Brummett v. Washington's Lottery

• Decision Date: 30 October 2012
• Docket Number: No. 42158–5–II.,42158–5–II.
• Citation: 288 P.3d 48,171 Wash.App. 664
• Court: Washington Court of Appeals
• Parties: James L. BRUMMETT, Appellant, And at least 10,000's of other Lottery 2010 Raffle Players so situated, Plaintiffs, v. WASHINGTON'S LOTTERY, Harold W. Hanson, Director; Deputy Director, Julie Martin; Lottery Commission Chair, Lyle Jacobsen; Commissioner Brian Comstock; Commissioner Robert Scarbrough; Commissioner Valoria Loveland; Commissioner Ann Ryherd; Jana Jones, Lottery in house Attorney; James Warick, Lottery Marketing Director; Rebbeca Foster, Lottery Director, Finance & Administration; Stephen Wade, Lottery Research & Development Manager; Gaylene Gray, Lottery Product Manager; Kurt Geisreiter, Lottery Director of Sales; Lance Anderson, Lottery Assistant Director of Sales; Cheryl Earsley, Lottery Promotions & Events Coordinator; Jennifer McDaniel, Lottery Legal Assistant; Debbie Meyer, Lottery Executive Secretary; Derek Poppie, Lottery Security; Cole & Weber, Inc. dba Cole & Weber United, Respondents, President, Mike Doherty; Brea Stevens, Cole & Weber Employee; Lindsey Lower, Cole & Weber Employee; Megan Ragsdale, Cole & Weber Employee, Defendants.

171 Wash.App. 664

288 P.3d 48

James L. BRUMMETT, Appellant,

And at least 10,000's of other Lottery 2010 Raffle Players so situated, Plaintiffs,

v.WASHINGTON'S LOTTERY, Harold W. Hanson, Director; Deputy Director, Julie Martin; Lottery Commission Chair, Lyle Jacobsen; Commissioner Brian Comstock; Commissioner Robert Scarbrough; Commissioner Valoria Loveland; Commissioner Ann Ryherd; Jana Jones, Lottery in house Attorney; James Warick, Lottery Marketing Director; Rebbeca Foster, Lottery Director, Finance & Administration; Stephen Wade, Lottery Research & Development Manager; Gaylene Gray, Lottery Product Manager; Kurt Geisreiter, Lottery Director of Sales; Lance Anderson, Lottery Assistant Director of Sales; Cheryl Earsley, Lottery Promotions & Events Coordinator; Jennifer McDaniel, Lottery Legal Assistant; Debbie Meyer, Lottery Executive Secretary; Derek Poppie, Lottery Security; Cole & Weber, Inc. dba Cole & Weber United, Respondents,President, Mike Doherty; Brea Stevens, Cole & Weber Employee; Lindsey Lower, Cole & Weber Employee; Megan Ragsdale, Cole & Weber Employee, Defendants.

No. 42158–5–II.

Court of Appeals of Washington,

Division 2.

Sept. 18, 2012.

Publication Ordered Oct. 30, 2012.

James Brummett, Tacoma, WA (Appearing Pro Se), for Appellant.

Patricia Campbell Fetterly, Attorney General of Washington, Olympia, WA, Charles Albert Willmes, Merrick Hofstedt & Lindsey, P.S., Seattle, WA, Paul Corcoran, Davis & Gilbert LLP, New York, NY, for Respondents.

HUNT, J.

¶ 1 James L. Brummett appeals the superior court's CR 12(b)(6) dismissal of his claims against Cole & Weber, Inc. doing business as Cole & Weber United (Cole & Weber) and its summary judgment dismissal of his claims against the Washington's Lottery, et al. (collectively Washington's Lottery). Brummett argues that Cole & Weber's advertisement that raffle tickets were “going fast” and the Washington's Lottery's advertisements and intervals at which “early bird” promotional prizes were awarded (1) were fraudulent; (2) violated the Consumer Protection Act ¹; (3) violated RCW 67.70.040(1); and (4) constituted “unreasonableness,” “negligence,” and “negligent misrepresentation.” ² Holding that the superior court did not err in dismissing Brummett's claims, we affirm.

FACTS

I. Scheduled and Promotional Prizes for Thanksgiving Raffle

¶ 2 James L. Brummett has been an “avid” player of Washington's Lottery games since 1982. Clerk's Papers (CP) at 12. On August 19, 2010, Washington's Lottery Commission, approved the “Thanksgiving Raffle” of 250,000 tickets to be sold at $10 per ticket. Raffle tickets were to be sold for 39 days, from October 17 through November 25. Washington's Lottery scheduled 2,720 prizes to be awarded from the monies the raffle generated; ³ if all 250,000 tickets were sold, the odds of winning one of the 2,720 scheduled raffle prizes was 1 in 92 at the start of the lottery; these prizes were awarded and paid out on November 25. In addition to the scheduled raffle prizes, the raffle offered 30 $500 “[e]arly [b]ird” promotional prizes to “drive demand by creating chatter among the player base throughout the sale of the raffle tickets.” ⁴ CP at 199. These promotional “early bird” prizes “were awarded at intervals on sequentially purchased [raffle] tickets (that is, ‘every nth ticket’) based upon projections of [r]affle ticket sales”; they were paid instantly. CP at 188. These “nth.” ticket intervals ⁵ were based initially on the number of tickets estimated to be sold and later adjusted up or down based on whether ticket sales were faster or slower than anticipated. These “early bird” prizes had no effect on the odds for or the size of the 2,720 scheduled Thanksgiving Raffle prizes.

