1.3Doctrines of Collateral Estoppel, Res Judicata and Law of the Case¹

A.Collateral Estoppel

“Collateral estoppel bars relitigation of an issue in a new action.” Hamood v Trinity Health Corp, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). “Generally, collateral estoppel can be invoked when three elements are met: (1) a question of fact essential to the judgment must have been actually litigated and determined by a valid and final judgment; (2) the same parties must have had a full and fair opportunity to litigate the issue; and (3) there must be mutuality of estoppel.” Id. at ___ (cleaned up). “In determining whether a party was given a full and fair opportunity to litigate an issue, a subsequent action is not precluded if the issue is one of law and the two actions involve claims that are substantially unrelated.” Id. at ___ (cleaned up).²

“Mutuality of estoppel occurs when the one taking advantage of the earlier adjudication would have been bound by it, had it gone against him.” Id. at ___ (quotation marks and citation omitted). “But mutuality of estoppel is not mandatory in every situation.” Id. at ___ (quotation marks and citation omitted). “Whenever collateral estoppel is being asserted defensively against a party who has already had a full and fair opportunity to litigate the issue, mutuality is not required.” Id. at ___ (quotation marks and citation omitted). “Allowing the defensive use of collateral estoppel even when mutuality does not exist enhances the efficient administration of justice and ensures more consistent judicial decisions.” Id. at ___ (cleaned up). “A judgment is considered a determination of the merits, and thereby triggers the doctrine of collateral estoppel on relitigation, even if the action has been resolved by summary disposition . . . .” Id. at ___ (quotation marks and citation omitted). “Collateral estoppel is strictly applied in that the issues in both cases must be identical, and not merely similar.” Id. at ___ (quotation marks and citation omitted). In Hamood, the Court of Appeals held that when a federal court ruled “that plaintiff did not provide notice of the sexual harassment until after her employment had ended,” the court had “decided a question of fact by a valid and final judgment, and plaintiff had a full and fair opportunity to litigate the issue.” Id. at ___. “It [did] not matter that the federal court made that finding in the context of the federal claim against [a co-defendant], and not [defendant], because mutuality of estoppel [was] not required in this situation.” Id. at ___. Accordingly, summary disposition was appropriate under MCR 2.116(C)(7) because “plaintiff was collaterally estopped from arguing the notice element of her hostile work environment claim.” Hamood, ___ Mich at ___.

“One of the critical factors in applying collateral estoppel involves the determination of whether the respective litigants were parties or privy to a party to an action in which a valid judgment has been rendered.” Synergy Spine & Orthopedic Surgery Ctr, LLC v State Farm Mut Auto Ins Co, ___ Mich App ___, ___ (2024) (cleaned up). “It is a longstanding principle of law that, in this state, an assignee is in privity with the assignor only up to the time of the assignment and not thereafter.” Id. at ___. The doctrine of collateral estoppel does not preclude a plaintiff’s claim where the “plaintiff was neither a party in [the insured’s] case nor in privity with [the insured] with respect to the judgment that was entered after the assignment.” Id. at ___ (rejecting alternative basis for trial court’s ruling that “plaintiff’s claim [was] ‘derivative’ of [the insured’s], and thus, precluded by the judgment in [the insured’s] lawsuit”). However, “for the defensive use of collateral estoppel, [a plaintiff] is relieved from the mutuality requirement if defendant already had a full and fair opportunity to litigate the issues.” Id. at ___ (holding that “the proper narrowing of issues under collateral estoppel [did] not include that the requisite causal connection existed between [the insured’s] accidental bodily injury and plaintiff’s fees for use of its facility; rather, that [was] for plaintiff to prove”).

B.Res Judicata

Res judicata refers to “‘claims preclusion,’ which covers the preclusive effect of a judgment upon a subsequent proceeding on the basis of the same cause of action.” People v Gates, 434 Mich 146, 154 n 7 (1990); Topps-Toeller, Inc v Lansing, 47 Mich App 720, 727 (1973) (res judicata “bars the reinstitution of the same cause of action by the same parties in a subsequent suit”).

“There are three prerequisites to the application of the res judicata doctrine:

(1) there must have been a prior decision on the merits;

(2) the issues must have been resolved in the first action, either because they were actually litigated or because they might have been presented in the first action; and

(3) both actions must be between the same parties or their privies. . . . Michigan courts apply the res judicata doctrine broadly so as to bar claims that were actually litigated as well as claims arising out of the same transaction which a plaintiff could have brought, but did not.” VanDeventer v Mich Nat’l Bank, 172 Mich App 456, 464 (1988) (internal citations omitted).³ 

C.Law of the Case

“The law of the case doctrine holds that a ruling by an appellate court on a particular issue binds the appellate court and all lower tribunals with respect to that issue. Thus, a question of law decided by an appellate court will not be decided differently on remand or in a subsequent appeal in the same case.” Ashker v Ford Motor Co, 245 Mich App 9, 13 (2001) (internal citation omitted).⁴ See also Zaremba Equip, Inc v Harco Nat’l Ins Co, 302 Mich App 7, 16 (2013), quoting CAF Investment Co v Saginaw Twp, 410 Mich 428, 454 (1981) (“‘if an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same’”). “Trial courts are bound by the doctrine unless there has been a material change in the facts or an intervening change in the law.” Pioneer State Mut Ins Co v Wright, 331 Mich App 396, 407 (2020). “A trial court violates the law-of-the-case doctrine when it revisits a legal issue already ruled on by [a higher court].” Id.

