HARRY E POWELL V CHARTER TOWNSHIP OF MONTROSE
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STATE OF MICHIGAN
COURT OF APPEALS
HARRY E. POWELL,
UNPUBLISHED
May 4, 2010
Plaintiff-Appellant/Cross-Appellee,
v
No. 289214
Genesee Circuit Court
LC No. 08-087975-CK
CHARTER TOWNSHIP OF MONTROSE,
Defendant-Appellee/CrossAppellant.
Before: M.J. KELLY, P.J., and TALBOT and WILDER, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting defendant’s motion for summary
disposition. We affirm.
I.
This case arises out of an agreement between plaintiff and Nextel Communications
(“Nextel”) to construct a wireless tower on plaintiff’s property. Under the agreement, Nextel
would have leased plaintiff’s property for a five-year term, and would have had the option at the
end of the five-year term to either cancel the lease or renew it for successive five-year periods,
for a total of 30 years. Defendant interfered with plaintiff’s efforts to obtain a building permit
for the tower and simultaneously adopted a new ordinance that allowed defendant first priority
over plaintiff for the construction of a tower.1 Defendant subsequently entered into a lease
1
Charter Township of Montrose, § 153.365 provides in relevant part:
(4) Communication towers are allowed under prioritized locations:
(a) First:
1. Co-location; and
2. Township property.
(b) Second:
1. Industrial; and
2. Commercial.
(continued…)
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agreement with Nextel that was substantially similar to the agreement between plaintiff and
Nextel. Plaintiff initiated an action against defendant for tortious interference with plaintiff’s
advantageous business relationship or expectancy with Nextel. During trial, defendant moved
for partial directed verdict on the issue of damages, on the basis that the jury could not award
damages for the five-year renewal periods without speculating as to whether Nextel would
exercise its options to renew the lease agreement. The trial court granted defendant’s motion,
concluding that there was no evidence to indicate whether Nextel would have renewed or
canceled the lease at the end of the first five-year term. Thereafter, the jury found in favor of
plaintiff and awarded $83,367.75 in damages against defendant.
Nextel renewed its lease with defendant when the first five-year term of the contract
ended, and plaintiff initiated a second action against defendant claiming damages. The trial court
entered an order granting defendant’s motion for summary disposition pursuant to MCR
2.116(C)(7), finding that plaintiff’s second action was barred by res judicata. The trial court
noted that in the first action, it had already ruled that plaintiff’s claim for damages arising from
defendant’s alleged tortious interference with the second five year term of plaintiff’s contract
with Nextel was not proved with sufficient evidence, and that therefore the claim was
speculative. This appeal followed.
II.
Plaintiff argues that the trial court erred in granting defendant’s motion for summary
disposition on the basis of res judicata. We disagree. This Court reviews de novo a trial court’s
decision on a motion for summary disposition pursuant to MCR 2.116(C)(7) and the applicability
of the doctrine of res judicata. Stoudemire v Stoudemire, 248 Mich App 325, 332; 639 NW2d
274 (2001).
“In general, res judicata bars a subsequent action between the same parties
when the facts or evidence essential to the action is identical to that essential to a
prior action. The purposes of res judicata are to relieve parties of the cost and
vexation of multiple lawsuits, conserve judicial resources, and encourage reliance
on adjudication. 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. The burden of establishing
the applicability of res judicata is on the party asserting the doctrine.” [Richards v
Tibaldi, 272 Mich App 522, 530-531; 726 NW2d 770 (2006) (internal citations
omitted); see also Washington v Sinai Hospital of Greater Detroit, 478 Mich 412;
733 NW2d 755 (2007).]
(…continued)
(c) Third:
1. Agriculture;
2. Residential farm; and
3. Residential suburban.
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“The test for determining whether two claims are identical for res judicata purposes is whether
the same facts or evidence are essential to the maintenance of the two claims.” Huggett v
Department of Natural Resources, 232 Mich App 188, 198; 590 NW2d 747 (1998).
