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| Attorneys Paul Nicoletti; John G. Makris; Marcia Howe, Johnson Rosati LaBarge Aseltyne & Field; John Mitchel of Secrest Wardle Canyon Construction, J |
| 13th of Dec, 2011 by User625637 |
Youtube of this CASE: http://www.youtube.com/watch?v=ZtPb1lFiKiM Canyon Construction, Judge John J McDonald, Paul Nicoletti, Defective Brick and Mortar, John Makris, John Mitchell of Secrest Wardle, Frankenmuth Mutual, Click on “Show more†for the entire story: http://coa.courts.mi.gov/resources/asp/viewdocket.asp?casenumber=259208&fparties=&inqtype=public&yr=0
http://coa.courts.mi.gov/resources/asp/viewdocket.asp?casenumber=257085&fparties=&inqtype=public&yr=0 COA Case Number: 259208
SCt Case Number: 128692 SEE THE QUOTES FROM THE TRANSCRIPTS, THEY ARE CLASSICS STATE OF MICHIGAN IN THE SUPREME COURT * * * * * Appeal from the Court of Appeals The Honorable Jessica R. Cooper, the Honorable Kathleen Jansen, And the Honorable E. Thomas Fitzgerald Canyon Construction, Inc.
Supreme Court No. 128692 Plaintiff/Apellee
Court of Appeals No. 259208
V
Lower Court No. 97–000323- CK Oakland County Circuit Court
Honorable John J. McDonald
Defendant/Appellant
_____________________________________________________________ Pursuant to MCR 7.302 (A) (1) (d) Statement of Material Proceedings This case involves a court being used, as an abuse of process, to bully Defendant Stephens out of a contract with Plaintiff, builder, Canyon Construction so the unfixable, defective home Canyon built upon dear lot #120 with Defendant/Appellant’s monies so that Defendant/Appellant’s prior property rights could be transferred to Plaintiff, Canyon who, in turn could sell thehome for more, to unsuspecting new purchasers and thus transfer the responsibility to fix or disclose the defects to new purchasers as per the Seller’s Disclosure Law, MCL 565.953 et seq. as licensed builder’s are exempt from disclosure requirements, MCL 565.953 (i). The case appeared to be a contract issue; however, it is well-established that Canyon Construction breached the contract first by not providing a lawfully constructed, code-compliant home, hence the issue of who had property rights to lot #120 evolved. Surreptitiously, the court was then used as a vehicle to bully Defendant/Appellant Stephens out of her contract, and transfer these documented property rights to Plaintiff, Canyon Construction. Egregious violations of court rules were manifested to accomplish this ulterior purpose. It is stated on the record, in no uncertain terms, by Plaintiff’s Attorney, Mr. Makris, that Canyon does not own the lot, and the lot is owned by the developer, Ladd’s, with whom Canyon has no relationship. Defendant/Appellant Stephens did have a prior relationship with the developer, Ladd’s, based on her December, 1995 deposit for lot #120. Then, on September 11, 1997, Defendant Stephens recorded with the Register of Deeds, her claim of interest on lot #120 which was prior to this vexatious October 10, 1997 Canyon v Stephens lawsuit. Transcript: July 16, 2003 P 4 Makris: And the lot upon which these are being taxed and our – taxing is imposed is not even owned by Canyon. It hasn’t been paid for because there’s no closing that has occurred. That’s own[ed] by the developer, which we have no relationship with. [underline added]. The ulterior motive was for Plaintiff/Appellee, Canyon to use Defendant/Appellant Stephens’ monies to build a home on lot #120, which was constructed with albeit, unfixable, construction-code defects. Then, for Plaintiff, Canyon to resell this defective home for more money, which Plaintiff Canyon ultimately did for $411,000 to minority Korean-Americans the Im’s; as compared to Defendant Stephens’ original contract amount of $285,000 plus upgrades. Mr. and Mrs. Im, then sued Canyon for the same, plus additional defects. This fraudulently sold home was closed on November 19, 2003 with Defendant Stephens’ recorded Claim of Interest still clouding the title. After one of the hearings, there was a non-recorded, parenthetical statement by the Judge McDonald to Plaintiff’s attorney, Mr. Makris, I would think you could sell it for more money, now I would think. During the course of events, as matter of court record, with Defendant/Appellant Stephens’ affidavit filed, Plaintiff’s counsel, Mr. Makris on two occasions made private, personal contact with Defendant Stephens and stated: “We will split the difference with you.†Then, a few months later Mr. Makris again stated to Defendant Stephens: “Why don’t you take some money and go away.†The transcripts themselves show the court was aware that the defective house was built with Defendant Stephens monies, the house appreciated in value and the Court itself wanted Defendant Stephens “out of it.†July 16, 2003 p 16 The Court: “…the house went up in value.â€
P 16 Nicoletti: “House is not mortgagable.†February 18, 2004 P 25 The Court: [referring to Defendant Stephens] “you are
out of it.†Defective residential Construction upon Defendant Stephens’ lot #120 In December 1995, Defendant Stephens placed monies on deposit with Developer, Ladd’s for dear lot #120, as it was the only lot in the subdivision with unique characteristics such as a treed, corner lot, on a court with a lake view, adjacent to a park across from a nature area. Three months later, in March 1996, Defendant Stephens finally signed a contract with Canyon Construction, Inc. as there was a delay in Canyon Construction providing pricing for up-grades. During the 18 month construction process, there were numerous oversights, construction problems, errors and delays caused by Canyon Construction. In May of 1997, young, untrained Mexicans began installation of brick masonry on the home. Canyon Construction was advised of the unsatisfactory condition of the masonry during the construction process, to no avail. Then, Defendant/Appellant Stephens advised the Mexicans of some of the problems herself, and had some brick sections removed for reinstallation. Defendant Stephens is somewhat conversant in Spanish. In August, 1997 the home failed 2 municipal, final inspections especially noting the defective masonry, and only passed the 3rd final inspection when the only variable that changed was the building inspector. Shirley Page, of Canyon Construction left a phone message for Defendant/Appellant Stephens during this time period, advising Defendant/Appellant Stephens she was no longer allowed in her home until closing; however, Defendant/Appellant Stephens would drive by daily, for approximately one week, and see younger, teenage, male Mexicans patching holes from ground to roof on all 4 sides of the home. Defendant Stephens then took photos as EXHIBIT 1, and a video of mortar joints which separated from the brick, and thousands of patches covering the voids. In fact, during the 3rd, municipal, final inspection, the new 2nd inspector actually saw the code violations, mortar voids, and patches, and still fraudulently, passed this third inspection. The City of Rochester Hills then issued a Certificate of Occupancy. On September 11, 1997, Defendant/Appellant Stephens recorded a Claim of Interest on Lot #120 with the Oakland County Register of Deeds. Todd Dailey, Masonry Engineer, referred by the Masonry Institute of Michigan was hired to inspect the brick masonry. Mr. Dailey then prepared a report noting code violations and deemed the life expectancy of the masonry to be only 15 years compared to the 100 year standard, and recommended total removal of all the non-code compliant masonry. This Todd Daily Report was faxed to Canyon Construction on October 7, 1997. On October 10, 1997, Canyon Construction filed this vexatious, frivolous lawsuit against Defendant/Appellant Stephens and refused to address the defective, unlawful non-code compliant masonry. Technically, the essence of the defective