FRANK VANWULFEN V MONTMORENCY CNTY
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
FRANK VANWULFEN,
UNPUBLISHED
March 19, 2009
Plaintiff-Appellant
and Cross-Appellee,
v
No. 281930
Montmorency Circuit Court
LC No. 04-000950-CC
MONTMORENCY COUNTY and
MONTMORENCY COUNTY DRAIN
COMMISSIONER,
Defendants-Appellees
and Cross-Appellants.
Before: Donofrio, P.J., and K.F. Kelly and Beckering, JJ.
PER CURIAM.
This inverse condemnation action arises out of plaintiff’s contention that defendants’
maintenance of higher lake levels between 1997 and 2001 damaged his property. The circuit
court entered an order of no cause of action and plaintiff now appeals as of right. We affirm.
I. Facts and Procedural Background
The property at issue is a tract of land on the north shore of Avery Lake located in
Montmorency County, Michigan. The VanWulfen family bought a home on the subject property
in 1965. The home was originally an outdoor pavilion, but was subsequently converted into a
home for year-round living. Before the VanWulfens’ purchase, the property had also had a
wooden damn built on it, which maintained the lake at a constant level. This wooden dam was
replaced with a concrete dam sometime between 1950 and 1952, after which point the lake levels
fluctuated. This dam broke in November 1969 and it was replaced with a new dam. However,
water came onto the VanWulfens’ property in front of the house. Consequently, a seawall was
constructed that abutted upon the property’s lakeshore. The first winter that the wall was intact,
it “didn’t last” due to “wind and ice action.” The wall was reset sometime during the following
spring or summer.
As far back as plaintiff can remember, the county used the damn to lower and raise the
lake level, typically lowering the level in the winter and raising it in the summer. The county’s
authority to adjust and control lake levels derives from the Inland Lake Levels Act (ILLA), MCL
324.30701, et seq. Under these provisions, the county may change the level of an inland lake by
-1-
initiating a proceeding in the circuit court upon the motion of the county board or two-thirds of
the relevant landowners. MCL 324.30702. After an evidentiary hearing, the court determines
the lake level and the county, or other authority, is responsible for maintaining that level. MCL
324.30707; MCL 324.30708.
In 1970, the circuit court, pursuant to the ILLA procedures, entered a judgment indicating
that that the lake level should remain at 891.3 feet above sea level during the summer months
and be lowered to 890.3 feet above sea level during the winter months. In 1982, the circuit court
entered another order indicating that the lake level should be reduced two and a half feet during
the winter from the summer level. This practice continued until 1997, when the court entered a
judgment determining that the lake level would remain at 890.3 feet above sea level year round.
According to plaintiff, before 1997, there was no mounding in the lakeside yard behind the
seawall. The court re-adjusted the lake level upwards by several inches on numerous occasions
thereafter. In June 1997, the court increased the lake’s level by four inches. In November 1998,
the court raised the lake’s level to 890.88 feet above sea level. The court raised the lake’s level
another three inches to 891.13 feet above sea level in April 1999. According to plaintiff, it was
during the summer of 1998 or 1999 that a mounding behind the seawall became apparent.
A. 2000-2001 State Court Proceedings
On December 11, 2000, Anna VanWulfen petitioned the court pursuant to the ILLA to
re-determine the lake’s normal levels. According to VanWulfen, maintaining the lake at the
higher winter level, as opposed to lowering it, as had been the practice before 1997, was causing
substantial damage to the property. In VanWulfen’s view, the increased lake level had caused
ice to smash against the seawall and the home, created noticeable mounding that pushed into the
home, and saturated the home’s supporting soil such that the it was being “destroyed from the
ground up.”
The circuit court, Judge John F. Kowalski presiding, issued an opinion and order on
October 19, 2001. It framed the issue as whether the damage to the VanWulfens’ home resulted
from the lake levels or some other cause. After considering the testimony of numerous experts,
including testimony that the home’s settling was due to the fact that it had been built over peat, it
concluded that “the lake level, which existed between 1970-1982, caused no structural damage,
earth mound or any other problems . . . .” In coming to this conclusion, the court stated that it
was “not able to find that the problems with the VanWuflen home, except for the mounding in
front of the home, are related to the lake level of Avery Lake.” The court readjusted the lake
level to 890.3 feet above sea level for the winter months and 891.3 feet during the summer
months, which is the same level applied between 1970 and 1982. VanWulfen did not attempt to
bring any other claims in this proceeding.
B. April 2002 State Court Action
In April 2002, plaintiff filed suit in the court of claims against the county, as well as the
county drain commissioners, alleging that the higher lake levels between 1997 and 2001 had
-2-
raised the ground water level permitting the house to sink into the ground, created damage due to
freeze and thaw, and “smashed the retaining wall due to ice pressure.” Plaintiff asserted claims
of inverse condemnation,1 trespass and nuisance, and gross negligence. Plaintiff did not raise
any federal claims in this complaint, nor attempt to reserve any federal claim for the federal
forum.
