                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                 December 21, 2005

                                                              Charles R. Fulbruge III
                                                                      Clerk
                               No. 05-60371



JULIA W. LANGE; DAVID L. LANGE; JAMES S. WHITAKER; ESTATE OF
JAMES S. WHITAKER, SR., by and through the Executrix of the
Estate, Joyce Whitaker,

                                                  Plaintiffs-Appellants,

versus

CITY OF BATESVILLE,

                                                    Defendant-Appellee.

                           --------------------
               Appeal from the United States District Court
                 for the Northern District of Mississippi
                             (2:01-CV-076-P-A)
                           --------------------

Before REAVLEY, DAVIS, and WIENER, Circuit Judges.

PER CURIAM:*

     Plaintiffs-Appellants         the   Langes   and   the     Whitakers

(collectively “the Whitakers”) sued Defendant-Appellee the City of

Batesville, Mississippi (“the City”), asserting (1) claims under 42

U.S.C. § 1983 for violations of (a) the substantive and procedural

components of the Due Process Clause,1 and (b) the Takings Clause2;

and (2) pendent state law claims.          The district court granted

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
     1
         U.S. CONST. amend. XIV.
     2
         Id.
summary judgment to the City, holding that under the doctrines of

issue preclusion and Rooker/Feldman, the final judgment of the

Mississippi Court of Appeals in Lange v. City of Batesville3

(“Lange I”) precluded relitigation of the dispositive question

underlying all claims asserted by the Whitakers.                 We affirm in

part, and vacate and dismiss in part.

                         I. FACTS AND PROCEEDINGS

A.   The Agreement

     The Whitakers and the City entered into an “Agreement for

Temporary Easement” (“the Agreement”) in which the Whitakers agreed

to transfer to the City an approximately five acre strip of land

carved from the edge of their property in exchange for the City’s

promise to build a “public road” on that land.                   The Agreement

states only that the City is obligated to build a “public road”

(“Whitaker    Road”)    on   the   Whitakers’    transferred     property;   it

neither specifies details of size, type, or qualities of the future

Whitaker Road, nor sets a time or date by which the road had to be

completed. The Whitakers assert, however, that “public road” means

more than simply any road open to the public —— they insist that it

means the City was obligated to build Whitaker Road as the primary

road in the vicinity of their remaining property.                    The City

disagrees.     Its     position    is   that   the   Agreement   entitles    the

Whitakers to a public road, but not to one of any particular size


     3
         832 So. 2d 1236 (Miss. Ct. App. 2002).

                                        2
or other characteristics.

B.   The City’s First Alleged Breach of the Agreement and the
     Ensuing State and Federal Litigation

     1.   The City’s First Alleged Breach

     In 2000, acting pursuant to the Agreement, the Whitakers

transferred approximately five acres of their land to the City for

the future construction of Whitaker Road.     At that time, however,

the Whitakers were not the only parties advocating construction of

a road in the area near the Whitakers’ property: Wal-Mart had

decided to build a store on a parcel in the same vicinity, and it

lobbied the City to construct a road connecting its property to the

state highway running nearby.   Wal-Mart’s lobbying efforts proved

successful, and, over the Whitakers’ objection, the City voted in

October 2000 to approve construction of a road on Wal-Mart’s

property (“House-Carlson Drive”).

     To the Whitakers, the City’s approval of House-Carlson Drive

breached the Agreement by violating the City’s obligation to make

the future Whitaker Road the primary road in the vicinity of the

Whitakers’   property.   To   remedy   this   perceived   breach,   the

Whitakers took two parallel courses of action: (1) In October 2000,

they filed a bill of exceptions with the Mississippi Circuit Court

of Panola County,4 and (2) in April 2001, they filed the instant


     4
       In Mississippi, a bill of exceptions is the sole means
available for seeking to overturn the administrative action of a
municipality. The state court’s review “is limited to the record
created by the bill of exceptions.” Lange I, 832 So. 2d at 1239.

                                 3
action in the Northern District of Mississippi, which the district

court stayed pending resolution of the state litigation.

