Appellate jurisdiction & service of claim of appeal; MCR 7.204(B)(1) & (F)(2); Michigan Employment Sec Comm’n v Wayne State Univ; Res judicata; Adair v State; Prior dismissal “without prejudice” & effect under MCR 2.504(B)(3); Washington v Sinai Hosp of Greater Detroit

Holding that res judicata did not bar this third premises-liability action because the prior dismissal was expressly “without prejudice,” the court vacated summary disposition for defendant and remanded for further proceedings. Plaintiff-estate alleged the victim slipped on feces in a shared hospital bathroom while an inpatient. After a first suit was dismissed without prejudice for lack of service and a second suit was dismissed without prejudice when the trial court characterized the claims as medical malpractice, plaintiff filed this premises-liability complaint, which the trial court dismissed based on res judicata. On appeal, the court first rejected defendant’s jurisdictional argument that service of the claim of appeal was untimely. The court explained that timely filing under MCR 7.204(B)(1) is jurisdictional but the service requirement in MCR 7.204(F)(2) is not. Under earlier authority “the service requirement was non-jurisdictional[,]” so the court retained jurisdiction to decide the appeal. Turning to res judicata, the court held the first element was not met because the second case’s dismissal order expressly stated “without prejudice.” Under MCR 2.504(B)(3) and Washington, in “‘the absence of any language in an order of dismissal limiting the scope of the merits decided, the court rule plainly provides that the order operates as an adjudication of the entire merits of a plaintiff’s claim,’” but inclusion of “without prejudice” specifies otherwise. As such, the earlier dismissal “did not constitute an adjudication ‘on the merits,’” and could not bar this suit under Adair. Finally, because the trial court ruled solely based on res judicata, the court declined to affirm on alternative grounds not addressed below and remanded so the trial court can consider any remaining defenses, noting it is “more appropriate for the trial court to address additional arguments in the first instance on remand when the trial court committed error based on a misapplication of law.”