Bar BriefsOfficial Publication of the Macomb County Bar Association

Volume 33 Number 02

August 2014

James and Patrick simasko

– Wealth Preservation – Estate Planning – Probate – Wills & Trust – Medicaid Planning – VA Benefits – Social Security Planning

Dedicated to Elder Law Solutions.

With 98 years combined legal experience, Simasko Law has helped numerous Southeastern Michigan families with Elder Law Solutions.

319 Northbound Gratiot Avenue . Mount Clemens, MI 48043 . simaskolaw.com

586-468-6793Referral Fees Guaranteed.

WE WELCOME YOUR CLIENT REFERRALS

In This Issue: August 2014

4 From The President How Are You Making Your Next Million? By John B. DeMoss, President of the Macomb County Bar Association

7 From the E.D. Save the Dates By Rick R. Troy, Executive Director, Macomb County Bar Association and Foundation

8 Circuit Court Corner By Jennifer M. Phillips, 16th Judicial Circuit Court Administrator

9 From the Juvenile Committee Michigan Supreme Court Rejects the “One-Parent Doctrine” (Overturns In Re CR) By Thomas Tomko, Juvenile Law Committee Chair

10 Some Evidence By Hon. Carl J. Marlinga, Macomb County Probate Court

12 MCBA Annual Golf Outing

16 Civil Committee Article Selecting Venue in Michigan State Courts By Stu Fraser V, Co-Chair of the Civil Committee

18 Swearing In of 86th President John B. DeMoss &

the 2014-2015 Board of Directors

22 Classifieds

Macomb County Bar Association2014-2015

Board of Directors

PresidentJohn B. DeMoss(586) 469-9090

President ElectDonald P. DeNault Jr.(586) 726-1000

SecretaryStephen Becker(586) 615-5617

TreasurerKaren Trickey Pappas(586) 465-8227 Immediate Past PresidentJulie Gatti(586) 469-1111

Directors / Term Ending Joseph Golden [2015](248) 398-9800R. Timothy Kohler [2015](586) 263-1600Dawn Prokopec [2015](586) 778-7778Jon C. Biernat [2016](586) 493-5377James Maceroni [2016](586) 465-4900Peter W. Peacock [2016] (586) 466-7605Donald Gillain [2017] (586) 481-4297 Ryan Machasic [2017] (586) 914-6140Lori Smith [2017] (586) 420-3707Young Lawyers Section Chair Francesco Briguglio [2015](248) 593-9090Women Lawyers Association of Michigan - Macomb Region Maryanne J. Deneweth [2015](586) 412-4900

MCBA StaffExecutive DirectorRick R. TroyRTroy@macombbar.org

Associate Executive & Communications Director Dawn M. Fraylick DFraylick@macombbar.org

Editors Note: The expressions of opinion published in Bar Briefs do not necessarily reflect the official position of the MCBA, nor does this publica-tion constitute an endorsement of the views expressed. Bar Briefs (ISSN0886-506X) is published monthly by the Macomb County Bar Associa-

tion. Copyright 2014 by the Macomb County Bar Association. Call (586) 468-2940 for advertising information. Subscription price of $45 is included in the annual membership dues. Periodical class postage paid at Mt. Clemens, MI 48043. POSTMASTER: Send

address correction to MCBA Bar Briefs, 40 North Main St., Suite 435, Mt. Clemens, MI 48043-1037.

Macomb County Bar Association Macomb County Circuit Court Building, 40 North Main St., Suite 435 • Mount Clemens, MI 48043-1037

Phone: (586) 468-2940 • Fax: (586) 468-6926 • MacombBar.org

“Advocating and promoting excellence in the legal profession by delivering quality service to our members and the public.”

Aug 22 4:00pm Family FunFestAugust 2014

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31

Sept 12 6:00pm Installation Ball - Cherry Creek Country ClubsePteMBer 2014

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30

From the President

how Are You making Your next million?By John B. Demoss, Macomb County Bar Association President

Bar Briefs • August 2014MacombBar.org

It was 1965. Dick Fosbury began high jumping in college with his back to the bar. Everyone laughed because it looked silly when compared with every other style. They called it the “Fosbury Flop”. Fosbury won the gold medal at the 1967 Olympics. People stopped laughing. Today, almost all competitors use this style. 30 years ago, it was accepted by everyone in the state that a Plaintiff was allowed to keep medical expenses awarded in a personal injury case. This recovery was allowed even when a Plaintiff’s health insurer (or Medicare or Medicaid) actually paid those medicals. This resulted in the Plaintiff recovering a windfall above and beyond the amount of his or her actual damages. The medical expense recovery often exceeded the amount of the Plaintiff’s actual damages. Insurance carriers had subrogation language in their policies, but quietly accepted the status quo because that was the way it was always done. Insurance carriers were unable to use these recoveries to lower the cost of their insurance. The unfairness of this system created an itch in the back of my brain. I finally started asking myself a number of questions. I spent a number of months doing nothing else but designing a program to completely change the status quo. I had to figure out: Could it be done? Could I do it? What could I do that no one else was doing? How could I sell it? What were the practical problems? How much staff would it require? How much additional office space would I need? Who could I sell it to?--along with 100 other questions. I ultimately pitched this idea to Blue Cross/Blue Shield of Michigan as a way to recover some of its expenditures and reduce health care costs. I promised them that it would not cost them a penny. My business skyrocketed for a number of years while I did something that competitors had never considered. It is difficult to make your next million by doing the same thing as the rest of your competitors. Following at the rear of the herd leaves you with nothing but an unpleasant smell. Companies usually become too conservative and quickly become dinosaurs. Corporations currently have a lifespan of only 16 years on the Fortune 500. Think Blockbuster, Borders, and RIM (Blackberry), together with hundreds of others. You must think

