                         STATE OF MICHIGAN

                          COURT OF APPEALS



JOHN BUCHANAN, MICHAEL J. WARREN,                                 UNPUBLISHED
WILLIAM MITCHELL, LAWRENCE RUTKA,                                 September 24, 2015
JOSEPHINE RUTKA, LAWRENCE UTLEY,
DELORES P. SCHELLENBERG, JAMES E.
SCHELLENBERG, DENISE E. MATTESON-
BLAIR, a/k/a DENISE E. MATTESON, a/k/a
DENISE E. BLAIR, JEFFREY W. BLAIRE,
JANET BUCHANAN, GORDON MATTESON,
MARJORIE MATTESON, LOIS WANGLER,
GERALD SCHAVE, CAROLYN BAILLO
SCHAVE, and CAROLYN GENEREAU,

              Petitioners-Appellants,

v                                                                 No. 320780
                                                                  Oakland Circuit Court
OAKLAND COUNTY, WATER RESOURCES                                   LC No. 2013-137140-CZ
COMMISSIONER’S OFFICE, and JIM NASH,

              Respondents-Appellees.


Before: TALBOT, C.J., and WILDER and FORT HOOD, JJ.

PER CURIAM.

        Petitioners appeal as of right an order granting summary disposition in favor of
respondents, Oakland County, Water Resources Commissioner’s Office (OCWRC), and Jim
Nash (Oakland County’s Water Resource Commissioner), in this petition for writ of certiorari
challenging the establishment of a drainage district on constitutional and statutory grounds. We
affirm in part, reverse in part, and remand for further proceedings.

                               I. FACTS AND PROCEEDINGS

       On November 24, 2009, certain freeholders signed an application to the OCWRC to lay
out and establish a drainage district along Pettibone Lake for 28 lakefront lots in Reid’s
Subdivision, including lots 16 and 32, which had been dedicated as park land and intended to
give non-lakefront lot owners in the subdivision access to the lake. On March 15, 2010, the
OCWRC entered an order for laying out and designing a drainage district called the “Lower
Pettibone Sanitary Drain.”

                                              -1-
        On August 19, 2010, a petition to establish the drainage district was filed. The petitioners
listed 28 “freeholders whose lands would be traversed by the drain or drains applied for or abut
on any highway or street along either side of which drain extends between the point where the
drain enters the highway and the point where it leaves the highway.” The owner of lots 16 and
32 was identified as “Reid’s Subdivision Association.” Twenty freeholders signed the petition.

       On September 9, 2010, newspapers published a “Notice of Filing of Order Designating a
Drainage District” On October 7, 2010, newspapers published notice of an upcoming board of
determination hearing. On October 18, 2010, a board of determination, including J. Michael
Hickox, Larry Goldman, and Joseph P. Kozma, held a meeting and determined that the Lower
Pettibone Sanitary Drain was “necessary and conducive to public health, convenience and
welfare.”

        On February 2, 2011, Oliver Hayman and other freeholders1 filed an amended petition for
review pursuant to MCR 7.105(B)(2) against the OCWRC, the Water Resources Commissioner
of Oakland County (John McCulloch), and the board of determination in Oakland Circuit Court
(Judge Colleen A. O’Brien). The petitioners in that action alleged that the subdivision residents
were not given sufficient notice of the designation of the drainage district because the publication
in the newspaper occurred six months after the designation. They also alleged that the petition
was defective because it did not account for all freeholders who could be liable for an assessment
for benefits; the petition identified the owner of lots 16 and 32 as Reid’s Subdivision, which did
not reflect the actual ownership interests of the common owners of these lots in the subdivision.
The petitioners in that action further alleged that the board of determination was appointed
contrary to MCL 280.72. Finally, they alleged that the finding of necessity was an abuse of
discretion and that their rights to equal protection and due process were violated by limiting their
voice in the petition process.

       The action before Judge O’Brien was dismissed on procedural grounds, and this Court
dismissed the petitioners’ appeal by right for lack of jurisdiction in Docket No. 303847.2 In
Docket No. 303850, this Court also denied the subsequently filed delayed application for leave to
appeal “for lack of merit in the grounds presented.”3

         On June 21, 2012, Kevin Larsen on behalf of McCulloch signed an order authorizing the
initiation of condemnation proceedings and taking any other appropriate steps to construct the
Lower Pettibone Sanitary Drain. On the same day, Larsen signed a “Declaration of Taking”
demonstrating the OCWRC’s intent to



1
 According to respondents, Oliver Hayman was the only petitioner in that case, but his counsel
added additional names to the caption without leave of court.
2
 Oakland Co Water Resources Comm’r v Hayman, unpublished order of the Court of Appeals,
entered May 23, 2011 (Docket No. 303847).
3
 Hayman v Oakland Co Water Resources Comm’r, unpublished order of the Court of Appeals,
entered January 6, 2012 (Docket No. 303850).


