                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                          January 13, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
THE PIONEER CRAFT HOUSE, INC., a
Utah nonprofit corporation in good
standing,

      Plaintiff - Appellant,

v.                                                         No. 16-4038
                                                   (D.C. No. 2:13-CV-00705-DN)
CITY OF SOUTH SALT LAKE, a Utah                              (D. Utah)
municipal corporation; SOUTH SALT
LAKE CITY ATTORNEY LYN
CRESWELL, an individual acting in his
individual capacity,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HOLMES, BALDOCK, and BACHARACH, Circuit Judges.
                  _________________________________

      The Pioneer Craft House, Inc., (“Pioneer”) sued the City of South Salt Lake

and City Attorney Lyn Creswell, asserting civil rights claims under 42 U.S.C. § 1983.

In response to defendants’ motion to dismiss Pioneer’s second amended complaint

for failure to state a claim, Pioneer moved for leave to file a third amended

      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
complaint. The district court dismissed the second amended complaint, denied leave

to amend, and entered judgment in defendants’ favor. Pioneer argues on appeal that

its proposed third amended complaint alleged sufficient facts to state a claim for

relief under § 1983 and the district court therefore erred in denying its motion for

leave to amend as futile. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.    Background

      As alleged by Pioneer, in 2007 the City and Salt Lake County purchased real

property commonly known as Pioneer Craft House (“Craft House”). In 2008, the

City and Pioneer entered into a lease agreement under which Pioneer paid the City

$1.00 per year for non-exclusive use of the Craft House premises (“2008 Lease”). In

April 2012, defendants locked Pioneer out of the Craft House and terminated the

2008 Lease. Three months later, in July 2012, Pioneer entered into a new, one-year

agreement with the City under which it agreed to pay a substantially higher monthly

fee for the use of dedicated space in the Craft House. After the City notified Pioneer

that it would not renew the 2012 one-year agreement, Pioneer filed this action

challenging the April 2012 lockout and termination of the 2008 Lease as violating

Pioneer’s right to due process.

      Defendants moved to dismiss Pioneer’s second amended complaint for failure

to state a claim. They argued that the 2008 Lease was ultra vires and unenforceable

because it was entered into without a public hearing, as required by state law;

consequently, Pioneer had no vested property interest in the Craft House and its

§ 1983 claim failed as a matter of law. Pioneer responded by seeking leave to amend

                                           2
its complaint once again. It also filed a response to defendants’ motion to dismiss the

second amended complaint, arguing that its proposed third amended complaint stated

a claim upon which relief could be granted.

      The district court held that Pioneer never had a protected property interest in

the Craft House because the 2008 Lease was void. It therefore dismissed Pioneer’s

second amended complaint for failure to state a claim under § 1983. The court also

denied Pioneer leave to file its proposed third amended complaint, holding that

amendment would be futile.

II.   Discussion

      On appeal, Pioneer challenges only the district court’s denial of leave to file its

proposed third amended complaint.1 “We ordinarily review a denial of a motion to

amend a pleading for abuse of discretion. However, when denial is based on a

determination that amendment would be futile, our review for abuse of discretion

includes de novo review of the legal basis for the finding of futility.” Miller ex rel.

S.M. v. Bd. of Educ. of Albuquerque Pub. Sch., 565 F.3d 1232, 1249 (10th Cir. 2009)

(citations omitted).

      To state a claim for relief under § 1983, Pioneer had to allege the deprivation

of a federal right, action under color of state law—and in this case, a property interest

sufficient to invoke procedural protections. See Buckley Constr., Inc. v. Shawnee


      1
        The only issues Pioneer presents for review in its opening brief are
(1) whether the proposed third amended complaint alleged sufficient facts to state a
claim for relief and (2) whether the district court erred in holding that amendment
was futile. See Aplt. Opening Br. at 7-8.
                                            3
Civic & Cultural Dev. Auth., 933 F.2d 853, 857 (10th Cir. 1991). Pioneer alleged

that defendants locked it out of the Craft House and terminated the 2008 Lease

without due process. In dismissing Pioneer’s second amended complaint, however,

the district court held that Pioneer lacked a protected property interest in the Craft

