                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 30 1999
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                               Clerk

 CARL BELL; HARRINGTON
 SCHOOL FOUNDATION, a Utah
 non-profit corporation,

          Plaintiffs-Appellants,


 v.                                                      No. 98-4215
 AMERICAN FORK CITY,                               (D.C. No. 97-CV-697-J)
                                                          (D.Utah)
          Defendant-Appellee.


                             ORDER AND JUDGMENT          *




Before SEYMOUR, Chief Judge, BRISCOE and MURPHY, Circuit Judges.


      Plaintiffs Carl Bell and Harrington School Foundation appeal the district

court’s entry of summary judgment in favor of defendant American Fork City (the

City) on plaintiffs’ constitutional and state law claims arising out of eminent

domain proceedings instituted by the City with respect to property owned by

plaintiffs. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
district court’s disposition of plaintiffs’ equal protection and state law claims.

With respect to plaintiffs’ takings and due process claims, however, we reverse

and remand with instructions to dismiss those claims without prejudice for lack of

subject matter jurisdiction.

                                           I.

      This case centers around a parcel of property, known as the “Harrington

Property,” situated in or near the downtown area of the City. The Harrington

Property, which consists of the Harrington School (apparently the first public

school house opened in Utah), a school administration building, and a parking

lot, is located between City Hall and the City’s Public Safety Building. In late

1993, a Building Expansion Task Force commissioned by the City recommended

that the City acquire the Harrington Property from its then owner, the Alpine

School District, for needed building expansion.

      In July 1994, Bell, who was interested in acquiring and commercially

developing the Harrington Property, approached the City Council and presented

his acquisition and development proposal. The City Council allegedly indicated

to Bell it was interested primarily in the parking lot portion of the Harrington

Property, and that he could thus proceed with his acquisition and development

plan for the remaining portion of the Harrington Property.

      In apparent reliance on the City Commission’s statements, Bell took


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several steps towards acquiring and developing the Harrington Property. In

particular, he allegedly sold various items of personal property in order to

generate proceeds for the purchase of the Harrington Property. In addition, he

and other individuals formed the Harrington School Foundation (the Foundation),

whose purpose was to hold title to the Harrington Property and oversee its

management and development. Lastly, he allegedly arranged for “hundreds of

thousands of dollars worth of donations in money, materials, labor, equipment,

and items of art as an initial and essential step” in the development of the

Harrington Property. Plaintiffs’ Opening Brief at 4. Having taken these steps,

Bell purchased and acquired title to the Harrington Property from the Alpine

School District in December 1994.

      On January 11, 1995, the City Council voted to acquire all of the

Harrington Property through the filing of an eminent domain action. The action

was filed in the Fourth Judicial District Court of Utah County on February 13,

1995. Bell responded by filing a motion for summary judgment asserting the

City failed to satisfy the prerequisites for the public taking of property under

Utah law. On September 28, 1995, the state district court presiding over the

eminent domain action granted Bell’s motion for summary judgment and

dismissed the action. App. at 8. In doing so, the court concluded the City had

“abused” its power of eminent domain in that, at the time it initiated the action, it


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had (1) “[f]ailed to adopt a clear, well-defined plan,” (2) “[f]ailed to commission

a feasibility study for use of the premises including traffic studies, capacity

analyses, vehicle or pedestrian courts, parking need studies,” (3) [f]ailed to

commission or prepare architectural renderings, schematics, diagrams, or other

illustrations depicting intended use of any portion of Harrington property,” (4)

“[f]ailed to reestablish at the time eminent domain was authorized, present public

need for th[e] parcel,” (5) “[f]ailed to establish that the construction and use of

th[e] parcel . . . w[ould] commence within a reasonable time after initiation of

the” eminent domain proceedings, (6) “failed to appropriate . . . funds for

building renovation or construction,” and (7) “[f]ailed to request, budget or

appropriate funds to place the subject property into use.”   Id. at 16-17.

