HRT ENTERPRISES V CITY OF DETROIT
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STATE OF MICHIGAN
COURT OF APPEALS
HRT ENTERPRISES and MERKUR STEEL
SUPPLY, INC.,
UNPUBLISHED
May 12, 2005
Plaintiffs-Appellants,
and
STEEL ASSOCIATES, INC.,
Plaintiff,
v
No. 252858
Wayne Circuit Court
LC No. 02-240493-CC
CITY OF DETROIT,
Defendant-Appellee.
Before:
Gage, P.J., and Cavanagh and Griffin, JJ.
PER CURIAM.
Plaintiffs HRT Enterprises (“HRT”) and Merkur Steel Supply, Inc. (“Merkur”) appeal as
of right an order granting summary disposition in favor of defendant City of Detroit (“the City”),
in this inverse condemnation case. We affirm in part, and reverse in part.
First, plaintiffs argue that the circuit court erred in granting summary disposition of
HRT’s claim under MCR 2.116(C)(4) for lack of jurisdiction, and/or under MCR 2.116(C)(8) for
failure to state a claim against the City. Specifically, plaintiffs argue that HRT did not fail to
state a claim against the City and the Wayne Circuit Court is the proper forum. We agree.
This Court reviews the trial court's grant of summary disposition de novo. Spiek v Dep't of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). The City’s motion for summary
disposition of HRT’s claim was brought under MCR 2.116(C)(4) for lack of jurisdiction, and,
alternatively, under MCR 2.116(C)(8) for failure to state a claim. The circuit court appeared
not to rule on the City's MCR 2.116(C)(8) motion, having instead ruled in favor of the City on its
(C)(4) motion, holding that HRT’s claim “should be brought in the Court of Claims against the
State of Michigan.” Although the circuit court did not rule on plaintiff’s MCR 2.116(C)(8)
argument, we may review HRT’s claim under MCR 2.116(C)(8) as an alternate basis for
affirming the lower court’s decision. See Stewart v Isbell, 155 Mich App 65, 74; 399 NW2d
440 (1986).
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A summary disposition motion pursuant to MCR 2.116(C)(4) tests the circuit court's
subject-matter jurisdiction, i.e., whether it had judicial power over the case. See Ryan v Ryan,
260 Mich App 315, 331; 677 NW2d 899 (2004), quoting Altman v Nelson, 197 Mich App 467,
472; 495 NW2d 826 (1992). A motion under MCR 2.116(C)(8) tests the legal sufficiency of a
claim by the pleadings alone. Mable Cleary Trust v Edward-Marlah Muzyl Trust, 262 Mich
App 485, 491; 686 NW2d 770 (2004).
“Circuit courts are courts of general jurisdiction, and have original jurisdiction over all
civil claims and remedies ‘except where exclusive jurisdiction is given by the constitution or by
statute to some other court or where the circuit courts are denied jurisdiction by the constitution
or statutes of this state.’” Farmers Ins Exchange v South Lyon Community Schools, 237 Mich
App 235, 241; 602 NW2d 588 (1999), quoting MCL 600.605. However, MCL 600.6419(1)(a)
provides the Court of Claims with exclusive jurisdiction over all claims against the state and any
of its departments. The Court of Claims is the exclusive forum in which to seek damages for an
alleged taking of an owner's property without just compensation. Dep’t of Natural Resources v
Holloway Constr Co, 191 Mich App 704, 705; 478 NW2d 677 (1991).
The jurisdictional argument raised by the City in the instant action was previously
rejected in Merkur Steel Supply, Inc v Detroit, 261 Mich App 116; 680 NW2d 485 (2004) and
we reject it again for the same reasons. See id. at 127. Just like the plaintiff’s claim in Merkur
Steel, HRT’s claim did not rest solely on the condition in the tall structure permit. Instead,
HRT asserted that the combined effect of the City’s actions, including its filing of the airport
layout plan, constituted the City’s taking of the property because such actions deprived HRT of
“all economically viable use of the Property” without just compensation. For purposes of a de
facto taking, the circuit court has jurisdiction to analyze all of the City's actions in the aggregate,
as opposed to just one incident, to determine the extent of the taking. Merkur Steel, supra at
125. Because HRT properly brought the inverse condemnation claim against the City, we
conclude that the circuit court did not lack jurisdiction to determine the merits of HRT’s claim
and the Court of Claims is not the exclusive forum. MCL 600.6419(1)(a); Merkur Steel, supra;
Dep’t of Natural Resources, supra; see, also, MCL 600.605; Bowie v Arder, 441 Mich 23, 37;
490 NW2d 568 (1992). For the same reasons, we also hold that HRT sufficiently stated an
inverse condemnation claim on which relief may be granted. See Adair v State, 470 Mich 105,
119; 680 NW2d 386 (2004). Accordingly, the circuit court erred in granting summary
disposition regarding HRT’s claim.
