Res judicata is a powerful tool – when properly invoked. But Michigan courts have grown increasingly precise about its requirements. The Michigan Court of Appeals recent to-be-published opinion in McPherson v. Alten Homes, Inc., MCOA No. 368756, continues that trend and clarifies the limitations of privity amongst defendants in related litigation for purposes of res...
When parties to active litigation agree to shift their dispute to arbitration, the details of that transition matter. The Michigan Court of Appeals for-publication opinion in Nucast, LLC v. Livonia Pre Cast LLC, MCOA No. 367941, provides a recent example of how a self-labeled “final order” sending the remnants of protracted litigation to arbitration may not provide the finality required...
On March 27, 2025, in Kircher v. Boyne USA, Inc., the Michigan Supreme Court unanimously reaffirmed the implied covenant of good faith and fair dealing in contracts under Michigan law and also provided guidance on the unilateral discretion necessary to trigger a breach of contract for violation of the covenant. Kircher and Boyne USA (“Boyne”) entered into 2014 and 2019 settlement...
Who construction contractors contract with is important. Say it three times fast. While the Michigan Construction Lien Act (CLA) affords protection and lien rights to contractors performing improvements to real property, so too does it have limits on these protections. One such limit, and its implications on the circuit court’s subject matter jurisdiction, was recently tested in the...
Authored By: Stephen McKenney and Lucy Budreau On December 7, 2023, the Michigan Court of Appeals issued its for-publication opinion in International Outdoor, Inc v SS Mitx, LLC, et al. In it, the Court provided binding guidance concerning the evidence required for relief from judgment based on fraud, misrepresentation, or misconduct of an adverse party, as well as the availability of...
Authored By: Kenneth F. Neuman and Nicholas Swider The Corporate Transparency Act (“CTA”) is, for all intents and purposes, old news. The federal statute was enacted as part of the National Defense Authorization Act on January 1, 2021 with the goal of protecting U.S. economic prosperity combatting occurrences of money laundering, racketeering, terrorist financing, corruption, and...
Authored By: Kenneth Neuman and Stephen McKenney You have likely seen language to the following effect in a lending instrument: “Borrower agrees to pay the maximum legal interest rate if it is determined that the other contractual terms impose an illegal interest rate.” Such “usury savings clauses” are akin to a blue pencil rule with the aim of permitting a court finding an interest...
Authored By: Jennifer Grieco and Nicholas Swider That collateral estoppel can preclude subsequent litigation of an issue decided in a prior action is unremarkable. Less conventional is whether issue preclusion can apply within a single cause of action, rather than in a later dispute. This, in fact, was an issue of first impression in Michigan decided in the for-publication...
Authored By: Matthew Smith and Dave Mollicone On November 2, 2023, the Michigan Court of Appeals issued its for-publication opinion in Kircher v Boyne USA, Inc, et al. The case arose from two successive settlement agreements between the plaintiff shareholder of defendant Boyne USA, Inc. Pursuant to a 2014 settlement agreement, the plaintiff shareholder had a right to have her...
Authored By: Jennifer Grieco and Steve McKenney Litigators handling construction disputes are keenly aware of the respective ninety-day and one-year limitations for recording and seeking to foreclose on construction liens. Given the prevalence of arbitration provisions in construction contracts, litigators are often faced with the issue of how to pursue a claim to establish the validity of...
