RICHARD D FAST V JACOB FAST
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STATE OF MICHIGAN
COURT OF APPEALS
RICHARD D. FAST and COLLEEN FAST,
UNPUBLISHED
May 25, 2001
Plaintiffs-Appellants,
v
JACOB FAST, BARBARA FAST and GREG
FAST,
No. 221994
Macomb Circuit Court
LC No. 99-001426-CK
Defendants-Appellees.
Before: McDonald, P.J., and Smolenski and K. F. Kelly, JJ.
PER CURIAM.
Plaintiffs appeal as of right from a circuit court order granting defendants’ motion for
summary disposition pursuant to MCR 2.116(C)(7). We affirm in part and reverse in part. This
appeal is being decided without oral argument pursuant to MCR 7.214(E).
The parties, who are members of the same family, were involved in various real estate
transactions. Jacob sued Richard over profits and losses relating to three properties and obtained
a default judgment for $64,975,55. In the process of trying to collect on the judgment, he
discovered that Richard had transferred two other properties to his wife Colleen. Pursuant to a
motion filed by Jacob, the trial court set aside the transfers as fraudulent pursuant to an opinion
and order issued April 7, 1999.
Plaintiffs then filed this action, alleging claims for an accounting, breach of fiduciary
duty, and conversion, asserting that defendants had deprived them of their share of the profits
from two of the properties at issue in the prior action and from other properties. They also
alleged claims for fraud, asserting that Jacob had misrepresented the amount of damages to
which he was entitled in the prior action, and for abuse of process relating to Jacob’s attempt to
enforce the judgment against the properties owned by Colleen.
The court ruled that because both suits arose out of real estate investments by members of
the same family and the April 7, 1999, opinion and order had been a decision on the merits, the
complaint was barred by the doctrine of res judicata. “Because res judicata is a question of law,
we review de novo its application as well as the court’s action on a motion for summary
disposition.” Phinisee v Rogers, 229 Mich App 547, 551-552; 582 NW2d 852 (1998).
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Plaintiffs conceded below that any claims relating to those parcels known as the Lennox
and Chalmers properties, which were at issue in the prior action, would be barred. Although they
deny that they have raised any claims regarding those properties, they are specifically mentioned
in the complaint. Therefore, the trial court’s ruling is affirmed as to any claims relating to those
two properties. Temple v Kelel Distributing Co, Inc, 183 Mich App 326, 328; 454 NW2d 610
(1990).
We also affirm the trial court’s ruling as to plaintiffs’ fraud claim. Because there is no
dispute over the trial court’s jurisdiction in the prior case and the judgment rendered was never
appealed, it is final and cannot be collaterally attacked in a subsequent action. People v Howard,
212 Mich App 366, 369; 538 NW2d 44 (1995); SS Aircraft Co v Piper Aircraft Corp, 159 Mich
App 389, 393; 406 NW2d 304 (1987). We will not reverse where the trial court reached the right
result for the wrong reason. Taylor v Laban, 241 Mich App 449, 458; 616 NW2d 229 (2000).
We reverse the trial court’s ruling regarding plaintiffs’ other claims. For the doctrine of
res judicata to apply, “(1) the former suit must have been decided on the merits, (2) the issues in
the second action were or could have been resolved in the former one, and (3) both actions must
involve the same parties or their privies.” Energy Reserves, Inc v Consumers Power Co, 221
Mich App 210, 215-216; 561 NW2d 854 (1997). The prior action was decided by a default
judgment, not by the April 7, 1999, order. The trial court later vacated that order, thus depriving
it of any conclusive effect. As for the second element, “[r]es judicata bars relitigation of claims
actually litigated and those claims arising out of the same transaction that could have been
litigated. 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.” Schwartz
v Flint, 187 Mich App 191, 194-195; 466 NW2d 357 (1991). Only the claims relating to the
Lennox and Chalmers properties arose out of the same transactions that formed the basis of
Jacob’s complaint and would have required presentation of the same facts or evidence as would
be required herein. Although the claims relating to the other properties originated from the
family’s real estate investments, they did not arise out of the same transactions at issue in Jacob’s
suit. Therefore, plaintiffs’ claims regarding profits from those properties other than the Lennox
and Chalmers properties are not barred.
We note that the doctrine of collateral estoppel would normally preclude plaintiffs from
litigating in this case whether Colleen was the owner of the two properties at issue in the abuse of
process claim, that issue having been decided against plaintiffs in the April 7, 1999, opinion and
order. McMichael v McMichael, 217 Mich App 723, 727; 552 NW2d 688 (1996). However,
because that order has been vacated, Colleen’s ownership has not been finally determined and
thus there is no basis for applying collateral estoppel.
Affirmed in part and reversed in part.
/s/ Gary R. McDonald
/s/ Michael R. Smolenski
/s/ Kirsten Frank Kelly
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