*This order and judgment is not binding precedent, except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 Tenth Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 8/23/96

FOR THE TENTH CIRCUIT

______

DENNIS O’NEILL, )

)

Plaintiff-Appellant, )

)

v. ) No. 96-1214

) (D.C. No. 95-Z-863)

THE BOARD OF COUNTY COMMISSIONERS ) (Dist. of Colorado)

OF THE COUNTY OF LAKE, JANIS A. )

FAIRCHILD, KEN BAKER, KEN BAKER, )

P.C., LLOYD E. SCHOOLEY, REATHA A. )

SCHOOLEY, DALLAS H. FULLERTON, )

LEONARD CAMPBELL, VIRGIL NEAL )

CAMPBELL, and PAUL CAMPBELL, )

)

Defendants-Appellees. )

______

ORDER AND JUDGMENT*

______

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

______

After examining the briefs and the 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. 34.1.9. The case is therefore ordered

submitted without oral argument.

Dennis O’Neill (O’Neill) appeals from the district court’s

dismissal with prejudice of his civil rights complaint filed

pursuant to 18 U.S.C. § 1983.
1 Although O’Neill had retained counsel for this

proceeding, counsel was unable to attend due to a scheduling

conflict and the district court denied O’Neill’s request for a

continuance on the morning of the hearing.

- 2 -

O’Neill owned real property in Lake County, Colorado, which

was secured by a Deed of Trust and a Promissory Note in favor of

appellees, Leonard Campbell, Virgil Neal Campbell, Paul Campbell,

Lloyd E. Schooley, Reatha A. Schooley, and Dallas H. Fullerton

(collectively “the Campbells”). When O’Neill failed to make

certain payments, the Campbells initiated foreclosure proceedings,

through their attorney, appellee Ken Baker (Baker), with the Public

Trustee for Lake County, Colorado, appellee Janis A. Fairchild

(Fairchild). Fairchild set the foreclosure sale for April 1, 1993.

O’Neill filed an objection to the sale and on March 18, 1993,

Fairchild changed the sale date to April 29, 1993. O’Neill claims

he did not receive notice of the new date of sale.

Pursuant to Colo. R. Civ. P. 120(d), a hearing was held on

April 23, 1993, for authorization of the foreclosure sale. O’Neill

attended the hearing without counsel.1 During the hearing, the

court inquired as to the date of the foreclosure sale. Baker

replied that it was set for April 28, 1993, or “next Friday,” April

30, 1993. After the hearing, the court determined that O’Neill had

defaulted on the promissory note and granted the Order Authorizing

Sale.

Pursuant to the order, Fairchild held the foreclosure sale on
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April 29, 1993, and the subject property was sold. On July 23,

1993, O’Neill filed a Motion For Reconsideration of Order

Authorizing Sale and to Void Sale. On September 24, 1993, O’Neill

filed a Petition for Mandamus and Prohibition with the Colorado

Supreme Court. Both motions were based on O’Neill’s claim that he

was denied procedural due process because the foreclosure sale

occurred before the statutory seven day period for him file a

Notice of Intent to Cure had elapsed. On September 28, 1993, the

district court denied O’Neill motion for reconsideration and on

September 30, 1993, the Colorado Supreme court denied O’Neill’s

petition for mandamus. Finally, on October 29, 1993, the Lake

County District Court approved the sale.

On April 19, 1995, O’Neill filed this civil rights action in

district court pursuant to 18 U.S.C. § 1983 alleging, inter alia,

that he was denied procedural due process because the foreclosure

sale occurred before the statutory seven day period allowed for the

filing of a Notice of Intent to Cure after a Rule 120 hearing had

elapsed. On April 10, 1996, the district court granted appellees’

motions to dismiss and dismissed O’Neill’s complaint on the grounds

that: (1) the federal district court lacked subject matter

jurisdiction because O’Neill sought appellate review of a state

court decision; (2) O’Neill’s claims were barred by the doctrine of

collateral estoppel; and (3) O’Neill failed to state a claim upon

which relief can be granted.
2 Although the district court found alternative grounds

to dismiss O’Neill’s complaint, we need only address the issue of

subject matter jurisdiction because without jurisdiction we are

without authority to consider anything else.

- 4 -

On appeal, O’Neill reiterates his due process claim. He

specifically contends that the district court erred in finding

that: his claims sought to vacate, reverse or modify a state court

decision, therefore, depriving the district court of subject matter

jurisdiction; his claims were barred by the doctrine of collateral

estoppel; and his complaint failed to sufficiently plead the

specifics of conspiracy between public officials and private

litigants.

We review the district court dismissal for lack of subject

matter jurisdiction de novo.

2 Thomas Brooks Chartered v. Burnett,

920 F.2d 634, 641 (10th Cir. 1990).

The federal courts are courts of limited jurisdiction and may

only adjudicate cases within their authority, Hackbart v.

Cincinnati Bengals, Inc., 601 F.2d 516, 521 (10th Cir.), cert.

denied, 444 U.S. 931 (1979), and “[i]t is well settled that federal

district courts are without authority to review state court

judgments where the relief sought is in the nature of appellate

review.” Anderson v. Colorado, 793 F.2d 262, 263 (10th Cir. 1986).

See Facio v. Jones, 929 F.2d 541, 543 (10th Cir. 1991). Where a

constitutional claim has, or could have been, reviewed by a state

appellate court, a litigant may not use § 1983 as a vehicle in a
- 5 -

federal district court through which to seek reversal. Anderson,

793 F.2d at 263. “Any such federal review has to be addressed

directly to the United States Supreme Court from the state’s

highest court pursuant to 28 U.S.C. § 1257.” Facio, 929 F.2d at

543.

The Colorado courts have considered, or had the opportunity to

consider, O’Neill’s claims of deprivation of due process and have

denied relief. Therefore, we affirm substantially for the reasons

set forth in the district court’s Order of April 10, 1996.

O’Neill’s motion for Correction or Modification of the record

is denied. Appellees’, the Board of County Commissioners for the
- 6 -

County of Lake and Fairchild, request for attorney fees and

sanctions is denied.

AFFIRMED.

Entered for the Court:

James E. Barrett,

Senior United States

Circuit Judge