DAVID BARNES V BUREAU OF STATE LOTTERY
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STATE OF MICHIGAN
COURT OF APPEALS
DAVID BARNES, PETE AWREY, SHANNON
HANDRICH, THOMAS HENEY, CRAIG SIDES,
KEITH BUTCHER, THOMAS GOODWILL,
VALERIE GOODWILL, CHRIS HOLBURN,
DOUG JOHNSON, DEBORAH NORTH,
THOMAS NORTH, CATHERINE WEST, JAY
RUDDY, LINDA POLLARD, PENNY MORAN,
PAUL MORAN, DAVID BARNES II, DARLENE
MEDINA, DAWN BARNES, MARGO BARNES,
CAROL HILTS, THEO HILTS, RUSSELL HILTS,
RICK HILTS, SANDY TROUT, LESTER
SENSOBAUGH, LAURA BEEBE and JAY
MEDINA,
UNPUBLISHED
August 22, 1997
Plaintiffs-Appellants,
v
No. 197246
Court of Claims
LC No. 96-016293-CM
STATE OF MICHIGAN and BUREAU OF
LOTTERY,
Defendants-Appellees.
Before: Neff, P.J., and Wahls and Taylor, JJ.
PER CURIAM.
Plaintiffs appeal as of right from an order granting summary disposition for defendants pursuant
to MCR 2.116(C)(8) and (10). This case arises out of defendants’ refusal to pay plaintiffs prize
winnings in the “$5000 Money Match” instant lottery game. Plaintiffs believed that they had won
numerous prizes under their interpretation of the game rules. We affirm.
Plaintiffs first argue that the trial court erred in granting summary disposition on their breach of
contract claim. Plaintiffs do not dispute that there is a contract between the parties. Instead, they argue
that the contract terms are ambiguous. We disagree. A court may interpret a contract for purposes of
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a motion for summary disposition where, as here, the terms are clear. Portelli v I R Constr Products
Co, 218 Mich App 591, 598, n 3; 554 NW2d 591 (1996). We construe contracts as a whole, giving
“harmonious effect, if possible, to each word and phrase.” Singer v Goff, 334 Mich 163, 168; 54
NW2d 290 (1952). In order to interpret the contract as a whole in this case, we must consider the
physical layout of the lottery ticket. In addition, language printed on the ticket indicates that “all tickets .
. . are subject to lottery rules, directives, and state law.” Thus, we must also consider any lottery rules
or directives as part of the contract between the parties.
Here, the directions on the front of the lottery ticket provide that “if ‘your prize’ matches ‘their
prize’ in any game, win that prize amount.” Plaintiffs argue that the phrase “in any game” is a misplaced
modifier that allows the rules to be interpreted to mean that if any dollar amount in the “your prize”
column matches any dollar amount in the “their prize” column, then the holder is a winner even though
the matching icons are not necessarily found in the same horizontal game row. If we ignore the physical
layout of the ticket, there are two possible ways to interpret these directions. First, the phrase “in any
game” could be interpreted as modifying only the term “their prize.” This is essentially the reading relied
on by plaintiffs. The other possible reading is that the phrase “in any game” modifies the entire
preceding phrase “if ‘your prize’ matches ‘their prize.’” Thus, the directions, when taken out of
context, are indeed ambiguous, and we must look to the rest of the contract to determine their proper
meaning.
The layout of the lottery ticket includes four horizontal rows separated by solid horizontal lines.
The rows are labeled “Game 1,” “Game 2,” “Game 3,” and “Game 4.” Thus, the face of the ticket
makes it clear that a “game” is a horizontal row. In addition, Lottery Bureau Instant Game Directive
No. 212, which is also part of the contract, parenthetically defines a game as a horizontal row. Each
game includes one box labeled “your prize” and one box labeled “their prize.” Thus, there are four
boxes labeled “your prize” and four labeled “their prize.” We find that plaintiffs’ interpretation of the
directions conflicts with the physical layout of the ticket. The phrase “if ‘your prize’ matches ‘their
prize’” refers to “your prize” in the singular. Under plaintiffs’ interpretation, there should be only one
box labeled “your prize” and several boxes labeled “their prize.” In fact, the layout of the ticket is only
consistent with the conclusion that the phrase “in any game” modifies the entire phrase “if ‘your prize’
matches ‘their prize.’” Thus, the trial court properly concluded that a match must occur “in any game,”
and may not occur across games. Defendants’ argument regarding the meaning of the word “any” is
irrelevant. The definition of the word “any” cannot change the fact that a match must occur within a
game, rather than across games.
All of the contract terms, including the directions and statements on the ticket, the physical
layout of the ticket, and Directive No. 212 are consistent with the above interpretation, and the contract
is not ambiguous. Because we conclude that the contract, viewed as a whole, is clear, and because
defendants did not breach that contract by refusing to pay plaintiffs, the trial court properly granted
summary disposition for defendants on this issue.
Plaintiffs next argue that the trial court erred in granting summary disposition for defendants on
their constructive fraud claim. We disagree. The Michigan Supreme Court has recognized that
constructive fraud is essentially the receipt and retention of unmerited benefits. Goodrich v Waller,
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314 Mich 456, 469; 22 NW2d 862 (1946). Defendants in this case did not receive any unmerited
benefits. When plaintiffs purchased their lottery tickets, they essentially bought a chance to win money,
pursuant to the terms of a contract. As noted above, defendants did not breach that contract, and
plaintiffs indeed got the chance to win money. The fact that plaintiffs did not win does not make
defendants’ conduct fraudulent, nor does it make their retention of plaintiffs’ money “unmerited.”
Finally, plaintiffs argue that the trial court erred in granting summary disposition for defendants
on their claim of innocent misrepresentation. Again, we disagree. We have described a claim for
innocent misrepresentation as a variation on fraud:
Claims for fraudulent misrepresentation require proof that (1) the defendant
made a material representation, (2) it was false, (3) the defendant knew it was false
when made, or made it recklessly, without knowledge of its truth and as a positive
assertion, (4) it was made with the intention to induce reliance by the plaintiff, (5) the
plaintiff acted in reliance upon it, and (6) the plaintiff thereby suffered injury. A claim for
"innocent" misrepresentation requires proof of the same elements except that the
misrepresentation need not be made knowingly or recklessly.
Innocent
misrepresentation also requires proof of the additional element that the plaintiff's injury
actually benefited the defendant. [State-William Partnership v Gale, 169 Mich App
170, 178; 425 NW2d 756 (1988) (citations omitted).]
Here, as noted above, the contract between the parties is consistent and clear. Plaintiffs cannot point to
any statement outside the contract upon which they relied. Thus, defendants did not make any
misrepresentations, and the trial court properly granted summary disposition in their favor.
Because we affirm the trial court, we need not address plaintiffs’ request for a different judge on
remand.
Affirmed.
/s/ Janet T. Neff
/s/ Myron H. Wahls
/s/ Clifford W. Taylor
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