brick masonry is such that the improperly mixed mortar (comprised of sand, some cement, and water) did not bond with the brick; there are mortar joints between 1†and 5†wide where code allows ½â€ with a variance of 1/8â€, and most importantly; additionally, this 2+ story home lacks code required wall ties. Brick has a catalyst suction rate, which creates a bond between the 2 distinct elements, brick and mortar; thus creating a new entity, structurally safe brick masonry. This actual bond is the only factor which prevents the bricks and mortar from separating; otherwise the condition would be such that mortar would just be adjacent to brick. This lack of bond caused the documented mortar voids. In layman’s terms, Canyon Construction provided a house frame which is surrounded by free-standing brick masonry walls, which are not tied to the structure for integrity. In reality, these are free-standing walls of brick, with mortar of sand hardened by some cement. It is lethal for 4 free-standing brick walls, lacking structural integrity to be surrounding a frame. The technicalities have been documented in multiple reports generated during discovery, and by Defendant Stephens own technical research and contacts with the Brick Industry Association of Reston, Virginia; and the Masonry Institute of Michigan of Farmington, Michigan. Additionally, Defendant Stephens has innate knowledge as her grandfather was bricklayer, and her families were in the construction business for multiple generations. Canyon Construction has cosmetically filled most of the voids; however, mortar does not bond with mortar, as mortar does not have a suction rate, only brick provides a suction rate. This brick’s suction rate was in the normal range. Upon the recommendation of the Masonry Institute of Michigan, Defendant Stephens contacted the manufacturer, Cherokee Brick, who faxed the specifications of the brick and the Masonry Institute provided the acceptable technical standards. All the cover-ups, patches, bogus reports in the world will not make that home structurally safe. Additional defects also exist, not limited to the only basement floor drain which is actually inches above the floor’s low point so the basement will not drain, the cracked and leaky basement walls, the cracked basement floor which looks like a road map, the leaky windows, etc. Canyon fraudulently resold the home to the IM’s as the recognized code, CABO one and two family dwelling code, 1992 Ed. p 1. Section R-106 – Violations and Penalties states: R-106.1 Unlawful action: It shall be unlawful for any person, firm or corporation whether as owner, lessee, sub-lessee or occupant to erect, construct…….occupy or maintain any one- and two-family dwelling in the jurisdiction or cause or permit the same to be done, contrary to or in violation of any of the provisions of this code. [underline provided] The Issues before the Supreme Court of Michigan rest upon the spurious circumstances involving the forced settlement. On September 3, 2003, Defendant/Appellant Stephens’ Attorneys Nicoletti and Hogan fraudulently withheld the true, accurate CPA’s damage analysis to Defendant Stephens placing the settlement on the record as EXHIBIT 2; they only revealed the amount of approximately $203,000 instead of the actual damage analysis of over $644,000 which was finally revealed on November 19, 2003, after Defendant/Appellant Stephens delivered her Release of Claim of Interest to Greco Title after the Im’s closing as EXHIBIT 3; as the settlement was placed on the record on September 4, 2003 and the forced settlement signing occurred on October 15, 2003. On September 4, 2003, at the arrangement of presiding Judge John J. McDonald, and after opposing Attorney John Mitchell for Frankenmuth Insurance was witnessed leaving Judge Rudy Nichols chambers ex parte, Defendant/Appellant Stephens was actually placed in a room with Judge Rudy Nichols and intimidated by Judge Rudy Nichols who, in a standing position with his black robe, stated: “ANARCHY†and you don’t want a 3rd party [a
jury] to determine your fate. Then, Defendant/Appellant Stephens’ Attorney Nicoletti stated to her, “I won’t let this settlement fail.†prior to escorting her into the courtroom with 4 male attorneys, 2 male builders, and the male judge to put the settlement on the record. Based on Register of Deeds documents, later the same day, with an appearance of bribes or kickbacks, Judge McDonald paid off his mortgage as EXHIBIT 4. On September 11, 2003, Defendant/Appellant Stephens was contacted by a neighbor of lot #120, who, within 3 sentences blurted out the confidential terms of the settlement. Defendant/Appellant Stephens immediately advised her attorneys Nicoletti, and Hogan and demanded this breach of the confidential settlement be documented with the Court and the opposing attorneys; however, Defendant/Appellant Stephens was ignored by her attorneys so she then contacted the opposing attorney Mitchell for Frankenmuth Mutual herself via e-mail. Shortly thereafter, Defendant Stephens received a Notice of Hearing for October 15, 2003 to compel signing of the settlement. Again, with the appearance of bribes or kickbacks, based on Register of Deeds documents, on September 18, 2003, now just 14 days after the fraudulent September 4 2003 settlement, Judge McDonald, Mrs. McDonald and their son Patrick purchased a condo for Patrick without the McDonald’s selling their primary residence as EXHIBIT 5. On this very same date, September 18, 2003, Attorney Nicoletti also paid off his 4 year, $168,000 mortgage on his lakefront vacation home as EXHIBIT 6. Then 7 days later, September 25, 2003, Attorney Nicoletti purchased a new Troy home, without selling his current Troy home as EXHIBIT 7. Within a mere 21 days, (between September 4, 2003 and September 25, 2003) after the fraudulent settlement, both Attorney Nicoletti and Judge McDonald paid off mortgages, and purchased new high-end real estate without selling their original residences. This odds for 6 simultaneous occurrences to happen regarding 2 very specific individuals (Attorney Nicoletti and Judge McDonald) defies statistical probability. Then 8 months later, Attorney Nicoletti had a huge 2 story addition built on this 2nd Troy home by Bavarian Builders of Frankenmuth Michigan which is within minutes of Frankenmuth Mutual Insurance Co., yet hours from the Troy Nicoletti home as EXHIBIT 8. Frankenmuth Mutual Insurance is endorsed by the Michigan Association of Home Builders who brag, they get involved in precedent setting legal cases as EXHIBITS 9 and 10. Allegations of bribes and kickbacks have been previously introduced, and have never been denied, refute or disproved; only ignored by the opposing party. At the October 15, 2003 hearing, Defendant/Appellant Stephens, Attorneys Nicoletti and Hogan withdrew, and the Court, contradictory to the Nicoletti Withdrawal Order, did not Stay the proceedings until new counsel could be retained; instead per the record, Defendant/Appellant Stephens was forced to sign settlement documents which had not been previously reviewed and Defendant was without legal counsel in the Courtroom. The Court stated to Attorney Mitchell for Frankenmuth Mutual: give the [Stephens’ Frankenmuth Mutual] check to Mr. Nicoletti as EXHIBIT 11. Later this same day, October 15, 2003, Attorney Nicoletti deposited the Stephens’ Frankenmuth settlement check dated September 4, 2003, which the same day as the fraudulent settlement and the same day Judge McDonald paid off his mortgage. Feloniously, Attorney Nicoletti deposited this Stephens’ check lacking her lawfully required endorsement. It appears that Attorney Mitchell for Frankenmuth Mutual, who was seen leaving Judge Rudy Nichols chambers ex parte on September 4, 2003, had 3 Frankenmuth Mutual Insurance checks dated September 4, 2003; one check for Judge McDonald, one