Hogwash Volume 42

Hogwash! Issue No. 42

October 2015
Welcome to Hogwash!



Rosi and Gardner

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Striking It Big In Fantasy Land

Move over, baseball. By now, even the most casual TV viewer has noticed the abundance of commercials promoting America’s new favorite pastime: fantasy sports.
For the non-initiated, a fantasy sport is a game where participants – sometimes known as fantasy managers – assemble virtual teams of real players of a professional sport. The virtual teams then compete within a fantasy league, scoring points based on the statistical performance of real players in real matches or games. The points can be calculated manually by a fantasy league commissioner, or through a computer system that hosts the imaginary league and tracks all relevant stats.  
In most fantasy sports, team managers can draft and trade players, hoping that their roster will outperform their league rivals. At stake are more than mere bragging rights: most fantasy leagues involve cash prizes for managers who beat out their competition. The flip side, of course, is that many fantasy leagues charge an entry fee for those who wish to participate.
And lots of people do participate: according to the Fantasy Sports Trade Association approximately 56 million people aged 12 or above in the U.S. and Canada played fantasy sports in 2015, including about 20 percent of U.S. and Canadian males. The global fantasy sports industry will generate an estimated $2.6 billion in entry fees in 2015 alone, with growth projections to the tune of 40 percent per year for the next five years. That’s a lot of money being collected, and distributed, based on how athletes perform.  
So, huh, is fantasy gaming a form of gambling?
Not under the Unlawful Internet Gambling Enforcement Act (UIGEA), the relevant federal statute. Under that law, fantasy sports are exempt from the federal ban on Internet gambling, so long as the fantasy games meet three criteria:
  1. all prizes are established and made known to participants in advance of the contest, and the value is not determined by the number of participants;
  2. all winning outcomes reflect the relative knowledge and skills of the participants, and are determined by statistical results of the performance of individuals (i.e. athletes) in multiple real events; and
  3. no winning outcome is based on the score of a real team, nor solely on the performance of a single individual in a single event.

Criteria #1 and #3 are easy to meet. League prizes are set from the get-go, and “winning” is necessarily based on the combined performance of multiple athletes in multiple events. But #2 is iffy – is “winning” your fantasy league a result of the manager’s knowledge and skill? Or is it sheer luck? How different are fantasy sports from recognized forms of gambling, such as online poker? Good question, says U.S. Congressman Frank Pallone, Jr. (D-NJ).
Congressman Pallone has recently requested a congressional committee hearing to review the legal status of daily fantasy sports… but not for anti-gambling or other “higher moral ground” reasons: Pallone is apparently a big supporter of legalized sports betting. Do you think New Jersey (a state with a long legacy of gambling) has anything to gain if legalized sports betting is allowed nationwide? You betcha!

Issue: 42   
In This Issue

Big Win Brings Scrutiny to Fantasy Sports?

The controversy over a DraftKings employee winning $350,000 on FanDuel and questions as to whether employees of the two major fantasy sports sites have access to inside information that could help them “game the system” hasn’t kept players away.

Earlier this month, just after the controversy erupted and new rules on betting for employees of both DraftKings and FanDuel were implemented, some 7.4 million people entered the prize pools on the two sites over one weekend.

Meanwhile regulators are scrutinizing fantasy sports, New Jersey Congressman Frank Pallone called for congressional hearings and New York Attorney General Eric Schneiderman announced he would open an inquiry into daily fantasy sports.

Hazardous Apples?


No, not because they are not organic or hiding a razor blade within your child’s Halloween candy container. Rather, if you slip on a rotten apple on the sidewalk and hurt yourself can you recover? (Damages that is.)
In 2008, the Michigan Court of Appeals said “No,” ruling that even several apples in various states of decay lurking on the sidewalk awaiting the unwary sidewalker pose an “open and obvious” danger.  Therefore, the woman who slipped and fell, certain that the apples caused it, could not recover from the property owner.
Denise Grzesiak was walking into a radio station to pick up the movie tickets that her husband had won in the station’s contest.  She lost her footing on a “slippery substance” and fell, splitting open her chin, leaving blood stains in the grass and on the sidewalk, and causing injury to three teeth.
Plaintiff filed a suit against the radio station, claiming that it owed her a duty to keep the sidewalk clean and clear dangerous substances and articles such as, well, apples.  The trial court ruled in favor of the radio station on summary disposition (without a trial).  The Court of Appeals said that the trial court was right:  A danger is open and obvious if “‘an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection.'”
What’s a pedestrian to do?  In Michigan, at least, it seems that one should use some care to avoid all of those apples that the tree left lying around . . . and perhaps go find a caramel apple to enjoy, as a reward for successfully running the gauntlet!

What is Title Insurance and what is its value?

