Plaintiffs 1 Peterson Novelties, Inc. (Peterson), and Harold Barman appeal as of right *4 from an order granting defendants 2 city of Berkley and Raymond Anger’s motion for summary disposition and dismissing plaintiffs’ claims. We affirm.
i
Sometime in 1995, Peterson, a seasonal seller of fireworks, applied for a permit to sell fireworks in the city of Berkley, but was denied. On June 14, 1995, Peterson filed suit in the Oakland Circuit Court, requesting that the court order the city to grant the permit to sell fireworks. 3 The circuit court issued a temporary restraining order for the 1995 season, ordering the city to grant a permit to Peterson. On April 24, 1996, while the 1995 case was still pending, Peterson filed a motion for a writ of mandamus and injunctive relief to compel the city to process a permit application for the 1996 season. On May 9, 1996, the circuit court issued a temporary restraining order compelling the city to issue Peterson a seasonal sales permit for the sale of fireworks not prohibited under Michigan law.
On June 24, 1996, Detective Anger and the Berkley Public Safety Department, having received information that plaintiffs were potentially selling illegal fireworks, inspected the tent where plaintiffs were conducting business. Anger purchased $91.16 worth of fireworks he believed to be illegal. An agreement was reached with Barman, whereby fireworks defendants believed to be illegal would be stored in an empty trailer at the back of the property rather than hauled *5 away. Anger also arrested two of plaintiffs’ employees for the sale of illegal fireworks.
On June 25, 1996, a state district judge issued a warrant for the search and seizure of certain fireworks in the storage bin where plaintiffs’ potentially illegal fireworks were stored. Pursuant to the warrant, Anger and city officials seized fireworks they determined were offered for sale in violation of state law, and at some point obtained criminal arrest warrants for plaintiffs’ employees. Also on June 25, 1996, Peterson filed an emergency motion for an order to show cause why the city should not be held in contempt of the circuit court’s May 9, 1996, order and for an order for the return of the seized property. In its emergency motion, Peterson argued that it had been operating legally and within the terms of the circuit court’s previous orders and that the city had intentionally acted contrary to the circuit court’s order, seizing fireworks and arresting employees without a warrant. Peterson contended that the seizures were illegal. Peterson asked the circuit court to prevent the city from applying for a warrant based “on the false claim that Plaintiffs are engaged in illegal activity without attaching a copy” of the circuit court’s May 9, 1996, order. The judge who issued the May 9, 1996, order was unavailable, so the parties appeared before another judge of the Oakland Circuit Court, who directed that the parties appear before the original judge on July 1, 1996. However, on June 26, 1996, presumably, in reaction to the intervening seizure and arrest, the same judge who directed that the parties appear on July 1, 1996, issued the show cause order and ordered the return of fireworks that were not needed for evidence and were not considered illegal.
*6 The original circuit judge held the show cause hearing on July 1, 1996, and issued an order on July 3, 1996, reaffirming the May 9, 1996, order. The circuit court held that Peterson could continue to operate its business selling those fireworks not specifically enumerated as illegal by the Michigan fireworks statute, MCL 750.243a. 4 The order further indicated that “mines and shells” are not “of like construction” as “roman candles,” and that the phrase “of like construction” is unconstitutionally vague. The circuit court order does reveal that the parties agreed that “Saturn missiles” would not be sold. The circuit court did not issue an order of contempt, and did not award damages for contempt.
On July 26, 1996, Peterson filed a motion for declaratory relief, seeking a ruling that MCL 750.243a, which prohibits the sale of certain fireworks, was unconstitutionally vague. On September 6, 1996, the circuit court granted the request for declaratory *7 relief. 5 On May 13, 1997, in accordance with the grant of declaratory relief, the state district court dismissed the criminal charges pending against plaintiff Barman and two Peterson employees. On July 31, 1998, the prosecutor’s appeal of this dismissal was finally dismissed pursuant to a “dispositive stipulation” by the parties.
