HRT Enterprises v. Detroit, City of

Filing 124

ORDER. Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HRT ENTERPRISES, a Michigan
partnership,
Plaintiff,
Case No. 12-13710
Hon: AVERN COHN

-vsCITY OF DETROIT, a Michigan
municipal corporation,
Defendant.
/
ORDER
I.

This is an inverse condemnation case. Pending is
Defendant, City of Detroit’s Motion for Certification Pursuant
to 28 USC §1292 and Fed.R.Civ.P. 54(b) and/or Modification
and Confirmation of Judgment Under Fed.R.Civ.P. 58 (Doc.
99)
On July 24, 2017, the Court stayed action on the motion (Doc. 116). The stay is
VACATED. On September 20, 2017, the Court will hear further arguments on the
motion.
II.
In the order staying action on the motion, the Court observed that plaintiff says
the date of the “take” is January 01, 2009, i.e., the date “the situation became
stabilized.” Earlier, on August 13, 2015, the Court in its Memorandum and Order
Granting Plaintiff’s Motion for Summary Judgment on Liability (Doc. 26), found that the
City has effectively acquired HRT’s property (Doc. 63). The order was not accompanied

by a partial summary judgment.
Plaintiff, to establish January 01, 2009, as the date of the “take” has filed the
following papers:
(1)

Plaintiff, HRT Enterprises’ Exhibit List Re: Date of Taking (Doc.
113)

(2)

Offer of Proof Regarding Date of Taking (Doc. 117).

With regard to these papers, the Court notes that the exhibit list is not in
chronological order, and vaguely describes many of the exhibits. Also, there is no
appendix containing a copy of each of the exhibits.
III.
Defendant has not provided the Court with either the form of the order they
request, or the form of the partial judgment.
IV.
The following supplements what the Court stated on August 13, 2015, in ruling
on the then-pending motions.
A.
The City moves for certification (Doc. 99) essentially on the grounds that the
issue of the “take” is separate and distinct from the issue of the date of the “take” and
the issue of damages and should be reviewed by the Court of Appeals before the case
goes forward damages. The fact of the “take” and the date of the “take” are linked and
separate from compensation. Once the date of the “take” is determined, the request for
certification can best be decided. Accordingly, the motion for certification was stayed.

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B.
The Motion In Limine (Doc. 100) has merit. HRT asks for a ruling regarding the
amounts paid by the City in separate cases for leasehold and sublease hold properties,
i.e., to tenants and subtenants of HRT in a building previously located on the eleven
(11) acres. Jury verdicts to that effect were upheld by decisions of the Michigan Court
of Appeals. Neither of the two (2) cases involved the lease and sublease regarding the
fee ownership of the parcel. Each related to a separate and distinct property interest.
The amounts the City paid are irrelevant to a determination of the date of the “take” and
damages.
C.
The date of the “take” is the date “the situation becomes stabilized.” United
States v. Dickinson, 67 S.Ct. 1382, 1385 (1947). See also, Silverstein v. City of Detroit,
335 F.Supp. 1306 (ED Mich. 1971).

V.
The City takes the position that prior decisions of the Michigan Court of Appeals
in favor of the City are res adjudicata as to the issue of a “take,” and the date of the
“take.” The prior decisions dealt with the conditions which obtained on the date the
issue of a “take” was submitted to a jury. In a prior case in this Court under 28 USC
§1983 claiming an uncompensated take by the City which was dismissed (Doc. 15), the
Court said:
In September 2005, a Wayne County Circuit Court jury
decided that the City’s actions had not yet inversely
condemned HRT’s Property. However, at that time part of
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the building was still occupied, and the Property was still
producing enough rent to pay the taxes and perform some
repairs on the Property. In the three plus years that have
elapsed since the jury’s verdict, the last operating company
in the Property has shut down; the building is vacant; there is
no longer enough rental income to pay taxes or maintain the
Property; and there is no prospect of a renaissance of the
Property.
Clearly, the operative facts have changed from 2005.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: August 31, 2017

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