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Cottage-225x300Northern Michigan has been a beloved vacationing destination for many years. Families develop annual traditions, with each generation introducing the next to the beautiful countryside and artistic spirit found throughout the region. Frequently, a member or several members of the family decide to purchase a cottage, preserving the summer tradition for all the generations to come.

The family cottage has invaluable sentimental value; however, oftentimes it appreciates in financial value over the years. Over the last 40 years, the greater Grand Traverse region has become a premier national vacation destination. The local real estate market has seen near constant appreciation, which has accelerated to sometime outrageous rates since the housing bubble collapsed in 2008. It is not uncommon for a modest cabin, purchased or built in the 1960s, to now be worth in high six, or even seven figures, if it has a significant amount of frontage on the right lake. Finally, the vacation rental industry has exploded into a major economic factor. The family cottage may not only be an appreciable asset, it can become a significant source of revenue, if the owners so desire.

The significant value associated with a family cottage can become problematic after its ownership has been distributed amongst a number of family members after the death of the first generation. Subsequent generations may have less attachment to the Cottage. In some cases, new owners may financial constraints on how much they can contribute to the maintenance of the property. Other owners may see the property as an investment, rather than a vacation destination.

Trust-300x225The trust. For many people, trusts are an intimidating legal construct they don’t want to be bothered with, perhaps feeling as though it is a needless complication created by lawyers to make money. Although having a trust may not be appropriate for some families, it can be a stable platform with which to address a number of problems outside of a courtroom, ultimately saving money and heartache. Consequently, it has become central to most. Below, I touch on several common trusts, but please note, these descriptions are far from exhaustive on the subject.

But first, what is a trust? Well, imagine that the concept of ownership isn’t one right, it is a bundle of rights. If I own a piece of real estate, I have the right to sell it, to develop it, to live on it. These rights can be split from one another. For instance, I can rent the property to someone, so I no longer have the right to live on the property, but I still own it. I can transfer my right to sell the property by selling someone an exclusive option to purchase it, but still maintain possession of the property. This concept of fractured ownership rights is important to a trust.

The trust itself can be viewed as a separate, individual person. It can open a bank account, purchase land, invest in the stock market, etc. But of course, someone must direct it to do so. This person is the trustee. The trustee has the authority to direct the trust and to act on its behalf, which is the “ownership interest.” However, unless the trustee is also a beneficiary, he or she cannot use any of the trust assets for his or her personal benefit.

Child-199x300Every parent wants to provide the very best they can for their children, directly or indirectly dedicating most of their waking hours towards building a safe and happy home life, and part of the beautiful innocence of little children is their complete ignorance of their parents’ hard work and sacrifice dedicated to providing a home. The child feels safe because of the mother’s and father’s mere presence.

Sadly, we live in a world of not only childish innocence, but one of tragedy and loss. Although a parent would gladly trade places with his or her child in the event of disease or physical trauma, we are never given that choice. Yet sometimes, children do have their parents torn from them at a young age. Losing a parent at a young age is one of the most devastating life events a human can experience. Not only is there a terrible sense of loss, the child’s future is suddenly uncertain. Who will raise the child? How will they pay for the child’s needs? Will there be a family fight to determine both?

Under Michigan law, a minor that loses his or her parents will either be placed with friends or family, or in the absence of a willing caregiver, be placed into the foster care system. As parents, we do not want our bereaved children to go through any unnecessary distress or uncertainty. Consequently, it’s a parent’s responsibility to have an estate plan that nominates the children’s caretakers in the event of their death. To learn more about estate planning, you will find an article discussing the basics here.

melinda-gimpel-wkfZyteTMOA-unsplash-300x169“I can find a will one online . . . Easy-peasy, right?”

Although one can certainly complete a will online (some a very well drafted), and it will effectively transfer your property upon your death, an estate plan is much more than a list that tells ‘who gets what.’ Proper planning provides desperately needed certainty in times of crisis, often before anyone passes away. About half of the operative instruments in an estate plan are only effective during one’s lifetime—they cease to have power upon your death. Below, I try to comprehensively outline the major components of an estate plan Please note that there is more to estate planning than what is discussed below. This article only covers the common foundational instruments of a typical plan.

Broadly speaking, an estate plan addresses two main goals: (1) empowering friends and family so they might assist you while you are living, and (2) instructing those you choose to manage your affairs in death. While there are certainly people in the world that can get by without an estate plan, if you have any meaningful assets, children, family tension, or health condition, proper preparation will make the road much easier for those closest to you. Moreover, every last one of us could suffer an injury or illness. The protection an estate plan can afford you while you’re still living is invaluable.

