in may of 2012 i hired and signed a six month contract with a consulting company to assist me with growing my small business towards my goal of acquisition. the contract was for an over all strategic plan, a marketing plan, standard operating procedures and employee manuals. after 5.5 months I did not receive anything of value, so I stopped paying him (there was one final payment of $450 due to him) i asked for the consultant to produce the documentation and he was unable to. So I hired an attorney to write a demand letter. Nothing was accomplished there. So I filed suit in small claims court. the case was removed from small claims and placed in general civil. we went through a court ordered mediation process on 2-12-2013. during mediation we reached a settlement agreement. the defendant would produce a marketing plan and i would go on with my life. Here's where it gets weird. The mediator presented a consent judgement form and the defense attorney filled it out. We all signed it. Then he said oh this is the wrong form and left the mediation room to retrieve the correct form. Unknowingly the second form I signed was a dismissal with prejudice form. During the entire mediation we used terms like settlement and judgement, but we never agreed to a dismissal, but I signed one. Of course the defendant did not deliver a quality marketing plan, and so now I am stuck with 32 useless pieces of paper and out of $2250 plus legal fees. I would have never under any circumstance knowingly dismissed my own case. I have attempted to enter two motions "One to show cause" and the other to set aside the judgement, but the judge has returned them. I then wrote a letter to the court asking for my day in court and on 8-2-2013 we went before a judge and she then told me that she no longer has jurisdiction over the case. I also have a voice mail where the defense attorney said "per the judgement his client delivered as promised", but again he used the term judgement and not dismissal.What recourse do I have?
Hello. You are correct, when you say it got weird. It's even weirder to have a judge say that she no longer has jurisdiction. You could have filed a Motion To Reinstate the case based on the fact that dismissal was filed in error (or by mistake) and was not to have been filed until the agreed judgment had been filed and then performed. You could have subpoenaed the mediator to testify as to what the real agreement was. What you are trying to do is overcome a "done deal", with signed dismissal, and that is difficult. I hope you can get it resolved by agreement. It seems like everyone is spending a great deal more time and money on this dispute than it can possibly be worth. How hard would it have been for the guy just to do the marketing plan?
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Still confused. I've done research and even asked the attorney that I originally hired if we could reinstate the case. Is reinstatement an option..considering the dismissal was filed before the document was delivered?
essentially what I ended up with is a dismissal with a clause written on the bottom of it. every attorney that I have shown the document to says it's weird and they have never seen anything like it.
the second route we too say that the defense attorney duped me, but the judge was not buying that story...which truly what happened. FYI In MI we can't subpoena a mediator.
Then you've been to lawyers who have told you that you're basically SOL. I have no basis for disagreeing with them, especially since the judge has already heard the whole story on your prior motions, and has denied reinstating the case. Look at it this way: All you were going to get was a marketing plan. How do you know it would have been any good? You might not be out anything at all . Sometimes it's just best to cut your losses and get on with life. Enjoy the day.
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Attorney recommended a solution that is not possible
I apologize for not mentioning the following two possibilities: Actually, the only possible solution would be to appeal the refusal of he court to reinstate the case to the Michigan Court of Appeals. I didn't recommend it because it would be rather impractical. The other possibility, that I might mention is that you might consider filing a formal complaint against the attorney with the MI Bar Assn. If he perpetrated a fraud on you in the mediation proceeding, he should be subject to discipline. http://www.adbmich.org/
Your basic question was: What recourse do I have? I have answered it accurately and honestly, which is our function. Any other answer would be dishonest. The MI lawyers have already verified that to you. The law is not always the way we wish it to be, nor does it always produce a just result. My Answer was not a 'bad answer' by any stretch of the imagination.
I hope you will enter a positive rating so that I will be compensated forassisting you. Also, be sure to verify this information with a local attorneywho is familiar with your local laws and procedures. Thanks againfor using Pearl.Com- Just Answer. Your business is appreciated.
I spoke with an attorney this afternoon here in MI. He says that I could enter a new case against the defendant for not fulfilling the obligation of the dismissal with prejudice, but I am not sure what I would file since the first suit was for breach of contract. what would this suit be for?The Marketing Plan was to contain certain aspects and he ignored the order. Is this a viable option? and
I would be for breach of another contract. The settlement agreement would be a new agreement that he could be sued for not fulfilling. That sounds like what the attorney was suggesting. You would argue that he made a contract to fulfill a prior contract.
I don't know how viable that option is. It isn't the kind of case that judges hear every day. Cases like that usually hinge on the skills of the attorneys who argue them - both for and against.
At the very least he will have to defend the suit with all that entails time and money wise.
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