                                                -2-
       take by eminent domain the property interests for a permanent sewer easement
       encompassing the entire length and width of three dedicated private roads, Lake
       Drive, Highland Drive, and Lakeview Drive, within the Reid Subdivision . . . as
       necessary for the proper construction and maintenance of the Lower Pettibone
       (Lake) Sanitary Drain . . . .

The declaration estimated that “just compensation” was $0. A “good faith offer” for the
easement, in exchange for $0, was made to owners of property along the requested easement on
July 13, 2012.

        On August 17, 2012, John Buchanan, Oliver Hayman, Peggy Hayman, Michael J.
Warren, William Mitchell, Lawrence F. Rutka, Josephine Rutka, Lawrence Utley, Delores P.
Schellenberg, James E. Schellenberg, Denise E. Matteson, and Jeffrey W. Blair filed a complaint
in the United States District Court for the Eastern District of Michigan against Oakland County,
OCWRC, McCulloch, and Willis C. Bullard, Jr. (former Oakland County Clerk/Registrar of
Deeds).

        On November 19, 2012, the Lower Pettibone Lake Sanitary Drain Drainage District filed
a complaint in Oakland Circuit Court (Judge Rudy J. Nichols) against Reid’s Subdivision
Association and other property owners, including non-lakefront property owners, to obtain an
easement to construct, maintain, operate, and repair a sewer under three roads in the subdivision.
The drainage district reserved the right to “bring federal or state cost recovery actions against the
owners of the Property arising out of the release of hazardous substances on the Property.” The
drainage district noted that the defendants in the case could challenge the necessity determination
for the drainage district within 21 days, MCL 213.56, otherwise the drainage district claimed that
title would vest with the OCWRC.

        On December 26, 2012, certain property owners answered the condemnation complaint,
noting the pending action in federal district court. The property owners attached the federal
complaint to the answer and urged Judge Nichols to suspend any condemnation proceedings
until the federal court decided the case and, only order the requested relief if such an outcome
was necessary following the federal court decision. The property owners also requested that the
trial court “[a]ward any other relief to the Defendant(s) as may be necessary to ensure
fundamental fairness and their right to be heard, in the present condemnation action, and in the
pending federal action.”

        Certain property owners also filed a motion for review of the decision of necessity and
for suspension of the condemnation proceedings in that action.4 They alleged that the
condemnation proceedings constituted an error of law and an abuse of discretion. They also
argued that the issues in the federal complaint were “necessarily interwoven into the legitimacy
of the present condemnation proceedings . . . .” They further argued that the reasons stated in the


4
  While we were unable to locate the motion for review in the lower court file, both parties have
attached a version of the motion to their briefs on appeal. The motions are similar in content, but
filed by different property owners.


                                                -3-
federal complaint “constitute an error of law and abuse of discretion by Oakland County, the
[OCWRC], by Bill Bullard . . ., and by John McCulloch . . . .” They “incorporate[d] [the federal
complaint’s] contents herein as if fully stated.”

        On March 5, 2013, Judge Nichols denied the property owners’ requests to suspend any
condemnation proceedings. Judge Nichols noted the property owners’ argument “that the drain
has not been duly established pursuant to MCL 280.71 and that the designation and
establishment of the drain system is being challenged.” Judge Nichols ruled that the
determination of public necessity was binding in the absence of fraud, error of law, or an abuse
of discretion, which the property owners failed to establish. On the record, at a hearing on
March 27, 2013, Judge Nichols explained that the property owners’ arguments, including claims
that the board of determination had a pecuniary interest and the petition process excluded certain
freeholders, were “conclusory” and failed to “show any legal significance.” When he denied the
property owners’ request to vacate the condemnation proceedings on the record, Judge Nichols
incorporated his reasoning in the March 5, 2013 order and the drainage district’s arguments.
Judge Nichols then granted the drainage district’s motion to vest title. On April 17, 2013,
written orders vesting title as of November 19, 2012, were entered.

