            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



THADDEUS R. DICKEY,                                                 UNPUBLISHED
                                                                    June 20, 2019
               Plaintiff-Appellant,

v                                                                   No. 343343
                                                                    Wayne Circuit Court
CHARTER TOWNSHIP OF CANTON,                                         LC No. 17-009588-CZ
OFFICER CHAMPAGNE, OFFICER
NUOTTILA, and OFFICER HARMON,

               Defendants-Appellees.


Before: BECKERING, P.J., and CAVANAGH and RONAYNE KRAUSE, JJ.

PER CURIAM.

        In this civil action stemming from the arrest and detention of plaintiff by defendants,
plaintiff appeals as of right the trial court’s order granting defendants’ motion for summary
disposition under MCR 2.116(C)(7). We affirm.

                                        I. BASIC FACTS

        This appeal arises out of plaintiff’s October 10, 2014 arrest and detention by Canton
Township Police Officers Champagne, Nuottila, and Harmon. Plaintiff filed three complaints in
Wayne Circuit Court arising out of the October 10, 2014 incident. Plaintiff’s first case was
removed to the United States District Court for the Eastern District of Michigan: Southern
Division (the federal court), and dismissed with prejudice on August 30, 2017. Plaintiff’s second
complaint in the Wayne Circuit Court was dismissed without prejudice on June 1, 2016, under
MCR 2.116(C)(6) because of plaintiff’s pending federal case. Plaintiff’s third complaint
(hereinafter referred to as “plaintiff’s third state case”)—the one giving rise to this appeal—was
filed on June 26, 2017. Defendants filed a motion for summary disposition under MCR
2.116(C)(6) regarding plaintiff’s third state case on July 14, 2017. After plaintiff’s federal case
was dismissed on August 30, 2017, defendants filed a second motion for summary disposition
under MCR 2.116(C)(6) on October 26, 2017, and—with the permission of the trial court—filed
a revised second motion for summary disposition on February 1, 2017, to change the basis for
summary disposition to MCR 2.116(C)(7) on res judicata grounds. Defendants’ revised second



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motion for summary disposition argued that plaintiff’s claims in his third state case were barred
by res judicata because of the dismissal of plaintiff’s federal case. The trial court agreed, and
granted defendants’ revised second motion for summary disposition under MCR 2.116(C)(7).
Plaintiff now appeals.

                          II. WAIVER OF AFFIRMATIVE DEFENSE

        Plaintiff argues that defendants inadvertently waived their ability to assert the affirmative
defense of res judicata in their revised motion for summary disposition because they failed to
assert that defense in their first dispositive motion. We disagree.

       An issue must be raised, addressed, and decided in the trial court to be preserved for
review. Hines v Volkswagen of America, Inc, 265 Mich App 432, 443; 695 NW2d 84 (2005).
With respect to plaintiff’s argument that defendants waived their right to assert res judicata as an
affirmative defense, plaintiff failed to raise that issue in the trial court. Thus, this issue is
unpreserved.

        This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Altobelli v Hartmann, 499 Mich 284, 294-295; 884 NW2d 537 (2016). “When considering a
motion brought under MCR 2.116(C)(7), it is proper for this Court to review all the material
submitted in support of, and in opposition to, the plaintiff’s claim.” Bronson Methodist Hosp v
Allstate Ins Co, 286 Mich App 219, 222; 779 NW2d 304 (2009). When determining whether a
party is entitled to judgment as a matter of law under MCR 2.116(C)(7), a court must accept as
true a plaintiff’s well-pleaded factual allegations, affidavits, or other documentary evidence and
construe them in the plaintiff’s favor. Id. at 222-223. Further, this Court reviews de novo the
interpretation of court rules, Bint v Doe, 274 Mich App 232, 234; 732 NW2d 156 (2007), as well
as the applicability of res judicata, Washington v Sinai Hosp of Greater Detroit, 478 Mich 412,
417; 733 NW2d 755 (2007).

         However, this Court reviews unpreserved arguments for plain error. Hogg v Four Lakes
Ass’n, Inc, 307 Mich App 402, 406; 861 NW2d 341 (2014). “To avoid forfeiture under the plain
error rule, three requirements must be met: 1) the error must have occurred, 2) the error was
plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” Kern v Blethen-
Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000), quoting People v Carines, 460 Mich
750, 763; 597 NW2d 130 (1999). The third requirement generally requires a showing of
prejudice, i.e., that the error affected the outcome of the lower court proceedings. In re Utrera,
281 Mich App 1, 8-9; 761 NW2d 253 (2008).

