Amended August 6, 2015 Pauline McKee v. Isle of Capri Casinos, Inc. And IOC Black Hawk County, Inc. ( 2015 )

IN THE SUPREME COURT OF IOWA
No. 14–0802
Filed April 24, 2015
Amended August 6, 2015
PAULINE McKEE,
Appellant,
vs.
ISLE OF CAPRI CASINOS, INC. and IOC BLACK HAWK COUNTY, INC.,
Appellees.
Appeal from the Iowa District Court for Black Hawk County,
Todd A. Geer, Judge.
A casino patron who sued to recover a bonus allegedly won on a
slot machine appeals the district court’s grant of summary judgment to
the casino. AFFIRMED.
Stephen J. Powell of Swisher & Cohrt, P.L.C., Waterloo, and
Steven R. Enochian of Low McKinley Baleria & Salenko, Walnut Creek,
California, for appellant.
Stacey L. Cormican of Nyemaster Goode, Cedar Rapids, and Mark
A. Schultheis of Nyemaster Goode, P.C., Des Moines, for appellees.
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MANSFIELD, Justice.
This case requires us to apply ordinary contract principles to an
extraordinary event. While playing a penny slot machine, a casino
patron obtained a win of 185 credits, or $1.85, based on how the
symbols had lined up. However, at the same time a message appeared
on the screen stating, “Bonus Award - $41797550.16.” The casino
refused to pay the alleged bonus, claiming it was an error and not part of
the game. The patron brought suit against the casino, asserting breach
of contract, estoppel, and consumer fraud. The district court granted
summary judgment to the casino. The patron appealed.
On appeal, we conclude the district court’s grant of summary
judgment was proper. The rules of the game formed a contract between
the patron and the casino, and the patron was not entitled to the bonus
under those rules. Further, the patron failed to prove the necessary
elements of either promissory or equitable estoppel. At no time did the
casino represent to her that a bonus would be available if she played the
game, nor did the casino promise to pay the $41 million after the notice
was displayed. In any event, the patron did not detrimentally rely on any
representation by the casino. Finally, the patron failed to present proof
of an ascertainable loss sufficient to warrant recovery on her consumer
fraud claim. We therefore affirm the district court’s ruling granting
summary judgment to the casino on all three counts.
I. Background Facts and Proceedings.
On July 2, 2011, Pauline McKee, an eighty-seven-year-old
grandmother of thirteen living in Antioch, Illinois, was attending a family
reunion in Waterloo. That evening, she and several members of her
family gambled at the Isle Casino Hotel Waterloo operated by IOC Black
Hawk County, Inc. (hereinafter jointly referred to as “the casino”), a
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combination hotel and casino where some members of the reunion party
were staying. Around nine o’clock, one of McKee’s daughters invited
McKee to sit down next to her and play a slot machine called “Miss
Kitty.” McKee had played slot machines two to three times per year since
she was approximately twenty-one years old, but had never played this
particular game before.
The Miss Kitty game is a penny slot machine manufactured by
Aristocrat Technologies, Inc. (Aristocrat). It displays five reels and fifty
paylines on a video screen. To play the game, a patron selects the
number of paylines and the amount bet per line. One cent buys one
credit, and one half credit buys one line. A player’s total bet is calculated
by multiplying the number of credits by the number of lines bet.
Therefore, although it is called a penny machine, it is possible to bet
more than just one cent per spin. As with other slot machines, a person
wins at the Miss Kitty game by lining up different combinations of
symbols from left to right on the paylines.
The game includes a button entitled “Touch Game Rules” in the
lower left-hand corner of the screen. Tapping this button displays the
rules that govern the game and a chart describing potential winning
combinations of symbols, known as a paytable. The first page of the
rules reads as follows:
TOTAL BET is the number of credits on the LINES
button multiplied by the number on the BET button. TOTAL
BET and lines played during the free games are the same as
for the game that started the feature. Choose your number
of paylines, then choose your bet per line to begin game.
Highest win paid on any lit payline except for scatters which
are added to payline wins. Scattered [moon emblem] wins
added to payline wins. All wins shown in credits. All wins
multiplied by credits bet per line except scatters. Wins on
different lit paylines added. All wins on lines played except
scatters which are added to payline wins.
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MALFUNCTION VOIDS ALL PAYS AND PLAYS. . . .
The next rules screen states, “All wins begin with leftmost reel, and
pay left to right only on adjacent reels.” Additionally, the rules provide
that when three “scattered moon” symbols appear left to right on
adjacent wheels, the player wins double the total amount displayed.
Furthermore, when three “scattered moon” symbols appear on the
screen, the game enters a special mode called “Sticky Wild™ Free Games
Feature” that lasts for ten games. During these ten games, any wild
symbol (represented by a Miss Kitty emblem) that appears on the screen
“sticks” and stays in place for the rest of the ten games, thereby making
it easier for the patron to complete winning patterns.
