Milcor I v. Luers

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 28, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MILCOR I, LLC,
Plaintiff - Appellant,
v. No. 18-8000
(D.C. No. 2:16-CV-00163-NDF)
SANDY K. LUERS, individually; ERIC (D. Wyoming)
CARR in his official capacity as Riverton
Community Development Director; DAVE
PASKETT, individually and in his official
capacity as Riverton Building Inspector;
GARY W. BURNETTE, individually;
TERRY BETTS in his official capacity as
Riverton Construction Board of Appeals
Chairman; JOHN L. BAKER, individually;
RICHARD P. GARD in his official
capacity as Riverton Mayor; MARTIN
CANNAN, LEE MARTINEZ, HOLLY
JIBBEN, SEAN PETERSON, individually;
MIKE BAILEY individually and in his
official capacity as Riverton City Council
Member; KYLE LARSON, REBECCA
SCHATZA, KARLA BORDERS, TIM
HANCOCK, in their official capacities as
Riverton City Council Members,*
Defendants - Appellees.
_________________________________
*
When a public officer who is a party to an appeal ceases to hold office, “[t]he
public officer’s successor is automatically substituted as a party.” Fed. R. App. P.
43(c)(2). For those Defendants-Appellees who no longer hold office, we have
substituted their successors as to the official-capacity claims.
ORDER AND JUDGMENT**
_________________________________
Before LUCERO, McHUGH, and MORITZ, Circuit Judges.
_________________________________
Milcor I, LLC (“Milcor”) seeks damages from the City of Riverton, Wyoming
(“City”) and several City officials under 42 U.S.C. § 1983 for violations of
procedural and substantive due process, and a state breach-of-contract claim. The
district court granted summary judgment for the defendants on Milcor’s due process
claims and dismissed the state contract claim without prejudice. Milcor now
challenges the district court’s grant of summary judgment, which we affirm.
I. BACKGROUND
Milcor owned and operated a Days Inn in Riverton, Wyoming. In 2013, Milcor
proposed to remodel the hotel—at that time a single two-story structure where all the
doors to motel rooms opened directly to the outside—by adding an adjacent two-
story structure that would connect to the original structure by an enclosed corridor.1
In support of the proposed renovations, Milcor submitted building plans to the City.
Citing § 903.3.1 of the 2006 International Building Code (“IBC”), these plans stated
that a fire sprinkler system would be installed consistent with National Fire
Protection Association (“NFPA”) Standard 13. The plans also stated, pursuant to IBC
**
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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
1
The proposed renovations also included the addition of a business area.
2
907.2.2, that no fire alarm system would be installed in the business area; however,
the plans did not say whether a fire alarm system would be installed in the new
guestrooms.
The City granted Milcor a building permit for the renovations, along with a
“plan review report” advising that “[f]ire sprinkler system plans shall be submitted
for review prior to installation” and that “[s]moke alarms shall be installed per IBC
Section 907.2.10.” Suppl. App. at 105–07. The report also stated that the “plan
review . . . represents a list of corrections necessary to comply with the requirements”
of the relevant building codes, that “[t]he approval of plans and specifications does
not permit the violation of any section of federal, state, or local regulations,” and that
[t]he issuance of a permit based on plans, specifications, and other data
shall not prevent the City of Riverton from thereafter requiring the
correction of errors in said plans, specifications and other data, or from
preventing building operations being carried on when in violation of any
federal, state or local ordinance, rule or regulation.
Id. at 107. But the report neither mentioned the need to install a fire alarm system nor
referenced any section of the IBC governing fire alarm systems.
In June 2014, Milcor submitted fire sprinkler system plans to the City that the
City approved. In the same month, Dave Paskett, a city inspector, performed a
“rough-in inspection” and raised the need to install a fire alarm system. Afterwards,
Mr. Paskett and Sandy Luers (the City’s Director of Community Development and
Building Official) met with Kent Milligan, the hotel’s general manager. The parties
dispute the nature of the meeting: Ms. Luers contends she advised Mr. Milligan of
the need for a fire alarm system, while Mr. Milligan does not recall any discussion of
3
a fire alarm system. Milcor then completed construction without installing a fire
alarm system.
On December 8, 2014, Milcor requested a final inspection of its renovations.