The City raises issues concerning HRT’s failure to exhaust the administrative remedies of
the Tall Structure Act, MCL 259.482, and HRT’s failure to bring the claim, based on the City’s
actions and omissions from 1992, within the five-year statute of limitations in MCL 600.5813.
The City’s arguments are without merit. HRT was not required to exhaust administrative
remedies because no violation of the Aeronautics Code by the Aeronautics Commission was
alleged in the complaint or identified by the City. And, the fifteen-year statute of limitation for
an adverse possession claim applies to the instant inverse condemnation claim because plaintiffs
held a present ownership/leasehold interest in the property when the suit was filed. See MCL
600.5801(4); Difronzo v Port Sanilac, 166 Mich App 148, 154; 419 NW2d 756 (1988).
Plaintiffs next contend that the circuit court erred in holding that res judicata barred
Merkur’s claim. After de novo review, accepting all of plaintiffs’ well-pleaded factual
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allegations as true and construing all of the documentary evidence in plaintiffs’ favor, we
disagree. See MCR 2.116(C)(7); Spiek, supra.
The doctrine of res judicata is employed to prevent multiple suits litigating the same
cause of action. Adair, supra at 121. The doctrine 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. Id.
This Court has taken a broad approach to the doctrine of res judicata, holding that it bars not only
claims already litigated, but also every claim arising from the same transaction that the parties,
exercising reasonable diligence, could have raised but did not. Id. The test to determine
whether the two actions involve the same subject is whether the facts are identical in both actions
or whether the same evidence would sustain both actions. Id. at 123-124. If the same facts or
evidence would sustain both, the two actions are the same for the purpose of res judicata. Id.
We agree with the circuit court’s ruling that Merkur’s claim against the City in the instant
action (“Merkur II”) was barred by the prior judgment in its inverse condemnation action against
the City in Merkur Steel, supra. With respect to the first res judicata requirement, the parties do
not dispute that the prior Merkur action was decided on its merits. The second res judicata
requirement is satisfied because Merkur and the City were parties to both Merkur I and Merkur
II. Merkur contends that HRT was not a party to Merkur I, and thus, res judicata does not bar
Merkur’s claim in the instant action. However, Merkur failed to cite any relevant authority in
support of its contention. An appellant may not merely announce his position and leave it to
this Court to discover and rationalize the basis for his claims, nor may he give only cursory
treatment of an issue with little or no citation of supporting authority. MCR 7.212(C)(7);
Peterson Novelties, Inc v Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003). An appellant’s
failure to properly address the merits of his assertion of error constitutes abandonment of the
issue. Id. Therefore, we decline to address this argument.
With respect to the last requirement of res judicata, the matter in the instant case was or
could have been resolved in Merkur I. See Adair, supra. In that case, Merkur complained of
the same actions and omissions by the City in both Merkur I and Merkur II. Plaintiffs attempt
to distinguish Merkur’s claims between Merkur I and Merkur II by arguing that Merkur II
involved new evidence regarding the value of the real estate owned by HRT or the value of the
entire leasehold interests of Merkur. Also, plaintiffs argue that significant events occurred after
the entry of the judgment in the prior Merkur action, including the issuance of the conditional tall
structure permit on August 20, 2002.
A second proceeding is not barred if there are changed or new facts. Labor Council,
Michigan Fraternal Order of Police v Detroit, 207 Mich App 606, 608; 525 NW2d 509 (1994).
However, contrary to plaintiffs’ argument, new evidence regarding the value of the real estate
owned by HRT is irrelevant to the application of res judicata to the instant action between
plaintiff Merkur and the City. Also, new evidence of the August 20, 2002, tall structure permit
pertains only to HRT’s claim. The essential facts and evidence to sustain Merkur’s claim in
both Merkur I and Merkur II are identical. See Adair, supra at 123-124. Moreover, we hold
that, during the pendency of Merkur I, Merkur, with due diligence, could have claimed a taking
of its entire leasehold interests instead of claiming a partial taking of its leasehold interests in the
vacant acreage. In fact, some parts of the complaint in Merkur I alleged that defendant’s
actions, including its filing of the Airport Layout Plan, interfered with Merkur’s right as a tenant
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to fully utilize “all portions of the property, including the vacant acreage.” Also, Merkur would
present the same evidence to prove its allegations that it presented in Merkur I. Accordingly,
we conclude that Merkur’s claim against the City arose from the same transactions as did the
Merkur I claim, and thus, Merkur’s claim is barred by res judicata. Merkur offers no evidence
that, during the pendency of Merkur I, it made any effort to add claims to seek damages for its
entire leasehold interests under MCR 2.118(E). See Adair, supra at 126 n 17. As such, we
find no basis for Merkur’s assertion that it could not have litigated the claims in the earlier suit.
See Id. Therefore, the trial court properly dismissed this claim.
Affirmed in part, reversed in part and remanded to the trial court for further proceedings
consistent with this opinion. We do not retain jurisdiction.
/s/ Hilda R. Gage
/s/ Mark J. Cavanagh
/s/ Richard Allen Griffin
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