Leichty v. Bethel Coll.

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BRUCE LEICHTY, Plaintiff - Appellant, v. BETHEL COLLEGE; MENNONITE CHURCH USA; CITY OF NORTH NEWTON, KANSAS; JOHN THIESEN, Defendants - Appellees, and JOEL NOFZIGER, Defendant.

No. 22-3047

United States Court of Appeals, Tenth Circuit

April 20, 2023

(D.C. No. 6:19-CV-01064-JWB) (D. Kan.)

Before BACHARACH, BALDOCK, and CARSON, Circuit Judges.

ORDER AND JUDGMENT ^[*]

Robert E. Bacharach, Circuit Judge This appeal involves the scope of rights that come with attendance at a conference. Upon paying the required fee, individuals obtain rights to attend the conference. But under what circumstances can the conference organizers expel attendees? And does expulsion subject individuals to arrest if they reappear at the conference? Here we conclude that purchase of a ticket created an irrevocable right to attend the conference. But once the attendee was expelled, his reappearance could support an arrest for trespass.

Background

These issues arise from a two-day conference sponsored by Bethel College, which is a Mennonite college in the City of North Newton, Kansas. The subject of the conference was the Mennonites' role in the Holocaust.

Mr Bruce Leichty paid the $100 attendance fee to attend the conference and planned to conduct his own program in the evening. At the evening program, Mr. Leichty and two associates would present "unusual perspectives on the Holocaust." Appellant's App'x vol. 3, at 619.

Before the conference had begun, Mr. Leichty distributed flyers about his own program. The organizers asked Mr. Leichty to stop distributing the flyers on the conference grounds. But Mr. Leichty refused to stop until the organizers called the police.

The conflicts resumed at the conference when Mr. Leichty stood to make a comment. One of the conference organizers reminded Mr Leichty to stay on topic. Mr. Leichty then commented that Jewish people had different perspectives on the Holocaust. One of the conference organizers instructed someone to cut Mr. Leichty's microphone. Though his microphone had been cut, Mr. Leichty continued to speak about his upcoming program.

Later that day, another organizer of the conference told Mr Leichty that he was "out of the conference." Id. at 626. In front of Mr. Leichty, the organizer told a colleague to call the police if Mr. Leichty attended the next day.

Undeterred, Mr. Leichty returned the next day. The college president told him to leave, but Mr. Leichty refused. College officials called the police, who arrived and arrested Mr. Leichty for trespass. He then sued Bethel College and the City of North Newton.

Claims against Bethel College

1. The district court erred in part in granting summary judgment to Bethel College.

In the suit against Bethel College, Mr. Leichty claimed breach of contract and false arrest. On both claims, the district court granted summary judgment to the college. We uphold the ruling on the claim of false arrest, but disagree with the ruling on the contract claim.

1.1 We review the evidence favorably to Mr. Leichty.

For both rulings, we conduct de novo review. Doe v. Univ. of Denver, 952 F.3d 1182, 1189 (10th Cir. 2020). In conducting de novo review, we view the evidence and draw reasonable inferences favorably to Mr. Leichty. See id. We will uphold the grant of summary judgment only if (1) the college is entitled to judgment as a matter of law and (2) no genuine dispute exists on a material fact. Fed.R.Civ.P. 56(a).

1.2 The district court erred in treating the contract as revocable.

Mr Leichty claims that

• his purchase of a ticket entitled him to attend the conference and

• Bethel College violated that right by kicking Mr. Leichty out of the conference.

Bethel College acknowledges the existence of a right to attend the conference, for a license arose when Mr. Leichty enrolled in the conference and paid the $100 registration fee. The disagreement involves the college's right to revoke Mr. Leichty's license.

The district court concluded that the college could revoke Mr. Leichty's license if he failed to act in good faith. And in the court's view, Mr. Leichty's conduct reflected a failure to act in good faith. We reject this reasoning because state law treated Mr. Leichty's license as irrevocable once he enrolled and paid the registration fee. See Wichita State Univ. Intercollegiate Athletic Ass'n v. Marrs, 28 P.3d 401, 403 (Kan.Ct.App. 2001)^[1] ("Although a license is generally revocable at the will of the licensor, an executed license-a license supported by valuable consideration-may not be revoked."); see also McKim v. Carre, 83 P. 1105, 1105 (Kan. 1905) (stating that "even an oral license may be irrevocable, where it is given for a valuable consideration and is acted upon by the licensee").