check for Attorney Nicoletti and one check for Defendant/Appellant Stephens. Apparently, the Judge McDonald and Attorney Nicoletti checks were disbursed on September 4, 2003, however, the Karen Stephens’ check was held until October 15, 2003 when Defendant/Appellant Stephens was forced to sign settlement documents without benefit of an attorney as her Attorneys Nicoletti and Hogan withdrew prior to the settlement signing and did not review the settlement documents. The fraudulent settlement of September 4, 2003 has never been fully consummated, as Defendant/Appellant Stephens still does not have the $25,000 due her from Frankenmuth Mutual Insurance Co. On February 18, 2004 Defendant/Appellant Stephens Motioned the Court, for the Judge to disqualify himself based upon bias, however, this motion was denied on March 10, 2004. Simultaneously, an Order dated February 18, 2004 was later found in the clerk’s file which retroactively Ordered a cover-up of Attorney Nicoletti’s check cashing fraud, embezzlement, etc. plus additional bogus liens of $182,000 which are prohibitive in Defendant/Appellant Stephens retaining new counsel as EXHIBIT 12. Thereby, the Court denied Defendant/Appellant Stephens her constitutional right to access to the Court and due process. This is the reason Defendant/Appellant is in Pro Per as she has contacted approximately 20 attorneys who won’t be involved in this case due to the liens and the “dirty nature of the case.†These liens of $182,000 dated February 18, 2004 were based on more bogus attorney fees which were not presented contemporaneously on the date of Attorney Nicoletti’s withdrawal of October 15, 2003, but after the fact. On April 5, 2004, the Chief Judge also ruled Judge McDonald was not biased. On May 26, 2004, Judge McDonald denied Defendant/Appellant Stephens Motion for Attorney Fees, and again threatened her, this time regarding filing any more motions she could be sanctioned as EXHIBIT 13. This Order and threat by the Court violated Defendant/Appellant’s constitutionally protected due process rights. Then on July 14, 2004 Judge McDonald did disqualify himself in a hidden order Defendant/Appellant Stephens discovered in the Clerk’s file, but was not ever served to her as EXHIBIT 14. Also, simultaneously on July 14, 2004, Judge McDonald also ordered Defendant Stephens to Vacate her constitutionally protected property rights to lot #120 as EXHIBIT 15. However, on December 6, 2004 Defendant/Appellant Stephens again discovered in the clerk’s file another hidden order dated November 16, 2004 where Judge McDonald now un-disqualified himself as EXHIBIT 16. With the appearance of ex parte communications, when Defendant/Appellant Stephens hand-delivered her brief to the Appeals Court in Troy Michigan on December 8, 2004 noting the hidden November 16, 2004 Un-Disqualification Order, she then received this same Order in the U.S. mail on December 10, 2004 from opposing Attorney Makris; however, the Proof of Service was actually postmarked December 8, 2004 but falsely dated December 3, 2004 regarding the November 16, 2004 Order which now un-disqualified Judge McDonald. It appears someone from the Troy Court of Appeals Office notified Attorney Makris, that Defendant/Appellant Stephens discovered his November 16, 2004 hidden order herself. With dubious coincidence, Defendant/Appellant Stephens was in the Oakland County Courthouse on November 16, 2004 as documented with a clerk’s receipt and she witnessed Attorney Makris go to Judge McDonald’s wing and floor with the appearance of more ex parte communications with the Judge. Subsequent to September 2003, none of the orders were served Defendant/Appellant Stephens as she discovered them in the clerk’s files herself. The May 26, 2004 Order was served to Defendant/Appellant Stephens, however, this was greater than the acceptable 7 day window, and no proof of service was filed with the Court so we don’t know when this Order was served, apparently as a ploy so an Appeal by Right could not be timely filed. Time Line and Family Tree of unholy alliances and incestuous relationships Original Judge Barry Howard, nominated personal friend, Stuart Michaelson and spouse of Judge Susan Borman, to correct the defective masonry. Judge Howard is on the record as stating he made a personal call to Stuart Michaelson. Stuart Michaelson rejected the nomination as the 3rd party, court-appointed builder to correct the defects as Mr. Michaelson was an officer of the Building Industry Association (BIA), of which Plaintiff, Canyon Construction is also a member. The Building Industry Association (BIA) is an affiliate of the Michigan Association of Home Builders (MAHB) who brags they get involved in precedent setting legal cases. The Michigan Association of Home Builders (MAHB) endorses Frankenmuth Mutual Insurance Company. Frankenmuth Mutual Insurance Company was represented by Attorney John Mitchell of Secrest, Wardle, Lynch, Hampton, Morley and Truex, where Mr. William Hampton is on the Attorney Discipline Board. Attorney Mitchell, who was seen leaving Judge Rudy Nichols chambers ex parte, just prior to Judge Rudy Nichols intimidation of Defendant /Appellant Stephens on September 4, 2003. Defendant Stephens Frankenmuth Mutual settlement check was dated September 4, 2003, the same date presiding Judge John J. McDonald paid off his mortgage. Simultaneous, Builder-Developer Cases occurred in the Howard and McDonald Courts. Sandstone v Novi involves someone in the city of Novi creating a theory of liability as a basis for a lawsuit. In Canyon v Stephens, Plaintiff Canyon breached the contract by not constructing a lawful code compliant home. In the Sandstone case, the Howard Court awarded mega-millions to Sandstone, then Judge Howard left the bench to represent Sandstone. Both the Sandstone and the Canyon cases moved to the McDonald Court. The McDonald Court then awarded a park to Sandstone to satisfy the Howard judgment, and ultimately, the park was transferred to mega-builder, Pulte, for development. In the Canyon Case, the McDonald Court awarded Defendant Stephens property rights to builder Canyon. In both the spurious Sandstone and Canyon cases, Judge McDonald transferred property to builders lacking eminent domain causes. Attorney Paul Nicoletti, took Defendant Stephens’ September 4, 2003 Frankenmuth Mutual Insurance check for $25,000 and deposited it on October 15, 2003, the same day Judge McDonald said, to Attorney Mitchell for Frankenmuth Insurance, “Give the check to Mr. Nicolettiâ€, ordered the Withdrawal of Defendant/appellant Stephens’ Attorneys Nicoletti and Hogan without staying the proceedings and forced Defendant/Appellant Stephens to sign settlement documents which had not been reviewed by any attorney on Defendant/Appellant Stephens’ behalf. Later the same day Attorney Nicoletti feloniously deposited Defendant Stephens settlement check into his account lacking her lawful endorsement. Incestuously, Attorney Nicoletti is also representing Sal Viviano as PIO Masonry and Construction, the bricklayer culprit in the Canyon Case. As previously documented, the obvious involvement of the Building IndustryAssociation (BIA) affiliate of the Michigan Association of Home Builders (MAHB) who brag about involvement in precedent setting legal cases, is also manifest by opposing Attorney Makris simultaneously representation of the Dominic and Frances Moceri Family Trust, whereby Dominic Moceri is the current president of the BIA and as recently quoted in the Oakland Press, February 5, 2005 as foretelling the actions of Ingham County Circuit Court Judge Joyce Draganchuck, “If not, the judge will change their minds. An injunction is imminent.