NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0404n.06 No. 10-1139 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
FRANK VAN WUL FEN , Plaintiff-Appellant

v. COUNTY OF MONTMORENCY, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COU R T FOR THE EASTERN DI STRI CT OF MI CHI GAN

BEF ORE: NORRI S, ROGERS , GRI FF I N, Circuit J udg es. ROGERS, Circuit J udg e. This claim ar o s e i n response to state court proce eding s in Montmorenc y C o u n t y setting the lake level for Aver y L ake, pursuant to Mich. Comp. L aws §§ 324.30701-.30721, at 890.3 fee t above sea level during the winter months and 891.3 fee t during the

summer months. I n setting that lake leve l , t h e s t at e court rec eived expert testimony in reg ard to damag e to ce rtain lake front prope rty owned by

the Van Wulfen family , who wante d the lake le vel to be set at 888.8 fee t during the winter months. Finding that the lake leve l h ad n o t ca u s ed the damag e sust ained by the Van Wulfen home, the court decide d that the s lightly h i gh er lake levels 1

wer e ac cepta

ble.

The state court was persua ded in rea ching this conclusion by the testimony of an eng ineer , 1 who opined that the da

mag e to the Van Wulfen home was due to the g radua l settling of the home , which was mostly cause d by the home’s not being ere cted on foundations and the home’s being built to a sig nificant e x tent over pe at.No. 10-1139

Van W ulfen v. County of Montmorenc y
P l ai n t i ff-Appellant Frank Van W ulfen asserts that the l ake, at its curr ent l evel, has cause d damag e to his lakefr ont home and surr ounding pr operty , such that he is entitled to compensa tion. Be cause of this, Van Wulfen filed suit in fede ral court, alleg ing violation of the Fifth and Four teenth Amendments t hroug h the C ounty ’s t aking of t he Va n Wulfen proper

ty without just compensa tion

o r d ue proce ss of law and inverse condemna tion in violation of the United States and Mich i gan constitutions. Howeve r, befor e the fede ral court would consider his taking s claims, Van Wulfen was
re q u ired, pursuant to W

illiamson County Regional Planning Commission v. Hamilton Bank o f Johnson City , 473 U.S. 172 (1985), t o b ri n g those claims in state court. See Van W ulfen v. Montmorenc

y County , 345 F. Supp. 2d 730, 741-43 (E.D. Mich. 2004). The state court ref used to rule on Van Wulfen’s claim in reg ard to the damag e to his ho m e, fi n d i n g the court’s causa tion deter mination during lake- level proce eding s prec lusive. The state court rec eived expert testimony

on Van Wulfen’s claim in reg ard to the damag e to his surrounding proper ty , and held that there was
no causa l connec tion between the County ’s actions in setting the lake level and the damag e to t he Van Wulfen property

. When Van W ulfen re turned to fe dera l court for adjudication of his taking s claim s , t h e district court found the s tate court’s causa tion deter minations prec lusive. Van W ulfen

v. County o

f Mo ntmorency , No. 08-10106, 2010 WL 120223, at *6-8 (E.D. Mich. J an 8, 2010) (unpublished). Thus, the district c ourt g rante d summary judgme nt in favor of the County , holding that Van Wulfen could not succe ed on his taking s claims without proving that the County cause d the damag e to his proper

ty
. Id. at *5.

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Van W ulfen v. County of Montmorenc y After car efully re v iewing the rec ord, the law, and the briefs and arg uments on appea l, we hold tha t the district c ourt’s opinion c orre ctly sets out the applicable law and corr ectly applies that law to the fac ts in the rec ord. We only briefly addre ss Van Wu l fe n ’s arg uments in reg ard to University of Tennessee v. Elliott , 478 U.S. 788 (1986), as they wer e not c onsidered by the district court. On appeal, Van Wulfen cites Elliott for the proposition that state administrative actions, which Van Wulfen alleg es the lake- level proce eding s wer e, should not be aff orded prec lusive eff

ect in fede ral c ourts. This is a misst atement of the l imited holding from Elliott , which is that the F ull Fa ith a nd Credit Act does not g ive prec lusive eff ect to unrevie wed state administrative fac tfinding in T itle V I I claims. Id. at 794, 796. This limitation on prec lusion with Title VI I claims was based

on the lang uag e of 28 U.S.C. § 2 0 0 0 e- 5 (b ), which made clea r that prec lusion was inappropria te. E l liott went on to hold that the same is not true with 42 U.S.C. § 1983, which is the stat u t e Va n Wulfen uses as the basis for his claims. Elliott , 478 U.S. at 799 (“[W] hen a state ag ency ‘ac ting in

a judicial capa city

. . . resolves disputed issues of fac t proper ly befor e it which the parties have had

an adequate opportunity to litigate,’ fede ral courts must g ive the ag enc y ’s fa ct fi nding the same prec lusive eff

ect to which it would be entitled in the State’s courts.” (alter ations in orig inal) (quoting United States v. Utah Constr. & Mining Co. , 384 U.S. 394, 422 (1966))

. Thus, even assuming for the sake of arg ument that the lake- level proce eding s can be cate g ori z ed as s t at e administrative ag ency proce eding s, there is no rea son to believe that they cannot have prec lusive eff ect, espec ially considering that they wer e clearly judicial in nature
. Moreove r, because the Full Fa ith and Credit Act require s fede ral courts to rely on the prec lusive eff ect a state would g ive its prior judgme nts, see

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Van W ulfen v. County of Montmorenc y 28 U.S.C. § 1738, and beca use Zerfas v. Bills , 40 N.W.2d 763 (Mich. 1950), shows that Michig an would g ive a lake- level deter mination prec lusive eff

ect on future litigation, this court should do the

same. Be cause the issuance of a full written opinion by this c ourt would serve no useful purpose,
we aff irm entry of judgme nt in favor of the County fo r the rea sons set forth in the district court’s opinion from J anuar

y 8, 2010, Van W

ulfen , 2010 WL 120223.

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