MARK H YATES V PATRICIA A YATES
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STATE OF MICHIGAN
COURT OF APPEALS
MARK H. YATES,
UNPUBLISHED
March 25, 1997
Plaintiff-Appellee,
v
No. 188445
Lenawee Circuit Court
LC No. 94-015683 TM
PATRICIA A. YATES,
Defendant-Appellant,
and
LORAN FAULHABER,
Defendant.
Before: Corrigan, P.J., and J.B. Sullivan* and T.G. Hicks,** J.J.
PER CURIAM.
Defendant Patricia Yates, appeals by right a July 31, 1995, order denying her motion for leave
to file an amended complaint and dismissing the case with prejudice. We affirm.
The long and complicated history of the present case began with a 1981 divorce judgment
dissolving the marriage of plaintiff, Mark Yates, and defendant, Patricia Yates, entered by Washtenaw
Circuit Court Judge William F. Ager. The judgment provided that the marital home, which was located
in Lenawee County, was to be sold “at the earliest possible date,” with plaintiff to be awarded fifteen
thousand dollars from the proceeds. A 1985 amendment to the judgment conveyed the property to
defendant, ordered her to pay plaintiff a total of fourteen thousand dollars within eighteen months, and
granted plaintiff a lien on the property to secure payment.
* Former Court of Appeals Judge, sitting on the Court of Appeals by
assignment pursuant to Administrative Order 1996-3.
** Circuit judge, sitting on the Court of Appeals by assignment.
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On September 3, 1987, upon motion by plaintiff, who had not yet been paid, the Washtenaw
Circuit Court entered an order appointing Jay Tressler as receiver and ordering sale of the property.
This order was followed on October 20, 1987, by an amended order appointing Thomas Stringer as
co-receiver. The property was sold to James and Terry Sosko, and, on March 10, 1988, the
Washtenaw Circuit Court entered an order approving distribution of the proceeds. Following a
satisfactory accounting of the proceeds of the sale, the Washtenaw Circuit Court dissolved the
receivership and discharged Mr. Tressler and Mr. Stringer from their lability and obligations as co
i
receivers. Defendant did not appeal the orders of the Washtenaw Circuit Court.
On November 12, 1991, defendant filed a complaint in Lenawee Circuit Court alleging fraud
against the receivers, Mr. Tressler and Mr. Stringer, the purchasers, Mr. and Mrs. Sosko, and the real
estate agent, Grace Edwards. Lenawee Circuit Judge Kenneth E. Glaser dismissed the complaint in
three separate orders: a voluntary dismissal with prejudice entered on May 7, 1992, at defendant’s
request; and grants of summary disposition as to the other defendants. Defendant did not appeal the
orders of the Lenawee Circuit Court.
Defendant then filed a motion in Washtenaw Circuit Court seeking to set aside the sale of the
property and the dismissal of the receivers. On March 8, 1993, the court denied the motion finding that
the corresponding allegations of fraud were already the subject of the 1991 Lenawee County lawsuit,
and that defendant “did have remedies in the Lenawee County action.” Defendant did not appeal this
decision, but rather made a motion to “remove cause of action” to Lenawee County. The motion,
signed by both defendant and her counsel, stated that the County of Lenawee was “where a prior action
was commenced and later dismissed regarding the exact same claims raised initially in [Washtenaw
Circuit] Court” (emphasis added). In an order entered on April 8, 1994, the Washtenaw Circuit Court
found that the divorce action had been settled and disposed of, but that additional questions remained
concerning the property. The court “removed” the property issues to Lenawee Circuit Court for
whatever relief the Lenawee court deemed appropriate, and “release[d its] jurisdiction over these
property issues.”
Based on this “removal” order, defendant filed a motion in Lenawee Circuit Court for leave to
file an amended complaint to set aside account of receivers and sale of real estate. In the motion, which
was captioned in terms of the original divorce action, defendant misrepresented the substance of the
Washtenaw Circuit Court’s March 8, 1993 order, claiming that it “ruled that [d]efendant’s remedies
properly lay in civil action to be instituted in Lenawee County.” Accordingly, defendant sought “leave
to file [a]mended [c]omplaint and or such supplemental pleadings and conduct such discovery and
evidentiary hearings as the Court may permit.” In opposing the motion, plaintiff argued laches, statute of
limitations, failure to state a claim, and res judicata. In denying defendant’s motion and dismissing the
case, Lenawee Circuit Judge Timothy Pickard found that defendant failed to appeal any of the Lenawee
Circuit Court dismissals of the 1991 fraud claim, that defendant failed to appeal the 1993 Washtenaw
Circuit Court order denying the motion to set aside the sale, and that the ten-year statute of limitations
for enforcement of judgments barred defendant’s claims.
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Defendant first claims that the ten-year statute of limitations for enforcement of judgments, MCL
600.5809(3); MSA 27A.5809(3), does not apply to her claims against Jay G. Tressler, Thomas
Stringer, Grace Edwards, James Sosko and Terry Sosko. The period of limitations for actions to
enforce judgments or decrees is ten years. Ewing v Bolden, 194 Mich App 95, 99; 486 NW2d 96
(1992); Gabler v Woditsch, 143 Mich App 709, 710-711; 372 NW2d 647 (1985). We agree with
defendant that the ten-year statute of limitations for enforcement of judgments does not apply to the
above named defendants for the reason that they were not parties to the instant appeal.
Defendant’s claims against Tressler, Stringer, Edwards and the Soskos are, however, barred by
the doctrine of res judicata because of defendant’s failure to appeal the prior dismissal with prejudice in
lower court case number 91-5168-CZ, the case in which those persons were parties. Wilson v
Knight-Ridder Newspapers, Inc, 190 Mich App 277; 475 NW2d 388 (1991). The action was
dismissed in three separate orders: a voluntary dismissal with prejudice at the request of defendant who
was plaintiff in that action; and the defendants’ motions for summary disposition. The dismissals
operated as an adjudication on the merits. See, In re Koernke Estate, 169 Mich App 397; 425
NW2d 795 (1988); MCR 2.504(B)(3).
Defendant’s instant motion for leave to file an amended complaint, captioned in terms of the
original divorce action and filed in the Lenawee Circuit Court, is similarly barred by her failure to appeal
any of the numerous orders of the Washtenaw Circuit Court, particularly the 1993 order denying the
motion to set aside the 1988 sale, the distribution of proceeds and the accounting of the receivers.
Defendant claims that, if the ten year statute of limitations for enforcement of judgments does
apply, her cause of action for fraud against Tressler, Stringer, Edwards and the Soskos is not barred
because the 1985 modification of the judgment of divorce restarted the running of the statute. Even if
we were persuaded by the authority cited by defendant, however, our determination that res judicata
bars defendant’s claims is dispositive.
The same analysis applies to defendant’s claim that the trial court’s denial of defendant’s request
for leave to file an amended complaint was violative of MCR 2.118. We echo Judge Ager’s apt
characterization of this case: “Matters must be brought to a close sometime.”
Affirmed.
/s/ Maura D. Corrigan
/s/ Joseph B. Sullivan
/s/ Timothy G. Hicks
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