†As Defendant/Appellant Stephens has always assumed, culprit, Plaintiff Canyon’s legal expenses were absorbed or imbedded in other legal matters regarding the Building Industry Association (BIA). This Canyon v Stephens lawsuit was more than Defendant/Appellant Stephens’ solitary fight to preserve her life savings, it was a fight against the evolving common-law marriage of the powerful and wealthy building industry cartel and the legal industry cartel. As an abuse of process, this case is an actual cover-up of the (il)legal cabal. PROCEDURAL HISTORY This Canyon Construction, Inc. v Karen Stephens suit was filed October 10, 1997. Defendant Stephens then counter sued Canyon for civil conspiracy and violations of the Michigan Consumer Protection Act, MCL 445.901 et seq., etc. Defendant Stephens then also sued the City of Rochester Hills on various counts, as the inspectors fraudulently passed the final inspection and issued the certificate of occupancy which triggered this Canyon v Stephens lawsuit. The case was originally assigned to the Howard Court, who dismissed the City of Rochester Hills and its inspectors in January 1999, based upon the government immunity defense. However, the Howard Court should have known and relied upon Sudul v City of Hamtramck, 221 Mich App 455; 562 NW2d 478 (1997) where the Court expressly ruled that “an individual employee’s intentional torts are not shielded by our governmental immunity statute.†Id. At 458. There then was a first settlement with Canyon where Canyon would pay to have all the brick masonry replaced and pay Defendant/Appellant Stephens a sum of $25,000. However, ultimately, Plaintiff Canyon reneged on this 1st settlement and instead, submitted a bogus report by fellow member of the Building Industry Association (BIA), Danny Miller of C. R. Miller Homes stating that the masonry was industry standard and the only problems were some wide mortar joints. Discovery brought forth information that Martin Klein of Sheppard Engineering initially authored a bogus engineering report for Canyon Construction which the City of Rochester Hills stated they relied upon to pass the bogus 3rd final inspection. Then a new Karen Stephens v Sheppard Engineering/Martin Klein case ensued also assigned to the Howard Court. In this case, after Plaintiff, Stephens won a $5000 mediation award which she rejected, as her attorney fees were now approaching $40,000 in the Canyon case and Judge Howard only awarded $25,000 as damages. On December 5, 2000, the Howard Court remanded the Sheppard case to District Court. This Howard Court Order of December 5, 2000 relied upon Join Local Administrative Order 1999-03J, and specifically and explicitly assigned the case to Hon. Nancy Tolwin Carniak of 52/3 District Court. The Howard court should have known Joint Administrative Order 1999-03J had actually expired 7 months earlier on May 31, 2000 and that § III. A. explicitly states: Cases shall be assigned to all Sixth Circuit Court general jurisdiction judges and all Oakland County district court judges by random draw, irrespective of venue. Therefore, the Howard Court Order of December 5, 2000 was self-violative, as the Administrative Order had already expired and it negated “random draw†clause. Therefore, this was a Void Order by the Howard Court. The Tolwin-Carniak Court also should have known, especially, since the Tolwin-Carniak Court immediately dismissed the Stephens v Sheppard case and ordered sanctions against Plaintiff Stephens for filing a so-called, frivolous lawsuit. The Tolwin-Carniak court completely disregarded the fact that the now Plaintiff Stephens had already prevailed at mediation with a $5000 mediation award. This Order for sanctions was never entered by Sheppard and Canyon’s counsel, Mr. Makris. For perspective, a simultaneous case in the Howard Court was Sandstone v City of Novi where, apparently someone in the city of Novi created a theory of liability as a basis for a lawsuit. The Howard Court awarded mega millions in favor of Builder/Developer, Sandstone. Judge Barry Howard, then left the bench to represent Sandstone and both the Sandstone v Novi, and Canyon v Stephens cases moved to McDonald Court. In the Sandstone case, the McDonald Court awarded a park to Sandstone to satisfy the Howard judgment, and then ultimately this park was reassigned to mega-builder, Pulte for development. Likewise, the McDonald court also awarded Stephens property rights to lot #120 to Builder Canyon without citing any authority for such an action. On July 16, 2003 the McDonald Court erroneously dismissed Defendant Stephens proper claims under the Michigan Consumer Protection Act (MCPA) stating: July 16, 2003 P 25 Court: [In regards to Stephens’ claim under the Michigan Consumer Protection Act] “Stephens relies upon the case of Forton v Laszar 239 Mich App 711. The Court finds such reliance to be misplaced.†However, a homeowner may bring a claim for violation of the Michigan Consumer Protection Act. (MCPA) MCL 445.901 et seq. In Forton v Laszar 239 Mich App 711; 609 NW2d 850 (2000) lv den 463 Mich 969; 622 NW2d 61 (2001), the Michigan Court of Appeals ruled that a licensed residential builder may be sued under the MCPA. The Court concluded that the builder violated the act. The court reasoned that the MCPA is a remedial statute designed to prohibit unfair, unconscionable or deceptive methods, acts or practices in the conduct of trade or commerce, and that “trade or commerce†includes residential builders who construct and sell homes for personal family use. Thus residential builders are subject to claims of unfair or deceptive trade practices under the Act. In order to prove a violation of the Michigan Consumer Protection Act, Plaintiff has the burden of proving each of the following elements by a preponderance of evidence: 1. Defendant was engaged in trade or commerce as defined in the Act. 2. Defendant’s conduct or representations were prohibited by one or more of the provisions in the Act. 3. Plaintiff suffered a loss as a result of Defendant’s violation of the Act. Canyon Construction, Inc. is a licensed builder selling residential homes. Per the CABO Code, it is unlawful to construct a dwelling in violation of the codes, which Canyon Construction did. Defendant/Appellant Stephens was thrown into this 8-year, frivolous, vexatious lawsuit to preserve her deposit, where ultimately Canyon could ultimately resell this home upon Defendant/Appellant Stephens dear lot #120 for approximately $100,000 more to unsuspecting minority Korean Americans to transfer the responsibility to fix or disclose these defects at resale per the Seller’s Disclosure Law. Critical Settlement Period September 2, 2003 – The Canyon v Stephens’ trial was presumably scheduled, however, in a later conversation with the court reporter, Defendant/Appellant Stephens was told no trial could occur on that date, as no court reporter was scheduled for the McDonald Court. September 3, 2003 – Defendant Stephens met with her Attorneys Nicoletti and Hogan, for what she assumed would be a strategy meeting for the next days’ trial, however, on this date, every argument Defendant Stephens had for her damages, was now being refuted by her own Attorneys Nicoletti and Hogan. Something obviously flipped the switch. Surprisingly, Attorneys Nicoletti and Hogan now reversed their earlier advice regarding reimbursement of Defendant Stephens’ attorney fees when she was earlier told that Canyon breached the contract first by not providing a construction code compliant home, that her attorney fees would be reimbursed under the Michigan Consumer Protection Act, and as this was a frivolous and vexatious lawsuit against Defendant Stephens. A breach of contract occurs when one of the parties fails to perform its obligation. Woody v Tamer 158 Mich App 764 (1987). A contractor’s failure to meet the purpose of the contract is a breach. Attorney Nicoletti presented Defendant Stephens with a sheet of paper with a damage amount of approximately, $203,000 and required that she sign it, while both attorneys, Nicoletti and Hogan simultaneously were talking, and then Attorney Nicoletti pulled the paper from his client, Defendant/Appellant Stephens’ hands after only momentary review. When Defendant/Appellant Stephens asked about the CPA’s damage analysis she was told by Attorney Nicoletti that the CPA, Scott McGovern, only called the figure into him [Mr. Nicoletti]. Defendant/Appellant Stephens was under so much duress, she signed the incorrect year on the paper noting the 2003 only as ’02. Attorney Nicoletti culminated the session with the unprofessional and prophetic comment: “It is all about who can pay the longest.