                          STATE OF MICHIGAN

                           COURT OF APPEALS



LIEUTENANT JOE L. TUCKER, JR.,                                     UNPUBLISHED
                                                                   April 12, 2018
               Plaintiff-Appellant,

v                                                                  No. 336804
                                                                   Wayne Circuit Court
DETROIT POLICE DEPARTMENT CHIEF OF                                 LC No. 16-011874-CD
POLICE JAMES L. CRAIG, ASSISTANT CHIEF
STEPHEN DOLUNT, DEPUTY CHIEF
CHARLES FITZGERALD, LIEUTENANT
KELLY FITZGERALD, and CITY OF DETROIT,

       Defendants-Appellees.



Before: SAWYER, P.J., and HOEKSTRA and MURRAY, JJ.

PER CURIAM.

        Plaintiff appeals as of right the trial court’s order granting defendants’ motion for
summary disposition and awarding costs and fees to defendants based on the conclusion that
plaintiff’s action was frivolous. Because defendants were entitled to summary disposition under
MCR 2.116(C)(6) (prior proceeding between the same parties involving the same claim), we
affirm the trial court’s grant of summary disposition. However, because the trial court clearly
erred by concluding that plaintiff’s lawsuit was frivolous, we reverse the award of costs and fees
to defendants.

        Plaintiff is a Detroit police officer. Plaintiff alleges that in 2011, defendant Kelly
Fitzgerald, a police lieutenant, falsely accused him of submitting fraudulent overtime reports.
Plaintiff also claims that in 2012 and 2013 he worked under the command of Kelly’s husband,
Deputy Chief Charles Fitzgerald, who accused plaintiff of being a thief. Later, in 2014, while
again under Charles’s command, plaintiff was investigated on allegations that he falsified names
and signatures on court appearance notices and submitted them for compensation. According to
plaintiff, he was cleared of any wrongdoing but nevertheless demoted and subjected to other
adverse employment action as a result of these investigations. In December 2014, plaintiff filed
a complaint with the United States Equal Employment Opportunity Commission (EEOC),
alleging discrimination based on race.

       In April 2015, plaintiff filed a lawsuit against defendants alleging discrimination based
on race in violation of the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq., under
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theories of both disparate treatment and harassment creating a hostile work environment.
Plaintiff also alleged that defendants retaliated against him after their allegations “were proven to
be ‘unfounded’.” Defendants moved for summary disposition pursuant to MCR 2.116(C)(10).
The trial court granted summary disposition with respect to the hostile work environment and
retaliation claims, but denied the motion as to the race discrimination claim based on disparate
treatment. In 2016, plaintiff moved to amend his complaint to add additional claims of
discrimination and retaliation based on events that took place after he filed the 2015 lawsuit. In
September 2016, the trial court denied the motion.

        Later in September 2016, plaintiff filed the instant action against defendants, the same
parties to the 2015 lawsuit. Paragraphs 1-48 of plaintiff’s 2016 complaint were virtually
identical to paragraphs 1-47 of plaintiff’s 2015 complaint. Plaintiff further alleged, however,
that defendants continued to retaliate against him for filing the EEOC complaint by charging him
with multiple departmental violations in October 2015. Plaintiff also alleged that in March 2016,
he was recommended for promotion, but he was not promoted and less qualified applicants were
promoted instead. Additionally, plaintiff asserted that, in 2016, defendants failed to investigate
claims that another police officer had submitted a false overtime request. According to plaintiff,
this failure to investigate compared to previous investigations into plaintiff’s conduct was
evidence of disparate treatment based on plaintiff’s race.

        Defendants moved for summary disposition of plaintiff’s 2016 lawsuit. In pertinent part,
they argued that the 2016 lawsuit was precluded because the 2015 lawsuit involved the same
parties and the same claims and was still pending. Defendants also requested sanctions on the
ground that the 2016 lawsuit was frivolous. The trial court granted defendants’ motion under
MCR 2.116(C)(6), (C)(7), and (C)(8). The court also concluded that plaintiff’s 2016 lawsuit was
frivolous, and the court awarded defendants attorney fees in the amount of $4,272, and costs in
the amount of $51.50. Plaintiff now appeals as of right.

