People v. Mierzejewski , 208 Mich. App. 689 ( 1995 )

Griffin, P.J.

The people appeal as of right from an order of the circuit court for the return of property seized from defendant. We affirm.

On January 23, 1992, defendant, along with two other occupants of a motel room, was arrested for possession with intent to deliver less than twenty-five grams of cocaine. Two gold bracelets, $3,420.77 in cash, and three gold chains were seized from defendant by the arresting officers. At the conclusion of the August 10, 1993, hearing to dismiss defendant’s possession with intent deliver charge, the following colloquy occurred between defense counsel and the prosecutor:

Ms. Bates: Your Honor, with regard to the dismissal we would like to make a motion for the return of the property seized pursuant to the statute MCLA 600.4706.

Mr. Morris: Any property that is not clearly contraband or drug paraphernalia will be returned.

MCR 2.507(H) is controlling in this matter. MCR 2.507(H) provides as follows:

An agreement or consent between the parties or their attorneys respecting the proceedings in an action, subsequently denied by either party, 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.

An agreement or consent made in open court by the parties or their attorneys is binding on the parties. MCR 2.507(H); Reed v Citizens Ins Co of America, 198 Mich App 443, 448; 499 NW2d 22 (1993); Michigan Bell Telephone Co v Sfat, 177 Mich App 506, 515; 442 NW2d 720 (1989). We find the above record sufficient to establish that the prosecutor entered into a valid stipulation for the return of the seized property by consenting to defendant’s motion in open court. Because the cash and gold jewelry were not drug paraphernalia or clearly contraband, the prosecutor was bound by the parties’ agreement to return the property. MCR 2.507(H); Michigan Bell, supra.

Further, we find unpersuasive the dissent’s unsupported view that the prosecutor’s "promise” to return the seized property was not binding on the county. An agreement between counsel, subsequently denied by the parties, is binding under principles of apparent authority when it was made in open court. Nelson v Consumers Power Co, 198 Mich App 82, 89-90; 497 NW2d 205 (1993). Under Nelson and MCR 2.507(H), it is simply irrelevant whether the prosecutor specifically was authorized to return the property in the present case. We conclude that a prosecutor is "cloaked” with the apparent authority to settle all claims connected with a matter upon which the other party is entitled to rely. We see no reason to distinguish this case from the other occasions in which we routinely have enforced specifically a prosecutor’s promise.

Finally, we disagree with the dissent that there was insufficient consideration to support the parties’ agreement. Defense counsel’s implied-in-fact agreement to withdraw her motion after the prosecutor promised to return defendant’s property was clearly a sufficient quid pro quo to bind the parties. Accordingly, we conclude that the trial court did not err in ordering the return of the seized property.

Affirmed.

F. X. O’Brien, J., concurred.