        Summary disposition under MCR 2.116(C)(7) is proper if a party’s claim is barred
because there has been an “[e]ntry of judgment, dismissal of the action, or . . . [a] prior
judgment . . . .” This includes the affirmative defense of res judicata, which bars a subsequent
action between the same parties when the facts or evidence essential to the action are identical to
those in the prior action. See TBCI, PC v State Farm Mut Auto Ins Co, 289 Mich App 39, 43;
795 NW2d 229 (2010). MCR 2.116(D)(2) requires that a party’s grounds for summary
disposition as stated in MCR 2.116(C)(7) “be raised in a party’s responsive pleading, unless the
grounds are stated in a motion filed under this rule prior to the party’s first responsive pleading.”
Further, MCR 2.111(F) states, in relevant part:

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       (2) Defenses Must Be Pleaded; Exceptions. A party against whom a cause of
       action has been asserted by complaint, cross-claim, counterclaim, or third-party
       claim must assert in a responsive pleading the defenses the party has against the
       claim. A defense not asserted in the responsive pleading or by motion as
       provided by these rules is waived, except for the defenses of lack of jurisdiction
       over the subject matter of the action, and failure to state a claim on which relief
       can be granted. However,

              (a) a party who has asserted a defense by motion filed pursuant to MCR
       2.116 before filing a responsive pleading need not again assert that defense in a
       responsive pleading later filed;

                                                * * *

       (3) Affirmative Defenses. Affirmative defenses must be stated in a party’s
       responsive pleading, either as originally filed or as amended in accordance with
       MCR 2.118. Under a separate and distinct heading, a party must state the facts
       constituting:

               (a) an affirmative defense . . . ;

               (b) a defense that by reason of other affirmative matter seeks to avoid the
       legal effect of or defeat the claim of the opposing party, in whole or in part[.]
       [Emphasis added.]

        Defendants did not waive their ability to assert the affirmative defense of res judicata in
their first motion for summary disposition, filed July 14, 2017, because that defense did not
become available to defendants until after the federal court dismissed plaintiff’s federal case on
August 30, 2017. Also, defendants informed the trial court at the November 16, 2017 hearing for
their second motion for summary disposition, filed October 26, 2017, that plaintiff’s federal case
had been dismissed, and notified the trial court of their intention to change the basis for their
second motion for summary disposition to MCR 2.116(C)(7) on res judicata grounds. That is,
defendants did not waive their ability to assert res judicata as a defense under MCR 2.116(C)(7)
because they raised it at the time of the motion hearing. See MCR 2.111(F)(2). Further, the trial
court permitted defendants to revise their second motion for summary disposition to add the
affirmative defense of res judicata, and allowed plaintiff time to respond to defendants’ res
judicata defense. “The mere fact that an amendment might cause a party to lose on the merits is
not sufficient to establish prejudice.” Ostroth v Warren Regency, GP, LLC, 263 Mich App 1, 5;
687 NW2d 309 (2004).

        Moreover, plaintiff impliedly consented to defendants raising their res judicata defense
by failing to raise that issue in the trial court. In Township of Fraser v Haney, ___ Mich App
___, ___; ___ NW2d ___ (2018) (Docket No. 337842); slip op 3, the trial court ruled on the
merits of the defendants’ statute of limitation defense after both parties argued in support of their
respective positions. The plaintiff did not argue in the trial court that the defendants failed to
properly assert their statute of limitations defense in their first responsive pleading, and instead,
raised the issue of the defendants’ waiver of their statutory of limitations defense for the first

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time on appeal. Id. This Court held that, “[u]nder these circumstances, . . . the trial court tried
the merits of defendants’ statute of limitations defense with plaintiff’s implied consent.” Id.
Similarly, the trial court decided the merits of defendants’ res judicata defense, and plaintiff
failed to raise the issue of defendants’ waiver of that defense until this appeal. In fact, once
plaintiff’s second state case was dismissed without prejudice under MCR 2.116(C)(6) because of
plaintiff’s pending federal case, all parties—including plaintiff—were put on notice of
defendants’ potential res judicata defense once plaintiff’s federal case was resolved.
Accordingly, plaintiff impliedly consented to defendants raising their res judicata defense, and he
cannot now argue on appeal that defendants waived their res judicata defense. See id.

        Finally, plaintiff argues that defendants were required to “file a responsive pleading
pursuant to [MCR] 2.108(C)(1) 21 days after” defendants’ first dispositive motion was denied.
However, defendants’ first motion for summary disposition, filed July 14, 2017, was never ruled
on, and the trial court permitted defendants to revise their second motion for summary
disposition, filed October 26, 2017, to add their res judicata defense. Therefore, plaintiff’s
argument is erroneous.

                                       III. RES JUDICATA

        To the extent plaintiff argues that the trial court erred in holding that defendants were
entitled to summary disposition under MCR 2.116(C)(7) and the doctrine of res judicata, plaintiff
has abandoned this argument on appeal.

        “An appellant may not merely announce its position and leave it to this Court to discover
and rationalize the basis for its claims, unravel or elaborate its argument, or search for authority
for its position.” Greater Bethesda Healing Springs Ministry v Evangel Builders & Const
Managers, LLC, 282 Mich App 410, 413; 766 NW2d 874 (2009). “Insufficiently briefed issues
are deemed abandoned on appeal.” Id. Additionally, “a party abandons a claim when it fails to
make a meaningful argument in support of its position.” Berger v Berger, 277 Mich App 700,
712; 747 NW2d 336 (2008).

