UNPUBLISHED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.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

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Unpublished opinions are not binding precedent in this circuit.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 conditions 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 improvements 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 process of law, slandered the title to their property, and inversely condemned the property. On the defendants' motion to dismiss and for

summary judgment, the district court entered summary judgment dismissing 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 defendants' 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

 2
erred in giving the City of Bristol immunity from Fifth Amendment

liability.

Having carefully reviewed the entire record in this case and considered the arguments of counsel, we find no merit to the Browns'

appeal.

On the Browns' claim that they were not notified that the defendants' motion to dismiss would be treated by the court as a motion

for summary judgment, the record belies their contentions. In the district court, the defendants did label their motion as a "motion to dismiss," 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 "summary 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 summary 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 admonishment 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

 3
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 subdivision, they cannot later claim, when the interested governmental body

insists on compliance with its approval requirements, that their property 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

 4