If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

THERESA DELINCK,

Plaintiff/Counterdefendant-Appellant,

UNPUBLISHED

November 10, 2022

V No. 358094

Hillsdale Circuit Court

JOSEPH DEFINA and DANIELLE DEFINA, LC No. 21-000217-CZ

Defendants/CounterplaintiffsAppellees.

Before: GARRETT, P.J., and O’BRIEN and REDFORD, JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court’s order dismissing her complaint on the basis of 

the doctrine of res judicata. We affirm.

This case arises from a dispute between family members. Defendants are plaintiff’s 

daughter and son-in-law. In 2016, plaintiff provided a no-interest mortgage loan to defendants,

who used the loan to purchase the subject property. In exchange for the loan, defendants granted 

plaintiff a life estate in the property. The parties, along with defendants’ children, lived together 

at the subject property until relations between the parties soured and plaintiff left.

In May 2018, plaintiff sued defendants, raising multiple claims related to the property and 

the parties’ contractual relations, including a claim for partition of the property. Before trial, 

however, plaintiff voluntarily dismissed all of her claims except one breach-of-contract claim. On 

April 11, 2019, a jury returned a verdict finding that the parties had a contract and that defendants 

had granted plaintiff a life estate in the subject property, but that defendants did not breach the 

contract. Plaintiff then moved back into the house with her new husband.

In May 2019, defendants sued plaintiff raising various claims, and plaintiff counterclaimed 

asking, among other things, that the court partition the property. Both parties moved for summary 

disposition, arguing that the other party’s claims were barred by the doctrine of res judicata. The 

trial court agreed with both parties and accordingly dismissed all claims as being barred by res 

judicata. This Court affirmed that ruling on appeal. See Defina v Delinck, unpublished per curiam 

opinion of the Court of Appeals, issued January 21, 2021 (Docket No. 351610), p 2-4.
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Afterwards, plaintiff filed the instant complaint, again asking the trial court to partition the 

property. Plaintiff alleged that this new complaint was based on “new facts”—plaintiff alleged 

that, after the orders in the previous case were entered, plaintiff made known her intentions of 

using her life estate, but defendants denied her use of the property. Defendants moved to dismiss

this new partition claim on the basis of res judicata. The trial court agreed and granted defendants’ 

motion on July 19, 2021. This appeal followed.

Plaintiff argues that the trial court erred in barring her complaint for partition on the basis 

of res judicata because her current partition action was a new one based on facts that occurred after 

the parties’ previous case concluded. We disagree.

“We review de novo both a trial court’s decision on a motion for summary disposition and 

its application of the legal doctrine of res judicata.” Garett v Washington, 314 Mich App 436, 

440-441; 886 NW2d 762 (2016).

“The purpose of the doctrine of res judicata is to prevent multiple suits litigating the same 

cause of action.” King v Munro, 329 Mich App 594, 600-601; 944 NW2d 198 (2019). “Under the 

doctrine of res judicata, a final judgment rendered by a court of competent jurisdiction on the 

merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an 

absolute bar to a subsequent action involving the same claim, demand or cause of action.” Wayne 

Co v Detroit, 233 Mich App 275, 277; 590 NW2d 619 (1998). The doctrine applies when three 

elements are met: “(1) the first action was decided on the merits, (2) the matter contested in the 

second action was or could have been resolved in the first, and (3) both actions involve the same 

parties or their privies.” Verbrugghe v Select Specialty Hosp-Macomb Co, Inc, 279 Mich App 

741, 744; 760 NW2d 583 (2008) (quotation marks and citation omitted).

Plaintiff does not dispute that this action involves the same parties as the 2018 action, nor 

does she dispute that the 2018 action was decided on the merits. Instead, she contends that this 

“partition action is a new action based upon new facts that have not been previously litigated”—

i.e., she contests the second element.

