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STATE OF MICHIGAN
COURT OF APPEALS

CHARLES L. SWANSON,  Plaintiff/CounterdefendantAppellee, v SHAGBARK DEVELOPMENT, INC., Defendant/CounterplaintiffAppellee, and LEE VAN POPERING, Defendant-Appellant, and JAMES SUSCHIL and WINDRUSH, INC., Defendants-Appellees, and BRETT N. RODGERS, Receiver, Appellee.  No. 259886 Kent Circuit Court LC No. 01-009630-CZ UNPUBLISHED October 27, 2005

JOHN KNOX, MARY KNOX, KATHLEEN R. MILLER, ROBERT P. MILLER, CRAIG SAURMAN, LAVERNE C. SMITH, ROGER WETHERBEE, NANETTE WETHERBEE, DAVID WILKINSON, PATRICIA WILKINSON, GORDON STANARD, and SANDRA STANARD, Plaintiffs-Appellees,

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v NORTHLAND MANAGEMENT, INC., Defendant/Cross-Defendant, and OMM ENGINEERING, INC., Defendant/Cross-Plaintiff-Appellee, and SHAGBARK DEVELOPMENT, INC., Defendant/Cross-DefendantAppellee, and LEE VAN POPERING, Defendant/Cross-DefendantAppellant, and PHILLIP J. VOGELSANG, Defendant/Cross-Plaintiff, and AUTO OWNERS INSURANCE COMPANY, Intervening Plaintiff, and BRETT N. RODGERS, Receiver, Appellee.

No. 259908 Kent Circuit Court LC No. 02-000571-CK

CHARTER TOWNSHIP OF CALEDONIA,

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Plaintiff/Counterdefendant/CrossDefendant-Appellee, v SHAGBARK DEVELOPMENT, INC., Defendant/Counterplaintiff/ThirdParty Plaintiff-Appellee, and SIMMONS TITLE COMPANY, Defendant/Third-Party DefendantAppellee, and SHAGBARK CONDOMINIUM ASSOCIATION, Third-Party Defendant/CrossPlaintiff/Third-Party PlaintiffAppellee, and LEE VAN POPERING, Defendant/Cross-DefendantAppellant, and WINDRUSH, INC., JAMES SUSCHIL, and OMM ENGINEERING, INC., Cross-Defendants-Appellees, and NORTHLAND MANAGEMENT, INC., PHILLIP J. VOGELSANG, and SHAGBARK WATER COMPANY, INC., Cross-Defendants, No. 259909 Kent Circuit Court LC No. 02-009843-CE

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and BRETT N. RODGERS, Receiver, Appellee.

Before: Kelly, P.J., Whitbeck, C.J. and Meter, JJ. PER CURIAM. These consolidated cases arise out of problems plaguing the Shagbark Condominium Complex in Caledonia Township. Lee Van Popering, an owner of both the development company and building company responsible for the Shagbark Condominium Complex, appeals by leave granted the trial court's October 12, 2004 order granting injunctive relief to plaintiff residents of the condominium complex following a bench trial. The court ordered Shagbark Development to remedy storm water drainage problems at the complex and ordered that a receiver be appointed over Shagbark Development, Northland Management, Van Popering, Windrush, Inc., and Shagbark Water Company. Van Popering also appeals by leave granted the December 14, 2004, order of the trial court appointing the receiver, which order was amended on December 29, 2004. We vacate both the October 12, 2004 and December 29, 2004 orders and remand. I. Basic Facts and Procedural Background As a result of a failure of the storm water system at the condominium complex, three major floods occurred between September 2000 and July 2001. Thereafter, the residents and their condominium association began pumping the storm water detention pond every time it rained. They did so to ensure that the pond did not overflow and cause additional major flooding. However, the residents' pumping system is not a permanent solution to the intrinsic problems with the storm water system. Several lawsuits were filed in the Kent Circuit Court related to the condominium complex, one of which was filed by several residents of the complex seeking redress and remedies for the deficient storm water system and one of which was filed by Caledonia Township, which also sought to have the deficiencies in the storm water system remedied. The trial court consolidated the cases. In June 2004, the trial court held a bench trial to hear and decide issues related to pending claims for injunctive relief based on claims of trespass and nuisance brought by plaintiff residents of the condominium complex and by Caledonia Township. Following the bench trial, the trial court issued an opinion, making detailed findings of fact and concluding that flooding, which occurs when there is no pumping of the pond, was not an actionable trespass, a public nuisance, or a private nuisance. Nevertheless, the trial court determined that the flooding was actionable: Although it does not amount to either an actionable trespass or an actionable nuisance, the flooding does violate what Bennett v Eaton County, 340 Mich 330, 335 (1954), characterized as this State's "law of surface waters." That

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law is a derivative of the overlapping concepts of trespass and nuisance applied to the unique circumstance of surface waters. a. While an owner of land must accept all water which naturally flows onto that land from other properties, Id., at 335-336, the owners of the latter cannot collect water in ways which increase the quantity or velocity of the flow. Id., at 336. See also Miskotten v Drenten, 318 Mich 538, 545 (1947). The reverse flow created by the drainage system does both. b. Nor may the owner of one parcel of land utilize it so as to impair the natural flow of water off adjoining property. Robinson v Belanger, 332 Mich 657, 662 (1952); and Reed v Soltys, 106 Mich App 341, 349 (1981). In addition to generating a reverse flow, Shagbark's inadequate drainage system also dams natural drainage off the land on which sit the resident's units. In a footnote, the trial court stated: That the parties have utilized the law of nuisance does not preclude this Court from deciding the case based on the law of surface waters. ". . . [A]ddressing a controlling legal issue despite the failure of the parties to properly frame the issue is a well understood judicial principle." Mack v Detroit, 467 Mich 186, 207 (2002). Complex or novel issues should seldom be so addressed, Candelaria v BC General Contractors, Inc, 236 Mich App 67, 83 (1999), lv den 462 Mich 852 (2002), but the law of surface waters is well-settled, and its applicability to this case is plain. The trial court ordered, in relevant part, that Shagbark Development remodel the storm water drainage system and correct the residents' basement flooding problems. It also enjoined construction unrelated to the remodeling, and it ordered the appointment of a receiver over Shagbark Development, Northland Management, Shagbark Water Company, Windrush, and Van Popering to ensure compliance with its order. II. Due Process On appeal, Van Popering argues that the trial court violated his due process rights when it granted injunctive relief based on the law of surface waters, which was not pleaded by the parties and was not presented to or argued before the trial court. We agree that the trial court's decision to grant injunctive relief based on the law of surface waters constitutes a fundamental due process violation that requires reversal of the court's October 12, 2004 order. We review the alleged due process violation de novo. Reed v Reed, 265 Mich App 131, 157; 693 NW2d 825 (2005). In Reid v Michigan, 239 Mich App 621, 630; 609 NW2d 215 (2000), the trial court imposed liability on the defendants on the basis that the plaintiffs' arrests were not based on probable cause. This Court held:

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To the extent that the court imposed liability on the basis that the arrests were not based on probable cause, we must reverse that finding because at no time did plaintiffs ever allege a violation premised on a lack of probable cause (Const 1963, art 1,

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