KEVIN DITMORE V LARRY MICHALIK
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
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,
FOR PUBLICATION
February 9, 2001
9:00 a.m.
No. 218078
Washtenaw Circuit Court
LC No. 96-007685-CZ
Defendants-Appellees,
and
BROOKSHIRE ASSOCIATES INC.,
d/b/a CENTURY 21 BROOKSHIRE,
Updated Copy
March 30, 2001
Third-Party Defendant.
Before: O'Connell, P.J., and Zahra and B.B. MacKenzie*, JJ.
O'CONNELL, P.J.
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
____________________________________________
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
-1-
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:
Said parcel of land is subject to all State and Federal laws regarding shore
lines of inland lakes and also subject to any commitments which may have
previously been made by Portage Lake Land Company.
This conveyance is given upon the express condition that no buildings or
structures of any kind shall ever be erected or permitted to remain upon the above
described property or in the water adjacent thereto, excepting unenclosed
temporary docks. Violation of this condition shall cause the title to the property
hereby conveyed to revert to the grantor, its successors and assigns.
-2-
Defendants requested a permanent injunction prohibiting plaintiffs from erecting any fences and
otherwise interfering with defendants' use of parcel 2.1
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.
-3-
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.
I. Former Adjudication
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 NW2d 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 NW2d 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
-4-
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.
-5-
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. 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 NW2d 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; Schwartz v Flint, 187
Mich App 191, 194; 466 NW2d 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 same
as in the present action. Res judicata bars relitigation of claims that are based on the same
transaction or events as a prior suit.
Pierson, supra at 380; Huggett v Dep't of Natural
-6-
Resources, 232 Mich App 188, 197; 590 NW2d 747 (1998); 1 Restatement Judgments, 2d, § 24,
p 196. The present case involves facts and events separate from those involved in the 1963
dispute, and the doctrine of res judicata was therefore inapplicable.
The essence of defendants' argument below was that both the 1963 case and the present
case involved the same legal issue, namely, whether neighboring landowners had any legal right
with respect to parcel 2. Consequently, the issue is more appropriately considered under the
related doctrine of collateral estoppel.
Collateral estoppel, or issue preclusion, precludes
relitigation of an issue in a subsequent, different cause of action between the same parties or their
privies when the prior proceeding culminated in a valid final judgment and the issue was actually
and necessarily determined in the prior proceeding. People v Gates, 434 Mich 146, 154; 452
NW2d 627 (1990); McMichael v McMichael, 217 Mich App 723, 727; 552 NW2d 688 (1996).
In the 1963 case, the Rozmarynowskis sought a declaration that their neighbors had no right or
claim to parcel 2, a declaration that the deed did not prohibit the Rozmarynowskis from erecting
a fence, and a permanent injunction prohibiting neighboring landowners from trespassing on
parcel 2. The judgment in the 1963 case denied the Rozmarynowskis any relief. However, our
review of the record revealed no indication that the trial court ever resolved the issue whether
neighboring property owners had any claim or right in the Rozmarynowskis' property. We are
left to speculate regarding the reason that the trial court denied the Rozmarynowskis any relief.
Collateral estoppel applies only when the basis of the prior judgment can be clearly, definitely,
and unequivocally ascertained. Gates, supra at 158. Therefore, collateral estoppel did not apply
to bar plaintiffs from litigating the issues that they raised in their complaint.2
-7-
On the basis of the foregoing, we find that the trial court erred in concluding that the 1962
and 1963 cases barred plaintiffs' action. Consequently, the trial court erred to the extent that its
grant of defendants' motion for summary disposition was based on principles of res judicata.
-8-
II. Enforceability of Deed Restrictions
Plaintiffs next contend that the trial court erred in determining that the conditional
language contained in their deed precluded them from erecting a fence. According to plaintiffs,
defendants' right to enforce any deed restrictions terminated because they failed to comply with
the recording requirements of MCL 554.65; MSA 26.49(15). Resolution of this issue entails a
matter of statutory construction. We review such questions de novo. Oxendine v Secretary of
State, 237 Mich App 346, 348-349; 602 NW2d 847 (1999).
MCL 554.62; MSA 26.49(12) provides as follows:
If the specified contingency does not occur within 30 years after the
terminable interest is created, the right of termination by reason of the specified
contingency shall be unenforceable.
