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PSED Law Congratulates Attorneys Listed as ‘Super Lawyers’ For 2014

Pear Sperling Eggan & Daniels, P.C. is pleased to announce that Tom Daniels and Jerry Lax were recently named to MichiganSuper Lawyers for 2014.

The annual Super Lawyers list is compiled by Thomson Reuters. The rigorous multiphase selection process is made up of a nomination stage; an initial evaluation based on indicators of professional achievement; a second evaluation completed by a panel of accomplished attorneys familiar with a candidate’s given practice area; and a final selection. Only five percent of the total lawyers in the State of Michigan are included in the annual ranking.

Tom has been practicing at PSED Law since 1984, and has been listed as a Super Lawyer for General Litigation, and has been named to the prestigious list from 2012 – 2014.

Jerry, a longtime Ann Arbor attorney, has been licensed to practice in Michigan for nearly 50 years, and is listed as a Super Lawyer for State, Local, & Municipal Law, and has been honored as such since 2007.

Pear Sperling Eggan & Daniels, P.C. is one of the oldest law firms in Washtenaw County, maintaining offices in Ann Arbor and Ypsilanti for over 65 years. PSED Law is a full-service law firm with primary focuses in estate planning and probate; civil and commercial litigation; family law; municipal law; labor and employment law; insurance coverage; insurance defense; criminal defense; personal injury; and social security disability. For more information please contact Matt Daniels (Ypsilanti Office) or Wendy Alton (Ann Arbor Office), or visit us at PSEDlaw.com

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#Super Lawyers #Super Lawyers 2014

Common Landlord-Tenant Disputes Part 2: Late Fees & Repairs

This blog post is the second of two parts that address the three of the topics that clients most frequently seek advice on in the residential landlord/tenant realm. Part 1 addressed what is commonly referred to as the Security Deposit Statute, and can be accessed here. This post will address the following: (1) late fees that a landlord can lawfully charge a residential tenant; and, (2) when a landlord is required to make repairs.

Late Fees:

First, in order for a landlord to charge a late fee due to late rental payments, there must be a provision included in the lease agreement that specifies the amount of the fee, and when it will be assessed. If a lease agreement does not specify how and when a late fee will be charged, a landlord should not attempt to charge one.

However, it is well settled law in Michigan that parties to a contract can agree in advance to a set amount that will be paid in the event of a breach. Accordingly, a residential lease that requires a tenant to pay a late fee is enforceable, but, the amount charged must be reasonable.

There is no bright-line rule that will answer the question of whether or not a late fee is reasonable. However, courts require that there be a relationship between the fee, and the damage caused by the late payment to the landlord. A late fee is appropriate, but it must align with the actual damages a landlord suffers as a result of the late payment.

A landlord will likely have costs associated with trying to enforce the late payment, such as preparing and sending demands for possession, or administrative costs related to extra accounting. Therefore, to determine if a late fee is reasonable ask the following question: Is the fee a reasonable assessment of how much if will cost the landlord to take steps to obtain the rent? If so, the fee is likely enforceable.

Repairs:

The law in Michigan requires residential landlords to maintain rental properties in reasonable repair, fit for all intended uses, and to comply with the health and safety laws where the premises are located. A landlord bears this responsibility regardless of whether or not it is expressly spelled out in the lease. A landlord would likely be required to make repairs to a broken hot water heater, malfunctioning locks on exterior doors, flooding, and leaks in a roof. This list is by no means exhaustive, but should provide a sense of the types of repairs a landlord is accountable for.

A landlord is expected to keep a rental property in reasonable repair, and a tenant is required to make timely rental payments. However, these obligations are not independent of one another. If a landlord fails to maintain premises so as to be fit for the intended use, a tenant will be within their rights to withhold rent. Therefore, if at any point in the course of a tenancy a required repair arises, even if it is subsequent to a tenant falling behind on rent, the landlord is required to make the repair. A landlord should never refuse to make a required repair for any reason. A landlord will encounter serious difficulty if they seek to evict a tenant who is behind on rent if the tenant can show that the landlord has failed to maintain the premises in accordance with the law.