Mr. Paskett refused to perform the inspection until Milcor installed an operational
fire alarm system.2 Mr. Milligan sent Ms. Luers a letter protesting Mr. Paskett’s
refusal to perform a final inspection, contending that a fire alarm system was never
part of the building plans the City had approved and that the project’s architect had
concluded the IBC did not require installation of a fire alarm system. In a response to
Mr. Milligan’s letter, Ms. Luers stated that while the business section of the addition
did not need a fire alarm system, the new guestrooms did because they did not open
directly onto a public way, exit court, or yard.
On December 30, 2014, Milcor inquired in an email about formally contesting
the City’s decision, but did not actually request an appeal until more than six months
later, on July 8, 2015. Instead, Milcor began renting at least some of its newly-built
guestrooms without the required certificate of occupancy. On September 14, 2015,
the Riverton Board of Appeals (“Board”) dismissed Milcor’s appeal as untimely.
Milcor continued renting its rooms without a certificate of occupancy until
February 5, 2016, when the City advised Milcor by letter of the alleged code
2
Mr. Paskett contends he also refused to perform the inspection for another
reason: because the addition lacked an operational fire suppression system. Milcor
denies that Mr. Paskett cited the lack of a fire suppression system as a basis for
refusing the inspection and contends that it had installed a fire suppression system.
We need not resolve this factual dispute.
4
violation and ordered Milcor to either install a fire alarm system within thirty days
(during which period Milcor would have to perform hourly fire watches) or “cease
renting of all rooms.” App. at 213–214. Mr. Milligan requested a hearing to appeal
this letter, arguing the City was “attempt[ing] to strong arm [him] into submitting to
installation of a fire monitoring system that was never contemplated in the original
plans or building permit issued by the City”; he sought relief in the form of “an order
that the City immediately issue certificates of occupancy.” Suppl. App. at 182–83.
The Board dismissed the appeal, holding that it addressed the same issues as the July
2015 appeal that the Board had already dismissed as untimely. Milcor appealed that
dismissal to the Riverton City Council, which upheld the Board’s decision on
March 16, 2016.
In June 2016, Milcor filed a complaint in the U.S. District Court for the
District of Wyoming, naming the defendants in both their individual and official
capacities. The complaint alleged due process violations and requested a temporary
restraining order and a preliminary injunction ordering the City to issue a certificate
of occupancy. The district court ordered the City to perform an inspection of the fire
alarm and fire suppression systems and to issue a certificate of occupancy if the
systems were “in compliance with the intent and purpose of the applicable codes.”
App. at 29–30.
The City retained Albert Rood, an inspector with the Wyoming State Fire
Marshal’s Office, to perform the ordered inspection. In December 2016, Mr. Rood
performed the inspection and concluded that Milcor needed to install a fire alarm
5
system, noting “[t]he current fire alarm system d[id] not meet NFPA standards to
alert all areas of the building” and “[t]he fire alarm system plan submittal ha[d] never
been approved by the city.” App. at 37. Mr. Rood also noted several other
deficiencies in the fire alarm system.
Concluding it was financially unsustainable to keep the Days Inn open or to
complete the required installations, Milcor closed the motel in March 2017. Milcor
filed an amended complaint based on 42 U.S.C. § 1983, alleging: (1) procedural and
substantive due process claims based on the City preventing Milcor from renting
guestrooms in the pre-renovation portion of the hotel; (2) procedural and substantive
due process claims based on the City’s refusal to issue a certificate of occupancy
after Milcor completed the renovation in accord with the building plans previously
approved by the City; and (3) a breach of contract claim under Wyoming law. In
September 2017, the defendants moved for summary judgment on Milcor’s claims,
asserting qualified immunity and offering affidavits from Ms. Luers, Mr. Paskett, and
Mr. Rood. Along with a response to this motion, Milcor moved to strike Mr. Rood’s
affidavit in its entirety and portions of Mr. Paskett’s and Ms. Luers’s affidavits.
In a single order, the district court denied Milcor’s motions to strike and
granted summary judgment for the defendants. On Count One of the amended
complaint, the district court concluded there was no evidence from which the jury
could find the defendants threatened to prevent Milcor from renting rooms in the pre-
renovation portion of the Days Inn. On Count Two, the district court found no
procedural due process violation because it concluded Milcor lacked a protected
6
property interest in a certificate of occupancy absent compliance with local building
codes, and that Milcor had failed to meet its burden of clearly establishing the
absence of any IBC violation.3 As for Milcor’s substantive due process claim, the
district court found no deprivation of a fundamental right. Having dismissed all
federal-law claims prior to trial, the court declined to exercise supplemental
jurisdiction over Count Three and dismissed Milcor’s state-law breach of contract
claim without prejudice. See United States v. Botefuhr, 309 F.3d 1263, 1273 (10th
Cir. 2002) (“[A] district court should normally dismiss supplemental state law claims
after all federal claims have been dismissed, particularly when the federal claims are
dismissed before trial.”). Milcor timely appealed.
