Braxton v. Litchalk

• Decision Date: 07 October 1974
• Docket Number: No. 1,Docket No. 17181,1
• Citation: 55 Mich.App. 708,223 N.W.2d 316
• Parties: Robert L. BRAXTON, Sr., and Thelma Braxton, Plaintiffs-Appellants, and Robert L. Braxton, Jr., and Delores Braxton, Plaintiffs, v. John William LITCHALK and Bendix Corporation, Defendants-Appellees, and D. L. Peterson Trust, Defendant-Cross-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 316

223 N.W.2d 316

55 Mich.App. 708

Robert L. BRAXTON, Sr., and Thelma Braxton, Plaintiffs-Appellants, and Robert L. Braxton, Jr., and Delores Braxton, Plaintiffs, v. John William LITCHALK and Bendix Corporation, Defendants-Appellees, and D. L. Peterson Trust, Defendant-Cross-Appellant.

Docket No. 17181.

Court of Appeals of Michigan, Division No. 1.

Oct. 7, 1974.

Released for Publication Nov. 21, 1974.

Richard B. Worsham of Sanford N. Lakin, P.C., Detroit, for Robert/Thelma Braxton.

Millard W. H. Becker, Jr., Garan, Lucow, Miller, Lehman, Seward & Cooper, Detroit, for defendants-appellees.

Before J. H. GILLIS, P.J., and ALLEN and ELLIOTT,* JJ.

ALLEN Judge.

Plaintiffs-appellants have appealed from the April 20, 1973 order of the trial court granting defendants-appellees' motion for accelerated judgment. GCR 1963, 116.1(5). D.L. Peterson Trust, defendant-cross-appellant, has filed a cross-appeal from the trial court's denial of its motion for accelerated judgment.

This case comes before us on an agreed statement of facts. GCR 1963, 812.10. On September 12, 1969, Robert Lee Braxton, Sr., was the operator and owner of a motor vehicle which was involved in an automobile accident with a vehicle owned by the D.L. Peterson Trust, leased to Bendix Corporation and driven by John William Litchalk, a Bendix employee. Robert L. Braxton, Jr., was a passenger in his father's vehicle at this time and place.

In February of 1971, Bendix Corporation filed a lawsuit, case number 4--088--657, in the Common Pleas Court for the City of Detroit against Robert L. Braxton, alleging that he was negligent in the operation of his vehicle and sought $205.76, the amount it cost to repair the damage to the Bendix vehicle. Braxton failed to answer this complaint, and on April 8, 1971, an affidavit was filed in support of the default. On that same day, a judgment of default was entered in the common pleas court, and on April 21, 1972, satisfaction of judgment was entered in the common pleas court after Robert Lee Braxton, Sr., had paid such judgment. ¹

On July 18, 1972, Robert L. Braxton, Sr., his wife Thelma, Robert Braxton, Jr., and his wife Delores filed suit in the Wayne County Circuit Court against John William Litchalk, and D.L. Peterson Trust, of Bendix Research Lab. At a subsequent hearing in this case, it was agreed that the latternamed party did not exist, and that the proper defendants should be known as the D.L. Peterson Trust and Bendix Corporation.

Robert L. Braxton, Sr., the named defendant in the common pleas action, is one of the named plaintiffs in the instant suit. His wife Thelma has maintained a derivative claim for loss of consortium, services and companionship. Delores Braxton, wife of Robert Braxton, Jr., maintains a similar claim.

On August 17, 1972, defendants filed a motion for accelerated judgment. Hearing was had on that motion on September 29, 1972, and on January 4, 1973, the trial court rendered its opinion. The trial court held that Mr. Litchalk, driver of the Bendix vehicle, could rely upon the doctrine of collateral estoppel, that Robert Braxton, Sr., and his wife were barred from maintaining an action against the driver of the vehicle, and were barred from maintaining an action against the Bendix Corporation. The court held that Robert L. Braxton, Sr., and his wife were not barred from maintaining an action against the trust company. Also, it was ordered that Robert L. Braxton, Jr., and his wife could maintain an action against the three named defendants, and these defendants have agreed that Robert L. Braxton, Jr., and his wife are not barred by the previous common pleas court judgment entered against Robert L. Braxton, Sr.

On appeal, plaintiffs argue that the common pleas default judgment rendered against plaintiffs is not res judicata to the instant suit, nor does it collaterally estop plaintiffs from maintaining this suit, because: (1) the common pleas court allegedly lacks the stature of a circuit court, (2) a default judgment is not a decision on the merits, (3) Bendix Corporation's property damage claim was a cause of action different than plaintiffs' instant claim for personal injuries and property damages (4) and the instant suit involves different litigants, and consequently there is a lack of privity and/or mutuality among the various litigants. Cross-appellant D. L. Peterson Trust, legal titleholder to the Bendix vehicle involved in the accident, contends that it would be precluded from relitigating the claim which Bendix Corporation had filed in the common pleas court, and that according to the doctrine of mutuality, the plaintiffs are collaterally estopped from maintaining this suit against it.