The third rules screen explains there are eleven symbols other
than the moon and Miss Kitty wild images, each with varying credit
values. The fourth screen displays the paytable entitled “Paylines.”
Finally, a sign posted on the front of the machine reiterates,
“MALFUNCTION VOIDS ALL PAYS AND PLAYS.”
The parties agree that all the potential ways of winning from lining
up various combinations of symbols are accurately listed in the rules and
paytable. The rules and paytable do not mention any additional
bonuses, jackpots, or prizes available to a patron playing the Miss Kitty
game.
McKee did not read the rules of the game or look at the paytable
before playing the Miss Kitty game. Around 10:00 p.m., after McKee had
been using the machine for a while, she wagered $0.25 on a particular
spin. The following message appeared:
Credit Bet Win
1810 25 185
The reels have rolled your way!
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Bonus Award - $41797550.16
Beneath this message was a five-by-four configuration of symbols. It is
undisputed that under the rules of the game, McKee was entitled to a
win of 185 credits, or $1.85, based on that alignment of symbols. The
dispute, of course, concerns the “Bonus Award” of $41,797,550.16.
Believing she had won a large bonus, McKee and her daughter
summoned a casino attendant to the machine. An employee responded
and accessed the main door of the game to clean the central processing
unit. The senior supervisor/shift manager on duty that night was also
called to the machine to investigate. The supervisor photographed the
display on the Miss Kitty machine. A slot technician restarted the game.
The supervisor informed McKee and her daughter that she needed to
make a few phone calls and gave McKee a $10 card to play other games
while she waited. Eventually, a casino manager instructed the
supervisor to block off the machine pending further investigation. The
supervisor paid McKee the $18.10 she had won on the Miss Kitty
machine up to that point. The supervisor explained the casino was
looking into the machine and informed McKee her room would be paid
for by the casino. No employee of the casino ever informed McKee that
she would actually receive the $41,797,550.16 bonus.
The next day, the vice president/general manager of the casino
also investigated the incident and left a note and her business card for
McKee. She concluded it was an “unusual situation” and comped the
additional rooms that McKee’s family members were staying in. She
explained the casino had informed the Iowa Racing and Gaming
Commission (IRGC) of the situation and that the machine would be
secured and studied.
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The IRGC conducted an independent investigation. As part of this
investigation, it sent the hardware and software from the Miss Kitty
machine to a testing laboratory, Gaming Laboratories Inc. (GLI), along
with related documentation and other materials. GLI’s analysis
concluded as follows:
The logs on the machine do indicate that it thought it
received a legacy bonus. 1 However, in reviewing the legacy
bonusing aspect of SAS [the casino’s “slot accounting
system”] it was noticed that the SAS legacy bonus command
can send a bonus up to $99999.99, which is far less than
was awarded by the game. Furthermore, the system does
not support legacy bonusing. As a result, it appears the SPC
board [hardware inside the Miss Kitty machine] erroneously
determined that it received a legacy bonus award from the
system and sent it to the game.
....
In conclusion, GLI was unable to definitively determine
the exact cause of the erroneous bonus award. However, it
is apparent, based on the reviewed information that the
bonus award was not valid. Unfortunately, given the lack of
conclusive evidence, GLI cannot confidently speculate as to
how the bonus amount was received and displayed at the
gaming machine in question. However, it is highly likely that
the erroneous message originated from the SPC 2.0
communication board and was then relayed to the game.
The IRGC also requested information from the manufacturer of the
machine, Aristocrat. Aristocrat responded to the IRGC with a letter
concluding that the bonus displayed on the screen was an error. It noted
it had previously issued a bulletin regarding the issue:
ATI [Aristocrat Technologies, Inc.] has been aware of
the possibility of an erroneous value being displayed under
this type of situation, i.e., where “Legacy Bonusing” is
enabled on the gaming machine without the required poll.
1Although the record is somewhat unclear as to what a “legacy bonus” is, it
appears to be a form of bonus transmitted from the casino’s central system to the
specific machine. Regardless, it is undisputed that bonuses were not a part of the Miss
Kitty game.
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In response to the possibility of this type of erroneous
display, ATI previously provided a Technical Information
Bulletin to the Industry in November, 2010. The Technical
Bulletin outlined the issue and the course of action
Aristocrat was taking in developing a new System Base and
SPC2, as well as ATI’s recommendation to casinos for
disabling of the bonus option as a preventative action.
The technical bulletin the casino had received from Aristocrat
described the problem as follows:
A rare and unlikely circumstance has been discovered
when legacy bonusing is enabled on the MKVI™ platform
when used with the SPC2.0 – an erroneous bonus amount
can be awarded to the machine, which may cause the
machine to go into an attendant hand pay condition with the
erroneous bonus amount displayed on the screen. Aristocrat
believes that SPC2.0 component degradation over time may
increase the susceptibility to this rare occurrence.
