Meyering v. Russell, Docket No. 31268
| Decision Date | 19 September 1978 |
| Docket Number | Docket No. 31268 |
| Citation | 85 Mich.App. 547,272 N.W.2d 131 |
| Parties | Gerald C. MEYERING, Plaintiff-Appellant, v. Albert RUSSELL, Cal Deitz, and Mrs. Cal Deitz, whose proper name is unknown, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Parmenter, Forsythe & Rude by John M. Briggs, III, Muskegon, for plaintiff-appellant.
Marietti, Mullally & Grimm by Neil G. Mullally, Muskegon, for Russell.
Landman, Hathaway, Latimer, Clink & Robb by William F. McNally, Muskegon, for Deitz.
Before J. H. GILLIS, P. J., and R. B. BURNS and ALLEN, JJ.
In Meyering v. Russell, 393 Mich. 770, 224 N.W.2d 280 (1974), the Supreme Court overturned plaintiff's judgment for damages against defendant Deitz and remanded to the trial court for further proceedings. On remand, plaintiff moved for summary judgment for damages against defendant Russell. The motion was denied by the trial court and plaintiff appeals on leave granted May 13, 1977.
In order to properly understand the issues raised, a full recapitulation of the complicated set of facts is required. In 1969, plaintiff filed suit against both Russell and Deitz for specific performance and damages for violation of a purchase agreement under which Russell contracted to sell certain lands to plaintiff. The complaint alleged that Russell wrongfully violated the agreement by selling the land to Deitz and that Deitz was a conveyance intermeddler. Deitz filed a cross-claim against Russell, claiming that if Deitz were ordered to reconvey the property Russell should reimburse him for the payments Deitz had made on the property. Following a prolonged trial the trial court held: (1) that the purchase agreement had been violated, (2) that the property should be reconveyed by Deitz to Russell, (3) that Russell enter into a land contract with plaintiff under the same terms as were in the purchase agreement, (4) that plaintiff was entitled to damages of $7,950, plus interest for the monthly rental loss for 30 months, and (5) that Deitz was a contract intermeddler and, as such, should pay the damages. Significantly, neither the trial court's written opinion nor the judgment referred to plaintiff's claim for damages against Russell. The trial court entered a judgment of no cause of action on the cross-claim.
On appeal in Meyering v. Russell, 53 Mich.App. 695, 220 N.W.2d 121 (1974), this Court, in a 2-1 decision, affirmed the trial court on all five holdings summarized above but reversed on the cross-claim on grounds that the trial court's dismissal of the cross-claim would unjustly enrich Russell who otherwise would be paid twice once on payments already made by Deitz and a second time by installments to be made under the land contract by plaintiff. Judge O'Hara disagreed with the majority on issue (5) on grounds that Deitz resorted to no illegal or unlawful methods in persuading Russell to convey to him. In all other respects, Judge O'Hara agreed with the majority opinion. 1
Leave to appeal was sought from the Supreme Court which, on December 24 1974, reversed the Court of Appeals "for the reasons set forth in the opinion in this case of Judge O'Hara * * * and remand to the circuit court for further proceedings as provided in such opinion". After remand to the trial court, plaintiff filed a motion for summary judgment against Russell asking that the trial court reaffirm its earlier finding that Russell had breached the purchase agreement and, since Deitz had been absolved from fault by reason of the Supreme Court's decision, hold Russell liable for $7,950 lost rentals plus interest. 2 Though the trial court strongly felt that plaintiff should be reimbursed for the lost rentals, the court denied plaintiff's motion on grounds the court could take no action other than that specifically mentioned in Judge O'Hara's opinion. 3
The trial court's conclusion is clearly erroneous. A trial court can take any action on remand which is not inconsistent with the instructions of the remanding court where the action is otherwise proper.
"The power of the lower court on remand is to take such action as law and justice may require so long as it is not inconsistent with the judgment of the appellate court." Sokel v. Nickoli, 356 Mich. 460, 464, 97 N.W.2d 1, 4 (1959). 4
The question raised in plaintiff's motion for summary judgment was the liability of defendant-vendor to plaintiff-vendee for expenses incidental to the breach of the land contract executed between the parties. This issue was not considered by this Court during the first appeal, nor by the Supreme Court in its remand. Hence, the trial court in the instant matter was free to take any action in respect to this issue as long as it was not inconsistent with the Supreme Court's remand instructions and was otherwise proper. Hence, the reasons given by the trial court for denying plaintiff's motion for summary judgment were improper.
