RONALD COHEN V NORTHVILLE DOWNS
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STATE OF MICHIGAN
COURT OF APPEALS
RONALD COHEN,
UNPUBLISHED
August 5, 1997
Plaintiff-Appellant,
v
No. 190909
Wayne Circuit Court
LC No. 94-421793-CK
NORTHVILLE DOWNS, and LOU CARLO,
Defendants-Appellees.
Before: Murphy, P.J., and Michael J. Kelly and Gribbs, JJ.
PER CURIAM.
Plaintiff, Ronald Cohen, appeals as of right an order granting defendants Northville Downs’ and
Lou Carlo’s motion for summary disposition. We affirm.
On March 6, 1992, plaintiff participated in the twin-trifecta wager at defendants’ race track. A
bettor in the twin-trifecta picks the exact order of finish for the top three horses in the eleventh and
twelfth races. Plaintiff had numerous tickets that picked the top three horses in the eleventh race. At
the time of or immediately after the start of the twelfth race, the triumvirate of stewards officiating the
race declared that horse #2 was a “scratch” because it was not near the starting line and may have been
off the track. When the twelfth race ended, plaintiff held a ticket that correctly picked the top three
finishers. Defendants consulted the rules approved by the racing commissioner for the twin-trifecta and
determined that, because of the late scratch, the pool would be distributed evenly among all winning
tickets from the first half of the twin-trifecta and all holders of second half twin-trifecta exchange tickets.
Plaintiff claims that because defendants followed this distribution scheme, he received $3,000
instead of $30,000. He complained to the racing commission, which concluded that defendants
correctly followed the applicable rules. Plaintiff filed suit against Northville Downs and its general
manager, Lou Carlo, alleging breach of contract, negligence, and fraud. The trial court granted
defendants’ motion for summary disposition because defendants followed the distribution required by
the rules in the event of a late scratch.
On appeal, plaintiff claims that the trial court erred in granting summary disposition because
there were genuine issues of material fact for the jury to consider. We disagree. Although the trial court
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does not identify under which subrule it granted defendants’ motion, we will treat the motion as having
been granted under MCR 2.116(C)(10) because the trial court’s ruling appears to be in effect that
plaintiff failed to produce evidence to support his allegations. This Court reviews an order granting such
a motion de novo. Baker v Arbor Drugs, 215 Mich App 198, 202; 544 NW2d 727 (1996). A
motion under MCR 2.116(C)(10) tests the factual basis of plaintiff’s allegations. Id. This Court must
view the pleadings, affidavits, depositions, admissions, and any other documentary evidence in the light
most favorable to the nonmoving party. Id. We must then decide “whether a genuine issue regarding
any material fact exists to warrant a trial.” Id.
Plaintiff contends that he established factual issues regarding his breach of contract claim. We
disagree. This Court has previously held in the context of the state lottery that the terms on the back of
a lottery ticket are agreed to when the ticket is purchased. Ramirez v Lottery Bureau, 186 Mich App
275, 282; 463 NW2d 245 (1990). The Legislature provided that the Commissioner of the Lottery
Bureau may promulgate rules regarding the payment of prizes to holders of winning tickets. Id. We
have also held that a subscription to lottery drawings is a “mode of participation” in the game rules
promulgated by the commissioner. Paulsen v State Lottery, 167 Mich App 328, 335; 421 NW2d
678 (1988).
Similarly, in the case at bar, plaintiff agreed to the terms on the Northville Downs program,
which provided that the races were run under the rules made and published by the Michigan Racing
Commissioner and that all persons buying tickets agreed to be bound by those rules and the decisions of
the stewards. MCL 431.66; MSA 18.966(36), in effect on the date in question and later repealed and
replaced by MCL 431.307, MSA 18.966(307), provides that the Racing Commissioner shall
promulgate rules regulating a uniform system of betting on races. Rules promulgated pursuant to this
statutory authorization provide that stewards are authorized to make all findings of fact as to all matters
occurring during and incident to the running of a race, and to determine all objections and inquiries
concerning improper course covered by a horse. AC, R 431.1260(a). Stewards are authorized to
determine all questions regarding a racing matter not specifically covered by the rules in conformity with
justice and the best interest of racing. AC, R 431.1260(e).
