Tompkins v. Lifeway Christian Resources of the Southern Baptist Convention

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 21, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
L. KIRK TOMPKINS; SUSIE
TOMPKINS,
Plaintiffs - Appellants,
v. No. 15-2053
(D.C. No. 1:13-CV-00840-JB-CG)
LIFEWAY CHRISTIAN RESOURCES (D.N.M.)
OF THE SOUTHERN BAPTIST
CONVENTION; LIFEWAY CHRISTIAN
RESOURCES OF THE SOUTHERN
BAPTIST CONVENTION, INC.;
GLORIETA 2.0, INC.; DAVID
WEEKLEY; THOM RAINER, President,
Lifeway Christian Resources of the
Southern Baptist Convention; JERRY L.
RHYNE, CFO, Lifeway Christian
Resources of the Southern Baptist
Convention; LARRY D. CANNON,
Secretary, Lifeway Christian Resources of
the Southern Baptist Convention,
Defendants - Appellees,
and
EXECUTIVE COMMITTEE OF THE
SOUTHERN BAPTIST CONVENTION;
SOUTHERN BAPTIST CONVENTION;
FRANK S. PAGE, President and CEO,
Executive Committee of the Southern
Baptist Convention; D. AUGUST BOTO,
Executive VP, Executive Committee of the
Southern Baptist Convention; TERRY S.
BRASWELL; TERRY LOOPER;
LEONARD RUSSO; TRAVIS BEST;
CRAIG CARSLILE, Directors, Lifeway
Christian Resources of the Southern Baptist
Convention,
Defendants.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, EBEL, and GORSUCH, Circuit Judges.
_________________________________
L. Kirk Tompkins and Susie Tompkins appeal from a district court order
dismissing their complaint. Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
The parties are familiar with the facts, which we need not recite here in detail.
Lifeway Christian Resources (“Lifeway”) declined to renew the Tompkins’ lease at
the Glorieta Conference Center (“GCC”), deciding instead to sell the campus to
Glorieta 2.0, Inc. The Tompkins filed suit against Lifeway, Glorieta 2.0, the
Executive Committee of the Southern Baptist Convention,1 and various directors and
officers of the corporate defendants. After giving the Tompkins opportunities to
amend their complaint, the district court dismissed the action in its entirety. The
Tompkins timely appealed, proceeding pro se. This court appointed counsel.
We agree with the district court that the Tompkins lacked prudential standing
to bring their first two claims because they seek to vindicate the rights and interests
*
This order and judgment is not binding precedent, except under the doctrines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.
1
Lifeway’s parent corporation is the Southern Baptist Convention (“SBC”).
2
of others. See Warth v. Seldin, 422 U.S. 490, 499 (1975) (“Even when the plaintiff
has alleged injury sufficient to meet the ‘case or controversy’ requirement, . . . the
plaintiff generally must assert his own legal rights and interests, and cannot rest his
claim to relief on the legal rights or interests of third parties.”). In their first two
claims, the Tompkins allege that defendants failed to follow SBC’s internal
governance procedures and made misrepresentations to SBC’s Executive Committee.
These claims rest on the legal rights of SBC and Lifeway rather than on the rights of
the Tompkins. See Bixler v. Foster, 596 F.3d 751, 756 n.4 (10th Cir. 2010).
We also affirm the district court’s dismissal of the Tompkins’ implied contract
claim under Fed. R. Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint
must contain allegations of fact that, taken as true, “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The
Tompkins have not alleged facts showing they possessed a reasonable expectation
that Lifeway would refrain from selling GCC. See Hartbarger v. Frank Paxton Co.,
857 P.2d 776, 783 (N.M. 1993) (under New Mexico law, “[a]n implied contract is
created only where [the defendant] creates a reasonable expectation,” which is
measured “by just how definite, specific, or explicit has been the representation or
conduct relied upon”).
Finally, with the assistance of appointed counsel, the Tompkins argue that
their complaint contained a plausible claim of unconscionability. Even affording
their pleadings the liberal construction due to pro se litigants, see Haines v. Kerner,
404 U.S. 519, 520 (1972), we disagree. Although the terms of the leases at issue
3
operated to the detriment of the Tompkins, the operative complaint does not contain
allegations suggesting procedural unconscionability. See State ex rel. King v. B&B
Inv. Grp., Inc., 329 P.3d 658, 669 (N.M. 2014) (describing relevant factors in
procedural unconscionability analysis). Nor have the Tompkins made an
“affirmative showing of mistake, fraud or illegality” sufficient to establish
substantive unconscionability under New Mexico law. Smith v. Price’s Creameries,
650 P.2d 825, 829 (N.M. 1982).2
We AFFIRM.
Entered for the Court
Carlos F. Lucero
Circuit Judge
2
The district court also held that the Tompkins failed to plead their fraud
claims with particularity sufficient to satisfy Fed. R. Civ. P. 9(b). Because the
Tompkins do not develop a challenge to this ruling on appeal, we consider the issue
waived. See Iliev v. Holder, 613 F.3d 1019, 1026 n.4 (10th Cir. 2010).
4