UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CLAUDE BROWN; HELEN BROWN,
Plaintiffs-Appellants,

v.
                                                                  No. 96-1057
CITY OF BRISTOL, TENNESSEE; DONALD
BROWN, Deputy City Manager;
FRANK CLIFTON, City Manager,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
Glen M. Williams, Senior District Judge.
(CA-94-125-A, BK-94-379, AP-94-49)

Argued: September 26, 1996

Decided: October 31, 1996

Before HALL, NIEMEYER, and HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Robert Tayloe Copeland, COPELAND, MOLINARY &
BIEGER, Abingdon, Virginia, for Appellants. James Earl Green,
GREEN & HALE, Bristol, Tennessee, for Appellees. ON BRIEF:
Fred M. Leonard, Bristol, Tennessee, for Appellants. Kenneth D.
Hale, GREEN & HALE, Bristol, Tennessee; M. Lacy West, Julia
Cyphers West, WEST & ROSE, Kingsport, Tennessee, for Appellees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Claude and Helen Brown are developers of a subdivision in Bristol,
Tennessee, for which they received a conditional approval from the
City's Planning Commission. The Planning Commission required that
the Browns complete ten items of street, water, and storm sewer work
before the subdivision could "be considered for final approval."

While there is no evidence that the Browns completed the condi-
tions imposed by Bristol, they nevertheless began selling lots to the
public. When the City learned of the sales, it published and recorded
among the land records a notice that the streets and other improve-
ments in the subdivision "have not been accepted or opened as, nor
have the same otherwise received the legal status of, public streets or
improvements."

In response to the notice, the Browns filed this action in federal
court against the City of Bristol and two of its managerial employees,
alleging that Bristol had taken the Browns' property without due pro-
cess of law, slandered the title to their property, and inversely con-
demned the property. On the defendants' motion to dismiss and for
summary judgment, the district court entered summary judgment dis-
missing the action. The court concluded that under Tennessee law, the
City of Bristol enjoyed state sovereign immunity and its officers were
qualifiedly immune under Harlow v. Fitzgerald , 457 U.S. 800, 815-19
(1982). This appeal followed.

The Browns contend on appeal principally that they did not have
adequate notice that the district court was going to treat the defen-
dants' motion to dismiss as one for summary judgment because the
defendants labeled their motion as a "motion to dismiss." The Browns
also contend that the case should be remanded on the takings issue
because the district court did not address it and that the district court

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erred in giving the City of Bristol immunity from Fifth Amendment
liability.

Having carefully reviewed the entire record in this case and consid-
ered the arguments of counsel, we find no merit to the Browns'
appeal.

On the Browns' claim that they were not notified that the defen-
dants' motion to dismiss would be treated by the court as a motion
for summary judgment, the record belies their contentions. In the dis-
trict court, the defendants did label their motion as a "motion to dis-
miss," but they stated in their papers that because they attached
affidavits and papers, they "intend for their[motion] to be treated as
one for summary judgment." The record reveals that the Browns were
adequately alerted to the scope of the defendants' motion because in
their response to the motion, they included a section labeled "sum-
mary judgment." Moreover, in the text of their response, the Browns
acknowledged that the defendants intended to have their motion to
dismiss treated as one for summary judgment. Nonetheless, the
Browns elected not to file any affidavits contesting the facts asserted
by the defendants.

Several months later, the district court granted the defendants'
motion for summary judgment, accepting the undisputed facts
asserted by the defendants in their papers. We find no merit to the
Browns' assertion that the court should have provided the Browns
with notice of its intent to treat the motion to dismiss as one for sum-
mary judgment. See Fed. R. Civ. P. 12(b). The court need not initiate
such a notice if the moving party in its papers does so. The admonish-
ment provided in Rule 12(b) is designed to give the non-moving party
notice and the opportunity to file opposing affidavits as if the motion
were filed under Rule 56. Here, the Browns had both notice and the
opportunity to file opposing affidavits, but chose not to submit any
factual materials. Even on appeal, moreover, the Browns made no
proffer of what they would file, nor did they express disagreement
with the facts of record.

The facts in this case are straightforward and do not entitle the
Browns to relief on the merits. The Browns owned real property in
Bristol for which they applied to the Bristol Planning Commission for

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subdivision approval. Approval was granted, subject to completion of
ten items of work. The Browns never took an appeal from the City's
conditional approval to contest the conditions. The City contends that
the work included in the conditional approval was never completed
and that the Browns never applied for "final approval." Rather, they
sought, with this action, to challenge the conditions collaterally or to
claim that the City could not require its approval for the subdivision.
Their right to challenge those issues, however, had long passed.

In circumstances where the Browns failed to challenge or to follow
reasonable procedural avenues to obtain approval for their subdivi-
sion, they cannot later claim, when the interested governmental body
insists on compliance with its approval requirements, that their prop-
erty was taken without due process. Cf. Williamson County Regional
Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194-97 (1985).
Moreover, when the Browns began to sell the lots without having
obtained subdivision approval as required by law, the City had a right
to publish and record a notice that it had not granted final approval
for the subdivision. The Browns do not contend that the notice was
in error, only that it impaired their ability to bypass lawfully imposed
conditions for approval of the subdivision.

On these facts there can be no taking of property or slander of title.
Finding the Browns' claim meritless, we affirm.

AFFIRMED

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