        On March 18, 2013, the plaintiffs in the federal action amended their complaint. The
amended complaint removed a count alleging a violation of substantive due process rights
related to the Takings Clause of the Fifth Amendment, and added additional plaintiffs—James A.
Izzi and Ron Izzi. In Count I, the federal plaintiffs claimed that the defendants violated their due
process rights by failing to provide them notice, and claimed that they would share any liability
connected with the planning, construction, and maintenance of the drainage district, including
railroad liability insurance premiums. In Count II, the federal plaintiffs further claimed that their
First Amendment rights to free assembly and free expression were violated because the
defendants miscounted the number of freeholders required to sign the petition, the plaintiffs were
not given notice of the petition, and then they were excluded from participating in its
establishment. In Counts III and IV, the federal plaintiffs claimed their federal and state
constitutional rights to equal protection were violated because the defendants failed to send
notice to the non-lakefront property owners, excluded them from the petition process under MCL
280.71, and denied their vote, thereby treating them disparately compared to similarly-situated
lakefront property owners. The federal plaintiffs alleged that the defendants’ actions impaired
their fundamental property rights under the Fifth Amendment and the Michigan Constitution of
1963. In Count V, the federal plaintiffs claimed that, under Article VI, § 28 of the Michigan
Constitution and MCL 280.71, they were denied the right to review of the decision of necessity,
the designation and establishment of the drainage district, and their alleged statutory and
constitutional violations. The federal plaintiffs further alleged that the purpose of those
provisions—to prevent self-interested parties from being appointed to the board of
determination—was impaired by Bullard’s failure to recuse himself from the designation and
establishment of the drainage district and the appointment of Kozma. In Count VI, the federal
plaintiffs again alleged violations under Article VI, § 28 of the Michigan Constitution and MCL
280.71, as well as MCL 280.72, on the basis of the improper number of signatures on the petition
and improperly appointed members of the board. In Count VII, the federal plaintiffs alleged that
the Drain Code of 1956, MCL 280.1 et seq., was unconstitutional if it, in fact, failed to provide
them with timely notice of the designation of the drainage district, give them a voice in the


                                                -4-
proceeding, or allow any remedy for errors in the designation, thereby affecting their rights to
due process and equal protection.

        On October 23, 2013, Nash filed a final order of determination that the drain shall be
established and noted 25 properties that would be assessed for benefits in its construction.
Notably, lots 16 and 32 were not included for this special assessment.

         On November 4, 2013, petitioners, including both lakefront and non-lakefront property
owners, filed the instant writ of certiorari or complaint for superintending control under MCR
3.302 in Oakland Circuit Court (Judge Rae Lee Chabot). Petitioners also urged the court to
suspend any proceedings in the case pending the outcome of the federal matter. Petitioners
argued that the common owners of lots 16 and 32 should have been considered for purposes of
the petition, as required by MCL 280.71. Had the proper owners of lots 16 and 32 been
considered, many more signatures would have been required in the petition. Petitioners argued
that, later, on November 24, 2009, an application for designating the drainage district was filed,
and on March 15, 2010, the designation was ordered, but notice of the designation was never
timely or seasonably provided, preventing residents from applying for a hearing.

        In Count I, petitioners alleged that the non-lakefront property owners’ constitutional
rights to equal protection were violated because, by not sending notice, excluding them from the
petition process, and denying their vote, respondents treated non-lakefront property disparately
compared to similarly-situated residents in the subdivision who did receive that information.
Petitioners alleged that respondents’ actions impaired their fundamental property rights under the
Fifth Amendment. In Count II, petitioners alleged that, under Article VI, § 28 of the Michigan
Constitution and MCL 280.71, they were denied the right to review of the decision of necessity
and the designation and establishment of the drainage district. Petitioners further alleged that the
purpose of those provisions—to prevent self-interested parties from being appointed to the board
of determination—was impaired by Bullard’s failure to recuse himself from the designation and
establishment of the drainage district and the appointment Kozma and Goldman. In the
complaint, petitioners alleged that Goldman’s interest derived from the fact that he had been “a
long-time wholesale supplier of goods to Mr. Bruce Holden, a local store owner,” who was “a
leading proponent of the Drainage District” and owner of non-lakefront and lakefront property.
In Count III, petitioners again alleged violations under Article VI, § 28 of the Michigan
Constitution and MCL 280.72 on the basis of the improper number of signatures on the petition
and improperly appointed members of the board, including Hickox, Kozma, and Goldman. In
Count IV, petitioners alleged that the issuance of the final order of determination was premature
because the right of way and damage waivers had not yet been obtained, and therefore
respondents violated Article VI, § 28 of the Michigan Constitution, MCL 280.151, and MCL
280.161.

       On November 12, 2013, respondents moved to have the instant case reassigned from
Judge Chabot to Judge Nichols or Judge O’Brien. Respondents suggested that assigning the case
to Judge Nichols would be most judicially efficient because he already had some familiarity with
the underlying disputed based on the condemnation action pending before him.