†September 4, 2003 – Defendant/Appellant Stephens reported to the courthouse and was told that presiding Judge McDonald arranged for Defendant/Appellant Stephens to meet with Judge Rudy Nichols. Defendant/Appellant Stephens’ Attorney Nicoletti stated: “Grab the exhibits, this will be a dog and pony show.†Upon arriving in Judge Nichols courtroom, Defendant/Appellant Stephens saw opposing Attorney, John Mitchell, representing Frankenmuth Insurance Co. leaving Judge Nichols chambers, ex parte; then Defendant/Appellant Stephens was escorted into a little room. With Judge Rudy Nichols entering this room, Judge Rudy Nichols stated “ANARCHY†in his robe in a standing position, Mr. Nicoletti stated: “Hi Rudy.†Mr. Hogan was mute and Defendant/Appellant Stephens tried to argue her case with Judge Nichols as Defendant’s attorneys, Nicoletti and Hogan did not intervene on Defendant’s behalf. Every attempt Defendant/Appellant Stephens made was interrupted by Judge Nichols stating, you don’t want to go to trial and let a 3rd party determine your fate, etc. Defendant/Appellant Stephens was then moved to another room, where again her attorney Nicoletti argued against every documented damage Defendant/Appellant Stephens had, then Attorney Nicoletti stated: “I won’t let this settlement fail.†Attorney Nicoletti left to meet with Judge McDonald and the opposing attorneys who were together, and then stated to Defendant/Appellant Stephens, “we are going into the courtroom to put the settlement on the record.†There was a definite modus operandi, that Attorney Nicoletti was running interference for the Judge and the opposing attorneys. Defendant/Appellant Stephens was escorted into the court room with 4 male attorneys, the 2 male builders and the male judge. Feeling exhausted from arguing against her own attorneys and intimidated by a procedure she was unfamiliar with, as nothing had been previously explained, Defendant/Appellant Stephens did agree to a confidential settlement, as it is on the record. The Court would be hard-pressed to find a better example of duress and fraud in regards to a settlement. September 11, 2003 – surprisingly, a neighbor of lot #120 called Defendant/Appellant Stephens, and within 3 sentences blurted out the terms of the confidential settlement. During the following weeks, after Canyon’s breach of the settlement terms, Defendant /Appellant Stephens contacted her attorneys Nicoletti and Hogan via e-mail, fax and phone messages, etc. but was ignored. Defendant/Appellant Stephens wanted Canyon’s breach of the confidential settlement documented with the opposing attorneys and the court, however, her attorneys Nicoletti and Hogan ignored and refusedher request, so she contacted the opposing attorney Mitchell representing Frankenmuth Mutual herself via e-mail around September 30. A few days later, Defendant Stephens’ received a notice of hearing for October 15, 2003 to compel the signing of the settlement documents and the Withdrawal of her attorneys Nicoletti and Hogan. October 15, 2003 - Attorneys Nicoletti and Hogan withdrew from representing Defendant/Appellant Stephens, the court forced Defendant/Appellant Stephens to sign the settlement papers without legal representation as the Court did not stay the proceedings. The Court instructed Attorney Mitchell representing Frankenmuth Mutual to give the check to Mr. Nicoletti without citing any authority for such action. Mr. Nicoletti then deposited Defendant Stephens Frankenmuth Mutual Insurance check dated 9/4/03,( the same day as the fraudulent settlement was entered, and the same day Judge McDonald paid off his mortgage) into his account without her lawful endorsement which are felonies of conversion, embezzlement, theft, etc. The apparent involvement of Frankenmuth Mutual Insurance Co. who is endorsed by the Michigan Association of Home Builders who brags about their involvement in precedent setting legal cases. The records of October 15, 2003; February 18, 2004; and March 10, 2004; reflect the fact that Defendant Stephens, for all intents and purposes, was without legal representation, and was unconstitutionally denied access to the court. The Nicoletti Withdrawal Order of October 15, 2003 explicitly states: “It is further ordered that this matter is stayed for a period of 30 days to allow Defendant/Counter-Plaintiff the opportunity to obtain substitute counsel.†However, based on the transcripts, Defendant Stephens was forced to sign settlement documents which were not reviewed by any attorney on her behalf. November 18, 2003 - Surprisingly, Defendant Stephens received first an e-mail, then a phone call from her former attorney Nicoletti. Pursuant to Sullivan v Gray 117 Mich 472, 482 (1982), so as to have a “more accurate record of what was said†Defendant/Appellant Stephens taped the phone conversation, and during the conversation, Attorney Nicoletti actually referenced the taping as EXHIBIT 17. Defendant/Appellant Stephens was told by Attorney Nicoletti that there was to be closing tomorrow prior to Defendant/Appellant Stephens delivering a Release of her Claim of Interest, that a “con game†and “conspiracy†existed, and that there would be no liens, plus other fallacies. November 19, 2003 - Defendant/Appellant Stephens did deliver as soon as possible, her Release of Claim of Interest to Greco Title after the Im’s closing; therefore, the Im’s fraudulently closed on a defective home with an intentional clouded title. Defendant/Appellant Stephens’ Release of Claim of Interest documented the events that she was intimidated by Judge Nichols, that Judge Nichols said “ANARCHY†that the settlement was reached by means of duress, that Defendant/Appellant did not have legitimate legal representation, and that Plaintiff Canyon had already breached the confidentiality clause in the settlement. All of the above factors documented that the settlement was void ab initio. Canyon resold the home, under false pretenses to Mr and Mrs. Im’s, as the proverbial Trojan Horse. Canyon knew the home was not construction code compliant, and Canyon knew that the Im’s were closing on a home with a clouded title. This was fraud, pure and simple. Canyon did not have the property rights to lot #120, under any statute or rule and the purported settlement was reached by means of duress and fraud so it was VOID. The Court was used as an abuse of process to transfer private property rights for Canyon who in turn was then able to transfer the responsibility for the unfixable defects to the new purchasers, per the Seller’s Diclosure Law which strategically exempts licensed builders. On this same day, November 19, 2003, a few hours after the Im’s closing, Defendant Stephens’ former attorney Nicoletti finally e-mailed her the actual CPA, Scott McGovern’s damage analysis, showing her damages were in excess of $644,000, when Attorney Nicoletti only revealed prior to the settlement an amount of $203,000 to his client, Defendant Stephens. February 18, 2004 - Judge McDonald retroactively Ordered in a hidden order, as it was never served to Defendant Stephens, but discovered by her in the file, Attorney Nicoletti’s check cashing fraud of the September 4, 2003 check, conversion, theft, etc. to cover-up Attorney Nicoletti’s