Houghton v. Big Red Keno, Inc.

• Decision Date: 27 February 1998
• Docket Number: No. S-96-732,S-96-732
• Citation: 254 Neb. 81,574 N.W.2d 494
• Parties: Dewey HOUGHTON, Appellant, v. BIG RED KENO, INC., a Nebraska corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 494

574 N.W.2d 494

254 Neb. 81

Dewey HOUGHTON, Appellant, v. BIG RED KENO, INC., a Nebraska corporation, et al., Appellees.

No. S-96-732.

Supreme Court of Nebraska.

Feb. 27, 1998.

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. Contracts: Lotteries. A lottery winner's entitlement to a prize is governed by principles of contract law.

3. Contracts: Offers to Buy or Sell: Parties. To create a contract, there must be both an offer and an acceptance; there must also be a meeting of the minds or a binding mutual understanding between the parties to the contract.

4. Contracts: Proof. A party seeking to enforce a contract has the burden of establishing the existence of a valid, legally enforceable contract.

Steven J. Lefler, of Lefler & Franklin Law Office, Omaha, for appellant.

Patrick B. Griffin, of Kutak Rock, Omaha, for appellees.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

CONNOLLY, Justice.

The appellant, Dewey Houghton, purchased a keno ticket from the appellee Big Red Keno, Inc. Big Red Keno refused to pay the $200,000 Houghton contends he won on the ticket. It is undisputed that Houghton was mistakenly issued a ticket for a game after it had already been played, that Houghton overheard the winning numbers for the game, and that he wrote the numbers he overheard on his betting slip. It is also undisputed that Houghton did not intend to purchase a ticket for a game that had already been played and that he did not seek to void his ticket after it was purchased. The district court for Douglas County granted summary judgment in favor of Big Red Keno, and Houghton appeals. We conclude there was no meeting of the minds between the parties to form a contract; thus, Big Red Keno would not be required to pay prize money on a mistakenly issued ticket. Accordingly, we find that there is no issue of material fact and that Big Red Keno is entitled to judgment as a matter of law. The judgment of the district court is affirmed.

BACKGROUND

On June 19, 1992, Houghton purchased a keno ticket at the Brothers Lounge in Omaha, Nebraska. Keno is a type of lottery in which, for each game played, players determine an amount of money to bet and select up to 20 numbers from a total of 80 possible numbers by marking those numbers on a betting slip. Players then take the betting slip to a "keno writer," who inputs the selected numbers into a computer, which in turn generates a paper "ticket" showing the game number played, numbers selected by the player, and the amount of the bet. After a period of approximately 5 minutes, the game is "closed" to any further bets, and 20 numbers are drawn randomly using a blower machine or a random number generator. A player wins if he or she correctly matches some or all of the numbers on the paper ticket with the numbers drawn randomly by the blower machine. The amount of money won is dependent upon the total amount of numbers chosen by the player and the amount of the numbers that are guessed correctly. The rules of keno and the amounts of prize money that can be won are printed in a document called the "Pay Book."

Keno games at Big Red Keno are conducted approximately every 5 minutes throughout the day at the main location. Each game is separately numbered, and winners are tracked by computer. Outside the main location, the same keno games are also played at satellite locations, such as the Brothers Lounge, through the use of a computer link. Sometimes, there are also audio links between the main location and satellite locations. The Nebraska Department of Revenue regulates keno and requires that games played at a satellite location be closed at the same time they are closed at the main location. The regulations also state that no keno ticket may be written after a game has closed and the number selection process has begun.

Each keno betting ticket states on the front that it is subject to conditions printed on the back of the ticket and in the Pay Book. The reverse side of the keno ticket states:

This bet is accepted subject to the rules of the game set forth below and in the Big Red Keno Pay Book, and by playing the game all players accept such rules. If you do not have a Pay Book, request one before playing.

The ticket further states that errors in the ticket must be corrected before the game commences and before leaving the window, and that liability for errors is limited to a refund of the purchase price, which must be requested before the game commences. The rules of the game listed in the Pay Book state:

Big Red Keno reserves the right to verify the legitimacy of all prizes.... Big Red Keno reserves the right to disclaim the payment of prizes if the balls or equipment have been tampered with or if the procedures prescribed for the conduct of the game by the City of Omaha or the State of Nebraska have been violated.

While Houghton was at the Brothers Lounge on June 19, 1992, the lounge experienced problems with the computer link between the main keno location and its satellite location. The computer link was down for a period of approximately 30 minutes, during which time keno games continued to be played at the main keno location. Brothers Lounge also maintained an audio link with the main location that audibly broadcast the winning numbers of the games at the main location as they were being played. During the time the computer was down at the Brothers Lounge, game No. 480 was played and its winning numbers were broadcast over the audio system at the lounge.

At the time the winning numbers for game 480 were broadcast, Houghton had filled out several betting slips and was waiting for the computer link to be reestablished so that he could place his bets. While Houghton was waiting, he heard the numbers of the games at the main location being broadcast, threw away his previously marked betting slips, and filled out two new slips that were marked with numbers he heard over the audio system. At some point after the completion of game 480, the computer system began working again and Houghton placed his bets. Although game 480 had been played approximately 13 minutes before Houghton placed his bets, he received a ticket that listed game 480 as one of the games he participated in. As a result, Houghton held a ticket for game 480, even though the ticket was purchased after that game had been played. The record includes an affidavit from Houghton stating that he did not intend to bet on a game that had already been played. Houghton did not attempt to have his ticket voided or corrected after he received it. A subsequent computer scan of the ticket at the Brothers Lounge showed it to be a "winning" ticket in the amount of $200,000.

Houghton went to the main keno site to attempt to collect on the ticket. However, the Charitable Gaming Division of the Nebraska Department of Revenue determined that Houghton's ticket was...