Ditmore v. Michalik
| Decision Date | 05 April 2001 |
| Docket Number | Docket No. 218078. |
| Citation | 625 N.W.2d 462,244 Mich. App. 569 |
| Parties | Kevin DITMORE and Melanie Ditmore, Plaintiffs-Appellants, v. Larry MICHALIK, Becky Michalik, Ron Hiveley, Glena Hiveley, Dale Herring, Lucinda Herring, Floyd D. Campbell, Ray A. Busik, and Phyllis J. Busik, Defendants-Appellees, and Brookshire Associates Inc., d/b/a Century 21 Brookshire, Third-Party Defendant. |
| Court | Court of Appeal of Michigan — District of US |
Dykema Gossett PLLC (by W.A. Steiner, Jr., and Noceeba S. Gordon), Detroit, for the plaintiffs.
J. Michael Smith, Plymouth, for the defendants.
Before O'CONNELL, P.J., and ZAHRA and B.B. MacKENZIE1, JJ.
Plaintiffs appeal as of right from a judgment and order granting defendants' motion for summary disposition, MCR 2.116(C)(7) and (10). This case arises out of a dispute over the use of, and rights in, real property. We reverse and remand.
Plaintiffs alleged below that they were the equitable owners of certain real property located in Dexter Township, which we will refer to as lot 43, and which is part of a subdivision that Portage Lake Land Company developed. Plaintiffs further alleged that they were the equitable owners of a parcel lying directly between lot 43 and Portage Lake, which the parties refer to as "parcel 2." Plaintiffs began purchasing the property from Lesly Lochner through a land contract in 1995. Defendants own neighboring lots in Portage Lake Resort.
Plaintiffs alleged that beginning in 1995, defendants harassed and threatened them and continually trespassed on parcel 2. In response, plaintiffs constructed split-rail fences on the northerly and southerly borders of parcel 2, extending close to Portage Lake. According to plaintiffs, the fences were necessary to protect them and their property from continuing trespasses. The complaint requested various forms of relief, including a temporary restraining order, a preliminary injunction, and a permanent injunction prohibiting defendants from trespassing on parcel 2. Plaintiffs also requested actual and punitive damages.
Defendants filed a counterclaim in which they alleged that plaintiffs violated certain deed restrictions. Defendants based their claim on a 1944 deed in which Portage Lake Land Company conveyed lot 43 to Joseph H. Thompson and Edward S. George. The deed contained the following provision:
Defendants requested a permanent injunction prohibiting plaintiffs from erecting any fences and otherwise interfering with defendants' use of parcel 2.2
Plaintiffs filed a motion for partial summary disposition pursuant to MCR 2.116(C)(10), wherein they sought an order voiding the deed restrictions. The trial court ruled that the right of reverter that accompanied the deed restrictions was not enforceable. However, the court concluded that the prohibition against the erection of buildings or structures on parcel 2 was enforceable.
Plaintiffs thereafter filed a second motion for partial summary disposition pursuant to MCR 2.116(C)(10). Plaintiffs sought an order voiding the deed language that provided that parcel 2 was subject to any commitments that Portage Lake Land Company may have made. Plaintiffs argued that defendants were not entitled to use parcel 2 for lake access or recreational purposes. Plaintiffs also contended that defendants did not acquire any prescriptive easement over parcel 2. The trial court denied plaintiffs' motion, except that it granted the motion in part with regard to the issue of the existence of a prescriptive easement.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(5), (7), (8), and (10). Their primary argument was that two cases decided in the Washtenaw Circuit Court in the early 1960s barred plaintiffs' suit under principles of res judicata. Pursuant to a judgment entered February 18, 1999, the trial court granted defendants' motion in its entirety on the basis of res judicata. The court determined that the Portage Lake Land Company intended parcel 2 to be available for the use of the landowners and residents of Portage Lake Resort and the Orchard Addition to Portage Lake Resort Subdivision for ingress and egress and as a recreational area. The trial court further determined that plaintiffs' fences violated the deed restrictions against buildings or structures of any kind.
The judgment ordered plaintiffs to remove the fences from parcel 2 and forever enjoined them from erecting any structure or dock on parcel 2 that would violate the deed. The court further enjoined plaintiffs from interfering in any way with the ability of property owners and residents of Portage Lake Resort and the Orchard Addition to Portage Lake Resort Subdivision to use and enjoy parcel 2.
