HERBERT W G CLANTON V DEPT OF TRANSPORTATION
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STATE OF MICHIGAN
COURT OF APPEALS
HERBERT W. G. CLANTON,
UNPUBLISHED
January 12, 2010
Plaintiff-Appellant,
v
No. 286495
Wayne Circuit Court
LC No. 07-726041-CD
DEPARTMENT OF TRANSPORTATION,
Defendant-Appellee.
Before: Davis, P.J., and Fort Hood and Servitto, JJ.
PER CURIAM.
Plaintiff appeals as of right an order of the circuit court granting defendant’s motion for
summary disposition pursuant to MCR 2.116(C)(7). We affirm.
The doctrine of res judicata bars claims arising out of the same transaction that could
have been litigated in a prior proceeding, but were not. Sewell v Clean Cut Mgt, Inc, 463 Mich
569, 576; 621 NW2d 222 (2001). The party asserting res judicata must demonstrate 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.” Richards v Tibaldi, 272 Mich App 522,
531; 726 NW2d 770 (2006).
The circuit court determined that the issues in the present case could have been resolved
in Ingham Circuit Court case no. 06-001148-CD. The prior case was dismissed with prejudice
because plaintiff did not conform his pleadings to the Michigan Court Rules as ordered, and this
Court affirmed the dismissal. Clanton v Dep’t of Transportation, unpublished decision of the
Michigan Court of Appeals, issued October 21, 2008 (Docket No. 277440) (Clanton I). An
involuntary dismissal due to plaintiff’s failure to comply with the court rules or any order of the
court will operate as an adjudication on the merits unless the order of dismissal provides
otherwise. MCR 2.504(B)(3); Makowski v Towles, 195 Mich App 106, 108; 489 NW2d 133
(1992).
“The test for determining whether two claims arise out of the same transaction and are
identical for res judicata purposes is whether the same facts or evidence are essential to the
maintenance of the two actions.” Jones v State Farm Mut Auto Ins Co, 202 Mich App 393, 401;
509 NW2d 829 (1993). Here, the circuit court found that the underlying petition for review and
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the petition filed in Ingham Circuit Court were “almost identical.” We agree and conclude that
the trial court properly applied the doctrine of res judicata.
Finally, the circuit court’s finding that both actions involved the same parties was not in
error. Privity may exist between officers of the same government if, in the earlier litigation, the
representative of the government had authority to represent its interests in a final adjudication of
the issue in controversy. ANR Pipeline Co v Dep’t of Treasury, 266 Mich App 190, 213; 699
NW2d 707 (2005). Privity requires a substantial identity of interests and a working functional
relationship in which the interests of the nonparty were presented and protected by the party in
the litigation. Id. at 214. Here, defendant was a party in the previous suit and was able to
represent the interests of the other parties concerning plaintiff’s employment complaints.
Affirmed.
/s/ Alton T. Davis
/s/ Karen M. Fort Hood
/s/ Deborah A. Servitto
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