The case was removed to circuit court, Judge Joseph P. Swallow presiding, where
defendants moved for summary disposition. The court granted defendants’ motion with respect
to gross negligence, finding that plaintiff failed to show a genuine issue of material fact. Before
ruling on the inverse condemnation portion of defendants’ motion, the court noted that it must
constrain its inquiry “to whether the mounding in front of the VanWulfen home constitutes a
taking of Plaintiff’s property resulting in permanent deprivation of possession or use of the
property.” According to the court, collateral estoppel barred consideration of the causation
element of plaintiff’s inverse condemnation claim because the court had previously stated during
the 2000-2001 ILLA proceedings that “[it] is not able to find that the problems with the
VanWulfen home, except for the mounding in front of the home, are related to the lake level of
Avery Lake.” Ultimately, the court determined that questions of fact remained as to whether
plaintiff had suffered a compensable taking. This matter was left for trial. However, the parties
stipulated to a dismissal without prejudice.
C. July 2004 Federal Court Action
Several months later, in July 2004, plaintiff filed suit in federal district court, asserting
claims of a federal taking under the Fifth Amendment and inverse condemnation under the
Michigan Constitution.2 The federal court, on defendants’ motion for summary judgment,
dismissed plaintiff’s federal takings and inverse condemnation claims on the grounds that they
were not ripe because plaintiff failed to fully pursue an inverse condemnation claim in state
court. VanWulfen v Montmorency Co, 345 F Supp2d 730, 741-743 (ED Mich 2004).
D. December 2004 State Court Action
Consequently, in December 2004, plaintiff filed a new complaint in state circuit court,
Judge Richard M. Pajtas presiding, again asserting claims of a federal taking under the Fifth
Amendment and inverse condemnation under the U.S. and Michigan Constitutions. Defendants
moved for summary disposition, arguing that plaintiff failed to state a federal takings claim or
inverse condemnation claim and that res judicata barred plaintiff’s gross negligence claim.
1
Plaintiff alleged a claim of inverse condemnation generally; he did not cite either the U.S.
Constitution or the Michigan Constitution.
2
Plaintiff also raised his gross negligence claim again. However, the federal court concluded
that plaintiff’s gross negligence claim was precluded because of the state court’s previous
dismissal of that claim. VanWulfen v Montmorency Co, 345 F Supp2d 730, 740 (ED Mich
2004). Plaintiff raised this claim yet again in his subsequent state action in December 2004. The
state court concluded that the gross negligence claim was barred.
-3-
Plaintiff’s response brief to defendants’ motion relied upon both federal and state law. The
circuit court concluded that issues of fact remained regarding plaintiff’s takings claims.
Before trial, defendants moved for clarification requesting that the matter be limited to
the mounding in front of plaintiff’s seawall consistent with Judge Swallow’s 2003 opinion and
order finding that collateral estoppel barred consideration of lake levels as the cause of damage
to plaintiff’s home. The court denied the motion. Defendants moved for reconsideration and
plaintiff did not file a response. Subsequently, the court, relying on Zerfas v Eaton Co Drain
Comm’r, 326 Mich 657; 40 NW2d 763 (1950), granted defendants’ motion finding that “any
claims . . . relating to causation of and damage to the house are barred by res judicata as it [sic]
was previously litigated in the lake level case before Judge Kowalski [in 2001].” After this
determination, the parties stipulated to a bench trial, rather than a jury trial, and submitted trial
briefs and exhibits to the court. The parties further agreed that their decision to forgo a jury trial
in state court in no way “constitute[d] a waiver of any party’s right to seek a trial by jury in
federal Court.”
In his trial brief, plaintiff, for the first time, asserted an England Reservation.3 In other
words, plaintiff indicated that he only sought a resolution of his inverse condemnation claim and
did not provide any argument with respect to his federal claim in hopes of reserving it for the
federal forum. Plaintiff then argued, relying entirely on state law, that defendants’ action of
raising the lake level caused ice pressure to move the seawall and create a mound on his
property, amounting to a regulatory taking and a physical occupation of his property. To support
his contention, plaintiff relied on the deposition testimony of his expert, Gary Dannemiller, a
hydrologist, who asserted that “frost heaving,” due to the higher lake level, caused the mounding
and damage to the seawall. In Dannemiller’s view, the elevation of the groundwater in the
lakeside yard of plaintiff’s property increased with the lake’s level. Because the groundwater
was “pushed high enough so that it would freeze,” it follows that when it freezes, it increases the
“volume of the voids [in the saturated soil] by nine percent.” In addition, ice—due to the higher
lake level—had also exerted pressure on the wall. These forces, in plaintiff’s view, are what
caused the mounding on plaintiff’s property and have pushed the top of the seawall toward the
lake. Dannemiller also testified that the soil along the seawall is composed of fine to medium
sand, which is susceptible to frost heaving.
