Siegel v. Spinney

• Decision Date: 22 May 1985
• Docket Number: Docket No. 78001
• Citation: 367 N.W.2d 860,141 Mich.App. 346
• Court: Court of Appeal of Michigan — District of US
• Parties: Ann Voss SIEGEL, Plaintiff-Appellant, v. Latimer W. SPINNEY and Joan V. Spinney, Defendants-Appellees. 141 Mich.App. 346, 367 N.W.2d 860

Page 860

367 N.W.2d 860

Ann Voss SIEGEL, Plaintiff-Appellant, v. Latimer W. SPINNEY and Joan V. Spinney Defendants-Appellees.

Docket No. 78001.

141 Mich.App. 346, 367 N.W.2d 860

Court of Appeals of Michigan.

Submitted Dec. 7, 1984.

Decided March 5, 1985.

Released for Publication May 22, 1985.

[141 MICHAPP 347] Stroup, Brown, Mulhauser & Johnson, P.C., by Frederick R. Mulhauser, Petoskey, for plaintiff-appellant.

Dennis G. Cross, Petoskey, for defendants-appellees.

Before MAHER, P.J., and ALLEN and ROBINSON, ^* JJ.

PER CURIAM.

Plaintiff appeals as of right from a consent judgment establishing a boundary between the properties of plaintiff and defendants and giving defendants a limited right to trim trees on the strip of land of plaintiff, ownership of which was formally in dispute.

At issue was a 25' X 15' strip of land lying between defendants' land on the north and plaintiff's on the south. When plaintiff purchased the property in 1966, the strip was a natural area with trees, bushes, and underbrush, serving as a separation between the properties. Defendants subsequently extended their lawn south into a portion of the natural area and built a guest house just north of the area in 1981. They also began piling wood, parking boats, and chopping mature trees in the remaining natural area.

Plaintiff sued, claiming title to the disputed area and alleging trespass on the part of defendants.

On the date set for trial, the trial judge urged the parties to enter into a consent judgment. Following a short recess, counsel for defendants announced that an agreement had been reached and that defendants were prepared to enter the parameters of a consent judgment between the parties on [141 MICHAPP 348] the record. Counsel for plaintiff then outlined an agreement on the record:

"[T]he parties * * * are in agreement that a new northern boundary to Plaintiff's property will be established along a line to be surveyed by Mr. Young of Bidstrup and Young, to conform to the existing use of this disputed area by the parties * * * ; that the Plaintiffs will in the future retain rights to their privacy that this wooded area provides, and that the Defendant will have the future right to view a second-story view from his guest house, and that if the Defendant wishes to trim the mature trees in this area to effect his second-story view he will first seek the direction of the Court who will retain jurisdiction of this matter for the purpose of controlling those trimming rights; and that the Court will then permit him trimming rights with an eye towards his right to a second-story view and the Plaintiff's right to privacy."

Defense counsel agreed that the summary by plaintiff's counsel was essentially the defendants' understanding of the settlement as well. Plaintiff herself also stated her approval on the record.

However, the parties' attorneys ran into difficulties drafting an acceptable consent judgment. Defendants objected to the draft proposed by plaintiff's counsel. Defense counsel then drafted three successive proposed consent judgments, none of which were acceptable to plaintiff. Nevertheless, the trial court adopted the last effort, with minor changes, pursuant to defendants' motion for summary judgment, GCR 1963, 117.2(3). Over plaintiff's objection that there was no meeting of the minds, the judgment was entered.

On appeal, plaintiff argues that the numerous proposed consent judgments drafted by the parties show that there was no meeting of the minds at the time the agreement was orally entered on the record. Plaintiff relies on Norton Shores v. Carr, 59 [141 MICHAPP 349] Mich.App. 561, 229 N.W.2d 848 (1975), for her proposition that she is free to withdraw her consent prior to entry of the judgment, since consent must consist of approval both as to form and substance of the decree.

To the extent the Norton Shores case appears to have established a general right to revoke a consent judgment between the time it is orally placed on the record and when a judgment is actually signed, that decision has been the subject of criticism by this Court. See e.g., Michigan National Bank of Detroit v. Patmon, 119 Mich.App. 772, 778, 327 N.W.2d 355 (1982), and Meyer v. Rosenbaum, 71 Mich.App. 388, 391, 248 N.W.2d 558 (1976).

This Court in ...