State ex rel. Tyson v. TED'S GAME ENTER.

• Decision Date: 13 December 2002
• Citation: 893 So.2d 355
• Parties: STATE of Alabama ex rel. John M. TYSON, Jr., District Attorney v. TED'S GAME ENTERPRISES et al.
• Court: Alabama Court of Civil Appeals

893 So.2d 355

STATE of Alabama ex rel. John M. TYSON, Jr., District Attorney v. TED'S GAME ENTERPRISES et al.

2000424.

Court of Civil Appeals of Alabama.

December 13, 2002.

Rehearing Denied March 21, 2003.

William H. Pryor, Jr., atty. gen., Yvonne A.H. Saxon, asst. atty. gen., John M. Tyson, Jr., district atty., and Martha Tierney, asst. district atty., for appellant.

John M. Bolton III of Sasser, Littleton & Stidham, P.C., Montgomery, for appellees.

John D. Whetstone, district atty., and Geoffrey D. Alexander and C. Joseph Norton, asst. district attys., for amicus curiae Office of Baldwin County District Attorney, in support of the appellant.

MURDOCK, Judge.

The State of Alabama appeals from an adverse judgment of the Mobile Circuit Court on its declaratory-judgment claims in a proceeding below. The circuit court ruled that (1) § 13A-12-76, Ala.Code 1975, protects from the prohibitions of §§ 13A-12-20 through -75, Ala.Code 1975 (hereinafter referred to as the "criminal gambling statutes"), video-game machines whose outcomes are dependent at least "in part" upon the skill of the player, or that, by application of merely "some skill," entitle the player to a reward, and (2) to the extent § 13A-12-76 purports to legalize machines that involve only "some skill," that section does not contravene the ban on lotteries and schemes in the nature of lotteries found in § 65 of Alabama's Constitution. We reverse.

I. Procedural History

In September 1998, the State, on the relation of John M. Tyson, Jr., as District Attorney of Mobile County, filed a complaint seeking the forfeiture of 20 video-game machines, currency, and documents law-enforcement officers had seized from nine stores located in Mobile County, including Myers Country Store, Satsuma Chevron, Starvin Marvin # 2, Starvin Marvin # 3, Papa Joe's, Theodore Conoco, Bubba's Citgo, Superstop, and Ike's. Ted's Game Enterprises ("Ted's"), which owned and had distributed the seized machines, and each of the aforementioned stores were served with the State's complaint. The State alleged that the seized machines were "slot machines and video gambling devices, paraphernalia, currency and records," which, pursuant to the criminal gambling statutes, were contraband and were used and intended for use in unlawful gambling activity. The State requested that the seized machines, currency, and documents be condemned and that they be awarded to the State pursuant to Ala.Code 1975, § 13A-12-30.¹

On March 17, 1999, the State filed an "Amended Complaint." Among other things, the State sought in this amended complaint a judgment declaring that the machines owned and distributed by Ted's are illegal "slot machines" and "gambling devices" under Alabama's criminal gambling statutes and that they are not "bona fide coin-operated amusement machines" protected by § 13A-12-76 from the prohibitions of those gambling statutes. Nine days later, on March 26, 1999, the State also filed a motion to dismiss without prejudice its original forfeiture claim as to 12 of the seized machines, explaining that those 12 machines had been returned to Ted's. On May 13, 1999, the State withdrew this motion and instead filed a notice of voluntary dismissal under Rule 41(a), Ala. R. Civ. P. On that same day, the trial court signed an entry on the case action summary sheet acknowledging that the State had voluntary dismissed its forfeiture claims as to the 12 machines, but that it had not dismissed its declaratory-judgment action.²

On September 27, 1999, the State filed its "Second Amended Complaint." The second amended complaint included the claims set out in the State's first amended complaint, but added a new claim seeking a declaratory judgment as to the constitutionality of § 13A-12-76 in relation to Alabama Constitution 1901, Art. IV, § 65. The State also alleged:

"3. [Ted's] ha[s] distributed the machines at issue and other such machines throughout Mobile County [³] in violation of the provisions of Alabama Code Section 13A-12-20 through 13A-12-76.

"4. The [State] seeks to enforce the provisions of Alabama Code Section 13A-12-20 through 13A-12-76.

"5. The [State] claims a real and substantial justiciable controversy exists as set forth above and requests a judgment concerning the interpretation of the statute, the rights, and legal relations of the parties and a decision by this court will serve the public interest."

The State requested that the trial court "declare the rights, duties and liabilities of the parties" and enter "such orders, [and] judgments ... as may be necessary and proper to give effect to the parties' respective rights under Alabama Code Section 13A-12-20 through 13A-12-76."