The common pleas court may enter a judgment to which the doctrines of collateral estoppel and res judicata apply, and plaintiffs' argument to the contrary is without merit. Chunko v. LeMaitre, 10 Mich.App. 490, 495, 159 N.W.2d 876 (1968). As stated in 50 C.J.S. Judgments § 689, p. 146:

'A sentence, judgment, or decree of a court acting within its jurisdiction is res judicata, preventing the fact or matter adjudicated from being relitigated in the same or any other court between the parties and privies, whether the court rendering it had general, inferior, special, limited, concurrent, or exclusive jurisdiction * * *. (T)he relative rank of the courts involved is immaterial; if the judgment is one which in its nature operates as res judicata it is binding on all other courts, even the highest, although rendered by the lowest court in the judicial system.' (Footnotes omitted.)

M.C.L.A. § 728.1, M.S.A. § 27.3651 states that the common pleas court is a court of record, that it has concurrent jurisdiction with the circuit court in all civil actions where damages do not exceed $10,000, and has exclusive jurisdiction where the damages do not exceed $5,000. Without specifically addressing the instant question, our Court has applied the defense of collateral estoppel to a circuit court case filed subsequent to a common pleas proceeding, Jones v. Slaughter, 54 Mich.App. 120, 220 N.W.2d 63 (1974), and it is clear that plaintiffs' first argument is without merit.

Contrary to plaintiffs' second argument, the doctrine of res judicata applies to a default judgment. Perry & Derrick Co., Inc. v. King, 24 Mich.App. 616, 620, 180 N.W.2d 483, 485 (1970), said:

'A default judgment is just as conclusive an adjudication and as binding upon the parties of whatever is essential to support the judgment as one which has been rendered following answer and contest.'

See also 47 Am.Jur.2d, Judgments, § 1197, p. 213. A default judgment will also 'be given collateral estoppel effect in a subsequent suit between the parties arising out of the same transaction or occurrence'. Sahn v. Brisson, 43 Mich.App. 666, 670--671, 204 N.W.2d 692, 694 (1972).

There is authority that where the issues are not actually litigated in the prior action but are determined by default judgment only, the prior action is not conclusive as to those issues in the subsequent cause of action. Petrucci v. Landon, 48 Del. 491, 107 A.2d 236, 239 (1954). Petrucci, supra, based its conclusion upon the rules in Restatement, Judgments, § 68 (1942). The case of Lovejoy v. Ashworth, 94 N.H. 8, 45 A.2d 218, 219 (1946), also referred to Restatement, Supra, as authority for holding a prior default judgment did 'not bar the defendant from raising (the) issue in a later suit upon a different cause of action'. See also Developments in the Law--Res Judicata, 65 Harv.L.Rev. 818, 840--841 (1952).

These cases appear to represent the minority view. 77 A.L.R.2d 1410, § 3(a), p. 1419 states:

'(The) general rule is that a default judgment is just as conclusive an adjudication between the parties of whatever is essential to support the judgment as one entered after answer and contest.'

The above annotation recognizes the rule set forth in § 68 of the Restatement, supra, but then proceeds to note that it is 'supported by but a few of the cases discussed in (the) annotation', one of which is Lovejoy, supra. The annotation then proceeds to comment 'there are a great number of cases' in which the courts have applied collateral estoppel to a default judgment. See also 47 Am.Jur.2d, Judgments, § 1198, p. 214. Among the cases supporting the majority rule are Laughlin v. Lumbert, 68 N.M. 351, 362 P.2d 507 (1961), and Gwynn v. Wilhelm, 226 Or. 606, 360 P.2d 312 (1961). In Gwynn the Court observed that the important factor was not whether the prior case had been formally tried as distinguished from judgment taken by default, but whether the question of fact was 'actually litigated and determined' in the prior action. The 'actually litigated' test is the same rule employed in Sahn v. Brisson, Supra. This Court held that even though judgment in the prior suit was by default it was actually litigated by the pleadings and introduction of competent testimony.

'A question has not been actually litigated until put in issue by the pleadings, submitted to the trier of fact for a determination, and thereafter determined. (Citation omitted.)

'In the prior * * * suit, the question of whether repairs to the bulldozer were authorized by the defendant herein was put in issue by the pleadings. The trial court in that case had competent testimony before it upon which to grant a default judgment. The court, based upon the testimony and exhibits presented, determined all of the issues posed by the pleadings. Thus the issues presented by plaintiff's complaint (defendant herein) were actually litigated and we so hold.' 43 Mich.App. 670, 204 N.W.2d 694.

In the case before us the issues were more litigated than in Sahn. Bendix Corporation's declaration, filed in the common pleas court, set forth the time, place and occurrence of the accident, alleged Litchalk was a Bendix employee, asserted that defendant Robert Braxton, Sr., (plaintiff in the case before us) negligently turned his...