Opinion
Docket No. 44844.
Decided July 24, 1980. Leave to appeal applied for.
Cicinelli, Mossner, Majoros Alexander, P.C., for plaintiffs on appeal.
Smith Bovill, P.C. (by Albert A. Smith), for plaintiffs on appeal.
Warner, Norcross Judd (by Thomas J. McNamara and Peter J. Gustafson), for defendant.
Over two years after plaintiffs had instituted this action, the parties reached a settlement in open court. On the day of the settlement a stipulation and order of dismissal were signed by the parties and the trial judge. Three weeks later, plaintiffs, represented by new counsel, petitioned the trial court to set aside the stipulation and order of dismissal for the alleged reason that their attorney had compelled them to settle through coercion and duress. After two hearings on the matter in the trial court, plaintiffs' motion was denied. Plaintiffs then claimed an appeal in this Court, which was dismissed, but the Supreme Court vacated the order of dismissal of this Court and remanded the matter to us for plenary consideration.
The question presented for our determination is whether or not the trial court abused its discretion by denying plaintiffs' motion for relief under GCR 1963, 528.3. We find that it did not. The trial court specifically found that when one of the plaintiffs testified in open court concerning the settlement, he was acting voluntarily and not because of coercion or duress. Nevertheless, even if a contrary finding had been made that plaintiff was expressing assent to an agreement due to coercion or duress, there would be no cause to overturn the settlement where there was no showing that the defendant participated in, or even knew of the alleged coercion. In this case there has been no contention that defendant was in any way related to the allegedly improper behavior of plaintiffs' attorney. See Musial v Yatzik, 329 Mich. 379, 383; 45 N.W.2d 329 (1951).
Plaintiffs' arguments place major reliance upon the case of Briggs v Withey, 24 Mich. 136 (1871). That case, plaintiffs declare, establishes the rule that if a party agrees to a settlement under duress practiced on him by his attorney, such settlement will be set aside by the Court as unconscionable. A reading of the case does not furnish such a rule. Without restating the extensive and unusual details therein, suffice it to say that there was a concert of action found between opposing attorneys in Briggs to extort a settlement from a party facing civil and criminal charges arising out of adultery. The Supreme Court in Briggs did not set aside the agreement in toto; rather, it reduced the figure of the settlement by the amount which the Court determined the opposing attorney had gained from the transaction. The present case, thus, cannot be compared very well to Briggs.
Nor are we convinced that a fraud was perpetrated upon the trial court by plaintiffs' attorney. Relief from judgments upon grounds of fraud has been limited to those instances when "* * * some material fact is concealed from that court or when some material misrepresentation is made to that court". Banner v Banner, 45 Mich. App. 148, 154; 206 N.W.2d 234 (1973). We do not find the present case to be such an instance. Parker v Severn, 37 Mich. App. 231, 232-233; 194 N.W.2d 432 (1971), lv den 388 Mich. 778 (1972). Rather, we find that plaintiffs should be held to the settlement agreed to in open court and on the record, Kruger v Martin, 96 Mich. App. 660; 293 N.W.2d 667 (1980), and that the ruling of the lower court be affirmed. Kirn v Ioor, 266 Mich. 335, 338; 253 N.W. 318 (1934). Costs to appellee.