Defendants, in their trial brief, argued that plaintiff could not prove that defendants’
adjustment of the lake level was the “substantial cause” of the mounding. Defendants presented
photographic evidence showing that the mounding had gotten worse after 2001 when the winter
lake level was reduced to its historical level of 890.3 feet above sea level. Defendants also
produced evidence showing that the seawall had moved 12 inches toward the house after the lake
level’s reduction.
In addition, defendants relied upon the expert testimony of Duane MacNeill, a
professional engineer, who believed “wind-driven ice floes,” or ice pressure from wind pushing
3
England v Louisiana State Bd of Medical Examiners, 375 US 411, 412-413; 84 S Ct 461; 11 L
Ed 2d 440 (1964).
-4-
ice against the wall, had caused the mounding. This phenomenon occurs independently of, and
has no relation to, the lake’s level. In MacNeill’s view, the seawall is under pressure due to ice
movement and, as a result and in conjunction with the wall’s lack of “footing[s],” the structure
has moved toward plaintiff’s house causing the ground to mound. According to MacNeill, such
wind-driven ice can exert tremendous pressure. Although MacNeill did not personally observe
the phenomenon on Avery Lake he indicated that he had observed wind forcing ice across land
on a different lake. The drain commissioner also testified that he had observed such an ice floe
on Avery Lake, including on one occasion an “ice flow” that had pushed a dock up onto shore.
MacNeill’s theory was based on photographic evidence, as well as several site visits to rule out
the possibility that tree roots were causing the problem and to determine whether the wall had a
sufficient base. MacNeill also testified that what was occurring on plaintiff’s property was
inconsistent with Dannemiller’s frost heave theory because any expansion due to freezing is
temporary and the soil will re-settle when it thaws as there is no longer any force to hold up the
mound. MacNeill further indicated that frost heaving was not likely the cause because mounding
did not occur at the ends of the seawall, which turned perpendicular to the house.
Subsequently, the court entered a no cause of action order against plaintiff as to his
inverse condemnation claim for damage to the lakeside yard and seawall only. The circuit court
found that plaintiff had failed to meet the burden of proof. Further, with respect to plaintiff’s
federal takings claim, the court deemed plaintiff’s “hope of preserve[ing] the issue for litigation
in Federal Court” to be an abandonment of the claim. Thus, the court dismissed the claim. This
appeal followed.
II. Preclusion
Plaintiff first argues that his inverse condemnation claim with respect to damage caused
to the home by the lake levels should not be barred by res judicata because the court was acting
in an administrative capacity. We disagree.
A. Standard of Review
We review a trial court’s determination on a motion for reconsideration for an abuse of
discretion. Shawl v Spence Brothers, Inc, 280 Mich App 213, 218; ___ NW2d ___ (2008). We
review a court’s application of the preclusion doctrines de novo. VanVorous v Burmeister, 262
Mich App 467, 476; 687 NW2d 132 (2004); Wayne Co v Detroit, 233 Mich App 275, 277; 590
NW2d 619 (1998).
B. Res Judicata and Collateral Estoppel
The doctrine of res judicata is intended to prevent multiple suits on matters already
litigated. Washington v Sinai Hosp of Greater Detroit, 478 Mich 412, 418; 733 NW2d 755
(2007). “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.” Id. (citation omitted).
At the outset, we note that although the lower court granted defendants’ motion for
reconsideration based on res judicata, the court’s decision is more properly characterized as
denying relitigation of a single issue because the court’s rationale is consistent with collateral
estoppel, or issue preclusion. The doctrine of collateral estoppel requires that “(1) a question of
-5-
fact essential to the judgment 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
was mutuality of estoppel.” Estes v Titus, 481 Mich 573, 585; 751 NW2d 493 (2008).
Our Supreme Court has already decided the issue raised on appeal. In Zerfas, supra at
659-660, plaintiffs, riparian owners, sough injunctive relief after the court had determined the
lake level and permitted construction of a dam in petition proceedings under the ILLA.
Plaintiff’s bill of complaint sought to enjoin the construction of the dam on the grounds that the
ILLA was unconstitutional because it permitted a taking of private property without due process
of law. Id. at 660-661. The Court determined that:
The decree entered in [the petition] proceeding, from which decree no appeal was
taken, was a final adjudication of the right to construct the dam at the outlet of . . .