An accompanying product notification described the solution to the
problem as a “Non-Mandatory upgrade” and stated “[t]he conditionally
revoked version must be replaced in the field by August 31, 2011.”
The record also indicates that this machine had been serviced
earlier in the evening of July 2 and that the CPU had been cleaned and
reinstalled around 7:30 p.m.
As a result of the IRGC’s investigation, administrator Brian
Ohorilko wrote a letter to the casino manager concluding the bonus was
an invalid display. The letter stated, in relevant part:
Based on the information available and received, the
jackpot amount displayed on the slot machine game screen
is not valid. . . . The information pertaining to the maximum
award was displayed on the pay table of the slot machine;
therefore the maximum award information was available to
the player prior to playing. In addition, the symbols on the
slot machine game screen resulting from the spin by the
patron demonstrated a combination that should pay out
$1.85 as verified by the paytable on the slot machine . . . .
....
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In summary, IRGC staff has confirmed that the slot
machine game malfunctioned and did not operate in
accordance with the representation made to the commission.
Based on the IRGC’s determination that the bonus award
displayed on the screen was not valid, the casino refused to pay McKee
the $41,797,550.16.
McKee filed suit against the casino in the Iowa District Court for
Black Hawk County on January 26, 2012. She alleged the casino had
breached a contract to pay her the bonus, the casino should be estopped
from refusing to pay the award, and the casino’s actions violated Iowa’s
Consumer Fraud Act. See Iowa Code § 714H.5 (2011).
The casino moved for summary judgment. In support of its
motion, the casino attached numerous exhibits, including a copy of its
license from the IRGC, a photograph of the screen displaying the award
message, the Miss Kitty instruction screens and paytable, a copy of the
IRGC’s letter, and excerpts from McKee’s deposition. McKee resisted the
motion for summary judgment and submitted her own exhibits,
including two depositions from McKee herself, numerous excerpts from
depositions of casino employees, copies of the GLI and Aristocrat letters,
interrogatory answers from her expert indicating the award was not the
result of a malfunction, and the log from the slot machine in question.
The district court granted the casino’s motion on all three counts
in a ruling issued on October 15, 2013. With respect to the contract
claim, the court stated that all gambling contracts in Iowa are governed
by chapter 99F. See Iowa Code ch. 99F. Observing that this chapter
grants regulatory authority to the IRGC, the court concluded the rules of
the game approved by the IRGC constituted the contract between McKee
and the casino:
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These written, approved rules of the Miss Kitty game
formed the gambling contract between McKee and the
casino. McKee could have read the rules of play had she
chosen to do so. Although she did not actually read the
rules of the game, she was nevertheless bound by them
when she chose to play the game. By doing so, she entered
into a written, binding, “aleatory” contract with the casino.
[A]n aleatory contract is one in which a party’s duty to
perform is conditioned upon some fortuitous event, such as
winning at a slot machine. . . . Under the aleatory contract
in this case, McKee promised to pay a certain amount of
money and place bets, and the casino promised to give her
an award based on what bets she made and the way the
“reels” lined up at the end of the game of chance. On the
play in question, the alignment of the reels entitled her to a
prize of $1.85, and the casino paid it to her, fulfilling its side
of the contract.
....
In this case, Plaintiff seems to simultaneously argue
that the “bonus” shown on the game screen was both
directly related to the playing of the game, and completely
separate from it. On the one hand, during the hearing on
the current motion, Plaintiff asserted that the bonus shown
on the screen was not related to the alignment of the reels,
but rather to a “legacy bonus payout system.” Plaintiff
argued that such bonuses are marketing tools not subject to
IRGC regulation, analogous to such “bonuses” as free rooms
or meals for loyal patrons. As such, Plaintiff argued, the
bonuses exist outside the written rules of the game itself.
The Court finds this argument unconvincing.
Although the casino had enabled a “legacy bonus” feature on
the slot machine, Plaintiff had no reason to believe that by
playing the game she might be able to win any money
beyond that related to the rules of the game.
(Alteration in original.) (Citations omitted.) (Internal quotation
marks omitted.)
The court went on to grant summary judgment to the casino on
McKee’s equitable and promissory estoppel claims as well. It noted
“neither version of estoppel can be used to undo the terms of an express,
written contract.” It also concluded McKee’s promissory estoppel claim
failed because she did not provide evidence of either a clear and definite
promise or detrimental reliance. Additionally, the court rejected McKee’s
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consumer fraud claim, reasoning that she had not suffered an
“ascertainable loss of money or property” based on fraud. See Iowa Code
§ 714H.5(1). At most, McKee had not received a $41 million bonus she
claimed to be entitled to.
