Attorneys Explain Significant Changes to FOIA (Video)

FOIA Powerpoint CoverSignificant changes to Michigan’s Freedom of Information Act (FOIA) take effect July 1, 2015. It is important that public bodies prepare and implement the new FOIA policies and guidelines.

CMDA attorneys Haider Kazim and Andrew Brege have prepared a video that briefly explains some of the new statutory rules and outline some of the changes public bodies need to make in order to comply with FOIA and avoid civil fines and penalties.

Additionally, Recent Changes to the Freedom of Information Act May Impact Local Communities is an informative and detailed article written by Andrew Brege.

If you have any questions regarding FOIA, please contact:

Haider Kazim: (231) 922-1888 or hkazim@cmda-law.com
Andrew Brege: (616) 975-7470 or abrege@cmda-law.com

Appellate Attorneys: A Valuable Part of the Litigation Team

daleyAppellate advocacy is a distinct and specialized area of practice that draws upon talents and skills very different from trial skills. Appeals tend to be research intensive and require different skills than a trial attorney. Trials typically take place before juries, who determine factual issues. In contrast, appeals require the appellate attorney to make intellectual legal arguments to a panel of judges solely on the basis of the record created in the trial court and according to established or developing law. For read Differences between Trial and Appellate Courts for additional differences between the courts.

Most attorneys and clients do not think to involve an appellate attorney until after the case has been won or lost and an appeal is inevitable. In many cases, however, the case has already been damaged or it is too late to do anything about the error. Therefore, involving an appellate attorney in the early stages of a case is important and worthwhile for several reasons:

Fresh Perspective

After living with a case for months or even years, a trial attorney is often entrenched in the facts, the arguments, and the theme of the case. An appellate attorney brings a fresh pair of eyes to the lawsuit and can provide a more detached evaluation of the case. They can assist with formulating additional legal theories or defenses, adapting or distinguishing the law, and identifying weaknesses in your case as well as your opponent’s case.

Knowledge of the Law and Trends in the Law

Trial attorneys with active dockets usually do not have the time to closely follow case law or judicial trends. Appellate attorneys, however, spend a great deal of time reading the latest opinions from both state and federal courts of appeals, and they actually enjoy doing it! Therefore, appellate attorneys have a comprehensive understanding of established precedent, patterns of appellate decisions, and developing issues in the appellate courts.

Preservation of the Record and Motion Practice

In reviewing an appeal, the appellate court is generally limited to the contents of the record below. Even the most experienced and talented trial attorneys may not preserve error or establish the necessary record for appeal. This is not because of any lack of skill. Rather, it stems from the different expertise of trial attorneys and appellate attorneys: trial attorneys excel in convincing juries, while appellate attorneys excel in convincing courts.

As a result, it is good practice to get an appellate attorney involved in the drafting of dispositive motions (those that can end the case prior to trial), as well as pre-trial and post-trial motions. Good, clear, persuasive writing takes skill and a lot of time – time that busy trial lawyers do not always have. In addition, serious errors can occur at this stage, and if it is turned over to an appellate attorney after the motion has been ruled on, it may be too late to pursue an effective appeal. Theories not raised before the lower court cannot be asserted for the first time on appeal. Therefore, if you fail to raise a theory below, you will have handicapped the appellate attorney, thus preventing him or her from raising what might have been strong grounds for the appeal.

Research

One of the greatest advantages an appellate attorney has is excellent research and writing skills, because they devote time to these skills on a daily basis. At the trial court and appellate levels, effective research skills are vitally important because finding the right precedent and using it effectively can mean the difference between winning and losing a case.

In addition, because of their extensive practice in researching legal issues, appellate attorneys are an invaluable resource to call upon for legal opinions on constitutional, statutory, and other issues to guide client conduct. Appellate attorneys can work with municipal, business, and individual clients to develop strategies for dealing with potential legal issues or avoiding litigation all together.