                                  I. SUMMARY DISPOSITION

         On appeal, plaintiff argues that the trial court erred by granting defendants’ motion for
summary disposition. Specifically, plaintiff maintains that the 2015 lawsuit should not affect his
ability to bring the 2016 lawsuit because the 2016 lawsuit involved allegations of new facts that
occurred after the filing of the 2015 lawsuit, meaning that these new facts could not have been
included in his 2015 complaint. We disagree and hold that the trial court properly granted
defendants’ motion for summary disposition under MCR 2.116(C)(6).1



1
  In granting summary disposition, the trial court also relied on MCR 2.116(C)(7) and (C)(8). To
the extent the trial court cited (C)(7) and concluded that res judicata and/or collateral estoppel
applied, we disagree with the trial court’s conclusions. The 2015 case was still pending,
meaning that there was no final judgment and neither res judicata nor collateral estoppel applied.
See TBCI, PC v State Farm Mut Auto Ins Co, 289 Mich App 39, 43; 795 NW2d 229 (2010)
(“For [res judicata] to apply, the judgment in the first case must have been final.”); Leahy v
Orion Twp, 269 Mich App 527, 530; 711 NW2d 438 (2006) (“Collateral estoppel bars


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       We review de novo a trial court’s decision to grant a motion for summary disposition.
Bev Smith, Inc v Atwell, 301 Mich App 670, 680; 836 NW2d 872 (2013). MCR 2.116(C)(6)
provides that summary disposition may be granted where “[a]nother action has been initiated
between the same parties involving the same claim.” “MCR 2.116(C)(6) is a codification of the
former plea of abatement by prior action.” Fast Air, Inc v Knight, 235 Mich App 541, 545; 599
NW2d 489 (1999). The purpose of the rule is as follows:

       The courts quite uniformly agree that parties may not be harassed by new suits
       brought by the same plaintiff involving the same questions as those in pending
       litigation. If this were not so repeated suits involving useless expenditures of
       money and energy could be daily launched by a litigious plaintiff involving one
       and the same matter. Courts will not lend their aid to proceedings of such a
       character, and the holdings are quite uniform on this subject. [Id. at 546
       (quotation marks and citation omitted) (emphasis in Fast Air, Inc).]

        To grant summary disposition under MCR 2.116(C)(6), another action between the same
parties involving “the same claim” must be pending at the time of the decision on the motion for
summary disposition. Id. at 549. However, MCR 2.116(C)(6) does not require that “all the
issues be identical.” Id. at 545 n 1. See also JD Candler Roofing Co, Inc v Dickson, 149 Mich
App 593, 598; 386 NW2d 605 (1986). Rather, “[t]he two suits only have to be based on the
same or substantially the same cause of action.” Fast Air, Inc, 235 Mich App at 545 n 1
(quotation marks and citation omitted). See also Ross v Onyx Oil & Gas Corp, 128 Mich App
660, 666; 341 NW2d 783 (1983). “The ultimate inquiry is whether a judgment in the first action,
if one is rendered, will be conclusive on the parties with respect to the matters involved in the
second.” 1 Am Jur 2d Abatement, Survival, and Revival § 28. In other words, caselaw
addressing whether actions arise from the same claim for purposes of applying res judicata apply
by analogy to determinations of whether a second action involves the same claim as a pending
action under MCR 2.116(C)(6).

       In this case, when the motion for summary disposition relating to the 2016 lawsuit was
decided, the 2015 lawsuit remained pending. Further, the lawsuits involved the same parties and
the same, or substantially the same, cause of action. That is, both cases involved claims of race
discrimination and retaliation arising out of the same transaction.2 See 1 Am Jur 2d Abatement,
Survival, and Revival § 28 (“The crucial inquiry is whether the two actions arise out of the same



relitigation of an issue in a new action arising between the same parties or their privies when the
earlier proceeding resulted in a valid final judgment and the issue in question was actually and
necessarily determined in that prior proceeding.”). With regard to MCR 2.116(C)(8), the court
did not explain why summary disposition was appropriate under this subrule. However, even if
the trial court erred by relying on (C)(7) and (C)(8), plaintiff would not be entitled to relief
because summary disposition was properly granted under MCR 2.116(C)(6).
2
  Indeed, in his 2016 complaint, plaintiff acknowledged that “[t]here is another action which
arises out of the same transaction and occurrence as stated herein, which is presently
pending. . . .”


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transaction or occurrence.”); Adair v State, 470 Mich 105, 125; 680 NW2d 386 (2004)
(“Whether a factual grouping constitutes a transaction . . . 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.”) (emphasis and alteration in Adair). Because the 2015 lawsuit
remained pending, and it involved the same parties and the same claims as the 2016 lawsuit,
defendants were entitled to summary disposition under MCR 2.116(C)(6).