The attorneys at Pear Sperling Eggan & Daniels, P.C. are experienced in handling disputes arising out of residential and commercial leases. PSED Law represents both landlords and tenants. If you have questions about your rights under a lease agreement, or need advice about drafting or negotiating the terms of a lease, please call PSED Law at our Ypsilanti office at 734-483-3626, or our Ann Arbor location at 734-665-4441.

#Landlord-Tenant Disputes

PSED Law Receives Award from Ann Arbor/Ypsilanti Regional Chamber

PSED Law was honored as a 2014 Business-Education Honor Roll Partner by the Ann Arbor/Ypsilanti Regional Chamber (A2Y Chamber). The A2Y Chamber, a community organization made up of local businesses, works to connect its members professionally, and to improve the local economy and the quality of life for Ann Arbor & Ypsilanti residents.

The Business-Education Honor Roll is an A2Y Chamber program that recognizes Chamber members that have worked to improve the local educational community by: releasing employees for paid work to volunteer in local schools, host students in their company through job-shadowing or internship programs, or contributing money to local schools.

#2014 Business-Education Honor Roll Partner #Business-Education Honor Roll

Andrew M. Eggan Awarded Five Star Estate Planning Professional Award

Pear Sperling Eggan & Daniels is proud to announce that Andrew M. Eggan, a partner in the firm’s Ypsilanti office, has been awarded the 2014 Detroit Five Star Estate Planning Professional Award. Metro-Detroit publications Hour Magazine and DBusiness compiled the lists of attorneys based on 10 objective pieces of eligibility requirements and evaluation criteria. The prestigious Five Star Award did not accept self-nominations, and only 4 percent of all estate planning attorneys that qualified for consideration in the Metro-Detroit area were named to the list.

Andy is currently in his 39th year of practice; his long and successful career has focused on estate planning and probate issues, real estate matters, and counseling various business entities and non-profit groups. He is currently on the Board of Trustees at Clearly University, a member of the Ypsilanti Area Community Fund Advisory Board, the Washtenaw Estate Planning Council, and the State Bar of Michigan Probate and Estate Planning Section. In addition, Andy works as the Co-Washtenaw County Public Administrator, a position that he was appointed to by the Michigan Attorney General’s office.

For more information about Pear Sperling Eggan & Daniels, P.C. visit our website at PSEDlaw.com, and to speak with Andy Eggan about estate planning issues, please call the firm’s Ypsilanti office at 734-483-3626.

#Five Star Estate Planning Professional Award #2014 Detroit Five Star Estate Planning Professional Award

Divorce Downsides and Aftermath

Getting a divorce isn’t easy at all. Whoever, makes the call of cutting off the knot that binds husband and wife, it would still be difficult for both sides. It would be like getting back to step one when you’re already in step 8. It would cause an unbearable pain to kids seeing their family wreck apart. Starting over, living each day and growing up without the head of the family or the mother maybe. Emotional pain which may result in rebellious actions among teenagers.

Getting a divorce is costly most especially if it has to be taken into family court.

Family Law Costs | Entitlement to Costs | Liability to Pay Opposing …

http://harrisonpensa.com

Thu, 20 Feb 2014 14:26:57 GMT

The issue of costs is one that you should consider before commencing a proceeding infamily court and, that should be discussed with your lawyer at your initial consultation appointment. You realize that lawyers are expensive and, that …

Whoever takes the first move of filing up a divorce, think about it several folds. Don’t just think of your own sake, think of your kids who will suffer most. Think about the promises you made way back on your wedding day. Divorce is not always the solution. Lift up everything. Talk to your wife/husband. Every single problem can be solved in calm and open communication.

#Divorce #Family Law

Oil & Gas Leases in Michigan

Many oil and gas producers have their land surveyors out looking for properties to seismically survey in Michigan now that hydraulic fracturing, otherwise known as “fracking,” has become a profitable way to extract natural gas and petroleum products from the ground. Fracking is a process whereby hundreds of thousands of gallons, and sometimes millions of gallons, of water are injected into a well over time to fracture the rock formations underground. In some cases, this water is aided with a small amount of chemicals to speed up the breakdown process and gather the oil and gas quicker. This process allows the natural gas and petroleum products to seep out, which is then collected and transported off the property and refined.