       2.      State Court Litigation

       In their state bill of exceptions action, the Whitakers

contended that by approving construction of House-Carlson Drive,

the City breached the Agreement.              According to the Whitakers, this

breach rendered the City’s decision arbitrary and capricious and

thus       reversible.      The   state    action      eventually   reached    the

Mississippi Court of Appeals, which, after full briefing and

argument, held that the City’s decision to build House-Carlson

Drive did not, in and of itself, breach the Agreement.5                  But the

court declined to go any further in its ruling, reasoning that a

determination of the precise contours of the City’s obligations

under the Agreement would not be ripe for judicial decision until

the City either acted on its conceded obligation to build Whitaker

Road in some form or definitively declined to do so.                The court did

note, however, that because the Agreement does not contain a time

limit      within   which   Whitaker      Road   had   to   be   completed,   “[a]




That record “embodies the facts, judgment, and decision involved in
the Board proceedings.” Id. (internal quotation marks omitted).
The court may overturn the municipality’s action only if the
decision is not supported by substantial evidence, is arbitrary or
capricious, is beyond the power of the municipality to make, of if
the decision violates a constitutional right of the party
challenging the action. Bd. of Supervisors v. McCormick, 42 So. 2d
177, 179 (Miss. 1949).
       5
           Lange I, 832 So. 2d at 1240.

                                          4
reasonable time for performance will . . . be implied.”6

       3.      Federal Court Litigation of the First Alleged Breach

       The Whitakers then returned to federal court to pursue their

federal and pendent state law claims.            In essence, the Whitaker’s

federal theory at this time was that the Agreement entitled them to

a    “public    road”   built   as    the   primary   road   in   the    area   in

consideration for the approximately five acres of land that they

had transferred to the City.                The Whitakers reasoned that by

authorizing      construction    of    House-Carlson    Drive     ——    and   thus

allegedly breaching the Agreement by not giving the Whitakers that

to which they claimed entitlement —— the City (1) “took” the

Whitakers’ five acres without providing just compensation, (2)

deprived the Whitakers of their property without due process of

law, and (3) violated the Whitakers’ substantive due process

rights.       We shall refer to this first group of taking and due

process claims as the “House-Carlson Drive claims.”

C.     The City’s Second Alleged Breach of the Agreement and the
       Ensuing Federal Litigation

       In January 2004, while litigation of the House-Carlson Drive

Claims was pending in the district court, the City completed

construction of Whitaker Road.              Not surprisingly, the Whitakers

were unhappy with the road that the City built.                   The Whitakers

concluded that the City had failed to construct the road within a



       6
           Id. at 1241.

                                        5
reasonable time, as required by the time limitation implied by

Mississippi    law   in   the    absence   of   a   specified   time    in   the

Agreement.    Rather than sue the City in state court for a separate

breach of the Agreement, however, the Whitakers stayed in district

court and argued that the City breached the Agreement by failing to

construct Whitaker Road within a reasonable time.               The Whitakers

contended that this new breach of the Agreement also effected an

unconstitutional taking of their land without just compensation.7

We   shall   refer   to   this   second    distinct   taking    claim   as   the

“Whitaker Road Taking claim.”

D.    The District Court’s Resolution of the Whitakers’ Claims

      The Whitakers were thwarted once again when, in April 2005,

the district court granted summary judgment to the City on both the

Whitakers’ House-Carlson Drive claims and the Whitaker Road Taking

claim.    The court first held that litigation of the           House-Carlson

Drive claims was precluded by the state court’s judgment in Lange I

that in merely authorizing House-Carlson Drive, the City did not

breach the Agreement.        The district court went on to hold that

litigation of the Whitaker Road Taking claim was also precluded,

not by the issue preclusive effect of the state court’s ruling, but

by the Rooker/Feldman doctrine.



      7
       The Whitakers did not argue to the district court, and do
not argue to us now, that the alleged breach of the Agreement
arising out of the timeliness of the City’s completion of Whitaker
Road violated their substantive or procedural due process rights.