illegal actions. Additionally, Judge McDonald Ordered liens, in for bogus attorney fees in excess of $260,000 with no basis, which is court-ordered extortion. The fact that Defendant/Appellant Stephens never received funds from her Frankenmuth settlement check for $25,000 means the settlement has never been fully consummated, in addition to the fact, that Defendant/Appellant Stephens never had legitimate legal representation, whereby her Attorneys Nicoletti and Hogan were actually representing their own best interests with exaggerated billable hours and the best interests of the opposing party, Canyon, certainly not the interests of their client Defendant/Appellant Stephens whereby, her Attorney Nicoletti was also on the record, arguing against his own former client. . October 15, 2003, P 10 Mr. Mitchell (representing Frankenmuth Mutual Ins.): I will submit the check to Ms. Stephens right now. Court: Turn the check over to Mr. Nicoletti for --- It appears that Mr. Mitchell for Frankenmuth Mutual knew on September 4, that Attorneys Nicoletti and Hogan would withdraw 6 weeks later, October 15, to lien the proceeds and happen to have a check drafted to reflect this occurrence prior to it happening; obviously, there was a plan. In less then 3 weeks, between September 4, and September 25, 2003, both Judge McDonald and Attorney Nicoletti paid off mortgages and purchased high-end real estate. Throwing Karen Stephens’ precedent setting case was very lucrative for the officers of the court. As an abuse of process, it appears the Courts sole function is to act as conduits to transfer litigants’ assets to officers-of-the-court allowing them to pay off mortgages, purchase real estate, and allowing the court to abscond with defendant’s property rights to lot #120, rather than pursue justice, so Plaintiff Canyon can sell the severely defective house for more $$, to the IM’s who in turn sued Plaintiff Canyon for the same plus additional defects. The Im’s are currently living in an unfixable, potentially lethal structure. Prologue to Arguments Thomas Cooley in his classic Treatise on the Constitutional Limitations understood the concerns for abuses of inviolable constitutional rights when he stated: “Individual citizens require protection against judicial action as well as against legislative; and perhaps the question constitutes due process of law, arises as often when judicial action is in question as in any other cases. But it is not so difficult here to arrive at satisfactory conclusions, since the bounds of the judicial authority are much better defined than those of the legislative, and each case can generally be brought to test of definite and well-settled rules of law.â€[1] In reality, Constitutional Rights are only theoretical unless they are enforced. “The most salient features of the Constitution of the United States are that it is a ‘people’s constitution,’ a constitution that contains sweeping limitations on governmental power designed to protect individual rights and a constitution that is ‘intended to endure.’â€[2] Rule of Law, not Men It is common knowledge that We, the citizens of the United States have rule of law, not of men. In violating the law, officers of the court are acting in their persons and not as a court. Therefore, any acts not defined by law i.e. statutory or decisional law, court rules, etc. are void, not voidable, but void ab initio. A judge has no lawful authority to issue any order which violates the Supreme Law of the Land, and property rights are constitutionally protected, absent eminent domain provisions. In the case at bar, abuse of process was perpetrated by judicial actions. Documented Violations of Court Rules This case is the standard of review for selective enforcement of Michigan Rules of Court. Violations of Court Rules: The use of the term “shall†denotes mandatory, not discretionary action. See Gulley-Reaves v Baciewicz, 260 Mich App 478, 485; 679 NW2d 98 (2004). [Emphasis added] Court rules violated as they do not have any discretionary provisions: MCR 2.114 (C) Signature (1) Requirement. Every document of a party represented by an attorney shall be signed by at least one attorney of record. A party who is not represented by an attorney must sign the document. [emphasis added] (2) Failure to Sign. If a document is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the party. [emphasis provided] (D) Effect of Signature (3) the document is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. (F) Sanctions for Frivolous Claims and Defenses. In addition to sanctions under this rule, a party pleading a frivolous claim or defense is subject to costs as provided in MCR 2.625 (A) (2). [as below] MCR 2.625 (A) Right to Costs (1) In General. Costs will be allowed to the prevailing party in an action unless prohibited by statute or by these rules or unless the court directs otherwise, for reasons stated in writing and filed in the action. (2) Frivolous Claims and Defenses. In an action filed on or after October 1, 1986, if the court finds on motion of a party that an action or defense was frivolous, costs shall be awarded as provided by MCL 600.2591; MSA 27A.2591. [emphasis added] MCR 2.508 Jury Trial of Right (A) Right Preserved. The right of trial by jury as declared by the constitution must be preserved to the parties inviolate. [emphasis added] MCR 2.602 Entry of Judgments and Orders (D) Service (1)The party securing the signing of the judgment or order shall serve a copy within 7 days after it has been signed, on all other parties, and file proof of service with the court clerk. [emphasis added] MCR 2.612 Relief from Judgment or Order (B) Defendant Not Personally Notified (C) Grounds for Relief From Judgment (1) (a) Mistake, inadvertence, surprise or excusable neglect. (c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party. (d) The judgment is void (f) Any other reason justifying relief from the operation of the judgment. MRPC 1.2 (a) …A lawyer shall abide by a client’s decision whether to accept an offer of settlement or mediation evaluation of a matter. MRPC 1.16 (d) Upon termination of representation, a lawyer shall take reasonable steps to protect a client’s interests, such as giving reasonable notice to the client… MRPC 8.3 Reporting Professional Misconduct MRPC 8.4 Misconduct Canon 2 (B) A judge should respect and observe the law. At all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary… Canon 3 (B) (5) A judge should not approve compensation beyond the fair value of services rendered. (C) Disqualification A judge should raise the issue of disqualification whenever the judge has cause to believe that grounds for disqualification may exist under MCR 2.003 (B). VOID ORDERS “Courts are constituted by authority and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regardes as nullities. They are not voidable, but simply VOID, AND THIS EVEN PRIOR TO REVERSAL. [Emphasis added]. Void Orders do not have to be declared void to be a void order. See Vallely v Northern Fire & Marine Ins. Co. 254 U.S. 348, 41 S.Ct. 116 (1920); Old Wayne Mut. I. Assoc. v McDonough, 204 .S. 8, 27 S.Ct 236 (1907); Williamson v Berry, 8 How. 495, 540, 12 L.Ed 1170, 1198 (1850); Rose v Himely, 4 Cranch 241, 269, 2 L.Ed 608, 617 (1808) No court has lawful authority to validate a void order. U.S. v Throckmorton, 98 U.S. 61, 25 L.Ed. 93 (1878); Hazel-Atlas Glass Co. v Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997 (1943); Root Refining Co. v Universal Oil Products Col, 169 F 2d 514 (1948). As documented, the settlement was reached by means of duress and fraud, the settlement documents of October 15, 2003 were not signed by any attorney on behalf of any of the parties, Attorney Makris did not sign for Canyon Construction, Attorney J. Mitchell did not sign for Frankenmuth Mutual, and neither Paul Nicoletti, nor Michael Hogan signed on behalf of Defendant Stephens. Defendant/Appellant Stephens was the prevailing party and is entitled to costs in this frivolous lawsuit against her. The settlement documents of October 15, 2003 were only surrendered greater than 6 weeks later, during the first week of December 2003. Defendant/Appellant Stephens’ attorney Nicoletti stated: “I won’t let this settlement fail.