CMDA’s Appellate Advocacy Group

Unlike many law firm appellate practices, which are made up of lawyers who only occasionally handle appeals, CMDA’s appellate advocacy group encompasses full-time appellate practitioners who specialize in handling litigation in the appellate courts.

CMDA’s appellate attorneys handle appeals before the United States Supreme Court, U.S. Court of Appeals for the Sixth Circuit, Michigan Supreme Court, and Michigan Court of Appeals. In addition, the Appellate Advocacy Group works closely with clients and trial counsel to devise cost-effective litigation strategies, conduct legal research, prepare and argue important pre-trial and post-trial motions, and ensure that issues are preserved for appeal.

Our appellate attorneys are also skilled at preparing and filing amicus (friend of the court) briefs on behalf of clients who are not parties to an appeal, but wish to be heard on an important legal issue. The preparation of these briefs requires not only a keen understanding of the pertinent legal issues, but a working knowledge of the client’s business and the particular industry involved.

Working together, trial and appellate attorneys can effectively represent their clients and significantly increase the odds of achieving favorable results for those clients. Adding an appellate attorney to a litigation team is a good, and often more efficient, way for the client and the trial attorneys to get, and stay, ahead. This team approach to litigation provides the client with the best possible representation.

Karen M. Daley is an attorney in our Livonia office and is the head of the Firm’s appellate practice group. She concentrates her practice on appellate law, municipal law, and probate law. She may be reached at (734) 261-2400 or kdaley@cmda-law.com.

Litigation: How to be Better Prepared

Curlew, DougUnder the American legal system, there is no realm of human activity that fails to spawn litigation. The financial cost of a potential judgment is easily recognized. Less understood is the cost of time, energy, and resources (financial and human) of the litigation process itself. Even the defendant who avoids judgment by “winning” his case will still have expended resources that the law generally affords no avenue to recover.

The primary protection against both a potential judgment and the cost of litigation is insurance. Every individual, organization, and enterprise should obtain insurance coverage adequate to encompass both the scope of their activities and the potential dollar amount of liabilities that might arise from those activities. Be attentive to your policy terms and ask questions of your insurance agent. Ultimately, it is the responsibility of you as the insured, not your insurer, to choose the correct coverage.

Even with insurance, however, other preventative steps should be taken. Being attentive to avoid and remedy liability risks in advance is an obvious measure. When potential liability incidents do occur, however, other steps will aid your defense counsel to protect your interests.

First, be alert to incidents that may result in legal claims against you or your enterprise. If these occur, do not wait for a claim to be filed. Notify your insurer and your attorney immediately.

Second, retaining complete information about any incident posing the potential for litigation is critical. This is true even for information that may impact your defense in a negative manner. There are legal penalties for destruction of evidence, even in civil cases. More importantly, your defense attorney needs to know as many facts about the incident as possible and as soon as possible, in order to best prepare your defense. Relevant records kept in the general course of business, together with any special reports of a particular incident, should be kept and provided to defense counsel as soon as possible. The same is true for any video, photographic, or audio records.

Any participants in an incident, together with non-participating witnesses, should be identified whenever possible. Documentation of their observations is best obtained early, given the frailties of human memory. This should be done even before any actual claim is filed against you. Again, these should be provided to defense counsel as quickly as possible.

Finally, recognize that your attorney will need continued communication and cooperation through the litigation process. The best defense is proactive, not reactive. The efforts of your attorney to develop a general strategy for your defense and to pursue specific tactics in support of that strategy are dependent upon your cooperation in promptly providing information and evidentiary materials. Moreover, the legal system imposes deadlines for certain activities required of parties to litigation. Prompt response to requests from your attorney for information is critical to meeting these deadlines. Lines of communication must be available and open at all times.

Litigation may prove unavoidable. It always entails unwelcome costs and burdens. These can be reduced, however, if you are prepared.

Douglas Curlew is an attorney in our Livonia office where he concentrates his practice on appellate law, premises liability, and insurance law. He may be reached at (734) 261-2400 or dcurlew@cmda-law.com.

