New Facts, New Takings: How Ongoing Government Conduct Can Defeat Preclusion and Finality in De Facto Takings — Commentary on HRT Enterprises v. City of Detroit

I. Introduction

The Sixth Circuit’s published decision in HRT Enterprises v. City of Detroit, Nos. 23‑1847/1855 (6th Cir. Dec. 22, 2025), is a significant contribution to three intersecting areas of law:

• Regulatory / de facto takings (especially in the context of airports and FAA restrictions);
• Ripeness and “finality” in takings litigation after Pakdel and Knick; and
• Claim and issue preclusion (res judicata and collateral estoppel) when a property owner has already litigated related inverse-condemnation claims in state court.

The case arises from the City of Detroit’s long-running airport expansion and safety program around Coleman A. Young International Airport. HRT Enterprises owns an 11.8‑acre industrial parcel adjacent to the airport. Over decades, the City has acquired surrounding properties, imposed and relied on FAA-imposed height and “visibility” restrictions, closed roads, and allowed blight to spread, without ever formally condemning HRT’s land.

HRT has been trying to obtain compensation since 2002, bringing:

• a 2002 Michigan state inverse‑condemnation suit (lost after a jury verdict of “no taking”),
• a 2008 federal takings case (dismissed under the then‑controlling Williamson County state‑exhaustion rule), and
• a 2009 state action (dismissed on res judicata grounds).

In 2012, HRT filed the present § 1983 de facto takings claim in federal court and ultimately obtained a jury award of just under $2 million. The City appealed on multiple grounds: ripeness, preclusion, liability, trial structure, and damages. HRT cross‑appealed the district court’s use of remittitur after the first trial.

The Sixth Circuit (Judge Griffin, joined by Judge Mathis) affirmed in full. Judge Thapar dissented, concluding that res judicata barred the entire suit.

This commentary explains the decision, its doctrinal underpinnings, and its likely impact on future takings and land‑use litigation.

II. Summary of the Opinion

Holding (majority):

• HRT’s federal de facto takings claim was ripe. The City’s ongoing course of conduct and refusal to condemn provided a sufficiently “final” position for Article III purposes.
• Neither claim preclusion (res judicata) nor issue preclusion (collateral estoppel) under Michigan law barred the federal action:
  • The 2002 state jury verdict did not preclude later claims because many new, material facts arose after 2005.
  • The 2009 state dismissal was “on the merits,” but the federal suit rested on additional key events between July 2009 and 2012 (not before the state courts), so it was not the “same claim.”
• The district court correctly granted summary judgment on liability, holding that the City’s conduct amounted to a de facto taking under the Sixth Circuit’s precedent in Amen v. City of Dearborn, even though the precise date of the taking was left to the jury.
• Any error in relying on unsworn testimony at summary judgment was harmless.
• The district court did not abuse its discretion in its handling of bifurcation / trial structure or in instructing the second jury that a taking had occurred on January 1, 2009.
• The district court’s remittitur of the first jury’s $4.25 million award to $2 million was within its discretion; HRT’s cross‑appeal seeking restoration of the larger verdict failed.

Dissent (Judge Thapar):

• Under Michigan’s broad res judicata doctrine, the 2009 state‑court dismissal (which applied res judicata based on the 2002 jury verdict) precluded this federal case.
• The dismissal was on the merits, concerned the same parties, and—given HRT’s consistent insistence that the taking occurred on January 1, 2009—covered the same “matter” as the federal suit.
• Equitable “manifest injustice” or public‑policy exceptions are either non‑existent or extremely narrow under modern Michigan law and do not permit a Knick‑based escape from preclusion.

III. Precedents Cited and Their Role

A. Ripeness and Finality

• Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568 (1985); Abbott Labs. v. Gardner, 387 U.S. 136 (1967) – classic ripeness formulations: federal courts avoid “abstract disagreements” and claims resting on “contingent future events.” These frame the Article III ripeness inquiry.
• Palazzolo v. Rhode Island, 533 U.S. 606 (2001) – a takings claim is ripe when the “permissible uses of the property are known to a reasonable degree of certainty.” Also warns against “repetitive or unfair land‑use procedures.”
• City of Monterey v. Del Monte Dunes, 526 U.S. 687 (1999) – cited through Palazzolo for the idea that governments cannot indefinitely avoid a final decision through burdensome procedures.
• Pakdel v. City & County of San Francisco, 594 U.S. 474 (2021) – key modern case: the finality requirement is “relatively modest”; courts only need a “definitive position” on how the regulation applies to the particular property, to ensure plaintiffs are not complaining about hypothetical harms.
• Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) – cited for the proposition that finality in takings is a prudential, not jurisdictional, requirement—so courts may decline to apply it rigidly, especially after years of litigation.
• Lilly Invs. v. City of Rochester, 674 F. App’x 523 (6th Cir. 2017) – warns that rigid finality rules would let governments evade the Takings Clause “by simply refusing to act or by imposing unfair conditions.” The majority uses this to reject the City’s late‑stage ripeness objection.

