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Dear Professor Lex

On Behalf of | Apr 23, 2018 | Blog |

I am involved in a case where an order was entered. The order was signed and approved by opposing counsel and me as to form and substance. Now opposing counsel has indicated to me that he is going to make a motion to set aside the order. Do you believe the order bars him from bringing the motion?

Dear Practitioner,

A significant fact omitted from your question is whether the order resulted from a Court’s opinion or from an agreement of the parties.

You should read Sulaica v Rometty, 308 Mich App 568, 866 NW2d 838 (2014). Therein, the Trial Court awarded attorney fees to the Defendant. The order that was entered contained each party’s signature approving the order “as to content and form”. The Plaintiff appealed the order. The Defendant argued that by Plaintiff signing the order “as to content and form”, the Plaintiff waived the right to appeal the attorney fee order. The Court of Appeals held:

…we reject defendant’s contention that plaintiff waived any potential objection to the trial court’s award of attorney fees by approving “as to content and form” the trial court’s order granting fees. Defendant contends that plaintiff’s approval as to “content and form” was the equivalent of the parties entering into a consent decree that cannot be challenged on appeal. Our Supreme Court has recognized that, although previous caselaw held that approving an order as to “form and content,” could be viewed as waiver of the ability [] to challenge the order, the “better rule,” which the Court adopted, cautioned against finding waiver simply where an order was approved as to form and content. Ahrenberg Mech. Contracting, Inc. v. Howlett, 451 Mich. 74, 77, 545 N.W.2d 4 (1996). Rather than amounting to waiver, the Court explained that an attorney’s approval of an order as [] to “form and substance” or “form and content” should be, under certain circumstances, viewed “but only as recognition that the proposed decree was legally formulated, and contained in substance the decision as orally announced by the court.” Id. at 77, 545 N.W.2d 4 (citation and quotation marks omitted). In Ahrenberg, there was no evidence of negotiations indicating that the parties were looking to compromise or otherwise surrender rights. Id. at 78, 545 N.W.2d 4. In addition, the fact that the defendant vigorously challenged the trial court’s ruling-both before and after entry of the order-demonstrated that the approval of the order as to “form and content” was not a waiver, but rather an acknowledgement that the prepared order contained the substance of the trial court’s decision. Id.

Similarly, in this case, there is no indication that the parties stipulated with regard to an outcome regarding the attorney fees. Plaintiff’s counsel’s comments at oral argument show that she challenged the trial court’s decision to award fees; plaintiff subsequently moved for rehearing and continued to challenge those fees on appeal. There is nothing to suggest that plaintiff’s counsel’s approval of the order at issue as to “content and form” illustrated counsel’s intent to enter into a consent order; rather, as in Ahrenberg, it merely appears that plaintiff’s counsel acknowledged that the prepared order contained the substance of the trial court’s oral ruling. Id. at 587-588.

If, however, the agreement resulted not from a judge’s ruling, but instead the agreement of the parties, Sulaica would not be applicable. The law as to that is found in Dora v Lesinski, 351 Mich 579, 88 NW2d 592 (1958), wherein the Court held:

It is elementary that one cannot appeal from a consent judgment, order or decree (Chapin v. Perrin, 46 Mich. 130, 8 N.W. 721, 722, and also authorities and cases cited in Sauer v. Rhoades, 338 Mich. 679, 62 N.W.2d 634). As Justice Cooley said in the Chapin case: ‘But neither party can complain of a consent order, for the error in it, if there is any, is their own, and not the error of the court.’ Id. at 582.

Answer respectfully submitted by Harvey I. Hauer and Mark A. Snover.

The above response is not meant to serve as a solution to a case. That would require complete disclosure of all facts in the case, including client consultation. Rather, the intent is to provide informal guidance based upon the facts that have been presented. The inquiring lawyer bears full legal responsibility for determining the validity and use of the advice provided herein.

Please send questions for Professor Lex to [email protected] or [email protected]. Include “Professor Lex” in the e-mails subject line.