                                      6
                              II. ANALYSIS

A.   Standard of Review

     We review the district court’s grant of summary judgment de

novo.8    When, as here, there is no genuine issue of material fact,

summary judgment is warranted “if . . . the moving party is

entitled to a judgment as a matter of law.”9

B.   The House-Carlson Drive Claims

     The success of the Whitakers’ House-Carlson Drive claims

hinges on whether the City’s authorization of House-Carlson Drive

constituted a breach of the Agreement. We may permit litigation of

that question here, however, only if Lange I is not entitled to

issue-preclusive effect.      As we hold that Lange I is preclusive,

however, we affirm the district court’s grant of summary judgment

to the City on the Whitakers’ House-Carlson Drive claims.

     The    preclusive   effect   of       a   state   court   judgment   in   a

subsequent federal action is governed by the Full Faith and Credit

Act.10    Under this statute, final judgments of state courts “have

the same full faith and credit in every court within the United

States and its Territories and Possessions as they have by law or

usage in the courts of such State, Territory or Possession from


     8
       Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th
Cir. 2003).
     9
      FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
     10
          28 U.S.C. § 1738.

                                       7
which they are taken.”11             In other words, we must accord preclusive

effect to the Lange I court’s final judgment if the law of issue

preclusion in Mississippi entitles the judgment to such effect in

that state’s courts. In addition, because this case requires us to

measure Lange I’s preclusive effect on the dispositive issue in

this § 1983 action, Lange I’s holding that the City’s authorization

of House-Carlson Drive did not breach the Agreement is preclusive

only if the Whitakers had a “full and fair opportunity to litigate

[that] . . . issue” before the state court.12                     And when, as here,

the putatively preclusive judgment was rendered after only a

limited review by the state court of a state executive entity’s

action,13 the requirement that there have been a “full and fair

opportunity to litigate” is met only if the state proceedings

satisfied the minimum procedural requirements of the Due Process

Clause.14           Therefore, in determining the preclusive effect of Lange

I   on        the    House-Carlson    Drive       claims,   we   must   focus   on   two

questions: (1) Under Mississippi’s law of issue preclusion, must

other Mississippi courts give the judgment in Lange I preclusive

effect, and (2), if so, could a federal court give the judgment

such effect without violating the Due Process Clause?



         11
              Id.
         12
              Allen v. McCurry, 449 U.S. 90, 101 (1980).
         13
              See supra note 4.
         14
              Kremer v. Chem. Constr. Corp., 456 U.S. 461, 485 (1982).

                                              8
     1.     Mississippi Law Requires Recognizing Lange I As Issue
            Preclusive

     In Mississippi, a prior court judgment precludes relitigation

of an issue if the issue was “actually litigated, determined by,

and essential to the judgment in [the] former action.”15                   We are

convinced    that   under       this   rule,    the   district   court    properly

accorded preclusive effect to Lange I’s holding that the City’s

authorization of House-Carlson Drive, standing alone, did not

breach the Agreement. After all, the Whitakers themselves put that

question before the Lange I court by expressly arguing that “‘[t]he

City’s decision to abandon a contract . . . is arbitrary and

capricious.’”16     Having framed the issue this way, the Whitakers

invited     the   Lange     I    court’s       holding:   Despite   the    City’s

authorization of House-Carlson Drive, “no breach of [the City’s]

obligations [under the Agreement] has occurred.”17

     In the context of this case, it is irrelevant that in Lange I

this dispositive question arose within the confines of the limited

review authorized by Mississippi’s bill of exceptions process

rather than in a full-blown breach-of-contract action. Like purely

legal issues that arise in a traditional common law contract action

—— the judicial resolution of which would undisputedly be issue


     15
       Dunaway v. W.H. Hopper & Assocs., 422 So. 2d 749, 751 (Miss.
1982); see also Raju v. Rhodes, 7 F.3d 1210, 1215 (5th Cir. 1993).
     16
          Emphasis added.
     17
          Lange I, 832 So. 2d at 1240 (emphasis added).