      The next day, respondents moved for summary disposition. They argued that, in light of
Judge Nichols’s decision in the condemnation case, the claims were barred under MCR

                                                -5-
2.116(C)(7) by res judicata and collateral estoppel. Respondents argued that, contrary to
petitioners’ claim, they lacked any ownership interest in the common area lots; rather, petitioners
had an easement appurtenant, or right to use the property, only. They also argued that, under
Elba Twp v Gratiot Co Drain Comm’r, 493 Mich 265; 831 NW2d 204 (2013), any due process
claims were barred as a matter of law because due process only applies when a drainage district
determines assessments that will be levied, which had not yet occurred. Finally, respondents
noted that petitioners made one new claim, which was not barred by res judicata or collateral
estoppel, but was subject to summary disposition under MCR 2.116(C)(8) because petitioners
failed to state a claim as a matter of law. Specifically, respondents argued that the claim that the
final order of determination was premature was inconsistent with the record because, prior to the
final order, Judge Nichols had already found that title was vested in the drainage district.

        On November 25, 2013, petitioners filed a response to the motion to reassign the case.
They argued that the parties were different in the case before Judge O’Brien that none of the
substantive issues were addressed because of the procedural dismissal, and that Judge O’Brien
only had jurisdiction to review the findings of the board of determination. They also argued that
the condemnation proceeding was limited to the issue of condemnation and did not involve any
of the claims raised in federal court or the instant action, and that Judge Nichols had limited
jurisdiction under the Drain Code. Petitioners further argued that the federal court declined to
apply res judicata, so any similar arguments here should be barred. Petitioners asserted that,
instead of reassigning the case, judicial economy would be served by suspending the action
pending the federal court’s decision.

       At a hearing on November 27, 2013, Judge Chabot granted the motion to reassign the
case to Judge Nichols. Respondents filed a motion for entry of a proposed order regarding
reassignment, noting petitioners’ failure to agree to its form; but petitioners subsequently
answered the motion, agreeing to that form.

        On December 10, 2013, petitioners filed a response to the motion for summary
disposition. They noted that two issues had never been raised before the instant complaint,
including the claim that Goldman had a pecuniary interest in the decision of necessity and that
Nash prematurely entered the final order of determination. Petitioners further argued that the
motion was not ripe for review because they were entitled to amend the petition under MCR
2.108. Regarding issue preclusion, petitioners argued that the instant claims were not addressed
by Judge O’Brien, who declined to exercise jurisdiction, and petitioners did not file a
counterclaim in the condemnation action and could not file one because the issues were not
reviewable by Judge Nichols at the time. Petitioners further argued there was no privity among
them because each had their own property and concerns regarding condemnation. Finally,
petitioners argued that the trial court was required to accept the facts pleaded as true to determine
whether petitioners stated a claim upon which relief could be granted.

      On December 10, 2013, Judge Chabot entered an order reassigning the case from Judge
Chabot to Judge Nichols. Petitioners signed and approved the order as to form.




                                                -6-
       At a hearing on February 5, 2014, Judge Nichols ruled:

              In the prior condemnation action before this Court by way of orders
       denying a request to suspend the proceedings and review of the decision on public
       necessity, the Court upheld -- this Court upheld the finding that the drain district
       was necessary and that proper procedure had been followed.

              This Court specifically held that no error of law or of discretion was
       shown. . . .

                                              * * *

       For these reasons and those further outlined by defendants, the Court finds that
       the claims are barred by collateral estoppel. That is, involve the same facts
       essential to the case already determined in the condemnation case.

Accordingly, Judge Nichols granted respondents’ motion for summary disposition. On February
11, 2014, respondents filed a motion for entry of order granting their motion for summary
disposition.

       On February 12, 2014, petitioners filed a motion before the chief judge to strike the order
dismissing their case, citing an administrative rule requiring the chief judge in Oakland County
to approve of any reassignment order before it can be finalized. Petitioners argued that, absent
such an order, Judge Nichols lacked any authority to preside over their case.

        On February 14, 2014, Chief Judge Nanci J. Grant ruled that she lacked the authority to
strike the order because the relief requested was “not administrative in nature.” She further
ruled:

       This Court declines to rule on the instant motion. Further, because Judge Rudy
       Nichols has been reviewing and ruling on motions recently filed in the captioned
       matter, it is This Court’s opinion that any motions or arguments regarding
       reassignment should properly be heard before Judge Nichols.

In response to the motion to strike, respondents noted that petitioners never raised the issue of
Judge Nichols’s authority to hear the case until after he rendered an unfavorable decision.