Differences between Trial and Appellate Courts

daleyThere are three major differences between trial courts and appellate courts: (1) witnesses and exhibits, (2) judges, and (3) juries.

Witnesses and Exhibits

A trial court is the court where a case starts. In the trial court, both sides present evidence to show their version of what happened. Most of the evidence presented in the trial court comes from witnesses and exhibits, which are items and documents connected to the case. However, in the appellate courts, there are no witnesses, and the only evidence that can be presented is that which was introduced in the trial court.

Judges

The second difference between the two courts is the judges. In trial courts, there is one judge in the courtroom. That judge decides what evidence can and cannot be used and often decides the outcome of the case. In Michigan, appeals are decided by more than one judge. In the Michigan Court of Appeals, three judges hear the case, while in the Michigan Supreme Court, there are nine judges (called justices) that hear each case.

Juries

The last major difference between the trial courts and the appellate courts is the role of the jury. A jury is sometimes used in trial courts to help decide the case. In a criminal trial, the jury decides whether a person is guilty or not guilty. In a civil trial, the jury decides whether a person is liable (legally responsible for damages) or not liable. However, there is no jury in the appellate courts. Appellate judges determine the outcome of all appeals.

A big misunderstanding about the appellate courts is that they simply rehear the case over again. The truth is that appellate courts do not rehear the facts of the case. Appellate courts focus on questions of law, not on questions of facts like the trial courts. The appellate judges want to know whether the law was applied accurately. An appellate court will overrule a trial court decision only if an important legal error was made in the trial court. In some cases, the appellate court judges might believe the outcome of the trial court should have been different, but if no legal errors were made, they will not overrule the lower court. The appellate judges make their decisions based only on legal arguments of how the law should be applied and interpreted.

Karen M. Daley is an attorney in our Livonia office and is the head of the Firm’s appellate practice group. She concentrates her practice on appellate law, municipal law, and probate law. She may be reached at (734) 261-2400 or kdaley@cmda-law.com.

LEGAL UPDATE: HOW RECENT CHANGES TO PERIODIC GARNISHMENTS IN MICHIGAN AFFECT CONDOMINIUM COLLECTION PRACTICES

Hands of two men counting, giving and taking dollars (Count money)The Board of Directors for condominium associations are often faced with delinquent co-owners who fail to pay assessments or fines.  Typically, the Association seeks voluntary compliance with the co-owner to obtain payment, but sometimes the Association is forced to pursue a judgment against the delinquent co-owner.  If that happens, the Association may pursue collection efforts against the co-owner, including but not limited to, a periodic garnishment sent to the co-owner’s employer.

On April 16, 2015, Michigan Governor Rick Snyder signed into law House Bill 4119 (the “Bill”), which affects periodic garnishments sent to employers.  The Bill amended MCL 600.4012 and made the following changes to periodic garnishments (typically wage garnishments), which became effective immediately:

  • Periodic garnishments will now remain in effect until the balance of the judgement is satisfied rather than having to renew the garnishment every 182 days under the previous provision. MCL 600.4012(1);
  • The garnishee fee has risen from $6.00 to $35.00. MCL 600.4012(12);
  • The periodic garnishment is not valid or enforceable unless it is served in accordance with the Michigan Court Rules. MCL 600.4012(4);
  • Although default judgments will still be allowed against an employer that fails to fully comply with a periodic garnishment, creditors will be required to give employers ample notification, via a multi-step process, when they are not in compliance. Employers will then have 28 days to rectify the situation and after entry of a default but prior to entry of a default judgment. MCL 600.4012(6)-(8); and
  • Even if a default judgment is entered against an employer, the employer will have 21 days after entry of the default judgment to petition the court to limit the amount of the judgment to the amount that would have been withheld if the garnishment had been in effect for 56 days, rather than entering the judgment for the full amount of the debt. MCL 600.4012(9)-(10).