outside the box. “Who the hell wants to hear actors

talk?”, Harry Warner, CEO, Warner Bros. Pictures, 1927. “There is no reason for any individual to have a computer in their home.” Ken Olson, President, Digital Equipment Corporation, 1977. You have got to look for ideas beyond the obvious choices. Look for the concept your competitors do not see, will not consider, and will not respond effectively to. Do something no one else is doing. McDonald’s now has stay-at-home moms taking drive-thru orders. In San Francisco, a company rents out empty driveways for short-term parking. Look for areas others have ignored and think of unique solutions and strategies. Sell your idea to people who would benefit from your new service. AXIOM is a 1,000-man law firm designed solely to assist General Counsel in solving business problems by insourcing and outsourcing special projects. They are not a traditional law firm. Create something out of nothing. “When everyone is against you, it means that you are absolutely wrong--or absolutely right.” Albert Guinon. You need to outthink your competition. Different is good. Remove the barriers we have learned that discourage innovation. Times change. We have to keep ahead of the change or starve. The winners today don’t define themselves by their industry. Many years ago, I read that Michigan had passed a composting law. My law partner, Fred Thompson and I questioned what opportunities that might present. We wondered how we could provide a service that would be needed in the future. We ultimately formed the first private composting company in the state, Indian Summer Recycling. The company was so successful that Fred gave up the practice of law and works full-time at Indian Summer. What is your unique advantage and capability? Into what new area could you project this? Who do you need to benefit to get ahead? Your idea has to benefit more than just you or your client. If it benefits everyone, you will be ahead of the pack. For example, there is a company called, “Best Doctors”. They make online diagnoses for second opinions. Keep on looking for a strategy that benefits others. Ask yourself how you can profitably benefit other segments of the population that you are not now considering. A number of years ago, I participated in the Oakland County Early Intervention Conference Program.

4

From the President

Attorneys were brought in one time

only to handle a couple early settlement conferences for an Oakland County Circuit Judge.

After kicking this idea around in my head, I felt that there were better ways to serve the parties, attorneys, and

Court. I approached Judge Mark Switalski with the idea of once a week early disposition settlement conferences being handled by the same attorney every week. The attorney would work for free. I originally considered this a very short-term MCBA pilot project. However, I kept playing with the concept. I finally realized that it would be a major benefit to my stalled mediating career. Although I was very well known in the legal community, no one was willing to hire a mediator who had not settled a case for them in the past. My participation in the EDSC program allowed me to resolve cases. I rapidly turned into a full-time, successful mediator. However, if I hadn’t had the ability to think beyond the norm (1. attorneys handling settlement conferences and, gasp, 2. working for free), I might still be trying to develop my career. I should note that although I have not needed the boost for some time, I continue to participate in this program as a thank you to the Judge.

You have to create something out of nothing. Your competition will usually stop before they ever get past this point. Most games have rules, and you have to play with the pieces on the board. However, there is nothing that says you can’t create a new category (or create your own game). Think Gatorade, IKEA, or Red Bull. I wish I had picked up and applied these concepts more often in my career. It was not that long ago that I had a year where my secretary earned more money than I did. Use your imagination, then stay with the problem long enough to visit the future that includes frequent complaints about your tax bracket. “It’s not that I am so smart, it’s just that I stay with problems longer.” Albert Einstein. I would like to quickly thank my predecessor, Julie Gatti. I can only hope to give you some of the enthusiasm, energy, and drive Julie brought to every MCBA project.

Your association membership gives you more options with the Blues. Whether you want to provide group-sponsored HMO, PPO and HSA plans, or to offer affordable individual plans, we’ve got the health care solution that fits your needs.

Blues members have the convenience of using one card for medical, dental, vision and prescription drug plans. Groups of two or more can add Blue DentalSM, Blue VisionSM and Blues RxSM coverage to any medical plan, resulting in a total health plan — not to mention a healthier, happier workforce. And healthy, happy employees can save your company money through improved attendance and productivity.

Who knew one little card could do so much?

Your Association Exclusively Endorses

bcbsm.com MiBCN.com

PPO — HSA — HMO — Prescription — Dental — Vision — MyBlueSM Individual

Leaders in business • Leaders in health care • A partnership that works for you

For more information, please contact 888-SBM-ForU (888-726-3678) www.michbar.org

101776ADMC

One card.A complete health plan.

From the e.d.

MacombBar.org 6

Three dates. Three major MCBA events

August 22 is the second MCBA FAMILY FUNFEST. This completely free event is all about friends and family coming together to have fun. President John DeMoss has once again opened his playground pool property where we will install a bounce house, volleyball court and the ever popular dunk tank! We will be grillin’ and chillin’ starting at 4:00pm. New for this year is a bring a dish to pass request. Feel free to contribute your favorite desert or any other food item that you feel would accompany burger, hot dogs, salads and fresh corn on the cob. Keep an eye on MacombBar.org for a list of generous FunFest sponsors!!! And if you are interested in sponsoring, give me a call at 468-2940! September 12 is the date of the Installation Ball. The MCBA returns to Cherry Creek for this black tie optional / mandatory dancin’ shoes event that is the can’t miss event of the year. From moonlit outdoor patio to the dance floor this is the party of the season. The celebrated band Nauvette will entertain with jazz, rock, swing and more! To register contact the bar office by September 4. October 22 marks the date that the Michigan Supreme Court will hold oral arguments in Macomb County. The “Jurists on the Road” program, sponsored in part by the Macomb County Bar Association and the Macomb County Bar Foundation, comes to Macomb Community College. Keep an eye on MacombBar.org and your weekly E-Briefs for details on how you can get your seat for this first ever Supreme Court event. We have printed the names of our Law Practice Committee Chairs on page 7. NOW is the time to sign up for law practice committees. Simply call the bar office and asked to be placed on your committees of choice or email me. You will then receive email invitations to committee meetings and events where the nuances of practicing law in Macomb County are discussed.