       On February 19, 2014, at 8:00 a.m., Judge Nichols entered an order granting respondents’
motion for summary disposition for the reasons set forth on the record on February 5, 2014. On
the same day, at 3:30 p.m., Judge Grant entered an order reassigning the case from Judge Chabot
to Judge Nichols, and all three judges signed the order, which provides, in part, “Date of Session:
Tuesday, January 28, 2014.” It further provides, “The Judge to whom this case was assigned, the
Honorable Judge Rae Lee Chabot is unable to hear this case because –reassigning order date
12/10/2013.”

       Petitioners then filed another pleading to strike and set aside any findings and orders by
Judge Nichols, claiming that they did, in fact, raise the issue of Judge Nichols’s authority to hear
the case in their response to the motion for summary disposition, referring to their claim that

                                                -7-
Judge Nichols does not and did not have jurisdiction to review anything but the questions related
to the condemnation. In response, respondents argued that petitioners’ repeated claims regarding
Judge Nichols’s authority to hear the case were frivolous and requested costs under MCR
2.114(F), MCR 2.625(A)(2), and MCL 600.2591.

       On March 5, 2014, Judge Nichols denied petitioners’ motion to strike and set aside its
orders. Judge Nichols ruled that the motion was moot because the case had subsequently been
properly reassigned to him. Judge Nichols further ruled that any error was harmless because it
would not have changed the result on the ruling for summary disposition. “Petitioners fail to
provide any legal authority to establish that this court lacked jurisdiction due to the failure to
execute an internal reassignment order.” Judge Nichols declined to award costs to respondents.

        Petitioners appealed as of right. Judge Nichols subsequently denied respondents’
motions for entry of judgment of costs and for entry of judgment attorney fees, as well as
petitioners’ motion to stay enforcement of the court’s order granting defendant’s motion for
summary disposition. This Court also denied petitioners’ motion for stay and ex-parte motion
for temporary restraint.5

                                 II. COLLATERAL ESTOPPEL

       On appeal, petitioners argue that the trial court erred in determining that their claims were
barred by collateral estoppel. We agree in part.

        This Court reviews de novo a trial court’s decision on a motion for summary disposition
under MCR 2.116(C)(7) to determine whether the moving party was entitled to judgment as a
matter of law. Stoudemire v Stoudemire, 248 Mich App 325, 332; 639 NW2d 274 (2001). The
application of collateral estoppel presents a question of law that this Court also reviews de novo.
Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008).

        Collateral estoppel, also known as issue preclusion, “is a flexible judge-made rule
generally said to have three purposes: To ‘relieve parties of the cost and vexation of multiple
lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage
reliance on adjudication[.]’ ” Detroit v Qualls, 434 Mich 340, 357 n 30; 454 NW2d 374 (1990),
quoting Allen v McCurry, 449 US 90, 94; 101 S Ct 411; 66 L Ed 2d 308 (1980). To apply
collateral estoppel, a party must show that

       (1) the issue was actually litigated and determined by a valid and final judgment,
       (2) the same parties had a full and fair opportunity to litigate the issue, and (3)
       there is mutuality of estoppel. The issue to be decided must be identical to the
       one decided in a prior action, and not merely similar. [Wells Fargo Bank, NA v
       Null, 304 Mich App 508, 520; 847 NW2d 657 (2014) (citations omitted).]


5
  Buchanan v Oakland Co, unpublished order of the Court of Appeals, entered July, 2014
(Docket No. 320780); Buchanan v Oakland Co, unpublished order of the Court of Appeals,
entered August 21, 2014 (Docket No. 320780).


                                                -8-
        In the prior condemnation action involving the same drain, the defendants answered the
complaint by noting that an action was pending in federal court that raised constitutional and
statutory claims about the establishment of the drainage district. The defendants in the
condemnation action urged the trial court to suspend its decision on condemnation until the
federal issues were resolved. At the same time, the defendants incorporated the arguments in the
federal complaint as reasons to find an error of law or abuse of discretion in the condemnation
action. The trial court concluded that the defendants did not establish fraud, an error of law, or
an abuse of discretion. After making this conclusion, the trial court not only denied the
defendants’ request to suspend the condemnation action until the federal case was decided, but
also granted the motion for entry of an order vesting title in the easement to the drainage district.

                       A. ACTUALLY LITIGATED/FINAL JUDGMENT

        “To be necessarily determined in the first action, the issue must have been essential to the
resulting judgment; a finding upon which the judgment did not depend cannot support collateral
estoppel.” Bd of Co Rd Comm’rs for the Co of Eaton v Schultz, 205 Mich App 371, 377; 521
NW2d 847 (1994). Under MCR 7.202(6)(a)(i), a final judgment is “the first judgment or order
that disposes of all the claims and adjudicates the rights and liabilities of all the parties, including
such an order entered after reversal of an earlier final judgment or order[.]” “Final judgments are
such as at once put an end to the action by declaring that the plaintiff has either entitled himself,
or has not, to recover the remedy he sues for.” Wells Fargo, 304 Mich App at 521 (citation and
quotation marks omitted). Moreover, “[a] decision is final when all appeals have been exhausted
or when the time available for an appeal has passed.” Bryan v JP Morgan Chase Bank, 304
Mich App 708, 716; 848 NW2d 482 (2014) (citation and quotation marks omitted).