Oil and gas was trapped in underground formations in Michigan a long time ago. It is only now that the oil and gas companies have found that they can make a profit by fracking the wells to remove it. To get access to the oil and gas under your property, the oil and gas producers hire land surveyors to go out to areas where a rock formation is known to hold oil and gas. These surveyors ask the owners of the property for permission to survey the formation under the property to determine whether the property has access to a useful formation. Typically, the survey is a seismic survey, but other surveys are also common. The land survey company will have the property owner sign a document allowing it access to complete the survey, and generally, the company requests that the property owner also sign an oil and gas lease for the rights to any oil and gas found under the property at the same time.

If you have been approached by a land survey company, or an oil and gas company, for the purpose of surveying your land to determine whether oil or gas formations exist under the property, you should look for an attorney to help you review the documents, including the lease. Oil and gas leases are enforceable documents, and you do not want to get stuck with a five or ten year contract that does not consider your best interests. There are many issues that can arise in the use of an oil and gas lease, including the use of water, damages to the property, and payment, just to name a few. An attorney can help you understand the lease and assist you in understanding your rights and obligations.

For more information or to speak with us about your oil and gas lease, please contact us in Ann Arbor at 734-665-4441, and in Ypsilanti at 734-483-3626. To learn more about Pear Sperling Eggan & Daniels, P.C., or any of our attorneys, please visit us athttp://www.psedlaw.com.

#Oil & Gas Leases

Insurance! It’s Not Just For Cars

When named as a defendant in a lawsuit, the natural instinct of most people is to panic or despair. Faced with the possibility of having a judgment entered against them and the equally daunting prospect of dealing with the legal system and having to pay for an attorney even if they win, most people understandably worry about what will happen to them, their family, and their overall well-being. Even a relatively minor civil lawsuit can cost thousands of dollars to defend before a judgment or settlement is even reached. This can be debilitating to many individuals and families, especially with the economy in a continued slump. What many people do not realize is that in many instances, they may already have the means to protect themselves.

Many homeowner’s insurance and renter’s insurance policies have a general liability provision that can provide liability coverage in the event of a personal injury or general tort claim. These policies cover legal costs and liabilities up to a certain level. The coverage will often apply to any tort claim filed against the policy holder, though each policy will have different limitations and exclusions of coverage. If the insurance carrier agrees to provide coverage it can mean the difference between financial stability and financial ruin, saving the insured thousands of dollars.

One of the questions we ask every client who comes to usin these types of situations is whether they have filed a claim with their insurance carrier yet. Often people are not even aware that they may be covered; they simply assume that because their home was not damaged, or because an injury might not have occurred at their home, they are not covered. This is not always the case. At worst, the insurance carrier will review the matter and deny coverage. While that is never the answer you want to hear, it leaves you in no worse position than you were before the claim was submitted. In short, any downside to submitting a claim is minimal, while the potential benefits are considerable. For that reason alone, always remember to check with your insurance carrier if you are sued; the answer may save your family’s financial future.

For more information or to speak with us, please contact us in Ann Arbor at 734-665-4441, or in Ypsilanti at 734-483-3626. To learn more about Pear Sperling Eggan & Daniels, P.C., or any of our attorneys, please visit us at http://www.psedlaw.com.

#Insurance #Homeowner’s Insurance

Proof of Motivation Is Now Unnecessary in Michigan Whistleblower Cases

Under the Michigan Whistleblower’s Protection Act (“WPA”), an employer is subject to civil liability and penalties for discharging, threatening or otherwise discriminating against an employee because the employee reports or is about to report, a violation or suspected violation of a law, regulation or rule to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation. This means, a plaintiff in a WPA case is required to prove (1) he or she was engaged in a protected activity as provided under the act, (2) he or she suffered an adverse employment action, and (3) there is a causal connection between the protected activity and the adverse employment action.

