JUANNELIOUS MURRAY V ALAN GLUCK
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STATE OF MICHIGAN
COURT OF APPEALS
JUANNELIOUS MURRAY AND THEOLA
MURRAY,
UNPUBLISHED
December 13, 2005
Plaintiffs-Appellees,
v
ALAN GLUCK, DEBRA GLUCK AND PETER
DEMOPOLIS,
No. 256690
Wayne Circuit Court
LC No. 02-203546-CK
Defendants-Appellants.
Before: White, P.J., and Jansen and Wilder, JJ.
PER CURIAM.
Defendants appeal as of right from a judgment in favor of plaintiffs in this retaliatory
eviction claim. We affirm.
I
Defendants argue that the circuit court erred by holding a “damages only” trial regarding
plaintiffs’ retaliatory eviction claim because that claim is barred by res judicata or collateral
estoppel. We disagree. Generally, to preserve an issue for appellate review, the issue must be
raised before and decided by the trial court. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599
NW2d 489 (1999). Here, when plaintiffs argued that they were entitled to a damages only trial
according to res judicata and collateral estoppel, defendants responded by arguing that res
judicata and collateral estoppel were inapplicable. Defendants argue, on appeal, that res judicata
or collateral estoppel not only apply, but bar plaintiffs’ retaliatory eviction claim as a matter of
law.
This Court reviews the applicability of the doctrine of res judicata de novo. Pierson Sand
& Gravel, Inc v Keeler Brass Co, 460 Mich 372, 379; 596 NW2d 153 (1999). We review the
applicability of the doctrine of collateral estoppel de novo. Minicuci v Scientific Data Mgmt, Inc,
243 Mich App 28, 34; 620 NW2d 657 (2000).
The circuit court apparently ordered that plaintiffs were entitled to a damages only trial
regarding their retaliatory eviction claim based on either res judicata or collateral estoppel
because the district court had already determined that plaintiffs had established the elements of
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retaliatory eviction. Plaintiffs then moved the matter to the circuit court because the damages
they were claiming exceeded the jurisdiction of the district court.
Res judicata bars a subsequent action between the same parties when the facts or
evidence essential to the action are identical to the facts or evidence in a prior action. Dart v
Dart, 460 Mich 573, 586; 597 NW2d 82 (1999). 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 case; and (4) both
actions involved the same parties or their privies. Kosiel v Arrow Liquors Corp, 446 Mich 374,
379; 521 NW2d 531 (1994).
Collateral estoppel precludes the relitigation of an issue in a subsequent cause of action
between the same parties or their privies when the prior action culminated in a valid final
judgment and the issue was actually and necessarily litigated in that action. Ditmore v Michalik,
244 Mich App 569, 577; 625 NW2d 462 (2001). In the subsequent action, the ultimate issue to
be determined must be identical and not merely similar to that involved in the first action. Eaton
County Rd Comm'rs v Schultz, 205 Mich App 371, 376; 521 NW2d 847 (1994). To be actually
litigated, a question must be put into issue by the pleadings, submitted to the trier of fact, and
determined by the trier. VanDeventer v Michigan Nat'l Bank, 172 Mich App 456, 463; 432
NW2d 338 (1988). The parties must have had a full and fair opportunity to litigate the issue in
the first action. Kowatch v Kowatch, 179 Mich App 163, 168; 445 NW2d 808 (1989).
Pursuant to MCL 600.8301, district courts have jurisdiction over all civil actions where
the amount in controversy does not exceed $25,000. A landlord's right to recovery of possession
of realty is governed by MCL 600.5701 et seq. Thus, an action to recover possession is properly
brought in the district court because of its statutory grant of original jurisdiction. MCL
600.5704; Flynn v Korneffel, 451 Mich 186, 196 n 22; 547 NW2d 249 (1996). Conversely,
circuit courts are courts of general jurisdiction with original jurisdiction over all civil claims and
remedies “except where exclusive jurisdiction is given by the constitution or statute to some
other court or where circuit courts are denied jurisdiction by the constitution or statutes of this
state.” MCL 600.605; see also Const 1963, art 6, § 13; MCL 600.601. Finally, MCR 4.201
provides, in pertinent part:
A summary proceedings action need not be removed from the court in which it is
filed because an equitable defense or counterclaim is interposed.
If a money claim or counterclaim exceeding the court's jurisdiction is introduced,
the court, on motion of either party or on its own initiative, shall order removal of
that portion of the action to the circuit court, if the money claim or counterclaim is
sufficiently shown to exceed the court's jurisdictional limit. [MCR 4.201(G)(2)(a)
and (b).]
Remarkably, defendants essentially argue that the circuit court erred by permitting a
damages only trial regarding plaintiffs’ retaliatory eviction claim because the district court had
already ruled that there were no damages. Because a court speaks through its written orders, In
re Gazella, 264 Mich App 668, 677; 692 NW2d 708 (2005), the district court’s order is
dispositive of the issue.
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Contrary to defendants’ assertion, the district court did not determine the issue of
damages in its July 9, 2002, order. Rather, the order states “that the [plaintiffs] have shown the
elements of retaliatory eviction pursuant to MCLA 600.5720.” The order further cites MCR
4.201(G) and MCL 600.8302. MCL 600.8302(1) and (3) permit the district court to exercise its
equitable jurisdiction over proceedings such as those brought in this case under MCL 600.5720,
concurrently with a circuit court exercising its jurisdiction. MCR 4.201(G)(2)(a) and (b) allow a
portion of an action filed as part of the summary proceedings originating in the district court to
be moved to the circuit court where the amounts in controversy in that portion of the case exceed
those of the district court’s jurisdictional limits.
