Rossi v. Transamerica Car Leasing Co. , 141 Mich. App. 403 ( 1985 )

141 Mich. App. 403 (1984) 368 N.W.2d 880

ROSSI
v.
TRANSAMERICA CAR LEASING COMPANY

Docket No. 73205.

Michigan Court of Appeals.

Decided November 7, 1984. Opinion on rehearing filed March 18, 1985.

Zeff, Zeff & Materna (by A. Robert Zeff), for plaintiffs.

Denenberg, Tuffley, Thorpe, Bocan & Patrick (by John L. Hopkins, Jr., and John A. Lawson), for Transamerica Car Leasing Company and Transamerica Title Insurance Company.

Buesser, Buesser, Snyder & Blank (by Ronald F. Graham), for Michael G. Magallanes.

Before: M.J. KELLY, P.J., and BRONSON and C.W. SIMON,^[*] JJ.

(ON REHEARING)

M.J. KELLY, P.J.

Plaintiffs appealed as of right from an order of the circuit court enforcing a purported oral settlement agreement. On November 7, 1984, we affirmed in a published per curiam opinion. 138 Mich App 807; 360 NW2d 307 (1984) (KELLY, J., dissenting). Plaintiffs then filed an application for rehearing which we granted by order of January 30, 1985.

Upon reconsideration of the record and briefs, we reverse the trial court's order for the reasons stated earlier by Judge KELLY in his dissenting opinion. Plaintiffs in this case have consistently denied the existence of a binding settlement agreement on the ground that there was no meeting of the minds. We thus distinguish the instant case from the recent decision of this Court in Thomas v Michigan Mutual Ins Co, 138 Mich App 117; 358 NW2d 902 (1984), in which one of the members of this panel participated. Plaintiff in Thomas never denied the existence of a settlement agreement but expressly sought to revoke the offer to accept. Because we find that the parties in this case never entered into a binding settlement agreement, the trial court erred in equating oral communications between the parties' attorneys to a binding settlement agreement, contrary to GCR 1963, 507.9.

Reversed.

BRONSON, J., concurred.

C.W. SIMON, J. (dissenting).

I respectfully dissent for the reasons stated in the original per curiam opinion for affirmance, 138 Mich App 807; 360 NW2d 307 (1984). Here, as in Thomas v Michigan Mutual Ins Co, 138 Mich App 117; 358 NW2d 902 (1984), appellants never denied entering into an oral settlement agreement. I would affirm.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.