II. DISCUSSION
Milcor challenges the district court’s grant of summary judgment and denial of
its motions to strike. We begin with a discussion of the appropriate standard of
review. Then, we apply that standard in assessing the correctness of the district
court’s grant of summary judgment.4
3
The district court ruled against Milcor’s procedural due process claims on
two additional grounds: (1) Milcor failed to identify a City policy responsible for the
alleged constitutional deprivation and thus could not prevail on an official-capacity
claim; and (2) Milcor had failed to avail itself of the procedures the City made
available when it did not timely appeal Mr. Paskett’s refusal to perform the final
inspection. We need not reach these grounds because we agree with the district court
that Milcor lacked a property interest protected by the due process clause.
4
Because we affirm the district court’s grant of summary judgment on the
basis that Milcor lacked a property interest in a certificate of occupancy, we need not
reach any questions of disputed fact. Accordingly, we do not address Milcor’s
challenges to the district court’s denial of its motions to strike the affidavits.
7
A. Standard of Review
We review a district court’s rulings on summary judgment de novo, applying
the same standards as the district court. Universal Underwriters Ins. Co. v. Winton,
818 F.3d 1103, 1105 (10th Cir. 2016). Summary judgment is appropriate if “there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). On
appeal we “examine the record and all reasonable inferences that might be drawn
from it in the light most favorable to the non-moving party.” Merrifield v. Bd. of Cty.
Comm’rs, 654 F.3d 1073, 1077 (10th Cir. 2011) (quotation marks omitted). “In
reviewing a grant of summary judgment, we need not defer to factual findings
rendered by the court.” Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1180 (10th Cir.
2018) (internal quotation marks omitted). Furthermore, “we can affirm on any ground
supported by the record, as long as the appellant has had a fair opportunity to address
that ground.” Alpine Bank v. Hubbell, 555 F.3d 1097, 1108 (10th Cir. 2009) (internal
quotation marks omitted).
B. Analysis
The Due Process Clause of the Fourteenth Amendment protects persons from
state-imposed deprivations “of life, liberty, or property, without due process of law.”
U.S. Const. amend. XIV, § 1; see also Greene v. Barrett, 174 F.3d 1136, 1140 (10th
Cir. 1999). The clause “has two components: procedural due process and substantive
due process.” Greene, 174 F.3d at 1140 n.1. Although Milcor raised substantive due
8
process claims before the district court and alluded to such claims in oral argument, it
never raised those arguments in its briefing to this court. Milcor also failed to argue
any official-capacity procedural due process claims in its briefing before us. We
generally “decline[] to consider arguments that are not raised, or are inadequately
presented, in an appellant’s opening brief.” Bronson v. Swensen, 500 F.3d 1099, 1104
(10th Cir. 2007). Accordingly, we limit our review to Milcor’s procedural due
process claims against the defendants in their individual capacities.
Because Milcor directs its due process complaint against individuals who have
asserted qualified immunity, to prevail, Milcor must show “(1) the defendant[s]
violated a constitutional right and (2) the constitutional right was clearly
established.” Courtney v. Okla. ex rel. Dep’t of Pub. Safety, 722 F.3d 1216, 1222
(10th Cir. 2013) (quotation marks omitted). Looking to the first prong of this
standard,5 we conclude Milcor has failed to demonstrate the violation of any
constitutional right implicated by the denial of a certificate of occupancy.
Here, the question is whether the City violated Milcor’s right to procedural due
process by refusing to issue a certificate of occupancy. “The Fourteenth Amendment
proscribes a state from, among other things, depriving a party of ‘property without
due process of law.’” Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210
(10th Cir. 2000) (quoting U.S. Const. amend. XIV, § 1). Determining whether a
5
In reviewing a district court’s ruling on a qualified immunity defense, “[w]e
have discretion to address either prong of this standard first.” Cox v. Glanz, 800 F.3d
1231, 1246 (10th Cir. 2015) (quotation marks omitted).