On June 29, 1999, plaintiffs brought a federal action against the city and Anger pursuant to 42 USC 1983, alleging a deprivation of property without due process of law under the Fifth Amendment and the Fourteenth Amendment, unreasonable seizure in violation of the Fourth Amendment, malicious prosecution in violation of the Fourth Amendment and the Fourteenth Amendment, First Amendment retaliation, false arrest (a state action), false imprisonment (a state action), and malicious prosecution (a state action) for constitutional violations arising from the actions that formed the basis of the 1995 circuit court suit.
On July 15, 2000, plaintiffs filed a motion with the Oakland Circuit Court in Case No. 95-498817-CZ for contempt, to reinstate the case, and to amend the complaint. The proposed amended complaint included claims nearly identical to those alleged in the federal suit.
*8
On August 4, 2000, the federal district court granted defendants’ motion for judgment on the pleadings, holding that plaintiffs’ claims were “inextricably intertwined” with issues earlier presented to the state court, and thus, were precluded by the
Rooker-Feldman
doctrine.
6
Peterson Novelties, Inc v City of Berkley,
On October 19, 2000, the Oakland Circuit Court in Case No. 95-498817-CZ denied plaintiffs’ motion for contempt, to show cause, to reinstate the case, and to amend the complaint. The circuit court reasoned that the issues were properly before the Sixth Circuit, and that there was no compelling reason to reopen the matter when the issues could have been raised in a timely manner. The circuit court further noted that the delay caused undue prejudice and, thus, the motion should be denied. On November 1, 2000, plaintiffs’ filed a motion for reconsideration of this order.
On November 14, 2000, plaintiffs filed the present action in Oakland Circuit Court pursuant to 42 USC 1983, 1988, and the federal and state constitutions. 7 Specifically, plaintiffs brought the following claims: Count I alleged federal claims of retaliation, unreasonable search and seizure, deprivation of property with *9 out due process, and malicious prosecution; Count II alleged claims of false arrest and false imprisonment; and Count in alleged malicious prosecution.
On November 20, 2000, the Oakland Circuit Court denied plaintiffs’ motion for reconsideration in Case No. 95-498817-CZ.
On November 27, 2001, the circuit court, in the present case, issued an opinion and order granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10). Specifically, the circuit court found that plaintiffs’ issues were barred by res judicata, and that even if the claims for false arrest, false imprisonment, and malicious prosecution were not, plaintiffs failed to state a claim. On February 6, 2002, an order was entered adopting the reasons stated in the November 27, 2001, opinion and order, and granting defendants’ motion for summary disposition and dismissing plaintiffs’ claims.
On October 1, 2002, the Sixth Circuit affirmed the decision of the federal district court granting defendants’ motion for judgment on the pleadings.
Peterson Novelties, Inc v City of Berkley,
n
Plaintiffs first argue on appeal that their claims are not precluded. We review rulings regarding motions for summary disposition de novo.
Van v Zahorik,
Plaintiffs argue that res judicata does not apply, and that the circuit court erred in granting summary disposition on this basis. Res judicata requires that (1) the prior action was decided on the merits, (2) the decree in the prior action was a final decision, (3) the matter contested in the second case was or could have been resolved in the first, and (4) both actions involved the same parties or their privies.
Baraga Co v State Tax Comm,
In 1996, the Oakland Circuit Court decided the issues brought before it in the emergency motion on the merits, and the proceedings resulted in a final order. Following the filing of the emergency motion for show cause and for contempt, the circuit court entered an order on July 3, 1996, reaffirming its temporary restraining order entered on May 9, 1996. On September 6, 1996, the circuit court granted permanent declaratory relief to Peterson. Peterson’s emergency motion in June of 1996 made allegations similar *12 to those in the present complaint, and the actions arose out of the same incident. See Dart, supra at 586. In the emergency motion Peterson alleged that the city illegally seized fireworks contrary to a court order and conducted an improper search without a warrant. The current complaint, clearly, raises issues arising out of the same event. The same facts and evidence would sustain both the 1996 emergency motion and plaintiffs’ current claims. Huggett, supra at 197-198; In re Koernke Estate, supra at 399. The 1996 emergency motion clearly resulted in a final decision on the merits. Peterson’s claims of retaliation, deprivation of property, false arrest or false imprisonment, unreasonable search and seizure, and malicious prosecution arose out of the same transaction forming the basis of Peterson’s emergency motion. Peterson’s emergency motion in state court sought a contempt finding and damages against the city for the same acts that plaintiffs now allege violated their constitutional rights. The only remaining questions are whether these matters could have been decided in the initial case, and if the same parties or privies were involved.