House because the City entered into the 2008 Lease without holding a public hearing,

making the lease void under Utah law. The court then concluded that Pioneer’s new

facts alleged in its proposed third amended complaint—that an attorney had

determined and advised the mayor and city council that a public hearing was not

required—were insufficient to establish a protected property interest. Thus, because

the proposed third amended complaint would also be subject to dismissal, the court

denied Pioneer’s motion to amend as futile. See Watson ex rel. Watson v. Beckel,

242 F.3d 1237, 1239-40 (10th Cir. 2001).

       Pioneer has not demonstrated error in the district court’s determination that

amendment of its complaint would be futile. Section 10-8-2 of the Utah Code “deals

with the authority of municipalities to dispose of property.” Salt Lake Cty. Comm’n

v. Salt Lake Cty. Att’y, 985 P.2d 899, 909 (Utah 1999). A municipality may lease

real property “for the benefit of the municipality . . . if the action is in the public

interest and complies with other law.” Utah Code Ann. § 10-8-2(1)(a)(iii). The Utah

Supreme Court has construed this statute as requiring adequate consideration.

See Sears v. Ogden City, 533 P.2d 118, 119 (Utah 1975). This is so because “[t]he

property owned by a city is held by the city in trust for the use and benefit of its

inhabitants and cannot be disposed of by gift without specific legislative authority.”

                                             4
Id. “[A]dequate consideration” is that which “provide[s] present benefit that reflects

the fair market value.” Salt Lake Cty. Comm’n, 985 P.2d at 910 (internal quotation

marks omitted).

      A different subsection of § 10-8-2 provides that a municipality may “authorize

municipal services or other nonmonetary assistance to be provided to or waive fees

required to be paid by a nonprofit entity, whether or not the municipality receives

consideration in return.” Id. § 10-8-2(1)(a)(v). Importantly, this section states that a

municipality may take these actions “after first holding a public hearing.” Id. The

district court held that this statute required the City to hold a public hearing before

entering into the 2008 Lease, under which Pioneer—a non-profit entity—paid only

$1.00 per year to use the Craft House premises. Pioneer does not dispute that the

City failed to hold a public hearing on the 2008 Lease.

      Because the City did not comply with § 10-8-2(1)(a)(v)’s hearing requirement,

the district court held that the 2008 Lease was ultra vires and unenforceable.

See First Equity Corp. of Fla. v. Utah State Univ., 544 P.2d 887, 892-93 (Utah 1975)

(holding that “municipal corporations are not bound by contracts made without

authority or in excess of the [municipality’s] power” and “the party actually dealing

with the public entity is charged with the knowledge that the contract is ultra vires

and unenforceable”). The district court reasoned that, because the 2008 Lease was

void from the beginning, Pioneer never had a constitutionally protected right to




                                            5
occupy the Craft House and consequently could not state a claim under § 1983 for

deprivation of property.2

      In seeking leave to amend to cure this deficiency, Pioneer pointed to

allegations in its proposed third amended complaint regarding a former City

Attorney’s determination that a public hearing on the 2008 Lease was unnecessary.

Pioneer quoted from the attorney’s memo advising the mayor and city council

regarding the proposed 2008 Lease:

      Usually, before the City can pay costs, provide free services or waive fees
      for another entity, state law requires a study of the benefits to be derived by
      the City, findings that the benefits meet specific criteria established in state
      law and a public hearing. That is not the case with this particular
      transaction. The legislature has predetermined that it is appropriate to
      spend public funds in support of the arts.
Aplt. App., Vol. 1 at 16 (internal quotation marks omitted). According to the

proposed third amended complaint, the former City Attorney relied on Utah Code

Ann. § 10-7-85 for this proposition. See id. That section provides:

      The governing body of any municipality may provide for and appropriate
      funds for the support of the arts, including music, dance, theatre, crafts and
      visual, folk and literary art, for the purpose of enriching the lives of its
      residents and may establish guidelines for the support of the arts.
In its motion for leave to amend, Pioneer argued these new allegations demonstrated

that the City “intended to disregard” § 10-8-2. Aplt. App., Vol. 2 at 188. And in

response to defendants’ motion to dismiss, Pioneer argued that its new allegations
      2
        The district court did not explain its holding that, in the absence of statutory
authority, the 2008 Lease was void from the beginning as opposed to being voidable.
See Ockey v. Lehmer, 189 P.3d 51, 56-57 (Utah 2008) (explaining the difference
between void and voidable contracts). We need not determine whether the district
court correctly decided this question because Pioneer does not challenge the district
court’s determination of this issue on appeal.
                                             6
showed that, after determining that the 2008 Lease complied with § 10-7-85, the

former City Attorney advised the City that state law did not require a public hearing.

