Laches

OAKLAND COUNTY BAR ASSOCIATION

1760 S. Telegraph Road, Suite 100

Bloomﬁeld Hills, Michigan 48302-0181 (248) 334-3400 • FAX (248) 334-7757 www.ocba.org

2024-2025 BOARD OF DIRECTORS

PRESIDENT

Dean M. Googasian

PRESIDENT-ELECT

Sarah E. Kuchon

VICE PRESIDENT

Aaron V. Burrell

TREASURER

Kari L. Melkonian

SECRETARY

Victoria B. King

EXECUTIVE DIRECTOR

DIRECTORS

Syeda F. Davidson

Julie L. Kosovec

Emily E. Long

Jennifer L. Lord

Moheeb H. Murray

Kimberley Ann Ward

Kenneth F. Neuman

Layne A. Sakwa

Silvia A. Mansoor

Jennifer Quick ABA DELEGATE

LACHES EDITORIAL BOARD

Victoria B. King

Syeda F. Davidson

Coryelle E. Christie

James W. Low

Lanita Carter

Thamara E. Sordo-Vieira

THE MISSION OF THE OAKLAND COUNTY BAR ASSOCIATION IS TO SERVE THE PROFESSIONAL NEEDS OF OUR MEMBERS, IMPROVE THE JUSTICE SYSTEM AND ENSURE THE DELIVERY OF QUALITY LEGAL SERVICES TO THE PUBLIC.

Articles and letters that appear in LACHES do not necessarily reﬂect the ofﬁcial position of the Oakland County Bar Association, and their publication does not constitute an endorsement of views that may be expressed. Readers are invited to address their own comments and opinions to:

LACHES | Oakland County Bar Association

1760 S. Telegraph Rd., Ste. 100

Bloomﬁeld Hills, MI 48302-0181

Publicationandeditingareatthediscretionoftheeditor.

LACHES (ISSN 010765) is the monthly (except July and December) publication of the Oakland County Bar Association, a Michigan nonprofit corporation, 1760 S. Telegraph, Ste. 100, Bloomfield Hills, MI 48302-0181. Copyright © 2025 Oakland County Bar Association. The price of an annual subscription ($20) is included in member dues. Periodical postage paid at Bloomfield Hills, MI 48304 and additional entry offices. Postmaster: Send address changes in writing to Oakland County Bar Association, 1760 S. Telegraph, Ste. 100, Bloomfield Hills, MI 48302-0181.

FEATURES

Construction Law: The Ripple Effect of Skilled Trade Shortages in Michigan

By working proactively, attorneys can help the Michigan construction industry navigate these turbulent waters.

John D.

Gwyn 10

The Law of Changed Circumstances

When circumstances change, equity may shape the law as well as follow it.

ByKevinP.Nelson 12

Michigan Residential Real Estate Brokers Impacted by National Class Action Settlement

Here’s what you need to know about the terms of the settlement and the changes for residential transactions.

ByT.ScottGalloway 16

Where Does It All Begin (in Michigan Commercial Leases)?

Real estate attorneys should make sure they address all aspects of the parties’ contractual relationship in a lease.

Inclusion and Acceptance

By Dean M. Googasian

On January 1, 2024, the Michigan Supreme Court implemented an amendment to Rule 1.109 of the Michigan Court Rules. As amended, Rule 1.109(D) permits parties and attorneys to include pronouns in the captions of pleadings and instructs courts in the use of pronouns by those appearing before them:

Parties and attorneys may also include Ms., Mr., or Mx. as a preferred form of address and one of the following personal pronouns in the name section of the caption: he/him/ his, she/her/hers, or they/them/theirs. Courts must use the individual’s name, the designated salutation or personal pronouns, or other respectful means that are not inconsistent with the individual’s designated salutation or personal pronouns when addressing, referring to, or identifying the party or attorney, either orally or in writing.

MCR 1.109(D)(1)(b).

The proposed amendment spurred spirited and meaningful debate from many viewpoints when published for comment. But this article is not intended to make any sort of political statement about whether the rule should have been adopted.

In light of the rule change, I was curious to find out more about why pronouns matter to those appearing in court. And, as I often do when I don’t know things, I turned for help to folks who know more than me.

One of the persons I turned to for insight is Katie Stanley. I met Katie through the State Bar of Michigan’s LGBTQ+ Law Section, whose meetings I have been attending over the past couple of bar years in an effort to expand my own understanding and knowledge of legal issues affecting folks within the community. Katie currently works as an attorney at Legal Services of Eastern Michigan, where she serves as the Community Engagement Manager. Among other areas of law, Katie is heavily involved in

fair housing efforts. She also serves as a member of the Attorney Discipline Board and, as I have come to learn through exposure to her music, is an absolutely incredible musician with several albums released.1

When I asked why pronouns matter in court, Katie explained: “Research suggests that procedural justice has a tremendous impact on the experience litigants have in the justice system and their views on the system and its legitimacy. Several factors can influence the view people have of their interactions with the courts: whether they are treated with dignity and respect, whether they have a voice in the proceedings, whether the decision-maker in their case was neutral, and whether they trusted that decision-maker. Those litigants who receive an unfavorable outcome are more likely to have a favorable view of the court system when they feel that they had been treated with dignity, been respected, been heard, and that the decision-maker in their case was neutral. This, in turn, can lead to more likely compliance

with court orders.”

Another attorney whose work directly involves the LGBTQ+ community is Jay Kaplan, whom I also met through the SBM LGBTQ+ Law Section. Jay is the Nancy Katz & Margo Dichtelmiller LGBTQ+ Rights Project Staff Attorney with the ACLU of Michigan.

When I asked Jay for his thoughts on why pronouns matter, he explained: “Studies suggest that traditionally, many transgender individuals felt unwelcome and unsafe in court. Many in the trans community didn’t see the court system as a viable option because of concerns how they would be regarded by court staff and judges.

“Pronoun usage is a matter of dignity, courtesy, and fairness,” Jay told me. “Refusing to utilize gender pronouns sends a message to Michigan’s transgender citizens that they are not to be accorded the same dignity, courtesy, and fairness given to other litigants and raises doubt that they will have access to equal justice in Michigan courts.”

While treatment in court is only one small aspect, lack of acceptance matters. In addition to speaking with folks in the community, I also did a little digging of my own. Research from e Trevor Project, a leading suicide prevention organization for LGBTQ+ youth, conﬁrms that this issue is about more than just niceties and hurt feelings. Each year, e Trevor Project surveys2 young people in the LGBTQ+ community.

e Trevor Project’s 2024 survey involved input from more than 18,000 LGBTQ+ young people, divided into two groups, ages 13-17 and ages 18-24, on their experiences during the preceding 12-month period. I found the results alarming.

• 39% of LGBTQ+ young people across both age groups reported seriously considering suicide.

• 12% of LGBTQ+ young people reported having attempted suicide.

• 46% of the LGBTQ+ young people in the younger age group, ages 13-17, reported considering suicide.

• 16% of those ages 13-17 reported making a suicide attempt.

• 49% of those ages 13-17 reported experiencing bullying. ose who were bullied reported signiﬁcantly higher rates of suicide attempts.

• ose living in communities they identiﬁed as not accepting were more than twice as likely to attempt suicide.

• 66% of LGBTQ+ youth reported experiencing symptoms of anxiety.

• 53% reported experiencing symptoms of depression.

• 60% of LGBTQ+ young people reported that they have felt discriminated against in the past year due to their sexual orientation or gender identity.

Lack of empathy, bullying, and refusal of those around them to accept them are associated with higher rates of suicide attempts. As the New York City government elucidates, “Being LGBTQ alone does not put a young person at higher risk for suicide; the discrimination, rejection, fear, and harassment that may come with being LGBTQ in an unsupportive envi-

“Pronoun usage is a matter of dignity, courtesy and fairness.”

—Jay Kaplan

ronment are what increase the risk.”3

Not all young people or all LGBTQ+ young people will have contact with the courts, of course. But for those who do, the simple act of respecting their identities, and their choice of pronouns, can make a diﬀerence.

On the evening of May 21, 2025, I will be hosting an OCBA event at Aﬃrmations LGBTQ+ Community Center4 in Ferndale titled “Rule 1.109(D) One Year In: Why It Matters.” Presented by the OCBA and the OCBA Diversity, Equity and Inclusion Committee, whose work remains essential to the OCBA’s mission, and in collaboration with co-sponsors Aﬃrmations, PFLAG, and the State Bar of Michigan’s LGBTQ+ Law Section, the event will include speakers from the bench, the bar, and the community and is intended to explore the impact of the Michigan Supreme Court’s amendment to Rule 1.109 and why pronouns matter in court and beyond.

I hope to learn more, and I hope to see you there.

Dean M. Googasian is the president of the Oakland County Bar Association.

Footnotes:

1. You can listen to one of my favorites of Katie’s songs, “From Another Life” from her 2022 album Drag in the Inﬁnite, here: youtube.com/ watch?v=2AE0gy_CI94. katiestanleymusic.com/ listen

2. thetrevorproject.org/survey-2024/assets/static/ TTP_2024_National_Survey.pdf

3. nyc.gov/site/doh/health/health-topics/lgbtq-youthsuicide.page

4. “Affirmations provides a welcoming space where people of all sexual orientations, gender identities & expressions, and cultures can find support and unconditional acceptance, and where they can learn, grow, socialize and feel safe!” goaffirmations. org/welcome-mission

Meet the Dedicated Staff Powering the OCBA

By Jennifer Quick

It has been nearly 20 months since I last shared an update about the OCBA staff, and in that time, we’ve experienced some changes and shifts in responsibilities. I’d like to take this opportunity to introduce our newest team members and reconnect you with those who have been with the OCBA for several years.

First and foremost, I want to express my deep appreciation for the dedication, hard work, and creativity of our staff. They are an integral part of what makes my job so fulfilling. In preparation for this article, I asked each team member to share what they appreciate most about working for the OCBA.

Katie Tillinger serves as deputy director, overseeing membership and the foundation, in addition to being my right-hand person. Katie has been with the OCBA for nearly 18 years and is often one of the first faces a new member meets. She is the staff liaison to the Membership; New Lawyers; Circuit Court; Golf Outing; and Diversity, Equity and Inclusion committees. Katie enjoys the variety of work in her role, which allows her to help members advance their careers and gives her the chance to collaborate with exceptional members and colleagues.