[the] lake. Necessarily the constitutionality of the cited statute was involved. It
follows that such adjudication is a complete defense as a matter of res judicata to
the issues presented by the bill of complaint in the instant case, and that plaintiffs
herein could not be decreed the relief sought –i.e., that the drain commissioner be
perpetually enjoined from constructing such dam. [Id. at 664 (citations omitted
and emphasis in original).]
We find that the rationale of Zerfas applies equally to the doctrine of collateral estoppel.
C. Application
In the instant matter, plaintiff petitioned the circuit court to readjust the lake levels.
During those proceedings, Anna VanWulfen asserted that the higher lake levels were damaging
the property, including the house. The court determined that it was “not able to find that the
problems with the VanWuflen home, except for the mounding in front of the home, are related to
the lake level of Avery Lake.” As a result of the petition the court lowered the lake level to its
previous level. Plaintiff then filed a separate lawsuit alleging claims of inverse condemnation,
trespass and nuisance, and gross negligence, based on his contention that the lake levels between
1997 and 2001 had damaged the home. The court concluded that collateral estoppel barred the
portion of plaintiff’s claim relating to damage caused to the home. That case was dismissed by
stipulation and plaintiff filed a new lawsuit in federal district court. The federal court dismissed
that action on ripeness grounds. Plaintiff then filed another complaint in state court, alleging a
federal takings claim and an inverse condemnation claim under the U.S. and Michigan
Constitutions. The court found that plaintiff’s takings claims were barred with respect to damage
caused to the home, but not with respect to the mounding.
This was the correct result. The 2000-2001 lake level determination was a final
adjudication from which no appeal was taken. Zerfas, supra at 664. Although the circuit court
did not actually adjudicate plaintiff’s individual rights, as the ILLA does not provide such
protections, In re Van Ettan Lake, 149 Mich App 517, 525-526; 386 NW2d 572 (1986), the court
did adjudicate the issue of whether plaintiff’s property had been damaged and made findings
with respect to that issue. Heeringa v Petroelje, 279 Mich App 444, 449-450; ___ NW2d ___
(2008) (concluding that findings of fact made during adjudicatory proceedings have preclusive
effect). As part of the ILLA proceedings, this issue of whether plaintiff’s property had been
damaged was necessarily considered and “litigated” by the parties during a two-day hearing. See
-6-
MCL 324.30707(4); Zerfas, supra at 664. It follows, like in Zerfas, that plaintiff is collaterally
estopped from relitigating the issue of whether the lake levels caused damage to the home. To
conclude, it is clear that all three elements of collateral estoppel are met, such that the issue of
damages to the home is barred: A question of fact essential to the judgment was actually litigated
and determined by a valid and final judgment during the petition proceedings, the same parties
had a full and fair opportunity to litigate the issue during a two day hearing, and there was
mutuality of estoppel. Estes, supra at 585. Although the court premised its conclusion on res
judicata, it nonetheless reached the correct result. We will not reverse when the lower court
reaches the correct result albeit for the wrong reason. Shember v Univ of Michigan Medical Ctr,
280 Mich App 309, 329; ___ NW2d ___ (2008).
Plaintiff’s argument that proceedings under the ILLA are administrative, meaning that the
doctrines of collateral estoppel and res judicata do not apply, must necessarily fail because the
Zerfas Court determined that ILLA proceedings are adjudicatory in nature. Zerfas, supra at 664.
We are bound to follow the decisions of the Supreme Court until it overrules itself. O’Dess v
Grand Trunk Western R Co, 218 Mich App 694, 700; 555 NW2d 261 (1996). Thus, we
conclude that the circuit court did not abuse its discretion by granting defendants’ motion for
reconsideration and precluding from consideration the issue of whether lake levels caused
damage to plaintiff’s home.
III. Inverse Condemnation
Plaintiff next argues that the circuit court erred by finding that defendants’ actions did not
substantially cause plaintiff’s damages. Plaintiff’s argument is premised on his position that,
regardless of which expert is believed, the destructive force that caused damage to the
property—the higher lake levels—was set in motion by defendants. We cannot agree. We
review the trial court’s findings of fact for clear error. Schumacher v Dep’t of Natural
Resources, 275 Mich App 121, 127; 737 NW2d 782 (2007). A finding is clearly erroneous if we
are left with a definite and firm conviction that a mistake has been made. Heindlmeyer v Ottawa
Co Concealed Weapons Licensing Bd, 268 Mich App 202, 214; 707 NW2d 353 (2005). We
must give deference to the lower court’s findings in conducting this review. Id. at 214 n 3.