                                           9
preclusive under Mississippi law18 —— questions of law in a bill of

exceptions action are resolved by the court de novo.19    And here,

the Lange I court faced only questions of law: (1) Whether the term

“public road” is ambiguous,20 which the court had to have decided

it is not,21 and (2) the application of this unambiguous contract

term to the undisputed facts of this case.22   There is therefore no

reason to conclude that the bill of exceptions context of Lange I

impinged on or otherwise restricted that court’s resolution of

these purely legal questions. Thus, it is a virtual certainty that

Mississippi courts would grant issue preclusive effect to the

Lange I court’s de novo resolution of these questions.



     18
        See Harris v. Bd. of Trs. of State Insts. of Higher
Learning, 731 So. 2d 588, 590 (Miss. 1999) (recognizing that the
doctrine of issue preclusion applies to contract actions if all
elements are met).
     19
       See Hinds County Bd. of Supervisors v. Leggette, 833 So. 2d
586, 590 (Miss. Ct. App. 2002).
     20
          See Neider v. Franklin, 844 So. 2d 433, 436 (Miss. 2003).
     21
        Although the Lange I court did not explicitly rule that the
term “public road” is unambiguous, the court must have found that
it was. Had the Lange I court viewed the term “public road” as
ambiguous, it would have had to complete the interim analytical
step associated with an ambiguous contract term —— an analysis of
extrinsic evidence pertaining to the term’s meaning. See Neider,
844 So. 2d at 436. But the court did not; instead, it ignored any
extrinsic evidence and enforced the Agreement as written. See Lange
I, 832 So. 2d at 1239-41.        Under Mississippi law, such an
analytical process is associated with unambiguous contract terms;
the Lange I court therefore must have viewed “public road” as such
a term.
     22
       See Clark v. State Farm Mut. Auto. Ins. Co., 725 So. 2d 779,
781 (Miss. 1998).

                                  10
     2.     The Whitakers Waived the Argument that Finding Lange I To
            Be Issue Preclusive Would Violate the Due Process Clause

     In their opening brief, reply brief, and supplemental letter

brief, the Whitakers never advanced to us any reason to question

the constitutional adequacy of the Lange I proceedings.     Instead,

the Whitakers impugned the non-judicial process afforded to them by

the City prior to its voting to authorize construction of House-

Carlson Drive.      The sufficiency of that process, however, is

not before us today; in this issue preclusion analysis under the

Full Faith and Credit Act, we are concerned only with the adequacy

of the process afforded the Whitakers in the state courts.23     The

Whitakers have therefore waived any argument that our according

preclusive effect to Lange I would violate Due Process.24   We shall

assume that the process was adequate; and, because Mississippi law

requires according preclusive effect to Lange I’s holding that the

City’s authorization of House-Carlson Drive did not breach the

Agreement, we affirm the district court’s grant of summary judgment

to the City on the Whitakers’ House-Carlson Drive claims.25

     23
          See Kremer, 456 U.S. at 485.
     24
       See Commc’n Workers of Am. v. Ector County Hosp. Dist., 392
F.3d 733, 748 (5th Cir. 2004); see also FED. R. APP. P. 28(a)(9)(A)
(stating that appellant’s brief must contain “appellant’s
contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant
relies”).
     25
       The Whitakers also argue that Lange I should not preclude
relitigation in this case because they were forced to bring their
breach of contract claim through Mississippi’s bill of exceptions
process.   For two reasons, though, this argument is meritless.

                                  11
C.   The Whitaker Road Taking Claim: Ripeness

     The district court resolved the Whitaker Road Taking claim on

the ground that federal litigation of the claim is prohibited by

the Rooker/Feldman doctrine.   We need not address Rooker/Feldman’s

effect on this case, however, because the Whitaker Road taking

claim is not yet ripe for federal adjudication.   Consequently, the

federal courts do not have subject matter jurisdiction to entertain

this claim.

