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CONTRACTS 20: Because the parties never reached an agreement on the material terms related to the issues a contract was never formed.

This case arises from an alleged settlement agreement between the parties regarding the underlying litigation in this real property dispute. Plaintiffs and defendants are neighbors, with defendants’ property bordering the eastern boundary line of plaintiffs’ property. Plaintiffs purchased their property in 2019,1 and defendants acquired their property in 1997.

Plaintiffs alleged in their complaint that they sought to plant trees along the eastern boundary line of their property, but defendants interfered with these efforts.

Settlement Agreement

Approximately three months into this litigation, plaintiffs filed a motion to enforce a settlement agreement the parties purportedly entered into to dispense of all the claims underlying the litigation. According to plaintiffs, the parties entered into a binding settlement agreement through an e-mail exchange between the parties’ respective counsel.

Email Exchange

The attorney who represented defendants at that time sent an email to plaintiffs’ counsel. The email addressed issues concerning where defendants would agree to plaintiffs planting trees and locating other landscaping features relative to the driveway maintenance easement and the boundary line between the parties’ properties.

Plaintiffs’ counsel replied: With your acknowledgement below that the lynch pin of the settlement is obtaining a fully executed document in recordable form withdrawing the 5th modification to the declaration of restrictions and acknowledging that the original declaration of restrictions (not including the permanent easements) expired in 1999, the settlement offer is accepted. As you noted, without that, there is no settlement. Can you please share with me a draft of the two recordable documents that you propose under the terms of your email.

This email from plaintiff’s counsel also included the disclaimer at the bottom that this email does not establish a contract.

Consent Agreement

An attorney has the apparent authority to settle a lawsuit on behalf of his or her client.

An agreement or consent between the parties or their attorneys respecting the proceedings in an action 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.

Defendants’ attorney responded by email and clearly declined to change the original offer to include the guaranteed result that plaintiff’s attorney requested.

In this case, because the parties never reached an agreement on the material terms related to the issues involving the Fifth Modification, original Declaration, and the agreement of other nonparties with respect to those matters, a contract was never formed.

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REAL ESTATE 89: RM had not included any language in the deed providing that the property was a joint tenancy with full rights of survivorship, the property instead became a tenancy in common.

RM drafted the deed without seeking counsel and mistakenly believed that, if either she or FK died, the property would fully pass to the surviving tenant. FK’s will provided that if his wife predeceased him—which she did—the personal representative of his estate should sell any residual property that he owned and divide the cash proceeds equally among his surviving children.

FAMILY LAW 83: A trial court can terminate a parent’s rights and permit a stepparent to adopt a child.

A trial court has discretion to terminate a parent’s rights and permit a stepparent to adopt a child when the conditions of MCL 710.51(6) are met. MCL 710.51(6)(b) requires the petitioner to establish that the other parent had the ability to visit, contact, or communicate with the children, and substantially failed or neglected to do so for a period of two years.

PROBATE 53: The trust agreement included an Incontestability Provision.

A settlor’s intent is to be carried out as nearly as possible. Generally, in terrorem clauses are valid and enforceable. However, a provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding contesting the trust or another proceeding relating to the trust.

FAMILY LAW 82: Court stated it would terminate the personal protection order (PPO) after the parties present documentation of the initiation of the divorce proceedings.

However, the trial court concluded that these matters should, in fact, be in the province and the jurisdiction of the Family Division and in that respect, having issued a personal protection order, the Court stated it would terminate the personal protection order after the parties present documentation of the initiation of the divorce proceedings.

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