Donovan v. Grand Victoria Casino & Resort
| Decision Date | 30 October 2009 |
| Docket Number | No. 49A02-0903-CV-259.,49A02-0903-CV-259. |
| Citation | 915 N.E.2d 1001 |
| Court | Indiana Appellate Court |
| Parties | Thomas P. DONOVAN, Appellant-Plaintiff, v. GRAND VICTORIA CASINO & RESORT, L.P., Appellee-Defendant. |
J. Patrick Schomaker, Smith, Rolfes & Skavdahl Co., L.P.A., Cincinnati, OH, Attorney for Appellee.
Thomas P. Donovan ("Donovan") filed a breach of contract claim against Grand Victoria Casino & Resort, L.P. ("Grand Victoria") and requested a declaratory judgment providing that he could not be excluded from blackjack for counting cards. Summary judgment was granted to Grand Victoria on both counts. Donovan appeals. We affirm in part, and reverse in part, concluding that Donovan is entitled to declaratory relief.1
Donovan presents four issues for review, which we consolidate and restate as a single issue: whether the trial court erroneously granted summary judgment to Grand Victoria.
Grand Victoria owns and operates a riverboat casino located in Rising Sun, Indiana. Among the games offered by Grand Victoria is blackjack.
Under the Indiana Administrative Code, "blackjack" means an ace and second card with a point value of ten dealt as the initial two cards to a player or the dealer. 68 IAC 10-2. A casino blackjack game starts with the dealer presenting and shuffling the cards. 68 IAC 10-2-6. The dealer spreads the cards out on the table for inspection, and then shuffles by hand or by an approved automatic shuffling device. 68 IAC 2-7. The patron puts money on the table and the money is exchanged for chips. Before the first card is dealt for a round of play, a player may make a wager in an amount not less than the minimum or more than the maximum amount set for the table. 68 IAC 10-2-4(a). After two cards have been dealt to each player and to the dealer, each player must indicate a decision to "double down, surrender, split pairs, stand, draw, make an insurance wager, or make an even money wager." 68 IAC 10-2-11. The dealer deals additional cards as necessary based upon the player decisions.
The player wins if (1) the sum of the player's card is twenty-one or less, and the sum of the dealer's cards is more than twenty-one; (2) the sum of the player's cards exceeds that of the dealer without exceeding twenty-one; (3) the player has a blackjack, and the dealer does not; or (4) the player has a combination of cards "based on promotions offered by the riverboat licensee if the executive director has approved the promotion." 68 IAC 10-2-4(a).
Donovan supplements his income by playing blackjack in casinos. He is a self-described "advantage player," who taught himself to count cards through using an internet website. (App.63.) Card counters keep track of the playing cards as they are dealt and adjust their bets accordingly. Presumably, a skilled card counter has a better chance of winning at blackjack because he has factored the card count into his decision on how to bet.
Donovan and Patrick Banfield, the former blackjack pit boss for Grand Victoria, had ostensibly agreed (through a third-party and fellow card-counter) that Donovan could play blackjack at Grand Victoria if he wagered no more than $25 per hand. In June of 2006, Sonny Duquette replaced Banfield. Donovan continued to play blackjack from June until August, when he was barred from the blackjack tables but offered other games. Donovan refused to play games other than blackjack, and the casino excluded him.
On September 14, 2007, Donovan filed a complaint alleging that Grand Victoria had breached the terms of an implied-in-fact contract. He also sought declaratory and injunctive relief, requesting an order that "Grand Victoria allow [him] access to Grand Victoria's riverboat to play Blackjack." (App.50.) Grand Victoria moved for summary judgment. Although conceding that card counting is not illegal, Grand Victoria maintained that an Indiana privately-owned amusement entity may exclude a patron from its premises for any reason or none at all, i.e., it need not identify illegal conduct. Donovan filed a cross-motion for partial summary judgment, contending that Grand Victoria was obligated to offer him the game of blackjack according to the rules promulgated by the Indiana Gaming Commission ("the Commission").
The trial court granted summary judgment to Grand Victoria. Donovan now appeals.