As alleged by Pioneer, the City then acted on the advice of counsel in approving and

executing the 2008 Lease without a public hearing. See id. at 199-200.3

      The district court concluded that Pioneer’s new allegations were insufficient to

establish it had a protected property interest in the Craft House. The court reasoned

that the former City Attorney’s “misguided advice is irrelevant as he, like the City,

cannot abrogate the requirements of Utah Code § 10-8-2.” Id. at 241. We agree. A

lease entered into by the City without the requisite statutory authority is not

otherwise enforceable by virtue of the City’s reliance on counsel’s faulty advice.

Rather, “[n]o estoppel can be created by the acts of [a city’s] agents or officers in

excess of their statutory or constitutional powers.” First Equity Corp. of Fla.,

544 P.2d at 892 (internal quotation marks omitted).

      On appeal, Pioneer takes a different tack. It argues that, as alleged in the

proposed third amended complaint, the 2008 Lease, together with the agreement

under which the City and Salt Lake County purchased the Craft House property,

constituted a complicated public-interest transaction that met and supplanted the

requirements of § 10-8-2(1)(a)(v) “regarding ‘municipal services or other

nonmonetary assistance to be provided to or (waiver of) [sic] fees required to be paid

      3
        In responding to defendants’ motion to dismiss, Pioneer also asserted that the
lease agreement complied with § 10-7-85, which gave the City clear legislative
authority to support arts and crafts, such as those taught at the Craft House. See Aplt.
App., Vol. 2 at 200-01. But Pioneer did not develop a legal argument that § 10-7-85
authorized the City to enter into the 2008 Lease without a public hearing.
                                            7
by a nonprofit entity . . .’” Aplt. Opening Br. at 20-21 (quoting Utah Code Ann.

§ 10-8-2(1)(a)(v)). Pioneer contends that the alleged combination of transactions

satisfied § 10-8-2(1)(a)(v) because it involved consideration from the county,

municipal services provided by the City, and nonmonetary assistance to Pioneer via

the $1.00-per-year lease of the Craft House premises (which, according to Pioneer,

also resulted in no waiver of fees by the City). See Aplt. Opening Br. at 20-21. It

then argues, without further elaboration, that “§ 10-8-2(1)(a)(v) simply did not apply

to this complicated public interest . . . transaction.” Id. at 22. In addition, Pioneer

asserts that neither the Utah Supreme Court nor the state legislature mandates that a

public transaction of this kind be preceded by a public hearing. For this proposition,

Pioneer cites a Utah Supreme Court case that did not involve application of

§ 10-8-2(1)(a)(v), and in which a public hearing was held, see Price Dev. Co. v.

Orem City, 995 P.2d 1237, 1240 (Utah 2000), and several state statutes other than

§ 10-8-2(1)(a)(v).

      The immediate problem with these contentions is that Pioneer did not raise

them in the district court. As noted, Pioneer argued below that the City intended to

disregard § 10-8-2, as evidenced by a former City Attorney’s determination that the

2008 Lease complied with a different statute and the City’s reliance on the advice of

its counsel in entering into the lease without a public hearing. The district court

considered and rejected this argument as failing to demonstrate that the allegations in

the proposed third amended complaint showed that Pioneer had a protected property



                                            8
interest based on the 2008 Lease. Pioneer does not repeat its district-court

contentions in its opening brief, electing to assert a different legal theory on appeal.

       “Where, as here, a plaintiff pursues a new legal theory for the first time on

appeal, that new theory suffers the distinct disadvantage of starting at least a few

paces back from the block. . . . [I]f the theory simply wasn’t raised before the district

court, we usually hold it forfeited.” Richison v. Ernest Grp., Inc., 634 F.3d 1123,

1127-28 (10th Cir. 2011). “[W]e will entertain forfeited theories on appeal, but we

will reverse a district court’s judgment on the basis of a forfeited theory only if

failing to do so would entrench a plainly erroneous result.” Id. at 1128. We need not

recite and apply the standard for demonstrating plain error because Pioneer makes no

attempt to satisfy it, having failed even to acknowledge that its contentions are raised

for the first time on appeal. “[T]he failure to argue for plain error and its application

on appeal [] marks the end of the road for an argument for reversal not first presented

to the district court.” Id. at 1131. Consequently, Pioneer has not demonstrated error

in the district court’s denial of its motion for leave to amend its complaint.

III.   Conclusion

       The judgment of the district court is affirmed.


                                             Entered for the Court


                                             Jerome A. Holmes
                                             Circuit Judge




                                            9
