude.

You should also know that police may find any reason to search your car. It could be that the car simply smells like marijuana, whether that is credible or not; perhaps someone in the car smells like they have alcohol on their breath; maybe they believe they see drug contraband or a weapon, even if it is just a cigarette box or the handle of your ice scraper.

The bottom line is that, if they want to give you a hard time, they will. But it will only help your case if you continue to be polite and cordial with the officer. No case has ever been helped by a driver being rude or disorderly in front of the police. Often times the event is caught on camera, and in rare instances, audio is also caught.

If you are asked to get out of your car, once again, do not make any sudden or quick movements. Do whatever they officer may ask of you.

Lastly, make sure you know who you are in the vehicle with. If one of your friends has drugs in their pocket, even if nobody else knew, everyone in the car could be busted for possession of drugs or loitering in the presence of drugs. The charge might not hold up, but it is certainly one you don’t want to face.

If you are facing criminal charges, Mark Mandell is an experienced Metro Detroit defense attorney and a former prosecutor. Call Fausone Bohn, LLP today at (248) 468-4536, and find out how Mark and our other defense attorneys can help you.

Or visit us online at www.fb-firm.com. 

The Good News About Detroit

Paul Bohn

Has this happened to you: You’re out of town, maybe on vacation, and nobody knows where you’re from….so you say, “I’m from Detroit.” And then you get that look, the one that gives you the sense the person is sorry for you.

It’s not surprising, as the mainstream media constantly feeds negative stories of Detroit, from crime, to government mismanagement and corruption, to bankruptcy. A lot of Michiganders even have negative sentiment about Detroit.

The city’s motto states, “We Hope for Better Things; It Shall Rise From the Ashes.” And better things are already happening, and Detroit is “rising from the ashes” of what is, admittedly, a scarred past.

I encourage everybody to check out two great websites: Curbed Detroit and Eater Detroit, which track positive development and rejuvenation, and the great eats and drinks, around the city.

Curbed: http://detroit.curbed.com/

Eater: http://detroit.eater.com/

And here’s a link to the latest piece of big news out of Detroit. Dan Gilbert is buying the historic One Detroit Center, and Ally Financial will be moving in (and it will be renamed Ally Detroit Center). Link: http://detroit.curbed.com/archives/2015/03/dan-gilbert-buys-fills-and-rebrands-one-detroit-center.php

Paul Bohn is a partner at the law firm of Fausone Bohn, LLP, and was named one of the Top Attorneys in Michigan in 2014 by Crain’s Detroit Business. Paul is a huge fan of Detroit and encourages everyone to check out the good news happening around the City.