        In contrast to this conclusion, plaintiff notes that his 2016 lawsuit involved allegations
relating to events that occurred after he filed his 2015 lawsuit. Plaintiff contends that these
additional allegations could not have been included in his initial complaint in 2015.3 Thus,
according to plaintiff, the 2015 lawsuit should not prevent him from filing his 2016 lawsuit.
However, plaintiff’s argument ignores the fact that MCR 2.118(E) provides for supplemental
pleadings as follows:

       On motion of a party the court may, on reasonable notice and on just terms,
       permit the party to serve a supplemental pleading to state transactions or events
       that have happened since the date of the pleading sought to be supplemented,
       whether or not the original pleading is defective in its statement of a claim for
       relief or a defense. The court may order the adverse party to plead, specifying the
       time allowed for pleading.

Indeed, “under Michigan law, a plaintiff has a duty to supplement her complaint with related
factual allegations that develop ‘during the pendency of’ her state suit or have them barred by res
judicata.” Buck v Thomas M Cooley Law Sch, 597 F3d 812, 817 (CA 6 2010), quoting Adair,
470 Mich at 125 (applying res judicata to bar subsequent claims that could have been asserted
with due diligence “during the pendency” of a previous case). By the same reasoning, when
deciding whether to dismiss a lawsuit based on another pending suit involving the same parties
and the same claims, “it is not required that the precise issues be included in the first suit before
the second suit is filed provided that the claims in the first suit can be amended to bring in all of
the necessary and proper claims.” 1 Am Jur 2d Abatement, Survival, and Revival § 28. In other
words, when there is a pending lawsuit involving the same parties and the same claims, and new
facts and allegations arise from the same transaction that can be raised with due diligence in the




3
  Insofar as plaintiff’s 2016 lawsuit involved a restatement of many of the allegations from the
2015 complaint, plaintiff contends that he was permitted to rely on the factual allegations alleged
in his 2015 complaint in support of his 2016 lawsuit as set forth in Campbell v Human Servs
Dep’t, 286 Mich App 230, 238; 780 NW2d 586 (2009). In Campbell, this Court held that a
plaintiff cannot recover for an injury as a result of events occurring outside a limitations period,
but that a plaintiff may rely on events outside the limitations period as background evidence. Id.
However, that decision has no applicability to this case. Any permissible use of the allegations
in the 2015 complaint as background evidence for the 2016 lawsuit has no effect on the validity
of the dismissal of plaintiff’s 2016 lawsuit on the ground that it involved the same claims
between the same parties as raised in the 2015 lawsuit.


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first lawsuit during the pendency of that case, a second lawsuit cannot be maintained and
summary disposition as to the second lawsuit is proper under MCR 2.116(C)(6).

        Here, the 2015 case remained pending and with due diligence, plaintiff could have raised
his claims relating to events occurring after he filed his 2015 complaint in the 2015 lawsuit. See
Adair, 470 Mich at 125. Indeed, plaintiff followed the correct procedure when he filed a motion
to amend his 2015 complaint to add the new allegations that he later included in his 2016
complaint. We note that his request to amend his 2015 complaint was denied. But, it does not
follow that this denial opened the door to a new lawsuit involving the same parties and the same
claims. Instead, if the trial court erred by denying plaintiff’s motion to amend his 2015
complaint, plaintiff’s recourse was to seek review of the trial court’s decision. See Buck, 597
F3d at 818. Ultimately, plaintiff’s 2016 lawsuit was improper because the 2015 lawsuit
involving the same parties and the same claims remained pending. Accordingly, defendants
were entitled to summary disposition under MCR 2.116(C)(6).

                                    II. FRIVOLOUS CLAIM

        Finally, plaintiff argues that the trial court erred in awarding defendants sanctions on the
ground that his 2016 complaint was frivolous. We review for clear error the trial court’s
decision “to impose sanctions on the ground that an action was frivolous within the meaning of
MCR 2.625(A)(2) and MCL 600.2591.” Ladd v Motor City Plastics Co, 303 Mich App 83, 103;
842 NW2d 388 (2013). MCR 2.625(A)(2) provides that “if the court finds on motion of a party
that an action or defense was frivolous, costs shall be awarded as provided by MCL 600.2591.”
In this case, we have reviewed the lower court record and, although defendants were entitled to
summary disposition, we see nothing in the record to support the trial court’s conclusion that
plaintiff’s lawsuit was frivolous. Consequently, the trial court clearly erred by awarding costs
and fees to defendants. We therefore reverse the award of costs and fees.

       Affirmed in part and reversed in part.



                                                             /s/ David H. Sawyer
                                                             /s/ Joel P. Hoekstra
                                                             /s/ Christopher M. Murray




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