Sue Maczko is our finance director, managing financial accounting, reporting, and support for both the OCBA and OCBF. She is the staff liaison to the Business Court and Counsel, Veterans Law, Lawyers of a Certain Age, and Employee Benefits committees. Sue has been with the OCBA since June 2011. She enjoys when the staff can attend the OCBA’s special events, such as the Holiday Gala and Annual Meeting. These events allow staff to connect with our members and create lasting memories with one another.

Mayly McRae serves as our bookkeeper, assisting with seminar and event registrations, member profile updates, and case evaluation collections. She is the staff liaison to the Family Court; Probate, Estate and Trust; and Debtor/

Creditor committees. Mayly has been with the OCBA for over seven years and has come to admire the dedication of our members, who invest significant time and energy into making our committees thrive and bring value to our community.

Kari Ross joined the OCBA in October 2019 during an office renovation. After spending several years as the case evaluation administrator, Kari now handles event and member services administration. She also assists with case evaluation and the OCBA’s new mediation service. Kari is the staff liaison to the District Court Case Evaluation, Circuit Court Case Evaluation, Alternative Dispute Resolution, and Medical/Legal committees. Kari values the constant support she receives from both her colleagues and the members she serves, which motivates her to provide the best service possible. She is also inspired by our members’ commitment to community service.

I cherish the opportunity to work with this incredible team, each member bringing something unique and invaluable to the table.

Lori Dec serves as a part-time administrative assistant, coordinating all Laches issues and assisting with the foundation, including the OCBA/OCBF Diversity in the Legal Profession Scholarship Fund. She is also the staff liaison to the Employment Law and Tax Law committees. Lori has been with the OCBA for

just over four years and enjoys working with the authors for Laches and the Laches editorial board, which helps her stay informed about key issues in the legal profession.

Janise Thies recently shifted her responsibilities to support our court service programs, including case evaluation and mediation. She also works with our Law Related Education and Providing Access to Legal Services committees to develop and present public service programs, such as the Youth Law Conference and Senior Law Days. Janise joined the OCBA in January 2022, after several years working at the Oakland County Courthouse’s law library. She enjoys her public service role the most, as it allows her to support OCBA members in their pro bono work to address the legal needs of our community.

Shanay Cuthrell will celebrate three years at the OCBA this July. As our professional development director, Shanay plans all OCBA seminars and continuing legal education classes. She works with the Professional Development, Criminal Law, and Juvenile Law committees, as well as the Michigan Indigent Defense Commission Advisory Group. Shanay coordinates the Bench/Bar Conferences, the OCBA’s Inn of Court chapter, and the annual New Lawyer Boot Camp. Shanay values the friendships she has developed with OCBA members and the mentorship she receives from them.

MB Cairns has been with the OCBA since April 2023 as our marketing communications specialist. MB is a talented artist and graphic designer, creating all our online graphics and marketing materials while driving our social media and email campaigns. She is the staff liaison to the Lawyer Well-Being; Municipal Law; Paralegal; and Energy, Sustainability and Environmental Law committees. MB enjoys collaborating with her co-workers and using her skills to create assets for OCBA events and marketing initiatives, particularly for public service programs like the Youth Law Conference and Senior Law Days.

Geni Fritch started at the OCBA in June 2024 as a temporary front desk administrator. In January 2025, she was brought on as a full-time employee and now manages our Lawyer Referral Service, assists with membership updates, and helps with various other projects. She has enjoyed learning about everything the OCBA offers and sharing that knowledge with both longtime and new members. In her new role, Geni finds fulfillment in assisting members of the public who are seeking legal guidance.

Cristin Doble is the newest member of the OCBA team, joining us in October 2024 to manage our court services for the district courts, including case evaluation and mediation. Cristin brought over 20 years of experience from the 46th District Court in Southﬁeld and spent a few years in England before returning to the U.S. She gave birth to her ﬁrst child in January

and will return from maternity leave before this article is published. Cristin appreciates the supportive environment at the OCBA, especially the welcoming nature of her colleagues and their willingness to share knowledge and oﬀer support. As a new mother, she also values the OCBA’s commitment to maintaining a healthy work-life balance.

As for me, I’ve been with the OCBA for nearly eight years, overseeing daily operations and ensuring our team has the resources needed to work eﬃciently. I collaborate closely with both the OCBA board of directors and the OCBF board of trustees to develop and implement strategic initiatives. Additionally, I serve as the staﬀ liaison to the Legislative and Real Estate committees. I thrive on the challenges that come with managing the organization, constantly looking for innovative ways to

strengthen our impact and improve the services we oﬀer to our members.

Even more so, I cherish the opportunity to work with this incredible team, each member bringing something unique and invaluable to the table. It’s impossible to fully capture their dedication in this limited space, but their passion and commitment are what truly make the OCBA the premier voluntary bar association in the state.

We encourage you to reach out to any of us. Your feedback on our member programs is always welcome as we continue to improve our oﬀerings and better serve the needs of our members.

Jennifer Quick is the executive director of the Oakland County Bar Association.

We encourage you to reach out to any of us. Your feedback on our member programs is always welcome as we continue to improve our offerings and better serve the needs of our members.

knowledge

CALENDAR OF EVENTS

Please Note: Dates listed below were sent to the publisher on March 3, 2025. It is possible that some of the events listed below have since been altered. Please check ocba.org/events for the most up-to-date schedule of events.

MAY

OAKLAND COUNTY BAR FOUNDATION’S 26TH ANNUAL SIGNATURE EVENT

The 26th annual Signature Event, a highlight of the season for many members of the association and foundation, will return to the beautiful Orchard Lake Country Club. With exceptional food, a stunning lakeside setting, and the opportunity to connect with colleagues, this event promises an unforgettable networking experience. Best of all, the proceeds will support the Oakland County Bar Foundation, helping fund vital programs for numerous deserving organizations. Tickets are limited, so be sure to secure yours today. Sponsorship opportunities are also available for those wishing to show their support for the OCBF. For more information, contact Katie Tillinger at ktillinger@ocba.org or (248) 334-3400. To learn more, visit ocba.org/signature-event.

BAR NIGHT OUT MEMBERSHIP MIXER

Join us at Roadside B&G in Bloomﬁeld from 5:30 to 7:30 p.m. for another great opportunity to mix and mingle with fellow bar members while enjoying appetizers and a cash bar. This event is free for OCBA members and space is limited, so register today at ocba.org/events

RULE 1.109(D) ONE YEAR IN: WHY IT MATTERS

Join the OCBA at Afﬁrmations in Ferndale for a comprehensive session designed to educate attorneys about Michigan’s court rule on the use of pronouns by the courts and why this practice matters in fostering a respectful, accepting environment. This event, presented in collaboration with the OCBA Diversity, Equity and Inclusion Committee; Afﬁrmations; PFLAG; and the State Bar of Michigan LGBTQ+ Law Section, will provide valuable insights into creating an inclusive and respectful atmosphere for clients, in court and beyond. Don’t miss out on this opportunity to stay informed. Learn more at ocba.org/events

91ST ANNUAL MEETING & AWARDS CEREMONY

Join the OCBA in honoring exceptional leaders in the law and celebrating another remarkable year! The evening kicks off with appetizers and a chance to connect with judges, OCBA leadership, and fellow members. Then, during an elegant sit-down dinner, we’ll recognize the 2025 OCBA award recipients, members marking 40 years of legal practice in Michigan, and those who have been part of the OCBA for 50 years. Additionally, outgoing President Dean M. Googasian will pass the gavel to incoming President Sarah E. Kuchon, who will be sworn in as the bar’s 93rd president. Tickets are now available for purchase at ocba.org/annual-meeting

NEW LAWYER BOOT CAMP

This dynamic, intensive full-day training program is specifically designed for attorneys in practice for less than five years and law students. Participants will learn from judges, judicial staff, and expert attorneys on how to navigate the court system and best represent clients. These fully loaded practical sessions will help new attorneys become professional, confident, and successful practitioners in Oakland County and beyond. Learn more and register at ocba.org/bootcamp

Mathew Kobliska

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8 Managing Life’s Trials (Noon – 1 p.m.)

MAY

A seminar from the OCBA Lawyer Well-Being Committee, Women Lawyers Association of Michigan, Macomb County Bar Association, and Ingham County Bar Association

Presenter: Thomas Grden, M.S., SBM Lawyers and Judges Assistance Program

Moderator: Mary Aretha, Esq., Michigan Court of Appeals

Join us in recognizing Well-Being Week in Law. This Zoom program will discuss how attorneys are at special risk for mental health issues. The goal is to identify behavorial red ﬂags and develop tools to address them. Let’s normalize mental health care and learn how to better cope with the psychological pressures associated with being a lawyer.

20 404(b)/Notices (5:30 – 7:30 p.m.)

A seminar for criminal defense appointed counsel

Presenter: Michael J. McCarthy, Esq., Michael J. McCarthy, P.C.

Location: Oakland County Bar Association Ofﬁce

This in-person seminar will provide an overview of MRE 404(b), which prohibits admitting character evidence of other crimes, wrongs, or acts. Join us for this in-depth discussion along with tips and tricks. Additionally, a Q&A session will follow.

Worth 2 hours of criminal and juvenile training credit for appointed counsel

21 Rule 1.109(D) One Year In: Why It Matters (5:30 – 7:30 p.m.)

A professional development seminar

See page 6 for details.

29 Legal Career Transitions: A View from Private Practice, the Corporate C-Suite, and the Prosecutor’s Ofﬁce (11:30 a.m. – 1 p.m.)

A seminar from the Professional Development Committee

Presenters: Mary Aretha, Esq., Michigan Court of Appeals; Angela Caligiuri, Esq., Senior Counsel, General Motors; Darcey Jacobs, Esq., Oakland County Prosecutor’s Ofﬁce; and Bill C. Panagos, Esq., Panagos Kennedy PLLC

Moderator: Linda Kennedy, Esq., Panagos Kennedy PLLC

Join us on Zoom as we debunk common myths about various types of lawyers and their duties. Our discussion will feature stories from attorneys who have successfully transitioned in their careers, offering insights into transferable skills and strategies for excelling in a new role. Plus, we’ll wrap up with an engaging Q&A session to answer all your questions.

JUNE

10 2025 Employment Law Year in Review (9 – 11:30 a.m.)

A seminar from the Employment Law Committee

Presenters: Richard M. Lynch, Esq., Circuit Court Administrator, Sixth Judicial Circuit Court (Moderator); Aimee Guthat, Esq., Jackson Lewis P.C.; TBA

This annual Zoom seminar will provide an overview of exciting and new changes in employment law to assist attorneys in better serving their clients. The three topics of focus will be immigration and employment, the evolution of hybrid and remote work, and workplace harassment.

