(dissenting). I respectfully dissent and file my dissenting opinion which is in substantially the same form as when submitted as a proposed majority opinion.
On December 31, 1980, plaintiff-appellant, J. David Boland, started a suit against defendants, C. D. Barnes Associates, Inc., and Construction Development, Inc., seeking damages for the allegedly improper filing and perfection of mechanics’ liens. On November 5, 1981, the trial court granted defendants’ motion for an accelerated judgment on the ground that a consent judgment in a prior action between the parties arising out of the same transaction barred the within suit. Plaintiff appealed as of right.
*573Examination of the record reveals that on May 16, 1974, plaintiff and defendants entered into a contract for the construction of an office complex.1 Previously, plaintiff had arranged for the project to be financed by Heartwell Mortgage Corporation.
Statements of account and lien on the property were asserted and recorded by defendants on December 31, 1974, and January 10, 1975.2 Shortly thereafter, both defendants signed and filed waivers of the liens. On December 17, 1975, defendants filed an amended statement of lien and account on the property in the amount of $78,361.80 and, on December 29, 1975, defendants started suit to foreclose the mechanics’ lien. Named in that action as defendants were 1925 Breton Road, Inc., Heartwell Mortgage Corporation, Burke E. Porter Machinery Company, and J. David Boland, the plaintiff herein. While the plaintiff, Boland, did not file a responsive pleading, an attorney entered an appearance for him on February 3, 1976. On April 7, 1976, the foreclosure action was voluntarily dismissed with prejudice pursuant to stipulation of the parties.
In his complaint in the within matter, plaintiff alleged that (1) the terms and conditions of the financing agreement between the finance company and him were violated by the filing of a mechanics’ lien by any contractor, a fact that defendants knew or should have known, (2) when defendants filed their amended mechanics’ lien, sufficient funds were held by the financing company to satisfy plaintiff’s obligations to them, and (3) as a *574proximate cause of the filing of the lien by defendants and their subsequent refusal to release the lien, plaintiff defaulted in his financing agreement with Heartwell Mortgage Corporation.3 Not before us on this appeal is any question as to whether the complaint in the instant case states a cause of action for damages.
In their motion for accelerated judgment, defendants contended that the issues raised by plaintiff were either litigated or could have been litigated in the 1976 foreclosure action and that the voluntary dismissal with prejudice acted as a bar to any subsequent action based on the same set of facts and issues between the parties. Essentially, defendants claimed that plaintiffs 1980 complaint was predicated upon facts which should have been raised as defenses to the 1976 foreclosure action.
On appeal, plaintiff maintains that the trial court erred in granting defendants’ motion for accelerated judgment because the matters raised in his complaint were not the same as those adjudicated in the foreclosure action. He asserts that the original action was one in which defendants sought to enforce their mechanics’ lien, while the matter at bar involves a suit for damages caused by the improper filing of a mechanics’ lien on the property. Furthermore, plaintiff claims that under GCR 1963, 203.2, he was not obligated in the foreclosure action to assert any counterclaims or affirmative defenses that he may have had against defendants._
*575Defendants argue that since dismissal with prejudice operates as an adjudication on the merits, and that the claims made by plaintiff were necessarily decided in the resolution of the 1976 foreclosure case, plaintiff’s 1980 action is barred under the doctrine of res judicata.
The crux of this appeal is whether a defendant, in an action which is dismissed with prejudice pursuant to a stipulation of the parties, may file a subsequent action against the plaintiff in the original suit where the claims in the subsequent case relate to issues and facts of the first case and could have been asserted as affirmative defenses or a counterclaim in the original suit. Thus, this case presents another troublesome issue involving possible application of res judicata and/or GCR 1963, 203.
GCR 1963, 203.1 is a compulsory joinder rule requiring a complaint to state as a claim every claim arising out of the transaction that is the subject matter of the action. However, GCR 1963, 203.2 is a permissive joinder rule permitting a pleader to join as many independent or alternative claims as he may have against an opposing party.4
The federal rules of civil procedure differ from Michigan’s in that they provide that any claim that a defendant has against a plaintiff which arises out of the transaction or occurrence that is the subject matter of the plaintiff’s claim must be set forth in the defendant’s responsive pleading or be forever barred.5
In Rogers v Colonial Federal Savings & Loan *576Ass’n of Grosse Pointe Woods,6 (which was a 4 to 3 decision) the Supreme Court held that a voluntary dismissal with prejudice of a prior suit involving essentially contract and fraud issues involving a mortgage did not preclude a subsequent suit between some of the same parties based on alleged violation of the federal Truth-in-Lending Act. The Supreme Court reasoned that unless the defendant objected in the first suit to the plaintiff’s failure to join the federal Truth-in-Lending claim, under GCR 1963, 203.1, defendant would be held to have waived the use of the defense in a subsequent suit. But, Rogers did not involve a possible counterclaim and, thus, is not necessarily decisive of the within issue.