While it has been long recognized by the Michigan courts that these are the three prongs required for a successful WPA case, there have been some Michigan casesin the past providing that a plaintiff is also required to prove that he or she engaged in that protected activity primarily for an altruistic purpose: to inform the public on matters of public concern, rather than for any personal vendetta. Recently, the Michigan Supreme Court issued an opinion clarifying that a plaintiff need not prove that his or her primary motivation was for the public good. Thus, it no longer matters why the plaintiff intended to blow the whistle, and whether it was for a good or bad reason. This allows more plaintiffs to prove their case without having to defend their intentions. This also allows more businesses to be subject to potential whistleblower cases.

The WPA has a very short statute of limitations. If you have been subject to an adverse employment action, or your business has been accused of participating in an adverse employment action, due to a whistleblowing activity, you should seek the advice of legal counsel as soon as you can.

For more information or to speak with us about your whistleblower issue, please contact us in Ann Arbor at 734-665-4441, or in Ypsilanti at 734-483-3626. To learn more about Pear Sperling Eggan & Daniels, P.C., or any of our attorneys, please visit us at www.psedlaw.com.

#Michigan Whistleblower’s Protection Act #Proof of Motivation #Whistleblower’s Protection Act

Common Landlord-Tenant Disputes Part 1: The Security Deposit

As attorneys who frequently handle disputes arising out of residential leases, the following are the three topics we are asked about most frequently by landlords and tenants:

Security deposit issues;

Late fees;

Repairs that the landlord must make.

Each of these issues will be covered in two separate blog posts, starting with the security deposit.

The Landlord and Tenant Relationships Act governs residential leases and tenancies in Michigan. Sections 2 through 14 of the Act are commonly referred to as the “Security Deposit Statute.” Generally, a security deposit can only be used for damages that result from conduct not reasonably expected during a tenancy, or for unpaid rent.

Two key provisions of the “Security Deposit Statute” are Section 9 and Section 13. Section 9 requires a landlord to send an itemized list of damages to a tenant within 30 days of the termination of tenancy, which must include specific statutory language informing the tenant that they must respond to the notice within 7 days, otherwise the tenant will forfeit the amount of claimed damages. Failure by a landlord to send an itemized list of damages, with the proper notice, waives any claim by the landlord for the cost of repairs, and the landlord will have to return the security deposit in full.

However, according to Section 13 of the “Security Deposit Statute,” within 45 days after a tenant vacates a property, a landlord is able to file an action for money damages, which could include damage to a rental property. That being said, a landlord cannot retain any of the security deposit unless one of the following requirements is met:

Landlord has obtained a money judgment for the disputed amount;

Tenant has failed to provide the landlord with a forwarding address;

Tenant failed to respond to landlord’s notice of damages within 7 days as required by Section 9;

The Parties have agreed in writing to the disposition of the balance of the security deposit; or,

The amount claimed is based on unpaid rent.

If a landlord fails to fully comply with Section 13 of the “Security Deposit Statute,” illegally withholding a portion of a security deposit, the court will view it as a waiver of all claimed damages and the court could require a landlord pay the tenant double the security deposit amount. Needless to say, this is an important law for all tenants and landlords to understand.

The attorneys at Pear Sperling Eggan & Daniels, P.C. are experienced in handling disputes arising out residential and commercial leases. PSED Law represents both landlords and tenants. If you have questions about your rights under a lease agreement please call PSED Law at our Ypsilanti office at 734-483-3626, or our Ann Arbor location at 734-665-4441.

#Landlord-Tenant Disputes #Security Deposit Issues #Security Deposit Statute

Social Media and Trademarks: Understanding Your Rights in a Digital Age

The popularity of various social media applications, such as Facebook and Twitter, has grown at a rate that far exceeds the ability of courts and the legislature to keep up with regulations and their interpretation. A user on any one of these applications is able to post a comment, a picture, a link or logo within seconds of its creation, becoming a potential advertiser for their own company or for another business entity. At the same time, such a posting may open the user up to liability for trademark infringement, misuse or other causes of action.

Of particular importance at this intersection of social advertising and trademark law is the rights of individuals or small businesses with common law trademarks. In the U.S., trademark rights are created by use, not by an official registration. Any trademarkis a name, slogan, logo or any other indicator that a particular source provides a specific good or service. A common law trademark is one that is used and continues to be used in commerce without ever filing for official registration. Determining who has the legal right to use the mark is a question of priority. Without registration, the trademark owner may be able to enforce the mark against anyone using the same or a confusingly similar mark in connection with the same goods or services in the territory in which the mark is used.