Clearly, the actions at issue here involve the same parties. Richards, 272 Mich App at
530-531. The first and second elements of res judicata are also satisfied because the trial court’s
order granting defendant’s motion for directed verdict was a final decision on the merits. See
Latimer v William Mueller & Son, Inc, 149 Mich App 620, 641; 386 NW2d 618 (1986) (a
directed verdict is a judgment on the merits of an issue actually litigated). Plaintiff failed to
appeal the directed verdict that there was insufficient evidence regarding whether Nextel would
have renewed the contract with plaintiff. SS Aircraft Co v Piper Aircraft Corp, 159 Mich App
389, 393; 406 NW2d 304 (1987) (the “decision of a court having jurisdiction is final when not
appealed and cannot be collaterally attacked.”). Moreover, nearly a year after the directed
verdict, the court reaffirmed its decision when plaintiff filed a motion to clarify the record. “To
be accorded the conclusive effect of res judicata, ‘the judgment must ordinarily be a firm and
stable one, the last word of the rendering court. . . .’” Ind Ins Co v Auto-Owners Ins Co, 260
Mich App 662, 671 n 8; 680 NW2d 466 (2004), quoting Kosiel v Arrow Liquors Corp, 446 Mich
374, 381; 521 NW2d 531 (1994).
The third element of res judicata is satisfied because the matter contested in the second
action was resolved in the previous litigation. As we explained above, at trial and in the motion
to clarify the record, plaintiff argued that he was entitled to damages for the subsequent five-year
renewal periods, which Nextel had the option to accept or decline under the agreement. The trial
court rejected this argument because plaintiff could not prove, but could only conjecture, that
Nextel would renew the lease with him at the end of the five-year term. Therefore, damages for
any subsequent renewal periods would be purely speculative. Pursuant to plaintiff’s motion to
clarify the record, the trial court ruled that any future lawsuits by plaintiff for damages could not
“piggy-back off of th[e previous] case,” in which damages were limited to those suffered by
interference with the five-year lease. In the second action, however, plaintiff does not allege that
there was a new contract negotiated between himself and Nextel with which defendant
interfered. Rather, plaintiff relies on the previous allegations that defendant obstructed his
construction of the wireless tower and gained priority in constructing the tower, and plaintiff
asserts a claim for tortious interference of the same contract for which defendant was already
found liable. Because the elements of res judicata are satisfied, the trial court did not err when it
concluded that plaintiff’s second action was barred.
We note that plaintiff cites, inter alia, Arnone v Chrysler Corp, 6 Mich App 224, 228229; 148 NW2d 902 (1967), for the proposition that, when a divisible contract is breached, a
“plaintiff can maintain an action on any deficiency when it accrues.” Despite new evidence that
Nextel renewed its lease with defendant after the first five-year term, the trial court had already
concluded that plaintiff could only conjecture that Nextel would have also renewed its lease with
him. Plaintiff did not challenge this ruling on appeal, and is bound by this finding in the current,
second action. Because plaintiff’s second action for damages is barred by res judicata, the
authority in Arnone is inapposite.
Plaintiff further argues that summary disposition for defendant in this action was
improper based on the doctrines of unjust enrichment and judicial estoppel, and furthermore, that
plaintiff was entitled to summary disposition on the basis of collateral estoppel. Although
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plaintiff raised these issues below, they were not addressed by the trial court, and therefore, are
not preserved for appeal. Brown v Loveman, 260 Mich App 576, 599; 680 NW2d 432 (2004).
“[T]his Court may overlook preservation requirements if the failure to consider the issue would
result in manifest injustice, if consideration is necessary for a proper determination of the case,
or if the issue involves a question of law and the facts necessary for its resolution have been
presented.” Laurel Woods Apartments v Roumayah, 274 Mich App 631, 640; 734 NW2d 217
(2007). Because we agree with the trial court that the matter in the second action is barred by res
judicata, manifest injustice will not result by declining to consider plaintiff’s remaining claims,
which are all without merit.
Having concluded that the trial court correctly granted summary disposition in favor of
defendant on the basis that plaintiff’s action was barred by res judicata, we find it unnecessary to
address defendant’s cross-appeal on issues not addressed by the trial court.
Affirmed.
Defendant, being the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Michael J. Kelly
/s/ Michael J. Talbot
/s/ Kurtis T. Wilder
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