B. Claim and Issue Preclusion

• 28 U.S.C. § 1738; Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005); Parsons Steel, Inc. v. First Ala. Bank, 474 U.S. 518 (1986) – federal courts must give state‑court judgments the same preclusive effect that state courts would give them.
• Adair v. Michigan, 680 N.W.2d 386 (Mich. 2004) – Michigan’s claim‑preclusion test: (1) prior action decided on the merits; (2) same parties or privies; (3) the matter in the later case was, or could have been, resolved in the earlier one.
• Labor Council, Mich. Fraternal Ord. of Police v. City of Detroit, 525 N.W.2d 509 (Mich. 1994) – claim preclusion does not apply “if the facts change, or new facts develop.”
• Stanislaw v. Thetford Twp., 2021 WL 3027195 (6th Cir. July 19, 2021) – applying Michigan law; no preclusion where a subsequent claim is based on new material facts involving ongoing unlawful conduct that could not have been litigated earlier.
• Monat v. State Farm Ins. Co., 677 N.W.2d 843 (Mich. 2004) – issue‑preclusion elements: (1) the factual question was actually litigated and essential to the prior judgment; (2) same parties had a full and fair opportunity to litigate; (3) mutuality of estoppel.
• Storey v. Meijer, Inc., 429 N.W.2d 169 (Mich. 1988) – supplies the now‑controversial footnote suggesting possible exceptions where applying preclusion would offend public policy or cause manifest injustice (relied upon in the dissent’s discussion, even as modern Michigan law questions its scope).
• Roberts v. City of Troy, 429 N.W.2d 206 (Mich. Ct. App. 1988); Mich. Ct. R. 2.504(B)(3) – a summary‑judgment dismissal under Michigan rules is a decision “on the merits” for res judicata purposes.
• San Remo Hotel, L.P. v. City & Cnty. of San Francisco, 545 U.S. 323 (2005) – a state‑court judgment in takings litigation has normal preclusive effects in later federal suits; Williamson County’s former state‑exhaustion rule did not provide an exception.
• In re Pardee, 475 N.W.2d 870 (Mich. Ct. App. 1991) – res judicata should not bar “fresh litigation” when the law contemplates periodic re‑determinations based on “new facts and changed circumstances.” Used by the majority to illustrate the flexibility of Michigan’s new‑facts doctrine.

C. Substantive Takings Law

• U.S. Const. amend. V – “nor shall private property be taken for public use, without just compensation.” Applied to states and municipalities via the Fourteenth Amendment.
• Amen v. City of Dearborn, 718 F.2d 789 (6th Cir. 1983) – the central precedent for de facto takings in the Sixth Circuit. It holds that a deliberate municipal course of conduct—short of formal condemnation—can constitute a taking if it deprives the owner of all or essentially all practical uses of the property.
• Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978) – establishes the classic “ad hoc, factual” multi‑factor framework for regulatory takings, including economic impact and interference with reasonable investment-backed expectations.
• United States v. Gen. Motors Corp., 323 U.S. 373 (1945) – a “constructive” taking can occur when the effects of governmental action are so complete as to deprive the owner of all or most of his interest.
• Woodland Mkt. Realty Co. v. City of Cleveland, 426 F.2d 955 (6th Cir. 1970); Sayre v. City of Cleveland, 493 F.2d 64 (6th Cir. 1974) – earlier Sixth Circuit cases limiting takings claims where there was no physical invasion or where the property fell outside the true redevelopment zone. The majority distinguishes HRT’s case from these decisions.
• Knick v. Twp. of Scott, 588 U.S. 180 (2019) – overruled Williamson County’s state‑litigation requirement; a property owner has a ripe federal claim the moment the government takes property without paying. The majority cites Knick mainly on timing; the dissent uses it to discuss the old “Catch‑22.”
• United States v. Clarke, 445 U.S. 253 (1980) – in a physical invasion case, the date of invasion is generally the date of taking.
• United States v. Dickinson, 331 U.S. 745 (1947) – in cases of gradual flooding or similar progressive intrusions, courts should avoid “procedural rigidities” forcing owners into premature or piecemeal litigation; the “taking” may be deemed complete only when the situation stabilizes.