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procedural due process violation has occurred entails “a two-step inquiry: (1)
whether the plaintiff has shown the deprivation of an interest in ‘life, liberty, or
property’ and (2) whether the procedures followed by the government in depriving
the plaintiff of that interest comported with ‘due process of law.’” Elliot v. Martinez,
675 F.3d 1241, 1244 (10th Cir. 2012) (quoting Ingraham v. Wright, 430 U.S. 651,
673 (1977)). For the first step of this inquiry, where a plaintiff alleges a deprivation
of property without due process, we must consider whether the alleged deprivation is
of an interest protected by the Fourteenth Amendment. Hyde Park Co., 226 F.3d at
1210.
To determine whether Milcor had a protected property interest in a certificate
of occupancy, we look to state law. Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 539 (1985) (“Property interests are not created by the Constitution; ‘they are
created and their dimensions are defined by existing rules or understandings that stem
from an independent source such as state law. . . .’” (quoting Bd. of Regents of State
Coll.’s v. Roth, 408 U.S. 564, 577 (1972))); Hulen v. Yates, 322 F.3d 1229, 1240
(10th Cir. 2003) (“Thus, constitutionally protected property interests are created and
defined by statute, ordinance, contract, implied contract and rules and understandings
developed by state officials.”); Cole v. Ruidoso Mun. Sch., 947 F.2d 903, 906 (10th
Cir. 1991). “In order to create a property interest, the state statute or regulation must
give the recipient ‘a legitimate claim of entitlement to [the benefit allegedly
deprived].’” Greene, 174 F.3d at 1140 (quoting Roth, 408 U.S. at 576). “Detailed
10
procedures in a state statute or regulation are not, by themselves, sufficient to create a
property interest.” Id.
Milcor fails to demonstrate any “legitimate claim of entitlement to” a
certificate of occupancy under Wyoming law. The only case Milcor adduces in
support of its burden, Snake River Venture v. Board of County Commissioners, Teton
County, 616 P.2d 744 (Wyo. 1980), misses the mark. In Snake River Venture, a
county issued a building permit to a developer even though the project conflicted
with a municipal ordinance. 616 P.2d at 746–47. The county later revoked the permit,
arguing it had lacked the authority to lawfully issue a permit in the first place, and
the developer sought an injunction to enforce the validity of its building permit. Id. at
748. In its opinion denying an injunction, the Wyoming Supreme Court explained
that when an entity receives a building permit and begins actual construction in
reliance on the earlier approval, it acquires a property interest in the building permit.
Id. at 750. Because the developer had not begun construction, it lacked a property
interest in its building permit. Id. Importantly, however, the decision never addressed
the right to a certificate of occupancy and so Snake River Venture does not support
Milcor’s claim of a property interest here.
Apart from Snake River Venture, Milcor cites no Wyoming case law, nor did
our research reveal any, that would elucidate whether a certificate of occupancy is a
protected property interest. Moreover, courts considering the question in other states
have generally rejected the notion of a protected property interest in a certificate of
occupancy, emphasizing that the issuance or non-issuance of a certificate falls within
11
a city’s police powers and fundamentally implicates its “ability to protect the health,
safety, and welfare of the public.” See, e.g., Patzer v. City of Loveland, 80 P.3d 908,
911–12 (Colo. App. 2003) (rejecting argument that completion of project in accord
with approved building plans entitled entity to certificate of occupancy where
issuance might endanger public safety) (collecting cases).
Thus, because Milcor has failed to show a property interest in a certificate of
occupancy under Wyoming law,6 Milcor does not satisfy its burden of showing the
deprivation of a constitutional right and therefore cannot prevail on its procedural
due process claim.
III. CONCLUSION
We AFFIRM the district court’s decision.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
6
Milcor asserts, without support or explanation:
[B]ecause the trial court chose to dismiss the state law claims [without
prejudice], this Court must assume that Plaintiff did have a property
interest under Wyoming law in completing construction pursuant to the
plans on which the building permit was issued. It would not be
appropriate at this stage of the case for this court to attempt to resolve
any uncertainty in the law of Wyoming as to the property interest that
was deprived by due process of law.
Appellant’s Br. at 53–54. Milcor is mistaken. Although we express no view on
the merits of a state breach of contract claim, we properly assessed and
rejected the merits of Milcor’s federal claim under § 1983.
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