That question recently arose in our offices when a client came to us with a problem that is yet to be resolved.
Today everyone – no matter their level of understanding of real estate transactions – expects to have a Title Insurance Policy accompany their real property purchase. A typical Title Insurance policy includes the legal description of the property being purchased as well as various encumbrances, such as road and power line easements. Policies, as a rule, also include various exceptions such as oil, gas and mineral rights that are spelled out in the policy.
The current matter posed to our office involves the scope and application of Michigan’s Marketable Record Title Act, MCL 565.101, which provides that if a person has an unbroken chain of title of record to land for a period of 40 years it is presumed that he or she has Marketable Record Title and can convey the title to another person.
Compare that, if you will, to the entrepreneur who claims to have a deed to the Brooklyn Bridge that he would like to sell. It is doubtful that, if the bridge was in Michigan, our hero would have an unbroken chain of title of record to the bridge and could demonstrate a marketable record title that would support both title insurance and a warranty deed.  
In the case that our office was consulted about, the land at issue was made subject to a legal use restriction that was placed in a warranty deed more than 40 years ago. When the title of the property was examined it appears that the examiner may not have gone back more than 40 years because the title doesn’t refer to the restriction. Consequently neither the purchaser or his lender who financed the purchase were not informed of the restriction prior to closing on the property for which the seller received a substantial amount of money.
The restriction at issue, if in force, will prevent the purchaser from using the property as he intended and which justified the price paid for the property.
Although several historical restrictions limiting sales to persons of specific ethnic, religious or racial groups have been stricken as being contrary to the Federal and State constitutions, not all restrictions have been outlawed.
It’s suggested – and disputed – that the Marketable Record Title Act wiped out any and all restrictions that existed prior to the 40 year period unless they were specifically referred to in conveyances that may have occurred during the 40 year period. We suspect that it will ultimately be up to the courts to decide which position is correct.
Like many who purchase real estate, this buyer chose to not be represented by an attorney, which would provide another set of eyes on the warranty deed and possibly uncovered the ancient use restriction. Had that happened the current problem might have been avoided.
Consistent with our shared Hogwash! wisdom, a word to the wise: He who represents himself may have a fool for a client.

An Amazing Opportunity 

In the legal profession many of us pride ourselves on our conservative wardrobes. For men that’s usually striped ties, button down shirts, black or dark blue suits, and for women business suits and tailored blouses – very modest ensembles. That “uniform” seems to be the standard for a number of other professions as well!
It’s time to Break Out from Boring on October 17   
Hidden between Dictionary Day and Chocolate Cupcake Day is an opportunity to break free from those conservative and modest shackles. On October 17, only two weeks before Halloween (When we can each pretend to be who, in our heart of hearts we really want to be. Did I hear Donald Trump? No, it must be a plumbing problem) comes Wear Something Gaudy Day.
What, one may ask, is the definition of gaudy? Almost everything most of us wear every day, someone’s mother in law would describe as gaudy. Some wag or other has suggested that the term relates to the works of the Spanish architect Antonio Gaudi whose works include the El Capricho de Comillas (1883-1885), a most colorful and unusual structure worthy of a careful look.
However, according to the font of all knowledge, Wikipedia, gaudy or gaudie (from the Latin, “gaudium”, meaning “enjoyment” or “merry-making”) is a term used to reflect student life in a number of the ancient universities in the United Kingdom. It is generally believed to relate to the traditional student song, De Brevitate Vitae (On the Shortness of Life), which is commonly known as the Gaudeamus Igitur. Perhaps the literati among you may recall the first stanza, in English, not Latin.
Let us therefore rejoice,
while we are young;
After our youth,
After a troublesome old age
The ground will hold us.
With that wisdom in mind, October 17 is a time to throw caution to the winds, put on everything flashy and loud, — perhaps ties honoring your favorite Looney Tunes hero or a mix of colors like bright pink and bright green. Try your best to find items that clash – the noisier the better. Enjoy as the next day you may have to return to your usual conservative modest selves, all while being careful not being drop the chocolate cupcake!

October Special Offer


Riparian Rights

Well, it’s time to rake the leaves, mull the cider, and winterize the cottage.
Is your cottage on an inland lake?  Do you have questions about your riparian rights?  Call us, mention “Hogwash!” and we’ll give you a free consultation, in person or by phone, to answer your questions about your riparian rights.



(231) 941-5878

Offer Expires 11/15/2015

Gary’s Home Cooking 


Thai Style Pumpkin Soup
1 Tblsp peanut oil
1 Tblsp butter
1 clove garlic, minced
4 shallots, minced
2 small fresh red chili peppers, chopped
1 Tblsp chopped lemon grass
2 cups chicken or roasted vegetable stock
4 cups peeled and diced pumpkin
1 ½ cups unsweetened coconut milk
In medium stockpot heat the peanut oil and butter over low heat. Saute garlic, shallots, chillies and lemon grass in the oil/butter mixture until aromatic but not browned.
Stir in chicken or roasted vegetable stock, coconut milk and pumpkin and bring to a boil.
Continue to simmer over medium low heat until pumpkin is tender, about 40 minutes.
At this point you can serves the soup OR puree it with immersible blender before serving.
  • Lime Zest Yogurt swirl
  • Chopped cilantro
  • Toasted pumpkin seeds
  • Shards or thin strips of crystallized ginger

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Rosi & Gardner, P.C.
735  S. Garfield Avenue
Suite 202
Traverse City, Michigan 49686

Philip R. Rosi

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Gary Allen Gardner

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