126 Mich. App. 569 | Mich. Ct. App. | 1983
Lead Opinion
Plaintiff sought damages against defendants for allegedly improper filing and perfecting of mechanics’ liens. The trial court granted defendants’ motion for an accelerated judgment based upon a consent judgment taken in a prior action between the parties arising out of the same transaction which barred the present suit. GCR 1963, 116.1(5).
Essentially, defendants claimed in their motion for accelerated judgment that plaintiff’s 1980 complaint was predicated upon facts that were either litigated or could have been litigated in a 1976 foreclosure action which was dismissed by the parties’ stipulation. We agree.
This Court in Brownridge v Michigan Mutual Ins Co, 115 Mich App 745, 748; 321 NW2d 798 (1982), stated:
"Since both actions arise out of the same discharge from employment, both actions arise 'out of the same transaction’, both actions involved 'point[s] which properly belonged to the subject of litigation’, and both involved 'the same matter in issue’. See Arnold v Masonic Country Club, 268 Mich 430; 256 NW 472 (1934). A voluntary dismissal with prejudice is a final judgment on the merits for res judicata purposes, Astron Industrial Ass’n, Inc v Chrysler Motors Corp, 405 F2d 958 (CA 5, 1968). That plaintiff could have brought her state claims in the federal action may be shown by reference to United Mine Workers of America v Gibbs, 383 US 715, 725; 86 S Ct 1130; 16 L Ed 2d 218 (1966).”
Affirmed.
Dissenting Opinion
(dissenting). I respectfully dissent and file my dissenting opinion which is in substantially the same form as when submitted as a proposed majority opinion.
On December 31, 1980, plaintiff-appellant, J. David Boland, started a suit against defendants, C. D. Barnes Associates, Inc., and Construction Development, Inc., seeking damages for the allegedly improper filing and perfection of mechanics’ liens. On November 5, 1981, the trial court granted defendants’ motion for an accelerated judgment on the ground that a consent judgment in a prior action between the parties arising out of the same transaction barred the within suit. Plaintiff appealed as of right.
Statements of account and lien on the property were asserted and recorded by defendants on December 31, 1974, and January 10, 1975.
In his complaint in the within matter, plaintiff alleged that (1) the terms and conditions of the financing agreement between the finance company and him were violated by the filing of a mechanics’ lien by any contractor, a fact that defendants knew or should have known, (2) when defendants filed their amended mechanics’ lien, sufficient funds were held by the financing company to satisfy plaintiff’s obligations to them, and (3) as a
In their motion for accelerated judgment, defendants contended that the issues raised by plaintiff were either litigated or could have been litigated in the 1976 foreclosure action and that the voluntary dismissal with prejudice acted as a bar to any subsequent action based on the same set of facts and issues between the parties. Essentially, defendants claimed that plaintiffs 1980 complaint was predicated upon facts which should have been raised as defenses to the 1976 foreclosure action.
On appeal, plaintiff maintains that the trial court erred in granting defendants’ motion for accelerated judgment because the matters raised in his complaint were not the same as those adjudicated in the foreclosure action. He asserts that the original action was one in which defendants sought to enforce their mechanics’ lien, while the matter at bar involves a suit for damages caused by the improper filing of a mechanics’ lien on the property. Furthermore, plaintiff claims that under GCR 1963, 203.2, he was not obligated in the foreclosure action to assert any counterclaims or affirmative defenses that he may have had against defendants._
The crux of this appeal is whether a defendant, in an action which is dismissed with prejudice pursuant to a stipulation of the parties, may file a subsequent action against the plaintiff in the original suit where the claims in the subsequent case relate to issues and facts of the first case and could have been asserted as affirmative defenses or a counterclaim in the original suit. Thus, this case presents another troublesome issue involving possible application of res judicata and/or GCR 1963, 203.
GCR 1963, 203.1 is a compulsory joinder rule requiring a complaint to state as a claim every claim arising out of the transaction that is the subject matter of the action. However, GCR 1963, 203.2 is a permissive joinder rule permitting a pleader to join as many independent or alternative claims as he may have against an opposing party.
The federal rules of civil procedure differ from Michigan’s in that they provide that any claim that a defendant has against a plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff’s claim must be set forth in the defendant’s responsive pleading or be forever barred.
In Rogers v Colonial Federal Savings & Loan
In Bank of the Commonwealth v Hulette,
"Michigan provides for permissive joinder of counterclaims. GCR 1963, 203.2.”