Additional rules regarding twin-trifecta racing, which were approved by the Commissioner,
provide that in the event of a late scratch as happened here, the second part of the twin-trifecta’s
divided pool shall be evenly distributed among the holders of first half winning tickets and holders of
second half twin-trifecta exchange tickets. The cumulative pool is carried over for use in the next twin
trifecta.
Defendants therefore fulfilled their contractual obligations to plaintiff to conduct the race under
the rules made and published by the commissioner and to follow the decision of the stewards. Plaintiff
agreed to the terms on the program which bound him to the decisions of the stewards and to the race
being held under the rules of the commissioner. Under Paulsen, supra, plaintiff’s contract with
defendants is a “mode of participation” in the rules promulgated by the Racing Commissioner, and
defendants complied with the applicable rules.
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Plaintiff argues that he should be paid his winnings because participants in other wagers in the
twelfth race were paid their full winnings. We disagree. The rules regarding the distribution scheme
followed by defendant in the event of a late scratch only applied to twin-trifecta wagers. Other wagers
at Northville Downs were not bound by the twin-trifecta rules approved by the commissioner.
Defendants therefore acted properly in imposing the twin-trifecta distribution scheme to the twin-trifecta,
but not with respect to the other races. We therefore hold that plaintiff has failed to establish a genuine
issue of material fact to support his breach of contract claim.
Plaintiff next contends that he has established a prima facie case of negligence requiring reversal.
We disagree. The elements of negligence are: “(1) that the defendant owed a duty to the plaintiff; (2)
that the defendant breached that duty; (3) that the defendant’s breach of duty was a proximate cause of
the plaintiff’s damages; and (4) that the plaintiff suffered damages.” Jenks v Brown, 219 Mich App
415, 417; 557 NW2d 114 (1996). The existence of a duty is a question of law for the court. Id., pp
417-418.
Plaintiff has failed to cite any authority for his assertion that defendants owed plaintiff a legal duty
apart from the contractual duties evidenced in the Northville Downs program. It is clear from the case
law that a lottery winner’s entitlement to a prize is governed by contract law. Coleman v Lottery
Bureau, 77 Mich App 349, 351; 258 NW2d 84 (1977). We hold that plaintiff’s entitlement to his
winnings is also governed by contract law, and we find no authority to suggest an independent duty in
tort apart from any duties owed by defendants pursuant to the terms of the contract. Therefore, since
plaintiff has failed to establish the first element of his prima facie case, his negligence claim must fail.
Plaintiff’s final contention is that he has established factual issues regarding his claim for fraud.
We disagree. In order to prove fraud, plaintiff must show:
(1) that defendant made a material representation; (2) that the representation
was false; (3) when defendant made the representation, defendant knew that it was
false, or made it recklessly without knowledge of its truth or falsity; (4) that defendant
made it with the intent that plaintiff would act upon it; (5) that plaintiff acted in reliance
upon it; and (6) that plaintiff suffered injury. [Baker, supra, p 208.]
An action for fraud must be based on a statement relating to a past or existing fact. Id., pp 208-209.
“Future promises are contractual and cannot constitute actionable fraud.” Id., p 209.
Here, plaintiff has failed to establish that defendants made a false representation concerning a
past or existing fact. Plaintiff appears to be asserting that defendants falsely represented that they would
comply with the contract. An action for fraud cannot be based on that representation because it relates
to a future promise rather than a past or existing fact. Plaintiff has also failed to produce any evidence
that the representation was false because defendants complied with the terms of the contract by
following the decision of the stewards and by running the race in conformity with the rules promulgated
and approved by the Racing Commissioner. Further, plaintiff admitted at deposition that he did not
have any proof that defendants knew that the representation was false or that they acted in reckless
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disregard as to whether the representation was false. Plaintiff has therefore failed to establish a prima
facie case of fraud.
Affirmed.
/s/ William B. Murphy
/s/ Michael J. Kelly
/s/ Roman S. Gribbs
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