        Plaintiff’s brief on appeal fails to address the trial court’s opinion and order granting
defendants’ revised motion for summary disposition under MCR 2.116(C)(7) and holding that
plaintiff’s claims were barred by res judicata. Instead, plaintiff only argues that defendants
waived their right to assert res judicata as a defense, as discussed above. Plaintiff’s reply brief
on appeal also does not address the trial court’s opinion and order, and instead argues that
defendants failed to comply with the notice requirements of MCR 2.116(B)(2). Plaintiff fails to
cite any legal authority addressing the validity of the trial court’s holding that plaintiff’s claims
were barred by res judicata. Therefore, plaintiff has abandoned that issue on appeal.

       Even if not abandoned, the trial court did not err in granting defendants’ revised second
motion for summary disposition under MCR 2.116(C)(7).

       Res judicata “bars a second, subsequent action when (1) the prior action was decided on
the merits, (2) both actions involve the same parties or their privies, and (3) the matter in the
second case was, or could have been, resolved in the first.” Adair v Michigan, 470 Mich 105,
121; 680 NW2d 386 (2004). Michigan’s approach to the doctrine of res judicata is broad,

                                                -4-
barring “not only claims already litigated, but also every claim arising from the same transaction
that the parties, exercising reasonable diligence, could have raised but did not.” Id. For the
doctrine to apply, the first action must have resulted in a final decision. Richards v Tibaldi, 272
Mich App 522, 531; 726 NW2d 770 (2006). Further, Michigan courts use “a transactional test to
determine if the matter could have been resolved in the first case.” Washington, 478 Mich at
420. “Whether a factual grouping constitutes a ‘transaction’ for purposes of res judicata is to be
determined pragmatically, by considering whether the facts are related in time, space, origin, or
motivation, [and] whether they form a convenient trial unit[.]” Adair, 470 Mich at 125 (citation
omitted, emphasis in original). Also, “[a]s a general rule, res judicata will apply to bar a
subsequent relitigation based upon the same transaction or events, regardless of whether a
subsequent litigation is pursued in a federal or state forum.” Pierson Sand & Gravel, Inc v
Keeler Brass Co, 460 Mich 372, 380; 596 NW2d 153 (1999).

        First, all of plaintiff’s claims in his third state case (this current appeal) were decided on
the merits in his federal case (his prior case). Plaintiff’s federal case, which alleged numerous
constitutional violations and state tort claims against defendants as a result of his October 10,
2014 arrest and incarceration, was dismissed with prejudice pursuant to the federal court’s
judgment of dismissal. Therefore, plaintiff’s prior federal case resulted in a final decision that
was decided on the merits. See Adair, 470 Mich at 121.

        Second, plaintiff’s prior federal case and his third state case involve the same defendants.
See id. Third, plaintiff’s claims, as stated in his third state case, were—and could have been—
resolved in his federal case because all of plaintiff’s claims in both actions arise out of the same
transaction (i.e., his October 10, 2014 arrest and incarceration). See id. at 121, 125. Therefore,
the trial court did not err in granting defendants’ motion for summary disposition under MCR
2.116(C)(7) pursuant to the doctrine of res judicata.

        Plaintiff argues that he was not allowed to bring his claims under the Americans with
Disabilities Act (ADA), 42 USC 12101, et seq., and the Fourteenth Amendment in federal court
because the federal court denied plaintiff’s motion for leave to amend his complaint in his
federal case, and thus, those claims could not have been brought in his prior case. This is
incorrect. The federal court’s order denying plaintiff’s motion for leave to amend his complaint
in his federal case determined that plaintiff’s claims under the ADA and the Fourteenth
Amendment were factually and legally deficient because they failed to “link the particular
alleged wrongdoing to any particular defendant.” The federal court also determined that
allowing plaintiff to further amend his complaint “would likely lead to significant additional
motion practice[,] further delay the resolution of this case,” and would “infringe[ on] the
Defendants’ right to have a clear understanding of the claims being brought against them.”
Therefore, contrary to plaintiff’s argument, plaintiff had an opportunity to bring all his claims
arising out of his October 10, 2014 arrest and incarceration in his prior action in federal court.

         Finally, plaintiff argues that he was not given “a full and fair chance to prepare for
litigation” because defendants did not comply with the notice requirement of MCR 2.116(B)(2),
thereby denying him due process. MCR 2.116(B)(2) states that, “[a] motion under this rule may
be filed at any time consistent with subrule (D) and subrule (G)(1), but the hearing on a motion
brought by a party asserting a claim shall not take place until at least 28 days after the opposing
party was served with the pleading stating the claim.” However, “MCR 2.116(B)(2) does not

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apply to defendants who wish to move for summary disposition, but rather governs plaintiffs
who wish to move for immediate summary disposition upon the filing of a complaint, hence the
words ‘a party asserting a claim’ in MCR 2.116(B)(2).” Yee v Shiawassee Cty Bd of Comm’rs,
251 Mich App 379, 391-392; 651 NW2d 756 (2002) (quotation marks and citation omitted).
Therefore, plaintiff’s argument regarding the notice requirement of MCR 2.116(B)(2) is without
merit.

       Affirmed.



                                                         /s/ Jane M. Beckering
                                                         /s/ Mark J. Cavanagh
                                                         /s/ Amy Ronayne Krause




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