How the Recent Changes Affect Your Association

The good news for condominium associations is that only a single writ of garnishment to the delinquent co-owner’s employer will be needed to pursue collection of the entire judgment.  This translates into savings to the Association whereby it will no longer incur additional attorney fees and costs in having to prepare and reissue supplemental writs of garnishment after the initial 182 day garnishment period expired with a balance still due and owing on the judgment.

However, there is a “but” to the recent amendment. Since priority of payment on the garnishment is established in the order that the garnishments are received—except for child support withholding orders and tax levies, which have priority over a creditor garnishment order regardless of when received—it is imperative for Board of Directors to act promptly in pursuing garnishments against a delinquent co-owner.  If another creditor files a wage garnishment first, the Association may have to wait years until the first garnishment is paid off.

How the New Law Changes the Employer’s Responsibility

Under the former garnishment provisions, if an employer failed to timely respond to a writ of garnishment, the Association’s attorney could pursue the employer for the full amount remaining due on the judgment set forth in the garnishment against the employee.  Thus, the old statute provided a hefty incentive for employers to comply with garnishment requests.  Under the new changes to the statute, the Michigan legislature made it much more difficult to hold an employer liable for failing to comply with a garnishment request related to its employees.  As described above, the Michigan legislature added numerous notice provisions, allowed the employer 28 days to rectify a default and further allowed an additional 21 days to petition the Court to limit the total amount.

How the New Law Changes a Former Collection Tactic

Under the former garnishment provisions, garnishments only lasted 182 days and could not be renewed until the 182 days had expired.  A clever collection attorney for the Association could establish writ priority by submitting the Association’s garnishment a couple of days prior to the expiration of the writ that had priority.  Thus, the Association would often obtain at least some funds during the year from the co-owner’s employer.   Regrettably, with the new amendment to Michigan’s statute, the Association may have to wait years to see a dime.  However, the Board will still want to direct its attorney to prepare and file the garnishment with the co-owner’s employer in order to establish priority since the employer will be required to begin paying the Association once any prior garnishments have been paid in full or withdrawn.

Conclusion

It is important for the Board of Directors for the Association to continually review the Association’s receivables and aggressively pursue the collection of any delinquent accounts.  With the recent changes to Michigan’s statute, any delays may impact how quickly the Association will obtain garnishment payments.

William Z. Kolobaric is an attorney with the law firm of Cummings, McClorey, Davis & Acho, P.L.C. where he focuses his practice on community association law, construction law, real estate law, creditor’s rights in bankruptcy and probate and estate planning. He has extensive experience in state and federal courts involving a wide scope of real estate, commercial litigation and creditor’s rights matters. He can be reached at (734) 261-2400 or wkolobaric@cmda-law.com. Please view The Michigan Community Association Law Blog at http://www.micondolaw.com for additional resources on Michigan Community Association Law.

Attorney and President of WCFLBA Creates and Presents at Annual Seminar

NutsandBoltsCarla Testani, a partner in our Livonia office and president of the Wayne County Family Law Bar Association, created and presented at the Bar Association’s annual seminar held on May 11, 2015. The seminar was held at the Coleman A. Young Municipal Center and included informational presentations on a variety of family law matters and a meet and greet with the Family Division Judges and Friends of the Court Referees.

Attorney Granted Summary Disposition in Favor of Homeowner’s Association

Kevin Hirzel_8x10@300Kevin Hirzel, a partner in our Livonia office, recently represented the board of directors of a homeowner’s association and was granted summary disposition in favor of his clients.

In this case plaintiff/counter-defendant, Lottivue Improvement Association, through a purported board of directors, claimed monetary damages in excess of $100,000 against defendants/counter-plaintiffs represented by Mr. Hirzel.

The plaintiff sought damages for lost dues, damages associated with the cancellation of an insurance policy, and additional damages in the form of legal fees for having to defend a lawsuit brought by a neighboring condominium association. They also sought declaratory relief that the defendants/counter-plaintiffs were not the legal board of directors of the Association.