An inverse condemnation claim arises where the government takes private property
without commencing condemnation proceedings. Electro-Tech Inc v H F Campbell Co, 433
Mich 57, 88-89; 445 NW2d 61 (1989). When such a taking occurs, the Michigan Constitution
entitles the property owner to just compensation for the taking. Id. at 89. “To be liable for a
‘taking’ for purposes of inverse condemnation, the property owner must demonstrate that the
government, by its actions, has effectively and permanently deprived the owner of any
possession or use of the property.” Ligon v Detroit, 276 Mich App 120, 131; 739 NW2d 900
(2007) (quotation marks and citation omitted). A plaintiff must show a causal connection
between the government’s actions and the alleged damages, Hinojosa v Dep’t of Natural
Resources, 263 Mich App 537, 548-549; 688 NW2d 550 (2004), in that the “government’s
actions were a substantial cause of the decline of its property . . . [and must also prove] that the
government abused its legitimate powers in affirmative actions directly aimed at the plaintiff’s
property,” Merkur Steel Supply Inc v Detroit, 261 Mich App 116, 130; 680 NW2d 485 (2004)
(citation omitted).
-7-
In the present matter, after considering the opinions of plaintiff and defendants’ experts,
the court concluded:
This court cannot conclude that the lack of a winter drawdown of the lake level
between 1997 and 2001 was the substantial cause of the mounding on the
property adjacent to the seawall. The court gives more weight to the theory that
wind-driven ice floes from the lake are pushing the seawall backward causing the
mounding. There is no evidence of record that the latter phenomenon is
dependent on lake level. At best, the experts [sic] opinions are equal which
means the plaintiff has failed to meet his burden of proof by the preponderance of
the evidence. As such, the court cannot find inverse condemnation or a causal
connection between the defendants [sic] action and the alleged damages.
After our review of the record, and in light of the circuit court’s consideration of the evidence,
we cannot conclude that that court clearly erred. Contrary to plaintiff’s position, MacNeill’s
causation theory was unrelated to, and independent of, the lake levels. It does not follow, as
plaintiff would have us believe, that defendants necessarily set in motion the destructive force,
allegedly the lake levels, that caused damage to the property. As plaintiff has raised no other
arguments with respect to this issue, we conclude that the circuit court did not reversibly err
when it declined to conclude that defendants’ actions were a substantial cause of the mounding
on plaintiff’s property.
IV. Expert Witness
Plaintiff also argues that the circuit court committed reversible err by considering the
expert testimony of Duane MacNeill because his opinions were unreliable and unscientific
inconsistent with MRE 702. We disagree. We review a trial court’s decision to admit or exclude
expert testimony for an abuse of discretion. In re Wentworth, 251 Mich App 560, 562-563; 651
NW2d 773 (2002). A court abuses its discretion if its decision is outside the principled range of
outcomes. Dep’t of Environmental Quality v Waterous Co, 279 Mich App 346, 380; ___ NW2d
___ (2008). Further, it is for the trier of fact to decide which expert to believe and the weight to
be afforded the testimony. Guerrero v Smith, 280 Mich App 647, 669; ___ NW2d ___ (2008).
MRE 702 controls the admission of expert testimony and states:
If the court determines that scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or otherwise if (1) the
testimony is based on sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
Thus, for expert testimony to be admissible “(1) the witness [must] be an expert, (2) there are
facts in evidence that require or are subject to examination and analysis by a competent expert,
and (3) the knowledge is in a particular area that belongs more to an expert than to the common
man.” Dep’t of Environmental Quality, supra at 381. The expert’s testimony, including the
underlying data and the methodologies relied upon, must also be reliable and a circuit court must
-8-
ascertain its reliability before admitting the testimony. Gilbert v DaimlerChrysler Corp, 470
Mich 749, 779; 685 NW2d 391 (2004). As our Supreme Court noted in Gilbert, the vetting of
expert testimony requires “a searching inquiry:”
[I]t is insufficient for the proponent of expert opinion merely to show that the
opinion rests on data viewed as legitimate in the context of a particular area of
expertise (such as medicine). The proponent must also show that any opinion
based on those data expresses conclusions reached through reliable principles and
methodology. [Id. at 782 (footnote omitted).]
Here, the thrust of plaintiff’s arguments is that MacNeill’s testimony was unreliable.
Plaintiff first contends that MacNeill’s testimony regarding the windblown ice phenomenon was
unsupported by any facts. Plaintiff’s position is factually inaccurate. The VanWulfens admitted
during ILLA petition proceedings in 1996 that wind had blown ice toward their shores and that
ice had pushed their seawall forward. A previous owner of the property also admitted during the
2001 ILLA petition proceedings that he observed wind force ice from the lake onto the shore.
MacNeill himself also observed the phenomenon of ice being pushed across land by the force of
wind. On one occasion, the county’s drain commissioner observed a dock that had been pushed
up on shore by an “ice floe.” The fact that some evidence contradicted MacNeill’s theory, and
the fact that MacNeill did not consult wind-speed data and did not personally observe the
phenomenon on Avery Lake is immaterial to MacNeill’s reliability. Thus, we cannot conclude
that the court abused its discretion by admitting and considering MacNeill’s deposition testimony
pursuant to MRE 702.
