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Michigan Bars A Divorce Litigant Who Settled From Later Suing For Legal Malpractice

In divorce cases that settle, the judge will hold a prove-up hearing. During that hearing, the parties are asked questions about the Marital Settlement Agreement. If a litigant testifies that the settlement was fair and appropriate, can he later sue his lawyer for “coercing” him into settling the case? The answer in Michigan is “No.” The legal doctrine is judicial estoppel – which provides that a litigant cannot assert contradictory positions in two cases. In this case, the wife testified at the prove-up that she agreed to the terms of the settlement. Later, she sued her divorce lawyer for legal malpractice and alleged that she was “tricked” into settling. The court dismissed the case and the Appellate Court affirmed in an unpublished opinion. The court essentially reasoned that it was unfair for the plaintiff to obtain the benefits of a settlement (to which she consented) and then turn around and sue her lawyer.

The reasoning:

At the heart of plaintiff’s legal malpractice case is her assertion that she was tricked and/or coerced into agreeing to the settlement at the March 28, 2012 hearing at her divorce proceeding. But the doctrine of judicial estoppel renders her claims meritless. Judicial estoppel, described as the doctrine against the assertion of inconsistent positions, is a tool used by courts to impede those litigants that “play `fast and loose’ with the legal system.” Paschke v Retool Indus, 445 Mich 502, 509; 519 NW2d 441 (1994) (citation omitted). Under this doctrine, a party that has successfully and unequivocally asserted a position in a prior proceeding is estopped from asserting an inconsistent position in a subsequent proceeding. Wells Fargo Bank, NA v Null, 304 Mich App 508, 537; 847 NW2d 657 (2014); Detroit Int’l Bridge Co v Commodities Export Co, 279 Mich App 662, 672; 760 NW2d 565 (2008).

In the divorce proceeding before Judge Sosnick, plaintiff stated under oath that she understood the terms of the settlement. She also understood that she would be bound by the terms if she accepted the settlement and further testified that it was her choice and decision to settle the case based on the terms that were placed on the record. In reliance on plaintiff’s testimony, Judge Sosnick granted a judgment of divorce consistent with the settlement terms placed on the record. Now, plaintiff has taken a position wholly inconsistent with her testimony at the March 28 hearing. Plaintiff now claims that she did not want to settle the case. In her deposition, plaintiff claimed that she did not know that the purpose of the hearing was to place a settlement on the record. She alleges that she believed that the purpose of the hearing was to place her husband’s position on the record, and she simply followed Ms. Cronin’s instructions regarding how to answer questions.

Because plaintiff, in the divorce proceeding, testified unequivocally and thus, represented to the trial court that by her own choice and decision, she wanted to settle the case based on the terms placed on the record, we hold that plaintiff is judicially estopped from asserting here that she did not want to settle the case


Source: Roth v. Cronin, Mich: Court of Appeals 2017 – Google Scholar

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