Of similar import is our statement in Karakas v Dost:
"Because a counterclaim under DCR 203.2 is permissive rather than compulsory, and plaintiffs did not raise their equitable mortgage claim in the district court proceedings by either defense or counterclaim, plaintiffs are not barred from now litigating their claim.” (Footnote omitted.)
Consistent with these decisions, I would hold that, under GCR 1963, 203.2, plaintiff had in the first suit an option of raising his claim for dam
Having concluded that, under the permissive joinder rule, GCR 1963, 203.2, plaintiff was permitted to assert his claims in a separate, independent action, the question remains whether, in the matter at bar, the doctrine of res judicata is available to defendants as a defense.
In Ward v DAIIE
"The doctrine of res judicata provides that where two parties have fully litigated a particular claim and a final judgment has resulted, that claim may not be relitigated by either party. In Tucker v Rohrback, the Supreme Court delineated three prerequisites for a prior judgment to constitute a bar in a subsequent action: (1) the former action must have been decided on the merits; (2) the same matter contested in the second action must have been decided in the first; and (3) the two actions must be between the same parties or privies.” (Footnotes omitted.)
In deciding whether these three prerequisites are met, I note that the first case was not tried on the merits. However, the parties agreed to dismiss the case with prejudice. In Brownridge v Michigan Mutual Ins Co,
"A voluntary dismissal with prejudice is a final judgment on the merits for res judicata purposes.”
Consistent with Brownridge> by virtue of the parties’ stipulation, the first case is deemed to have
Second, the issues raised in the second case are issues which could have been raised in a counterclaim in the first case. Third, the same parties appear in both cases, although plaintiff in the second case was a defendant in the first case.
Thus, the essential prerequisites for application of res judicata are present. But, while these issues could have been raised in a counterclaim in the first case, plaintiff in the within case was not required to raise them in such a counterclaim. As indicated, GCR 1963, 203.2 is a permissive joinder rule. Plaintiff had an option of asserting his claim in a separate action, and that is what he has done.
Under these circumstances, I do not believe that in the instant case res judicata was intended to be available to defendants. To so hold would largely nullify the effect of GCR 1963, 203.2. Since the first case was not tried on the merits, neither is the within case one for application of the doctrine of collateral estoppel, which was the basis for decision in Sahn v Brisson.
The first case was dismissed with prejudice by stipulation of the parties. The actual stipulation, which was signed by the attorneys, provided:
"Now comes the above named parties by their respective attorneys and hereby stipulate to the dismissal of the above matter with prejudice and without cost to any party for the reason that the dispute has been amicably settled between the parties.”
The record before us does not indicate that plaintiff executed a release to defendants of any
In summary, I would reverse the trial court’s order awarding accelerated judgment to defendants and remand this case to the trial court.
The construction contract was entered into between plaintiff and defendant Construction Development, Inc., with the actual construction to be provided through defendant C. D. Barnes Associates, Inc.
MCL 570.5; MSA 26.285, under which this lien was presumably asserted, was repealed and replaced by MCL 570.1108; MSA 26.316(108), effective January 1, 1982.
To this end, plaintiff alleged in his complaint that:
"16. As a direct and proximate result of defendants having filed their respective mechanics’ liens and having failed and refused to release same, default occurred in the aforementioned financing with Heartwell Mortgage Corporation, preventing disbursal of the funds to defendants and subjecting plaintiff to additional interest charges, fees, costs, foreclosures, loss of rental income, reduced fair market value on the premises, lost profits on resale of the property, loss or reduced value of stock ownership, and other consequential damages.”
Bank of the Commonwealth v Hulette, 82 Mich App 442; 266 NW2d 841 (1978).
F R Civ P 13(a); Dragor Shipping Corp v Union Tank Car Co, 378 F2d 241 (CA 9, 1967); Wright, Law of Federal Courts (2d ed), § 79, pp 344-346.
405 Mich 607; 275 NW2d 499 (1979).
Hulette, supra, p 444.
67 Mich App 161, 173; 240 NW2d 743 (1976), lv den 396 Mich 869 (1976).
115 Mich App 30, 37; 320 NW2d 280 (1982). Also see Annabel v C J Link Lumber Co, 115 Mich App 116, 123; 320 NW2d 64 (1982).
115 Mich App 745, 748; 321 NW2d 798 (1982). Also see Anno: Consent judgment as res judicata, 2 ALR2d 512, 520 (1948).
43 Mich App 666, 671; 204 NW2d 692 (1972).