Rather than question the irrevocable nature of the license, the college argues that further performance was excused when Mr. Leichty breached his implied obligation to act in good faith. Though the district court didn't rely on this argument, we have discretion to consider it as an alternative basis to affirm. Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004). To determine whether we should exercise this discretion, we consider three factors:

1. whether the parties fully briefed this ground in district court and on appeal,

2. whether the parties had a fair opportunity to develop the factual record, and

3. whether consideration of the alternative ground would involve only legal questions.

Id.

These factors support consideration. The parties briefed the issue here and in district court.^[2] In district court, Bethel College argued that it could discontinue performance because Mr. Leichty had breached the contract. Because Bethel College raised this argument in a summaryjudgment motion, Mr. Leichty had an opportunity to develop the record as to his compliance with the contract. And our decision turns on a legal question-whether a genuine dispute exists over a material fact. See Stewart v. City of Okla. City, 47 F.4th 1125, 1133 n.5 (10th Cir. 2022) (recognizing that "our decision as to whether a genuine and material dispute exists is a legal judgment"). Because each factor supports consideration, we address Bethel College's argument that it could discontinue performance because of Mr. Leichty's contractual breach.

The breach of an implied covenant of good faith and fair dealing ordinarily entails a question of fact. Waste Connections of Kan., Inc. v. Ritchie Corp., 298 P.3d 250, 265 (Kan. 2013). Bethel College argues that the ordinary rule doesn't apply because Mr. Leichty indisputably breached the implied covenant of good faith and fair dealing by

• disregarding instructions to stop handing out flyers and • standing up to promote his event during Bethel College's conference.

In our view, Bethel College's arguments entail questions of fact. Mr. Leichty acknowledges that he distributed flyers. But Bethel College implicitly assumes that its contract with Mr. Leichty prohibited him from passing out flyers on the campus.

When Mr. Leichty began handing out flyers, he was told to stop. He responded that he believed that he was entitled to hand them out. A factfinder could regard that belief as reasonable, for Bethel College hadn't said anything earlier about an inability to promote other events. A reasonable jury could thus find that

• Mr. Leichty had a good faith belief that he was entitled to distribute the flyers, and

• his refusal to stop had not amounted to a material breach of his duty of good faith and fair dealing.

The same is true for Mr. Leichty's comment at the conference. When Mr. Leichty stood, he was told to stay "on topic." But Mr. Leichty could reasonably view his comments as "on topic." After all, his comment concerned the Holocaust.

Mr. Leichty's comments did spark an outburst, and organizers cut Mr. Leichty's microphone as other attendees shouted at him. Bethel College contends that Mr. Leichty improperly continued to speak after his microphone had been cut. Mr. Leichty concedes that he added "a few more sentences without benefit of the microphone." Appellant's App'x vol. 3, at 624. Even so, we conclude that a reasonable jury could find that his continuing to speak did not constitute a material breach of his duty of good faith and fair dealing. See Waste Connections, 298 P.3d at 271 (emphasizing "that the fact question of the existence of good or bad faith is peculiarly inappropriate for summary judgment").

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The district court erred in concluding that Mr. Leichty's license was revocable, and a triable fact-issue existed on whether Mr. Leichty had breached the covenant of good faith and fair dealing. So we reverse the award of summary judgment on the contract claim.

1.3 The district court didn't err in granting summary judgment to the college on the claim of false arrest.

Despite the irrevocable license, conference officials kicked Mr. Leichty out of the conference and warned him that they'd call police if he returned the second day. He returned anyway and got arrested. Blaming the college for giving false information to the police, Mr. Leichty asserted a claim against the college for false arrest. The district court granted summary judgment to the college on this claim.

Under state law, a private entity can incur liability for false arrest, but not if "legal cause or justification existed for the restraint." Thurman v. Cundiff, 580 P.2d 893, 899 (Kan.Ct.App. 1978). The district court properly concluded that the police had justification to arrest Mr. Leichty for trespass.

Under state law, individuals commit criminal trespass by entering or staying on land with knowledge that they're not authorized and have been ordered to leave by someone with authority. Kan. Stat. Ann. § 21-5808(a)(1)(A). Mr....