Subsequently, McKee filed a rule 1.904(2) motion asking the court
to enlarge or amend its findings and reconsider its grant of summary
judgment to the casino. McKee argued the court should not have
considered the IRGC’s letter determining the Miss Kitty game
malfunctioned. She maintained the letter was irrelevant since the IRGC
did not have jurisdiction to resolve disputes between casinos and
patrons. McKee also claimed the record evidence did not support the
court’s conclusion that there was an express contract between her and
the casino. She further urged that whether or not the machine had
“malfunctioned” was a question of fact that precluded summary
judgment. Likewise, McKee argued the evidence did not support a
finding of summary judgment with respect to the estoppel or consumer
fraud claims. Finally, McKee requested the court to consider several
depositions that had been taken after the summary judgment hearing
but before the court’s ruling.
The casino opposed McKee’s rule 1.904(2) motion, maintaining
that McKee should not be permitted to offer new evidence and that the
court’s initial ruling on summary judgment had been correct. On April
23, 2014, the court ruled on McKee’s rule 1.904(2) motion. It stated it
had reviewed all the new evidence, including McKee’s additional
depositions, and still concluded that no issues of material fact precluded
summary judgment in the casino’s favor.
McKee appealed on May 14, and we retained the case. The casino
moved to dismiss the appeal, claiming it was untimely. It stated that
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McKee’s rule 1.904(2) motion was filed for an improper purpose (to
introduce new evidence), and therefore did not toll the period in which to
file an appeal, resulting in an untimely notice of appeal. We ordered the
motion to dismiss submitted with the appeal.
II. Standard of Review.
We review grants of summary judgment for correction of errors at
law. Freeman v. Grain Processing Corp., 848 N.W.2d 58, 65 (Iowa 2014).
“Summary judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of
law.” Rosauer Corp. v. Sapp Dev., L.L.C., 856 N.W.2d 906, 908 (Iowa
2014). We view the record in the light most favorable to McKee because
she is the nonmoving party. See Shelby Cnty. Cookers, L.L.C. v. Util.
Consultants Int’l, Inc., 857 N.W.2d 186, 189 (Iowa 2014).
While actions brought under the Consumer Fraud Act are normally
tried in equity and reviewed de novo, when they are resolved on a motion
for summary judgment, our review is for the correction of errors at law.
State ex rel. Miller v. Cutty’s Des Moines Camping Club, Inc., 694 N.W.2d
518, 524 (Iowa 2005).
III. Timeliness of the Appeal.
We first address the casino’s motion to dismiss McKee’s appeal as
untimely. Our court rules provide that a party must file a notice of
appeal from a final order of the district court within thirty days. Iowa R.
App. P. 6.101(1)(b). When an appeal is not filed within the limitations
period, we do not have subject matter jurisdiction over the appeal. Baur
v. Baur Farms, Inc., 832 N.W.2d 663, 668 (Iowa 2013). However, if a
party files a timely and procedurally proper motion under Iowa Rule of
Civil Procedure 1.904(2), this extends the deadline for filing the notice of
appeal to thirty days after the ruling on the motion. See Iowa R. App. P.
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6.101(1)(b). The casino contends that because McKee’s rule 1.904(2)
motion was filed for an improper reason, it failed to toll the filing period
for her appeal, and her subsequent notice of appeal was rendered
untimely. See In re Marriage of Okland, 699 N.W.2d 260, 266–67 (Iowa
2005) (“[A]n untimely or improper rule 1.904(2) motion cannot extend the
time for appeal.” (Footnote omitted.)).
Generally speaking, a party cannot use a rule 1.904(2) motion to
introduce new evidence. See In re Marriage of Bolick, 539 N.W.2d 357,
361 (Iowa 1995) (“Motions under rule [1.904(2)’s predecessor] are
permitted so that courts may enlarge or modify findings based on
evidence already in the record. They are not vehicles for parties to retry
issues based on new facts.”). However, that was not the only basis for
McKee’s motion. For example, McKee’s motion also challenged the
district court’s repeated references to a “malfunction” in its summary
judgment ruling, emphasizing that on the record as it existed before that
ruling, whether the Miss Kitty machine had malfunctioned was a
disputed issue of material fact. Furthermore, McKee noted the casino
had not requested summary judgment on the basis of an undisputed
malfunction. The district court in fact modified this aspect of its original
ruling when it acted on McKee’s motion.
In Tenney v. Atlantic Associates, we determined the plaintiff’s
motion was adequate to toll the appellate filing period, despite the fact
the plaintiff had requested the court to consider new evidence, because
the motion also had a proper purpose. See 594 N.W.2d 11, 14 (Iowa
1999). We noted:
It is true the postjudgment motion relied on evidence that
had not been included in the original resistance, but it also
relied on evidence that had been included in the
resistance. . . . The plaintiff’s motion asked the court to
13
modify the judgment in light of this [existing] evidence and
was a proper motion . . . .