13 New Lawyer Boot Camp (8 a.m. – 4:15 p.m.)

A special training for new lawyers and law students

See page 7 for details.

17 Update on the State of Criminal Law 2025 (11:30 a.m. – 1 p.m.)

A seminar for criminal defense appointed counsel

Presenter: Alona Sharon, Esq., Alona Sharon PC

This Zoom seminar will provide an overview of the most recent published Michigan Court of Appeals cases with a focus on sentencing decisions. Join us for an in-depth discussion of hot topics, emerging issues, and practice pointers in criminal law. Worth 1.5 hours of criminal and juvenile training credit for appointed counsel

HEA LTH CA RE

LA W FI RM

Wachler & Associates represents healthcare providers, suppliers, and other entities and individuals in Michigan and nationwide in all areas of health law including, but not limited to:

•Healthcare Corporate and Transactional Matters, including Contracts, Corporate For mation, Mergers, Sales/Acquisitions, and Joint Ventures

•Medicare, Medicaid, and Other Third-Party Payor Audits and Claim Denials

•Licensure, Staff Privilege, and Credentialing Matters

•Provider Contracts

•Licensure, Staff Privilege, and Credentialing Matters

•Billing and Reimbursement Issues

•Provider Contracts

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•Stark Law, Anti-Kickback Statute (AKS), and Fraud & Abuse Law Compliance

•Physician and Physician Group Issues

•Stark Law, Anti-Kickback Statute (AKS), and Fraud & Abuse Law Compliance

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S ER VING H EALTHCA RE PR OV ID ERS FOR OVE R 30 Y EARS

CONSTRUCTION LAW: The Ripple Effect of Skilled Trade Shortages in Michigan

By John D. Gwyn

In the past five years, the construction industry in Michigan has faced formidable business challenges, including a severe shortage of skilled tradespeople. This phenomenon is having a ripple effect across the entire sector and has impacted contractors, subcontractors, and developers, as well as the attorneys who represent them. New immigration and tariff policies, as proposed at the federal level, may further fuel a perfect storm that could profoundly affect the existing labor shortage moving forward.

From a historical perspective, the COVID-19 pandemic presented challenges for employers, including absenteeism and material shortages. Since then, the construction industry has also experienced a wave of retirements among experienced tradespeople. With baby boomers reaching retirement age, a wealth of knowledge and skill has been exiting the industry at a rapid rate. Simultaneously, a decline in participation in vocational training programs has left a widening gap in the pipeline of new talent. Some of this is a result of not effectively informing younger workers of the opportunities that exist in the profession. As a result, the trades have struggled to attract this sector of workers due to misconceptions about low pay, limited opportunities, and difficult working conditions. ere is no doubt that construction work can be physically demanding and working conditions are not always the best, making it a less attractive trade for some. However, employers are getting more creative by building in extra time for delays, paying higher wages, and putting more effort into finding the skilled workers who fit their needs.

PROJECT DELAYS AND THE DOMINO EFFECT

For construction lawyers, the impact of this labor shortage is multifaceted for their clients. It most directly leads to a surge in project delays and cost overruns. Construction contracts, meticulously drafted to outline project timelines and budgets, are now routinely tested. Force majeure clauses, once treated as an academic concept, are becoming a frequent topic of negotiation. e shortage can exacerbate prevailing tensions among project stakeholders, including outside investors and lenders, increasing the likelihood of disputes and litigation. e Associated General Contractors of America reported that 71% of Michigan construction firms have had trouble filling craft positions since 2021. Some construction companies stated that they had turned down projects because they couldn’t find enough workers. Also, the average cost of construction projects in the Detroit area increased by about 10% during that time, and labor shortages were a large factor. However, there are a few initiatives that have happened on a national and state level recently that are encouraging. e federal Infrastructure Investment and Jobs Act, signed into law in 2021, is a bipartisan $1 trillion bill that substantially increased funding to address these problems. e legislation funds new construction projects including roads, bridges, and energy grids and, in doing so, creates demand for construction workers. Recently, on a state level, Gov. Whitmer announced a $3 billion initiative to fix Michigan’s aging transportation infrastructure. As always, funding is a concern, but the state intends to pull

revenue from our current gas tax and collected recreational marijuana funds and possibly even change the Michigan corporate income tax.

LEGAL IMPLICATIONS FOR CONTRACTORS, SUBCONTRACTORS, AND DEVELOPERS

Many attorneys in our area report that their general contractor clients are increasingly finding themselves in a precarious position. ey are bound by contractual obligations to deliver projects on time and within budget; however, labor shortages hinder their ability to do so. is tension can lead to disputes over contract enforceability, insurance coverage, and even potential claims of negligence. Some subcontractors also face similar challenges, as delays and cost increases may strain their financial resources. is can lead to payment disputes and, in some cases, the need to file mechanic’s liens to secure payment. e complex web of relationships on a large construction project means subcontractors may find themselves caught in the middle of disputes between contractors and developers. As a result, the trades may be forced to initiate a lawsuit to enforce the liens, pursue bond claims, and secure payment within the parameters of the Michigan Construction Lien Act. Ultimately, developers and project owners bear the most financial risk and will be included as necessary parties in this type of litigation. While a case is pending, if the project remains unfinished, the delays can disrupt timelines, impact financing, and even jeopardize the viability of completing the job. e parties’ legal counsel are tasked with navigating a complex landscape, including contract interpretation and insurance claims. In Oakland County, there has been a trend to engage in alternative dispute resolution, and most of our local facilitators are experienced lawyers or retired judges who are very familiar with these issues and do a great job of narrowing

the issues for trial if the matter does not resolve during the mediation process.

A CALL TO ACTION FOR CONSTRUCTION LAWYERS

e skilled trade shortage is a complex issue with no easy solutions. However, construction lawyers can still play a pivotal role in mitigating its impact. Attorneys have to be creative in ﬁnding ways to protect our clients’ interests. Maybe that means suggesting alternative project designs that require less specialized labor or even recommending delays to start the project when the market’s more stable. It’s crucial for legal counsel to get language into contracts that protects clients in these kinds of labor issues.

By understanding the root causes of the shortage, anticipating potential legal issues, and proactively advising clients, attorneys can assist in navigating these turbulent waters. Beyond traditional contract review and dispute resolution, attorneys must now serve as strategic advisers, helping clients anticipate potential pitfalls, negotiate creative solutions, and mitigate risks in a volatile labor market. is might involve crafting more ﬂexible contract clauses, exploring alternative dispute resolution methods, and advising clients on workforce development strategies.

CONCLUSION

e legal profession plays an important role in addressing the root causes of the shortage. Supporting initiatives that promote vocational training, improve the perception of trade careers, and address the skills gap is not just good business; it is an investment in the future of the industry. By working collaboratively and proactively, legal professionals can help the Michigan construction industry navigate these shifting sands and build a more resilient and sustainable future.

John D. Gwyn is an attorney at Cummings, McClorey, Davis & Acho, PLC. He focuses his practice on real estate law, community association law, commercial litigation, and municipal law. He represents developers and condominium and homeowners’ associations with matters involving real estate, contract, and construction issues. He currently serves as a committee member on the Oakland County Bar Association’s Real Estate Committee. Gwyn is a contributor to the Institute of Continuing Legal Education and recently presented an on-demand seminar on shortterm rentals. He may be reached at (734) 261-2400 or jgwyn@cmda-law.com.

The Law of Changed Circumstances

By Kevin P. Nelson

By nature, I am a rule follower. I find comfort in the strict interpretation and application of rules in almost every instance. My daughter is the same. My wife and son balance us out. Early in my children’s youth sports careers — which are, thankfully and regrettably, about to close — a large group of parents and kids wanted to cross a relatively busy street (not busy at the time) to get to a restaurant. All but one in the group crossed the street as soon as they came to it. One of us — me — took another five minutes to cross at a crosswalk. To this day, my wife and son still razz me about it. I take pride in it. But I acknowledge that I may be different than most.

The comfort I find in rules limited my abilities as a litigator early in my career. I stood firmly by the principle that equity should strictly follow the law when I first-chaired my first jury trial. It was a two-week slog to resolve a decade-long multifaceted dispute between a commercial owner and a residential owners’ association in a large mixed-use development. I found the issues compelling; the jury — not so much. The law was on my client’s side, and I was confident — without guaranteeing — that we would win out. Although we won on all but one of the claims, the jury’s verdict humbled me and I heard the simple words of a great mentor echo in my head: “The law matters, Kevin, but the facts matter more.”

As a trial attorney, I do not believe that anything hurts worse than a jury’s verdict going against your client in any way, no matter how small. For me, it quite literally feels like a kick in the gut. As I struggled through recovering from my less-than-complete victory, I had to come to terms with the fact that equity may follow the law, but it also shapes it. In real estate, equity’s refusal to sheepishly follow the law is often seen in what I refer to as the law of changed circumstances.

ZONING

Zoning is one area of the law where the application of the law of changed circumstances is most obvious. Through the law of changed circumstances, zoning restrictions placed on land, whether by ordinance, regulation, or otherwise, will bend to a preexisting and established lawful use of real estate that does not conform to the new restriction — i.e., a prior nonconforming use. Heath Twp. v. Sall, 442 Mich. 434, 439; 502 N.W.2d 627 (1993); MCL 125.3208(1). Permitting a new zoning restriction to immediately upend a prior nonconforming use would be inequitable.

But the law of changed circumstances also does not permit zoning restrictions to break in the face of a prior nonconforming use. That is because “[i]t is the policy of this state and a goal of zoning that uses of property not conforming to municipal zoning ordinances be gradually eliminated.” Lyon Charter Twp. v. Petty, 317 Mich. App. 482, 488; 896 N.W.2d 477 (2016). A municipality may gradually eliminate nonconforming uses by acquiring the subject real estate by purchase, condemnation, “or otherwise.” See MCL 125.3208(3).

RESTRICTIVE COVENANTS

The application of the law of changed circumstances is not as obvious when it comes to restrictive covenants. Restrictive covenants are,

generally, contracts between or among owners of neighboring real property that restrict or require certain actions — e.g., whether properties in a neighborhood or subdivision must be limited to single-family use. More commonly known, and perhaps abhorred, sets of restrictive covenants are a subdivision or condominium’s Declaration of Covenants, Conditions, and Restrictions (“declaration” or “CC&Rs”) and, in certain circumstances, its bylaws. Conlin v. Upton, 313 Mich. App. 243; 881 N.W.2d 511 (2015) (analyzing a condominium’s bylaws as restrictive covenants).

