Ramirez v. Bureau of State Lottery
| Decision Date | 17 December 1990 |
| Docket Number | Docket No. 113073 |
| Citation | 463 N.W.2d 245,186 Mich.App. 275 |
| Parties | Gilbert Y. RAMIREZ, Plaintiff-Appellant, v. BUREAU OF STATE LOTTERY, Defendant-Appellee. 186 Mich.App. 275, 463 N.W.2d 245, 13 UCC Rep.Serv.2d 827 |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., and Keith D. Roberts, Asst. Atty. Gen., for defendant-appellee.
Before J.H. GILLIS, P.J., and MICHAEL J. KELLY and NEFF, JJ.
Plaintiff appeals as of right from an order of the Court of Claims granting defendant's motion for summary disposition. We affirm.
On May 20, 1988, plaintiff read an article in a newspaper which stated that on June 6, 1987, a winning lottery ticket with the numbers 5, 12, 17, 22, 25 and 32 was purchased at Joslyn Market in Pontiac. The article stated that, if the prize of approximately $1.5 million was not claimed by 4:45 p.m. on June 6, 1988, the winnings would revert to the state's school-aid fund.
On June 6, 1987, plaintiff had purchased a Lotto ticket, containing five wagers, which was numbered 908610971 on the back, at Joslyn Market. Plaintiff had also purchased eleven daily three-[186 MICHAPP 277] digit tickets and one daily four-digit ticket, which were numbered 908610973 through 908610984 on the back. Plaintiff had played the June 6, 1987, winning Lotto numbers on March 25 and 28, on April 1, 4, 8, 11, 15, 18, 25, 29, and on May 2, 6, 13, 20, 23, 27, 30, 1987, as well as on June 3, 1987. Plaintiff also played the June 6, 1987, winning numbers on June 10, and July 1, 4, and 8, 1987. On the days the plaintiff played the winning number, he also played the numbers 7, 16, 18, 21, 27 and 31, except for May 20, 1987, when plaintiff played the winning numbers for June 6, 1987. We note that on July 8, 1987, plaintiff apparently purchased two tickets, one which contained the numbers which won on June 6, 1987, and another which contained the numbers 7, 16, 18, 21, 27 and 31. Plaintiff has not produced Lotto tickets for April 22, May 9 and 16, or for June 13, 17, 20, 24, and 27, 1987.
On June 2, 1988, plaintiff's attorney wrote defendant, requesting the proceeds from the June 6, 1987, Lotto jackpot as well as verification of the winning ticket. Plaintiff claimed that, if defendant verified the winning ticket, defendant could discover whether the numbers 7, 16, 18, 21, 27 and 31 were played in combination with the winning number. If that was so, plaintiff argued that the evidence would be overwhelming that he had had the winning ticket which would have had the number 908610972 on the back.
On June 6, 1988, when plaintiff failed to receive a response to his request, he filed the instant lawsuit. Plaintiff claimed that defendant had a duty to verify whether he had held the winning ticket. Plaintiff also claimed that defendant breached the contract between the parties by failing to verify the winning ticket. Plaintiff requested [186 MICHAPP 278] that defendant be compelled to verify the ticket and, upon verification, to award him the jackpot.
In response, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8). Defendant noted that pursuant to M.C.L. Sec. 432.11; M.S.A. Sec. 18.969(11), its commissioner was authorized to promulgate rules concerning the lottery. The rules could regulate "[t]he manner of payments of prizes to holders of winning tickets." M.C.L. Sec. 432.11(2)(e); M.S.A. Sec. 18.969(11)(2)(e). Defendant noted that 1979 AC, R 432.16 provided the following rules for claiming prizes:
(2) Holders of winning lottery tickets for a minor prize may take their ticket to a claims center or directly to the bureau for processing.
* * * * * * (4) A claimant shall fill out a claim form, present the form with the winning ticket and receive a copy of the claim form as his receipt.
(5) When processing tickets for minor prizes, or for major prizes when especially authorized to do so by the bureau, the claims center shall retain 1 copy of the claim form and forward the winning ticket and 2 copies of the claim form to the bureau for validation. Upon validation a state treasurer's warrant shall be forwarded to the claimant in payment of the amount due. If a claim is not validated as proper, the claim shall be denied and the claimant promptly notified.
Defendant further noted tickets issued in 1987 contained the following language on the back:
TO CLAIM YOUR PRIZE
Present this ticket to any "Daily/Lotto Game" lottery agent for prize payment or receipt of claim. All prizes must be claimed within one (1) year of end date on ticket face. THIS TICKET IS A BEARER [186 MICHAPP 279] INSTRUMENT SO TREAT IT AS IF IT WERE CASH. The Lottery recommends signing this ticket immediately after purchasing it.
