Theresita Dietrich v. Richard K. Stephens, individually

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0745n.06
Filed: October 18, 2007
No. 06-2377
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
THERESITA DIETRICH,
Plaintiff-Appellant,
v.
RICHARD K. STEPHENS, individually and
as an incorporator of 718 NOTRE DAME
MTG, LLC, and 718 NOTRE DAME MTG,
LLC,
Defendants-Appellees.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN
Before: NORRIS, GIBBONS, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. Although a prior state court suit for breach of obligations under
a promissory note had been settled, the same plaintiff later brought this suit in federal court for
failure to pay amounts that did not come due until after the settlement agreement. The district court
concluded that the doctrine of res judicata precluded plaintiff from litigating the claims in federal
court. Because the claims raised by plaintiff in federal court are not the same, and do not arise from
the same transaction, as the claims previously litigated in state court, we reverse and remand for
further proceedings.

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No. 06-2377
Dietrich v. Stephens
Prior to execution of the note of June 4, 2004, Stephens and the Trust executed a note on1
May 4, 2004. This note was allegedly destroyed and replaced by the note of June 4, 2004 when
Stephens encountered problems related to securing a second lien on the property. Although Dietrich
originally asserted claims under both notes in her Complaint and in her Brief in Opposition to
Defendant’s Counter-Motion for Summary Judgment, in her brief she refers only to the note of June
4, 2004. We therefore do not address any previous claims that might have been raised under the note
of May 4, 2004.
According to Stephens’ deposition, the property closed on July 26, 2004. Thus, by the terms2
of the note, the first interest-only monthly payment was due on August 25, 2004, to be followed by
eleven more interest-only monthly payments, with the balance coming due in August 2005. Dietrich
filed the state action prior to November 2004, before the balance was due.
That MTG is obligated under the note and settlement agreement is not contested. We do not3
address here whether Stephens may be personally liable under the note and settlement agreement.
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I.
Plaintiff Theresita Dietrich is the successor-in-interest to the Dietrich Family Irrevocable
Trust (“Trust”). On May 4, 2004, the Trust agreed to sell commercial property located at 718 Notre
Dame Avenue in Grosse Pointe, Michigan, to Richard K. Stephens. To facilitate the sale, the Trust,
on June 4, 2004, executed a promissory note with 718 Notre Dame MTG, LLC (“MTG”), an entity
incorporated by Stephens. By the terms of the note, MTG agreed to pay the Trust a series of twelve1
consecutive interest-only monthly payments, with the balance of the note ($265,000) coming due
thirty days after tender of the last interest payment. Although MTG incurred liability on the note,2 3
a separate entity also incorporated by Stephens, 718 Notre Dame, LLC (“LLC”), obtained title to the
property. Stephens is the sole member of both MTG and LLC.

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No. 06-2377
Dietrich v. Stephens
The district court did not have a signed settlement agreement before it at the time of its4
decision. However, an unsigned copy was submitted as Exhibit C of Defendant’s Cross-Motion for
Summary Judgment. In her Brief in Opposition to Defendant’s Counter Motion for Summary
Judgment, Dietrich originally denied settlement of the state action. However, she concedes
settlement in her appellate brief.
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After a dispute arose as to MTG’s payment obligations under the note, the Trust brought suit
in Wayne County Circuit Court. The Wayne County court dismissed that action with prejudice
pursuant to a settlement agreement signed in November 2004, and entered an order of dismissal on
February 18, 2005. Under the settlement agreement, MTG agreed to “bring current” payments that4
were past due under the note and to continue making payments pursuant to the terms of the note.
On May 27, 2005, Dietrich filed the instant action against MTG and Stephens in the United States
District Court for the Eastern District of Michigan, again asserting claims related to default on
payments under the note. Dietrich asserted that “defendants have refused to make any payments
since January 2005 despite repeated requests.” On September 20, 2005, MTG and Stephens filed
a Cross-Motion for Summary Judgment, asserting that Dietrich’s federal suit seeks to litigate claims
already litigated in the state court action. On October 10, 2006, the district court granted this motion,
concluding that the doctrine of res judicata bars Dietrich’s claims.
II.
Contrary to the conclusion of the district court, res judicata does not bar Dietrich’s claims.
Although it is true that the facts that gave rise to the Trust’s state court action originated in the same
promissory note that Dietrich now seeks to enforce in federal court, Dietrich’s federal court claims