Peterson and the city were parties to the prior circuit court actions. The present claims between these parties, which could have been brought earlier had plaintiffs exercised reasonable diligence, are clearly barred by res judicata. However, in the present case plaintiff Barman and defendant Anger were added as parties. The parties to the second action need be only substantially identical to the parties in the first action, in that the rule applies to both parties and their privies.
In re Humphrey Estate,
Plaintiffs argue that Barman was not a party to the original action and, thus, plaintiffs’ claims are not precluded. Although we recognize that Barman was not a plaintiff in the original circuit court suit against the city, res judicata bars those of his claims that could have been brought with reasonable diligence, because he is the owner of Peterson, the named plaintiff in the circuit court suit. There has been no assertion by Barman that he was not in control of Peterson at any time and, thus, Barman’s claims are also barred by res judicata. 9 Viele, supra at 580.
*14
Plaintiffs contend that defendant Anger was not a party to the original action and, thus, plaintiffs’ claims are not be precluded. However, plaintiffs cite no authority for this contention. “A party may not leave it to this Court to search for authority to sustain or reject its position.”
Magee v Magee,
The remaining question with regard to whether res judicata bars plaintiffs’ claims is whether the claims could have been decided in the first matter. Plaintiffs argue that res judicata does not apply because under
*15
Heck v Humphrey,
It is unnecessary to address whether res judicata bars the malicious prosecution, false arrest or false imprisonment, and unreasonable search and seizure claims, because summary disposition was proper under MCR 2.116(C)(10),
14
regardless of whether
*17
these claims are barred by res judicata. The circuit court did state MCR 2.116(C)(10) as a basis for its grant of summary disposition, but even if it did not decide the case on this basis, we will not reverse a trial court’s order if it reaches the right result for the wrong reason.
Etefia v Credit Technologies, Inc,
The trial court did not err in granting defendants’ motion for summary disposition of plaintiffs’ false imprisonment or false arrest claim, because summary disposition was proper under MCR 2.116(C)(10).
15
False imprisonment has been defined by this Court as an unlawful restraint on a person’s liberty or freedom of movement.
Clarke v Kmart Corp,
197 Mich
*18
App 541, 546;
“[I]t must be a false arrest, made without legal authority. One who instigates or participates in a lawful arrest, as for example an arrest made under a properly issued warrant by an officer charged with the duty of enforcing it, may become liable for malicious prosecution, as stated in Chapter 29, or for abuse of process, as stated in Chapter 31, but he is not liable for false imprisonment, since no false imprisonment has occurred.” [Lewis, supra at 218 n 2, quoting 1 Restatement Torts, 2d, § 45A, p 69, Comment b (emphasis added by Lewis, supra).]
In the present case, the circuit court found that “ample” probable cause existed for the arrests. Where the facts are undisputed, the determination whether probable cause exists is a question of law for the court to decide.
Matthews v Blue Cross & Blue Shield of Michigan,
There was probable cause at the time of the arrests and when the fireworks were placed in storage. Anger and other city officials were acting on the basis of a statute that the circuit court later found unconstitutionally vague. The record reveals that the items termed “mines and shells” were not considered of “of like construction” to “roman candles” and that the “of
*20
like construction” language was unconstitutionally vague. The statute was later upheld by this Court, which concluded that “mines and shells” were the type of fireworks that were prohibited without a permit. See
Stajos, swpra
at 235-238. The circuit court order did state that there was an agreement by Peterson not to sell “Satum Missiles,” a type of firework that was purchased by Anger.
