Enforcement of a settlement agreement purportedly resolving a dispute for unpaid services; MCR 2.507(G); Acceptance & meeting of the minds; Dabish v Gayar; Contract modification by mutual consent; Kloian v Domino’s Pizza LLC

The court held the parties’ settlement agreement was unenforceable because plaintiff unilaterally broadened a non-disparagement clause and defendant never accepted the modification in open court or by a signed writing. Plaintiff claimed defendant owed more than $300,000 for landscaping services and the reconstruction of a driveway. The parties reached a settlement under which defendant would pay specified sums. Plaintiff’s counsel circulated drafts of a written settlement agreement containing a sweeping non-disparagement provision, which defendant never signed, instead returning a version that narrowed this clause. The trial court enforced plaintiff’s draft and ordered defendant to sign it. On appeal, the court first rejected plaintiff’s waiver argument, concluding defendant preserved her objection by telling the judge at the hearing that plaintiff’s draft contained “more … than that’s on the record” and that the proposed non-disparagement clause was “very broad,” which was sufficient to raise the issue. The court also rejected enforcement on the merits, explaining that under MCR 2.507(G) a settlement is binding only if “made in open court” or evidenced by a writing “subscribed” by the party or her attorney, and “defendant did not sign either of the drafts in the record containing the non-disparagement clause,” so “the trial court erred in ordering defendant to sign the settlement agreement.” Finally, the court rejected plaintiff’s claim that defense counsel approved the clause, noting the record showed only comments that it was “super broad” and that revisions were “subject to client approval,” and emphasizing that “a court cannot force settlements upon parties or enter an order … which deviates in any material respect from the agreement of the parties.” Reversed and remanded.