In Bank of the Commonwealth v Hulette,7 we said:
"Michigan provides for permissive joinder of counterclaims. GCR 1963, 203.2.”
Of similar import is our statement in Karakas v Dost:8
"Because a counterclaim under DCR 203.2 is permissive rather than compulsory, and plaintiffs did not raise their equitable mortgage claim in the district court proceedings by either defense or counterclaim, plaintiffs are not barred from now litigating their claim.” (Footnote omitted.)
Consistent with these decisions, I would hold that, under GCR 1963, 203.2, plaintiff had in the first suit an option of raising his claim for dam*577ages for improper perfecting of a mechanics’ lien as an affirmative defense or asserting that claim in a separate suit.
Having concluded that, under the permissive joinder rule, GCR 1963, 203.2, plaintiff was permitted to assert his claims in a separate, independent action, the question remains whether, in the matter at bar, the doctrine of res judicata is available to defendants as a defense.
In Ward v DAIIE9 the principle of res judicata was discussed as follows:
"The doctrine of res judicata provides that where two parties have fully litigated a particular claim and a final judgment has resulted, that claim may not be relitigated by either party. In Tucker v Rohrback, the Supreme Court delineated three prerequisites for a prior judgment to constitute a bar in a subsequent action: (1) the former action must have been decided on the merits; (2) the same matter contested in the second action must have been decided in the first; and (3) the two actions must be between the same parties or privies.” (Footnotes omitted.)
In deciding whether these three prerequisites are met, I note that the first case was not tried on the merits. However, the parties agreed to dismiss the case with prejudice. In Brownridge v Michigan Mutual Ins Co,10 we said:
"A voluntary dismissal with prejudice is a final judgment on the merits for res judicata purposes.”
Consistent with Brownridge> by virtue of the parties’ stipulation, the first case is deemed to have *578been decided on the merits, and the first prerequisite of res judicata is met.
Second, the issues raised in the second case are issues which could have been raised in a counterclaim in the first case. Third, the same parties appear in both cases, although plaintiff in the second case was a defendant in the first case.
Thus, the essential prerequisites for application of res judicata are present. But, while these issues could have been raised in a counterclaim in the first case, plaintiff in the within case was not required to raise them in such a counterclaim. As indicated, GCR 1963, 203.2 is a permissive joinder rule. Plaintiff had an option of asserting his claim in a separate action, and that is what he has done.
Under these circumstances, I do not believe that in the instant case res judicata was intended to be available to defendants. To so hold would largely nullify the effect of GCR 1963, 203.2. Since the first case was not tried on the merits, neither is the within case one for application of the doctrine of collateral estoppel, which was the basis for decision in Sahn v Brisson.11
The first case was dismissed with prejudice by stipulation of the parties. The actual stipulation, which was signed by the attorneys, provided:
"Now comes the above named parties by their respective attorneys and hereby stipulate to the dismissal of the above matter with prejudice and without cost to any party for the reason that the dispute has been amicably settled between the parties.”
The record before us does not indicate that plaintiff executed a release to defendants of any *579claims he may have had against defendants. However, the words "that the dispute has been amicably settled” appear to be possibly ambiguous. My disposition is not intended to preclude the parties from attempting to establish the meaning of the stipulation.
In summary, I would reverse the trial court’s order awarding accelerated judgment to defendants and remand this case to the trial court.
The construction contract was entered into between plaintiff and defendant Construction Development, Inc., with the actual construction to be provided through defendant C. D. Barnes Associates, Inc.
MCL 570.5; MSA 26.285, under which this lien was presumably asserted, was repealed and replaced by MCL 570.1108; MSA 26.316(108), effective January 1, 1982.
To this end, plaintiff alleged in his complaint that:
"16. As a direct and proximate result of defendants having filed their respective mechanics’ liens and having failed and refused to release same, default occurred in the aforementioned financing with Heartwell Mortgage Corporation, preventing disbursal of the funds to defendants and subjecting plaintiff to additional interest charges, fees, costs, foreclosures, loss of rental income, reduced fair market value on the premises, lost profits on resale of the property, loss or reduced value of stock ownership, and other consequential damages.”
Bank of the Commonwealth v Hulette, 82 Mich App 442; 266 NW2d 841 (1978).
F R Civ P 13(a); Dragor Shipping Corp v Union Tank Car Co, 378 F2d 241 (CA 9, 1967); Wright, Law of Federal Courts (2d ed), § 79, pp 344-346.
405 Mich 607; 275 NW2d 499 (1979).
Hulette, supra, p 444.
67 Mich App 161, 173; 240 NW2d 743 (1976), lv den 396 Mich 869 (1976).
115 Mich App 30, 37; 320 NW2d 280 (1982). Also see Annabel v C J Link Lumber Co, 115 Mich App 116, 123; 320 NW2d 64 (1982).
115 Mich App 745, 748; 321 NW2d 798 (1982). Also see Anno: Consent judgment as res judicata, 2 ALR2d 512, 520 (1948).
43 Mich App 666, 671; 204 NW2d 692 (1972).