Restrictive covenants benefit and burden each of the neighbors that own land subject to the restrictive covenants. In other words, they “are at once in tension with and complementary to” the bundle of rights held by each of the neighbors in their separate real estate. See Thiel v. Goyings, 504 Mich. 484, 496–97; 939 N.W.2d 152 (2019). The restrictive covenants are themselves property rights. Rofe v. Robinson, 415 Mich. 345, 349; 329 N.W.2d 704 (1982). And a purchaser of real property subject to restrictive covenants is deemed to have purchased their real property in reliance on the restrictions. Id. at p. 350.

Because restrictive covenants are typically broadly applied to numerous owners of real estate, it is not easy to modify them through the law of changed circumstances. For instance, a change in zoning is not alone sufficient to compel lifting a restrictive covenant. Rofe v. Robinson, 415 Mich. at pp. 351–52. Instead, a landowner challenging a restrictive covenant

must establish that there has been a “complete change in the character of the neighborhood, so as to defeat the purposes of the covenants and to render their enforcement an inequitable and unjust burden on the owner of the lots […].” Moore v. Curry, 176 Mich. 456, 462–63; 142 N.W. 839 (1913). In other words, validly imposed restrictive covenants will likely only bend to extensive neighborhood changes — e.g., a neighborhood restricted to residential use of real property when the majority, if not all, of the neighborhood has transitioned to commercial use. Compare Gomah v. Hally, 366 Mich. 31, 34; 113 N.W.2d 896 (1962) (lifting restrictions); Scott v. Armstrong, 330 Mich. 504, 515–16; 47 N.W.2d 712 (1951) (enforcing restrictions).

To offset the high burden a landowner must reach to lift a restrictive covenant, restrictive covenants often include language allowing for amendments, modification, or revocation based on changed circumstances. See, e.g., McMillan v. Iserman, 120 Mich. App. 785 (1982). If a proposed change is uniform, it does not require unanimous consent of the affected property owners; however, nonuniform changes require unanimous consent. See Maatta v. Dead River Campers, Inc., 263 Mich. App. 604, 616; 689 N.W.2d 491 (2004). Even with such changes, however, the law of changed circumstances may still apply to provide relief to those that relied on preexisting conditions. Iserman, 120 Mich. App. at p. 793 (holding that an “amended deed restriction does not apply to a lot owner who has, prior to the amendment, committed

himself or herself to a certain land use which the amendment seeks to prohibit providing: (1) the lot owner justifiably relied on the existing restrictions (i.e., had no notice of the proposed amendment); and (2) the lot owner will be prejudiced if the amendment is enforced as to his or her lot.”)

EASEMENTS

For those who have willingly forgotten their first year of law school and do not practice in the area, an easement is a right to use someone else’s land for a specific purpose. A common and often-litigated-over easement is an ingress and egress easement — i.e., a property owner’s right to travel over someone else’s land in order to access their own. Such easements are, quite often, agreed to between or among owners of neighboring parcels of land and documented in a written and recorded easement agreement. The neighbor that has the right to use the easement to access their property is the owner of the “dominant estate.” The neighbor whose land the easement travels over is the owner of the “servient estate.”

A dispute over an easement often arises when the owner of the servient estate changes the nature of the easement. One potential way to resolve that dispute is through the application of the law of changed circumstances. Suppose the owner of the servient estate erects a fence across their property and an unlocked gate across the road that provides the owner of the dominant estate with access. The owner of the servient estate did not ask or obtain permission to erect the fence and gate, and the written and recorded easement does not include an express or implied prohibition against erecting the fence and gate. Should the owner of the servient estate be required to tear the fence down or remove the gate? If the fence and gate are reasonable and do not impose new burdens — not mere inconveniences — on the owner of the dominant estate, the law of changed circumstances allows the fence and gate to remain. Smith v. Straughn, 331 Mich. App. 209, 220; 952 N.W.2d 521 (2020).

The law of changed circumstances also allows for the manner, frequency, and intensity of the easement’s use over time to accommodate normal development if it does not result in unreasonably increasing the burden placed on the servient estate. See Schumacher v. Dept. of Nat. Res., 256 Mich. App. 103, 108; 663 N.W.2d 921 (2003). If the owner of the dominant estate lawfully used their property to develop a commercial building and the easement allowing access to that commercial building was the only reasonable access to that property — meaning that it was an “easement by necessity” — allowing additional vehicles to travel over the

easement may be permitted. If the owner of the dominant estate someday obtains an alternative easement for accessing their property in the future, the law of changed circumstances may apply to the easement again. In that instance, because the easement would no longer be one of necessity, it may be terminated. Charles A. Murray Tr. v. Futrell, 303 Mich. App. 28, 55; 840 N.W.2d 775 (2013) (“[T]he requirement for an easement by necessity is that of strict or absolute necessity, and an easement by necessity ceases to exist when the necessity ceases.”)

COMMERCIAL LEASE AGREEMENTS

The law of changed circumstances may also apply to excuse nonperformance of obligations under commercial lease agreements (or any other contract) through the legal doctrines of impossibility and frustration of purpose. Impossibility — or impracticability — excuses nonperformance when performance is objectively, not absolutely, impossible. Restatement (Second) of Contracts § 261 (1981). The person claiming impossibility must show that there is “extreme and unreasonable difficulty, expense, injury or loss involved.” Roberts v. Farmers Ins. Exch., 275 Mich. App. 58, 74; 737 N.W.2d 332 (2007) (cleaned up). Frustration of purpose excuses nonperformance when both parties are aware of the purpose and that purpose is “basically frustrated by an event not reasonably foreseeable at the time” the lease was entered into, the frustration is not the fault of the party claiming frustration, and the frustrated party did not assume the risk of the frustrated purpose. Liggett Rest. Group, Inc. v. City of Pontiac, 260 Mich. App. 127, 134–35; 676 N.W.2d 633 (2003).

As seen nationally post-pandemic, the doctrines of impossibility and frustration of purpose

are often unavailable to excuse nonperformance in the face of well-drafted lease provisions negotiated by sophisticated parties that anticipate the impracticability or frustration and shift the burden to the party that more commonly relies on the doctrines — i.e., the tenant. Evaluating whether and to what extent the doctrines may apply to any given commercial lease dispute over nonperformance remains worthwhile because not every lease is well drafted and the doctrines may address temporary events. Nat’l Retail Properties, LP v. Fitness Int’l, LLC, unpublished opinion of the Court of Appeals, issued October 12, 2023 (Docket No. 363909), 2023 WL 6782536, p *4, n.3 (holding that neither doctrine applied with the assumption “that the doctrines of frustration of purpose and impossibility may be temporary.”); see also Bay City Realty, LLC v. Mattress Firm, Inc., 20-CV-11498, 2021 WL 1295261, at *9 (E.D. Mich. Apr. 7, 2021) (discussing temporary impossibility and frustration of purpose).

CONSTRUCTION AGREEMENTS

Construction agreements are particularly susceptible to the law of changed circumstances. Outside of construction defect issues, disputes at the end of construction projects often revolve around disputes over money claimed due. When such a dispute arises, the nonpaying party will likely recall the risk-allocation provisions of the contract they have not referenced since the work began and turn to the provision on change orders.1 A well-written construction contract will require any change order to be in writing and signed by each of the parties, prior to the work being performed, to show the agreed-upon terms of the change. The law of changed circumstances can negate a construction contract’s

strict requirements for change orders. Such requirements may be modiﬁed by oral agreement. Minkus v. Sarge, 348 Mich. 415, 421–22; 83 N.W.2d 310 (1957). ey may also be waived by the parties’ conduct. Phoenix Contractors, Inc. v. General Motors Corp., 135 Mich. App. 787, 794–95; 355 N.W.2d 673 (1984).

REAL PROPERTY SALES

e duty of disclosure during a sale of real property may broaden as a result of the law of changed circumstances. Specifically, a seller of real property and their agent owe a duty to a buyer to disclose newly acquired information that renders a prior affirmative statement untrue or misleading. Hord v. Env’l Research Inst. of Michigan, 463 Mich. 399, 406; 617 N.W.2d 543 (2000); Al eri v. Bertorelli, 295 Mich. App. 189, 194; 813 N.W.2d 772 (2012). at rule remains true in the face of a home seller’s compliance with Michigan’s Seller Disclosure Act. MCL 565.961; see also Bergen v. Baker, 264 Mich. App. 376, 385, 387–88; 691 N.W.2d 770 (2004) (concluding that a material issue of fact existed with respect to the homebuyer’s fraud claim when evidence suggested that the home seller failed to disclose knowledge of a roof leak subsequent to Seller Disclosure Act compliance). And that rule is especially true when the buyer raises a particular concern or makes a direct inquiry to which the newly acquired information is relevant. Al eri at p. 194. e failure to disclose known information in that context may constitute silent fraud, fraudulent concealment, or negligent misrepresentation. Id.; see also M&D, Inc. v. W.B. McConkey, 231 Mich. App. 22, 31–32; 585 N.W.2d 33 (1998) (holding that a seller of commercial property had not committed silent fraud when it failed to disclose its knowledge about flooding at the property because the sale transaction documents contained an “as is” clause and other disclaimers, no inquiry about flooding was made that gave rise to a duty to disclose, and the vendor made no representations or conduct that gave rise to a duty to disclose.)

CONCLUSION

e law of changed circumstances may be used in a variety of circumstances to breathe life into an argument that appears prohibited by a strict reading of the law. It has permitted me, after 20 years of practice, to adopt a modiﬁed version of my former mentor’s words: e law matters, but the facts often heavily shape the application of the law. We are better oﬀ for it. And I am hopeful that equity will continue to follow the law without kowtowing.

Kevin P. Nelson is an experienced commercial trial attorney and shareholder with the law rm of Ti any & Bosco, P.A., (tblaw.com) focused on resolving his clients’ complex business, real estate, nancial services, construction, and employment disputes. In 2019, Nelson began splitting his time between the rm’s Michigan and Arizona o ces and joined the OCBA shortly thereafter. Since 2020, he has served as chair, vice chair, and legislative liaison for the OCBA’s Real Estate Committee. He is also a member of the Business Law, Labor & Employment Law, Litigation, and Real Property Law sections of the State Bar of Michigan. Nelson may be reached at kpn@tblaw.com or (248) 924-3349.