16
Furthermore, even if the statute was unconstitutional, which it is not, defendant still had probable cause at the time of the arrests. In
Pierson v Ray,
In the state malicious prosecution action, plaintiffs had the difficult burden of proving four elements: “(1) that the defendant has initiated a criminal prosecution against him, (2) that the criminal proceedings terminated in his favor, (3) that the private person who instituted or maintained the prosecution lacked probable cause for his actions, and (4) that the action was undertaken with malice or a purpose in instituting the criminal claim other than bringing the offender to justice.”
Matthews, supra
at 378. “Generally, courts have held that where termination results from a compromise or settlement or is brought about by an action of the accused as a courtesy or favor or by some act of the accused that prevents the litigation, there is no favorable termination that will serve as a basis for a cause of action for malicious prosecution.”
Cox v Williams,
With regard to the federal, Fourth Amendment malicious prosecution claim, the Sixth Circuit recognizes a separate constitutionally cognizable claim of malicious prosecution under the Fourth Amendment.
Thacker v Columbus,
*23 Plaintiffs appear to argue that the purchase of the fireworks, the requirement that the fireworks be placed in a storage bin, and the arrest of plaintiffs’ employees amounted to unreasonable searches and seizures under the Fourth Amendment. With regard to unreasonable searches and seizures, the Fourth Amendment of the United States Constitution guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” US Const, Am IV.
In
Pierson, supra
at 555, the United States Supreme Court held that police officers would not be liable in an action brought under § 1983 “if they acted in good faith and with probable cause . . . .” Consistent with this guarantee, an officer may make an arrest without a warrant so long as there is probable cause for the arrest. See
Michigan v DeFillippo,
Plaintiffs also argue in their reply brief, with regard to the malicious prosecution and false arrest or false imprisonment claims, that the lower court should have allowed discovery regarding whether a material misrepresentation was made by defendants to the magistrate who issued the warrant. However, “[failure to include all exculpatory facts is not adequate to sustain a suit for malicious prosecution.”
Payton v Detroit,
m
Defendants’ motion for summary disposition was properly granted with regard to all of plaintiffs’ claims on the basis of either MCR 2.116(C)(7) or (10). 18
Affirmed.
Notes
Harold Barman is the owner of Peterson Novelties, Inc.
Detective Raymond Anger is a city of Berkley police officer.
Oakland Circuit Court, Case No. 95-498817-CZ.
The relevant portion of MCL 750.243a, provides as follows:
(2) Except as provided in subsections (3) and (4) of this section and sections 243b, 243c, and 243d, a person, firm, copartnership, or corporation shall not offer for sale, expose for sale, sell at retail, keep with intent to sell at retail, possess, give, furnish, transport, use, explode, or cause to explode any of the following:
:|: * *
(c) Firecrackers, torpedoes, skyrockets, roman candles, daygo bombs, bottle rocket, whistling chaser, rockets on sticks, or other fireworks of like construction.
(d) Fireworks containing an explosive or inflammable compound or a tablet or other device commonly used and sold as fireworks containing nitrates, fulminates, chlorates, oxalates, sulphides of lead, barium, antimony, arsenic, mercury, nitroglycerine, phosphorus, or a compound containing these or other modern explosives.
Subsequently, this Court effectively overturned this finding, and found that the statutory language was not unconstitutionally vague. See
Stajos v City of Lansing,
In accordance with
Rooker v Fidelity Trust Co,
The complaint states that at the time of filing Peterson Novelties, Inc v City of Berkley, No. 95-498817-CZ, “arising out of the [sic] transactions or occurrences” was pending in Oakland Circuit Court.