Ted's and Bubba's Citgo filed a joint answer to the State's amended complaint, asserting, among other things, the defenses of res judicata and collateral estoppel, based in part upon the decision of the Montgomery Circuit Court in State v. Ray & Ann's Place, CV-98-325 (January 11, 1999), affirmed without opinion, State v. Ray & Ann's Place (No. 2980541), 789 So.2d 248 (Ala.Civ.App.1999) (table), and upon several other forfeiture cases the State had allegedly unsuccessfully prosecuted in Montgomery County and Lawrence County with respect to machines owned and distributed by Ted's. Ted's and Bubba's Citgo also filed a joint motion for a summary judgment and joint motions for a judgment as a matter of law, asserting, in pertinent part, the defenses of res judicata and collateral estoppel. The trial court denied the motions.

On October 6, 2000, after a hearing on the merits, the trial court agreed with Ted's and found that, even though skill may be a "minor factor," machines "`the result of whose operation depends in whole or in part upon the skill of the player' and `which, by application of some skill,' entitle the player to some reward are" protected by § 13A-12-76 from the prohibitions in Alabama's criminal gambling statutes. The trial court further concluded that machines protected as "bona fide coin-operated amusement machines" under § 13A-12-76, by definition, are not "slot machines" under § 13A-12-20.

Despite the foregoing findings, the trial court also determined that the eight machines seized from Ted's that were still in the State's possession offered rewards exceeding the statutory limit in § 13A-12-76 of $5 on a single play and that, for this reason alone, they were illegal gambling devices not protected by § 13A-12-76 and were subject to forfeiture. In its judgment, the trial court also stated that it could not reach the broader issue of whether § 13A-12-76 was unconstitutional because, the court said, the State had failed to include that issue in its complaint and had failed to serve the attorney general with a copy of the complaint in accordance with Ala.Code 1975, § 6-6-227.

The State filed a motion bringing to the trial court's attention the fact that it had in fact filed a "Second Amended Complaint" that requested a declaratory judgment as to the constitutionality of § 13A-12-76. The motion included appropriate attachments reflecting the fact that the attorney general had, in fact, been served with a copy of the State's second amended complaint.⁴

On November 22, 2000, the trial court amended its judgment, noting that the State had properly sought a declaratory judgment as to the constitutionality of § 13A-12-76. The trial court addressed that claim by quoting from Opinion of the Justices No. 358, 692 So.2d 107, 112 (Ala.1997):

"[A]s long as some degree of skill is required in a gambling activity, that activity differs from a lottery in kind, rather than in degree. In such a case, the issue is not the degree of skill involved, but whether some skill is involved."

On that basis, the trial court entered a final judgment in which, among other things, it held that § 13A-12-76 did not authorize the operation of a lottery and was "not unconstitutional for that reason."

On the same day the trial court entered its final judgment, the State filed a postjudgment motion. The trial court denied the State's postjudgment motion on December 20, 2000, and the State filed a notice of appeal to this court on January 18, 2001.

II. Preliminary Issues

Before addressing the merits of the State's arguments, we first address several preliminary issues raised by Ted's. Ted's argues that we should dismiss the State's appeal because, it says, the appeal was untimely and because the State lacks standing to pursue this appeal. Ted's also argues as a preliminary matter that the State's claims that Ted's machines are prohibited by the criminal gambling statutes and that § 13A-12-76 is unconstitutional are barred by the doctrines of res judicata and collateral estoppel.

Ted's argument that the State's appeal was untimely is based upon its conclusion that the trial court's October 6, 2000, order was a final judgment and that the State's subsequent motion asking the trial court for a ruling on its declaratory-judgment claim as to the unconstitutionality of § 13A-12-76 was a postjudgment motion. Ted's argues that the motion filed by the State on November 22, 2000, was therefore an attempt to file a second postjudgment motion and was void.

It is clear from the terms of the trial court's October 6, 2000, order that that order did not rule on all of the State's claims. "Where an action involves multiple claims or parties, any adjudication that adjudges fewer than all of the claims or parties is interlocutory, absent a Rule 54(b)[, Ala. R. Civ. P.,] order determining that there is no just reason for delay and expressly directing the entry of a judgment." McGlothlin v. First Alabama Bank, 599 So.2d 1137, 1140 (Ala.1992); see also Rule 54, Ala. R. Civ. P. Absent a Rule 54(b) certification, an adjudication of only some of the claims involved in an action is not a final judgment from which an appeal can be taken. See, e.g., McGlothlin, 599 So.2d at 1140

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The trial court did not adjudicate all of the State's...