In this case, the order also provides, “in accordance with MCLA 600.8302, the Court will
allow, by motion, a consolidation of the equitable claims to be heard in the Third Circuit Court
for the County of Wayne, or remain bifurcated between the Circuit Court and the District Court,”
which indicates that the district court intended: (1) to move the damages determination of
plaintiffs’ retaliatory eviction action to the circuit court because the trial court apparently found
that portion of the action exceeded the district’s court jurisdictional limits and (2) to continue to
exercise its equitable jurisdiction over the matter until the parties requested otherwise.
We believe that because the district court had determined that the plaintiffs had already
shown the elements of retaliatory eviction, there was no need to relitigate defendants’ liability in
that respect. The purpose of collateral estoppel is “‘to relieve parties of the cost and vexation of
multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions,
encourage reliance on adjudication . . . .’” Monat v State Farm Ins Co, 469 Mich 679, 692; 677
NW2d 843 (2004) (quotations omitted). The purpose of the doctrine of res judicata is to prevent
multiple suits litigating the same cause of action. Adair v State, 470 Mich 105, 121; 680 NW2d
386 (2004).
We believe this conclusion is consistent with the purposes underlying the doctrines of
collateral estoppel and res judicata. Defendants otherwise fail to demonstrate that plaintiffs did
not meet the elements necessary to warrant application of either doctrine. To the contrary, as
stated, defendants now argue on appeal that plaintiffs’ claim was barred by res judicata because
“the ‘retaliatory eviction’ had been adjudicated to finality in the district court.” Based on the
language of this order, however, we reject defendants’ argument that plaintiffs’ claim is barred
by res judicata. The language and statutory cites contained in district court’s order indicates that
it intended the circuit court to decide the amount of damages for plaintiffs’ retaliatory evictions
claims in light of Michigan’s statutory scheme regarding jurisdiction. It does not provide that the
district court found plaintiffs had not suffered any damages. There is simply no legal or
empirical support for defendants’ argument in this respect.
II
Defendants alternatively argue that the jury’s verdict was against the great weight of the
evidence. We disagree.
A claim on appeal that the verdict was against the great weight of the evidence must be
preceded by a motion for new trial before the trial court. Heshelman v Lombardi, 183 Mich App
72, 83; 454 NW2d 603 (1990). Because defendants failed to raise this argument below, it is
unpreserved. However, we may review an unpreserved issue for plain error that affected
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substantial rights. Hilgendorf v St John Hosp & Medical Center Corp, 245 Mich App 670, 700;
630 NW2d 356 (2001).
A new trial may be granted on some or all issues if a verdict is against the great weight of
the evidence. MCR 2.611(A)(1)(e); Domako v Rowe, 184 Mich App 137, 144; 457 NW2d 107
(1990). However, a reviewing court must not substitute its judgment for that of the factfinder,
and the jury verdict should not be set aside if there is competent evidence to support it.
Ellsworth v Hotel Corp, 236 Mich App 185, 194; 600 NW2d 129 (1999). The jury and trial
court are accorded substantial deference because both were in a better position to determine
credibility and weight the testimony. Id.
The second issue, therefore, turns on whether there was competent evidence to support
the jury’s award of $235,000 in economic damages for retaliatory eviction action. We believe
there was competent evidence to support plaintiffs’ damages claim.
Defendants arguments that plaintiffs’ damages were either unsupported by the record or
purely speculative is without merit. The jury verdict form provided the following awards:
2.
State the amount of damages suffered by the plaintiffs, if any, as a
result of the retaliatory eviction, of the following kind:
a.
Out of pocket expenses incurred as of September 30, 2002, other
than attorneys fees: $93,000.
b.
Attorneys fees incurred as of September 30, 2002: $7,000.
c.
Lost profits through September 30, 2002: $135,000.
During trial, plaintiffs itemized and provided receipts as evidence for all of their “out of
pocket” expenses associated with the business, testified at length regarding the problems with the
building, and testified that their clientele decreased as the problems persisted. Plaintiffs also
provided evidence that they were making a significant amount of money before experiencing the
problems with the building. Specifically, there was testimony that plaintiffs received income
from operators who would rent stations at the salon, and that this income dissipated as a result of
problems with the building and corresponding loss of clientele. Indeed, plaintiffs provided
evidence with respect to the exact number of operators that rented booths at their salon, the
specific amounts they would have been paid had the building conditions not been substandard,
and the time frame for which they believe they lost this income. Plaintiffs also provided the jury
with a demonstrative exhibit itemizing all of the damages plaintiffs claimed they incurred as a
result of the retaliatory eviction. Finally, plaintiffs provided testimony that they spent
approximately $7,000 in attorney fees as a result of the eviction proceeding.
Defendants did not provide any evidence that directly disputed the evidence presented by
plaintiffs. Although defendants chose to attack the veracity of these damages claims on crossexamination, this Court will defer to the jury’s determination regarding the credibility and weight
of this testimony. Ellsworth, supra at 194. Other than a few isolated happenings taken out of
context, defendants show no evidence that the jury’s determination was the product of passion or
prejudice. There was no plain error in this respect, and thus, no error requiring reversal.
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Affirmed.
/s/ Helene N. White
/s/ Kathleen Jansen
/s/ Kurtis T. Wilder
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