Id. For similar reasons, we conclude McKee’s appeal was timely and the
casino’s motion to dismiss should be denied.
IV. Merits of the Summary Judgment Ruling.
Having determined the appeal was timely, we turn now to the
merits. McKee contends the court committed legal error in granting
summary judgment on the three counts of her petition: breach of
contract, estoppel, and consumer fraud. We will address each in turn.
A. Breach of Contract. McKee claims summary judgment was
inappropriate on her contract claim because the court incorrectly
concluded there was an express contract. She urges us instead to find
that only an implied contract existed and it should be for the factfinder
to determine its terms. She further claims that any contract between the
two parties was ambiguous, thereby generating another fact question for
the jury.
Gambling contracts are governed by traditional contract principles.
See Blackford v. Prairie Meadows Racetrack & Casino, Inc., 778 N.W.2d
184, 189 (Iowa 2010). A contract can be either express or implied.
Rucker v. Taylor, 828 N.W.2d 595, 601 (Iowa 2013). We have recently
explained the difference between express and implied contracts:
When the parties manifest their agreement by words the
contract is said to be express. When it is manifested by
conduct it is said to be implied in fact. Both are true
contracts formed by a mutual manifestation of assent by the
parties to the same terms of the contract. The differentiation
arises from the method of proving the existence thereof.
Id. (internal quotation marks omitted). “[T]he law will not imply a
contract where there is an express contract.” Scott v. Grinnell Mut. Reins.
Co., 653 N.W.2d 556, 562 (Iowa 2002) (alteration in original) (internal
14
quotation marks omitted); see also 1 Richard A. Lord, Williston on
Contracts § 1:5, at 40 (4th ed. 2007) (“The law may recognize an implied
contract in the absence of an express contract on the same subject
matter, but not where there is an express contract . . . .”).
We agree with the district court that the Miss Kitty rules of the
game are the relevant contract here and that they form an express
contract. “It is hornbook law that the rules of a contest constitute a
contract offer and that the participant’s [entry into] the contest
constitute[s] an acceptance of that offer, including all of its terms and
conditions.” Sargent v. N.Y. Daily News, L.P., 840 N.Y.S.2d 101, 103
(App. Div. 2007) (first alteration in original) (internal quotation marks
omitted); see also Anthony Cabot & Robert Hannum, Advantage Play and
Commercial Casinos, 74 Miss. L.J. 681, 682–83 (2005) (“Casino-style
gambling involves a contract, which is simply a promise, or set of
promises, between the casino and the player.” (Footnote omitted.)).
Further, it is undisputed the rules of the Miss Kitty game did not
provide for any kind of bonus. Hence, in our view, McKee had no
contractual right to a bonus. Any message appearing on the screen
indicating the patron would receive a $41 million bonus was a gratuitous
promise and the casino’s failure to pay it could not be challenged as a
breach of contract. See Margeson v. Artis, 776 N.W.2d 652, 655 (Iowa
2009) (“[C]ontract law exists to enforce mutual bargains, not gratuitous
promises.”). Consider the other side of the coin: Suppose the symbols
had aligned so that McKee was entitled to a payout under the rules of the
game, but the machine did not inform her of a payout. Would the casino
have been obligated to compensate her despite the absence of a
notification that she had won? We think so.
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Nor is it relevant that McKee failed to read the rules of the game
before playing it. It is sufficient that those rules were readily accessible
to her and she had an opportunity to read them. See Huber v. Hovey,
501 N.W.2d 53, 55 (Iowa 1993) (“[F]ailure to read a contract before
signing it will not invalidate the contract. Absent fraud or mistake,
ignorance of a written contract’s contents will not negate its effect.”
(Citation omitted.)).
Courts in other jurisdictions, when confronted with bonus payout
claims against casinos, have regularly applied the foregoing standard
contract principles. In Eash v. Imperial Palace of Mississippi, LLC, the
Mississippi Supreme Court held a patron was limited to the $8000
payout listed in the game’s rules rather than the $1,000,000 bonus that
had appeared on the game screen. 4 So. 3d 1042, 1048 (Miss. 2009).
Eash was playing a slot machine at the casino when a message scrolled
across the screen reflecting a 200,000 credit “Jackpot” totaling
$1,000,000. Id. at 1043. The rules of the game as displayed on the
machine, however, indicated the maximum available award was only
$8000. Id. at 1043–44. The court concluded that the display of a higher
jackpot amount than was available under the posted rules did not create
an ambiguity in the gambling contract:
The fact that the electronic displays erroneously stated that
Eash won $1,000,000 after she hit the winning combination
does not create an ambiguity . . . . Though it unfortunately
caused some confusion, there was no indication from
anything on the machine before Eash began playing that
indicated that a patron could win anything more than
$8,000 with three double diamonds lined up on the pay line.
