Hughes v. Medical Ancillary Services, Inc.

P. J. Marutiak, J.

(dissenting). On June 1, 1976, plaintiff filed suit in the Municipal Court for the City of Troy alleging that he had accrued some three weeks of vacation time while in the employment of defendant. Plaintiff claimed that he had not taken this vacation time before defendant wrongfully terminated his employment, and, therefore, that he was entitled to its value which plaintiff computed at $1,280.70. On September 7, 1976, a judgment' of no cause of action was rendered against plaintiff in that suit.

Subsequently, on February 9, 1977, plaintiff be*404gan suit in Oakland County Circuit Court alleging that he had an oral contract of employment with defendant and that defendant had wrongfully discharged him. Defendant moved for accelerated judgment in this second suit on the ground that it arose out of the same transaction as the earlier one and that, therefore, plaintiffs second claim merged with his first one and was now barred. The trial court agreed with defendant and granted its motion for accelerated judgment on July 27, 1977. Plaintiff now appeals and asks us to consider whether his claim for wrongful termination of employment was barred by his failure to assert this claim in his initial suit for vacation pay. Contrary to the result reached by the majority, I would hold that plaintiff’s second suit was barred.

Under GCR 1963, 203.1:

"A complaint shall state as a claim every claim either legal or equitable which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject-matter of the action and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Failure by motion or at the pretrial conference to object to improper joinder of claims or to a failure to join claims required to be joined constitutes a waiver of the required joinder rules and the judgment shall not merge more than the claims actually litigated.”

Plaintiff argues that his failure to bring the wrongful termination of employment claim in his initial suit for vacation pay did not preclude him from bringing it later because these two claims arose out of different transactions and do not pertain to the same subject matter. In the alternative, plaintiff argues that defendant’s failue to object to nonjoinder of these claims in the initial *405suit has waived this objection. I disagree with plaintiff on both points.

A plaintiff’s duty under GCR 1963, 203.1 is to join in his complaint every claim that arises out of the transaction or occurrence that is the subject-matter of the action. A plaintiff is not required to join claims which arise out of separate, independent transactions or occurrences. Michigan National Bank v Martin, 19 Mich App 458; 172 NW2d 920 (1969).

The subject matter of plaintiff’s original suit was his employer-employee relationship with defendant and the breach of an oral employment contract that arose by virtue of this relationship. Although plaintiff’s subsequent suit for wrongful termination of employment technically was a different "claim” it, nevertheless, arose out of the same subject matter, i.e., the parties’ employment relationship and the alleged oral employment contract. Therefore, plaintiff should have consolidated his separate claims against defendant in a single suit.

Although GCR 1963, 203.1 required plaintiff to bring both of his claims against defendant in a single proceeding, it also states that a defendant’s failure to object to a plaintiff’s nonjoinder of claims in the first proceeding constitutes a waiver of this objection. Therefore, it must be decided whether defendant has waived the objection that gave rise to the instant appeal. I would hold that it did not.

In Purification Systems, Inc v The Mastan Co, Inc, 40 Mich App 308; 198 NW2d 807 (1972), lv den 388 Mich 751 (1972), another panel of this Court was called upon to determine the relative responsibilities of parties under this court rule in a situation similar to that of the case at bar. There, as here, a plaintiff either inadvertently or *406intentionally violated the first sentence of GCR 1963, 203.1; a defendant, the second. The Mastan Court, in its attempt to reconcile these two parts of the court rule, concluded:

"We have weighed the 'traditional’ view, and its 'harshness’ on plaintiffs, as against the 'vexatious’ and 'costly’ effect of piecemeal adjudication on defendants. We must make a choice.
"We hold that where as here the claim asserted by plaintiff arises out of one transaction or occurence and recovery can be claimed under express or implied contract, and plaintiff chooses to proceed on express contract only, and the cause proceeds to final adjudication against him, his later assertion of a claim under implied contract or quantum meruit recovery is barred by the rule of res judicata.” 40 Mich App 308, 314.

Mastan concerned the circumstance where a plaintiff attempted to recover the same loss under two theories of recovery in two suits. In the case at bar, plaintiff has attempted to recover two losses under the same theory of recovery in separate suits. Nonetheless, both suits by the instant plaintiff arose out of the same "transaction or occurrence”, as that term is used in GCR 1963, 203.1. Therefore, because we are required to make the same choice as was required in Mastan, i.e., to weigh the respective responsibilities of each party under this court rule, I vote that we follow Mas-tan.

I do not believe that the result reached in this dissent would violate either the spirit of the court rule or the spirit of fairness in this case. I would hold only that plaintiff was required to join in a single suit such claims against defendant that arose out of their oral contract of employment. Here, both the claim for unpaid vacation benefits *407and the claim of wrongful termination must be decided by reference to this employment contract. Thus, both claims unquestionably arose out of the same transaction or occurrence. It makes no difference that the separate proceedings initiated below by plaintiff sought different elements of damage. The court rule states that all claims must be brought in one proceeding if they arise out of the "transaction or occurrence that is the subject-matter of the action”. The employer-employee relationship as defined by the oral contract of employment between the parties is the subject matter of both of the actions brought by plaintiff.

I believe, to the extent the majority opinion holds that defendant could have knowingly waived compulsory joinder of these claims in the first proceeding by its failure to object to a claim of plaintiff which defendant could have known only by pure speculation and guess, that the opinion is wrongly decided. A defendant has no duty to write a plaintiffs complaint and can be expected to object to a failure to join claims only where that defendant has knowledge that another claim exists. This is the import of the Court’s decision in Mango v Plymouth Twp Board of Trustees, 33 Mich App 715; 190 NW2d 285 (1971). In Mango, which is cited in the opinion of Judge Holbrook, the plaintiffs’ first suit raised two counts. At a pretrial conference plaintiffs abandoned the second count of their complaint. Defendant did not object to this abandonment. After they lost their first suit plaintiffs brought a second action raising a claim that was similar to the count they had abandoned in the original proceeding. The trial court granted the township’s motion for accelerated judgment in the second proceeding. On appeal, this Court properly reversed the action of the trial court because the township clearly had *408knowledge of the second count in plaintiffs’ original suit and had failed to object to the failure of plaintiffs to pursue this count in the first suit. The failure of the township to object to a claim that it knew existed then was construed correctly by the Court to be a waiver of the requirements of compulsory joinder of claims.

One final comment should be made on this case. The committee appointed to review and consolidate the Michigan court rules has recommended that the second sentence of GCR 1963, 203.1, the waiver sentence, be deleted from this court rule. The committee pointed out that it supported this Court’s position in Mastan, the position adopted in this dissent. See proposed MCR 2.203(A) and Committee Comment thereto.

I respectively dissent from the opinion of the majority. The decision of the trial court should be affirmed.