Footnote:

1. I use the term “change order” broadly to mean either a change or addition to the applicable scope of work on the project.

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Michigan Residential Real Estate Brokers Impacted by National Class Action Settlement

By T. Scott Galloway

In 2024, the established business practices of residential real estate brokers were upended when the National Association of Realtors (NAR) settled two class action lawsuits alleging anticompetitive practices by the organization and its members.1 While the impact on Michigan brokers was less dramatic due to existing laws regulating the buyer-broker relationship, the changes to the process of listing a property and the uncertainty they created led to significant concern among brokers. This article provides an overview of the allegations, the terms of the settlement, and the resulting changes for residential transactions.

THE LITIGATION

The plaintiffs were home sellers who listed their homes on a Multiple Listing Service (MLS). An MLS is a database used by real estate professionals to share information about properties for sale in a designated geographic area. It allows real estate agents and brokers to access comprehensive information about listed properties, including descriptions, photos, and other relevant data. Until the settlement of the litigation, it was also a platform to share information about broker compensation subject to NAR guidelines.

To sell a home, real estate brokers require the property owner to sign a listing agreement2 describing the scope of the work and setting their commission, typically as a percentage of the sales price; a 6% commission was common. The listing broker historically offered to split their commission with a buyer’s agent, and information on the commission split was described on the MLS. Agents working with buyers could also sign a written agreement with their clients, but if no agreement with the buyer was signed, then the buyer’s agent relied on the offered terms in the MLS to ensure payment of their commission.

The plaintiffs alleged that NAR’s MLS policies forced a home seller to pay the commission of the buyer’s agent and also pay a higher commission than they would have in a competitive market. More specifically, it was asserted that the Adversary Commission Rule,3 adopted by NAR and its members in their Handbook on Multiple Listing Policy in 1996, was a conspiracy to raise, fix, maintain, or stabilize real estate commissions in violation of Section 1 of the Sherman Act and corresponding state laws.4 That rule prohibited MLS listings that did not include an offer of compensation to buyers agents of a set dollar amount or a percentage of the selling price. The plaintiffs also alleged the NAR requirement that the seller’s broker make a blanket, unilateral offer of compensation to a buyer’s broker, when in other transactions the selling broker would be a buyer’s broker, incentivized the offering of a higher commission for the buyer’s broker than the market would otherwise require. Additionally, NAR’s Code of Ethics prohibited a buyer from seeking to reduce their broker’s commission by making that reduction a condition of the purchase offer.5

The plaintiffs argued that local Realtor associations, real estate brokers, and MLS operators, although they were not named in the lawsuits, were co-conspirators for having enforced NAR policies at the local level. Any broker who listed properties on an MLS and adhered to its compensation rules had potential exposure to future litigation.

The plaintiffs sought a judgment declaring the policies of the NAR and the actions of its

members as unlawful and requested a permanent injunction preventing practices in furtherance of those policies. Plaintiffs also sought restitution damages in amounts to be determined, pre- and post-judgment interest, punitive damages, and the costs of litigation, including reasonable attorney fees and expenses.

THE SETTLEMENT

NAR settled the cases in March 2024 by committing to significant revisions of its listing practices and paying $418 million in damages to a settlement fund in exchange for broad releases to a range of parties, including local Realtor associations and individual brokers, who were not directly named in the lawsuit. The settlement was reached after a jury agreed with the plaintiffs that NAR’s rules forced sellers to pay excessive fees when they sold their properties and required the organization to pay at least $1.8 billion in damages.

The changes mandated by the settlement took effect in August 2024 and are intended to dismantle the mechanisms of alleged price-fixing and introduce greater transparency and flexibility in broker compensation. Key practice changes include to:

1. Eliminate and prohibit any requirement by NAR, Realtor MLSs, or member boards that listing brokers or sellers must make offers of compensation to buyer brokers or other buyer representatives, and eliminate and prohibit any requirement that such offers, if made, must be blanket, unconditional, or unilateral.

2. Prohibit Realtor MLS participants from making offers of compensation on the MLS to buyer brokers or disclosing listing broker compensation or total broker compensation on the MLS.

3. Require the elimination of all broker compensation fields on Realtor MLSs and prohibit the sharing of the offers of compensation to buyer brokers or other representatives.

4. Eliminate and prohibit any requirements conditioning participation or membership in Realtor MLSs on offering or accepting offers of compensation to buyer brokers.

5. Agree not to create, facilitate, or support any non-MLS mechanism for listing brokers or sellers to make offers of compensation to buyer brokers or buyer representatives.

6. Require that all Realtor MLS participants working with a buyer enter into a written agreement before the buyer tours any home. The agreement must contain disclosure of the amount or rate of compensation the Realtor will receive or how this amount will be determined. The amount of compensation must be objectively ascertainable and may not be open-ended. The Realtor may not receive compensation for buyer brokerage services from any source that exceeds the amount or rate agreed to in the written agreement with the buyer.

7. Prohibit Realtors and Realtor MLS participants from representing to a client or customer that their brokerage services are free or available at no cost unless they will receive no financial compensation from any source for those services.

8. Require Realtors and Realtor MLS participants acting for sellers to conspicuously disclose to sellers and obtain seller approval for any payment or offer of payment that the listing broker or seller will make to another broker, agent, or other representative acting for buyers. Such disclosure must be in writing, be provided in advance of any payment to or agreement to pay another broker acting for buyers, and specify the amount or rate of such payment.

9. Require that Realtors and Realtor MLS participants disclose to prospective sellers and buyers in conspicuous language that broker commissions are not set by law and are fully negotiable.

10. Require that Realtors and Realtor MLS participants not filter out or restrict MLS listings communicated to their customers or clients based on the existence or level of compensation offered to the buyer broker.

The practice changes described above do not prevent offers of compensation to buyer brokers off the MLS or offers of seller concessions on a Realtor MLS so long as such concessions are not limited to or conditioned on the retention of or payment to a cooperating broker, buyer broker, or other buyer representative. These obligations terminate seven years after the class notice date or if the United States Department of Justice obtains a judgment against NAR that conflicts with the requirements of the settlement.

THE IMPACT

e stated goal of the litigation was to eliminate anticompetitive commission rules, promote greater transparency in residential real estate transactions, and encourage competitive behavior among brokers to the benefit of consumers. Whether these goals will be achieved by the settlement remains to be seen. Early reactions suggest that while the process of engaging a real estate broker may be more transparent, it is more confusing for consumers, and it is unclear whether either sellers or buyers have benefited financially from the changes.

Broker commission agreements for a residential transaction are now handled like those for a commercial transaction, according to Bartley Patterson, broker manager of Re/Max Classic in Canton. e buyer’s broker must ask the listing broker for the property, outside the MLS, or ask the property owner directly if compensation is oﬀered to a buyer’s agent. If not, then the buyer’s broker must justify and negotiate their fee with the buyer. Patterson notes that owners

desirable properties in competitive submarkets have been able to avoid paying compensation to a buyer’s agent in some instances, but that is not the norm; a commission split between brokers is still prevalent.

While Michigan law has long required disclosure of broker agency relationships at the beginning of a buyer-broker representation, it was often handled by having the buyer acknowledge the agency relationship on a statutorily required form presented with other documents rather than through a conversation.6 e NAR settlement makes clear that the conversation must be meaningful and that no Realtor may show a property without a written agreement in place. e MLS, however, is charged with policing that requirement, and it does not have the resources to eﬀectively take on that task. According to Patterson, “ e NAR settlement has resulted in more direct conversations with both buyers and sellers of real estate regarding how the Realtor will be compensated.” Patterson has also observed an increased focus on brokers’ securing agency disclosures and

representation agreements with buyers and more thoroughly documenting communications with clients.

As the profession and the public adjust to the new rules, it seems that the immediate benefit of the settlement is to cause brokers to be very intentional in how they discuss agency and their compensation, which, in Michigan, is in addition to following existing requirements in the Michigan Occupational Code. As the required practices of the settlement become internalized, it should become clearer to all participants in a residential transaction who represents whom and how their agents are being paid. e settlement also creates an opportunity for brokers to differentiate themselves and their services, which may result in both home sellers and buyers finding an agent who is the best fit for them.

T. Scott Galloway of Galloway & Hommel, LLP, is the current chair of the OCBA Real Estate Committee. His practice focuses on real estate law, and he represents brokers, property management companies, and landowners who are involved in title or boundary line disputes. Galloway is also a civil mediator and volunteers his time with the Oakland Mediation Center.

Footnotes:

1. Rhonda Burnett, et al, on behalf of themselves and all others similarly situated v The National Association of Realtors, et al, United States District Court for the Western District of Missouri, Western Division, 19-cv-00332-SRB, and Christopher Moehrl, et al, on behalf of themselves and all others similarly situated v The National Association of Realtors, et al, United States District Court for the Northern District of Illinois, Eastern Division, 1:19-cv-01610-ARW.

2. MCL 566.132(1)(e). The statute of frauds requires that an agreement to pay a real estate commission be in writing.

3. “In ﬁling a property with the multiple listing service of an association of Realtors®, the participant of the service is making blanket unilateral offers of compensation to the other MLS participants, and shall therefore specify on each listing ﬁled with the service, the compensation being offered to the other MLS participants.” NAR Handbook at p. 65.

4. 15 USC 1.

5. “REALTORS, acting as subagents or buyer/tenant representatives or brokers, shall not use the terms of an offer to purchase/lease to attempt to modify the listing broker’s offer of compensation to subagents or buyer/tenant representatives or brokers nor make the submission of an executed offer to purchase/lease contingent on the listing broker’s agreement to modify the offer of compensation.” NAR Code of Ethics, Standard Practice 16-16.

6. MCL 339.2517.

Where Does It All Begin (in Michigan Commercial Leases)?

By Andrew M. Harris

In many commercial leases (perhaps most), the starting points for when a tenant can first occupy the leasehold premises and when its rent obligation surfaces are clearly delineated within the four corners of the lease (usually toward the beginning). These conventional lease terms regarding commencement seldom require assistance from legal counsel, either during the drafting phase or to aid clients with lease interpretation. There are, however, many circumstances which can upend the simplicity of commercial lease commencement terms in Michigan leases. This article will address how commercial real estate owners can successfully navigate these lease drafting/negotiation challenges while avoiding the potentially damaging consequences of improperly completed or incomplete lease documents.