In other words, there was no question, ex ante, as to what a
winning combination was or what the corresponding award
would be on the machine in this case.
Id. at 1047.
 16
In Pickle v. IGT, the same court turned down a slot machine
player’s claim under similar circumstances. 830 So. 2d 1214, 1223
(Miss. 2002). There the machine displayed three symbols that, per the
rules of the game, were not a winning combination. Id. at 1215.
However, the machine simultaneously indicated the patron had won a
jackpot, and the machine’s bells and whistles went off. Id. at 1215–16.
An investigation revealed that the displayed symbols correctly depicted
the outcome of the game (i.e., not a winner) rather than the jackpot
notification sounds. Id. at 1218. The Mississippi Supreme Court upheld
the investigator’s conclusion that “the symbols displayed by the
machines correctly depicted the outcome of the game” and the patron
was not entitled to the jackpot money despite the noises indicating a win.
Id. at 1218, 1222 (internal quotation marks omitted).
In another case, the Alabama Supreme Court overturned a
multimillion dollar award in favor of a casino patron, finding that
genuine issues of material fact necessitated a trial. Macon Cnty.
Greyhound Park, Inc. v. Knowles, 39 So. 3d 100, 112–13 (Ala. 2009). The
patron, Knowles, had been playing an electronic bingo machine at the
casino when she hit a “snake eyes” combination, which was worth only
two credits according to the game’s paytable. Id. at 105–06, 112.
Nevertheless, the machine’s lights went off and the credits on the
machine began to accumulate up to an amount worth at least
$10,000,000. Id. at 106. Knowles contended, in part, that the rules
should not govern the disputed payout because they were not visible on
the face of the machine, but rather were only viewable if she pushed a
button to read them—an action she did not do. Id. at 110. The court
found it immaterial that Knowles had not actually read the rules. Id. at
111–12. It further determined that summary judgment for Knowles was
17
improper because the casino’s evidence indicated the snake eyes display
was worth only two credits. Id. at 112.
To the same effect is Miller v. Sodak Gaming, Inc., 93 F. App’x 847,
848 (6th Cir. 2004). There, despite a patron’s claim she had won a $1.5
million jackpot based on lights and music coming from the slot machine
she was using, the court held she was not entitled to an award because
there was “no genuine issue of material fact that Miller was not a jackpot
winner under the rules of the game.” Id. at 848–49. These authorities
support the grant of summary judgment in this case.
In contrast, the Louisiana Court of Appeals directed a casino to
pay bonuses of $65,581.00 and $32,790.50 respectively to two patrons
even though the bonuses were allegedly more than the maximum payout
the machine had been programmed to award. Ledoux v. Grand Casino–
Coushatta, 954 So. 2d 902, 904, 909 (La. Ct. App. 2007). In that case,
two plaintiffs on separate occasions had played the same slot machine
game. Id. at 908. Both times, the monitor displayed a combination of
three “7s” and indicated the patrons had won a “Bonus Spin.” Id. When
the patrons played the bonus round, the monitor on the machine
indicated they had won the large jackpots in question. Id. In both
instances, although employees of the casino initially congratulated the
patrons, the casino later refused to pay the bonuses because they were a
higher amount than the machine was supposedly programmed to award
for a display of three “7s.” Id. at 908–09.
Ledoux is distinguishable from the present case. There, the casino
did not dispute that the rules of the game included a bonus wheel and
that the patrons had qualified for a bonus; moreover, there was no
indication in those rules that the amount of any given bonus was limited.
See id. at 909–10. This contrasts with the present case, where McKee
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seeks an award of a random bonus not available under the rules of the
game.
Additionally, in Ledoux, after rejecting the casino’s rules-of-the-
game defense, the court then turned to the issue of whether there had
been a machine malfunction, a second defense asserted by the casino.
Id. at 910. At that point, the court found the casino had not presented
sufficient evidence to show a malfunction had in fact occurred. Id. at
910–11. The court explained,
[W]here there was no apparent malfunction indication by the
slot machine itself, a casino may not rely on the argument
that the machine was not intended to register the particular
jackpot to deny payment. That is to say, there must [be]
objective proof of a malfunction.
Id. at 912. Here, the district court did not reach the question of
malfunction, and neither do we.
Another case where the patron prevailed because recovery was
available under the rules of the game is IGT v. Kelly, 778 So. 2d 773,
774–75 (Miss. 2001) (en banc). There the Mississippi Supreme Court
found a patron was entitled to a large bonus for a display of a royal flush
on a video poker game. See id. at 779. A sign on the machine stated
that a sequential royal flush in hearts would garner a large sum of
money. Id. at 774. In parentheses, the sign gave the example of a “10, J,
Q, K, A” in hearts. Id. at 775. Kelly played the machine and received an
A, K, Q, J, 10 of hearts. Id. at 774. The casino claimed that only an
ascending royal flush—rather than a descending one like Kelly had
received—was sufficient to win the prize. Id. The gaming commission, in
a finding upheld by the Mississippi Supreme Court, determined the
patron should prevail because the sign did not specify that only
19
ascending royal flushes would win or that the example on the sign was
only accurate if read from left to right. Id. at 774, 779.
