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Daniel J. McCarthy
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Daniel McCarthy’s Answers

97 total


  • When suing for treble damages for conversion MCL 600.2919a can a judge grant a judgement for over the 5,500 small claims limit?

    Ex: I'm suing for 4,800 in small claims and asking for treble damages for conversion. Neighbor stole lake retaining wall rocks and is now using them in front of her property. If treble awarded that would be 14,400 well over 5,500 limit.

    Daniel’s Answer

    Probably not. There is a fairly recent Michigan Court of Appeals opinion that clarifies the jurisdictional limit of the district court. A court cannot preside over a case if the aggregated damages exceed the court's jurisdictional limit. You may wish to consult with an attorney to discuss whether and how to move your case to the general jurisdiction of the district court.

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  • What is the statute of limitations in the State of Michigan for lawsuits?

    I had an accident in 2003 I was not ticketed for the accident but now in 2015 I am being sued by an insurance company for a medical bill.

    Daniel’s Answer

    Generally speaking, the statute of limitations in Michigan is six years for contract cases and three years for tort-based actions. However, there are other limitations periods that may apply depending upon your facts. You should consult with a lawyer immediately given that you have been sued.

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  • Opposing Party's atty blatantly lied during Oral Arguments @ Crt of Appeal. Can I sue him? For what? Not the first time for him.

    During oral arguments Opposing Party's atty said I was awarded $12K & the arbitrator inflated that by +/-600% so total awarded was $97K. In reality the 97K was awarded based on physical evidence & info. from a professional appraiser; was clearly l...

    Daniel’s Answer

    • Selected as best answer

    Please understand that there is no written record of oral argument at the Michigan Court of Appeals. The decision is largely based upon the record of the trial court proceedings and the parties' written briefs, along with the attached exhibits. As such, while oral argument can shed light on issues that are sufficiently briefed and supported, an attorney's statements at oral argument probably will have very little effect if the statements are not supported by the written record.

    From your description, it sounds as if you were the appellee on a trial court's confirmation of an arbitration award. In most cases, arbitration awards confirmed by the trial court are affirmed on appeal. Indeed, it is very difficult and very rare that an arbitration award confirmed by a trial court is reversed at the appellate level.

    Once you receive a decision from the Court of Appeals, and assuming that the decision affirms the trial court's ruling, you may then file a motion in the Court of Appeals to deem the appellant's appeal as vexatious and seek actual and punitive damages.

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  • Defendants' filed a motion to dismiss based on MCR 2.102(E). Need citations to counter - can you help?

    According to the Defendants’ (Citimortgage), they entered the case after the summons expired, but failed to file a motion to dismiss for 105 days. Then, they filed their motion under MCR 2.102(E) – a rule for automatic dismissal which is signed by...

    Daniel’s Answer

    Your question should be addressed privately by a litigation attorney. Additional facts are necessary and I agree with my colleague that a private consultation could very well be worth it to you.

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  • I received a summon,I am being sued for 8,000.00.I honored my payments. Engine blew-up after 3 months. 2,000 warranty.no good

    At time of purchase was I told we had to get this warranty and it would cover anything that would go wrong with vehicle. Took vehicle to a dealer for repair. Warranty would not cover damage. Do I have any recourse.

    Daniel’s Answer

    You should contact and hire a lawyer to represent you. The complaint needs to be answered and from what you describe, you probably have a counterclaim to assert.

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  • If a contract was signed but we were not given a copy of it or even offered a copy is it void?

    Me and my fiancé signed up for a HVAC Bootcamp class and a week before the classes started we got offered an opportunity to move out of state so we decided not to take the class. When we called to cancell the guy is saying we're bound by contracts...

    Daniel’s Answer

    I agree with the other answers provided. Given the circumstances, you might want to contact the school and offer a compromise. In theory, the school would have a duty to mitigate by offering your spot to an alternate student. If the school accepts, be sure to have the agreement in writing and keep the copy. Sometimes, these matters are sold to collection agencies or debt collectors, which could potentially damage your credit rating.

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  • After being fired, can I tell my old boss off using their personal cell phone via text or would it be legally better to call?

    Was fired recently, want to just clear up a few things that were said about me after being let go with my former manager in a civil manner.

    Daniel’s Answer

    I agree that you should not contact your former boss at all. Indeed, if you intend on seeking unemployment benefits, you certainly do not want to make a record showing that you were terminated for good cause. As the old adage goes, "Things said in anger are better off left unsaid," or words to that effect.

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  • How do I get a refund from a vacation rental that falsely advertised? Can we seek compensation for a lost vacation?

    We flew down to Austin TX for a girls getaway weekend for SXSW and rented a VRBO/Evolve house. It falsely advertised major amenities that were not available such as sleeps 8 when capacity was at 5 and advertised in pictures that once we arrived we...

    Daniel’s Answer

    You have several remedies available; one major question is whether you can address them in Michigan or whether you have to sue in Texas. As a practical matter, you may wish to first contact the rental agency and see if it would provide you with a partial refund. If that doesn't work, then your only choice is to seek the help of a lawyer. An attorney would review the advertisement and the rental agreement and advise you accordingly. Without getting too theoretical, your expectation damages would be the difference between what was promised and what you actually received. Under this theory, you probably would not be compensated for your food and airfare because you "expected" to incur such costs when you agreed to rent the unit. If, on the other hand, you have enough facts to suggest fraud, you may be able to claim fraudulent inducement and seek compensation to restore you in the position you held before you agreed to the rental.

    There are other theories as well, including potential remedies under the Consumer Protection Act. But again, only a lawyer can help you find the best resolution that suits your needs.

    I wish you the best of luck.

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  • How would I proceed dealing with a Defendant's Motion for Summary Disposition?

    I had a small claims case that was moved to Civil some time ago. During that trail, the defendant's lawyer requested a discovery period that was granted. I got the discovery that they lawyer sent, responded and returned it along with my discovery....

    Daniel’s Answer

    I agree with my colleagues. The defendant's lawyer filed a motion to dismiss your case, even though your discovery requests were ignored. When you received the motion to dismiss, you should have also received a copy of the notice of hearing, which tells you the date and time that the motion will be heard. If you did not receive the notice of the hearing, you should contact the defendant's lawyer and ask for it. If you are ignored, then you should call the judge's clerk and ask for the date and time of the hearing.

    In the meantime, you have to file a written response, telling the judge why the defendant should lose and why you should win. The written response should be filed and served on the defendant 7 days before the hearing date.

    Most of the time, a district court judge will give a little leeway to a pro se litigant, but you are still required to follow the rules of civil procedure.

    I wish you the best of luck.

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  • Have I been a victim of any kind of discrimination?

    My wife and I worked at the same place, although we had different bosses. She told me she was having an affair with her boss, and I promised to keep it private because it would put his and her job in jeopardy.Around the same time I found out my so...

    Daniel’s Answer

    You actually might have a case given what you described. I would certainly contact an employment lawyer in your area, as there are plenty of employment lawyers on AVVO. Most plaintiff's employment/discrimination cases are taken on a contingency fee basis, so you would likely receive a free consultation.

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