WANTED: Attorneys to coach high school mock trial teams. REQUIREMENTS: Love of the law, and a desire to share your knowledge with smart and enthusiastic high school students. The Macomb Regional High School Mock Trial Tournament will take place at the Macomb County Court Building on Saturday, March 7, 2015. Mock trial materials will be available November 1, 2014; there will be an optional training program in December 2014. For more information go to www.miciviced.org.; contact Renee Tegel at 586-465-2033; renee@reneetegel.com; or contact Rick Troy at 586-468-2940; RTroy@Macombbar.org. The Macomb Regional H.S. Mock Trial tournament is presented by the Macomb County Bar Foundation and the Michigan Center for Civic Education.

save the datesBy Rick R. Troy, Executive Director, Macomb County Bar Association and

Macomb County Bar Foundation

2014-2015 Committee Chairs

Adr CommitteeCo-Chair - richard hurtford

Co-Chair - Jerome rock

Criminal Law CommitteeCo-Chair -michelene eberhardt

Co-Chair - tanya Grillo

Family Law CommitteeChair - dawn Prokopec

Juvenile Law CommitteeChair -thomas tomko

real Property CommitteeChair - Frank Krycia

Labor and employment Committee

Chair - heidi sharp

Civil Law CommitteeCo-Chair - stuart Fraser V

Co-Chair - dan Beck

Circuit Court CornerBy Jennifer M. Phillips,

16th Judicial Circuit Court Administrator

CirCUit CoUrt Corner

MacombBar.org

Foreign Language Interpreter Services

The Court Rules were recently amended to improve access to foreign language interpreters for individuals with limited English proficiency. Individuals may request a foreign language interpreter by filling out either a “Request and Order for Appointment of Foreign Language Interpreter” form or a “Request and Order for Interpreter (Bi-Lingual)” form. The bilingual form has been translated into Arabic, Chinese, Korean, Serbo-Croatian, Spanish, and Vietnamese. In addition to filling out one of these request forms, individuals should also fill out a “Financial Schedule – Appointment of Foreign Language Interpreter” form. All of these forms are available on the Court’s website at http://circuitcourt.macombgov.org/?q=CircuitCourt-Interpreters.

If an individual has trouble completing these forms due to his or her limited English proficiency, Court Administration and other Court staff are available to assist. The completed forms should be submitted to the clerk or secretary of the judge hearing the case, or to Court Administration. The judge makes the ultimate decision whether to appoint a foreign language interpreter.

We are also pleased to announce that the State of Michigan has entered into an agreement with LanguageLine Solutions to provide telephone interpreter services on a pay-per-use basis. LanguageLine Solutions provides on-demand interpretation services in numerous languages. As part of the Court’s efforts to increase access to justice for individuals with limited English proficiency, the Court has signed up to utilize this service. This service may be offered during certain Court proceedings if no certified interpreter is available, and as needed during other interactions between Court staff and individuals with limited English proficiency.

8 Bar Briefs • August 2014

Bar Briefs • September 2011

PhiliP J. Anderson (P10180)An Approved MCR 2.411(f)(2) Mediator with

Extensive ExperienceFormer Court Administrator for the

Macomb County Probate Court• Alternative Dispute Resolution including Mediation, Facilitation & Binding Arbitration• Corporate, Business Entity, Real Estate, Probate and Trust Disputes • All Other Types of Civil Litigation except Personal Injury

(586) 530-2450 PJAnderson2235@yAhoo.com

The Michigan Supreme Court has made an impactful ruling in connection with the procedure in juvenile cases. For those who may not be familiar with Juvenile Proceedings, a reading of the Supreme Court opinion in In re SANDERS, Mich Supreme Ct, 6-2-2014 Docket No 146680) is a great place to start. A general description of child protective proceedings is set out describing the procedures in every juvenile case. This recent Supreme Court case, decided 6-2-2014, caused a significant procedural change from the practice previously followed in many juvenile cases. Since at least the time of out Michigan Court of Appeals Ruling in In Re CR, 250 Mich App 185; 646 NW2d 506 (2002), Juvenile Courts in Michigan have followed the “One-Parent Doctrine.” This procedure was sometimes employed at the Jurisdictional phase in a Juvenile case. At the onset, in an “NA” case alleging neglect and abuse, a Petition is filed which sets out allegations concerning parents of a child/children. These allegations must satisfy one or more of the enumerated statutory grounds. The first phase of a Juvenile case alleging abuse and neglect is the jurisdictional phase, wherein the Court must determine whether it will accept the Petition. (e.g. Preliminary Hearing). Next, the Court will determine, as part of Adjudication, whether it will take jurisdiction over the child. If so, the case proceeds to Disposition. The “One-Parent Doctrine” is a procedure where one parent can choose to admit the merits of the Petition or plead no contest. MCR 3.971. Absent a plea, the parent can demand a trial which can be before a Referee, Judge, or Jury. However, where one parent enters a plea at adjudication, the Court was previously allowed to enter dispositional orders affecting the parental rights of both parents. Thus, focusing on the child, Courts which employed the “One-Parent Doctrine” would enter orders as to both parents, even though one of them may never have plead to allegations of being an unfit parent, and never

