Robinson v. Colorado State Lottery Div.

• Decision Date: 24 March 2008
• Citation: 179 P.3d 998
• Docket Number: 06SC385
• Parties: Lavonne ROBINSON, f/k/a Lavonne Bazemore, individually and as representative of a class, Petitioner, v. COLORADO STATE LOTTERY DIVISION, an agency of the State of Colorado; and Colorado State Lottery Commission, an agency of the State of Colorado. Respondents.
• Court: Colorado Supreme Court

179 P.3d 998

Lavonne ROBINSON, f/k/a Lavonne Bazemore, individually and as representative of a class, Petitioner, v.COLORADO STATE LOTTERY DIVISION, an agency of the State of Colorado; and Colorado State Lottery Commission, an agency of the State of Colorado. Respondents.

No. 06SC385.

Supreme Court of Colorado, En Banc.

March 24, 2008.

The Carey Law Firm, Robert B. Carey, Leif Garrison, Colorado Springs, Colorado, Walter H. Sargent, P.C., Walter H. Sargent, Colorado Springs, Colorado, Attorneys for Petitioner.

John W. Suthers, Attorney General, Daniel D. Domenico, Solicitor General, Andrew M. Katarikawe, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.

Justice MARTINEZdelivered the Opinion of the Court.

PetitionerLavonne Robinson appeals a judgment in favor of defendants, the Colorado State Lottery Division and the Colorado State Lottery Commission(collectively "the Lottery").Robinson contends that the Lottery continues to sell scratch tickets for months after all the represented and advertised prizes have already been awarded.She frames her complaint in contract and quasi-contract, arguing that she bought scratch tickets with the belief, based on the Lottery's representations, that she had a chance to win certain represented prizes and that she did not receive the chance to win for which she had contracted.

The trial court granted the Lottery'sC.R.C.P. 12(b)(1) motion to dismiss, holding that Robinson's claims were barred by the Colorado Governmental Immunity Act ("the CGIA"), sections 24-10-101 to -120, C.R.S. (2007), because the claims lie in tort or could lie in tort.Additionally, the trial court awarded attorney fees to the Lottery pursuant to section 13-17-201, C.R.S. (2007), which allows for attorney fees against a plaintiff whose tort action was dismissed under C.R.C.P. 12(b).On appeal, the court of appeals affirmed the dismissal of all claims against the Lottery pursuant to the CGIA and also affirmed the award of attorney fees.Robinson v. Colo. State Lottery Div.,155 P.3d 409, 413(Colo.App.2006).We granted certiorari to review whether Robinson's claims lie in tort or could lie in tort and are therefore barred by the CGIA.Additionally, we review whether the court of appeals erred in holding that the Lottery was entitled to an award of attorney fees under section 13-17-201.

Because the underlying injury asserted in Robinson's claims arises out of the alleged misrepresentation of certain facts by the Lottery, we find that Robinson's claims lie in tort or could lie in tort for the purposes of governmental immunity.Thus, they are barred by the CGIA.We further find that the grant of attorney fees to the Lottery pursuant to section 13-17-201 was error because the statute does not apply to the dismissal of contract claims.Accordingly, we affirm the judgment of the court of appeals in part and reverse in part.

I.Facts and Procedural History

Robinson brought suit against the Lottery and Texaco, Inc. in 2000.The Colorado State Lottery Division, a part of the Colorado Department of Revenue, is authorized to operate and supervise a statewide lottery.§ 24-35-203, C.R.S.(2007).The Division includes the Lottery Commission, which is responsible for promulgating rules and regulations governing the operation of the lottery.Texaco, Inc. is a corporation which has been granted a license by the Lottery Division to sell the Lottery's instant scratch game tickets to the general public.¹

In her complaint, Robinson alleges that the Lottery sells instant scratch game tickets for a significant period of time after all the represented or advertised prizes² are awarded or claimed.Thus, the Lottery is selling instant scratch tickets when the players have no chance of winning the grand prize.Robinson also alleges that the Lottery is aware that the represented and advertised prizes are not available when these tickets are being sold and that the Lottery condones or encourages such sales.Robinson states that by ignoring the fact that it is selling scratch tickets that cannot win the prize used to induce purchase, the Lottery brings in millions of dollars per year in revenue from tickets that would not have been purchased if the players had been aware that the represented and advertised prizes were no longer available.Robinson contends that because of such "wrongful conduct," the Lottery receives money from instant scratch players hundreds of times per day without providing those players with the chance to win that they were promised and for which they contracted.