In any event, the circuit court may very well have taken the factors plaintiff cites into
account when considering what weight, if any, MacNeill’s testimony should be afforded. These
are issues for the trier of fact to judge, not this Court, and we will defer to the trier of fact’s
judgment. Guerrero, supra at 669. Further, we will not disturb the court’s findings in this
regard unless we would have reached a different result had we been in the court’s position. Jott,
Inc v Clinton Charter Twp, 224 Mich App 513, 525-526; 569 NW2d 841 (1997). After our
review of the record, we cannot conclude that, had we occupied the circuit court’s position, we
would have reached a different result.
We must reject plaintiff’s other arguments that MacNeill’s testimony lacked reliability
for this same reason. Specifically, plaintiff asserts that MacNeill’s contention that the mounding
began shortly after the seawall was built is unreliable because MacNeill admitted that he had no
personal knowledge of that supposed fact and that MacNeill’s methodology for testing the
seawall’s foundation was unreliable because MacNeill simply probed the ground with a rod
instead of digging down to the wall’s base. Again, these arguments relate to the believability of
MacNeill’s testimony and to the weight it should be given, not to whether the circuit court
should have admitted the testimony pursuant to MRE 702. We will defer to the trier of fact’s
judgment on these issues. Guerrero, supra at 669.
Lastly, plaintiff contends that MacNeill’s rejection of Dannemiller’s frost heave theory as
the cause of the mounding is unreliable and unscientific because MacNeill admitted that he never
observed frost heave at Avery Lake and because MacNeill is not a hydrologist. We disagree.
MacNeill indicated during his deposition that his testimony was based on scientific principles.
MacNeill also testified that he had observed land that had been lifted up due to frost subside after
-9-
a thaw while employed at the highway department. Both MacNeill’s 30 years of practical
experience as an engineering consultant and his educational background, which includes training
in hydrology, qualified him to testify to these matters and it is irrelevant that he did not observe
frost heave on plaintiff’s property. MacNeill was called upon to testify to the cause of the
mounding on plaintiff’s property. We can see no reason—and plaintiff has not proffered one—
why it was necessary that MacNeill have some special heightened expertise in hydrology beyond
that which he has acquired through both his formal education and his extensive practical
experience. See Farr v Wheeler Mfr Corp, 24 Mich App 379, 384-388; 180 NW2d 311 (1970).
For the foregoing reasons, we conclude that the court did not abuse its discretion by admitting
and considering MacNeill’s testimony.
V. Great Weight of the Evidence
Plaintiff further contends that the circuit court’s verdict was against the great weight of
the evidence. Because plaintiff did not present a motion to this effect below, plaintiff has failed
to preserve this argument for appellate review and, thus, this argument is waived unless a
miscarriage of justice would result. Hyde v Univ of Michigan Bd of Regents, 226 Mich App 511,
525; 575 NW2d 36 (1997). Plaintiff’s argument on appeal is simply that plaintiff’s expert,
Dannemiller, was more convincing that defendants’ expert, MacNeill. We have already
concluded that MacNeill’s testimony was properly admitted and considered pursuant to MRE
702. Given that the weight to be afforded such testimony is best left to the trier of fact and not
this Court, Guerrero, supra at 669, we fail to see how our refusal to consider the issue will result
in a miscarriage of justice. As plaintiff has presented no other argument showing us that an
injustice will result, we consider plaintiff’s argument waived. Rickwalt v Richfield Lakes Corp,
246 Mich App 450, 464; 633 NW2d 418 (2001); Hyde, supra at 525.
VI. Reservation of Federal Claim
On cross-appeal, defendants argue that the circuit court erred by accepting plaintiff’s
England Reservation because it was untimely made. We cannot conclude that the circuit court
erred.
A. Standard of Review
This issue presents a question of law that we review de novo. Wold Architects and
Engineers v Strat, 474 Mich 223, 229; 713 NW2d 750 (2006).