D. Procedure: Summary Judgment, Bifurcation, Damages

• Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962 (6th Cir. 1991) – unsworn testimony cannot be considered at summary judgment; but here any reliance was harmless.
• Fed. R. Civ. P. 61 – harmless‑error rule; no reversal unless substantial rights were affected.
• Craddock v. FedEx Corp. Servs., Inc., 102 F.4th 832 (6th Cir. 2024) – standard for reviewing bifurcation decisions (abuse of discretion).
• Fed. R. Civ. P. 42(b) – allows separate trials “for convenience, to avoid prejudice, or to expedite and economize.”
• Saxion v. Titan-C-Mfg., Inc., 86 F.3d 553 (6th Cir. 1996); In re Bendectin Litig., 857 F.2d 290 (6th Cir. 1988) – bifurcation standards; liability and damages often properly tried separately.
• Smith v. John Swafford Furniture Co., 614 F.2d 552 (6th Cir. 1980) – appellate review of remittitur is for abuse of discretion.
• Gregory v. Shelby Cnty., 220 F.3d 433 (6th Cir. 2000) – a damages award must stand unless beyond the range of proof, shocking to the conscience, or the product of mistake.
• Farber v. Massillon Bd. of Educ., 917 F.2d 1391 (6th Cir. 1990) – damages must be viewed in the light most favorable to the awardee.
• Lee Shops, Inc. v. Schatten-Cypress Co., 350 F.2d 12 (6th Cir. 1965) – landowners may testify to the value of their own property.
• Fed. R. Evid. 702 & advisory notes; TVA v. Easement & Right of Way Over a Tract of Land in Madison Cnty., 405 F.2d 305 (6th Cir. 1968) – owner valuation testimony still requires some foundation beyond conjecture.
• Wallace v. FedEx Corp., 764 F.3d 571 (6th Cir. 2014) – describes “maximum recovery” principles in remittitur; the majority explains Wallace does not mandate automatically adopting the next‑highest valuation figure.

E. Additional Authorities in the Dissent

The dissent relies on a number of additional, mostly post‑Knick authorities to reinforce the strictness of res judicata and the limited effect of Knick on preclusion:

• Estes v. Titus, 751 N.W.2d 493 (Mich. 2008); Washington v. Sinai Hosp. of Greater Detroit, 733 N.W.2d 755 (Mich. 2007) – reiterate Michigan’s broad application of res judicata.
• Neal v. Keefer, No. 365676, 2024 WL 1229849 (Mich. Ct. App. Mar. 21, 2024) – cited as casting doubt on any robust “public‑policy” exception to res judicata in modern Michigan law.
• Schafer v. Kent County, 515 Mich. 1 (2024) – described as holding that finality and res judicata limit the retroactive effect of new decisions; procedural doctrines like res judicata still apply even when law changes.
• Tejas Motel, L.L.C. v. City of Mesquite, 63 F.4th 323 (5th Cir. 2023); Stensrud v. Rochester Genesee Reg’l Transp. Auth., 2024 WL 2104604 (2d Cir. May 10, 2024); Bush v. Phila. Redevelopment Auth., 2025 WL 999080 (3d Cir. Apr. 3, 2025); Ocean Palm Golf Club P’ship v. City of Flagler Beach, 861 F. App’x 368 (11th Cir. 2021) – circuits uniformly hold that Knick does not retroactively undo state‑court preclusion in older takings cases.

IV. The Court’s Legal Reasoning

A. Procedural History and Framing of the Dispute

The majority begins by carefully recounting the sequence of litigation:

1. 2002 state case: HRT and its tenants sued Detroit in Michigan court for inverse condemnation; jury in 2005 found no taking. The Michigan Court of Appeals affirmed, and the Michigan Supreme Court denied leave.
2. 2008 federal case: HRT alleged a new federal takings claim with additional facts; federal district court held it was premature under Williamson County because HRT had not exhausted state remedies based on those new facts, and dismissed without prejudice.
3. 2009 state case: HRT filed another inverse‑condemnation action in state court. The trial court dismissed on res judicata grounds citing the 2005 verdict; the Michigan Court of Appeals affirmed in 2012, finding “no new facts in evidence” between 2005 and 2009. HRT did not seek further review.
4. 2012 federal case (this case): HRT filed a § 1983 claim alleging a de facto taking, now extending the factual period into 2010–2011 and beyond. Detroit moved to dismiss for lack of ripeness and under res judicata and collateral estoppel.