       Although Bell had submitted site plans for the Harrington Property to the

City Council, the City’s attorney allegedly advised the City’s Planning

Commission to take no action on those plans during the pendency of the eminent

domain proceedings. According to plaintiffs, the City’s institution of the eminent

domain proceeding, and its concomitant refusal to act on the submitted site plans,

effectively deprived them of the ability to make any “economic use of the

property.” Plaintiffs’ Opening Brief at 5.

       On September 4, 1997, Bell and the Foundation filed this action against the

City asserting violations of 42 U.S.C. §§ 1983 and 1985 (deprivation of property


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without due process of law, deprivation of property without just compensation,

and violation of equal protection rights), as well as state law claims for

defamation, intentional infliction of emotional distress, and interference with

business reputation. The City moved for summary judgment. After hearing

argument on the motion, the district court granted the City’s motion in its

entirety.

                                            II.

       Plaintiffs contend the district court erred in granting summary judgment in

favor of defendant with respect to their federal claims.    1
                                                                In reviewing a grant or

denial of summary judgment, we apply the same standard applied by the district

court under Federal Rule of Civil Procedure 56(c).         King v. Union Oil Co. of

Calif. , 117 F.3d 443, 444-45 (10th Cir. 1997). Summary judgment is appropriate

if “there is no genuine issue as to any material fact and . . . the moving party is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

       Turning first to plaintiffs’ Fifth Amendment takings claim, we conclude it

is not yet ripe and the district court thus lacked jurisdiction to entertain it. In

Williamson County Regional Planning Commission v. Hamilton Bank of Johnson



       1
         Because plaintiffs do not discuss the merits of their state law claims in
their appellate pleadings, and have not included in their appendix sufficient
materials to allow us to review those claims, we conclude they have effectively
abandoned those claims.

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City , 473 U.S. 172, 195 (1985), the Supreme Court held that “if a State provides

an adequate procedure for seeking just compensation, the property owner cannot

claim a violation of the Just Compensation Clause until it has used the procedure

and been denied just compensation.” Here, the State of Utah has provided an

adequate posttaking remedy, i.e., an inverse condemnation proceeding, which

plaintiffs have yet to utilize.   See , e.g. , Bagford v. Ephraim City , 904 P.2d 1095,

1097 (Utah 1995). Unless and until plaintiffs avail themselves of this remedy,

their takings claim will remain unripe.     See Miller v. Campbell County , 945 F.2d

348, 352 (10th Cir. 1991) (holding that failure to invoke Wyoming inverse

condemnation procedure before seeking federal court relief renders case unripe

for consideration); see also Bateman v. City of West Bountiful      , 89 F.3d 704, 706

(10th Cir. 1996) (“whether a claim is ripe for review bears on the court’s subject

matter jurisdiction under Article III of the Constitution”).

       Plaintiffs’ procedural due process claim, which is based on exactly the

same facts as their takings claim, is similarly precluded by the availability of a

state postdeprivation remedy.      See Rocky Mountain Materials & Asphalt, Inc. v.

Board of County Comm’rs , 972 F.2d 309, 311 (10th Cir. 1992);         see also Parratt

v. Taylor , 451 U.S. 527, 538 (1981) (“the normal predeprivation notice and

opportunity to be heard is pretermitted if the State provides a postdeprivation

remedy”).


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      As for plaintiffs’ equal protection claim, it is unclear from the record

precisely what plaintiffs are claiming, or what evidence they are relying on in

support of this claim. Indeed, because plaintiffs do not discuss the merits of this

claim in their appellate pleadings, we conclude they have abandoned it on appeal.

      Plaintiffs’ motion to submit a supplemental appendix is GRANTED. The

judgment of the district court with respect to plaintiffs’ equal protection and state

law claims is AFFIRMED. The judgment of the district court with respect to

plaintiffs’ takings and due process claims is REVERSED and REMANDED and

the district court is directed on remand to dismiss those claims without prejudice

for lack of subject matter jurisdiction.

                                               Entered for the Court

                                               Mary Beck Briscoe
                                               Circuit Judge




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