Summary judgment is appropriate when the designated evidence "shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C). In reviewing a trial court's ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. Hendricks Co. Bd. of Comm'rs v. Rieth-Riley Const. Co., Inc., 868 N.E.2d 844, 848-49 (Ind.Ct.App.2007). Our review of a summary judgment motion is limited to those materials designated to the trial court. Decker v. Zengler, 883 N.E.2d 839, 842 (Ind.Ct.App.2008), trans. denied. We must carefully review a decision on summary judgment to ensure that a party was not improperly denied its day in court. Id.
The fact that the parties made cross motions for summary judgment does not alter our standard of review. Id. Instead, we must consider each motion separately to determine whether the moving party is entitled to judgment as a matter of law. Id.
The parties agree that there is no dispute of relevant facts; they disagree only as to the applicable law. Grand Victoria contends that a privately-owned for-profit entity operating in Indiana has the right to exclude any prospective patron for a given reason or for no reason at all, so long as civil rights laws are not violated. Essentially, Grand Victoria relies upon the existence of a common law right of exclusion. See Wilhoite v. Melvin Simon & Associates, Inc., 640 N.E.2d 382, 385 (Ind. Ct.App.1994) ()
The Wilhoite court rejected the patron's claim that because a mall opened itself to the public, it lost its character as private property, quoting Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 570, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972): "`Nor does property lose its private character merely because the public is generally invited to use it for designated purposes.'" Wilhoite, 640 N.E.2d at 387.
Donovan argues that Wilhoite is distinguishable, in that the patron in Wilhoite simply wanted to shop at the mall, involving an activity and premises not subject to comprehensive regulations. According to Donovan, the common law has been supplanted in this instance, because in 1993 our Indiana Legislature chose to legalize and regulate riverboat gambling, a formerly-prohibited activity.
"Historically, the State of Indiana has prohibited gambling." Am. Legion Post No. 113 v. State, 656 N.E.2d 1190, 1192 (Ind.Ct.App.1995) (), trans. denied. However, in 1988, the Indiana Constitution was amended to delete the general prohibition against lotteries and to authorize lotteries conducted by the State Lottery Commission. Ind.Code 4-30. The General Assembly went on to authorize horse race gambling, Ind.Code 4-31, and, in 1993, approved riverboat casinos. Now, games of chance and skill may be played for money on a riverboat, albeit subject to regulations. See Ind.Code 4-33. Under Indiana Code section 4-33-4-1, the General Assembly gave the Commission the power and duty to administer and regulate gaming in Indiana. Pursuant to this authority, the Commission promulgated detailed regulations regarding casinos and their operations. See Ind.Code § 4-33-4-2; 68 IAC.
Otherwise, gambling continues to be strictly prohibited by Indiana's anti-gambling laws. Schrenger v. Caesars Indiana, 825 N.E.2d 879, 883 (Ind.Ct.App.2005), trans. denied. The reason for allowing the riverboat to exist as an exception to illegal gambling is two-fold. Indiana Code section 4-33-1-2 provides that the intent of the General Assembly, in creating riverboat gambling, was to "benefit the people of Indiana by promoting tourism and assisting economic development." The foregoing statute expressly contemplates "the strict regulation of facilities, persons, associations, and gambling operations[.]" See id.
Donovan argues that Grand Victoria, which opened its premises to the general public for tourism purposes and is subject to exhaustive regulations, should have no right to arbitrarily exclude a patron. In his view, arbitrary exclusion of patrons promotes neither tourism nor economic development. To further bolster his claim that a publicly-regulated, private entity may not arbitrarily exclude patrons, Donovan relies upon Uston v. Resorts Int'l Hotel, Inc., 89 N.J. 163, 445 A.2d 370 (1982), a case in which appellant Uston, a card-counter, had been excluded from blackjack tables in a casino.
In Uston, the New Jersey Supreme Court held that its Casino Control Act partially divested Resorts of its common law right to exclude. Id. at 170, 445 A.2d at 373. The court discussed the competing rights of "an amusement place owner to exclude unwanted patrons" and "the patron's right of reasonable access" before concluding that a property owner has no legitimate interest in "unreasonably" excluding particular members of the public when the owner has opened its premises for public use. 89 N.J. at 170, 445 A.2d at 373. The common law right to exclude was substantially limited by a common law right of reasonable access to public places, but was not...
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