        The bulk of the issues raised in the instant case are identical to the issues raised in the
federal complaint and incorporated by the property owners in the condemnation action. Count I
of the instant case involving equal protection and fundamental property rights mirrors Counts III
and IV of the amended federal complaint.6 Count II of the instant case involving the right to
appellate review and interested parties on the board of determination mirrors Count V of the
federal complaint with one exception; in this case, in addition to arguing that Bullard and Kozma
were self-interested and, therefore, improperly appointed to the board of determination under the
Drain Code, petitioners make the same claim regarding the third board member, Goldman.
Count III of the instant case alleging violations of the Drain Code with respect to the petition and
appointment of members on the board mirrors Count VI of the federal complaint, but adds claims
regarding Goldman. The claim in Count IV that the final order of determination was premature
was not raised in the federal complaint or in the condemnation action.

        The issues in Counts I, II, and III of the instant complaint, which are identical to the
federal complaint, were actually litigated in the condemnation action. In rejecting the property


6
  Although petitioners attached the original federal complaint in the condemnation action, the
original federal complaint was not contained in the lower court file. However, as discussed
above, according to the amended federal complaint, the amendments merely removed alleged
Takings Clause violations and added parties.


                                                  -9-
owners’ defense and granting the orders vesting title in the easement, the trial court held that the
property owners’ claims were “conclusory” and failed to “show any legal significance.”
Although the purpose of the condemnation action was to review the determination of public
necessity, the trial court found that the property owners were challenging the establishment of
the drain system and, therefore, plaintiff’s authority to proceed with the condemnation action.
The trial court necessarily rejected defendant’s arguments, including the federal issues that the
property owners inserted into the action, in concluding that there was no fraud, error of law, or
abuse of discretion in the determination of public necessity. In light of the property owners’
argument inserting the federal claims as a defense to the condemnation action, the federal claims
were necessarily determined in the condemnation action. Therefore, these findings were
essential to the judgment. See Schultz, 205 Mich App at 377.7 Those orders vesting title were
final because the property owners did not appeal and, by the time of the order granting summary
disposition in the instant action, the time available for an appeal had passed. Bryan, 304 Mich
App at 716; see MCR 7.204(A)(1)(a) (an appeal of right in a civil action must be taken within 21
days after the entry of the judgment or order appealed from).

        But as discussed further throughout this opinion, the claims regarding Goldman (Counts
II and III) and the final order of determination (Count IV) were not raised previously, and
therefore could not have been actually litigated in the condemnation action. Thus, the trial court
erred by granting summary disposition under MCR 2.116(C)(7) with regard to those issues.8 On
appeal, respondents counter that similar issues were considered in the condemnation action, but
for collateral estoppel to apply, the issues must be identical, not merely similar. Wells Fargo,
304 Mich App at 520.

           B. SAME PARTIES/FULL AND FAIR OPPORTUNITY TO LITIGATE

       This Court has stated:

               For collateral estoppel to apply, the parties in the second action must be
       the same as or privy to the parties in the first action. A party is one who was
       directly interested in the subject matter and had a right to defend or to control the
       proceedings and to appeal from the judgment, while a privy is one who, after the
       judgment, has an interest in the matter affected by the judgment through one of


7
  We note that issues raised in the action before Judge O’Brien could not collaterally estop any
issues raised here because they were not necessary to the judgment dismissing that case. Rather,
that case was dismissed because of procedural errors. See Schultz, 205 Mich App at 377.
8
   There has been no fact-specific argument by respondents on appeal that, with reasonable
diligence, any of these issues could have been litigated in the condemnation action and therefore
the claim would have been alternatively barred by res judicata. See Adair v State, 470 Mich 105,
121; 680 NW2d 386 (2004) (“The doctrine [of res judicata] bars a second, subsequent action
when (1) the prior action was decided on the merits, (2) both actions involve the same parties or
their privies, and (3) the matter in the second case was, or could have been, resolved in the
first.”).


                                               -10-
       the parties, as by inheritance, succession, or purchase. [Rental Properties Owners
       Ass’n of Kent Cty v Kent Cty Treasurer, 308 Mich App 498, 529-530; 866 NW2d
       817 (2014) (citations omitted).]

