Parsons v. Dacy

• Court: Supreme Court of South Dakota
• Writing for the Court: MILLER
• Citation: 502 N.W.2d 108
• Decision Date: 09 June 1993
• Parties: Robin PARSONS, Plaintiff and Appellant, v. Michael DACY, Diane Dacy, Scott M. Anshutz, Julie A. Anshutz, and Dacshutz, Inc., d/b/a Mr. "G'S", and Ionia Klein, Defendants and Appellees. Michael DACY, Diane Dacy, Scott M. Anshutz, Julie A. Anshutz, and Dacshutz, Inc., d/b/a Mr. "G'S", Third-Party Plaintiffs and Appellees, v. SOUTH DAKOTA LOTTERY, Third-Party Defendant and Appellee. 17895.

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502 N.W.2d 108 Robin PARSONS, Plaintiff and Appellant,
v.
Michael DACY, Diane Dacy, Scott M. Anshutz, Julie A.
Anshutz, and Dacshutz, Inc., d/b/a Mr. "G'S", and
Ionia Klein, Defendants and Appellees.
Michael DACY, Diane Dacy, Scott M. Anshutz, Julie A.
Anshutz, and Dacshutz, Inc., d/b/a Mr. "G'S",
Third-Party Plaintiffs and Appellees,
v.
SOUTH DAKOTA LOTTERY, Third-Party Defendant and Appellee. 17895. Supreme Court of South Dakota. Argued March 15, 1993.
Decided June 9, 1993.

William D. Wernke of Herman & Wernke, Gregory, for plaintiff and appellant.

Wally Eklund, Rick Johnson, and Stephanie E. Pochop of Johnson, Eklund & Abourezk, Gregory, for appellees Dacy, Anshutz and Dacshutz.

Lawrence L. Piersol of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for appellee Ionia Klein.

Lee M. Mc Cahren, Vermillion, for appellee South Dakota Lottery.

MILLER, Chief Justice.

Lotto America held a drawing on April 6, 1991, for $12.4 million. A few days later, the South Dakota Lottery Commission declared Ionia Klein, of Gregory, South Dakota, the owner of the winning ticket. Robin Parsons (Robin), asserting her ownership of the winning ticket, brought this action against Klein and the owners of the business which had printed the ticket. Robin appeals the trial court's grants of the summary judgments against her. We affirm.

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FACTS

This is one of two cases argued before this Court during the March 1993 term, disputing the disposition of the proceeds of the now infamous winning Lotto America ticket printed at Mr. G's, a convenience store in Gregory, South Dakota. ¹ This is not the first occasion we have had to consider issues raised by this lottery ticket, though with this action, it is the first occasion we have had to look at an individual's claim to ownership of the winning ticket. ²

Robin, an employee of Mr. G's, printed a lottery ticket for a customer on Thursday, April 4, 1991, for the Saturday, April 6, drawing. The customer changed his mind and refused to buy the ticket. Robin placed it on the lottery terminal where she hoped she or any of Mr. G's other employees would sell it to another customer. ³ The ticket remained on the lottery terminal and was unsold at the time of the Saturday night drawing. The next morning, Klein, also an employee of Mr. G's, noticed the still unsold ticket on the lottery terminal was unsigned and was the winning ticket. She took possession of the ticket, signed, and presented it to the South Dakota Lottery Commission, claiming the prize. The Commission later declared Klein the owner of the winning ticket. ⁴ A few weeks after the drawing, Robin brought this action against Klein and the owners of Mr. G's claiming ownership of the winning ticket based upon an asserted obligation for her to pay for the ticket.

Eventually, the defendants each moved for summary judgment. The trial court found no genuine issues of material fact and the motions were granted. The trial court determined that though Robin had printed the ticket, and it had remained unsold and unsigned at the time of the drawing, she had no obligation to purchase it. The trial court further determined that even if Robin was under an obligation to purchase the ticket, such an obligation was not of itself sufficient to give rise to a property interest in the winning ticket. Finally, the trial court determined Robin did not, and could not, satisfy the requirements for ownership of winning Lotto America tickets as articulated by the rules of the South Dakota Lottery Commission.

Robin appeals and, though she identifies four issues, we find it necessary only to review the trial court's determination that summary judgment in favor of the defendants was proper because Robin failed to raise genuine issues of material fact regarding her alleged obligation to purchase the winning Lotto America ticket. ⁵

DISCUSSION

The principles to be followed when granting or denying summary judgment are well

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known and need not be stated again. Wilson v. Great N. Ry. Co., 83 S.D. 207, 157 N.W.2d 19 (1968). "Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper." Gross v. Gross, 491 N.W.2d 751, 752 (S.D.1992) (citations omitted).

Robin first contends the defendants have failed to show there is no dispute of material facts. This position can not be supported and, as the trial court said, it is now Robin's burden "to respond by identifying specific facts" which are in dispute. She "may not rest upon the mere allegations or denials of [her] pleading, but [her] response, by affidavit or as otherwise provided ... must set forth specific facts showing that there is a genuine issue for trial." SDCL 15-6-56(e). Further, "mere general allegations and denials which do not set forth specific facts will not prevent issuance of a judgment." Breen v. Dakota Gear & Joint Co., 433 N.W.2d 221, 223 (S.D.1988). Robin puts heavy reliance upon her affidavit, which incorporates her complaint. We discount her affidavit to the extent it incorporates her complaint because summary judgment is not properly resisted simply by referring to the pleadings. Dirks v. Sioux Valley Empire Elec. Ass'n, ...