Many small businesses have developed common law trademark rights through names or logos and have not had the mark registered, most often because they do not qualify for federal registration. With the growth of social media as a marketing tool, these businesses create Facebook pages and Twitter accounts, displaying those names and logos. Increasingly, these local businesses are being forced to abandon those marks or risk losing their social media accounts because a larger, national business has threatened them with legal action, even if the national business was not using the mark first.

A federal registration will help any business create solid, enforceable trademark rights. However, a federal registration does not always allow the owner to terminate the earlier use of a common law trademark. Facebook, Twitter and other social media applications are world-wide and cannot limit access to certain geographic territories because of federal or common law trademark rights. If you have had your Facebook page or Twitter account removed because of an alleged trademark violation, you may be able to have your page restored. Although courts are just starting to hear these cases, there are decisions and legal precedents that may support you if you have encountered these circumstances.

The combination of national advertising, social media platforms and traditional trademark principles create technical and very complex legal issues. Knowing your rights in this area is critical to your established goodwill and your continued business success.

For more information or to speak with us about your legal issue, please contact us in Ann Arbor at 734-665-4441, and in Ypsilanti at 734-483-3626. To learn more about Pear Sperling Eggan & Daniels, P.C., or any of our attorneys, please visit us at www.psedlaw.com.

#Trademark Infringement #Trademark Law #Trademark rights

Good News for Business Clients: Business Courts are Finally Here!

On July 1, 2013, seventeen Michigan counties will begin accepting filings in their Business Court divisions. Late last year, the Michigan Legislature passed a law requiring any Michigan circuit court with three or more judges to begin a docket for a business court to deal with business or commercial disputes. These cases will include any dispute involving a business enterprise. A business enterprise is defined by the law as any of the following: a sole proprietorship, partnership, limited partnership, joint venture, limited liability company, limited liability partnership, for-profit or not-for-profit corporation or professional corporation, business trust, real estate investment trust, or any other entity in which a business may lawfully be conducted in the jurisdiction in which the business is being conducted. However, business enterprise does not include an ecclesiastical or religious organization. However, certain claims involving other nonprofit organizations can be heard in the business court if they meet the requirements.

Business or commercial disputes include, but are not limited to, the following types of actions:

(a) Those involving information technology, software, or website development, maintenance, or hosting.

(b) Those involving the internal organization of business entities and the rights or obligations of shareholders, partners, members, owners, officers, directors, or managers.

(c) Those arising out of contractual agreements or other business dealings, including licensing, trade secret, intellectual property, antitrust, securities, non-compete, non-solicitation, and confidentiality agreements if all available administrative remedies are completely exhausted.

(d) Those arising out of commercial transactions, including commercial bank transactions.

(e) Those arising out of business or commercial insurance policies.

(f) Those involving commercial real property.

However, disputes involving employee terminations and civil rights cases in those contexts, as well as workers compensation are generally exempted from the business court’s jurisdiction, with limited exception.

The seventeen counties subject to the law and the July 1, 2013, deadline are: Wayne, Washtenaw, St. Clair, Oakland, Monroe, Macomb, Genesee, Jackson, Kalamazoo, Muskegon, Kent, Ottawa, Ingham, Calhoun, Berrien, Saginaw and Bay. Other counties are free to add a business court if they choose.

For more information or to speak with us about your business law issue, please contact us in Ann Arbor at 734-665-4441, and in Ypsilanti at 734-483-3626. To learn more about Pear Sperling Eggan & Daniels, P.C., or any of our attorneys, please visit us at www.psedlaw.com.

#Contractual Agreements #Michigan Legislature #Business or Commercial Disputes #Business Courts #Business Court Divisions

The U.S. Patent System in Your Own Backyard

Think you have the next great idea? Have you improved an existing technology by making it easier or more efficient? If so, then you may be entitled to protect your idea by obtaining a patent. The first ever USPTO satellite office in Detroit is open and operating, and PSED Law would like to help you bring your invention to it. The high number of engineers and research professionals in the area played a part in the decision to bring the USPTO to Detroit and it is certainly a welcomed addition to Southeastern Michigan.