Generally, relitigation is permitted when “[t]he party against whom preclusion is sought could
not, as a matter of law, have obtained review of the judgment in the initial action. . . .” Monat v
State Farm Ins Co, 469 Mich 679, 685; 677 NW2d 843 (2004) (citation and quotation marks
omitted).

        On appeal, petitioners do not make any arguments regarding whether the parties in the
instant action were the same parties in the condemnation action. Therefore, any consideration
whether the trial court erred in applying collateral estoppel on this ground is abandoned. “An
appellant’s failure to properly address the merits of his assertion of error constitutes
abandonment of the issue.” Houghton ex rel Johnson v Keller, 256 Mich App 336, 339-340; 662
NW2d 854 (2003). Even if we were to address this requirement, however, we would conclude
that the same parties, or parties in privy to those parties, had a full and fair opportunity to litigate
the issues in the condemnation action. See Wells Fargo, 304 Mich App at 520.

                                 C. MUTUALITY OF ESTOPPEL

       With regard to mutuality of estoppel, our Supreme Court has explained that it

       “requires that in order for a party to estop an adversary from relitigating an issue
       that party must have been a party, or in privy to a party, in the previous action. In
       other words, ‘[t]he estoppel is mutual if the one taking advantage of the earlier
       adjudication would have been bound by it, had it gone against him.’ ” [Monat,
       469 Mich at 684-685 (citation omitted)].

        Petitioners similarly fail to develop any argument regarding whether mutuality of
estoppel existed between the parties in the instant action and the condemnation action.
Therefore, any consideration whether the trial court erred in applying collateral estoppel on this
ground is also abandoned. See Houghton, 256 Mich App at 339-340. Even if we were to
address this requirement, however, we would conclude that respondents would have been bound
by the condemnation action had it gone against the drainage district. See Monat, 469 Mich at
684-685. Alternatively, mutuality of estoppel is not required because collateral estoppel is being
asserted defensively to prevent petitioners from relitigating issues that they had a full and fair
opportunity to litigate in the condemnation action. See id. at 691-692.

                        D. PETITIONERS’ ARGUMENTS ON APPEAL

         Petitioners argue that, in granting summary disposition on the basis of collateral estoppel,
the trial court violated MCL 280.161, which they allege required the court to conduct an
evidentiary hearing. Petitioners cite the relevant portion of MCL 280.161, which provides that
“[i]f issues of fact are raised by the petition for such writ and the return thereto, such issues shall,
on application of either party, be framed and testimony thereon taken under the direction of the
court.” Here, the issues in the federal complaint were raised previously in the condemnation
action and were resolved at that time; no questions of fact remained. Therefore, any argument


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that an evidentiary hearing was required to take testimony regarding the same issues in the
instant action is meritless under the plain language of MCL 280.161.

        However, according to the petition, issues of fact remained regarding Goldman’s
pecuniary interest in the drain and the final order of determination. In their motion for summary
disposition, respondents alternatively relied on MCR 2.116(C)(8) (failure to state a claim for
which relief can be granted), at least with respect to petitioner’s claim regarding the final order
of determination. Accepting the factual allegations in the complaint as true and drawing
inferences in a light most favorable to petitioners, summary disposition on these two issues
would not have been appropriate under MCR 2.116(C)(8). See Johnson v Pastoriza, 491 Mich
417, 435; 818 NW2d 279 (2012). We therefore remand for further proceedings regarding these
allegations and consistent with MCL 280.161.

        Petitioners further argue that they were not given the opportunity to amend the petition
before summary disposition was granted. Nothing in the lower court record suggests that
petitioners ever requested and were denied the right to amend the petition. In addition, on
appeal, petitioners do not assert any additional issues that they would have included in an
amended petition to defeat summary disposition. Because this Court cannot discover and
rationalize the basis for these claims, we conclude that petitioners’ argument is abandoned. See
Houghton, 256 Mich App at 339-340.

        Next, petitioners argue that, under Elba, 493 Mich 265, the trial court in the
condemnation action lacked subject-matter jurisdiction to consider any of the constitutional and
statutory challenges to the establishment of the drainage district, and therefore, that ruling could
not be considered in the instant case for purposes of collateral estoppel. Petitioners’ argument is
unpersuasive.

          As this Court observed in Usitalo v Landon, 299 Mich App 222, 228; 829 NW2d 359
(2012):

                  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. [Citations and
          quotation marks omitted.]

Furthermore, “while the lack of subject-matter jurisdiction may be collaterally attacked, a court’s
exercise of jurisdiction can only be challenged on direct appeal.” Id. at 229.