B. The England Reservation Doctrine
An England Reservation permits a litigant to preserve a federal claim distinct from an
antecedent state action that may moot the federal issue. This doctrine was formulated in England
v Louisiana State Bd of Medical Examiners, 375 US 411, 412-413; 84 S Ct 461; 11 L Ed 2d 440
(1964), where appellants, a group of chiropractors, brought suit in a Louisiana federal district
court, alleging that Louisiana’s Medical Practice Act, as applied to them, violated the Fourteenth
-10-
Amendment. The federal court applied the Pullman abstention doctrine,4 staying the
proceedings in federal court, and affording the state court an opportunity to determine whether
the act applied to the chiropractors. Id. In effect, if the state court determined that the act did not
apply to appellants, this would end the controversy and there would be no reason for the federal
court to hear the Fourteenth Amendment claim. Upon returning to state court, appellants fully
litigated both their state and federal claims. Id. at 413. The Louisiana appellate court
determined that the act applied to them and did not violate the Fourteenth Amendment; the
Louisiana Supreme Court denied review. Id. at 413-414. Upon returning to federal district
court, the district court dismissed appellant’s complaint on the grounds that the issues had
already been decided in state court. Id. at 414. On appeal to the United States Supreme Court,
the Court held that a party who is remitted to state court under the abstention doctrine court may
reserve his federal claims by refusing to litigate them in the state forum. Id. at 421-422.
However, if the party, without reservation, freely and fully litigates his federal claims in the state
forum, that party has relinquished his right to return to federal court. Id. at 419, 421-422.
The Supreme Court more recently explained its decision in England in San Remo Hotel,
LP v San Francisco, 545 US 323, 338-340; 125 S Ct 2491; 162 L Ed 2d 315 (2005). The Court
indicated that its holding in England was limited to cases where the state issue is distinct from
the federal one and opined that “typical” England cases involve those where the federal question
will be made moot by the state court determination. Id. at 339-340. The Court stated:
‘Typical’ England cases generally involved federal constitutional challenges to a
state statute that can be avoided if a state court construes the statute in a particular
manner. In such cases, the purpose of abstention is not to afford state courts an
opportunity to adjudicate an issue that is functionally identical to the federal
question. To the contrary, the purpose of Pullman abstention in such cases is to
avoid resolving the federal question by encouraging a state-law determination that
may moot the federal controversy. [Id. at 339 (footnote and citations omitted).]
The court held that an England Reservation will not negate any preclusive effect that a state
court judgment may have with respect future federal litigation. Id. at 338.
Here, however, plaintiff was not involuntarily forced into state court after the federal
court invoked a Pullman abstention. Rather, plaintiff’s claim was never properly before the
federal court as that court deemed his takings claims to be unripe under Williamson Co
Regulatory Planning Comm’n v Hamilton Bank, 473 US 172; 105 S Ct 3108; 87 L Ed 2d 126
(1985). In Williamson Co, the Supreme Court indicated that “if a State provides an adequate
procedure for seeking just compensation, the property owner cannot claim a violation of the Just
Compensation Clause until it has used the procedure and been denied just compensation.” Id. at
195. Thus, a takings claim will not be ripe for review in the federal forum until the plaintiff has
sought compensation through state court procedures. Id. at 194-195. It would seem to
necessarily follow that a plaintiff must file in state court first. Alternatively, if the plaintiff first
4
Railroad Comm’n of Texas v Pullman Co, 312 US 496; 61 S Ct 643; 85 L Ed 971 61 (1941).
-11-
files his claim in federal court, his claim would be deemed unripe and he would be required to
return to state court. In many instances, however, state takings law and federal law are
synonymous and, thus, a plaintiff risks preclusion of his claims in the federal court when he
returns to that forum.
The Supreme Court’s decision in San Remo Hotel, however, indicates that an England
Reservation has no place in the litigation when the litigant finds himself in state court pursuant to
Williamson Co. San Remo Hotel, supra at 33-341; see Montana v United States, 440 US 147,
163; 99 S Ct 970; 59 L Ed 2d 210 (1979). In San Remo Hotel, the petitioners’ as applied claims
were found to be unripe under Williamson Co. The Court stated:
Unlike their [facial constitutional challenge], petitioners’ as-applied claims were
never properly before the District Court, and there was no reason to expect that
they could be relitigated in full if advanced in the sate proceedings. In short, our
opinion in England does not support petitioners’ attempt to circumvent [the
preclusion doctrines of the full faith and credit clause]. [San Remo Hotel, supra at
341.]
