IN RE ESTATE OF MARY MASSEY DECEASEDAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of MARY MASSEY, Deceased.
JAMES E. MCCARTY, Personal Representative
of the Estate of MARY MASSEY, Deceased,
July 28, 1998
Wayne Probate Court
LC No. 94-538106-SE
Before: Jansen, P.J., and Kelly and Markey, JJ.
Respondent Candice Massey appeals as of right from an order of the probate court declaring
the existence of a settlement and dismissing her and petitioner David Massey’s continuing litigation
relating to disposal of the estate of their mother, decedent Mary Massey. We reverse and remand for
The parties have engaged in a protracted dispute concerning the administration of the
decedent’s estate, their shares of inheritance under the will, and whether certain personal property is
part of the probate estate.
At a motion hearing in November 1996, counsel for the parties discussed possibilities for
settling several issues, after which petitioner prepared an order dismissing the case with prejudice under
the terms discussed at the hearing. At a hearing on petitioner’s motion for entry of the proposed order,
held in December 1996, the probate court concluded that the parties had settled the case and
accordingly signed the order.
Respondent argues on appeal that the probate court erred in regarding the statements of counsel
at the November 1996 hearing as manifesting assent to a settlement, in presuming that respondent’s
lawyer had special authority to bind her to a settlement in any event, and in enforcing a settlement that
was not executed in writing according to the procedures set forth in MCL 700.191(1); MSA 27.5191.
Whether counsel for the parties had reached a settlement agreement and so stated in open court
is a question of fact that this Court reviews under the clearly erroneous standard of review. MCR
2.613(C); MCR 2.507(H).
At the November 1996 proceeding, counsel for petitioner stated that he and counsel for
respondent “have reached agreement, we believe.” Petitioner’s counsel then announced, “First, I’d like
to recite for purposes of the discovery motions the following stipulation,” after which counsel addressed
matters concerning the deposition of petitioner and answers to respondent’s request to admit and
interrogatories. Petitioner’s counsel then stated:
The third part of our stipulation is that mediation will be adjourned to the next mediation
cycle. We are holding open for a period of two weeks an offer of settlement in the
amount of $35,000.00 for a determination of how this amount will be paid.
And finally Your Honor, with respect to the fabric, we are going to hold that
issue open pending possible settlement resolution by the parties in this matter.
Asked by the probate court if he agreed with petitioner’s representations, respondent’s counsel
replied, “That’s my understanding,” then discoursed briefly on the discovery issue. The probate court
finished by saying, apparently to petitioner, “why don’t you draft an order that includes all of this, make
sure both of you agree to it and then submit it to my office . . . .”
At the December 1996 hearing, petitioner’s counsel argued that the parties had entered into a
binding settlement, and that respondent failed to comply with its terms. Respondent’s counsel replied
that at the earlier hearing the parties placed on the record only the general outline of a settlement, the
particulars of which remained to be resolved, then explained that respondent had not agreed to the
terms that petitioner had proposed.
MCR 2.507(H) provides as follows:
An agreement or consent between the parties or their attorneys respecting the
proceedings in an action, subsequently denied by either party, is not binding unless it
was made in open court, or unless evidence of the agreement is in writing, subscribed
by the party against whom the agreement is offered or by that party’s attorney.
Because there is no dispute that respondent signed no written settlement proposal, the propriety of the
probate court’s insistence that respondent abide by the terms of the proposed settlement depends on
respondent’s having in fact agreed to the settlement in open court. We hold that the probate court
clearly erred in finding that the statements of counsel in court constituted acceptance of a settlement.
Petitioner’s counsel indicated the tentative nature of the understanding reached, saying that he
and opposing counsel had “reached agreement, we believe,” and anticipated further discovery,
mediation, and settlement resolution required to resolve the controversies completely. Similarly,
respondent’s counsel’s only indication of assent was to say “[t]hat’s my understanding” when asked if
he agreed with opposing counsel’s r
epresentations, respondent’s counsel then going on to address
concerns relating to further discovery. At best, counsel for the parties merely agreed to agree. Because
counsel for both parties envisioned further proceedings, clearly neither intended the statements then on
the record to constitute a final resolution of the case. Further, the probate court’s own request for a
written order, to “make sure both of you agree to it,” indicates that the probate court likewise did not
then understand a complete and final settlement to have been reached. The probate court clearly erred
in finding that the parties had agreed to a settlement in open court.
Underscoring the error is the lack of any indication in the record that respondent had authorized
her lawyer to settle the case on her behalf. An attorney may not compromise the client’s cause of action
absent special authority to do so. Michigan Nat’l Bank v Patmon, 119 Mich App 772, 775; 327
NW2d 355 (1982), citing Henderson v Great Atlantic & Pacific Tea Co, 374 Mich 142, 132
NW2d 75 (1965). Special authority or subsequent ratification is necessary to make such a compromise
valid and binding on the client. Nelson v Consumers Power Co, 198 Mich App 82, 86; 497 NW2d
Because we reverse on the ground that respondent did not agree to the proposed settlement,
we need not reach the question whether the settlement was void for want of a writing as dictated by
MCL 700.191(1); MSA 27.5191.
We reverse the judgment of the probate court and remand this case with instructions to vacate
the order of dismissal. On remand, petitioner may attempt to rehabilitate the proposed settlement by
presenting evidence that respondent has ratified the settlement or induced other parties reasonably and
detrimentally to rely on it. Jurisdiction is not retained.
/s/ Kathleen Jansen
/s/ Michael J. Kelly