Kentucky off-Track Betting Inc. v. Mcburney

• Decision Date: 17 June 1999
• Docket Number: No. 98-SC-454-DG.,98-SC-454-DG.
• Citation: 993 S.W.2d 946
• Parties: KENTUCKY OFF-TRACK BETTING, INC., Appellant, v. James McBURNEY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

993 S.W.2d 946

KENTUCKY OFF-TRACK BETTING, INC., Appellant, v. James McBURNEY, Appellee.

No. 98-SC-454-DG.

Supreme Court of Kentucky.

June 17, 1999.

P. Douglas Barr, T. Christopher Daniel Stoll, Keenon & Park, LLP, Lexington, for appellant.

Darrell L. Saunders, Corbin, for appellee.

WINTERSHEIMER, Justice.

This appeal is from a decision of the Court of Appeals which reversed and remanded a summary judgment on behalf of Kentucky Off-Track Betting, Inc., for default of a promissory note made in connection with a series of checks which McBurney wrote to cover gambling debts.

The questions presented are whether the execution of a promissory note was a void transaction pursuant to KRS 372.010 and unenforceable; whether there is a conflict between KRS 372.010, KRS 230.215 and KRS 230.380 and whether the argument has been properly preserved for appellate review.

Late in 1994 and early in 1995, Corbin resident McBurney, sole owner of Waitsboro Fiberglass Boat Manufacturing Company, made substantial unsuccessful bets on horse races at KOTB's Corbin facility, writing a series of checks. McBurney lost many bets and by March 1995, was indebted to KOTB for $389,781.74. McBurney wrote KOTB various personal checks drawn on his bank as evidence of his promise to pay, but because he did not have sufficient funds in the bank to honor the checks, KOTB agreed not to cash them.

On March 16, 1995, KOTB manager Gene McClain asked McBurney about honoring the checks. McBurney told him that the bank account was insufficient to pay for the checks. McClain then asked McBurney to execute a promissory note in the principal amount of $389,781.74 in exchange for the checks, which McBurney did. McBurney paid twelve installments totaling $84,000 through June of 1995, but discontinued payments thereafter. KOTB brought a civil action to collect the outstanding balance on the note.

KOTB emphasizes the legality of the transactions pursuant to the 1992 legislation specifically authorizing off-track betting facilities on simulcast horse racing. also claims that such specific and recent legislation expresses the public policy of the General Assembly and KRS 230 should control over the older general prohibiting language of KRS 372.010. In effect, it argues that the statute prohibiting the lending of money for wagering has been repealed by implication.

On the other hand, McBurney contends that KRS 372.010 is clearly the law and makes the transaction void and unenforceable. KRS 372.010 provides as follows:

Every contract, conveyance, transfer n assurance for the consideration, in whole or in part, of money, property or other thing won, lost or bet in any game, sport, pastime or wager, or for the consideration of money, property or other thing lent or advanced for the purpose of gaming, or lent or advanced at the time of any betting, gaming, or wagering to a person then purpose of gaming, or lent or advanced at the time of any betting, gaming, or wagering to a person then actually engaged in betting, gaming, or wagering, is void.

The trial judge granted KOTB summary judgment but the Court of Appeals reversed, holding that even though the bet is a legal bet, a debt coming within the provisions of KRS 372.010 is void and unenforceable. We accepted discretionary review.

I

KOTB argues that McBurney in his circuit court and Court of Appeals arguments characterized his promissory note as a "contract for the consideration of money lost or bet by a person actually engaged in betting," and has improperly changed his argument by embracing in his reply brief in the Court of Appeals the "lent or advanced" language in 372.010. McBurney's reply brief in the Court of Appeals further cited for the first time McDevitt v. Thomas, 130 Ky. 805, 114 S.W. 273 (1908), a telegram wagering case upon which the Court of Appeals panel primarily relied in reversing the summary judgment for KOTB.

Citing the relevant statute at issue was sufficient in this case to alert the trial court to the fact that McBurney was claiming the execution of the promissory note to be a void transaction under KRS 372.010. KOTB's interpretation of McDevitt, supra, requiring that the statute must be analyzed in three distinct sections, is erroneous. McDevitt simply stated that, "For convenience this act may be divided into three sections." McDevitt at 274.

In addition to McDevitt, the Court of Appeals cited with approval, Dobbs v. Holder, Ky., 242 S.W.2d 605 (1951), in which this Court stated in part that a check or other evidence of indebtedness based upon a gambling consideration is absolutely void and the obligor is not bound to even an innocent holder of the instrument. The court also stated that it is well settled that when a statute expressly declares the instrument void, it gathers no vitality by its circulation with respect to the party executing it. Similarly, George Alexander & Co. v. Hazelrigg, 123 Ky. 677, 97 S.W. 353 (1906), stated that a bill or note based on a gambling consideration is absolutely void and the drawer or maker is not bound even to an innocent holder.

As the Court of Appeals observed, the cases relied on are pre-Uniform Commercial Code, and it is therefore necessary to consider if the result would be any different under the code. We recognize the treatise authored by Leibson and Nowka, The Uniform Commercial Code of Kentucky, Negotiable Instruments § 4.4B (2d Ed.1992), which states that the result of Dobbs, supra, would be identical because KRS 372.010, the local law on the matter, remains unchanged.

We must agree with the Court of Appeals that based on KRS 372.010, McDevitt, Dobbs and Hazelrigg, supra, that the checks that McBurney wrote to KOTB, the promissory note executed in favor of KOTB, as well as any verbal assurances to pay were void and unenforceable. By accepting checks that it knew to be worthless in exchange for bets while McBurney was actually engaged in betting and by continuing to allow him to place more bets thereafter, KOTB clearly entered into a gambling transaction declared void by the plain language of KRS 372.010.

II

KOTB asks for review of the law in this area from the perspective of our current societal public policy. It points out that in the past decade an amendment to Section 226 of the Kentucky Constitution permits first, a state lottery, and then charitable gaming, with 1992 statutory additions and amendments to KRS 230 not only encouraging betting on horse racing at simulcast facilities pursuant to KRS 230.380, but also permits wagering not limited to cash, telephone accounts and credit cards, pursuant to KRS 230.379.

KRS 230.215 is intended to encourage the horse breeding industry through the allowance of parimutuel wagering subject to regulation by the Kentucky Racing Commission. KRS 230.380 authorizes parimutuel betting at certain simulcast facilities, called off-track betting facilities. The plain language of these statutes indicates that they do not impact the activities prohibited by KRS 372.010. The real issue presented here is whether one may collect money loaned or advanced to a person to bet while that person is actually engaged in betting.

The 1992 General Assembly simply intended to acknowledge the various technological advances of modern times, such as satellites and television when it legalized off-track betting for the benefit of businesses engaged in accepting bets on horse races by licensed facilities. It is now no longer necessary to physically go to a race track to place a bet. The promotion of the horse racing industry and the establish ment of simulcast facilities is clearly independent of the issue of advancing money for the purposes of gambling.

The loaning of money or advancing of credit to a person by a betting facility which is itself a party to the gambling transaction is the...