“The primary purpose of the doctrine is to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.” Ashker, 245 Mich App at 13. Law of the case accords “finality to the litigated issues until the cause of action is fully litigated, including retrials or appeals, and the superseding doctrines of res judicata and collateral estoppel become effective.” Topps-Toeller, Inc v Lansing, 47 Mich App 720, 729 (1973).

“The law-of-the-case doctrine is a judicially created, self-imposed restraint designed to promote consistency throughout the life of a lawsuit.” Great Lakes Eye Institute, PC v Krebs, ___ Mich ___, ___ (2025) (quotation marks and citation omitted). “The law-of-the-case doctrine merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power.” Id. at ___ (quotation marks and citation omitted). “The application of the doctrine is limited to legal questions and requires that underlying facts remain materially the same.” Id. at ___ (cleaned up). “Further, where new evidence is presented, the law-of-the-case doctrine does not preclude a trial court on remand from revisiting a factual question underlying a legal determination.” Id. at ___ (holding that “the law-of-the-case doctrine prevented the lower courts from revisiting the judgment that was granted in defendant’s favor,” but “did not preclude the trial court from considering newly introduced evidence to determine the appropriate attorney fee award” “[b]ecause neither the trial court nor the Court of Appeals had previously made an attorney fee determination”).

“[C]ourts have some discretion when applying the law-of-the-case doctrine under certain circumstances.” Ingham Co v Mich Co Rd Comm Self-Ins Pool (On Remand), 329 Mich App 295, 304 (2019), rev’d on other grounds 508 Mich 461 (2021).⁵ See, e.g., Locricchio v Evening News Ass’n, 438 Mich 84, 109-110 (1991) (noting that there are instances where “the law of the case doctrine must yield to a competing doctrine”); People v Robinson (After Second Remand), 227 Mich App 28, 34 (1997) (“declin[ing] to apply a doctrine designed for judicial convenience in fairly administering the obligation to do justice so as to work an injustice”). “[T]he doctrine does not preclude reconsideration of a question if there has been an intervening change of law. For this exception to apply, the change of law must occur after the initial decision of the appellate court.” Ashker, 245 Mich App at 13 (internal citation omitted).

“[T]he law-of-the-case doctrine [does] not apply to claims that were not decided on the merits[.]” Brownlow v McCall Enterprises, Inc, 315 Mich App 103, 112 (2016). Therefore, “the law of the case doctrine does not apply [to] prior orders denying leave to appeal [that] were not rulings on the merits of the issues presented.” People v Poole, 497 Mich 1022, 1022 (2015). Additionally, “‘[w]here an order of summary judgment is reversed and the case is returned for trial because an issue of material fact exists, the law of the case doctrine does not apply to the second appeal because the first appeal was not decided on the merits.’” Brownlow, 315 Mich App at 112, quoting Borkus v Mich Nat’l Bank, 117 Mich App 662, 666 (1982) (alteration in original). However, “application of the law-of-the-case doctrine [is not automatically barred] whenever there is a grant of summary disposition based on the presence of factual questions[.]” Brownlow, 315 Mich App at 113, 118 (holding that where the Court of Appeals “previously ruled [that] there was sufficient evidence of causation to go to a jury,” “the law-of-the-case doctrine applie[d] to the issue of causation,” and “[t]he trial court [on remand] erred by holding that defendant could seek summary disposition regarding causation”) (citations omitted).

The “doctrine should not be invoked to preclude appellate review of a contested question of law that was presumed but not decided against a party in an interlocutory appeal if doing so would deprive the party of their right to appeal an unfavorable trial court decision on that issue,” because “the goal of promoting consistency in judgments would not be furthered by application” of the doctrine under such circumstances. Rott v Rott, 508 Mich 274, 288, 288 n 1 (2021) (noting the “ruling should not be read as requiring judicial review of an issue that a party waived or conceded before filing its appeal by right”).

The law of the case doctrine does not apply to decisions of the trial courts. Meyer & Anna Prentis Family Foundation, Inc v Barbara Ann Karmanos Cancer Institute, 266 Mich App 39, 52-53 (2005) (trial court possessed unrestricted discretion in reviewing prior decisions made by the court). The doctrine also does not apply to arbitration proceedings. Cipriano v Cipriano, 289 Mich App 361, 375 (2010).

A party’s assertion that an appellate court’s prior decision was wrong “is not sufficient [reason] to justify ignoring the law-of-the-case doctrine[.]” Ingham Co, 329 Mich App at 304. However, “in criminal cases, a trial court retains the power to grant a new trial at any time where ‘justice has not been done.’” People v Herrera (On Remand), 204 Mich App 333, 340 (1994), quoting MCL 770.1. “[I]n criminal cases the law of the case doctrine does not automatically doom the defendant’s arguments or automatically render them frivolous and worthy of sanctions.” Herrera, 204 Mich App at 341.

Under the law of the case doctrine, “the trial court may not take action that is inconsistent with the judgment of [the Court of Appeals],” and “‘[w]here the trial court misapprehends the law to be applied, an abuse of discretion occurs.’” Augustine v Allstate Ins Co, 292 Mich App 408, 425 (2011), quoting Bynum v ESAB Group, Inc, 467 Mich 280, 283 (2002) (trial court abused its discretion where it misapprehended the law to be applied, its action was inconsistent with the Court of Appeals’ remand directive, and it failed to properly apply caselaw as explicitly directed by the Court of Appeals).⁶

Standard of Review. Whether the law of the case doctrine applies is a question of law subject to de novo review. Ashker, 245 Mich App at 13.