STATE OF MICHIGAN
COURT OF APPEALS
DONALD LEO OLIVER and CHRISTINE
January 31, 2012
Livingston Circuit Court
LC No. 08-023618-CZ
AMERA MORTGAGE CORPORATION,
MORTGAGE ELECTRONIC REGISTRATION
Before: BECKERING, P.J., and OWENS and SHAPIRO, JJ.
Defendant George Hamas appeals as of right from a consent judgment that Hamasâs
attorney was ordered to sign on his behalf. We affirm.
Plaintiffs Donald and Christine Oliver filed a complaint against Ameriquest Mortgage
Company, Amera Mortgage Corporation, and George Hamas, seeking to set aside a sheriffâs sale
and âquiet titleâ to a certain parcel of property. The parcel was one of two foreclosed on by
Ameriquest and sold to Hamas by means of the sheriffâs sale. Plaintiffs asserted that the
foreclosure and sheriffâs sale of the parcel were void because Ameriquest had no interest in the
property. Plaintiffs added Mortgage Electronic Registration Systems, Inc. (MERS) as a
defendant after learning that Hamas had mortgaged the property, defaulted on that mortgage, and
that MERS had begun foreclosure proceedings.
At a pretrial settlement conference, counsel for the parties read into the record an
agreement to settle the action. Hamas was not present in the courtroom, but his attorney
indicated that Hamas had agreed to the terms of the settlement agreement.
Hamas subsequently forbid his attorney from executing a consent judgment in
accordance with the agreement, and the trial court entered a stipulated order requiring the parties
to appear before the court âto show cause why this action should not be dismissed.â
At the show cause hearing, Hamasâs attorney again indicated that Hamas had agreed to
the settlement and communicated that agreement to both him and MERSâs attorney before the
settlement was placed on the record. Hamasâs attorney stated that, after the settlement was
placed on the record, Hamas expressed misgivings about the settlement and âwhat appeared to be
a misunderstanding not necessarily as to the settlement, but the impact that the settlement would
have on him and monies he owes for improvements he made to the property that he still owes to
this date.â MERSâs attorney told the court that he had met with Hamas and Hamasâ attorney
before the settlement hearing, that Hamas had agreed to the deal proposed, and that he had
âabsolutely no doubtâ that Hamasâs attorney had been âfully authorized to make the settlement.â
Hamas spoke on his own behalf and told the court that he would lose a substantial sum of money
under the agreement because he would not be reimbursed for his mortgage down payment or the
$38,000 in payments he made on the mortgage, and he would still be liable to pay a $17,000 loan
that he used to improve the property. He also stated he had received death threats and had been
subjected to other forms of harassment by one of the parties. The court found that the agreement
placed on the record at the pretrial settlement conference satisfied MCR 2.507(G) and ordered
Hamasâs counsel to sign a consent judgment incorporating that agreement on Hamasâs behalf.
Hamasâs attorney then filed a motion for reconsideration. The trial court denied the
motion, explaining that Hamasâs arguments did not address âthe validity of the agreement itself,
whether he had in fact consented to the settlement explained to him in detail in a presentation, or
whether his attorney exceeded the scope of his authorization.â The trial court found that the
agreement was not voidable due to duress, noting that Hamas never indicated that the alleged
death threats and other forms of harassment were âdirected at forcing him to enter this
A trial courtâs decisions to enforce a settlement agreement and to deny a motion for
reconsideration are reviewed for an abuse of discretion. Groulx v Carlson, 176 Mich App 484,
493; 440 NW2d 644 (1989) (settlement agreement); Churchman v Rickerson, 240 Mich App
223, 233; 611 NW2d 333 (2000) (motion for reconsideration). An abuse of discretion occurs
when the trial courtâs decision is outside the range of reasonable and principled outcomes.
Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
Hamas argues that the settlement agreement was âunfairâ because it will not make him
whole. Hamas does not directly assert that he misunderstood the terms or that he was mistaken
as to any material fact but instead argues that the settlement agreement provided so little benefit
to him and such great benefits to the other parties that there is a question as to whether he really
understood the terms. Hamas further argues that there may not have been a âmeeting of the
mindsâ because he was absent from the courtroom and may have changed his mind in the 30
minutes between when he last spoke with the attorneys and when the agreement was placed on
An agreement to settle pending litigation is a contract and is therefore binding when it
includes all elements of a legal contract and meets the requirements of MCR 2.507(G). Kloian v
Dominoâs Pizza, LLC, 273 Mich App 449, 452-453, 456; 733 NW2d 766 (2006). Settlement
agreements are favored by courts and, therefore, âwill only be voided on satisfactory evidence of
mistake, fraud, or unconscionable advantage.â Pedder v Kalish, 26 Mich App 655, 658; 182
NW2d 739 (1970). A âmeeting of the minds,â or mutual assent, is âjudged by an objective
standard, looking to the express words of the parties and their visible acts, not their subjective
states of mind.â Kamalnath v Mercy Mem Hosp Corp, 194 Mich App 543, 548; 487 NW2d 499
(1992). A settlement agreement entered into by counsel on behalf of his client is binding on the
client if counsel acted with either actual or apparent authority. See Fletcher v Bd of Ed of Sch
Dist Fractional No 5, 323 Mich 343, 348; 35 NW2d 177 (1948) (âThe relation of attorney and
client is one of agency.â); Alar v Mercy Mem Hosp, 208 Mich App 518, 528; 529 NW2d 318
(1995) (âThe authority of an agent to bind a principal may be either actual or apparent.â).
âActual authority may be either express or implied.â Alar, 208 Mich App at 528. âApparent
authority arises where the acts and appearances lead a third person reasonably to believe that an
agency relationship exists.â Id.