The district court:

• found that post‑2005 factual developments distinguished the federal claim from the 2002 state suit;
• rejected preclusion based on both the 2002 and 2009 state cases;
• granted partial summary judgment for HRT on liability (a taking had occurred) while leaving the date of the taking and damages to the jury; and
• ultimately entered judgment based on the second jury’s award of just under $2 million.

On appeal, the City bundled together jurisdictional, preclusion, and merits challenges; HRT cross‑appealed the remittitur.

B. Ripeness: When Is a De Facto Taking “Final”?

The City’s ripeness argument was that HRT’s claim remained speculative: there was no formal condemnation or final City decision to build a new runway requiring HRT’s land; any future acquisition or impact might never occur.

The Sixth Circuit rejected that argument on several grounds:

1. The “permissible uses” of the property are now clear. Drawing on Palazzolo and Pakdel, the court focused on whether there is a definitive governmental position about how regulations apply to the property. It found that a host of undisputed post‑2005 facts show that:
   • HRT lost all tenants (by late 2008);
   • the property became vacant, vandalized, and used as a dumping ground, in part via access over City land that the City did not maintain;
   • the City publicly and repeatedly committed to acquiring land to comply with FAA standards and to construct or plan for a replacement runway;
   • the City kept McNichols Road closed and continued to buy other properties in and around the “Mini‑Take” area, while leaving HRT’s critical parcel in limbo.
   Together, these facts demonstrated that the City had taken a definitive position that effectively prevented HRT from using, leasing, or selling its property on any normal economic basis.
2. Finality is “relatively modest” and prudential. Citing Pakdel, the court reiterated that finality is “relatively modest”—it exists to ensure courts are not addressing hypothetical injuries, not to provide a technical escape hatch for governments.
3. After years of litigation, it would be unfair to insist on further “finality.” The majority leaned on Lucas to characterize finality as a prudential, not jurisdictional doctrine. After “years of protracted litigation, multiple rounds of summary judgment briefing, and two jury trials,” it would be unfair—and a misuse of prudential doctrine—to dismiss the case for lack of ripeness.
4. Preventing abuse of the finality doctrine. Echoing Lilly Investments, the court warned that if courts demanded still more “finality,” municipalities could avoid takings liability by never quite deciding anything—maintaining restrictive plans and de facto limitations for decades while refusing to condemn properties.

Thus, the court held that HRT’s claim rests on a “sufficiently final set of facts,” is not hypothetical, and is ripe for adjudication.

C. Claim and Issue Preclusion Under Michigan Law

1. 2002 State Litigation: Substantial New Facts

The City first argued that the 2002 inverse‑condemnation suit and 2005 jury verdict (no taking) barred the federal claim. The majority disagreed, emphasizing:

• Michigan’s own doctrine: res judicata does not apply where “facts change, or new facts develop” (Labor Council), or where a later claim is based on new material facts representing ongoing wrongful conduct (Stanislaw).
• Between 2002/2005 and 2012, the factual landscape changed dramatically:
  • HRT’s tenants left; the property became fully vacant;
  • surrounding City property deteriorated and was mismanaged, facilitating vandalism and dumping;
  • the City’s public statements and official plans regarding airport expansion, land acquisition, and road closures escalated; and
  • the FAA‑related regulatory constraints on HRT’s site became practically inescapable absent City cooperation.

On that basis, the 2002 case and the 2012 federal case reflected different operative fact patterns. HRT did not have a “full and fair opportunity” in 2002 to litigate the later‑developing theory that the City’s continued and escalated actions after 2005 had finally stripped the property of viable uses.

2. 2009 State Litigation: A Closer Question

The 2009 state suit was tougher: it was brought precisely because Williamson County then required state exhaustion before federal filings, and it was dismissed as barred by the 2002 judgment. The Michigan Court of Appeals specifically held that “no new facts” had arisen between 2005 and July 6, 2009 (the filing date of the 2009 complaint).

The majority made several key moves:

1. Clarifying that the 2009 dismissal was “on the merits.” The district court had thought otherwise, but the Sixth Circuit corrected this: under Michigan law, an involuntary dismissal at summary judgment, including one based on res judicata, is a decision “on the merits” unless expressly limited. (Roberts; Mich. Ct. R. 2.504(B)(3)). This matters for applying § 1738 and San Remo.
2. Identifying genuinely new facts after July 6, 2009. While the Michigan Court of Appeals was correct (right or wrong, but binding) as to developments through July 6, 2009, the federal complaint was not filed until August 21, 2012. During 2010–2011, further important events occurred, including:
   • March 2010: the City’s Purchasing Division publicly stated its intention to acquire all property needed for a replacement runway.
   • July 2011: HRT hired a contractor to erect a berm to deter trespassers; the City arrested the workers for trespassing and held itself out as owner of HRT’s land.
   Neither the trial court nor the Michigan Court of Appeals ever considered these facts; they were outside the record in the 2009 case.
3. New facts, new claim. Invoking In re Pardee, the majority reasoned that takings and land‑use disputes often involve slow‑developing patterns. A municipality’s earlier victory does not give it a permanent shield from later takings liability on the same parcel if the factual situation has materially worsened or evolved.
4. “The matter” was not the same. The key preclusion question under Michigan law is whether the “matter” in the later suit was or could have been resolved earlier. Because the federal complaint encompassed 2010–2011 conduct that:
   • not only intensified the pressures on HRT’s property, but
   • for the first time involved the City acting as if it owned the land (via the trespass arrests),
   the Sixth Circuit concluded this was not the same “matter” as in the 2009 litigation. Those earlier proceedings simply could not have adjudicated conduct that had not yet occurred.

The court thus held that neither claim nor issue preclusion barred HRT’s federal case.

D. De Facto Takings Liability: Applying Amen v. Dearborn

1. The Amen Standard

The majority anchored its liability analysis in Amen v. City of Dearborn, where a city’s sustained campaign—denying permits, threatening lower prices, over‑enforcing building codes, promising clearance of the area, posting “Sell to the City” signs, letting acquired properties decay—was held to constitute a de facto taking even though there had been no formal condemnation. Key principles:

• A de facto taking occurs when governmental action—short of acquisition—has effects “so complete as to deprive the owner of all or most of his interest” in the property (Gen. Motors).
• The inquiry is “ad hoc” and fact‑intensive (Penn Central): does fairness require the community, rather than the owner, to bear the costs of the government’s actions?
• Governmental actions that merely burden a right are not enough; the government must deny “all or an essential use” of the property (Amen).

2. Why Detroit’s Conduct Was a Taking as a Matter of Law

The Sixth Circuit concluded that HRT’s case “resembles Amen”:

• The City acquired numerous surrounding properties in the “Mini‑Take” area but conspicuously left out HRT’s parcel, even though FAA visibility and height restrictions required its acquisition to fully comply without waivers.
• The City closed and kept closed access roads (e.g., McNichols) and sought funding to close French Road, directly impairing access to HRT’s land.
• Airport and City officials repeatedly announced plans to acquire remaining land and to build or plan for a replacement runway, discouraging investment or leasing.
• The property fell under FAA “visibility” and height restriction lines, making new construction of commercially meaningful buildings essentially impossible absent FAA waivers and City cooperation.
• HRT lost all tenants; the industrial building sat vacant; vandalism and dumping proliferated partly through adjacent City land that was not maintained.
• In 2011, the City treated itself as the owner, orchestrating trespass arrests of HRT’s contractors.

Against this backdrop, the court held that the City’s conduct had effectively regulated or managed the value out of the property while avoiding the formal step of eminent domain. That is exactly what the de facto takings doctrine is designed to prevent.

The City invoked older cases like Woodland Market and Sayre to argue that its actions were mere planning and regulation without physical invasion. The court distinguished those decisions: there, the plaintiffs’ properties were either outside the main project area or not substantially changed in use or value by the municipal actions. By contrast, HRT’s parcel lies within the effective redevelopment/safety zone and has been dramatically impacted by Detroit’s ongoing and targeted actions.

3. Can a Court Decide “There Was a Taking” Without Deciding “When”?

The City also argued that the district court erred by granting summary judgment on liability (that a taking occurred) without determining the exact date of that taking.

The Sixth Circuit acknowledged that:

• Under Knick, a takings claim ordinarily accrues “as soon as a government takes his property for public use without paying for it.”
• In physical invasion cases, Clarke typically pegs the taking to the date of invasion.

But for gradual de facto takings—as in Dickinson’s flooding scenario and Amen’s long‑running scheme—the exact moment when the government’s incremental actions cumulate into a “taking” can be indeterminate. Dickinson teaches courts to avoid “procedural rigidities” that force owners either into piecemeal suits or into guessing an early accrual date at their peril.

Thus, it was permissible here to:

• decide as a matter of law that the City’s course of conduct had crossed the constitutional line into a taking; yet
• leave it to the jury to choose, from among the competing evidence and expert testimony, the date when that taking can fairly be said to have occurred (HRT argued for January 1, 2009; the City argued for August 13, 2015).

The City cited no authority requiring a court to pinpoint the date before granting summary judgment on the existence of a taking. Given the fact‑intensive nature of de facto takings, the majority found no error in this division of labor between judge and jury.