        Petitioners are not attacking the subject-matter jurisdiction of the trial court to oversee
condemnation pursuant to MCL 280.75 (“If any person whose lands would be traversed or
damaged by a proposed drain has not executed a release of the right-of-way, the drainage district
may institute condemnation proceedings to obtain the necessary right-of-way, an easement, or
other property interest pursuant to the uniform condemnation procedures act . . . .”). Rather, they
contend that, under Elba, certain defenses—particularly, constitutional and statutory challenges

                                                  -12-
to the establishment of the drainage district—cannot be considered by the court presiding over
the condemnation action. As an initial matter, we noted that it was petitioners who asserted
those challenges as defenses in the condemnation action. Moreover, assuming without deciding
that petitioners are correct that claims regarding establishment were not a defense to
condemnation, because the property owners did not file a direct appeal on that basis, the
judgment is valid and binding, and it cannot be collaterally attacked in this subsequent appeal for
a separate case. See Usitalo, 299 Mich App at 228-229.

        Petitioners further argue that the trial court in the condemnation action erred by ruling
that any challenges to the establishment of the drainage district were required to be filed within
10 days under MCL 280.72, and therefore, the ruling could not be applied for purposes of
collateral estoppel. A review if the transcripts reveals, however, that the trial court was merely
reciting the law under MCL 280.72a—the trial court never stated that any challenge in that case
was untimely. Even if the trial court made such a ruling, collateral estoppel exists to encourage
reliance on prior, final adjudications. Qualls, 434 Mich at 357 n 30. Petitioners did not
challenge the trial court’s ruling in the condemnation action on direct appeal and it cannot be
collaterally attacked now.

               E. RESPONDENTS’ ARGUMENT IN SUPPLEMENTAL BRIEF

         We also reject respondents’ argument that any challenges are moot because the non-
lakefront petitioners were not part of the drainage district and were not assessed, John Buchanan
is the only lakefront property owner who wants to remain in the case, and John Buchanan
suffered no liability in the creation or operation of the drainage district. Respondents’ claims,
however, are not supported by record evidence; it is impermissible to expand the record on
appeal. Reeves v K-Mart Corp, 229 Mich App 466, 481 n 7; 582 NW2d 841 (1998).
Furthermore, the completion of the project does not make it impossible for the trial court to grant
relief. Gen Motors Corp v Dep’t of Treasury, 290 Mich App 355, 386; 803 NW2d 698 (2010)
(“An issue is moot if an event has occurred that renders it impossible for the court to grant
relief.”). In their writ, petitioners requested a declaratory judgment that the designation and
establishment of the drainage district was null and void, an injunction of all progress of the
drainage district, as well as costs, interest, attorney fees, and other relief that the court deemed
appropriate. Therefore, if the trier of fact found in favor of petitioners on the remaining issues,
some relief could nevertheless be granted.

                                     III. REASSIGNMENT

       In addition, petitioners argue that Judge Nichols was not properly assigned the case
pursuant to an administrative order in Oakland County, 2013-02. Although that administrative
order requires an order reassigning a case to be signed by the judge to whom the case will be
reassigned, the judge transferring the case, and the chief judge, petitioners approved the form of
an order signed only by the transferring judge. Therefore, any objection to the reassignment to
Judge Nichols absent all three judges’ signatures is waived. Adair v Michigan, 497 Mich 89,
104; 860 NW2d 93 (2014) (“Waiver is the intentional relinquishment of a known right”).
Regardless, any error was harmless because the case was subsequently properly reassigned to
Judge Nichols and Judge Nichols indicated on the record that his ruling on the motion for
summary disposition would be the same regardless of any error.

                                               -13-
        Moreover, to the extent that petitioners argue that this issue involves subject-matter
jurisdiction, we disagree. Again, subject-matter jurisdiction involves the authority of a court to
hear and determine a class of cases, Usitalo, 299 Mich App at 228, not the authority of a
particular judge within that court to try a particular case, see Bean v State Land Office Bd, 335
Mich 165, 174-175; 55 NW2d 779 (1952) (“The business of the courts is too important to the
people of the State to permit formal details of the machinery of the designation of judges to
control their jurisdiction.”); People v Phelps, 261 Mich 45, 49; 245 NW 565 (1932) (selection of
presiding judge “perfectly immaterial on the matter of jurisdiction”); Armco Steel Corp v Dep’t
of Treasury, 111 Mich App 426, 438-439; 315 NW2d 158 (1981) (an irregularity in the
assignment of judges does not warrant reversal where no evidence suggests that the challenged
assignment “was motivated by impermissible considerations”).

        Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction. Neither party having prevailed in full, no costs are
awarded. MCR 7.219(A).



                                                            /s/ Michael J. Talbot
                                                            /s/ Kurtis T. Wilder
                                                            /s/ Karen M. Fort Hood




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