Unlike in Kelly, in this case, the rules made no mention of the
possibility of bonuses or jackpots beyond the actual winnings based on
different reel combinations. In short, “there was no question, ex ante, as
to what a winning combination was or what the corresponding award
would be on the machine.” Eash, 4 So. 3d at 1047. The parties’ express
contract did not include the possibility of winning a bonus, but was
rather limited to the display of different reel combinations and their
corresponding credit values. Therefore, we conclude McKee should be
limited to recovering the 185 credits worth $1.85 that the parties agree
the displayed reels amounted to, rather than the additional
$41,797,550.16 that did not correspond to the displayed reels or the
paytable.
McKee counters with several arguments. We will discuss each of
them, but we do not believe any of them is sufficient to create a genuine
issue of fact that would preclude summary judgment. First, McKee
argues that her agreement was not an express contract dictated by the
rules of the game, but simply an implied one that she would get whatever
the machine said she would get. McKee cites no authority for this
theory, and as noted above, it is contrary to precedent and general
contract principles.
Alternatively, McKee insists the “legacy bonus” is separate and
apart from the Miss Kitty game, and that she had both an express
agreement (the game) and an implied agreement (the bonus) with the
casino. However, even assuming McKee could have had both an express
agreement and an implied agreement with the casino at the same time,
cf. Scott, 653 N.W.2d at 562, she fails to explain the derivation of the
20
latter agreement. McKee had no understanding—implied or otherwise—
that she might be eligible for legacy bonuses if she played at the casino,
and she points to nothing that could have created an expectation in any
patron that he or she might receive such a bonus. At most, the casino,
through the machine, made a statement that McKee was going to receive
a bonus, which it was entitled to withdraw so long as that statement was
not part of a binding contract.
McKee also maintains there is a fact issue whether the machine
malfunctioned or not. Therefore, McKee continues, a trial needs to occur
on whether the casino can avoid liability based upon the sign on the
machine and the statement in the game rules that “MALFUNCTION
VOIDS ALL PAYS AND PLAYS.” However, we agree with the district
court’s rule 1.904(2) ruling that the existence or not of a mechanical
malfunction is beside the point. It is only necessary to reach the
malfunction defense if McKee otherwise could receive an award under
the terms of the contract. Hypothetically, if the casino declined to pay an
award that was otherwise payable based on the alignment of the
symbols, the casino would then have to establish that the slot machine
had a technical malfunction in order to avoid paying the award. See,
e.g., Sengel v. IGT, 2 P.3d 258, 262–63 (Nev. 2000) (upholding the gaming
control board’s denial of a jackpot to the plaintiff after a slot machine’s
reels stopped in a jackpot alignment due to a malfunction). However,
when the machine, as here, generates an award that is not within the
rules of the game, isolating the cause of what happened is not necessary.
It is sufficient for present purposes that the award was erroneous in the
sense that it was not a part of the game.
Along related lines, McKee maintains that the casino has failed to
establish a mistake as a matter of law. Mistake, however, is a defense to
21
be raised when a party wants to avoid the effect of the actual contract
terms. See Soults Farms, Inc. v. Schafer, 797 N.W.2d 92, 108–09 (Iowa
2011) (“Where there has been a mistake, whether mutual or unilateral, in
the expression of the contract, reformation is the proper remedy.”). The
casino does not need to rely on a mistake defense because it is following
the contract terms, not seeking to avoid them.
On point is a decision of the Michigan Court of Appeals. See
Coleman v. State, 258 N.W.2d 84, 87 (Mich. Ct. App. 1977). In Coleman,
the plaintiff was erroneously announced as the winner of a $200,000
lottery prize. Id. at 86. Although the district court had found for the
plaintiff, the court of appeals reversed and rejected the plaintiff’s claim as
a matter of law. Id. at 87. The appellate court reasoned,
A lottery winner’s entitlement to a prize is governed by
the principles of contract law. In the instant case the
bureau made a public offer that the purchaser of a lottery
ticket would have a chance of winning a prize according to
the advertised rules and procedures of the lottery. In
purchasing her ticket Mrs. Coleman accepted that offer and
agreed to the announced rules for determining prize winners.
Id. at 86 (citations omitted). The court further commented,
In granting judgment for Mrs. Coleman, the lower
court relied upon general principles of contract law
pertaining to unilateral mistake and recision. The original
contract between Mrs. Coleman and the bureau, however,
was clear and unambiguous and there was no mistake as to
its terms. The body of contract law relating to unilateral
mistake and recision, therefore, is not applicable unless it
can be established that a new contract was created between
the bureau and Mrs. Coleman as a result of the erroneous
award. . . .