4. Unsworn Testimony at Summary Judgment: Harmless Error

The district court had relied, in part, on unsworn hearing testimony from an airport planning consultant (Michael Borta) and the airport’s general manager (Jason Watt) regarding FAA height restrictions and the airport layout plan.

The Sixth Circuit:

• recognized under Dole that unsworn statements cannot properly support summary judgment; but
• held the error was harmless under Rule 61:
  • the City did not seriously dispute the accuracy of the technical descriptions;
  • much of the testimony simply explained maps already in the record; and
  • no single datum was dispositive; de facto takings rely on cumulative effects.

Thus, the summary judgment on liability stood.

E. Trial Management: Bifurcation and Alleged Prejudice

The district court initially granted HRT’s motion to bifurcate the trial into a “date of taking” phase and a separate damages phase but ultimately tried both together. At the second trial, the judge instructed the jury that:

• a taking had occurred (per the summary‑judgment ruling); and
• the taking occurred on January 1, 2009 (based on the first jury’s finding, which was not vacated as to the date).

The City claimed this structure was prejudicial because it:

• prevented the City from arguing that no taking occurred; and
• forced it to concede, in effect, a legal conclusion it contested.

The Sixth Circuit rejected these arguments:

• Once the district court properly granted summary judgment on liability, the City had no right to relitigate that issue before the jury; it could only dispute when the taking occurred (in the first trial) and the amount of just compensation.
• Liability and the amount of damages are separate issues. It is routine—and often efficient—to bifurcate or structure trials so that juries consider only damages after liability is resolved. (Saxion, Bendectin).
• The City did not demonstrate concrete prejudice from being barred from discussing earlier state‑court losses at trial; those outcomes did not bear on the amount of just compensation as of the date of taking.

Accordingly, the court held that the district judge acted within the broad discretion Rule 42(b) affords, and the City received a fair trial.

F. Damages and Remittitur

After the first trial, the jury awarded HRT $4.25 million. The district court ordered a conditional remittitur to $2,008,000, concluding that the evidence did not support the higher figure. The City declined the remittitur, triggering a second trial, which resulted in a $1,976,820 verdict.

On its cross‑appeal, HRT argued that the district court abused its discretion in ordering the original remittitur and that the $4.25 million verdict should be reinstated. The Sixth Circuit disagreed, applying the Gregory/Farber standard.

1. Evaluation of Valuation Testimony

The court reviewed the competing evidence:

• Owner’s testimony (Thomas):
  • Thomas valued the property at $5 million.
  • The district court discounted this testimony as unsound; Thomas did not articulate a concrete method, comparable sales analysis, or income approach supporting his figure—only general business experience.
  • Although owners may testify to value (Lee Shops), some foundation is required (TVA; Rule 702). The appellate court held it was not an abuse of discretion to accord Thomas’s bare number little weight.
• HRT’s appraiser (Reed):
  • Reed valued the property at $3,008,000 as of January 1, 2009.
  • The district court found this “inflated” because Reed’s comparables were mostly improved properties (with buildings) rather than vacant or similarly constrained parcels, overstating HRT’s land value.
• Borta’s “placeholder” value:
  • An airport consulting document listed HRT’s parcel with a “placeholder” acquisition figure of $6 million.
  • At trial, Borta expressly disavowed that number—“no specific basis” for it.
  • The district court rightly treated it as non‑probative.
• City’s expert (Peggy Young):
  • Valued the property at $3 million in 2002, $3.19 million in 2005, and $1.5 million in 2010.
  • These appraisals were methodologically conventional and the most grounded in accepted appraisal practice.

Given this record, the Sixth Circuit agreed that a $4.25 million award was beyond the range supportable by the proof. The district court could reasonably discard the highest valuations as inadequately supported and find that no rational jury could legitimately reach $4.25 million on the admissible evidence.

2. How to Set the Remittitur Figure

HRT argued that even if some reduction was appropriate, the district court should have used Reed’s $3,008,000 appraisal as the maximum supportable figure (citing Wallace and “maximum recovery” principles).

The Sixth Circuit read Wallace more narrowly:

• Wallace describes a general approach—courts often look for the highest figure that the evidence reasonably supports, to preserve the jury’s verdict as much as possible.
• But Wallace does not require the court to accept any expert’s number simply because it is the “next‑highest” if the court finds that number itself unsupported or unreliable.

Here, the district court reasonably:

• discredited Reed’s figure as significantly overstated by improper comparables;
• rejected Thomas’s and Borta’s figures; and
• landed on $2,008,000—roughly midway between the more credible City valuations.