had any hearing on the issue. In many cases,

the Adjudication phase as to the non-pleading parent was effectively skipped, and in cases where the child/children were eventually returned to the parent(s), it never occurred at all. Our Supreme Court, in In re Sanders, holds that the “One-Parent Doctrine” is a denial of due process guaranteed by the Fourteenth Amendment. The Court recognized that the Adjudication process is in place to protect a parent’s fundamental right to direct the care, custody and control of there children. In Re SANDERS, p. 23, (Mich Sup Ct, Docket No 146680, 6-2-2014). While the state can protect the health and safety of children, it cannot do so at the expense of denying one parent their right to a hearing. Id. Therefore, the Supreme Court specifically over-ruled In Re CR. In practice, this will result in the Court needing to schedule an adjudication trial for parents who do not plea to allegations in a Petition, even if the other parent enters a guilty or no-contest plea. (In pending cases, parents who have not plead and who have not been adjudicated, can presumably demand a trial on the issue, regardless of the stage of their case.) Practitioners will become accustomed to the rejected “One-Parent Doctrine,” as referees and Judges have already reacted to the holding in In Re Sanders, id., and are scheduling Adjudication trials for parents who do not enter a plea at a Pre-Trial. Our Supreme Court recognized that this may impose a greater burden on the Courts, however, citing the US Supreme Court, it was recognized that “constitutional rights do not always come cheap.” In Re Sanders, Id. at p 23. Juvenile practitioners with pending cases should be aware that in appropriate cases, their clients could demand a trial. Practitioners should also consider the impact of this decision on cases which are on appeal.

1 See MCL 712A.2(b); MCL 712A.13(2); MCR 3.961. 2 See MCL 712A.2(b)(1) 3 3ee MCR 3.911(A)

michigan supreme Court rejects the “one-Parent doctrine” (overturns in re Cr)

By Thomas Tomko, Juvenile Law Committee Chair

JUVeniLe LAw ArtiCLe

9MacombBar.org Bar Briefs • August 2014

The rules regarding hearsay, and the need for its exclusion in most circumstances, pose problems to law students (and the general public) because hearsay is the method by

which we learn almost everything we know. The totality of our educational system – except for a few personal observations we make in chemistry and biology lab classes – is premised on the accuracy and reliability of hearsay information. We know how old we are because our parents told us our date of birth. We know Abraham Lincoln was president because we read it in a book. We assure ourselves (or scare ourselves) about whether or not we have a serious medical condition by looking up our symptoms on the internet. In almost every phase of life we regularly rely on hearsay information because of its proven reliability. Then somewhere along the way we go to law school and find out that the way we have gathered information to that point in life is not sufficiently reliable for court purposes. There is, of course, a reason for the exclusion of hearsay in judicial proceedings. The matters at issue in a trial usually have an importance far greater than other life events. Liberty is at stake; and if not liberty, certainly reputations and perhaps fortunes. The courtroom is the place where the truth comes out, and we have wisely developed rules to make sure that the truth-finding process is as clean, reliable, and streamlined as possible. Therefore, with certain reasonable exceptions, we demand that witness appear in person to say what they actually observed, to do so under oath, and to be cross-examined. Second hand information – acceptable in learning world history or mathematics or rocket science – will not suffice in court. This article begins a discussion about hearsay and its exceptions that will stretch out over several months. In talking about hearsay there is a temptation to jump almost immediately to the twenty-four exceptions enumerated in MRE 803. But before we go there, we should spend some

time on the more basic question as to what is – and what

is not – hearsay. It has been my observation that there is a natural knee jerk reaction to regard any prior out of court statement as hearsay, leading judges and attorneys to look to MRE 803 for an exception to permit the admission of the out of court statement. An 803 analysis should always be held in abeyance until the more basic question is answered; namely, whether the proffered statement even meets the definition of hearsay under MRE 801. MRE 801 defines hearsay to be “a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Another part of the rule defines what is a statement. The definition of a statement is critical. It turns out that a “statement” is not just something that was said. A “statement” is a term of art which is defined to be “an oral or written assertion ... or nonverbal conduct of a person if it is intended by the person as an assertion.” [Emphasis added.] Black’s law dictionary defines the verb “assert” as follows: “To state as true; declare; maintain.” In People v. Jones 228 Mich App 191, 579 NW2d 82 (1998) and People v. Davis 139 Mich App 811, 363 NW2d 35 (1984), the Court of Appeals held that statements or utterances which are not meant as assertions are not hearsay. Under the definitions of MRE 801, therefore, certain things that are said out of court can never be hearsay, since they are incapable of being assertions. A command, such as “Give me the profit and loss statement for fiscal year 2012,” is not an assertion. If some person uttered those words, and if the fact that those words were uttered is relevant in the case, the out of court words of the witness are admissible. Similarly, if the out of court words were a question, such as “Where does he keep the money?” those words are also admissible because a question can never be an assertion. Both commands and questions have a common feature, which is that they can neither be true nor false. Since they do not purport to say that something is true, they are not assertions, and, accordingly, they are not hearsay. Other words spoken out of court which are not hearsay

some evidenceBy Hon. Carl J. Marlinga,

Macomb County Probate Court

some eVidenCe

10MacombBar.org Bar Briefs • August 2014

some eVidenCe

are words having independent

legal significance. The most common examples are contracts. Testimony of a witness