The Court then went on to state, “The relevant question . . . is not whether the plaintiff has been
afforded access to a federal forum; rather, the question is whether the state court actually decided
an issue of fact or law that was necessary to its judgment.” Id. 342. Thus, where the federal
question and the state question are one in the same, the England Reservation will not function to
insulate a plaintiff’s claim. Further, given the purpose of England and the context in which
England was decided, the England Reservation is simply inapplicable when a federal court
dismisses an action pursuant to Williamson Co. See Treister v Miami, 893 F Supp 1057, 1071
(SD Fla 1992) (England inapplicable where jurisdiction has not been properly invoked due to
lack of ripeness). Stated otherwise, as numerous federal courts have concluded, the England
Reservation is only appropriate where a litigant has properly invoked the jurisdiction of the
federal court, the federal court has abstained on Pullman grounds, and the litigant has found
himself involuntarily in federal court. See Duty Free Shop, Inc v Administracion de Terrenos,
889 F2d 1181, 1183 (CA 1, 1989) (“[England] permits a plaintiff who files a case in federal
court before state proceedings begin to tell the state court that it wishes to litigate its federal
claim in that federal court; it thereby permits the federal court to engage in Pullman (not
Younger) abstention, a form of abstention that permits the federal court, in effect, to ask a state
court to clarify a murky question of state law involved in the case, while permitting the plaintiff
to return to the federal forum for determination of the federal question after the state court has
decided the issue of state law.” (emphasis in original)); Schuster v Martin, 861 F2d 1369, 1373–
1374 (CA 5, 1988) (England does not apply where litigant voluntarily chooses to pursue state
action first and there was never any abstention by federal court); Tarpley v Salerno, 803 F2d 57,
59-60 (CA 2, 1986) (England not applicable where there was never an abstention by federal
court); Griffin v Rhode Island, 760 F2d 359, 360 n 1 (CA 1, 1985) (England inapplicable where
plaintiff first filed takings claims in state court).
C. Application
Turning to the instant matter, plaintiff originally filed a three-count complaint in state
court in April 2002, alleging inverse condemnation, trespass and nuisance, and gross negligence.
Before trial, the parties stipulated to dismiss the case without prejudice. Then, in July 2004,
-12-
plaintiff filed suit in federal district court, alleging in a taking under the Fifth Amendment and
inverse condemnation under the Michigan Constitution. The federal district court found that
neither of the takings claims were properly before it pursuant to Williamson and dismissed
plaintiff’s case for lack of subject matter jurisdiction. VanWulfen, supra at 741-743. The federal
district court appears to have considered plaintiff’s federal taking claim “to be grounded in the
theory of inverse condemnation . . . .” Id. at 743. Thus, the court did not abstain from deciding
the federal takings claim under the Pullman doctrine, but rather the matter was never properly
before the court pursuant to Williamson. Id. at 741-743.
Thereafter, plaintiff returned to state court to pursue his inverse condemnation claim.
Plaintiff filed the same complaint it had filed in federal district court and made no attempt to
reserve a federal claim. Subsequently, the parties stipulated to a bench trial, at which point the
parties also agreed that their decision to forgo a jury trial in no way “constitute[d] a waiver of
any party’s right to seek a trial by jury in federal Court.” Then, for the first time during the
litigation, plaintiff asserted an England Reservation in his trial brief and restricted the scope of
his argument to state law. When the circuit court announced its opinion, it noted that it
considered the federal portion of plaintiff’s claim to be “abandoned” and dismissed the claim.
In our view, plaintiff’s assertion of the England Reservation was inappropriate in the
context of this case. Plaintiff originally filed his claim in state court. The parties stipulated to
dismiss that action and plaintiff filed in federal district court. That court did not abstain pursuant
to Pullman; rather, the issue was never properly before that court as the matter was not ripe
pursuant to Williamson Co. Thus, the requirements for an England Reservation have not been
met: Plaintiff did not first file in federal court and get punted back to state court on Pullman
grounds, thereby finding himself to be involuntarily in state court. See Duty Free Shop, Inc,
supra at 1183; Schuster, supra at 1373-1374; Tarpley, supra at 59-60; Griffin, supra at 360 n 1.
We note that even repeated attempts to make such a reservation in this context fail. See Fuller
Co v Ramon I Gil, Inc, 782 F 2d 306, 311-312 (CA 1, 1986) (despite repeated attempts at
reservation, litigant’s reservation failed because England requirements not met). Thus, we
consider the parties’ stipulation to also be ineffective for purposes of reserving plaintiff’s federal
claim.
Defendants, however, ask this Court to reverse the circuit court’s acceptance of the
reservation and find that it is invalid because it was untimely made. Defendants have
mischaracterized the circuit court’s decision. The circuit court did not accept the reservation;
rather, the court explicitly stated that as a result of plaintiff’s attempt to reserve the issue, it
considered plaintiff’s federal claim to be “abandoned” and dismissed the count. We can see no
error in this course of action as plaintiff voluntarily abandoned this count of his complaint.
Further, we cannot agree that the court’s decision effectively amounted to an acceptance of the
reservation. Rather, as we have already noted, an England Reservation is inapplicable in this
context and, thus, plaintiff’s reservation was ineffective from the outset—the circuit court’s
determination cannot have the effect of an acceptance because the reservation was null and void
in the first instance. Because an England Reservation is not appropriate in this case, we cannot
conclude that the circuit court erred by finding that plaintiff abandoned his federal claim when
plaintiff voluntarily chose not to submit his claim to the state court.
-13-
Affirmed.
/s/ Pat M. Donofrio
/s/ Kirsten Frank Kelly
/s/ Jane M. Beckering
-14-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.