MCL 554.65; MSA 26.49(15) further provides:
A right of termination may be preserved by the recording, within a period
of not less than 25 nor more than 30 years after creation of the terminable interest
or within 1 year after the effective date of this act, whichever is later, of a written
notice that the owner of such right of termination desires to preserve the same,
such notice to be recorded in the register of deeds office of the county where the
real property subject to such right of termination is located. Such notice shall be
verified by oath, shall describe the land involved and the nature of such right of
termination, including the specified contingency, and shall state the name and
address of the owner of such right of termination. The recording of such notice
shall operate to preserve such right of termination from the operation of this act
for a period of 30 years from the date of recording of such notice.
Therefore, a right of termination is lost after thirty years unless a notice is recorded pursuant to
MCL 554.65; MSA 26.49(15), which would preserve the right for an additional thirty years.
The deed language at issue in the present case created a terminable interest as defined in
MCL 554.61(a); MSA 26.49(11)(a):
-9-
"Terminable interest" is a possessory or ownership interest in real property
which is subject to termination by a provision in a conveyance or other instrument
which either creates a right of reversion to a grantor or his heirs, successors or
assigns or creates a right of entry on the occurrence of a specified contingency.
A right of reversion, or possibility of reverter,3 is a future interest that remains in a
grantor and is associated with a fee simple determinable. Ludington & N R Co v Epworth
Assembly, 188 Mich App 25, 35-36; 468 NW2d 884 (1991). A right of entry is an interest
remaining when the grantor creates an estate on condition subsequent. Id. at 36. The deed
language at issue in this case states that a violation of the express condition "shall cause the title
to the property hereby conveyed to revert to the grantor, its successors and assigns." This
language is somewhat confusing in that it is preceded by the phrase "upon the express condition
that," which is traditionally associated with a fee simple subject to condition subsequent, 1
Powell on Real Property, § 13.05[2], p 13-51; 1 Simes & Smith, Law of Future Interests, 2d, §
247, p 280, but a violation of the condition triggers an automatic reversion to the grantor or its
successors and assigns, which is indicative of a fee simple determinable4, Ludington, supra at 3536; Powell, § 13.05[1], p 13-34. For our purposes, we need not determine whether Portage Lake
Land Company intended to create a fee simple subject to condition subsequent or a fee simple
determinable. That the deed provided for an automatic reversion in the event of a violation, and
hence a right of reversion, was enough to invoke the rules contained in MCL 554.62; MSA
26.49(12) and MCL 554.65; MSA 26.49(15).
Defendants assert on appeal that the entry of the judgment in the 1963 case satisfied MCL
554.65; MSA 26.49(15).5 We disagree. The judgment contained no indication regarding Portage
Lake Land Company's desire to preserve the right of termination, nor did it "describe the land
involved and the nature of such right of termination, including the specified contingency, and . . .
-10-
state the name and address of the owner of such right of termination." Defendants also argue that
an affidavit of interest, recorded in 1982, satisfied the requirements of MCL 554.65; MSA
26.49(15). This argument is without merit for two reasons. First, the deed that created the
terminable interest dated back to 1944. MCL 554.62; MSA 26.49(12) provides for a thirty-year
period to exercise the right of termination, which would have ended in 1974. The 1982 affidavit
would have been too late. Second, the 1982 affidavit relates to lot 42, not lot 43. The trial court
correctly determined that the possibility of reverter was unenforceable.6 Ludington, supra at 45.
The court below, however, concluded that the deed restrictions remained enforceable
notwithstanding that the reversion itself was not enforceable. The trial court's conclusion was in
error. Our review of the deed language at issue reveals that it did not involve a restrictive
covenant; rather it created a defeasible or terminable estate. "A covenant is an assurance that
something will be done, while a condition provides that the legal relationship of the grantor and
the grantee will be affected when an event that may or may not happen takes place." 2 Cameron,
Michigan Real Property Law (2d ed), § 22.2, pp 1005-1006. In the present case, the deed did not
require the grantee to do anything or refrain from doing anything. Instead, it provided that the
property would revert back to Portage Lake Land Company in the event that the grantee violated
the express condition. Nor did our review of the lower court record provide any evidence that
parcel 2 was subject to an easement. "In order to create an express easement, there must be
language in the writing manifesting a clear intent to create a servitude." Forge v Smith, 458 Mich
198, 205; 580 NW2d 876 (1998). See also MCL 566.106; MSA 26.906 (statute of frauds
concerning easements). We do not have such a situation here. We note that the lower court
record contained two documents entitled "affidavit of interest," dated 1977 and 1982
-11-
respectively, that purported to create an easement for ingress and egress, as well as recreational
use on the waterfront parcels to lots 41 and 42. Neither document refers to the existence of an
easement on plaintiffs' parcel 2.