regarding the words of an agreement is admissible without having to justify its admission as a statement of

a party opponent under MRE 801(d)(2). It is not possible to analyze the words, “In consideration of you giving me $2,000, I will sell you my car,” as a statement capable of being either true or false. The person testifying to such a statement might be telling the truth, or he might be lying; but the quoted words of the statement are not assertions in themselves. Other examples of out of court words that can never be hearsay are words which are part of a conversation with a party opponent. Everyone knows that a statement of a party opponent is admissible under MRE 801(d)(2). But suppose that the actual statement of the party is this sentence: “Yes, he was tough.” The actual statement has no meaning unless the proponent is allowed to get into evidence the surrounding parts of the conversation. The sentence that gives meaning to the statement of the party opponent is: “It took five shots to kill the bastard.” Although this last sentence would be hearsay if offered on its own since it was not uttered by the party opponent, it is admissible as a predicate to understand the significance or meaning of the party opponent’s statement. A good case explaining the difference between out of court assertions – which are hearsay – and out of court things that are said – which are not hearsay – is Strach v. St. John Hospital Corporation, 160 Mich App 251, 408 NW2d 441 (1987). In that case the Court of Appeals held that a day in the life video of a person who was seriously injured was not intended as assertive conduct. Since it lacked the characteristics of an assertion, it could not be regarded as hearsay under the definition of MRE 801. Before we end this month’s discussion, we should note that it is possible to miss a valid hearsay objection if a witness is being asked to testify merely about the physical actions he observed rather than words he heard. For example, the question “Did he point to which car he had been driving?” calls for a hearsay response. Counsel may say that she is not asking the witness for an out of court statement; but, even though no words were used, the physical action of pointing, in this example, was meant as an assertion. MRE 801(a)(2) excludes nonverbal conduct if it is intended as an assertion. Because it is hearsay, it must

be excluded.

YLS Tiger Outing

September 57:05pm

Cost: $45Limited Tickets Available

Please Reserve your Ticket by calling (586) 468-2940

Ext. 102 or at mcba@macombbar.org

MCBA Annual Golf Outing - June 16, 2014

2014 Winning Foursome: Chris Baratta, Nathan Edmonds, Tim Pierce and Joshua Beagle.

Past Presidents William Staugaard and Peter W. Peacock with Hon. Linda Davis.

Scott Gatti, Julie Gatti Immediate Past President, Lynn Beck and Dan Beck, Civil Committee Co-Chair.

MCBA Annual Golf Outing - June 16, 2014The Macomb County Bar Foundation Putting Contest with Executive Hole Sponsor Hanson Renaissance Court Reporting and Video.

Matt Licata, Sean Taylor, Don Peters, and MCBA Past President Peter W. Peacock.

Past Presidnt William Staugaard and President John B. DeMoss.

MCBA Past President Dana Warenz, Kathy Galen and new MCBA Director Lori Smith.

Thank You SponsorsExecutive Hole Sponsors

Buffalo Wild Wings

C & R Plumbing & Heating, Inc.

Carroll Court Reporting and Video

Hanson/Renaissance Court Reporting &

Video

House Arrest Services, Inc.

Kim Schmidt at Chase Bank

Lucido Fine Jewelry

Lucido Insurance

Randazzo Fruit Market

Re/Max First

Jerome Rock

Sky Professional Solutions

Stout Risius Ross, Inc.

Tin Fish

Hole SponsorsAlbert DibAnn Tobin & AssociatesAnton SowerbyAttorneys Title AgencyBath City BistroBellanca LaBarge PCBeneFik Insurance ConsultantsClass “A” Training Center L.L.C.Cobra ManufacturingDean Ausilio for 37th District Court JudgeDoeren MayhewEdmund T. Ahee JewelersElder AutomotiveFemminineo Attorneys PLLCFraser & Souweidane PCGarton & Vogt PCGeorge ParishGreat Lakes Tax Service LLCGreystone Golf ClubHeidbreicht Chevrolet

J.P. Carey Consulting Inc.Jem AutomaticsMaceroni for Circuit Court JudgeMachasic & Machasic PCMadisons PubMetro Detroit Law PLLCMW GolfParagon UnderwritersPaul Goebel GroupPeter W. PeacockRobert A. LeonettiRobert Clancy Contracting, Inc.Robert VitaleRoncelli Inc. - General ContractorsSanborn Bail BondsStephen RabautSuburban Auto SalesThe Rosenberg GroupTrickey Law PLLCWarner Norcross & Judd LLP

PersONAl INjury sPeCIAlIstsProven Results for your Client Referrals

Fraser & souweidane, P.C.

www.fsattorneys.com10 S. Main, St., Suite 302, Mt. Clemens, MI 48046

(586) 463-0100

Adr

hon. James m. Biernat

Retired Macomb County Circuit JudgeAvailable for Mediation, Facilitation or

Arbitration

134 market st.mt. Clemens, mi 48043

P: (586) 770-4713F: (568) 461-5377

JamesmBiernat@gmail.com

FORENSIC POLYGRAPH EXAMINATIONS

J. P. Carey Consulting, Inc.CRIMINAL SUSPECT TESTING • CIVIL STATEMENT VERIFICATION

FAMILY LAW & INSURANCE ISSUES RELATED TO DIVORCE, CUSTODY, ARBITRATION

J. Paul CareyCertified Forensic Polygraph Examiner

Retired Detective/Polygraph Examiner, Sterling Heights Police DepartmentMember:

American Polygraph AssociationMichigan Association of Polygraph Examiners

Sterritt Office Plaza, 45100 Sterritt, Suite 102, Utica, MI 48317

(Northwest of M-59 & M-53) (586) 323-9620

Venue selection is an important way to advocate for a cli-ent. This decision is important for several reasons, however the most important is that it impacts the potential jury pool which will decide the case. One of the first things that a plaintiff at-torney does after deciding to take a case is to determine where to file the lawsuit. At the same time, one of the first things an attorney defending a lawsuit does after their client has been served with the summons and complaint, is to determine whether the plaintiff attorney’s venue selection is legally proper. This article discusses the Michigan venue statutes and challenges to venue selection. The tort venue statute, which governs cases claiming per-sonal injury, is MCL 600.1629. The tort venue statute states, in pertinent part:

(1) Subject to subsection (2), in an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, all of the following apply:

(a) The county in which the original injury occurred and in which either of the following applies is a county in which to file and try the action:(i) The defendant resides, has a place of business, or con-ducts business in that county.(ii) The corporate registered office of a defendant is located in that county.(b) If a county does not satisfy the criteria under subdivi-sion (a), the county in which the original injury occurred and in which either of the following applies is a county in which to file and try the action:(i) The plaintiff resides, has a place of business, or con-ducts business in that county.(ii) The corporate registered office of a plaintiff is located in that county.(c) If a county does not satisfy the criteria under subdivi-sion (a) or (b), a county in which both of the following

apply is a county in which to file and try the action:(i) The plaintiff resides, has a place of

business, or conducts business in that county, or has its corporate registered office located in that county.

(ii) The defendant resides, has a place of business, or conducts business in that county, or has its corporate registered office located in that county.

(d) If a county does not satisfy the criteria under subdivi-sion (a), (b), or (c), a county that satisfies the criteria under section 1621 or 1627 is a county in which to file and try an action.(2) Any party may file a motion to change venue based on hardship or inconvenience.

In cases involving one plaintiff and one defendant, the decision is generally simple. However, in cases involving multiple plaintiffs and/or defendants, or in which the county in which the incident occurred is separate from the parties’ residences, the decision can become complex. As emphasized above, the venue statute references “the plaintiff” and “the defendant.” With multiple defendants residing or conducting business in separate counties it can be argued that section (1)(d) controls, and venue is proper pursu-ant to MCL 600.1621. The Supreme Court addressed this issue in Massey v Man-dell, 462 Mich 375 (2000). The Court interpreted the statutes and affirmed a trial court’s denial of a defendant’s motion to transfer venue, stating there is a difference between the terms “the defendant” and “a defendant.” The Court stated:

Further demonstration that the Legislature itself is familiar with the difference between using “the defendant” and “a defendant” in a venue statute can be seen by the fact that MCL 600.1621(a); MSA 27A.1621(a) says that, in certain circumstances, venue is proper in the court “in which a defendant resides ....” In contrast with such language, MCL 600.1629(1)(a)(I); MSA 27A.1629(1)(a)(I) provides that venue is proper in the county in which “the defendant resides ...”

Massey, at 382 footnote 7 (2000).Another issue

selecting Venue in michigan state Courts

By Stu Fraser V, Civil Committee Co-Chair

CiViL Committee ArtiCLe

16MacombBar.org Bar Briefs • August 2014

MacombBar.org

CiViL Committee ArtiCLe

17 Bar Briefs • August 2014

is venue selection in a lawsuit based on

a contract, which claims benefits for a per-sonal injury. In Rory v Cont’l Ins. Co., 473 Mich

457 (2005), the Michigan Supreme Court addressed venue selection in cases claiming no-fault benefits and

uninsured/underinsured motorist benefits, and held that they are contractual. The Court stated:

This action, being a claim arising under the in-surance policy, is a first-party claim against the insurer. ****

Uninsured motorist insurance permits an injured motorist to obtain coverage from his own insur-ance company to the extent that a third-party claim would be permitted against the uninsured at-fault driver.

Accordingly, the rights and limitations of such coverage are purely contractual and are construed without reference to the no-fault act.

Rory v Cont’l Ins. Co., 473 Mich 457, 465-466 (2005).

Therefore, even though the plaintiff has sustained some injury, claims for no-fault benefits and uninsured/underin-sured motorist benefits are governed by MCL 600.1621. MCL 600.1621 governs venue in contracts cases and states in pertinent part:

(a) The county in which a defendant resides, has a place of business, or conducts business, or in which the reg-istered office of a defendant corporation is located, is a proper county in which to commence and try an action.

There are two challenges to venue selection. The first is simply that the selected venue does not comport with the venue statute which governs the case. The second is that the forum is not convenient, known as the “doctrine of forum non conveniens.” “Forum non conveniens” is defined as the “discretionary power of a court to decline jurisdiction when convenience of parties and ends of justice would be better served if action were brought and tried in another forum.” Black’s Law Dic-tionary (6th ed). The court considers the following factors

when deciding a motion to dismiss on

the basis of forum non conveni-ens:

1. The private interest of the litiganta. Availability of compulsory process for attendant of unwilling and the cost of obtaining attendant of willing witnessesb. Ease of access to sources of proofc. Distance from the situs of the accident or incident which gave rise to the litigationd. Enforcibility of any judgmente. Possible harassment of either partyf. Other practical problems which contribute to the ease, expense and expedition of the trialg. Possibility of viewing the premises

2. Matters of public interesta. Administrative difficulties which may arise in an area which may not be present in the area of originb. Consideration of the state law which must govern the casec. People who are concerned by the proceeding