For example, Robinson alleges that she purchased "Luck of the Zodiac" scratch game lottery tickets on July 24, 1998, and that the ticket was emblazoned with the words "win up to $10,000."However, the Lottery had already awarded the last $10,000 grand prize seventy-two days earlier.Robinson further states in her complaint that for the last five years she has purchased various instant scratch game tickets on a regular basis and that she played with the expectation that she could win the advertised and represented prizes.Robinson brings this suit as a representative of a class consisting of all persons who purchased instant scratch game tickets from the Lottery when all the represented or advertised prizes had already been claimed or awarded.However, the class has not been certified.

Specifically, Robinson filed seven claims against the Lottery and Texaco: (1) breach of express contract; (2) breach of express warranty under the Colorado Uniform Commercial Code("UCC");(3) breach of implied warranty under the UCC; (4) breach of the implied covenant of good faith and fair dealing; (5) violation of section 24-35-206, C.R.S. (2007); (6) violation of the Colorado Consumer Protection Act ("the CCPA"); and (7) restitution and unjust enrichment.³

Robinson's complaint was initially dismissed by the trial court for failure to exhaust administrative remedies.Robinson appealed, and the court of appeals reversed the dismissal and remanded the case to the trial court to determine whether Robinson's claims were barred by the CGIA.On remand, the trial court granted the Lottery'sC.R.C.P. 12(b)(1) motion to dismiss, holding that Robinson's claims lie in tort and are therefore barred by the CGIA.After the Lottery moved for attorney fees pursuant to section 13-17-201, the trial court held that the Lottery was entitled to $52,514 in attorney fees.

On appeal, the court of appeals affirmed the dismissal of all claims against the Lottery and affirmed the award of attorney fees.The court held that Robinson's claims sounded in tort for purposes of the CGIA.The court of appeals reasoned that any claim that alleges negligent misrepresentation is based in tort and would be subject to the CGIA.Looking to the underlying factual basis for Robinson's claims, the court of appeals determined that the essence of Robinson's claims was that the Lottery negligently misrepresented to her the possibility that she could win one of the represented or advertised prizes and that the Lottery thereby fraudulently induced her into purchasing scratch game tickets.Thus, the court of appeals concluded that Robinson's claims lie in tort or could lie in tort and were barred by the CGIA.

Robinson now petitions this court for certiorari on two issues.First, Robinson contends that the court of appeals erred in holding that her claims against the Lottery, although pleaded in contract and equity, "sound in tort" and are therefore barred by the CGIA.Second, Robinson argues that the court of appeals erred in holding that the Lottery was entitled to an award of attorney fees under section 13-17-201.⁴

II.The Colorado Governmental Immunity Act

We review the issue of whether Robinson's claims are barred by the CGIA de novo because it concerns a matter of statutory construction.City of Colo. Springs v. Conners,993 P.2d 1167, 1171(Colo.2000).Thus, we are not bound by the lower court's determination.Id.

Pursuant to the CGIA, public entities are immune from liability in all claims for injury that lie in tort or could lie in tort, unless the claim falls within an exception to that immunity.Section24-10-106(1), C.R.S.(2007), provides: "A public entity shall be immune from liability in all claims for injury which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant except as provided otherwise in this section."In contrast, the CGIA was not intended to apply to actions grounded in contract.Berg v. State Bd. of Agric.,919 P.2d 254, 258(Colo.1996).

Because Robinson's claims here are framed in the pleadings as contractual and quasi-contractual, rather than tort claims, the issue before us is whether these claims "lie in tort or could lie in tort" and are thus barred by the CGIA.As we have made clear, the form of the complaint is not determinative of the claim's basis in tort or contract.Id.;City & County of Denver v. Desert Truck Sales, Inc.,837 P.2d 759, 764(Colo.1992).Instead, a court must consider the nature of the injury and the relief sought.SeeConners,993 P.2d at 1175-76;Adams v. City of Westminster,140 P.3d 8, 11(Colo.App.2005);CAMAS Colo., Inc. v. Bd. of County Comm'rs,36 P.3d 135, 138(Colo.App.2001).When the injury arises either out of conduct that is tortious in nature or out of the breach of a duty recognized in tort law, and when the relief seeks to compensate the plaintiff for that injury, the claim likely lies in tort or could lie in tort for purposes of the CGIA.SeeConners,993 P.2d at 1176;Adams,140 P.3d at 10(holding that the CGIA was intended to apply when the claimant seeks redress from injuries that result from tortious conduct);CAMAS Colo.,36 P.3d at 138(noting that a court must examine the source from which the allegedly breached duty arises).Although the nature of the relief requested is not dispositive on the question of...