Res judicata; King v Munro; Continuing wrong; Effect of the merits finding in the prior case

Holding that plaintiff-Merle’s claims in this action were barred by res judicata, the court affirmed summary disposition for defendant-Hagopian. The parties are neighbors with abutting properties. A dispute arose over maintenance of trees on Hagopian’s side of the property line. In a prior case, the district court ruled in Hagopian’s favor and dismissed Merle’s counterclaim with prejudice. In a short opinion attached to its order, it stated “that the order ‘fully and completely resolve[d] the matter between the parties pertaining to trees’ on Hagopian’s property, and that, if any of Hagopian’s trees fell and caused damage to Merle’s property, the damages were Merle’s sole responsibility.” Merle later filed this action in circuit court. He argued on appeal that res judicata did “not apply because his claims involve a continuing wrong.” The court noted that the key issue here was what the “continuing tortious acts” were. The district court expressly rejected his claim “that Hagopian was negligent based on [his] failure to maintain his trees. Indeed, [it] stated that, if one of Hagopian’s trees were to cause damage to Merle’s property, Merle was fully responsible for the damage. That ruling necessarily rested on the district court’s determination that Merle had failed to establish a prima facie case of negligence.” The conduct at issue here was “the exact same conduct that the district court already determined was not tortious. Merle cannot cultivate a new claim from the same allegedly negligent act. This finding on the merits was controlling[.]”