Nevertheless, defendant argues that the trial court's denial of plaintiff's motion for damages against Russell was proper on grounds of res judicata even though the reason given for denial may have been in error. According to defendant, res judicata acts as a bar since the issue being raised and the parties contesting the issue are the same as in the original suit. Stated more precisely, the question now before us is whether res judicata governs in an action for specific performance of a purchase agreement and for damages where (1) the judgment of the trial court did not award damages against the seller but was silent on the issue, (2) no appeal was taken from the failure to award damages against the seller, and (3) the directions of the Supreme Court did not speak to the seller's liability for damages.
We conclude that based on the unique facts of this case res judicata does not apply.
First, the issue which is now raised was not decided by the trial court or even reduced to judgment. The question before us now is whether the seller (Russell) must pay damages when it has been determined that the other party involved (Deitz) is not responsible for damages. At the trial level the question litigated and decided was which of the two parties (Russell or Deitz) was liable in damages. That is an entirely different question. It does not necessarily follow that if Deitz is exonerated, so too must Russell be. In order for res judicata to apply, the precise issue or any point properly belonging to the litigation must be decided. Curry v. Detroit, 394 Mich. 327, 231 N.W.2d 57 (1975). Having determined, albeit erroneously, that Deitz was responsible, it was unnecessary for the court to decide whether Russell should pay damages if Deitz was not the party at fault. Had the trial court held that in no event should Russell pay damages, even if Deitz were not at fault, then plaintiff should have appealed. But because no such finding was made, plaintiff may not be penalized for failure to cross-appeal.
Second, Judge O'Hara's opinion only disagreed with the majority conclusion that Deitz was a contract intermeddler who should pay the lost rentals. 5 On all other points he agreed with the majority and the trial court, including the grant of specific performance of the purchase agreement between plaintiff and Russell. It is hornbook law that where a contract is breached, the aggrieved party is entitled to reinstatement of the contract plus any damages incurred during the period of breach. Simply put, Judge O'Hara's opinion was silent on the question of whether plaintiff was entitled to the rentals lost during the 30-month period. We believe Judge O'Hara was too fine a jurist to rule Sub silentio that the contract was to be reinstated but in no event was plaintiff entitled to damages. Had he intended so major a deviation from the established rules of law, he would have clearly so stated. All that Judge O'Hara Specifically wrote in disagreement about the damages was, "I would reverse as to the money judgment against Deitz". 53 Mich.App. at 712, 220 N.W.2d at 129. In our opinion, Judge O'Hara assumed that in affirming the grant of specific performance against Russell the trial court, on remand, would order the damages paid by Russell. It then follows that when the Supreme Court remanded to the trial court for further proceedings "as provided in such opinion", the trial court could assess damages against Russell and res judicata would not be a defense.
Third, application of the doctrine of res judicata in this case would lead to an unconscionable and absurd result:
Unconscionable because it would give plaintiff only a partial remedy. He recovers the property for which he must pay the full land contract price, but would be deprived of the rentals on which he relied to assist in making the payments. Despite a clear finding by the trial court that Russell broke the contract when he sold to Deitz and affirmance of such finding by this Court, Judge O'Hara included, Russell would be relieved of paying damages.
Absurd because in not one of the three courts involved is there a finding of even a single written word not even by Judge O'Hara himself that no damages should be forthcoming from Russell.
For the above reasons, the trial court's order denying plaintiff's motion for summary judgment is reversed. Costs to appellant.
I agree the trial court erred in holding that it could take no action other than following the instructions of the Supreme Court. However, I would hold that the trial court's denial of plaintiff's motion for summary judgment against defendant-vendor Russell was proper on grounds of res judicata.
"A judgment, to constitute a bar to a claim in a subsequent action, must be rendered upon the merits, upon the same matter in issue, and between the same parties or their privies." Curry v. Detroit 394 Mich. 327, 331, 231 N.W.2d 57, 58 (1975).
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