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No. 06-2377
Dietrich v. Stephens
MTG and Stephens argue in their brief that Dietrich’s assertion that the note does not5
contain an acceleration clause is contradicted by the following statement in her Complaint: “Plaintiff
has accelerated the promissory note because of failure of payment.” Dietrich also stated in her
Complaint that “because Defendants are in default, Plaintiff is entitled to a Judgment accelerating
the amounts due under the notes.” Despite Dietrich’s use of this language, the note does not contain
a clause allowing the Trust to recover the full balance of the note upon default. Rather, the note
grants the Trust the right to keep all payments made to date and to take possession of the collateral
backing the note.
The term “res judicata” is often used to refer to both issue preclusion and claim preclusion.6
See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984). We use the term here
to refer only to claim preclusion.
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arise from a set of facts that were not yet in existence at the time of the state court
settlement—namely, MTG’s post-settlement defaults. In the state action, the Trust had the
opportunity to obtain a remedy for defaulted payments that had accrued up until the time the case
settled in November 2004. The terms of the note did not allow for acceleration and, pursuant to the5
settlement agreement, MTG’s payment obligations under the note continued in effect. Dietrich’s
federal complaint alleges a breach of these continuing payment obligations—obligations that arose
after settlement.
The doctrine of res judicata (also known as “claim preclusion”) refers to the preclusive6
effect of a prior judgment upon a subsequent proceeding. In cases where a prior judgment was
rendered in state court, federal courts are obligated to give the same preclusive effect to the state
court judgment as that judgment would receive in the rendering state. 28 U.S.C. § 1738 (2000).
This court thus applies the law of the rendering state to determine the res judicata effect of a prior

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No. 06-2377
Dietrich v. Stephens
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state court judgment. Migra, 465 U.S. at 81; see also Hapgood v. City of Warren, 127 F.3d 490, 493
(6th Cir. 1997).
Under Michigan law, res judicata “bars a second, subsequent action” only if “the matter in
the second case was, or could have been, resolved in the first.” Adair v. State, 680 N.W.2d 386, 396
(Mich. 2004). This requirement reflects a transactional approach to res judicata whereby the
doctrine “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.” Id.; cf.
RESTATEMENT (SECOND) OF JUDGMENTS §§ 24, 25 (1982). In determining whether a group of facts
constitutes a transaction for purposes of res judicata, a court must consider “whether the facts are
related in time, space, origin or motivation, and whether they form a convenient trial unit.” Adair,
680 N.W.2d at 398.
To prevail on summary judgment, Stephens and MTG must show that there is no genuine
issue of material fact as to whether the claims raised by Dietrich in federal court were, or could have
been, resolved in the state court proceeding. Adair, 680 N.W.2d at 396. Dietrich’s federal
complaint, however, does not seek to relitigate claims that were available to the Trust in the state
court action. The complaint alleges that “[d]efendant paid accrued interest through December 2004
upon which the [state] Court dismissed the case” and that “defendants refused to make payments
since January 2005 despite repeated requests.” It is these post-settlement obligations that Dietrich
now seeks to redress in federal court. Quite naturally, the facts giving rise to Dietrich’s federal
claims—MTG’s post-settlement breaches—were not yet in existence at the time that the state court

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No. 06-2377
Dietrich v. Stephens
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action settled. Consequently, Dietrich’s federal claims are not the same, and do not arise from the
same transaction, as the Trust’s state court claims.
Our conclusion here finds additional support in the Restatement of Judgments, which
explains:
When there is an undertaking, for which the whole consideration has been previously
given, to make a series of payments of money—perhaps represented by a series of
promissory notes, whether or not negotiable—the obligation to make each payment
is considered separate from the others and judgment can be obtained on any one or
a number of them without affecting the right to maintain an action on the others.
RESTATEMENT (SECOND) OF JUDGMENTS § 24 cmt. d (1982); see, e.g., Said v. Rouge Steel Co., 530
N.W.2d 765, 770 (Mich. Ct. App.1995) (recognizing, in the context of maintenance and cure, that
when a “continuing” duty is violated, “the doctrines of res judicata and collateral estoppel do not bar
serial suits”). Dietrich’s federal complaint alleges breach of separate payment obligations beginning
in January 2005. The state court action, however, involved redress for defaulted payments that
occurred up until the time of settlement in November 2004. MTG and Stephens do not contradict
this determination. They merely assert that “[b]oth cases deal with the Promissory Note and the
Property.” That both cases arise under the same promissory note is not enough for purposes of res
judicata where, as here, the note features an undertaking to make a series of separate payments.
Accordingly, Dietrich’s complaint establishes a genuine issue of material fact as to whether her
instant federal court claims are not the same, and do not arise from the same transaction, as the
Trust’s state court claims. Summary judgment on the basis of res judicata was thus improper.

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No. 06-2377
Dietrich v. Stephens
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MTG and Stephens suggest in their brief that Dietrich must seek to enforce the state court
settlement agreement instead of bringing her claims directly under the note. This argument is not
germane to the res judicata inquiry, but we briefly address it here. It is true that, in lieu of bringing
an action in federal court to enforce MTG’s continuing obligations under the note, Dietrich might
have filed suit in state court to enforce the settlement agreement. However, the existence of the
settlement agreement, and the ability to enforce the note through the settlement agreement, do not
preclude Dietrich from asserting claims directly under the note itself. The settlement agreement did
not discharge MTG’s obligations under the promissory note, nor can it be read to preclude Dietrich
from continuing to take direct action under the note. Counsel for MTG and Stephens conceded as
much when he admitted MTG’s liability under the settlement agreement and the note during the
summary judgment motion hearing.
Both parties also briefed arguments related to discovery sanctions leveled against MTG and
Stephens, and a motion to amend filed by Dietrich. The district court did not reach these matters as
a result of its res judicata determination, and we decline to address them here. We therefore remand
these matters to the district court for further proceedings.
III.
For the foregoing reasons, the judgment of the district court is reversed and the case is
remanded for further proceedings.

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