Boland v. C D Barnes Associates, Inc.

337 N.W.2d 581, 126 Mich. App. 569

• Court: Michigan Court of Appeals
• Decided: June 21, 1983
• Docket: Docket No. 61474
• Status: Published

Opinions

R. B. Burns, P.J.

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).”

In the instant case, plaintiffs complaint alleged that defendants improperly executed mechanics’ liens and wrongfully initiated a suit to foreclose upon those liens. Further, the complaint alleged that bad faith by defendants in filing the liens caused plaintiff to suffer financial losses. The original action filed by the present defendants was to foreclose upon mechanics’ liens against an office complex which defendants were constructing for plaintiff. The allegations contained in plaintiffs present complaint, if proven, would have constituted a defense to the original foreclosure action. They are issues which could have, and should have, been raised in the original proceedings. Therefore, they are barred under the doctrine of res judicata. See Gose v Monroe Auto Equipment Co, 409 Mich 147; 294 NW2d 165 (1980); Eyde v Meridian Charter Twp, 118 Mich App 43; 324 NW2d 775 (1982).

Affirmed.

M. B. Breighner, J., concurred.