3. Reasonable promptness in raising the plea of forum non conveniens

Cray v General Motors Corp., 389 Mich 382, 395-396 (1973). Then, of course, comes the trial court judge. The judge is the one who has to make the decision whether the case is properly in front of him or her, or whether to send the case, or part thereof, elsewhere. The court has discretion whether to transfer a case to a different venue. In cases involving multiple claims, the court has authority to transfer all claims, keep all claims, or separate the claims. MCR 2.222(C). An appellate court reviews a trial court’s decision to grant or deny a motion on the basis of the doctrine of forum non conveniens for an abuse of discretion. Radeljak v Di-amler Chrysler Corp, 475 Mich 598, 603 (2006). An abuse of discretion occurs when the decision results in an outcome falling outside the principled range of outcomes. Id. In conclusion, venue selection, and the decision to chal-lenge, are important methods to advocate for a client. The decision will impact the jury which decides the case.

86th President John B. DeMoss & 2014-2015 Board of Directors Swearing In

86th Macomb County Bar Association President John B. DeMoss being sworn in by Hon. Mark Switalski.

2014-2015 MCBA Board of Directors: YLS Chair Francesco Brigug-lio, Donald Gillain, Secretary Stephen Becker, WLAM President Maryanne Deneweth, Jon C. Biernat, Lori Smith, Ryan Machasic, R. Timothy Kohler, President John B. DeMoss, James Maceroni, Joseph Golden, Peter W. Peacock, Treasurer Karen Trickey Pappas, President-Elect Donald P. DeNault, Jr., and Immediate Past President Julie Gatti.

President John B. DeMoss presenting Immediate Past President Julie Gatti with her commemorative issue of Bar Briefs.

86th President John B. DeMoss & 2014-2015 Board of Directors Swearing In

2014-2015 MCBA Board of Directors: YLS Chair Francesco Brigug-lio, Donald Gillain, Secretary Stephen Becker, WLAM President Maryanne Deneweth, Jon C. Biernat, Lori Smith, Ryan Machasic, R. Timothy Kohler, President John B. DeMoss, James Maceroni, Joseph Golden, Peter W. Peacock, Treasurer Karen Trickey Pappas, President-Elect Donald P. DeNault, Jr., and Immediate Past President Julie Gatti.

President John B. DeMoss presenting Immediate Past President Julie Gatti with her commemorative issue of Bar Briefs.

Director R. Timothy Kohler, President John B. DeMoss, Director Joseph Golden, Treasurer Karen Trickey Pappas, Director Peter W. Peacock and President-Elect Donald P. DeNault, Jr.

President John B. DeMoss shaking hands with Hon. Mark Swiatlski

with James Maceroni.

WANt tO settle yOur CAse?

(586) 469-9090

Sanborn Bail Bonds

We Are Just North of 41B Court44035 North Groesbeck Hwy.

Clinton Township,MI 48036

Lowest Rates

Statewide • Free Bond InformationImmediate Bond Approval

24 Hour Service in All Counties

1-888-636-8881 or(586) 713-5383

175 Cass Avenue, Mt. Clemens, MI 48043Phone: 586.468.2411 • Fax: 586.468.2410

CarrollCourtReporting.com

Carroll Court Reporting and Video specializes in real-time depositions, mobile transcript, video conferencing, and much more to serve the greater Michigan area.

MEDICAL MALPRACTICE CATASTROPHIC INJURIES BIRTH TRAUMA • WRONGFUL DEATH

“Results Matter”ALBERT J. DIB, ESQ. DIB AND FAGAN, P.C. www.dibandfagan.comDIB AND FAGAN BLDG.

25892 Woodward Ave.Royal Oak, MI 48067

adib@dibandfagan.com

(248) 542-6300

REFERRAL FEES HONORED

AVAILABLE TO LITIGATE PENDING CASES

Metro Detroit InJury Law PLLCNo-Fault Tip of the Month

Purchasing substantial uninsured and underinsured motorist coverage on your policy will protect you and your family members if they are injured by a hit-and-run driver, a driver with no insurance, or a driver with minimal coverage. It is cheap yet important coverage which is often overlooked when buying no-fault insurance.

Attorney Dan BeckAchieving Consistent Excellent

Verdicts and Settlements since 1991

(586) 468-6345 www.mdil.net

Probate Support Specialists, LLC. • Decedent Estates• Guardianship Estates• Conservatorship Estates• Forensic Account Preparation• Trust Administration• Medicaid Applications• Estate Clean Out• Adult Foster Care and Nursing Home Placement

A Probate Referral Resource specializing in:

Charlene Tope (586) 415-0136 charlenetope@probatesupport.com

OFFIcE SpAcE

WARREN - First class office space available in professional building. Available amenities include secretarial area, library, two conference rooms, copiers, fax machine access, lunch area, internet access, telephone an-swering and more. Base office rent: $500. Call Pamela Kroll at (586) 573-8900

ST. CLAIR SHORES - Premier St. Clair Shores Nautical Mile execu-tive office space in larger professional building. Opportunities for the small firm or solo practitioner (some with shared space and amenities, all in first class space) to 6000+ sq. ft. renova-tion. Plenty of parking, competitive rates. Robin (586) 498-8400.

DOWNTOWN MOUNT CLEMENS - For Lease 1,900 sq. ft. office suite. 4 large private, win-dowed offices, Conf. room, Kitchen-ette, Large secretarial/filing area, Well appointed, professional décor. Walk to Circuit and Dist. Courts. On site parking. To arrange a viewing, call: Gary Housey, Oakwood Properties, Inc. at (248) 689-111 ext. 104

ST. CLAIR SHORES - St. Clair Shores premium office space. Pro-fessionally decorated with all the amenities necessary for an impressive law practice. We are able to accom-modate individual offices or a small group practice. Also, 4,000 square feet available adjacent to the existing law office. Call Deb Berube at (586) 779-7810.