First, because â[c]ourts do not generally inquire into the sufficiency of consideration,â
Gen Motors Corp v Depât of Treasury, 466 Mich 231, 239; 644 NW2d 734 (2002), we will not
address Hamasâs general characterization of the settlement as âunfair.â
Second, the fact that Hamas may have subjectively changed his mind in the 30 minutes
before the settlement was placed on the record is insufficient to establish a failure of mutual
assent that would justify setting aside the settlement agreement. Indeed, âonce a settlement
agreement is reached a party cannot disavow it merely because he has had âa change of heart,ââ
Metro Life Ins Co v Goolsby, 165 Mich App 126, 128; 418 NW2d 700 (1987), or because he
made a bad bargain, Berg v Hessey, 268 Mich 599, 605; 256 NW 562 (1934).
Moreover, the fact that Hamas was absent from the courtroom when the settlement was
placed on the record is inconsequential because Hamasâs attorney had the authority to legally
bind Hamas to the agreement. See Fletcher, 323 Mich at 348; Alar, 208 Mich App at 528.
Defendant has not argued that his attorney lacked actual authority to enter into an agreement on
his behalf or that he did not objectively manifest agreement to the settlement. Indeed, both
Hamasâs and MERSâs attorneys verified that Hamas communicated his agreement to them before
the attorneys entered the settlement on the record, and MERSâs attorney stated that he had
âabsolutely no doubtâ after talking to Hamas that Hamasâs attorney had been âfully authorized to
make the settlement.â This clearly supports a finding of actual or apparent authority. See Alar,
208 Mich App at 528.
Hamas also argues that the trial court abused its discretion by denying his motion for
reconsideration. As a basis for granting reconsideration, Hamas again argues that he was absent
from the courtroom when the settlement was entered into the record and emphasizes that it is
âplausibleâ that he could have âchanged his mindâ during the 30 minutes before the settlement
was entered into the record. Hamas also argues that, during the show cause hearing, he
inadequately explained why he was disavowing the settlement, no one asked him why he was
disavowing the settlement, and âno one tried to understand what he was saying.â Finally, Hamas
argues that the settlement agreement may be voidable because it was entered into under duress or
mutual mistake. In order for his motion for reconsideration to be granted, Hamas had to show
âpalpable error by which the court and the parties have been misled and [to] show that a different
disposition of the motion must result from correction of the error.â MCR 2.119(F)(3).
As previously discussed, neither Hamasâs absence from the courtroom nor the possibility
that Hamas could have had âa change of heartâ demonstrates that the settlement was entered into
the record without mutual assent. Moreover, we conclude that Hamas has abandoned his
arguments with respect to the events of the show cause hearing because he has not presented this
Court with citation to any legal authority to support his argument that reconsideration should
have been granted because he inadequately explained why he was disavowing the settlement, no
one asked him why he was disavowing the settlement, and âno one tried to understand what he
was saying.â See Ykimoff v WA Foote Mem Hosp, 285 Mich App 80, 106; 776 NW2d 114
(2009) (explaining that an issue is abandoned where an appellant merely announces his position
with little or no citation of supporting authority).
Contracts may be voided for duress. Clement v Buckley Mercantile Co, 172 Mich 243,
253; 137 NW 657 (1912). To establish duress, Hamas must show that he was unlawfully
compelled to enter the settlement agreement by fear of serious injury to his person, reputation, or
fortunes. Farm Credit Servs of Michâs Heartland, PCA v Weldon, 232 Mich App 662, 681-682;
591 NW2d 438 (1998). Hamas alleged that the Olivers had threatened his life and vandalized his
property and that he had debts that would not be covered by the settlement agreement. Although
death threats could potentially support a finding of duress, as the trial court noted, Hamas never
asserted that the threats were made to compel him to enter into the settlement agreement. See id.
And, the fact that Hamas had debts that would not be covered by the settlement agreement does
not demonstrate that he was unlawfully compelled to enter the settlement agreement by fear of
serious injury to his person, reputation, or fortunes. See id. (âFear of financial ruin alone is
insufficient to establish economic duress; it must also be established that the person applying the
coercion acted unlawfully.â).
Hamasâs argument that the settlement agreement should have been set aside due to
mutual mistake is likewise without merit. Mutual mistake is defined as âan erroneous belief,
which is shared and relied on by both parties, about a material fact that affects the substance of
the transaction.â Ford Motor Co v City of Woodhaven, 475 Mich 425, 442; 716 NW2d 247
(2006). Hamasâs mutual mistake argument is merely a regurgitation of his failure of mutual
assent argument, as the mistake he asserts is that âall counsel assumed Mr. Hamas agreed to the
settlement they placed on the record when he did not so agree.â Because the mistake asserted by
Hamas relates only to his subjective intent and not to a material fact that affected the substance
of the transaction, Hamas fails to establish that the settlement agreement was voidable for mutual
mistake. See id. And again, Hamas has never argued that his counsel lacked actual authority to
enter into an agreement on his behalf. Thus, the trial court did not abuse its discretion by
denying Hamasâs motion for reconsideration because Hamas failed to establish palpable error.
Hamas briefly argues that the consent judgment is somehow inconsistent with the
settlement agreement. However, he fails to identify the portions of the settlement agreement and
consent judgment that allegedly conflict. Contrary to his assertions, the consent judgment does
in fact provide that Hamas is not liable to Bank of America1 for any deficiency that may exist
after the short sale of the property occurs. Thus, we are not persuaded that the consent judgment
is inconsistent with the settlement agreement.
/s/ Jane M. Beckering
/s/ Donald S. Owens
/s/ Douglas B. Shapiro
Bank of America is the servicing agent for MERS.