Mr. Hirzel’s clients sought declaratory and injunctive relief requiring the Association to comply with its articles of incorporation, corporate bylaws, and the declaration of restrictions governing the Lottivue Subdivisions. They also sought declaratory and injunctive relief that the defendants were the legal board of directors of the Association, and that the purported board did not have authority to impose disproportionate assessments in violation of the governing documents. Additionally, Mr. Hirzel sought injunctive relief allowing them to inspect the Association’s books and records.

On February 23, 2015, the court ruled that the Association’s articles of incorporation, bylaws, and declaration of restrictions were enforceable. The court held that the documents could not be amended unless the terms of the Michigan Nonprofit Corporation Act were complied with. On March 27, 2015, the court dismissed plaintiff’s claims and ruled that they were ineligible to serve as directors of the Association as they were not members of the Association. The court also ruled that the purported board had no standing to bring any claims on behalf of the Association.

The court granted summary disposition in favor of the defendants/counter-plaintiffs and granted an injunction seating them as the legal board of directors of the Association. The court further held that the association was required to comply with its governing documents and invalidated an illegal assessment imposed by the purported board.

An article was written about this case in the May 6, 2015 Michigan Lawyer’s Weekly.

Is your Michigan Condominium Association prepared to handle a co-owner’s request to inspect its books and records?

binders

In Michigan, MCL 559.157 requires that the “…books, records, contracts, and financial statements concerning the administration and operation of the condominium” be available for examination by the co-owners at convenient times.  Most condominium documents also contain provisions that require the books and records of a condominium association be made available for inspection by a co-owner.  However, most condominium documents do not provide a detailed procedure for responding to a co-owner’s request for inspection.  Accordingly, it is important for condominium associations and property managers are aware of the new timing requirements in the Michigan Nonprofit Corporation Act that relate to a request to inspect the books and records of a condominium association.

Specifically, MCL 450.2487 allows for a co-owner, either in person, by attorney, or through another agent to inspect the books and records of the condominium association after providing a written demand.  The written demand must describe a proper purpose for the inspection and specify the records that the co-owner desires to inspect.  If the request is made by an attorney, or agent of the co-owner, the written demand must include a power or attorney or other writing that authorizes the attorney or agent to perform the inspection.  In the event that the condominium association does not allow the inspection within five (5) business days after a demand is received, a co-owner may file an action in the circuit court to compel an inspection of the books and records of the association.  If a court orders an inspection, the Court must also order the condominium association to pay the co-owner’s costs, including reasonable attorney’s fees, unless the association can demonstrate that it had a good faith reasonable basis for the denial.  Accordingly, it is extremely important for a condominium association and/or is managing agent to provide a timely response to a request for inspection of records.

However, the Articles of Incorporation or Bylaws can be amended to disallow an inspection of the association’s books and records if the condominium association makes a good faith determination that it would impair the privacy rights or free association of the co-owners, would impair the lawful purpose of the association, or that it is not in the best interests of the association to permit an inspection.  Similarly, a board resolution could be passed preventing an inspection on the above grounds as well.  As such, condominium associations and managing agents should be aware of the new rules relating to requests to inspect the books and records of the association.  In short, merely putting the request on the association’s “to do” list could be an expensive mistake based upon the new deadline in which an inspection must be permitted.  Accordingly, associations and managing agents should take immediate action when receiving a request to inspect records and permit the inspection in a timely manner or disallow the inspection if the board of directors determines that the above criteria has been satisfied.

College Ratings System Framework and Invitation to Comment

The U.S. Department of Education issued for public comment a college ratings system framework. The proposed system will rely upon broad categories that highlight particular institutional successes and weaknesses employing metrics that might include: percentage of students receiving Pell Grants; average net cost of attendance; and completion rates, among others. The system proposed would group institutions for comparison purposes according to whether they grant two-year or four-year degrees.