In the U.S., a patent is a way to prevent others from using, making, selling, offering to sell or importing your invention in the U.S for a limited time. You are granted this right for 20 years from the date you file your application.

To begin the process of obtaining a patent, you must file an application with the United States Patent and Trademark Office (USPTO). These applications are very technical and must meet several requirements. Among other things, the application includes a specification, which details in very clear, concise and exact terms how to make or use the invention so that someone else will be able to make or use your idea after reading it. An application must also include drawings to further define and illustrate the invention. Lastly, an application must include at least one claim. A claim is what features or elements the inventor regards as entitled to protection.

Once your application is complete, it is filed with the USPTO where it will be examined by someone with a background that matches the field of your invention. The examiner will perform a comprehensive, world-wide search to determine if your invention is new, useful and is not obvious in light of previous inventions. After the examiner has completed the search, the applicant has an opportunity to respond to any rejections or reasons for not allowing the claims. If the examiner and the applicant agree that some or all of the claims are allowed, then the USPTO will grant you a patent protecting those claims.

The entire patent process, from filing an application to receiving an issued patent, varies in time according to several factors. The time a particular application will be pending at the USPTO depends on the complexity of the subject matter of the invention, the backlog and number of examiners at the USPTO, etc. Applicants will usually receive the first Office Action within 12-15 months and most patents will be granted between 2-6 years from the filing date.

Patent protection is a very valuable asset and provides the inventor with an enforceable right for a relatively long period of time. The process is very technical and failing to take the proper precautions can result in a potentially lucrative idea being deprived of some, if not all, of its protection. Consulting with a registered patent attorney before starting the application process is recommended to give you the best chance of receiving a quality patent. PSED Law’s own Todd Chawansky is a registered patent attorney who can assist you with your patent application.

#Patent System #Patent Law #Patent Attorney #Patent Lawyer #USPTO #United States Patent and Trademark Office

Selecting and Registering a Trademark

Any business, whether emerging or established and looking to expand, should consider one or more trademarks to help consumers identify the source of certain goods or services. Regardless of any formal registration, trademark rights are created through their use in commerce. Therefore, it is possible for different entities to obtain trademark rights in the same trademark for different goods or services or in different geographic locations. Although state or federal registration is not required to obtain an interest in a trademark, it does provide some additional benefits.

In selecting a trademark, the strength or distinctiveness of the mark is critical to the mark’s overall level of protection. Generally, the more distinctive the mark, the easier it is to register and prevent the use of that same or similar mark by another. The strength of a trademark depends on the level of distinctiveness. Fanciful marks are often considered the strongest, followed by arbitrary marks, then suggestive marks and finally descriptive marks. Merely descriptive marks are typically not entitled to registration on their own, but may acquire distinctiveness over time. Generic terms are not entitled to any trademark protection.

As noted above, a trademark is created through its use in commerce and registration is not necessary to have rights in a trademark. Using an unregistered trademark gives the user common law trademark rights in the geographical area in which the mark is used, and slightly beyond in some cases. If the mark is being used in interstate commerce, federal registration may be possible. If the mark is only used within one state, state registration may be available.

Whether a mark is available for use and whether it can be registered are different inquires that need to be made. Before an entity chooses a trademark and begins using it in commerce, it is always recommended to obtain a clearance opinion regarding the proposed mark. A detailed search report will limit legal liability, as well as prevent wasting time, development and money on a mark that may already be in use by another, thus possibly requiring the entity to change its mark after years of consumer association and goodwill.

Trademarks are arguably the most important asset a business can have. A strong, distinctive trademark is essential when trying to grow a customer base and become recognized as the source of a particular good or service. As long as they continue to be used in commerce, trademarks can last in perpetuity. Making an initial investment in selecting and securing your trademark will go a long way in successfully growing and maintaining your business.