When a lease begins, the commencement date (CD) is sometimes not the same as the date when the tenant has to start paying rent, oftentimes referred to as the rent commencement date (RCD). The CD usually dictates when the parties’ obligations under the lease begin; the RCD may not start until a subsequent date certain after a negotiated free-rent period or perhaps until certain preconditions occur or are satisfied by the tenant.

One of the common reasons for the delta between the CD and the RCD is the con-

struction of or improvement to the leasehold premises, to be completed by either the landlord’s or tenant’s contractor(s). If this occurs, it is important to clearly delineate exactly which milestone(s) must be met in the construction process before rent begins. Not only must the milestones be clearly described, but the method of proof regarding the milestones has to be specific. For example, if the RCD occurs only when “substantial completion” of the project is done, how will the parties define “substantial completion” and how will it be communi-

cated? Sometimes this can be delegated to a contractor, but regardless, effort and diligence are needed at the time of lease drafting to eliminate confusion later in the landlord/ tenant relationship.

Similarly, if the RCD is dependent upon any permits or licenses, it is important to clarify whose responsibility it is to procure the permits, the time allotted to secure the permits, and how exactly the procurement triggers the RCD. For instance, it could be either the issuance of the permit itself or the landlord’s receipt of the permit which triggers the RCD.

Landlords should also be careful to provide an opportunity to terminate the lease in the event the tenant is responsible for satisfying pre-RCD conditions and fails to do so. The timeline for the tenant to complete its obligation is a lease-by-lease consideration, but the landlord should have clear rights to regain possession and recover its damages for the tenant’s failure to meet these conditions. Otherwise, a dilatory tenant could avail itself of ambiguous or incomplete lease language to delay a project and avoid paying rent, resulting in long delays for the landlord to reclaim its premises to rent to another tenant.

Careful drafting also mandates a clear description of what exactly a tenant does not have to pay between the CD and RCD. While base rent is often a tenant benefit during this period, it should not be the only payment obligation addressed. Landlords should consider whether the tenant has to pay for operating expenses/common area expenses, taxes, insurance, or utilities during this time period. Regardless of whether these additional tenant benefits are included, it should be very clear which party (landlord or tenant) is responsible for these expenses during this period between the CD and RCD.

Any time there is a difference between the CD and RCD, prudent drafting also includes a lease commencement form exhibit for both landlord and tenant to execute once these dates are known and agreed upon. This template form includes blanks for the CD, RCD, and lease termination date (which can be adjusted by the RCD) and can go a long way in eliminating confusion or even preventing litigation later in the lease term.

What’s also related to an RCD, but may not appear in the section of the lease near the CD and RCD, is maximization of the landlord’s rights upon a tenant default. For instance, if the landlord provided free rent or if it incurred some of the construction/improvement expense, the default remedy section should protect the landlord’s specific rights to recover these damages. If this language does

not appear, a landlord’s maximum recovery can be avoidably limited.

While not directly related to a CD or RCD, parties’ signatures on lease documents otherwise ready to be executed are often an overlooked issue. In my practice, I have come across circumstances wherein an individual alleged authority on behalf of an entity in a landlord/tenant matter when, in fact, he did not have proper support pursuant to the company’s operating agreement. In simple terms, the individual signing a lease on behalf of an entity (usually the case in commercial leases) must have authority to sign on behalf of the entity. While a client’s aﬃrmative representation about their ability to sign on behalf of an entity is likely to be correct, it is often necessary to ask for the entity’s governing documents (like an operating agreement or bylaws) to aﬃrm the signatory has proper authority.

A related issue regarding lease signing is conﬁrmation that the entity to be bound, as either landlord or tenant, is properly listed. For example, if the landlord is registered as

“ABC, LLC,” it should not be listed as “ABC Company” or “ABC, Inc.” in the preamble or signature block to a lease. Such a mistake could create unnecessary challenges in the event litigation ensues from either a monetary delinquency or other lease terms. So, before signing, make sure the entity names are listed correctly with no errors. e best tool to complete this task, the Department of Licensing

and Regulatory Aﬀairs entity website (cofs.lara. state.mi.us/SearchApi/Search/Search), is readily accessible for real estate practitioners.

In summary, whenever a tenant’s obligation to pay fails to match when the lease technically starts, real estate attorneys should stop and make sure they address all aspects of the parties’ contractual relationship in the body of the lease. Additionally, signature blocks and entity names on leases should not be overlooked in the drafting process. Such attention to lease detail avoids confusion, disagreement, and, potentially, litigation.

M. Harris is a shareholder at South eld, Michigan-based law rm Maddin Hauser Roth & Heller P.C., where he practices with the rm’s Real Estate, Corporate and Business, and Business Litigation practice groups. Harris is a former mayor of Birmingham, where he lives with his wife, two sons, and two dogs.

hi-lo

Andrew

e mission of the Oakland County Bar Association is to serve the professional needs of our members, enhance the justice system, and ensure the delivery of quality legal services to the public. We fulﬁll our mission through our 30 committees, regular networking events, and numerous educational programs for both OCBA members and the public. We work hand in hand with the OCBA volunteer board directors and members, and we partner closely with the courts.

Below are recent examples of the OCBA at work in service to the bar and to the community.

February Seminar on Trial Strategies for Millennial Jurors

A total of 26 attendees — from attorneys at large ﬁrms to solo practitioners — participated virtually in the interactive trial strategies seminar held on February 13. e program oﬀered an insightful overview of millennial jurors, exploring their attitudes, beliefs, communication styles, characteristics, and expectations. Additionally, the seminar covered key aspects of trial strategy, including voir dire considerations, trial presentation, common myths, and damage awards. e session was led by Manson Ho, Esq., director of litigation services at Magna Legal Services, a nationwide provider of comprehensive litigation support services.

Paralegal Committee February Meeting

Chair: Jessica Schefman

Vice Chair: Alda Gojcaj

In an effort to engage the younger generation and potentially inspire future membership, the Paralegal Committee virtually hosted 12 students from Oakland Community College’s paralegal certificate program for a Q&A session with committee members on February 11. e session, moderated by committee Chair Jessica Schefman, was attended by over 20 participants. e committee collaborated closely with Sarah Bowman, OCC’s paralegal program director, who guides these dedicated students through their 34-credit paralegal certificate program.

New Lawyers vs. the Board Challenge

On February 20, the New Lawyers Committee went head-to-head with the OCBA board of directors in the 20th annual New Lawyers vs. the Board Challenge! This year, the event returned to one of their favorite venues, Topgolf in Auburn Hills, where approximately 35 attendees gathered to enjoy the friendly rivalry. Members came out in full force, cheering on their teams while soaking up the excitement, camaraderie, and networking opportunities from the sidelines. After last year’s impressive victory, the New Lawyers Committee once again claimed the trophy, continuing its winning streak!

For the last seven years, the Oakland County Bar Foundation’s largest grants have gone to Lakeshore Legal Aid, and with good reason. According to its 2022 annual report, Lakeshore staff and volunteers collectively spent over 106,600 hours providing free legal services to 16,747 Michigan residents with pressing legal needs such as help with eviction, predatory lending, criminal record expungement, and unemployment compensation.1 This extensive service is not simply a matter of several staff and volunteer attorneys taking on a lot of cases. One of the traits that distinguish Lakeshore is its holistic approach that also addresses clients’ nonlegal needs, which often pose obstacles to achieving their legal goals.

Lakeshore’s origins date back to 1966. Today, it is the largest legal aid firm in Michigan, with seven locations in southeast Michigan, including Pontiac. Lakeshore’s board of directors includes representatives of several of Detroit’s large commercial firms and a former president of the State Bar of Michigan. Most of its funding comes from federal sources.2 However, the foundation has supported Lakeshore since 2006 with grants totaling $967,500, which Lakeshore can use to leverage contributions from other private sources. Ashley Lowe is Lakeshore’s CEO, and she runs it with a humble, unflappable efficiency that earned her the 2024 Eleanor Josaitis Unsung Hero Award, part of the Shining Light Awards recognizing regional leadership.

Ms. Lowe was a staff attorney at OaklandLivingston Legal Aid, a predecessor to Lakeshore, from 2000 until it lost its funding in 2003. Ms. Lowe then started a legal aid program for the Women’s Survival Center, where she discovered the value of a holistic approach to serving legal aid clients. She observed that clients in crisis often cannot focus on their legal needs. The Women’s Survival Center also provided child care and counseling, which addressed some obstacles that the lawyers could not. Helping the clients with these nonlegal needs freed them up to work better with their lawyers and resulted in

GRANT RECIPIENT PROFILE: Lakeshore Legal Aid

By Jeffrey G. Raphelson

better outcomes for the clients.3

Ms. Lowe became a firm advocate for this holistic approach. While the clients appreciate their lawyer’s time and assistance, they often need to prioritize, or simply cannot resist the distraction of, other issues. Finding shelter, putting food on the family table, or a session of substance misuse can preclude meeting with the attorney handling longer-term legal matters. For such clients, Lakeshore provides nonlegal assistance through client support advocates and partner organizations. It helps clients obtain benefits, counseling, employment, and other relief. Stabilizing the clients’ circumstances enables Lakeshore’s clients to engage with the lawyers pursuing the clients’ legal goals.

The Oakland County Bar Foundation principally supports two of Lakeshore’s programs: the Family Law Assistance Project (FLAP), which provides a variety of family

law services to low-income individuals, and the Estate Planning Clinic, which assists lowincome seniors (age 60 and older) in preparing life-planning documents.

Historically, FLAP staffed a walk-in intake clinic at the Adams-Pratt Law Library every other Wednesday. When the clinic closed during COVID, Lakeshore implemented a hotline and took referrals from other social service agencies. In August 2022, FLAP reopened its clinic at the Oakland County Friend of the Court facility. Staff members at the FLAP clinic triage clients’ family law matters, prioritizing the most urgent legal issues related to custody, parenting time, paternity, and divorce.4 Attorneys assess each case, addressing immediate concerns first while guiding clients toward long-term legal solutions. FLAP clients frequently struggle to find or maintain stable housing, which directly impacts their ability to secure custody, establish

The Oakland County Bar Foundation’s mission is to ensure access to justice and an understanding of the law in our community. It is dedicated to:

Improving and facilitating the administration of justice in Oakland County and throughout the state of Michigan;

Ensuring to the fullest extent possible that legal services are made available to all members of the public;

Promoting legal research and the study of law as well as the diffusion of legal knowledge;

Promoting the continuing legal education of lawyers and judges; and

Educating the public as to their legal rights and obligations, and fostering and maintaining the honor and integrity of the legal profession.

