Docket No. 59556.
Decided January 10, 1983. Leave to appeal applied for.
Moore Ricard (by Thomas W. Ricard), for plaintiff.
Colista, Green Adams (by Constance J. Allen), for defendants.
Before: BRONSON, P.J., and V.J. BRENNAN and J.H. GILLIS, JJ.
Plaintiff appeals as of right from an order of the trial court granting defendants' motion for accelerated judgment pursuant to GCR 1963, 116.1(5). A detailed statement of facts appears in the related case of Estate of George T Rinaldi, Sr v Rinaldi, 112 Mich. App. 25; 314 N.W.2d 788 (1981).
Briefly, plaintiff and defendant George D. Rinaldi (hereinafter George, Jr.), were divorced in 1978, and plaintiff was awarded their 43-foot yacht. George, Jr., was ordered to continue paying the monthly payments and to maintain the yacht until it could be sold, but he did not do so. When the second priority lien holder instituted a claim and delivery action for immediate possession in March, 1978, Estate of Rinaldi, supra, defendant George T. Rinaldi (hereinafter George, Sr.), obtained an assignment of the lien. He also assumed the underlying indebtedness to City National Bank which held the purchase money security interest.
At a hearing on the claim and delivery suit held in February, 1979, plaintiff attempted to demonstrate that the lien of George, Sr., should not be enforced because George, Sr., and George, Jr., had colluded to reduce or eliminate her equity interest in the yacht. Plaintiff's testimony was confined to both defendants' conduct during the divorce proceedings. George, Sr., died shortly thereafter, and his estate became a party in interest. City National Bank then foreclosed on its lien and the boat was sold for substantially less than its original value.
In January, 1980, the trial court in the claim and delivery action found that the lien of George, Sr., was valid but unenforceable because of the collusive and improper actions of George, Sr., and George, Jr. Plaintiff was awarded the proceeds of the sale over and above the amount paid to the bank. This Court reversed that decision in Estate of Rinaldi, supra, because there was no testimony demonstrating that George, Sr., had failed to pay valid consideration for the lien. It was noted that, although defendants may have conspired to deprive plaintiff of her marital property by failing to make the payments on the boat and by failing to maintain it in a marketable condition, their actions did not render the assignment fraudulent or the lien unenforceable. Estate of Rinaldi, supra, pp 32-33. Thus, plaintiff received nothing from the sale since the proceeds were not sufficient to satisfy the lien of George, Sr.
Plaintiff then filed the present action in January, 1981, for exemplary damages for the loss of the yacht's value and attorney fees incurred in both the divorce suit and the claim and delivery suit. Plaintiff's allegations of wilful, malicious and wrongful conduct by defendants are the same as those made by her in the claim and delivery action. Defendants moved for both summary and accelerated judgment, claiming that plaintiff was barred from asserting a slightly different theory of recovery based on the same set of facts. In granting defendants' motion for accelerated judgment, the court found that plaintiff's claims should have been filed and decided in the prior two actions and that the suit was barred because of the rule against splitting causes of action and collateral estoppel. Plaintiff claims that the trial court's findings were erroneous.
In deciding a motion for accelerated judgment, a court must accept as true all well-pleaded facts of the nonmoving party. Black v Rasile, 113 Mich. App. 601, 603; 318 N.W.2d 475 (1980), lv den 411 Mich. 987 (1981); Kircos v Goodyear Tire Rubber Co, 108 Mich. App. 781, 783; 311 N.W.2d 139 (1981). Generally, exemplary damages are recoverable in all damage actions which are based upon tortious acts involving malice, fraud, insult, or wanton and reckless disregard of plaintiff's rights. Oppenhuizen v Wennersten, 2 Mich. App. 288, 296; 139 N.W.2d 765 (1966). Exemplary damages are compensatory in nature, not punitive, since they are actually an element of actual damages. McLaren v Zeilinger, 103 Mich. App. 22, 25; 302 N.W.2d 583 (1981). Since plaintiff alleges malicious conduct on the part of defendants which directly caused a decrease in the yacht's value, she should be entitled to compensation for those losses if her claim is not barred.