When determining whether the second element has been satisfied—“whether the matter in 

the second case was or could have been resolved in the first”—courts apply a broad “transactional 

test.” Adair v State, 470 Mich 105, 123-125; 680 NW2d 386 (2004). The “determinative question 

is whether the claims in the instant case arose as part of the same transaction” as the claims in the 

earlier case. Id. at 125. “Whether a factual grouping constitutes ‘a transaction’ for purposes of res 

judicata 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.” Id. When the new 

action involves facts and events separate from those involved in the previous suit, the doctrine 

does not apply. Ditmore v Michalik, 244 Mich App 569, 577; 625 NW2d 462 (2001).

We believe there can be no serious dispute that plaintiff’s 2021 complaint requesting 

partition is the same as her 2018 claim for partition and otherwise could have been resolved in her

2018 action. Plaintiff’s current claim, like her entire 2018 action, stems from the parties’ 

contractual relations with respect to the property. Contrary to plaintiff’s assertions, her new 

complaint for partition does not allege any “new facts.” It is nearly identical to her 2019 

counterclaim for partition, which was dismissed as being barred by res judicata because that 2019 
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counterclaim could have been resolved in plaintiff’s 2018 action. Plaintiff’s 2019 counterclaim 

for partition alleged:

9. This court has jurisdiction to hear this matter pursuant to MCL 600.3301

10. Plaintiff has a right to bring this action pursuant to MCL 600.3304.

11. The property at issue is capable of geographic partition; it has separate 

living quarters with kitchenette and bathroom in the lowest level of the 

home, and an equal number of garage bays to tenants in common having a 

possessory interest in the home (three).

12. This court has authorization under its equitable powers to order a partition 

of the property pursuant to MCL 600.3301, in an equitable manner pursuant 

to MCL 600.3336, and in accordance with procedure pursuant to MCR 

3.401 and 3.402.

Her current claim alleges:

13. MCL 600.3304 states: “All persons holding lands as joint tenants or as 

tenants in common may have those lands partitioned.” MCL 600.3301 

states that such actions are “equitable in nature.”

14. MCL 600.3308 states: “Any person who has an estate in possession in the 

lands of which partition is sought may maintain a claim for partition of those 

lands . . .”

15. The property at issue has two separate living quarters, each with a bathroom 

and kitchen. The property has three garage bays. As such, it is Plaintiff’s 

position that the property can be physically divided between the parties, 

with the [defendants] occupying the main living area of the home, and 

[plaintiff] occupying the basement living quarters. The [defendants] would 

have two garage bays, while [plaintiff] would have one.

16. Should this court determine that a physical partition is not reasonable or 

possible under the circumstances, this court has the power to order the 

property be sold and proceeds equitably divided, pursuant to MCL 

600.3332.

Thus, to summarize, plaintiff’s initial action and the instant case involve the same parties; 

the initial action was decided on the merits; plaintiff’s initial claim for partition was voluntarily 

dismissed by plaintiff but could have been decided and resolved during that initial litigation1; 

 

1 On appeal, plaintiff at one point contends that because she voluntarily dismissed her first partition 

claim without prejudice, she can bring a partition claim now. This ignores that a claim need not 
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plaintiff later brought a second claim for partition that was dismissed by the trial court on the basis 

of res judicata, and that ruling was affirmed on appeal; and her current claim for partition mirrors 

her claim for partition that was dismissed on the basis of res judicata. The claim raised in this

action for partition is not new. Like her already-dismissed second claim for partition, plaintiff’s 

current claim arises from the parties’ contractual relations with respect to the property, and thus 

the same transactional foundation existed in both actions. See Adair, 470 Mich 124-125. 

Accordingly, the trial court properly concluded that plaintiff’s current claim for partition is barred 

by the doctrine of res judicata.

Affirmed.

/s/ Kristina Robinson Garrett

/s/ Colleen A. O’Brien

/s/ James Robert Redford

 

be actually litigated in the first action to be barred by res judicata—it is enough if the claim “could 

have been resolved in the first” action. Verbrugghe, 279 Mich App at 744. See also Adair, 470 

Mich at 121 (“This Court has taken a broad approach to the doctrine of res judicata, holding that 

it bars not only claims already litigated, but also every claim arising from the same transaction that 

the parties, exercising reasonable diligence, could have raised but did not.”).