If you know an organization that could use assistance to pursue these goals within Oakland County, please refer them to ocba.org/ocbfgrants, where they can find information about applying for a grant from the foundation.

parenting time, or ﬁnalize a divorce. Lakeshore client support advocates connect individuals with housing resources, ﬁnancial assistance, domestic violence support, and other essential services, helping them gain the stability needed for progress with their legal issues.

Consider the case of a mother who recently presented to a FLAP clinic for assistance with a custody matter. She had been the primary caregiver for her teenager until January, when she became ill and lost her housing. As a result, the child went to live with the father, who threatened to seek modification of the custody and child support arrangements. e FLAP intake attorney referred the mother to a client support advocate to address her lack of housing. e advocate learned that the client was a veteran and explored veteran-specific housing resources, which offered a faster and more accessible shortterm housing solution through room-and-board programs. Securing stable housing will be the silver bullet to protecting the mother’s custody and child support arrangements.

Lakeshore’s Estate Planning Clinic helps Oakland County seniors gain peace of mind, protect their autonomy, and ensure their families are not burdened with probate and estate

complications after the seniors pass. Many of the clinic’s clients face significant financial or health-related barriers. ey are usually unaware of how estate planning can provide security, dignity, confidence that their wishes will be followed, and the ability to make decisions on their own terms.

In addition to meeting with individual clients, the Estate Planning Clinic offers presentations and walk-in clinics at senior centers, senior residential facilities, and assisted-living centers. ey educate older adults on the benefits of estate planning tools such as powers of attorney for health care and finances, wills, and ladybird deeds and assist the clients in preparing such documents as may be appropriate for their situations, without triggering probate or jeopardizing other benefits.

Lakeshore makes an extremely positive impact on the lives of vulnerable, underserved Oakland County residents. Your contributions to the foundation make its support of Lakeshore possible, for which we thank you. If you are inclined to assist in its good work as a volunteer, I encourage you to contact Lakeshore via its website, lakeshorelegalaid.org. ere are many opportunities.

Je rey G. Raphelson is the president of the Oakland County Bar Foundation and a member and general counsel of Bodman PLC. He focuses his practice on commercial litigation, particularly matters related to the automotive and banking industries, as well as general commercial cases involving contract, intellectual property, corporate governance and dissolution, and dealer and franchise termination disputes. He has served on numerous State Bar of Michigan committees and is a current board member and treasurer of the Historical Society for the U.S. District Court for the Eastern District of Michigan.

Footnotes:

1. The ﬁgures from Lakeshore’s 2021 annual report were over 102,000 collective hours and 15,274 clients served.

2. Loss of funding, particularly federal funding in the current environment, is a constant threat to Lakeshore’s mission.

3. The Women’s Survival Center closed in August 2006 after it lost funding needed to administer its programs.

4. FLAP also supports clients needing assistance with child support, annulment, separate maintenance, and paternity issues.

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The Kids Are Alright!

By Richard Lynch

With a tip of my hat to e Who1 and a more recent, similarly titled ﬁlm2 starring Annette Bening, Julianne Moore, and Mark Ruﬀalo, I think today’s kids are alright. Put another way, it seems that it has become all too easy to criticize the next generation, regardless of when one lives. One regularly hears comments about kids today that could have been said during my late-boomer childhood or about the high schoolers and young adults in It’s a Wonderful Life.3 Let’s face it — this trend dates back even further than my childhood.

“Our youth love luxury. ey have bad manners and despise authority. ey show disrespect for their elders and love to chatter instead of exercise. Young people are now tyrants, not the servants of their household. ey no longer rise when their elders enter the room. ey contradict their parents, chatter before company, gobble up food and terrorize their teachers.”4

is quote attributed to Socrates, perhaps apocryphally, expresses an ongoing complaint about the next generation.

After having the honor of participating as a scoring judge in the Oakland County round for the Michigan Center for Civic Education’s high school mock trial competition, I question some of the concerns. Beginning at 7 a.m. on Saturday, February 22, 2025, over 300 students, teachers, advisers, family members, and volunteers descended upon the Oakland County Courthouse. ey spent the day completing three mock trials before panels of attorneys. e students performed as attorneys, witnesses, and supporters. ey arrived with trial books and marked exhibits. ey displayed a knowledge of court protocol and civility that could serve as a model for some practitioners. ey crafted arguments, moved for the admission of evidence, and argued objections. At times, it was easy to forget that most of the students competing were too young to vote. While this was my ﬁrst time

participating in this program, I know that it will not be my last.

e Michigan Center for Civic Education (MCCE) hosts a variety of programs designed to educate and develop the next generation as engaged citizens. Established in 1982, the MCCE oﬀers nonpartisan legal and civic education programming throughout Michigan. e high school mock trial competition is one of the many programs that it oﬀers in furtherance of this mission.

is year’s program considered the case of State of Michigan v. Hunter Hemingway, which arose when Hunter Hemingway shot his coauthor Hollie Wood during a dress rehearsal of their new play Burr before acclaimed Hollywood producer Scout Ting. e students presented their proofs on whether Mr. Hemingway, who had a tumultuous creative relationship with Ms. Wood, intentionally shot and killed her or whether this was a tragic accident in which an unattended prop pistol was erroneously loaded with actual lead shot rather than the paper wadding intended for the climactic scene. Questions arose about whether a recently ﬁred cast member or the volunteer stage manager may have tampered with the pistols or whether Ms. Wood had actually intended to shoot Mr. Hemingway. In under two hours, the students took the case from opening statements through the examination of three witnesses on each side to closing arguments. Each side had to address evidentiary issues to establish their proofs and clarify the confusion created by an intentionally fuzzy fact pattern while on the clock and without electronic devices.

To my knowledge, mock trial competitions did not exist in Chicago when I was in high school. If they had, I doubt that I would have displayed the poise and polish of the high schoolers I observed. While it is unclear whether any of the participants will go on to pursue a legal career, I have no doubt that each of the students will walk away from this experience with a far better understanding of how the law operates

in Michigan trial courts. For as Dr. Martin Luther King Jr. stated, “ e function of education, therefore, is to teach one to think intensively and to think critically. … Intelligence plus character — that is the goal of true education.”5

Students’ participating in a program that teaches them how the legal system operates not only furthers basic educational goals but also prepares our next generation of civic-minded adults. e students I observed delved into the issues before them with a curiosity and desire to learn. ey learned that the law and trial practice consist of more than a series of extemporaneous, unsupported statements, but are a product of diligent study and thought molded into cogent arguments. is seems like a pretty solid curriculum. e students I observed are diligent, dedicated, and passionate. ey work hard. ey take risks and are willing to put themselves out there to accomplish their goals. If this is what the future looks like, then the future looks very promising.

If you have participated in the MCCE mock trial this year or at some point in the past, I thank you. I would like to acknowledge Mary Bowen, Zenell Brown, Erika Bryant, Sonia Cannon, Ashley Chalut, Tracy Clark, Hon. Beth Contorer, Lisa Denard, Roquia Draper, Lydia Fields, Hon. Kameshia Gant, Amanda Gardner, Brian Grant, Katie Iraci, Sandra Kacprzak, Linda Kennedy, Shane Kolo, Gabrialle Larkin, Tracey Lee, Julie Markgraf, Philip Matthews, Bethany Morrison, Timothy Mulligan, Julianne Pastula, Jakia Peterson, Owen Purdue, Jamerika Ramsey, Eric Roberts, Wanda Roberts, Elizabeth Rogers, Michael Roth, Elizabeth Silverman, Darnell Smith, and Hon. Adrienne Young. If I missed anyone who volunteered, I apologize for my oversight. If any of the information in this article intrigues you, I recommend that you pencil in the Oakland County regional for the third Saturday in February 2026. I will see you at 1200 N. Telegraph to observe and cheer on some amazing students. I look forward to seeing you next year!

Richard Lynch is the court administrator for the Oakland County Circuit Court.

Footnotes:

1. thewho.com/music/the-kids-are-alright

2. imdb.com/title/tt0842926

3. imdb.com/title/tt0038650

4. professionalleadershipinstitute.com/tips/socratesview-of-youth

5. kinginstitute.stanford.edu/king-papers/documents/ purpose-education

Matis

2023-199875-NH

Paul Howard v. Michigan

Healthcare Profession

Milton Greenman

Jonas Parker

Matthews

2/10/2025

Matthews

2/24/2025

Matthews

O'Brien

2/25/2025

O'Brien

Valentine

1/27/2025

2/10/2025

2/27/2025

2/18/2025 2/3/2025

2/3/2025

Warren

2023-199637-NH

Joyce Barber v. Lawrence Morawa

2023-202785-CD

Jane Doe v. Science Beauty Tech, LLC

2024-291552-FH People v. Lyons

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2023-286072-FH People v. Johnson

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2023-199795-CB

Detroit IT v. LS Investment Advisors

2021-277286-FH People v. Jones

2024-290202-FH People v. Beelby

HattyVisiting Judge

Ronayne

KrauseVisiting Judge

2023-284826-FH People v. Leese

2023-199365-CH

Steven Williams v. 324 Oak Street, LLC

Ronnie Cromer, John Scarbrough Cullen McKinney

Todd Flood, Megan Bonanni, Zachary Runyan Jonathan Jones

Stephen Frey Joshua Van Laan

Allison Krueger Duane Johnson

Dillon Salge George Chedraue

Kimberly Woodard George Chedraue

Ian Bolton J. Sriro, B. Low, A. Boey

Andrew Duff Daniel Blank

Andrew Duff Patrick Gagniuk

Danielle Librandi Amy Hopp

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Edward Ewald Jr.

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Take a Hike

By Judith K. Cunningham

How and when did “take a hike” become a pejorative expression, an insult? Curious about this, I did some research. Apparently exactly when “take a hike” became a figure of speech is unknown, but it may have emerged in the mid-20th century when idioms like “hit the road” and “get lost” became popular.

From my perspective, taking a hike is a positive activity or endeavor — getting out in the fresh air, experiencing the change of seasons, being mindful of the movement of the body, and clearing the mind, not to mention getting much-needed exercise.

Think about how much time you probably spend sitting at a desk, often staring at a computer screen. If you take even a short break from that sedentary position, get up, and walk around, you’ll likely feel better when you return to your desk. Even if your short walk is indoors. In his “Out of Office” column in the February issue of Laches, OCBA President Dean Googasian also encourages walking as a break from the many demands on our time.