Datamaster-300x200On January 13, 2020, the Michigan State Police (“MSP”) declared every evidentiary breathalyzer in the State of Michigan compromised and unusable. The contractor responsible for calibrating the machines falsified certification records, making test results from those devices inadmissible in court. Although the criminal fraud investigation has only just begun, the MSP has identified 52 drunk driving cases that have been compromised, and at least 12 of those cases have already been dismissed.

The situation is dripping with irony. Someone’s scheme to avoid an afternoon of work, pretending it was already completed, created a statewide crisis that investigators, judges, attorneys, administrators, law makers, and untold others will spend countless hours fixing. Nevertheless, allowing unmonitored drunk drivers back on the road is a serious matter. Courts will not be able to mandate treatment for individuals convicted of Operating While Intoxicated (“OWI”), foregoing a critical opportunity for judicial intervention into a serious public health concern.

Most people are familiar with an intervention, where friends and family gather together to try and convince someone to accept treatment for a substance use disorder. Well, a large number of successful interventions are conducted under judicial supervision. When first detained, the suspect will be under constant observation by law enforcement. When the suspect is subsequently released on bond, he or she will be subjected to community monitoring, including regular alcohol and drug testing. Prior to sentencing, most courts conduct a substance abuse evaluation, where an experienced social worker evaluates the defendant’s substance use disorder(s), if any. Armed with the results of the evaluation, courts will order proportional and targeted treatment during sentencing. The underlying threat of a probation violation and possible jail time for non-compliance motivates compliance with treatment.

FDA-300x221On May 23, 2017, Dr. Amy J. Reed, an anesthesiologist and mother of six children, passed away in her home at the age of 44. Her life was cut short by an aggressive form of uterine cancer, leiomyosarcoma. For her husband, the tragedy of her early death is entwined with regret and anger, as the two of them fought not only Stage IV leiomyosarcoma, but an intractable profession and the industry which profits from its practice.

At the age of 40, Dr. Reed was diagnosed with uterine fibroids. Fibroids are masses of the smooth muscle cells lining the inside of the uterus. Although fibroids are generally considered benign, their presence can cause serious discomfort and pain in the pelvic area. To treat her condition, Dr. Reed underwent a hysterectomy. She chose to have the procedure performed at Brigham and Women’s Hospital in Boston—the hospital is affiliated with the Harvard Medical School, where both Dr. Reed and her husband, Dr. Hooman Noorchashm both held teaching positions.

After her surgery, the tissue was removed, and a biopsy was performed. The tissue contained leiomyosarcoma cells, an extremely aggressive form of uterine cancer. Although the biopsy revealed that the cancer cells had been confined to a very small area within a fibroid, the procedure through which the fibroids were removed seeded malignant cells throughout her abdomen. The dissemination of cancer cells caused her cancer to accelerate to Stage IV. The five-year survival rate for patients diagnosed with Stage IV leiomyosarcoma is only 14%.

Lots-of-Guns-300x200I have posted several blogs regarding the legal considerations surrounding firearms. The first post related to the Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 (2005), et seq., (“PLCAA”), which prohibits lawsuits against gun manufacturers and dealers, except under very limited circumstances. I also wrote about the surviving families of the Sandy Hook massacre’s lawsuit against Remington Arms Co., under PLCAA, based upon violation of a state consumer protection law. More recently, I wrote about the City of Kansas City’s lawsuit against a gun manufacturer, Jiménez Arms, and several gun dealers arising out of a gun trafficking ring. This blog explores that trafficking ring, how it worked, and what damage it caused before it collapsed with the arrest of the main perpetrator, James Samuels, on October 4, 2018.

Samuels, a captain with the Kansas City fire department illegally traded in arms from 2013 to 2018. Domestic gun traffickers usually sell to two types of clients. First, they sell firearms to “prohibited persons,” which are individuals restricted from owning or possession a firearm. Under federal law, anyone convicted of a felony is permanently banned from owning or possessing a gun. This leads to the second reason gun traffickers exist. The guns they sell will not be traceable to the purchaser, as the transaction is not recorded. Much of the time, the gun has been reported stolen, so it has no owner. A felon that wants to have a firearm can buy that gun from a trafficker, and when if it is used in the commission of crime, it can be disposed of without concern of being identified through its registration.

