Taking claim under the Fifth Amendment; Ripeness; Effect of the fact defendant had not made a “final decision” on condemnation; A sufficiently “final” set of facts; Res judicata & collateral estoppel; A constructive or de facto taking; Amen v City of Dearborn; Whether the district court erred by ruling that a taking occurred but leaving the exact date for the jury; Reliance on unsworn testimony at summary judgment; Harmless error; Bifurcation of triable issues; Right to a fair trial; Remittitur

[This appeal was from the ED-MI.] The court held that plaintiff-HRT Enterprises’ takings claim was ripe because it rested “on a sufficiently ‘final’ set of facts.” It concluded that “the permissible uses of HRT’s property are known to a reasonable degree of certainty,” and thus are not based on “purely hypothetical or future events.” HRT owned property near the Detroit airport. Because of its proximity, 20% of the property was in the runway’s “visibility zone.” HRT asserted that “because of the City, [it] is no longer able to use, lease, or sell the property.” HRT brought, and lost, two inverse condemnation cases in state court. Its first federal suit, brought in between the state court cases, was dismissed without prejudice for failure to exhaust state-law remedies. After it lost the second state court suit based on res judicata, HRT filed this case against the City alleging a de facto takings claim. The City filed a hybrid motion to dismiss and for summary judgment based on failure to exhaust, res judicata, and collateral estoppel. But the district court ruled that circumstances involving the property had changed since the state court litigation, and denied the motion. It granted HRT partial summary judgment on the existence of the taking without specifying when it occurred. After two trials, a jury found that the taking occurred on 1/1/09 and awarded HRT $1,976,820 in just compensation. The City appealed and HRT cross-appealed. The City argued that HRT’s claims were not ripe where the City had not reached a “final decision” that constituted a taking. The court disagreed. As the district court found, several things occurred after 2005, including “(1) HRT lost all its tenants; (2) vandals looted the property; (3) the City did not maintain the area; (4) others used it is a dumping ground;” and (5) “the City continued to purchase residential and commercial properties both within, and outside of,” the area near the airport. “These facts are not speculative. Based on this record, the City has taken a definitive position: it will not condemn the property.” As to res judicata and collateral estoppel, because “the district court reviewed a different period of time and a distinct set of facts, it did not err when it found it was not bound by the state-court decision. The takings claim HRT brought before the district court was not, and could not have been, resolved in the previous state-court proceedings.” As to the partial grant of summary judgment to HRT on liability, the court found that this case resembled Amen, and the “district court correctly concluded that the City’s activities amounted to a taking.” The court also rejected the City’s claim “that the district court erred when it granted partial summary judgment in favor of HRT without deciding when the taking occurred” Affirmed.