Under abuse‑of‑discretion review, that approach was permissible. Since the second jury—unencumbered by the first verdict—arrived at a comparable figure ($1,976,820), HRT could not show reversible error in the remittitur process.

G. The Dissent’s Competing Vision of Res Judicata

Judge Thapar’s dissent would have reversed and ordered dismissal solely on res judicata grounds. His reasoning:

• The 2009 state‑court dismissal of HRT’s second state suit was an adjudication on the merits under Michigan law (Washington, Estes, court rule 2.504(B)(3)).
• That dismissal applied res judicata based on the 2002 verdict, and the Michigan Court of Appeals affirmed, expressly finding “no new facts in evidence” between 2005 and July 6, 2009.
• Under Michigan’s broad res judicata doctrine, preclusion covers “all matters that with due diligence should have been raised,” and HRT’s federal claim is, in his view, the same matter:
  • HRT has consistently alleged that the taking occurred on January 1, 2009. That was the theory in federal court; HRT even sought summary judgment on that basis, and the jury adopted that date.
  • If the taking occurred on January 1, 2009, then any later events (2010–2011) are irrelevant to whether a taking had occurred by that date.
  • Because the Michigan courts already effectively determined that, as of 2009, there was no taking (or at least no new facts to escape preclusion), their ruling should be binding in federal court.
• As to possible exceptions:
  • He notes Storey’s suggestion of a public‑policy / manifest‑injustice exception but points out that modern Michigan cases have never applied it and even question its continued validity (Neal v. Keefer).
  • Schafer v. Kent County underscores that res judicata constrains the retroactive effect of new decisions; even when law changes (e.g., Knick overturning Williamson County), preclusion remains.
  • Other circuits have uniformly held that Knick does not allow plaintiffs to escape earlier state‑court preclusion (Tejas Motel, Stensrud, Bush, Ocean Palm).

In short, the dissent sees HRT as precisely the victim of the Williamson County “Catch‑22” described in Knick—but insists that, under Michigan and federal preclusion law, that perceived unfairness cannot justify ignoring res judicata.

V. Impact and Broader Significance

A. For Property Owners and Takings Litigants

The decision is most important for property owners facing long‑term, incremental government interference—especially near public infrastructure like airports:

• It reaffirms that a de facto or regulatory taking can occur when a government systematically erodes property value and uses through plans, acquisitions, road closures, and regulatory entanglements—even without a formal condemnation.
• Property owners who lost earlier suits are not forever barred from new claims if:
  • the facts have materially changed after the earlier judgment; and
  • the new claim targets later conduct that further restricts use or solidifies governmental control.
• Owners subject to FAA safety and height restrictions may rely on HRT to argue that municipal reliance on those restrictions, coupled with deliberate acquisition of surrounding parcels and refusal to condemn the last holdout, can trigger takings liability.

B. For Municipalities and Regulators

For cities and counties, the decision sends several messages:

• Preclusion and ripeness defenses are not silver bullets. Municipalities cannot:
  • invoke finality/ripeness late in litigation after multiple trials; or
  • rely on an old victory to permanently insulate themselves from takings liability if they continue to engage in impactful conduct over time.
• Cities managing airport expansion or similar projects must recognize that protracted limbo—acquiring almost all needed parcels, leaving one owner surrounded by blight and regulatory constraints, refusing to condemn—can amount to a compensable taking.
• When litigating valuation, municipalities should be prepared to present methodologically sound appraisals; courts may discount owner and consultant numbers lacking clear foundations.

C. For Doctrinal Development: Preclusion vs. Ongoing Conduct

The majority’s approach to preclusion emphasizes a flexible, fact‑based inquiry:

• Res judicata in Michigan is broad, but it is not absolute: “new material facts” affecting the status quo can generate a new cause of action, especially where the wrongful conduct is ongoing.
• This is particularly salient in takings cases, where the constitutional harm often arises from an accumulation of actions rather than a single event.
• In practice, HRT encourages courts to:
  • ask “new facts since when?” with specificity (here, since July 6, 2009, the date of the 2009 complaint), and
  • treat significant post‑judgment events (like the 2011 trespass arrests) as potential anchors for new suits, even if earlier claims were dismissed.

At the same time, the dissent highlights the tension this creates with Michigan’s stated commitment to finality and the national consensus that Knick does not retroactively erase preclusion barriers. That tension may invite further clarification from the Michigan Supreme Court or even the U.S. Supreme Court in future cases.