SHELBY TWP., - In Harvard Profes-sional Building. Van Dyke between 21 & 22 Mile. One furnished pri-vate office. Reasonable rent includes utilities, cleaning and use of confer-ence room. Referral work available. Please call (586) 254-1300

CLINTON TOWNSHIP - Garton & Vogt PC, have two large offices in first class suite available. All amentities available. Call Art Garton or Kathy Vogt at (586) 226-3100.

MACOMB COUNTY - Remodeled office spaces and/or mail services - 9 Mile and 94 in Macomb County. Only 15 minutes from downtown Mt. Cle-mens and Downtown Detroit. Short and long term leases available. Con-ference rooms also available for daily use. Call Vincent at (586) 945-9176 or (248) 421-6131

DOWNTOWN MT. CLEMENS - Two Crocker Boulevard. Single office in Professional Suite. All Amentities Available. Great Parking. Walk to Court. Call Gene Casazza at (586) 468-4400 or email ELCasazza@aol.com

REFERRALS

WORKERS COMPENSATION and SOCIAL SECURITY DISABILITY: Over 30 years experience. Referral fee. Will provide status reports. Call Dennis R. Nettle. 1-800-575-7477 or (586) 776-4080.

SOCIAL SECURITY and WORK-ERS COMPENSATION - Casazza Law Offices - 130 years plus of com-bined experience with Social Security Disability and Workers Compensation claims. Offices in Royal Oak and Mt. Clemens. Referral Fees. Call Gene Casazza at (586) 468-4400 or email ELCasazza@aol.com

KEVIN M. KAIN of the Law Firm Levine Benjamin has obtained over 1,500 workers compensation settle-ments for disabled workers over the last 20 years. Will pay referral fee and provide status reports. Call Kevin M. Kain at 1-800-675-0613.

ACCEPTING REFERRALS for any matters concerning bankruptcy, in-cluding initial filings of Chapters 7, 11, or 13, as well as adversarial liti-gation relating thereto. Call Gerald L. Decker at (586) 532-1122.

SERvIcES

COMPREHENSIVE COUNSELING SERVICES available for attorneys and their clients. Orlando Counseling Services PLLC provides quality con-fidential psychotherapy which will help you copy with stress, and mak-

ing the changes you want, to improve your life. And we can help you with your difficult clients! Specialization in couple/family counseling and grief. Offices in Shelby Township and Lake Orion. Call Laurie Orlando at (586) 405-1603 for a free consultation.

IMMIGRATION LAW - Anton Casa-grande & Adwers PC - AV rated Im-migration law firm provides consulta-tion and assistance in all business and family immigration matters including temporary and permanent employment of foreign professionals and skilled workers, corporate transferees, NAFTA visas, outstanding professors and re-searchers, foreign students, green card work, adjustment of status, visa pro-cessing, citizenship, removal defense, immigration consequence of criminal convictions and of divorce, work per-mits and other related matters. 31555 W 14. Mile Road, Suite 100, Farm-ington Hills, MI 48334; Phone (248) 406-4100; Fax (248) 406-4101. Email: law@antone.com or visit us at www.antone.com

STUDENT LOANS & FDCPA - Pro-vides consultation and assistance in all matters of Student Loans and Fair Debt Collection Practices, including student loan reinstatement, deferments, default, collection and litigation. Referral fee. Call Mark Wilk at (313) 806-3680 or email mark@markwilklaw.com

EMpLOyMENT OppORTUNITy

PART TIME LEGAL SECRETARY WANTED - Experienced. Mon-Fri 10am-3pm preferred but flexible days and hours possible. VandeVrede and Lavigne PC. Call Jim Lavigne at (586) 469-1900 or email jim@vvlpc.com.

FOR SALE

RETIREMENT SALE - Custom made golden Oak conference table 8’ x 4’ 3” $600.00; law library make of-fer, 8 high back swivel chairs luggage brown excellent condition $55.00 each; 12 golden oak library book shelves w/ movable shelves 6’7” x 3’ $100.00 each; other office furniture, metal file cabinets, secretarial desk units, equipment and supplies avail-able. Please call (586) 246-9751 for appointment.

OFFICE FURNITURE - Various items -all wood. Call to view and to discuss price. Contact Paul (586) 651-0259, and leave a Voince Mail message.

Classifieds

Law Offices ofSean Patrick Cox

Paying referrals for cases in the Grand Rapids & Surrounding West

Michigan Communities3351 Claystone S.E. Suite 111 • Grand Rapids, MI

49546-5781Sean.Cox@SeanCoxLaw.com • SeanCoxLaw.com

Cell: (616) 558-5745 • Fax: (616) 940-4183

(616) 942-6404

Classified Ads

member: $25

non-member: $35Please call

(586) 468-2940 Ext. 101 or email

dfraylick@macombbar.org

MCBA Family FunFestFriday, August 22nd

Macomb County Bar Association40 N. Main St., Suite 435Mt. Clemens, MI 48043MacombBar.org

Bounce House • Swimming • Children’s Games • VolleyballTennis • Music & Merriment• Food

at the Law Offices of DeMoss & DeMoss PLC 44511 N. Gratiot Ave. • Clinton Township MI 48036

MCBA Family FunFestFriday, August 22nd

4pm-?4pm-?