Lesher v. Baltimore Football Club

• Decision Date: 26 August 1986
• Docket Number: No. 4-785A212,4-785A212
• Citation: 496 N.E.2d 785
• Parties: R.W. LESHER and Stephen Dillon, Appellants (Plaintiffs Below), v. The BALTIMORE FOOTBALL CLUB d/b/a Indianapolis Colts, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 785

496 N.E.2d 785

R.W. LESHER and Stephen Dillon, Appellants (Plaintiffs Below), v. The BALTIMORE FOOTBALL CLUB d/b/a Indianapolis Colts Appellee (Defendant Below).

No. 4-785A212.

Court of Appeals of Indiana,

Fourth District.

Aug. 26, 1986.

Rehearing Denied Oct. 30, 1986.

Gary P. Price, Jennifer L. Graham, Lewis, Kappes, Fuller & Eads, S. Sargent Visher, Choate, Visher & Haith, Indianapolis, for appellants.

William M. Evans, Alan W. Becker, Bose, McKinney & Evans, Indianapolis, for appellee.

YOUNG, Judge.

R.W. Lesher and Stephen Dillon appeal a trial court entry of summary judgment in favor of The Baltimore Football Club d/b/a Indianapolis Colts. Lesher and Dillon raise the following issues on appeal:

1) Did the trial court err in determining, as a matter of law, that the Colts' ticket allocation plan did not constitute a constitutionally proscribed "lottery"?

2) Did the trial court err in determining, as a matter of law, that the Colts did not violate the deceptive practices act?

3) Did the trial court err in determining, as a matter of law, that the Colts did not commit civil theft under IND.CODE 34-4-30-1?

4) Did the trial court err in failing to consider Lesher and Dillon's equitable claim for damages for unjust enrichment?

5) Are the Colts entitled to appellate attorney's fees pursuant to Ind.Rules of Procedure, Appellate Rule 15(G)?

We affirm and award appellate attorney's fees.

The parties stipulated to the following facts. The Colts are a professional football team which relocated in Indianapolis in 1984. The Colts, or authorized agents or representatives thereof, were responsible for allocation of and reserved the right to allocate 1984 season tickets to regularly scheduled Colts home football games.

In response to a public solicitation for season tickets, Lesher submitted a check in the amount of one thousand one hundred thirty-six dollars ($1,136.00), and Dillon submitted a check in the amount of one hundred fifty-five dollars ($155.00). The checks were negotiated and the proceeds deposited in the Colts' account. The proceeds of Lesher's and Dillon's checks were held in the Colts' account and invested for a period of time. The Colts received investment income on the proceeds.

Lesher received the tickets for which he applied. Although Dillon did not receive tickets, he received a refund in the amount of one hundred fifty-five dollars ($155.00) representing the principal amount plus the handling fee. None of the purchasers, including Lesher and Dillon, participated in determining the allocation process for the tickets, and none of them was required to exercise any degree of judgment or skill regarding the allocation process.

According to a seating manifest prepared by the Capital Improvements Board of Managers of Marion County in August of 1984, there are approximately 60,500 seats available at the Hoosier Dome, the arena in which the Colts play their games. An April 18 newspaper article accurately reflected a statement of an authorized agent of the Colts that approximately 3,500 single-game tickets would be reserved for sale to the general public prior to each home game. Therefore, approximately 57,000 seats were available for sale as season tickets. Of those, approximately 52,000 seats were allocated through the public solicitation allocation process.

The April 18 newspaper article was attached to the Stipulations of Fact as an exhibit. The article stated that no definite plan had been formulated as to how to allocate the tickets in the event demand for tickets exceeded supply, but a "blind lottery" would be possible. The article quoted Colts owner Bob Irsay's response to the question of how quickly the orders would be processed:

'As fast as we can,' said Irsay. 'We know people want to make plans. Hopefully we'll have something within two or three weeks.'

A ticket application form appeared in the newspaper on April 18. Both the form and the article stated that tickets would be distributed approximately two weeks before the August 11 home exhibition game. The form also stated that "your cancelled check is your receipt." The parties stipulated that the application form attached as an exhibit was a true and correct copy of the one disseminated to season ticket applicants.

Lesher and Dillon submitted the affidavit of Bruce Clark, who stated that he sent the Colts a letter cancelling his ticket order and requesting a refund. The envelope was stamped "RETURN TO SENDER," was sealed with tape, and was returned to Clark. The copy of the letter attached to the affidavit reveals that Clark did not include a zip code when he addressed the envelope.