If the adjoining landowners had a private understanding
regarding the matter at some point in the past, the record below does not indicate that it was ever
memorialized in any writing that complied with the requirements of MCL 566.106; MSA 26.906
or its predecessors.
On the basis of the foregoing, we conclude that the trial court erred in ruling that parcel 2
was subject to a deed restriction that prohibited the erection of a fence and allowed access for
recreational purposes and for ingress and egress. Consequently, the trial court erred in granting
defendants' motion for summary disposition. Our conclusion makes a review of plaintiffs'
remaining issues unnecessary. If, on remand, defendants submit additional evidence that would
support the application of principles of res judicata or collateral estoppel to bar plaintiffs' action,
the court is directed to provide a detailed analysis in a written opinion.
Reversed and remanded. We do not retain jurisdiction.
/s/ Peter D. O'Connell
/s/ Brian K. Zahra
/s/ Barbara B. MacKenzie
1
The trial court granted plaintiffs' request to add Brookshire Associates, Inc., doing business as
Century 21 Brookshire, as a third-party defendant. Plaintiffs' third-party complaint alleged
malpractice, negligence, misrepresentation, conflict of interest, breach of fiduciary duty, and
violation of the Michigan Consumer Protection Act. These claims were based on Century 21's
sale of lot 43 and parcel 2 to plaintiffs. Third-party defendant filed a motion for summary
disposition, which the trial court denied. Pursuant to the parties' stipulation, the trial court
entered an order dismissing the action against third-party defendant.
2
Plaintiffs assert that the Rozmarynowskis in the 1963 case were not their privies. We disagree.
A privy includes one who, after rendition of a judgment, has purchased an interest in the subject
matter that the prior proceeding affected. Husted v Auto-Owners Ins Co, 213 Mich App 547,
-12-
556; 540 NW2d 743 (1995). Plaintiffs were the privies of the Rozmarynowskis in the 1963 case
because the Rozmarynowskis were plaintiffs' predecessors in title.
3
A possibility of reverter is an interest in the nature of a reversion. 1 Cameron, Michigan Real
Property Law (2d ed), § 7.10, p 250.
4
Regarding the difficulty in distinguishing between a fee simple determinable and a fee simple
subject to condition subsequent, and the confusion contained in this state's case law, see 1
Cameron, Michigan Real Property Law (2d ed), § 7.10, pp 250-251.
5
Irrespective of our resolution of plaintiffs' first issue, we note that principles of res judicata and
collateral estoppel did not bar the trial court's consideration of any issues arising under MCL
554.62; MSA 26.49(12) and MCL 554.65; MSA 26.49(15). Collateral estoppel bars relitigation
of matters that were actually and necessarily decided in the first case. McMichael, supra at 727.
Res judicata bars relitigation of matters that were or could have been resolved in the first case.
Baraga Co, supra at 455. Res judicata does not act as a bar to an action where the law changes
after the completion of the initial litigation and thereby alters the legal principles on which the
court will resolve the subsequent case. Id. at 457; 1 Restatement Judgments, 2d, § 26(c),
comment e, p 239. Our Legislature enacted both sections in 1968. See 1968 PA 13. Because the
statute did not exist in 1963, the trial court obviously could not have considered it.
6
Plaintiffs, in their complaint, asserted that Portage Lake Land Company had been liquidated and
that no person or entity held the possibility of reverter. Defendants, on the other hand, asserted
that they, as owners of the land that Portage Lake Land Company previously owned, were the
company's successors in interest. The trial court did not resolve this issue, and we have no need
to do so here.
-13-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.