#Business Trademarks #Trademarks #Trademark #Trademark rights

Nudes, Dudes, and Zoning Disputes

Anyone who has participated in a local zoning controversy—whether as a property owner desiring to alter the use of a parcel, a nearby property owner displeased with the proposed change, or a governmental agency (council, planning commission, zoning board of appeals) required to resolve the issue—knows full well that these matters can arouse strong emotions. Indeed, a whole vocabulary of clever acronyms has emerged to characterize attitudes frequently encountered in these situations, such as NIMBY (not in my backyard), NIMTOO (not in my term of office), BANANA (build absolutely nothing anywhere near anyone), DUDE (developer under delusions of entitlement), and NUDE (neighborhood under delusions of entitlement). Litigation may result from these disputes, and the threat of litigation is often made whether or not a party intends to follow through. However, an important point to keep in mind is this: unless a municipality clearly violates the Constitution or a statute in making a land use decision, or clearly abuses its discretion, a court is likely to uphold the municipal decision. Hence, parties involved in these matters would be well advised to focus on how best to present and explain their positions, rather than on how a court might eventually bail them out.

A number of things are worth the attention of both the property owner wishing to make a change and nearby property owners opposed to the change:

Remember that those on the other side feel as strongly as you do, and may have legitimate constitutional, legal, and economic interests at stake. Consider communicating with those people in advance of seeking relief from the municipality (you may even be required by ordinance to do so), and consider making concessions which do not seriously undermine your position but which may enable the matter to be resolved with minimum unnecessary expenditure of time, money, and stress.

Carefully review the statutes, ordinances, municipal plans, and other development standards which will provide the framework for the municipal decision, and consider discussing the matter with the municipality’s professional planning staff to determine whether there are interpretations relevant to those governing documents, or proposed changes to those documents under consideration, which might impact the municipality’s decision.

Prepare thoroughly for any presentation to a decision-making body, considering such questions as: Who should speak? What documents or other exhibits should be provided? Would any expert testimony be helpful? Can community interests be addressed so that the presentation will not be viewed as merely an expression of narrow economic concerns? How can the presentation be orchestrated so as to avoid undue repetition or personal attack?

From the standpoint of the municipal decision-making bodies, attention must be paid to a number of other matters:

All relevant procedures, must be followed, such as providing all notices required by statute and ordinance, and conducting all public hearings which may be required.

Adequate rationale should be provided for all decisions, with an indication of how all relevant standards have been considered.

Compliance with these suggestions will of course not guarantee complete satisfaction by all parties with the decision reached, but may at least help assure that all important concerns have been fairly and adequately addressed.

Pear Sperling attorneys have considerable experience in dealing with municipal government matters, both with regard to zoning and land use and many other topics, and have represented both municipal agencies and private parties in resolving such matters. For more information or to speak with us about your legal issue, please contact us in Ann Arbor at 734-665-4441, and in Ypsilanti at 734-483-3626. To learn more about Pear Sperling Eggan & Daniels, P.C., or any of our attorneys, please visit us at http://www.psedlaw.com.

#Local zoning #BANANA #DUDE #NIMBY #NIMTOO #Litigation

Open and Obvious Defense in Personal Injury Cases

Business owners owe a reasonable duty of care to protect customers from unreasonable risks of harm caused by hazardous conditions on a business premises. If the operator of a business fails to comply with this duty and a hazardous condition causes a customer to suffer an injury, that customer may have a personal injury claim against the premises owner. However, it can be very difficult to succeed on a premises liability claim in Michigan because of the “open and obvious” defense.

In Michigan, if a danger is known to a business invitee or the danger is “open and obvious” a business owner does not owe the customer a duty to protect from or warn the customer of the condition. Whether a danger is open and obvious depends on whether it would have been discovered by casual inspection. Michigan courts have held that the following can be open and obvious hazards: large potholes, an unmarked step, icy sidewalk conditions, and puddles of water.

However, in two instances a property owner will be foreclosed from arguing they did not need to protect customers from an open and obvious condition: when the hazard is unreasonably dangerous, or when the hazard is effectively unavoidable. An example of an open and obvious condition that is effectively unavoidable is water covering the floor at the only exit of a business. An example of an unreasonably dangerous risk, one that gives rise to a uniquely high likelihood of harm, is a 30-foot deep pit in the parking lot of a business.