Noting that contract principles applied to Lotto transactions, Coleman v. Bureau of State Lottery, 77 Mich.App. 349, 351, 258 N.W.2d 84 (1977), lv. den. 402 Mich. 837 (1977), defendant argued that presentment of the winning ticket was required before proceeds could be paid. Because plaintiff had not presented the winning ticket, defendant argued that he had failed to state a claim upon which relief could be granted.
Plaintiff claimed that defendant's motion was untimely because no discovery had taken place. Noting that a Lotto ticket is a bearer instrument, plaintiff claimed that M.C.L. Sec. 440.3804; M.S.A. Sec. 19.3804 should apply. M.C.L. Sec. 440.3804; M.S.A. Sec. 19.3804 provides:
The owner of an instrument which is lost, whether by destruction, theft, or otherwise, may maintain an action in his own name and recover from any party liable thereon upon due proof of his ownership, the facts which prevent his production of the instrument and its terms. The court may require security indemnifying the defendant against loss by reason of further claims on the instrument.
The official comment to that section provides in part:
This section is new. It is intended to provide a method of recovery on instruments which are lost, destroyed or stolen. The plaintiff who claims to be the owner of such an instrument is not a holder as that term is defined in this Act, since he is not in possession of the paper, and he does not have the holder's prima facie right to recover under the [186 MICHAPP 280] section on the burden of establishing signatures. He must prove his case. He must establish the terms of the instrument, and his ownership, and must account for its absence.
Plaintiff further argued that equity required that he be given a chance to prove that he was the owner of the winning ticket. In support of his position, plaintiff attached the affidavit of the manager of the Joslyn Market, who averred that he sold plaintiff a series of lottery tickets on June 6, 1987, and that plaintiff had played the winning numbers before and after June 6, 1987.
We note that M.C.L. Sec. 440.1201(20); M.S.A. Sec. 19.1201(20) defines a holder as
a person who is in possession of a document of title or an instrument or a certificated security drawn, issued or indorsed to him or her or to his or her order or to bearer or in blank.
On July 20, 1988, the court heard defendant's motion for summary disposition. At that time, the court adjourned the motion hearing and granted plaintiff sixty days to conduct discovery. The judge noted that he was not a gambler and, therefore, did not buy any tickets; however, the judge indicated that he would set aside his principles if he knew the winning numbers in advance.
In response to interrogatories, defendant stated that tickets qualifying for more than $5,000 must be presented to its Lansing office for validation and payment of a prize. Defendant also stated that if a ticket is presented more than thirty days after the date of drawing for which it was wagered, the validation and prize-payment process required approximately three weeks. Defendant confirmed that the winning ticket was purchased at Joslyn Market in Pontiac by examining the sales agent's [186 MICHAPP 281] lottery license number which appears on the front of the winning ticket. Defendant claimed that if the lottery agent had followed standard procedure the stock control number on the back of the winning ticket would have been 232659696. Defendant further confirmed that the ticket containing the winning numbers also contained a wager on 7, 16, 18, 21, 27 and 31.
On October 19, 1988, the court granted defendant's motion for summary disposition, noting that the law required presentment before payment could be made. At that time, the court again noted its personal opposition to gambling. An order dismissing plaintiff's complaint was filed on the same date.
On appeal, plaintiff first claims that the judge should have disqualified himself given his negative opinion of gambling. In reviewing the judge's ruling, it is clear that while he expressed a personal disdain for gambling, he realized that the Legislature had provided for it. Hence, the judge's personal disdain for gambling did not affect his ability to impartially hear the case and, therefore, disqualification was not required. MCR 2.003(B).
Plaintiff next argues that the court improperly granted defendant's motion because there were factual questions to be resolved. Plaintiff is under the mistaken impression that defendant's motion for summary disposition was filed pursuant to MCR 2.116(C)(10). As noted above, defendant's motion was filed pursuant to MCR 2.116(C)(8), failure to state a claim upon which relief can be granted. Such a motion tests the legal sufficiency of the claim by the pleadings alone. Pawlak v. Redox Corp., 182 Mich.App. 758, 763, 453 N.W.2d 304 (1990). All factual allegations in support of a claim are accepted as true, as well as all inferences which can fairly be drawn from the facts. Id.
[186 MICHAPP 282] Plaintiff also contends that presentment is not a...
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