NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 11a0404n.06

No. 10-1139

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FRANK VAN WULFEN,

Plaintiff-Appellant

v.

COUNTY OF MONTMORENCY,

Defendant-Appellee.

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ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE EASTERN

DISTRICT OF MICHIGAN

BEFORE: NORRIS, ROGERS, GRIFFIN, Circuit Judges.

ROGERS, Circuit Judge. This claim arose in response to state court proceedings in

Montmorency County setting the lake level for Avery Lake, pursuant to Mich. Comp. Laws §§

324.30701-.30721, at 890.3 feet above sea level during the winter months and 891.3 feet during the

summer months. In setting that lake level, the state court received expert testimony in regard to

damage to certain lakefront property owned by the Van Wulfen family, who wanted the lake level

to be set at 888.8 feet during the winter months. Finding that the lake level had not caused the

damage sustained by the Van Wulfen home, the court decided that the slightly higher lake levels 1

were acceptable. 

The state court was persuaded in reaching this conclusion by the testimony of an engineer,

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who opined that the damage to the Van Wulfen home was due to the gradual settling of the home,

which was mostly caused by the home’s not being erected on foundations and the home’s being built

to a significant extent over peat.
No. 10-1139

Van Wulfen v. County of Montmorency

Plaintiff-Appellant Frank Van Wulfen asserts that the lake, at its current level, has caused

damage to his lakefront home and surrounding property, such that he is entitled to compensation. 

Because of this, Van Wulfen filed suit in federal court, alleging violation of the Fifth and Fourteenth

Amendments through the County’s taking of the Van Wulfen property without just compensation

or due process of law and inverse condemnation in violation of the United States and Michigan

constitutions. However, before the federal court would consider his takings claims, Van Wulfen was

required, pursuant to Williamson County Regional Planning Commission v. Hamilton Bank of

Johnson City, 473 U.S. 172 (1985), to bring those claims in state court. See Van Wulfen v.

Montmorency County, 345 F. Supp. 2d 730, 741-43 (E.D. Mich. 2004). The state court refused to

rule on Van Wulfen’s claim in regard to the damage to his home, finding the court’s causation

determination during lake-level proceedings preclusive. The state court received expert testimony

on Van Wulfen’s claim in regard to the damage to his surrounding property, and held that there was

no causal connection between the County’s actions in setting the lake level and the damage to the

Van Wulfen property. When Van Wulfen returned to federal court for adjudication of his takings

claims, the district court found the state court’s causation determinations preclusive. Van Wulfen

v. County of Montmorency, No. 08-10106, 2010 WL 120223, at *6-8 (E.D. Mich. Jan 8, 2010)

(unpublished). Thus, the district court granted summary judgment in favor of the County, holding

that Van Wulfen could not succeed on his takings claims without proving that the County caused the

damage to his property. Id. at *5.

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No. 10-1139

Van Wulfen v. County of Montmorency

After carefully reviewing the record, the law, and the briefs and arguments on appeal, we

hold that the district court’s opinion correctly sets out the applicable law and correctly applies that

law to the facts in the record. We only briefly address Van Wulfen’s arguments in regard to

University of Tennessee v. Elliott, 478 U.S. 788 (1986), as they were not considered by the district

court. On appeal, Van Wulfen cites Elliott for the proposition that state administrative actions,

which Van Wulfen alleges the lake-level proceedings were, should not be afforded preclusive effect

in federal courts. This is a misstatement of the limited holding from Elliott, which is that the Full

Faith and Credit Act does not give preclusive effect to unreviewed state administrative factfinding

in Title VII claims. Id. at 794, 796. This limitation on preclusion with Title VII claims was based

on the language of 28 U.S.C. § 2000e-5(b), which made clear that preclusion was inappropriate. 

Elliott went on to hold that the same is not true with 42 U.S.C. § 1983, which is the statute Van

Wulfen uses as the basis for his claims. Elliott, 478 U.S. at 799 (“[W]hen a state agency ‘acting in

a judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had

an adequate opportunity to litigate,’ federal courts must give the agency’s factfinding the same

preclusive effect to which it would be entitled in the State’s courts.” (alterations in original) (quoting

United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966)). Thus, even assuming for

the sake of argument that the lake-level proceedings can be categorized as state administrative

agency proceedings, there is no reason to believe that they cannot have preclusive effect, especially

considering that they were clearly judicial in nature. Moreover, because the Full Faith and Credit

Act requires federal courts to rely on the preclusive effect a state would give its prior judgments, see

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No. 10-1139

Van Wulfen v. County of Montmorency

28 U.S.C. § 1738, and because Zerfas v. Bills, 40 N.W.2d 763 (Mich. 1950), shows that Michigan

would give a lake-level determination preclusive effect on future litigation, this court should do the

same. 

Because the issuance of a full written opinion by this court would serve no useful purpose,

we affirm entry of judgment in favor of the County for the reasons set forth in the district court’s

opinion from January 8, 2010, Van Wulfen, 2010 WL 120223.

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