It appears that the circuit court granted summary disposition pursuant to MCR 2.116(C)(7) based on res judicata, but concluded, in the alternative, that summary disposition was also proper under MCR 2.116(C)(8) and (10). Accordingly, we will review the claims under MCR 2.116(C)(7), and if summary disposition is not proper we will determine whether it would be proper under MCR 2.116(C)(8) or (10). Summary disposition may be granted pursuant to MCR 2.116(C)(7) when a “claim is barred because of.. . prior judgment... or other disposition of the claim before commencement of the action.” In reviewing a motion filed under this sub-rule, the Court accepts plaintiffs’ well-pleaded factual allegations as true and construes all the documentary evidence in plaintiffs’ favor.
Brennan v Edward D Jones & Co,
Farther, even if Barman was not the owner at the relevant time, a privy includes one who, after rendition of the judgment, has acquired an interest in the subject matter affected by the judgment through one of the parties, as by inheritance, succession, or purchase. Wildfong, supra at 115.
We note that Anger would also, likely, be considered a privy since he was an agent of the city. See Viele, supra at 580. Furthermore, in later motions before the Oakland Circuit Court in Case No. 95-498817-CZ, though Anger was not named as a defendant, he was referred to as “Defendant City Detective Ray Anger.”
We note that plaintiffs’ false arrest or false imprisonment claim and the state malicious prosecution claims are not § 1983 claims. However, based on the resolution of this case it is unnecessary to distinguish the Michigan claims from the § 1983 claims or determine the applicability of Heck, supra, to state claims of malicious prosecution and false arrest or false imprisonment.
The Sixth Circuit has determined that a § 1983 action that would imply the invalidity of a future conviction does not accrue until the charges against the plaintiff are dismissed.
Shamaeizadeh v Cunigan,
We note that these issues are also barred by collateral estoppel because the federal court found that they should have been brought in the emergency motion. Peterson Novelties, Inc, supra at 394-395; Pierson Sand & Gravel, Inc, supra at 381.
A motion for summary disposition under MCR 2.116(C)(10) tests whether there is factual support for a claim.
Spiek v Dep’t of Transportation,
In
Lewis v Farmer Jack Div, Inc,
False arrest and false imprisonment are often used interchangeably, Prosser, Torts (4th ed), § 11, p 42, although there is technically a difference between the two actions.
“False arrest and false imprisonment as causes of action are said to be distinguishable only in terminology. The difference between them lies in the manner in which they arise. It is not necessary, to commit false imprisonment, either to intend to make an arrest or actually to make an arrest. However, a person who is falsely arrested is at the same time falsely imprisoned, and an unlawful arrest may give rise to a cause of action for either false arrest or false imprisonment. Thus, it has been stated that false arrest and false imprisonment are not separate torts, and that a false arrest is one way to commit false imprisonment; since an arrest involves a restraint, it always involves imprisonment.”
[Id. at 231 n 4 (Williams, J., dissenting), quoting 32 Am Jur 2d, False Imprisonment, § 2, pp 59-60, and citing 35 CJS, False Imprisonment, § 2, p 624.]
We note that this Court recognized in an unpublished opinion that “satum missiles . . . arguably fall within the ‘and like construction’ language of the statute.” People v Linn, unpublished opinion per curiam of the Court of Appeals, issued November 14, 1997 (Docket No. 200197), quoting MCL 750.243a(2)(C). This Court also indicated that an undercover officer who purchased “satum missiles” and other similar fireworks “had probable cause to believe that defendants were selling these fireworks in violation of the statute.” Id. We use the unpublished opinion as a guide because of the limited case law on the subject matter; however, unpublished opinions are not precedentially binding under the rale of stare decisis. MCR 7.215(C)(1).
Further, despite the fact that the warrant may not have been issued without the information provided by defendants, the prosecution was initiated on the basis of an independent exercise of prosecutorial discretion. Matthews, supra at 386. The prosecutor’s exercise of his independent discretion in initiating and maintaining a prosecution is generally a complete defense to an action for malicious prosecution. Id. at 384. Thus, plaintiffs have not established a claim for malicious prosecution because they have not (and cannot) prove that defendants initiated, instituted, or maintained the prosecution against them.
We note that given our resolution, it is unnecessary to address the statute of limitations, governmental immunity, and collateral estoppel issues.