Frank v. Dore
| Citation | 635 So.2d 1369 |
| Decision Date | 17 March 1994 |
| Docket Number | No. 91-CA-00528,91-CA-00528 |
| Parties | Linda B. FRANK v. William B. DORE, Michael L. Hlinak, Arcadia Management, Inc., and Mississippi Coast Coliseum Commission. |
| Court | Mississippi Supreme Court |
Edgar F. Maier, Rushing & Guice, Biloxi, for appellant.
William V. Westbrook, III, William S. Boyd, III, Kenneth Raymond Flottman, Eaton & Cottrell, William E. Whitfield, III, Elizabeth L. Baine, Bryant Clark Dukes Blakeslee Ramsay & Hammond, Gulfport, for appellee.
Before PRATHER, P.J., and PITTMAN and SMITH, JJ.
I. INTRODUCTION
This appeal arises from a grant of summary judgment in favor of Arcadia Management, Inc. and Mississippi Coast Coliseum Commission. Because the lower court erred in its analysis of Sec. 87-1-1 as it applies to legal and charitable bingo games and denied Appellant's Motion to Amend the pleadings, we reverse and remand.
II. STATEMENT OF THE CASE
On August 25, 1989, Appellant filed a Complaint in Chancery Court of Harrison County, alleging inter alia, that the Defendants through negligence and/or deliberate misconduct, failed to pay her $55,000.00 in prize money to which she was entitled. The Complaint in part prayed for specific performance of the contract and agreement between the parties, specifically the defendants' requirement of paying the $55,000.00 balance for the "Super Jackpot" purse. Appellant also prayed for recovery in the form of actual damages, general damages for mental and emotional distress, punitive damages and attorney's fees. The Complaint named the following as Defendants: William B. Dore and Michael L. Hlinak, Arcadia Management, Inc., Sacred Heart and Notre Dame Alumni Association & Friends, Inc., and Mississippi Coast Coliseum Commission. Appellant's original Complaint contained the following theories of recovery: fraud, breach of contract, specific performance, intentional misrepresentation, and negligent operation of the games.
On August 25, 1989, Appellant propounded interrogatories, requests for admissions and requests for production of documents on all defendants. The Mississippi Coast Coliseum Commission filed responses to Appellant's requests for admissions on September 21, 1989. The substance of each response was that the Coliseum Commission was acquiring the necessary information to appropriately respond. On this same day, the Coliseum Commission requested additional time to file an answer, which was later granted by the court.
On November 17, 1989, prior to any of the Defendants filing their respective Answers, the Coliseum Commission, filed a Motion for Summary Judgment pursuant to M.R.C.P. 56(b). The Motion stated in part that because the Coliseum Commission merely leased the premises to Arcadia, it did not hold itself out as a promoter of the "World Series of Bingo". The Coliseum Commission further alleged that because it was a political subdivision of the State, it was in no way liable to Appellant.
On November 20, 1989, Defendants Dore, Hlinak and Arcadia, joined to file a Motion to Quash Service of Process and a Motion to Dismiss the Complaint pursuant to M.R.C.P. 12(b)(6). The former discussed problems with the service and long-arm statute, while the latter 12(b)(6) Motion stated in part that "since Plaintiff's claim for actual damages are barred as a matter of statutory law, the Complaint fails to state a cognizable claim for punitive damages." The Motions submitted by Defendants were noticed for a hearing on March 6, 1990.
On March 6, 1990, prior to the hearing, Appellant filed a Motion for Leave to Amend her Complaint, seeking the court's permission to amend her Complaint to include federal civil Racketeer Influenced and Corrupt Organization Act [hereinafter "RICO"], claims. During the hearing on March 6, 1990, and due to inadequate notice, all party Defendants objected to the court considering Appellant's Motion to Amend. In response, Appellant volunteered to re-notice the hearing. The hearing was set for May 2, 1990, however, sometime between March 6, 1990 and May 2, 1990, Appellant retained new counsel. From the record, it appears that the hearing scheduled for May 2nd was indefinitely continued.
On June 28, 1990, Appellant dismissed her Complaint as against Sacred Heart and Notre Dame Alumni Association, and thereafter on July 18, 1990, an agreed Order was entered by the court.
On August 31, 1990, prior to the court ruling on the first Motion to Amend, Appellant filed a second Motion to Amend the original Complaint. In the second amended Complaint, Appellant sought to include certain new theories for recovery; including third party beneficiary to the contract, intentional tort, and civil RICO claims. Appellant also requested that certain new defendants be included, allegedly brought in by way of the amended complaint. The lower court by Order dated September 10, 1990, denied the second Motion to Amend, without written explanation or findings.
