                          STATE OF MICHIGAN

                            COURT OF APPEALS



32 EAST MADGE, LLC,                                                  UNPUBLISHED
                                                                     August 16, 2018
               Plaintiff-Appellant,

V                                                                    No. 338806
                                                                     Oakland Circuit Court
ANDY MEISNER and LAUDON PROPERTIES,                                  LC No. 2017-157219-CH

               Defendants-Appellees.


Before: SWARTZLE, P.J., and CAVANAGH and M. J. KELLY, JJ.

PER CURIAM.

       Plaintiff appeals as of right an order granting summary disposition to defendants, the
Oakland County Treasurer and the party who purchased plaintiff’s former real property at a tax
foreclosure sale. The trial court held that summary disposition was proper under MCR
2.116(C)(7) (prior judgment) because this action was an improper collateral attack on the earlier
judgment of foreclosure which was not appealed.1 We affirm.

       This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Ardt v Titan Ins Co, 233 Mich App 685, 688; 593 NW2d 215 (1999). Likewise, we review de
novo as a question of law the applicability of a legal doctrine. James v Alberts, 464 Mich 12, 14-
15; 626 NW2d 158 (2001).

         It is undisputed that tax foreclosure of plaintiff’s former property was the subject matter
of Oakland Circuit Court Case No. 2015-147555-CZ, which culminated in a February 3, 2016
judgment of foreclosure that was not appealed. “The decision of a court having jurisdiction is
final when not appealed and cannot be collaterally attacked.” SS Aircraft Co v Piper Aircraft
Corp, 159 Mich App 389, 393; 406 NW2d 304 (1987). More particularly, a party may not
challenge a judicial determination subject to appeal by commencing a new action instead. Id.
This rule against collateral attacks arises from the doctrine of res judicata, according to which
“ ‘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


1
  The trial court also held that summary disposition was proper under MCR 2.116(C)(8) and
(10).


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subsequent action involving the same claim, demand or cause of action.’ ” Wayne Co v Detroit,
233 Mich App 275, 277; 590 NW2d 619 (1998), quoting Black’s Law Dictionary (6th ed, 1990).

        Plaintiff attempts to avoid the preclusive effect of the earlier judgment of foreclosure by
challenging that court’s exercise of subject-matter jurisdiction. “Jurisdiction over the subject
matter is the right of the court to exercise judicial power over that class of cases; not the
particular case before it, but rather the abstract power to try a case of the kind or character of the
one pending; and not whether the particular case is one that presents a cause of action, or under
the particular facts is triable before the court in which it is pending, because of some inherent
facts which exist and may be developed during the trial.” In re AMB, 248 Mich App 144, 166;
640 NW2d 262 (2001) (quotation marks and citations omitted). “When a court is without
jurisdiction of the subject matter, any action with respect to such a cause, other than to dismiss it,
is absolutely void.” Fox v Bd of Regents of Univ of Mich, 375 Mich 238, 242; 134 NW2d 146
(1965).

        Plaintiff’s only express jurisdictional challenge to the earlier adjudication is that the court
in Case No. 2015-147555-CZ acted prematurely because of a misapprehension of the timing
requirements of MCL 211.78(g)(1), i.e., there were no delinquent taxes due before the
foreclosure proceeding was initiated. However, this challenge clearly does not implicate the
earlier court’s right to exercise judicial power over the class of case at issue—a foreclosure
proceeding. Rather, plaintiff is arguing that, because of the particular facts in that foreclosure
proceeding, the proceeding should not have been filed or should not have resulted in a judgment
of foreclosure. These arguments could have been raised and decided in that earlier foreclosure
action, and any decision in that matter would have been subject to appellate review.
Accordingly, plaintiff’s statutory timing argument does not bring to light a subject-matter
jurisdiction challenge that would invalidate the earlier adjudication.

        Plaintiff cites In re Petition by Wayne Co Treasurer, 478 Mich 1; 732 NW2d 458 (2007),
in support of its contention that a new cause of action in the circuit court is a proper vehicle for
challenging the result of an earlier case that culminated in a judgment of foreclosure. We do not
agree. In that case, the property owners did not receive constitutionally adequate notice of the
foreclosure proceedings before a judgment of foreclosure was entered and their property was
sold. Id. at 5. Thereafter, the former property owners learned of the foreclosure and sale, and
filed a motion for relief from the foreclosure judgment. Id. Our Supreme Court held that a
statutory provision of the General Property Tax Act (GPTA), MCL 211.78k(6), which deprived
the circuit court of jurisdiction to alter the judgment of foreclosure even under these
circumstances—when property owners are deprived of their property without due process—is
unconstitutional as applied to them. Id. at 8-11. In the case before us, plaintiff does not argue
that it was deprived of its property without constitutionally adequate notice and then prevented
from seeking relief from the judgment of foreclosure. To the contrary, the record discloses—as
set forth in the trial court’s order appealed here—that plaintiff was provided notice of the
property tax delinquency and of the foreclosure proceedings. Accordingly, plaintiff’s argument
is without merit.

      Further, plaintiff’s reliance on Davenport v HSBC Bank USA, 275 Mich App 344; 739
NW2d 383 (2007), abrogated in part on other grounds by Kim v JPMorgan Chase Bank, NA, 493
Mich 98, 114-115 (2012), is also misplaced. In that case, a bank foreclosed on a mortgage

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although it was not the record holder of the indebtedness. Id. at 346. This Court held that the
bank had no statutory right to foreclosure on a mortgage in which it had no interest; thus, the
foreclosure proceedings were void. Id. at 347-348. In this case, however, plaintiff did not
challenge the legitimacy of the tax foreclosure of its property in the tax foreclosure proceeding,
i.e., Oakland Circuit Court Case No. 2015-147555-CZ, although plaintiff had notice of that
proceeding. Consequently, the matter was adjudicated to a final judgment that may not be
collaterally attacked in a separate action.

        Because there is no dispute that the tax foreclosure underlying this case followed from a
final judgment of foreclosure in Case No. 2015-147555-CZ, and because plaintiff has not put
forward a valid reason why res judicata should not preclude litigation anew of related matters in
this case, we affirm the trial court’s dismissal of this entire case on the ground that it constituted
an improper collateral attack on the earlier judgment of foreclosure.

       Affirmed.



                                                              /s/ Brock A. Swartzle
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Michael J. Kelly




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