On November 22, 2013, Samuels placed a call to Jiménez Arms, a gun manufacturer with the reputation for building very cheap pistols, ideal for disposal after committing a crime. He told the company contact that he was a firefighter but worked part-time at Conceal & Carry (C&C), a gun dealer in Kansas City. The manufacturer received confirmation from C&C that Samuels in-fact worked for the dealer. As a consequence, it gave Samuels permission to purchase guns.

gun-and-bullets-1316098-296x300
As I explored in a previous blog, the Protection of Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 (2005), et seq., (“PLCAA”) has shielded gun manufacturers from suit since its enactment in 2005. The law bars any civil liability action against a firearms dealer or manufacturer, except for certain limited exceptions. My previous blog revolved around the parents of the victims killed in the Sandy Hook massacre, who survived summary judgment on a motion conceived under PLCAA filed by the defendant, Remington Arms Company. Now, the city of Kansas City is bringing a claim against a manufacturer and several firearms dealers, which may further chip away at the Act’s once impenetrable protection.

PLCAA’s protection is broad. 1515 U.S.C. § 7902 provides that “[a] qualified civil liability action may not be brought in any Federal or State court” against a firearms manufacturer or dealer. The definition of a qualified civil liability action is explored in § 7902, which defines the term broadly, encompassing ostensibly all civil claims against licensed gun dealers and manufacturers. However, § 7903(A) identifies certain claims that will not be considered a qualified action.

Contractual disputes or claims for breach of warranty are not qualified actions. § 7903(5)(A)(iv). Neither are claims related to defective design or manufacture of a firearm. § 7903(5)(A)(v). Claims arising out of negligent entrustment, where a manufacturer or a dealer puts a firearm into the hands of someone likely to injure themselves or others, are permitted. § 7903(5)(A)(ii; § 7903(5)(B). Similarly, if a manufacturer or dealer knowingly provides a gun to a person intending to commit a crime of violence or engage in drug trafficking, immunity from suit is not available. § 7903(5)(A)(i).

multicultural-board-room-300x200Modern American immigration policy is rooted in the Immigration and Nationality Act of 1965, which dramatically changed the then existing system. The 1965 Act, also known as the Hart-Cellar Act after the bill’s sponsors, fundamentally changed the manner in which immigrants were deemed eligible for admission to the United States. Prior to its enactment, American immigration policy was based on race and ethnicity, favoring immigration from northern and western Europe to the exclusion of eastern and southern Europe, Asia, Africa, and the Americas.

The previous system, originating under the Immigration and Nationality Act of 1924 and revised under the Immigration and Nationality Act of 1952, relied upon quotas for admission based on an immigrant’s nation of origin. The 1924 Act was rooted in feelings of xenophobia and isolationism, and intended to keep the United States population as homogeneous as possible. The legislature relied upon eugenics as justification for nearly eliminating catholic and Jewish immigration, as well as a complete ban on Chinese and Japanese immigrants, in order to prevent the spread of “feeblemindedness in American society.”

The 1924 Act dramatically slashed immigration by over 50% in one year. The basic formula limited the number of immigrants from a particular country 2 percent of the foreign-born population of that country living in the United States as of the 1890 census. The existing composition of the American foreign born population was heavily skewed towards northern and western European countries of origin, which were perceived as the most favorable countries from which to receive immigrants.

pistol-and-bullets-300x200In 2005, President George W. Bush signed the Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 (2005), et seq., (“PLCAA”)into effect. The PLCAA prevents gun manufacturers and dealers from being sued in relationship to the production and/or sale of firearms, subject to a few exceptions. Historically, these exceptions have been construed narrowly, and as a consequence, manufacturers and dealers have been immune to most types of lawsuits.

The PLCAA permits certain commercial suits, such as a contractual dispute or a claim for breach of warranty. § 7903(5)(A)(iv). Further, immunity does not extend to the defective design or manufacture of a firearm. § 7903(5)(A)(v). Gun manufacturers are subject to the same rules as any other manufacturer of consumer goods. If a manufacturer places a firearm into the stream of commerce which malfunctions due to defective parts or improper assembly, or if it was designed in a dangerous manner and poses an unreasonable danger when operated, the manufacturer can be held liable for resulting injury.

Other exceptions apply when dealers provide firearms to people who should not have one in their possession. One such exception involves negligent entrustment. § 7903(5)(A)(ii). The PLCAA defines negligent entrustment as the act of supplying a firearm to someone the seller knew, or should have known, would likely injure others with the gun. § 7903(5)(B). Similarly, if a dealer knowingly provides a gun to a person intending to commit a crime of violence or engage in drug trafficking, the dealer is susceptible to suit. § 7903(5)(A)(i).

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