PSED Law recently secured a substantial settlement for a client that was injured in a trip-and-fall accident. Our elderly female client tripped and fell over electrical cords haphazardly strewn across a walkway at a campground. The cords were unmarked and unlit, and the walkway was intended for use at night. The property owner moved for dismissal on the grounds that the electrical cords were open and obvious. PSED defeated this trial court motion by demonstrating that the cords were not open and obvious, because they were unlit and the fall occurred at night, that the cords were effectively unavoidable because there was no alternative route back to our client’s campsite, and that the cords caused an unreasonably high risk of harm. The open and obvious defense provides substantial protection for premises owners, but it isn’t impossible to overcome.

Premises liability actions require careful planning, a thorough understanding of the law, and experienced attorneys. We offer these skills to our clients. PSED Law has achieved success in many other trip and fall and other personal injury actions.

If you’ve been injured in a slip-and-fall, a trip-and-fall, or any other type of accident and you need an experienced and effective advocate to protect your rights, please contact us in Ypsilanti at 734-483-3626, and in Ann Arbor at 734-665-4441. To learn more about Pear Sperling Eggan & Daniels, P.C., or any of our attorneys, please visit us at www.psedlaw.com.

#personal injury #personal injury claims #personal injury actions

Organizational Crimes of Opportunity

It’s all over but the sentencing….

The Kwame Kilpatrick saga will soon reach its sad, yet gratifying end. After systematically abusing the public trust while in office as mayor of Detroit, Mr. Kilpatrick will likely spend a good portion of the rest of his life in federal prison. Politicians are often cursed by the same attributes that lead them to seek office in the first place. Strong personality, ambition, and ego make for confident speakers and effective leaders, but the flip side of these “attributes” often rears their ugly head in office. Kilpatrick’s need for personal gratification and sense of entitlement ultimately took precedence over the needs of his constituents.

Despite the abundant amounts of incriminating text messages and other evidence, some of those constituents still support their embattled former mayor. They wonder aloud if the government would have been so vigorous in its prosecution if Mr. Kilpatrick were Caucasian. Recent prosecutions of former Illinois Governor Rod Blagojevich and former Vice-Presidential Candidate John Edwards, however, seem to contradict these claims of racial motivation.

Since its inception in 1970, prosecutors have used the Racketeer Influenced and Corrupt Organizations Act (RICO) in a variety of ways. Originally enacted to combat the growing presence of the Mafia, the act has been broadly applied to public corruption, corporations, and even churches.

In criminal law, some offenses are characterized as “crimes of opportunity.” An obvious example would be a passerby stealing an unattended purse on a park bench. Organizations provide its leaders with an equally obvious “opportunity” for criminality. When powerful organizations are used to commit crimes, the damage is often devastating. The financial costs of the lengthy and complicated Kilpatrick prosecution will be immense, but worth it. The guilty verdicts restore a measure faith in the justice system, and serve as a warning to future bad actors.

#crimes of opportunity

Soybeans and the U.S. Supreme Court

On Tuesday, February 19, 2013, the United States Supreme Court heard oral arguments in the case of Bowman v. Monsanto, a very important case for U.S. patent law and just about every research and development institution in the country.

The case centers on Monsanto’s patented soybeans that have been genetically modified to be resistant to glyphosate, an herbicide. According to the statement of facts filed in the case, Bowman, a farmer, bought the soybeans from a third party. This third party, an original farmer under a contract with Monsanto, was not allowed to replant the soybeans. According to the doctrine of patent exhaustion, Monsanto’s patents cannot exert control over the use, destruction, or distribution of those soybeans once they are sold. Despite the prohibition on replanting, Bowman used the seeds to grow a second crop of soybeans, like farmers often do. However, because soybeans self-fertilize, soybeans from the second and subsequent generations are genetically identical to the first generation. Therefore, the subsequent crops are still within the protection of Monsanto’s patents.

Although this case is only about seeds, the decision will certainly have an impact in other areas as the technology behind genetically modified foods and self-replication becomes more prevalent in the future. The decision is expected later this summer.

#patent law

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