By arguing that plaintiff is prevented from asserting the present cause of action, defendants have blurred the concepts of splitting causes of action, res judicata and collateral estoppel. We will discuss each and its effect on the present case. Splitting a cause of action involves dividing a single or indivisible cause of action into several claims and bringing several actions thereon. Tuttle v Everhot Heater Co, 264 Mich. 60, 64; 249 N.W. 467 (1933). The rule is designed to prohibit vexatious litigation and does not apply to an involuntary party to a prior suit. LaBour v Michigan National Bank, 335 Mich. 298, 302; 55 N.W.2d 838 (1952). This common-law rule is incorporated into GCR 1963, 203.1 but is expressed as compulsory joinder of claims. Michigan National Bank v Martin, 19 Mich. App. 458, 461; 172 N.W.2d 920 (1969). Since plaintiff, here, was a defendant in both the divorce action and the claim and delivery action, the rule is not applicable. Even if it were applicable, defendants' failure to object waives the defense in this suit. Rogers v Colonial Federal Savings Loan Ass'n of Grosse Pointe Woods, 405 Mich. 607, 620; 275 N.W.2d 499 (1979).
The court rules which are applicable here are GCR 1963, 203.2, permissive claims and counterclaims, and GCR 1963, 203.3, permissive cross-claim against co-party. Thus, plaintiff was not required under the rules to file a counterclaim against George, Sr., or cross-claim against George, Jr., for exemplary damages in the claim and delivery action. See Bank of the Commonwealth v Hulette, 82 Mich. App. 442, 444; 266 N.W.2d 841 (1978); Karakas v Dost, 67 Mich. App. 161, 172-173; 240 N.W.2d 743 (1976), lv den 396 Mich. 869 (1976); Cf. Sahn v Brisson, 43 Mich. App. 666, 671; 204 N.W.2d 692 (1972). However, the principles of res judicata and collateral estoppel may, nonetheless, be applied if the present cause of action and claims are not sufficiently dissimilar from those involved in the prior actions.
"According to the general rules discussed in Howell v Vito's Trucking Excavating Co, 386 Mich. 37, 41-42; 191 N.W.2d 313 (1971), and Jones v Chambers, 353 Mich. 674, 680-681; 91 N.W.2d 889 (1958), the doctrine of res judicata is applicable to a second suit involving the same cause of action as that raised in the first suit, and will bar the relitigation of issues which actually were or might have been presented before the court in the first action. As noted in Topps-Toeller, Inc v Lansing, 47 Mich. App. 720, 726-727; 209 N.W.2d 843 (1973), lv den 390 Mich. 788 (1973), res judicata bars a subsequent suit between the same parties or their privies when the same cause of action is raised in a subsequent suit, and when the facts or evidence essential to the maintenance of both actions are identical. On the other hand, collateral estoppel will bar the relitigation of issues previously decided in the first action when the parties to the second action are the same; where the second suit is a different cause of action, the bar is conclusive only as to issues actually litigated in the first suit."
See also Sahn, supra, p 669.
The present cause of action is to recover the value of the yacht awarded to plaintiff which was allegedly diminished by defendants' refusal to make the monthly payments and maintain the yacht in a marketable condition. The claim and delivery action involved the enforcement of the liens on the yacht. The divorce suit decided the ownership and division of the property of plaintiff and George, Jr. Since all of the suits involved different causes of actions and required different elements of proof, the doctrine of res judicata does not apply.
"In order for collateral estoppel to apply, the same ultimate issues underlying the first action must be involved in the second action. The parties must also have had a full opportunity to litigate the ultimate issues in the former action. Fifield v Edwards, 39 Mich. 264 (1878). Finally, collateral estoppel only applies where there is mutuality of estoppel. Mutuality of estoppel is present if both litigants in the second suit are bound by the judgment rendered in the first suit. Braxton v Litchalk, supra, 720; Howell v Vito's Trucking Excavating Co, 386 Mich. 37, 42-43; 191 N.W.2d 313 (1971)."
Defendants contend that since plaintiff's present claim involves the same issues and subject matter raised in plaintiff's defense to the enforceability of the lien of George, Sr., she is collaterally estopped from maintaining the counterclaim. Defendants and the trial court cite as their primary authority the case of Sahn v Brisson, supra, pp 670-672. Plaintiff maintains that Karakas v Dost, supra, `pp 171-173, is the controlling precedent. However, we find that neither case is directly applicable since the plaintiffs in those cases did not assert a defense in their prior suits.
"We conclude that when a litigant's right to affirmative relief is independent of a cause of action asserted against him and it is relied upon only as a defense to that action, he is barred from seeking affirmative relief thereon in a subsequent proceeding. But if he does not rely upon his claim as a defense to the first action, or as a counterclaim thereto, he is not barred from subsequently maintaining his action for affirmative relief in an independent suit.
"In other words, plaintiff can plead defendant's breach of warranty as a defense in the first suit, he can plead it as a defense and as a counterclaim in the first suit, or he can sue thereon subsequently for affirmative relief, but he cannot combine the alternatives. Once he raises the issue, it must be fully and finally determined." (Citations omitted.)