The Colts submitted the affidavit of Larry Hall, the ticket manager. He stated that ticket demand was approximately three times the supply. Those not receiving tickets received a refund, including the handling fee, and the tickets were distributed two weeks before the first home exhibition game, as stated. He also stated that the Colts received no demand from Lesher or Dillon regarding a refund.

The parties filed cross motions for summary judgment. The parties agreed:

that the facts encompassed within these stipulations, together with those contained in any affidavits submitted by the parties, are sufficient for this Court to rule on the pending motions for summary judgment and that no further facts or testimony will be submitted to the Court or should be considered by the Court for purposes of ruling on these motions.

(R. 251-252) Lesher and Dillon challenge the trial court's entry of summary judgment in favor of the Colts on all issues.

Summary judgment is appropriate only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Ind.Rules of Procedure, Trial Rule 56; Bernhardt v. State (1985), Ind.App., 479 N.E.2d 1367, 1368. In determining whether a genuine issue of material fact exists, the facts set forth by the opponent must be taken as true, and all doubts are resolved against the proponent of the motion. T.R. 56(C); First Savings and Loan Association v. Treaster (1986), Ind.App., 490 N.E.2d 1149, 1151.

Lesher and Dillon contend that genuine issues of material fact exist and that inferences and doubts were resolved in favor of the Colts. A fact is material if it affects the outcome of the litigation. Ewing v. Board of Trustees (1985), Ind.App., 486 N.E.2d 1094, 1097. Entry of summary judgment is appropriate despite conflicting facts and inferences on some elements of a claim if there is no dispute or conflict regarding facts dispositive of the action. Ewing, supra at 1097-1098; Day v. Bicknell Minerals, Inc. (1985), Ind.App., 480 N.E.2d 567, 570. Therefore, existence of disputed facts in this case will not preclude entry of summary judgment in favor of the Colts if some undisputed fact requires the entry of judgment in the Colts' favor as a matter of law. See Taylor v. Landsman (1981), Ind.App., 422 N.E.2d 403, 407, rehearing denied 425 N.E.2d 218.

Specifically, Lesher and Dillon first contend the trial court erred in determining, as a matter of law, that the ticket allocation plan did not constitute a lottery within the meaning of Ind. Const. art. XV Sec. 8. That section provides: "No lottery shall be authorized; nor shall the sale of lottery tickets be allowed." A lottery is "a scheme for the distribution of prizes by lot or chance." Kaszuba v. Zientara (1986), Ind.App., 495 N.E.2d 761, 763; Tinder v. Music Operating, Inc. (1957), 237 Ind. 33, 142 N.E.2d 610, 614 (quoting Webster's New International Dictionary).

In State v. Nixon (1979), 270 Ind. 192, 384 N.E.2d 152, our supreme court held that a pari-mutuel system constituted a constitutionally proscribed lottery. The majority concluded:

that the concern of those who drafted and adopted our Constitution, including Article XV, section 8, was to minimize the harmful effects of gambling by sheltering the people from gaming enterprises promoted and operated for monetary gain by those who, because of the methods employed, are, in essence, purveyors rather than players.

Nixon, supra 384 N.E.2d at 161. The focus of the Nixon case was on the element of "chance," and the court held that, notwithstanding the fact:

that a degree of skill is involved in selecting the horses most likely to perform well, the unpredictability of the odds to be paid and the limited predictability of the performance of the animals combine to provide the degree of "chance" required to meet the traditional textbook definitions of the term "lottery." However, whether or not it is a lottery, in the classical sense, is immaterial. Its effects are precisely those sought to be prevented by Article XV, section 8; and, it is, therefore, a "lottery" within the meaning of that term as therein employed.

Nixon, supra 384 N.E.2d at 161.

It is undisputed that Lesher and Dillon were not required to exercise skill or judgment in order to get season tickets. The question here, however, is whether there was a prize at stake.

Lesher and Dillon contend that the fact of value of the tickets was not established. The trial court had before it the order form, which listed the prices of the tickets. Applicants who were willing to pay the stated prices for tickets mailed in the forms, accompanied by checks. Thus, the court had before it evidence as to the price voluntarily paid by the purchasers, e.g., the market price. See Indiana Tri-City Plaza Bowl, Inc. v. Estate of Glueck (1981), Ind.App., 422 N.E.2d 670, 679.

Once the Colts had moved for summary judgment and supported their motion, Lesher and Dillon were required to come forward and demonstrate where questions of material fact existed. Conard v. Waugh (1985), Ind.App., 474 N.E.2d 130. Because they did not come forward with evidence disputing the fact of value and because the court had evidence as to the market value of the tickets, Lesher and Dillon's argument on appeal regarding the value of scarce...