On September 6, 1990, the chancery court held a conference pertaining to the Motions submitted by Appellant and Defendants. The court overruled Appellant's Second Motion for Leave to Amend and Defendant's Motion to Quash Service. The court issued an Order regarding Appellant's Motion on September 10, 1990, and an Order regarding Defendant's Motion on September 17, 1990.
On October 9, 1990, all parties moved the court to stay the proceedings pending the decision in Knight v. State ex rel. Moore, 574 So.2d 662 (Miss.1990), which the court granted by Order dated October 12, 1990.
A second hearing was held on March 27, 1991, at which time all "pending" Motions were considered, including the Coliseum Commission's Motion for Summary Judgment and Arcadia's 12(b)(6) Motion. The Coliseum Commission argued that they were in no way liable to Frank as they were responsible only for leasing the premises for the games to Arcadia. Counsel for Arcadia argued that Appellant's original Complaint failed to state a claim upon which relief could be granted based on Sec. 87-1-1 of the Mississippi Code, which barred any form of recovery by the Appellant. Appellant argued that after Knight, bingo was no longer an impermissible activity and thus the provisions within Sec. 87-1-1 should not apply. In response, Counsel for Arcadia stated that the Knight case did not speak to Sec. 87-1-1, rather it questioned whether the provisions of Sec. 97-33-51 were constitutional in light of prohibitions against lotteries in Article IV, Sec. 98 of Constitution.
On April 9, 1991, the lower court issued its written opinion on the matter, stating that Appellant's cause of action was barred by Sec. 87-1-1 of Mississippi Code Annotated. Subsequently, the lower court by Order dated April 24, 1991, granted Summary Judgment in favor of all Defendants.
Aggrieved by the lower court's grant of Summary Judgment, Appellant filed Notice of Appeal to this Court. Appellant submits two assignments of error for this Court's consideration:
(1) THE CHANCERY COURT ERRED IN ITS HOLDING THAT Sec. 87-1-1 (1972), OF MISSISSIPPI CODE ANNOTATED, BARS THE COLLECTION OF WINNINGS FROM LEGAL BINGO GAMES
(2) THE CHANCERY COURT ERRED IN DENYING APPELLANT LEAVE TO AMEND HER COMPLAINT TO INCLUDE CLAIMS RELATED TO THE RACKETEER INFLUENCED AND CORRUPT ORGANIZATION ACT (RICO), 18 U.S.C.A., Sec. 1961, et seq.
III. STATEMENT OF THE FACTS
In August of 1988, Sacred Heart and Association sponsored a charitable fund raising event billed as the "World Series of Bingo", which included a "$75,000.00 Super Jackpot Game". Publicity for the event was generated through the use of flyers distributed by Arcadia Management, via the U.S. Mail. The circulated advertisement for the event "guaranteed" a $400,000.00 week-end.
Prior to the August 1988 event, Arcadia Management by and through William B. Dore and Michael L. Hlinak, contracted with Sacred Heart and Association to organize the venture for August 13 and 14, 1988. In turn, Arcadia leased the Mississippi Coast Coliseum from the Coliseum Commission for the event. The contract concerning the lease between the two parties was entered in May of 1988, and the terms included Arcadia paying the Coliseum Commission the sum of $6,600.00 for leasing the premises. By the same contract, Arcadia also agreed to provide security measures and maintenance personnel for the event.
On August 13, 1988, Appellant paid $180.00 for a double-pack of level two (2) cards, in order to participate in the day's bingo games including the Super Jackpot Game for a $75,000.00 purse. One of the conditions imposed on the $75,000.00 purse was that players purchase level two (2) cards and cover all spaces on a level 2 card. Appellant met both conditions and upon winning the Super Jackpot Game, proceeded to collect her winnings. Appellant first received $10,000.00. After disputing this amount, Appellant accepted the sum of $20,000.00 under protest, due to the fact that a $75,000.00 purse was advertised.
After the event on August 13, 1988, Sacred Heart and the Notre Dame Alumni Association cancelled the bingo games scheduled for the next day.
After attempting and failing to collect the additional $55,000.00, Appellant filed the present action on August 25, 1989.
IV. STANDARD OF REVIEW FOR SUMMARY JUDGMENT
This Court employs a de novo standard of review in reviewing a lower court's grant of a summary judgment motion and looks at all the evidentiary matters before it. Mantachie Natural Gas District v. Mississippi Valley Gas Co., 594 So.2d 1170, 1172 (Miss.1992); Short v. Columbus Rubber & Gasket Co., Inc., 535 So.2d 61, 63 (1988).
A motion for summary judgment lies only when there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. M.R.C.P. 56(c). This burden of proving that no disputed factual issues exist rests with the Coliseum Commission, and is one of production and persuasion, not of proof. Fruchter v. Lynch Oil...
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