¶ 3 Stephen Wade, a research and development manager with Washington's Lottery, calculated the initial “nth” ticket interval for the Thanksgiving Raffle “early bird” prizes. Working from the assumption that the raffle's 250,000 tickets would sell out in 3 weeks, Wade initially set the “nth” ticket interval at 8,000. Wade believed that the “nth” ticket interval should remain at 8,000 so that all “early bird” prizes would be given out within 3 weeks of the raffle tickets' going on sale.⁶ Under these assumptions, all “early bird” promotional prizes would be paid out 21 days into the 39–day Thanksgiving Raffle.

A. Advertising

¶ 4 Washington's Lottery staff created all “early bird” advertising in-house. CP at 198. “Early bird” prize advertising was limited to the Washington's Lottery web site, point of sale materials, and bar-coded purchase slips for ticket vending machines. None of these “early bird” prize advertisements revealed the method used to select the instant winners or the “nth” ticket interval winner-selection process.

¶ 5 Cole & Weber was the advertising vendor for the Washington's Lottery Thanksgiving Raffle before and during the raffle; but it did not create any advertising for the “early bird” prizes. CP at 198. Cole & Weber worked with the Washington's Lottery staff to create an advertisement campaign focusing on the anticipated scarcity of raffle tickets and “the limited time offer of the game.” CP at 198. Cole & Weber's 2 radio advertisements, which aired before the raffle tickets went on sale, (1) mentioned the $50,000 top scheduled raffle prize (2) contained statements about the sale of raffle tickets, such as, “Washington's Lottery Raffle tickets are going fast, so go, go, go,” and, “People want those tickets for Washington's Lottery Raffle, and they're going fast”; but (3) did not mention the separate “early bird” promotional prizes. ⁷

B. Brummett's Ticket Purchases

¶ 6 Around October 10, a week before the first raffle tickets were to go on sale, Brummett saw point of sale advertising about the Thanksgiving Raffle, which noted the raffle's start date, October 17, and that “the chance to win $50,000 was going fast.” CP at 340. On October 14, Brummett left home for a camping and deer hunting trip, also aware of the 30 “early bird” prizes. While away on his trip, he heard the Cole & Weber radio advertisements stating that the raffle tickets were “going fast,” the day before they went on sale, October 16. CP at 232. Believing that the “early bird” prizes would be awarded within the first 30,000–50,000 tickets purchased,⁸ on October 20, Brummett made a 70–mile round trip in search of raffle tickets to purchase 2 raffle tickets.

¶ 7 By November 18, Brummett had purchased a total of nine raffle tickets. While purchasing the 9th ticket, Brummett saw on the “Lottery screen” that 11 “early bird” prizes still remained. CP at 337. The next day, he called Jana Jones, Director of Legal Services with Washington's Lottery, and informed her about his concern that, based on the number of “early bird” prizes left and the number of raffle tickets sold, all of the “early bird” prizes would not be given out.

C. Adjustment of “Early Bird” Prize Interval

¶ 8 Jones consulted with Wade, who reviewed the raffle ticket sales numbers and determined that, at the current pace, all of the “early bird” prizes would not be given away. Harold W. Hanson, Director of Washington's Lottery, then ordered the “nth” ticket interval value to be reset from every 8,000th ticket sold to every 1,000th ticket sold to ensure that all “early bird” prizes were awarded. Jones informed Brummett about these changes, and Brummett bought two more raffle tickets.

¶ 9 By the time the raffle ticket sales ended on November 25, 211,755 of the 250,000 available raffle tickets had been sold, and all “early bird” prizes had been awarded. The shortfall in raffle ticket sales meant that contestants had 1 in 77 odds of winning a scheduled raffle prize, which was better than the advertised 1 in 92 odds of winning.

D. Public Records Disclosure Requests

¶ 10 Brummett made multiple public disclosure requests of Washington's Lottery. In response to his requests, he obtained an email dated November 29, 2010, sent by Lottery Deputy Director Julie Martin,⁹ which contained no text but said in the subject line, “nth ticket setting for fall 2010 raffle.xls.” ¹⁰ Martin attached an excel spreadsheet, which said, “Ideally, [the raffle] would be done as a draw from the first week's pool of sold tickets.... Our intent is to sell through 250,000 tickets in 3 weeks (we allow longer).” ¹¹

II. Procedure.

¶ 11 On February 8, 2011, Brummett sued Cole & Weber, Washington's Lottery, and some of the Lottery's directors, commission members, and employees individually. He asked the superior court to maintain the lawsuit as a class action and to certify him as class representative.¹² Cole & Weber moved to dismiss Brummett's claims under CR 12(b)(6) for failure to state a claim; Washington's Lottery moved for summary judgment dismissal of Brummett's claims. The superior court stayed discovery until after ruling on Cole & Weber's motion to dismiss.

¶ 12 On May 20, the superior court dismissed with prejudice all of Brummett's claims against Cole & Weber under CR 12(b)(6). And it granted summary judgment to Washington's Lottery. Brummett appeals.

ANALYSIS

I. Claims against Cole & Weber

¶ 13 Brummett assigns error to the superior court's CR 12(b)(6) dismissal of his claims against Cole & Weber because their advertising campaign stating that raffle tickets were “going fast” constituted (1) fraud, (2) a violation of the Consumer Protection Act, (3) a breach of contract with Washington's Lottery by violating RCW 67.70.040(1), and (4) “unreasonableness,” negligence, and negligent misrepresentation. Br. of Appellant at 11, 24. He also contends that the superior court “erred in not treating Cole & Weber's [m]otion to [d]ismiss as a[m]otion for [s]mmary [j]udgment” Br. of Appellant at 20. Brummett's arguments fail.

A. Standard of Review

1. CR 12(b)(6) Motion To Dismiss versus Summary Judgment

¶ 14 Brummett contends that summary judgment, not CR 12(b)(6), was the proper procedure for considering Cole & Weber's motion to dismiss because, at the...