†As such denied Defendant/Appellant her constitutional right to a trial by jury, as triers of fact, and violated numerous other violations of Court Rules and Law. Documented bribes and kickbacks occurred which have only been ignored, not refuted, denied or disproved. In violation of due process rights, the Court forced Defendant/Appellant Stephens to sign settlement documents which were not reviewed by any attorney on Defendant Appellant’s behalf. The Court later ordered Defendant/Appellant’s property rights to lot #120 be vacated without citing any authority for such an action. In doing so, the court acted without jurisdiction. The United States Supreme Court has clearly and repeatedly held that any judge who acts without jurisdiction is engaged in an act of treason. U.S. v Will, 449 U.S. 200, 216, 101, S.Ct. 471, 66L.Ed 2d 392, 406 (1980): Cohens v Virginia 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821). . The United States Supreme Court, in Twining v New Jersey 211 U.S. 78, 29 S.Ct. 14, 24 (1908), stated that Due Process requires that the court which assumes to determine the rights of parties shall have jurisdiction.†Citing Old Wayne Mut. Life Assoc. v McDonough, 204 U.S. 8, 27 S.Ct 236 (1907); Scott v McNeal, 154 U.S. 34, 14, S.Ct 1108 (1894); Pennoyer v Neff, 95 U.S. 714, 733 (1877) In doing so, the court acted without jurisdiction. By acting with out jurisdiction, the court issued VOID orders. There is a misconception by some attorneys and judges that only a judge may declare an order void, but this is not the law: (1) there is no statute nor case law that supports this position, and (2) should there be any case law that allegedly supported this argument, that case would be directly contrary to the law established by the U.S. Supreme Court in Vallely v Northern Fire & Marine Ins. Co. 254 U.S. 348, 41 S Ct. 116 (1920). A party may have a court vacate a void order, but the void order is still void ab initio, whether vacated or not; a piece of paper does not determine whether an order is void, it just memorializes it, makes it legally binding and voids out all previous orders returning the case to the date prior to acting leading to void ab initio. Pursuant to Vallely supra, a void order does not have to be reversed by any court to be a void order. Courts have also held, that since a void order is not a final order, but is in effect no order at all, it cannot even be appealed. Courts have held that a void decision is not in essence a decision at all, and never becomes final. Consistent with this holding, in 1991, the U.S. Supreme Court stated that, “Since such jurisdictional defect deprives not only the initial court but also the appellate court of its power over the case or controversy, to permit the appellate court to ignore it…[Would be an] unlawful action by the appellate court itself.†Freytag v Commissioner, 501 U.S. 868 (1991). A void order may be challenged in any court, at any time, and even by third parties. A void order has no legal force or effect. As one court stated, a void order is equivalent to a blank piece of paper. Pursuant to MCR 7.302 (A) (1) (e) Argument Question 1 Can a Court enforce a settlement knowing the Defendant was forced to sign settlement documents without legal representation; knowing Defendant was abandoned by her attorneys and, knowing the settlement was based upon documented fraud, and documented duress, in addition to violations of numerous court rules which do not offer any discretionary provisions as these court rules state “shall’? Standard of Review The issue presented is whether the settlement is viable or void ab initio as defects exist in bringing forth the settlement involving only one party, Defendant/Appellant Stephens. The settlement agreement is a contract and is to be construed and applied as such. Absent a showing of factors such as fraud or duress, courts act properly when they enforce such agreements. Massachusetts Indemnity & Life Ins Co v Thomas, 206 Mich App 265, 268; 520 NW2d 708 (1994). Preservations of Error Fraud and Duress: September 3, 2003 Defendant/Appellant Stephens Attorneys Nicoletti and Hogan only revealed a damage amount of $203,512 prior to the settlement signing. Defendant/Appellant Stephens was required to sign this document and was under so much duress as both attorneys were talking simultaneously, she dated the document incorrectly as year ’02 instead of the correct year ’03. November 19, 2003 Only after Defendant/Appellant Stephens delivered her Release of Claim of Interest to Greco Title on November 19, 2003, about 1 ½ hours later did Attorney Nicoletti finally forward CPA, Scott McGovern’s true and accurate Damage Analysis. Transcripts: October 15, 2003 [settlement signing day for Defendant Stephens only] – p 6 Nicoletti: “Your Honor, I’m in a very precarious position, because I have filed a motion to withdraw from Ms. Stephens.†P 7 Nicoletti: “I’d prefer to have my motion to withdraw heard.†P 9 Court: “I’m going to require the settlement to be enforced.†P 10 Nicoletti: “Your Honor, as far as our motion to withdraw, I do have an order prepared relating to the motion to withdraw.†P 11 Mitchell: “This is the first time there’s been any communication to me that this was not an acceptable document.†P 11 Nicoletti: “If the court is requiring her to sign that, then there are provisions in there at least that she obviously
disagrees with.†P 14 Stephens: “I mean this convoluted situation that I’ve been put in just boggles my mind.†P 14 Stephens: “I mean now we’re agreeing that I’m signing the settlement, I think..†P 14 Stephens: “What? – sign the settlement?†P 15 Stephens: “I was lied to.†P 15 Stephens: “Than I have to get another attorney, is that what you’re saying†Nicoletti: “yes†Pg 16 Mitchell: “If one of her counsel would just serve as a witness on it we’ll be all set.†[Clarification: intentionally and with premeditation, neither of Defendant Stephens’ Attorneys Nicoletti nor Hogan affixed their signature on the settlement documents. Defendant Stephens signature was witnessed by opposing attorney Makris and with a conflict of interest, Attorney Makris also later witnessed the signature of Plaintiff, his client, Michael Falzetta.] February 18, 2004 – Transcript: P 6 Nicoletti: “…if the Court recalls after I withdrew from representing Ms. Stephens the Court gave me a lien on any proceeds.†P 15 Court: [threats directed to Defendant Stephens] “Do you want to give the money back to those people?†Court: “Do you want to give that money back to Canyon and start all over? Is that what you want to do? Stephens: “I haven’t thought about it.†Court: “Well, think about it.: Stephens: “Well, if we want to set aside.: Court: “Think about it, and you’d better think about it pretty hard.†p 15 Stephens: “I was lied to. If you look at the briefs you will see that Mr. Nicoletti gave me one amount and then right after the settlement, a hour and a half, he emails to me the accountant’s analysis. I’m getting a very dry mouth.†P 16 Stephens: “Mr. Nicoletti stepped up and said ‘you Honor, I’m in a precarious position. I’ve just -- I have a motion to withdraw from this case. Then the documents went from Mr. Mitchell, the settlement…†P 16 Stephens: “No. He withdrew before I signed.†P 16 Stephens: “I had no choice. He said to me, in that little room, I won’t let this settlement fail. I had no