     Under the Takings Clause, a taking does not occur —— and,

thus, a taking claim is not ripe —— “until (1) the relevant

governmental unit has reached a final decision as to what will be


First, the Whitakers’ assertion is simply wrong: They were not
“forced” to bring their breach of contract claim through the bill
of   exceptions   process.      Under  Mississippi   law,  when   a
municipality’s legislative action allegedly breaches a contract to
which the municipality is a party, the aggrieved party may eschew
the bill of exceptions process and bring a common law contract
action against the municipality. Cf. Bd. of Trs. of States Insts.
of Higher Learning v. Brewer, 732 So. 2d 934, 936-37 (Miss. 1999)
(permitting a breach of contract claim to be brought against a
state administrative agency outside of the limited administrative
review process); cf. Gulfside Casino P’ship v. Miss. State Port
Auth., 757 So. 2d 250, 255 (Miss. 2000). Second, as made clear by
the Supreme Court’s recent decision in San Remo Hotel, L.P. v. City
and County of San Francisco, California, even if the Whitakers
were forced to litigate the heart of their taking claim in state
court, that is not a reason to find that the Lange I decision is
non-preclusive:
      As [the Supreme Court has] repeatedly held, . . . issues
      actually decided in valid state-court judgments may well
      deprive plaintiffs of the ‘right’ to have their federal
      claims relitigated in federal court. This is so even
      when the plaintiff would have preferred not to litigate
      in state court, but was required to do so by statute or
      prudential rules.
125 S. Ct. 2491, 2504 (2005) (citations omitted); see also id. at
2507.

                                 12
done    with    the   property   and    (2)   the   plaintiff    has    sought

compensation     through   whatever     adequate    procedures    the    state

provides.”26     The first ripeness prong was obviously satisfied: By

building Whitaker Road as it did, the relevant governmental unit ——

the City —— rendered a final decision regarding the Whitakers’

asserted property interest.        But it is equally obvious that the

second prong has not been satisfied: The Whitakers have yet to seek

compensation through Mississippi’s procedures for this alleged

taking.27      The only takings claim for which the Whitakers have

sought compensation through state procedures —— and thus the only

takings claim in this case that is ripe —— is the House-Carlson

Drive taking claim.28 As the Whitaker Road Taking claim is premised

on an alleged breach of the Agreement that is wholly separate and

distinct from the breach alleged to underlie the House-Carlson



       26
       Sandy Creek Investors, Ltd. v. City of Jonestown, Texas, 325
F.3d 623, 626 (5th Cir. 2003) (emphasis added); see also Williamson
County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 195-96
(1985).
       27
       The Whitakers have admitted that Mississippi’s procedures
are “adequate.”    In their brief to us, the Whitakers discuss
Mississippi’s recognition of claims for inverse condemnation —— the
procedure by which “a land owner recovers just compensation for a
taking of his property when condemnation proceedings have not been
instituted.” Alternatively, the Whitakers could file a traditional
breach of contract action against the City, seeking as damages the
value of the land they deeded to the City and for which they claim
to have not been compensated.
       28
       The Whitakers’ filing of a bill of exceptions to challenge
the City’s authorization of House-Carlson Drive and their
subsequent litigation of that challenge up the Mississippi judicial
system rendered that claim ripe.

                                       13
Drive claim, however, the Whitaker Road Taking claim alleges a

completely different taking of the Whitakers’ land.           The ripening

of the House-Carlson Drive taking claim, therefore, did not ripen

the Whitaker Road Taking claim.          Consequently, we vacate the

district court’s grant of summary judgment to the City on the

Whitaker Road Taking claim and dismiss it for lack of subject

matter jurisdiction.     Our judgment is rendered without prejudice,

however, to the Whitakers’ right to seek compensation through

Mississippi’s adequate procedures for this purported taking.

                            III. CONCLUSION

     We affirm the district court’s grant of summary judgment to

the City on the Whitakers’ House-Carlson Drive claims.           We vacate

the district court’s grant of summary judgment to the City on the

Whitaker Road Taking claim, however, and dismiss this claim for

lack of subject matter jurisdiction, albeit we do so without

prejudice   to   the   Whitakers’   entitlement   to   seek   compensation

through Mississippi’s procedures.

AFFIRMED in part; VACATED and DISMISSED without prejudice in part.




                                    14