D. For Ripeness After Pakdel and Knick

The decision confirms that in the Sixth Circuit:

• Finality is modest and often easily satisfied when the government has clearly signaled how it will treat a property—even if formal steps (like condemnation) have not been taken.
• Courts may be reluctant to dismiss for lack of finality after years of litigation where the record already demonstrates a clear, sustained governmental position.
• Municipalities should raise finality arguments early, not as a “ninth‑inning” tactic, or risk courts viewing them as prudentially waived or inapplicable.

VI. Complex Concepts Simplified

A. De Facto / Regulatory Taking vs. Inverse Condemnation

• Inverse condemnation is the procedural vehicle (often under state law) used by a property owner to claim a taking when the government has not filed a formal eminent domain action.
• A de facto taking (or regulatory taking) is the substantive idea that:
  • even if the government never formally condemns the property or physically seizes it,
  • its actions can effectively destroy the property’s use and value,
  • so the Constitution requires compensation as if it had condemned the property.

B. Ripeness and Finality

• Ripeness asks: Is this dispute developed enough, and concrete enough, to be decided now?
• In takings cases, the finality requirement means:
  • the government must have taken a definitive position about how its regulations apply to a property;
  • the owner ordinarily must seek variances or permits, unless doing so would be futile or the government has clearly indicated that no relief will be granted.
• After Pakdel, this requirement is “relatively modest”; it exists to avoid purely hypothetical disputes, not to allow governments to dodge judicial review indefinitely.

C. Claim Preclusion vs. Issue Preclusion

• Claim preclusion (res judicata):
  • bars entire claims or causes of action that were, or could have been, litigated in a prior suit between the same parties after a final judgment on the merits;
  • in Michigan, this is applied broadly, but subject to an important limitation for new material facts and ongoing conduct.
• Issue preclusion (collateral estoppel):
  • bars re‑litigation of specific factual or legal issues that were actually litigated, essential to the prior judgment, and decided between the same parties;
  • requires a “full and fair opportunity” to litigate the issue previously.

D. Remittitur

• A remittitur occurs when a trial court concludes that a jury’s damages award is:
  • unsupported by the evidence,
  • so large as to shock the conscience, or
  • clearly the result of a mistake.
• The court then offers the winning party a choice:
  • accept a reduced award (the “remitted” amount), or
  • face a new trial solely on damages.

E. Bifurcation

• Bifurcation (under Rule 42(b)) means trying different issues in separate phases (e.g., liability first, damages later).
• Courts often bifurcate when:
  • the evidence on the two issues is largely independent,
  • there is a risk of prejudice, or
  • it would promote efficiency (for example, no need to try damages if liability fails).

F. FAA “Visibility Zones” and Building Restrictions

• The FAA’s Part 77 regulations (14 C.F.R. § 77) establish imaginary surfaces and height restrictions around airports to ensure safe aircraft operations.
• If a property falls within a runway visibility zone or height‑restricted area:
  • structures may be limited to certain heights;
  • taller structures may require FAA “no hazard” determinations or waivers;
  • in some cases, the only practical way for the airport sponsor (here, the City) to comply without ongoing waivers is to acquire the property.
• In HRT, these restrictions overlapped with HRT’s parcel, further constraining economically viable use.

VII. Conclusion

HRT Enterprises v. City of Detroit is a major Sixth Circuit decision at the intersection of takings law, ripeness, and preclusion. On the one hand, it strengthens the protection of property owners against long‑term, informal, yet devastating governmental interference, confirming that cities cannot regulate property into economic uselessness while indefinitely refusing to condemn and then evade liability through preclusion and late‑raised finality challenges.

On the other hand, the vigorous dissent underscores the continuing weight of res judicata in takings litigation—especially for owners who, under the old Williamson County regime, first pursued remedies in state court and lost. The friction between the majority’s generous application of Michigan’s “new facts” doctrine and the dissent’s strict preclusion analysis reflects a broader national debate: how to reconcile the Supreme Court’s post‑Knick opening of the federal courthouse doors with doctrines of finality and respect for state judgments.

Going forward, HRT stands for these key propositions in the Sixth Circuit:

• Ongoing, cumulative municipal conduct can ripen into a de facto taking even years after an earlier “no‑taking” verdict.
• New, material facts after a prior judgment can defeat claim and issue preclusion, particularly in slowly evolving land‑use and takings contexts.
• Finality in takings ripeness is modest and prudential; it cannot be rigidly wielded to derail long‑pending litigation.
• Trial courts retain broad discretion in structuring takings trials and in policing excessive damages awards through remittitur.

For litigants and courts alike, HRT Enterprises is now a leading case on how to handle repeated takings litigation over the same property when the government’s conduct is not a single act, but a decades‑long campaign that slowly transforms private land into de facto public infrastructure.