choice.†P 17 Stephens: “…Mr. Mitchell was standing here, he --, he handed the settlement documents to Mr. Nicoletti, who handed them to me. I had to read them right here in Court without having – In fact the settlement document does say they were discussed with the attorneys. We never have had a discussion about those settlement documents. Never.†Court: “Okay All right. Anything else.†p 19 Nicoletti: “..the motion to force her to sign the settlement documents was heard, my motion was heard as well to withdraw, and granting me a lien on the proceeds.†P 19 Nicoletti: “The court refused to set aside the settlement, forced her to sign the settlement documents… I had an order from this court dated prior to that point in time giving me a lien on the settlement proceeds.†P 19 Nicoletti: “…I was granted a lien not only from this Court on the settlement proceeds, But I was granted a lien from a District Court as well on any and all proceeds that Karen Stephens obtains. I have two Court orders giving me a lien on not just the $25,000 but any and all settlement proceeds that she obtains.†P 21 Stephens: [for clarification: referring to a Stephens/Nicoletti taped phone conversation the evening of November 19, 2003] Nicoletti: “There is no lien, there is no lien. I will do a release and discharge of lien. There is no lien, Karen, There is not going to be a lien. So if you’re tape recording this, chuckle, chuckle, there isn’t going to be a lien. I’m not going to have a lien on anything. I’m not going to claim any more of your money.†P 22 Nicoletti: “She disputes the fact that I coerced her, I lied to her, I enticed her, I did whatever – whatever words she wants to use to settle this case, and it shouldn’t have been settled…†P 24 Stephens: “that he has no liens.†P 24 Court: ‘Well look. He said he wasn’t going to take any more.†P 25 Court: [referring to Stephens and lot #120] “You are out of it.†March 10, 2004 P 2 Stephens: “These liens are extortion, giving Mr. Nicoletti over $200,000 worth of liens, which is adverse to retaining new counsel in this case or any other case.†P 5 Makris: “even though this settlement was reached by means of duress.†P 9 Nicoletti: “Well your Honor, I’d love to respond, but I don’t really represent anybody in this case.†P 16 Makris: “arguing that she was under duress.†Stephens: “I was under duress.†P 19 Makris: “I’m signing it under duress.†Court: “Okay, well, you shouldn’t feel that way.: Makris: “She signed it, but above her signature she’s written ‘under duress.†(Rhetorically, what court rule allows a judge to tell a litigant how to feel?) p 22 Stephens “Attorneys Nicoletti and Hogan enriched themselves and represented the best interests of Canyon Construction by not disclosing to me, prior to the settlement, the true value of the CPA’s damage analysis report. “This behavior constitutes fraud on their behalf to secure an out-of-court settlement, which benefited themselves and Canyon Construction, not me their client.†“By already allowing disbursement of these funds, check cashing fraud and theft has been perpetrated by Mr. Nicoletti, with the bias basic – blessing of this Court.†P 31 Stephens: …address the fact with Judge Nichols, he didn’t even sit down. He said the word “anarchy†and he wouldn’t let me talk. And he was in that room for two minutes. He listened to not one word I wanted to say. So that was not unbiased either. P 32 Stephens: “And Mr. Nicoletti did say, “I won’t let the settlement fail.†At that point I – should have withdrawn from the case, because at that point I did not have an attorney.†ANALYSIS To establish intentional misrepresentation or common-law fraud requires proof that (1) there was a material misrepresentation; (2) it was false; (3) it was made with knowledge that it was false, or made recklessly, without knowledge of its truth ad as a positive assertion; (4) the party who made it intended that it should be acted upon; (5) the party to whom the misrepresentation was directed acted in reliance upon it and (6) thereby suffered injury. Hord v Environmental Research Inst (After Remand) 463 Mich 399, 404; 617 NW2d 543 (2000); Novak v Nationwide Mut Ins Co, 235 Mich App 675, 688; 599 NW2d 546 (1999); M & D, Inc v McConkey, 231 Mich App 22, 27; 585 NW2d 33 (1998). Michigan courts recognize a cause of action for fraud in the inducement as reflected in Samuel D Begola Services, Inc. v Wild Bros, 210 Mich App 636, 639-640; 534 NW2d 217 (1995), where in the Appeal Court stated: Fraud in the inducement to enter a contract renders the contract voidable at the option of the defrauded party [citations omitted.] In Sign! Or Else[3], Sarafa states: It is axiomatic that the victim may void a contract induced by duress because duress vitiates the assent component of a contract.:, and “Economic duress includes the “imposition, undue influence, or the taking of undue advantage of the business or financial stress or extreme necessities or weakness of another.†The settlement was obviously based upon fraud, duress, undue influence, false pretenses, intimidation, coercion and abuse of process. A judge is responsible for the professional conduct of his court officers. Attorney General v Michigan Public Service Comm, 243 Mich App 92; 625 NW2d 16 (2000). Courts speak through written orders. Rinas v Mercer, 259 Mich App 63, 71; 672 NW2d 542 (2003). Judgments entered by the court, pursuant to an agreement of the parties are of the nature of a contract, and are to be constued and applied as such. Gramer v Gramer, 207 Mich App 123, 125; 523 NW2d 861 (1994). Absent a showing of fraud or duress, the trial court acts properly when it enforces such agreements. Since the settlement, albeit contract, does not meet the requirements of a valid contract it is void. Therefore, any Orders based upon a void contract, by definition are also void ab initio. Argument Question 2: Can a Court deny attorney fees and costs to the prevailing party, Defendant/Appellant Stephens, in this vexatious, frivolous lawsuit which was used as an abuse of process, and had the intent to use the Court to bully Defendant/Appellant out of a contract, for Plaintiff/Appellee to sell the defective, subject house for more money; especially when this Court of Appeals order contradicts an earlier Court of Appeals Order? Standard of Review In re Attorney Fees & Costs, 233 Mich App 694, 701; 593 NW2d 589 (1999). Pusuant to MCR 2.114 (E), the court may sanction either the attorney or represented party for violations of MCR 2.114 (D). Moreover, attorney fees may be awarded if a defense is frivolous pursuant to MCR 2.114 (F). An action is frivolous if one of the following conditions is met: I. The party’s primary purpose in initiating the action or asserting the defense was to harass, embarrass, or injure the prevailing party. II. The party had no reasonable basis to believe that the facts underlying that party’s legal position were in fact true. III. The party’s legal position was devoid of arguable legal merit [MCL 600.2592 (3)(a).] Preservation of Error Defendant/Appellant Stephens defenses have been validated by the subsequent Im v Canyon lawsuit based upon the same plus additional defects regarding the same home, therefore her defenses were not frivolous. Defendant/Appellant Stephens was the prevailing party and this was a vexatious lawsuit against Defendant Stephens as it was Plaintiff Canyon who breached the contract. Analysis The Court of Appeals Order of April 27, 2005 actually contradicts an earlier COA 257085 Order of October 27, 2004 which very clearly states: Appellant is correct that the March 26, 2004 [meaning May 26, 2004] order denying her motion for attorney fees would have fallen within the meaning of this exception. This Court, nevertheless, lacks jurisdiction of a claim from the March, 2004 [May 2004] order since appellant failed to claim an appeal within 21 days of its entry. Therefore, it is settled, since the order was not timely served, there i |
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