For my part I have been “taking a hike” in my neighborhood for 38 years. My subdivision is built around an oval roadway, the perfect walking track. I started my early-morning walks in 1987 doing two laps around the oval. Within a week that increased to four laps, and by the end of the second month I was doing six or more laps. It wasn’t long before I ventured out beyond my neighborhood to walk

in nearby subdivisions and other venues, occasionally walking my errands with a backpack to carry light purchases home. Since I walk about five times per week (on my off-days I do yoga) I figure I have taken about 9,900 walks since I started my walking journey.

For the last several years, I’ve had the pleasure and company of walking with my neighbor Linda, a dedicated public servant who works with Oakland Community Health Network. Although I didn’t need to be nudged about walking almost daily, I quickly realized that when you’re meeting a friend or neighbor to walk with at a specific time, you’re not likely to skip the walk. Having a walking buddy motivates you to get out there and be on time — and it’s a social connection, too. In fact, during those awful and scary early months of the COVID-19 pandemic, Linda was my only in-person social connection — when everything else was on Zoom. She was a lifeline to in-person community for me.

Linda and I walk year-round, no matter the weather. I’m often asked, “What do you do if it’s raining?” We take our umbrellas and wear slickers. Unless of course it’s a thunderstorm, in which case we adjust the time for our walk, maybe go later in the day. If it’s really cold or snowing, we layer our clothing, wear appropriate footgear, and attach cleats to our boots if it’s icy. As long as the temperature is in the teens or above, we walk outside. If it’s really cold, as it was this past winter, we occa-

sionally drive to a mall to walk. These weather issues don’t make for the most comfortable or convenient walks, but Linda and I are both committed, somewhat maniacal, and in sync about our walks.

I have walked in many locales in my walking journey. During my career with the circuit court and as Oakland County corporation counsel, I frequently attended conferences and programs throughout Michigan and the country. I’ve always managed to find a place to walk, whether outdoors or in a conference center or hotel gym or exercise facility. In Lansing, Grand Rapids, Traverse City, Bellaire, Gaylord, Marquette, I’d find a place to walk, either with a friend or colleague or on my own.

Likewise with conferences and meetings outside of Michigan: Chicago, Atlanta, San Francisco, New Orleans, Toronto, Virginia, Nashville. Walking in a new or different locale is a great way to explore a city, check it out, and leisurely see the sights.

I’ve walked in all the countries I’ve visited with my family: Spain, France, Mexico, Italy, Ireland, England, Canada, Ecuador, Turks and Caicos.

When you walk in a new environment, you see and experience so much more than you can from a car. Once, in the Florida Keys, I was out on my morning walk and noticed a small sign, not visible from the main road, for boat rentals near a canal. I stopped and asked about renting a pontoon boat for the following day.

Judy Cunningham (center); Judy’s son, Judge Jacob Cunningham (left); and Judy’s daughter, Meredith Montgomery (right), walking the beach in Cancún, Mexico, in March 2025.

at day on the pontoon turned out to be the highlight of our vacation.

On a morning walk in Paris I found a hidden gem on a side street I’d taken to avoid traﬃc: a small, exquisite restaurant tucked away in a quiet part of the city.

In Ireland I hiked in the hills near our hotel, not having any particular destination in mind, just wanting to see the landscape and get some fresh air. At the crest of a steep hill, I came upon what appeared to be an ancient stone circle. A young woman behind a makeshift counter at the entrance to the area charged me a modest price to enter, which seemed curious, but of course I paid. I wanted to check it out. I’d read several of the Outlander books by Diana Gabaldon, and if you’ve read them or watched the televised series, you know the mystique about stone circles. I was the only visitor to the stone circle that morning. It was sunny, quiet, and peaceful, a lovely setting and a lasting memory of a road less traveled.

I have encountered moving sales, estate sales, garage sales, etc., on my walks. Occasionally I’ll stop in to see what’s for sale and just

browse for fun. I don’t carry money with me on my walks, so if I want to buy something, I put my items aside and arrange with the people in charge to come back with my car and money.

Several years ago I had set aside a few items at an estate sale and said I’d be back within a half hour. When I returned to the sale, I noticed one more item that looked interesting: a Rolls-Royce umbrella with “RollsRoyce Owners’ Club” printed on the strap that holds the umbrella together when it’s closed. I

asked the checkout person to add the umbrella to my tab, but she said to just take it with the other items I’d paid for and didn’t charge me. is is the best umbrella I’ve ever had — and it’s lasted for years. What a ﬁnd — but I would have missed the estate sale had I not been walking that morning.

Here’s the bottom line: Walking is good for your head, heart, health, and happiness.

Enough said. You get the drift. You can see that I’m a fanatic about walking and committed to keep taking hikes as long as I’m able. In fact, it’s getting time for me to take a break, take a walk, take a hike.

And since it’s raining, I’d better take the Rolls …

Judy Cunningham is a former OCBA president and worked in Oakland County government for over 30 years. She was the rst woman to serve as the county’s corporation counsel. Prior to that, she was the court administrator/counsel to the circuit court. She’s the proud grandmother of two. Her daughter, Meredith, teaches Spanish at Berkley High School, and her son is Circuit Court Judge Jacob Cunningham.

Sandra D. Glazier, an active member of the OCBA’s Probate, Estate and Trust; Family Court; and Legislative committees, is pleased to announce the formation of her firm, Sandra D. Glazier P.C., located in Troy, Michigan.

With over 40 years of experience, Glazier concentrates her practice in probate litigation, estate planning, estate and trust administration, and family law. Glazier is an AV-rated Super Lawyer who co-authored the American Bar Association’s book Undue Influence and Vulnerable Adults. She is also a commissioner on the ABA’s Commission on Law and Aging, frequently writes for nationally recognized legal publications, and presents at national continuing legal education programs. Her most recent presentation was as a panelist at the ABA RPTE National CLE Conference on “Dealing with Marginal Capacity: Navigating Problems Facing Independent Adults in Cognitive Decline” on April 30 in Las Vegas.

The law firm of Couzens Lansky is pleased to announce that Sara Zivian Zwickl has joined the firm as of counsel. Zwickl is a member of the State Bar of Michigan and Oakland County Bar Association.

Zwickl received a B.A. from Indiana University and her J.D. from the University of Michigan Law School. She was admitted to practice in the state of Michigan in 1982. Zwickl is a highly skilled attorney who focuses her considerable expertise on the needs of families and individuals in the areas of estate planning and probate and trust administration. She also serves as a mediator, helping parties find peaceful resolutions to their disputes. Her skills as a mediator help her clients, who benefit from her listening, negotiation, and conflict resolution skills.

Zwickl is also affiliated with Zivian & Zwickl Attorneys & Counselors with an office in Farmington Hills, Michigan.

Plunkett Cooney attorney Andrew J. Lorelli was recently elected as a council member and vice chair of the State Bar of Michigan Military & Veterans’ Law Section.

As a council member, Lorelli will be responsible for helping to create an exchange and dissemination of ideas among members through meetings, networking events, and communications to improve the practice of military law and the quality of legal services provided to the military community. As vice chair, he will be responsible for the development and coordination of educational programs at the annual meeting and assist in coordinating activities for the SBM Military & Veterans’ Law Section with other state bar sections that are complementary in scope and learning objectives.

Lorelli, a member of the Trusts & Estates practice group of Plunkett Cooney, served four years on active duty as a judge advocate in the U.S. Marine Corps, having been stationed in Okinawa, Japan. Lorelli has a decade of experience working in the areas of trust and estate planning and trust and probate administration, including decedent estates, guardianships, conservatorships, and special needs trusts. He drafts estate plans; prepares fiduciary accounts in trusts, decedent estates, and conservatorships; and handles contested and uncontested probate matters across Michigan.

In addition to the SBM Military & Veterans’ Law Section, Lorelli is a member of the organization’s Probate & Estate Planning Section. He is also a member of the Oakland County Bar Association’s Probate, Estate and Trust Committee and Veterans Law Committee. Lorelli received his law degree in 2013 from the University of Iowa College of Law and his undergraduate degree in 2009 from the University of Michigan.

Career change? Promotion? Received special recognition?*

Let us share your great news here in Laches and on social media. Simply send a short announcement or press release to jquick@ocba.org along with a high-resolution photo. Inclusion in In Pro Per is free and exclusive to OCBA members.

*The OCBA does not publish announcements about recognition in Super Lawyers or “best of” lists due to the large number of members who earn that recognition each year. Other exclusions may apply.

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2025 Circuit-Probate Court Bench/Bar Conference

On March 7, the OCBA hosted its biennial half-day Bench/Bar Conference at the Auburn Hills Marriott Pontiac, providing a unique opportunity to foster connections between Oakland County’s circuit and probate bench and OCBA bar members. The event focused on mastering digital tools in modern legal practice while avoiding common pitfalls. Nearly 200 attendees gained valuable insights through engaging sessions and roundtable discussions covering topics like AI challenges, professionalism, malpractice prevention, family matters, ethics, and more.

The conference began with breakfast and opening remarks from Michigan Supreme Court Justice Richard H. Bernstein, Chief Circuit Judge Jeffery S. Matis, and Probate Judge Daniel A. O’Brien.

Kari Melkonian, Daniel Quick, and Julie Kosovec give an Oscar-worthy performance during a demonstration of how to handle a bully attorney.

Attendees of the business breakout sessions brainstorm and propose potential legislative and court rule reforms.

From left to right: David Williams, Hon. Kwamé Rowe, Layne Sakwa, Tracey Walton, Beth Greenberg Morrow, and Mikayala Ohannessian.

Hon. David J. Szymanski (ret.) addresses attendees of the probate session via Zoom on effectively using ADR in contested probate matters.

From left to right: Moneka Sanford, Cameron Bell, and Emile O’Neill.

From left to right: Elizabeth Hohauser, Lisa Stern, Pamela Monville, and Vivian Howell.

Kari Melkonian moderates an expert panel on avoiding the pitfalls of grievances and malpractice claims including Hon. Jeffery Matis, Judith Cunningham, Michael Goetz, and James Hunter.

The family session panelists, Referee Rebecca Decoster, Hon. Amanda Shelton, Hon. Kameshia Gant, Referee Tyler Martinez, and Ellen Paynter.

From left to right: Donald Campbell, Dean Googasian, Hon. Daniel A. O’Brien, Justice Richard Bernstein, and Hon. Jeffery Matis.

Donald Campbell provides practical advice on leveraging artificial intelligence responsibly in legal practice.