See also Corkins v Ritter, 326 Mich. 563, 568-569; 40 N.W.2d 726 (1950); Leslie v Mollica, 236 Mich. 610, 615-617; 211 N.W. 267 (1926); Schuhardt v Jensen, 11 Mich. App. 19, 21; 160 N.W.2d 590 (1968).
Restatement Judgments, § 58, comment c, pp 232-233, explains further:
"c. Defense and counterclaim — Judgment for plaintiff — Collateral estoppel. Where the same facts constitute a ground of defense to the plaintiff's claim and also a ground for a counterclaim, and the defendant alleges these facts as a defense but not as a counterclaim, and after litigation of the defense judgment is given for the plaintiff, the defendant is precluded from maintaining an action against the plaintiff based on these facts. This is in accordance with the rule as to collateral estoppel stated in § 68, that where a question of fact essential to a judgment is actually litigated and determined by the judgment, the determination is conclusive between the parties in a subsequent action on a different cause of action." (Emphasis added.)
See also 83 ALR 642, 648.
Restatement Judgments, comment o to § 68, p 309, provides:
"o. Facts not essential to the judgment. The rules stated in this Section are applicable only where the facts determined are essential to the judgment. Where the jury or the court makes findings of fact but the judgment is not dependent upon these findings, they are not conclusive between the parties in a subsequent action based upon a different cause of action." (Emphasis added.)
See also Senior Accountants, Analysts Appraisers Ass'n v Detroit, 399 Mich. 449, 458; 249 N.W.2d 121 (1976); Detroit Automobile Inter-Ins Exchange v Higginbotham, 95 Mich. App. 213, 219; 290 N.W.2d 414 (1980), lv den 409 Mich. 919; 133 ALR 840 (1980).
It is clear that the question of defendants' misconduct was actually litigated as an affirmative defense in the claim and delivery action but only as it related to the enforceability of the lien of George, Sr. The court found that defendants did collude to deprive plaintiff of her property and ruled that this was sufficient to render the lien unenforceable. This Court, however, reversed that decision because there was no evidence of collusion with respect to the assignment of the security interest and, therefore, the lien was enforceable. However, it was noted that defendants may have conspired against plaintiff by failing to pay for or maintain the boat, thereby depriving plaintiff of her marital property.
Thus, the only issue of fact that was essential to the prior suits that could be related to the present case was the lack of collusion between defendants in obtaining the lien. The trial court's finding of general wrongdoing was not relevant to the enforceability of the lien. Because the ultimate issue in the present case is whether defendants did, in fact, conspire to deprive plaintiff of her marital property and thereby diminished plaintiff's interest in the yacht, we find that this issue is not the same as the ultimate issues in either of the prior actions and that the present action is not barred by collateral estoppel. We reverse the trial court's order granting accelerated judgment and remand for a trial.
Plaintiff's second claim is that the trial court erred in dismissing her claim against defendants for all expenses including attorney fees reasonably incurred in defending the two prior actions.
We first find that plaintiff is not entitled to costs and attorney fees incurred in the divorce action since she was already awarded approximately $3,250 for those expenses in the divorce judgment. However, we further find that plaintiff may be able to recover all of her reasonable costs and attorney fees incurred in the claim and delivery action from George, Jr.
Generally, awards of costs or attorney fees are not allowed unless expressly authorized by statute, court rule, or a recognized exception. Exceptions must be narrowly construed. Normally, expenses incurred in the present litigation are not recompensable no matter how wrongful the suit or groundless the defense. However, where the present defendant has by his wrongful conduct proximately caused the present plaintiff to defend a prior legal proceeding against a third party, plaintiff may recover all expenses, including attorney fees, reasonably incurred in the previous litigation. Warren v McLouth Steel Corp, 111 Mich. App. 496, 507-508; 314 N.W.2d 666 (1981); Scott v Hurd-Corrigan Moving Storage Co, Inc, 103 Mich. App. 322, 347; 302 N.W.2d 867 (1981), lv den 412 Mich. 881 (1981); State Farm Mutual Automobile Ins Co v Allen, 50 Mich. App. 71, 78-79; 212 N.W.2d 821 (1973).
The exception appears to be applicable to the present case because George, Jr., failed to make payments on the yacht which precipitated the prior claim and delivery action. On the other hand, George, Sr., would not be liable for any of plaintiff's expenses incurred in defending her interest against his valid security interest. However, he may be liable for any expenses arising out of his failure to pay City National Bank, i.e., any separate expenses which plaintiff incurred in defending against the bank's purchase money security interest. Those matters are to be determined in the trial court.
Reversed and remanded.