Plaintiffs argue that the trial court erred in concluding that, under principles of res judicata, two cases from the early 1960s barred their action. We review rulings regarding motions for summary disposition de novo. Van v. Zahorik, 460 Mich. 320, 326, 597 N.W.2d 15 (1999). The applicability of the doctrine of res judicata is a question of law that we also review de novo. Pierson Sand & Gravel, Inc. v. Keeler Brass Co., 460 Mich. 372, 379, 596 N.W.2d 153 (1999).
In 1962, Thurman and Della Andrew owned lot 41 and a parcel of land between lot 41 and a canal. This property was very close to plaintiffs' lot 43, and the parcel between lot 41 and the canal was the equivalent of plaintiffs' own parcel 2. Portage Lake Land Company filed suit to enjoin the Andrews from maintaining a fence on the waterfront parcel to lot 41. The company complained that the fence interfered with the rights of other property owners in the subdivision. The Andrews' deed provided that it was subject "to the restrictions that no structure of any kind or character may be erected upon the land and premises herein conveyed." The parties reached a settlement, and the court entered a consent judgment providing that the fence violated the deed prohibition against structures and that the Andrews were prohibited from interfering with the use and enjoyment of the premises as a recreational area and as a means of ingress and egress with respect to the lake. In 1963, Portage Lake Land Company filed suit against the Andrews (owners of lot 41 and its waterfront parcel), Don Dickerson (owner of lot 42 and its lakefront parcel), and Clarence and Josephine Rozmarynowski (owners of lot 43 and its lakefront parcel). As the description of their properties suggests, Dickerson's property was between the Andrews' and the Rozmarynowskis' properties. The complaint referenced Dickerson's deed, which contained the same restrictions as the deed in the present case. Portage Lake Land Company claimed that the Rozmarynowskis (lot 43), with the consent of Dickerson (lot 42), constructed a fence on the lakefront parcel to lot 42. Portage Lake Land Company sought to enforce the right of reverter clause in Dickerson's deed because, although the Rozmarynowskis had erected the fence, it was located on Dickerson's lakefront parcel. Portage Lake Land Company claimed that the fence on Dickerson's lakefront parcel interfered with the substantial interests of subdivision property owners in access to Portage Lake.
The Rozmarynowskis filed a cross-complaint against Portage Lake Land Company, claiming that other subdivision owners were continually trespassing on parcel 2 to lot 43. The Rozmarynowskis stated that they had helped build the fence on Dickerson's lakefront parcel to prevent trespasses on their own property. They sought an order allowing the fence to remain standing and to enjoin further trespassing on parcel 2.
The trial court ruled that Dickerson's lakefront parcel reverted back to Portage Lake Land Company and that the defendants were perpetually enjoined from erecting any fence on Dickerson's lakefront parcel. The judgment also provided:
IT IS FURTHER ORDERED AND ADJUDGED that the relief prayed for in the Cross-Complaint filed by Defendants, Clarence Rozmarynowski and Josephine Rozmarynowski, be denied.
Res judicata relieves parties of the cost and vexation of multiple lawsuits, conserves judicial resources, and encourages reliance on adjudication. Pierson, supra at 380, 596 N.W.2d 153. Res judicata applies when (1) the prior action was decided on the merits, (2) the decree in the prior decision was a final decision, (3) both actions involved the same parties or their privies, and (4) the matter in the second case was or could have been resolved in the first. Baraga Co. v. State Tax Comm., 243 Mich.App. 452, 455, 622 N.W.2d 109 (2000).
Plaintiffs first contend that because the 1962 case involved a settlement, the doctrine of res judicata does not apply because the case did not result in a judgment on the merits. We reject this argument. Res judicata applies to consent judgments. Id. at 455-456, 622 N.W.2d 109; Schwartz v. Flint, 187 Mich.App. 191, 194, 466 N.W.2d 357 (1991). Nevertheless, we agree with plaintiffs that the 1962 case did not bar their action. The 1962 case dealt with lot 41 and its waterfront parcel. The facts were not identical because the deed language at issue in the 1962 case was different and therefore did not involve the same matter as the present case.
We also agree with plaintiffs that the claims involved in the 1963 case were not the...
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