. . . In this case, the bureau did not impose additional
conditions but only enforced the previously announced rules
for the drawing.
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Id. at 86–87; see also Sargent, 840 N.Y.S.2d at 103–04 (finding the rules
of the game governed rather than an erroneous notification that the
plaintiff had won a prize).
McKee further criticizes the casino for failing to heed the slot
machine manufacturer’s warnings by continuing to use the Miss Kitty
machine without affirmatively disabling the legacy bonus capability.
However, this is a tort theory, rather than a contract one. From a
contract law perspective, what matters is whether some express or
implied agreement gave McKee a right to a bonus, not whether the casino
may have been negligent. 2
B. Estoppel. McKee claims the trial court erred in granting
summary judgment to the casino on her equitable and promissory
estoppel causes of action, as well as in failing to consider equitable
estoppel as a defense.
Equitable estoppel requires McKee to prove the following elements:
(1) The defendant has made a false representation or
has concealed material facts; (2) the plaintiff lacks
knowledge of the true facts; (3) the defendant intended
2As an additional defense, the casino argues that the $41,797,550.16 bonus was
invalid because it was far above the maximum award the IRGC had authorized for the
game. See Iowa Code § 537A.4 (stating gambling contracts are void except for those
authorized by statute, including under chapter 99F); id. § 99F.4 (conferring regulatory
and supervisory jurisdiction over all gambling contracts to the IRGC); Iowa Admin. Code
r. 491—11.4(3) (requiring submission of game rules to the IRGC in advance); id. r.
491—11.4(5) (stating all gambling games are required to “operate and play in
accordance with the representation made to the [Iowa Racing and Gaming C]ommission
and the public at all times”).
In Blackford, we stated, “The freedom to contract [for gambling under chapter
99F] is not, however, unlimited. When a contract addresses an area of law regulated by
a statute, the statutory provisions and restrictions are a part of the parties’ contract.”
778 N.W.2d at 189. Here, the IRGC confirmed after the fact that the maximum award
for the game, including any potential bonus, was $10,000. However, because we
uphold the district court’s summary judgment based on traditional contract principles,
we need not reach the casino’s additional argument that a $41 million bonus would
have been illegal under regulatory provisions incorporated into the parties’ contract.
23
the plaintiff to act upon such representations; and (4) the
plaintiff did in fact rely upon such representations to his
prejudice.
Sioux Pharm, Inc. v. Summit Nutritionals Int’l, Inc., 859 N.W.2d 182, 191
(Iowa 2015) (internal quotation marks omitted).
The doctrine of equitable estoppel is a common law
doctrine preventing one party who has made certain
representations from taking unfair advantage of another
when the party making the representations changes its
position to the prejudice of the party who relied upon the
representations.
ABC Disposal Sys., Inc. v. Dep’t of Natural Res., 681 N.W.2d 596, 606
(Iowa 2004).
Here, there is no evidence the casino made a representation on
which McKee relied to her prejudice. See Sioux Pharm, Inc., 859 N.W.2d
at 191 (“Because Sioux Pharm did not rely on Summit’s website
statement, it cannot prove equitable estoppel . . . .”). Until the “Bonus
Award” message appeared on the screen, McKee had received no
information about a bonus and therefore could not have played the game
in reliance on the possibility of a bonus. Nor is there evidence that
McKee prejudicially relied on the machine’s display of a $41 million
“Bonus Award” to pursue any subsequent course of action.
McKee’s claim of promissory estoppel fails for similar reasons.
“The theory of promissory estoppel allows individuals to be held liable for
their promises despite an absence of the consideration typically found in
a contract.” Schoff v. Combine Ins. Co. of Am., 604 N.W.2d 43, 48 (Iowa
1999). Promissory estoppel requires a party to prove “(1) a clear and
definite oral agreement; (2) proof that plaintiff acted to his detriment in
reliance thereon; and (3) a finding that the equities entitle the plaintiff to
this relief.” Id. (internal quotation marks omitted). Again, McKee has no
evidence of detrimental reliance. See, e.g., Merrifield v. Troutner, 269
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N.W.2d 136, 138 (Iowa 1978) (“Edgar cannot rely on promissory estoppel
because he has not shown he relied to his detriment upon any promise
made by Claudia.”).
In Miller, the Sixth Circuit rejected the casino patron’s promissory
estoppel claim under comparable circumstances. See 93 F. App’x at 851.
The patron in Miller had played a slot machine that did not register a
winning series of symbols. Id. at 849. Miller claimed, however, that the
lights and sounds of the machine indicated a jackpot win. Id. The court
determined the casino should not be estopped from denying payment to
Miller. The court reasoned, “There is no evidence, however, that [the
defendant gaming machine operator] made a promise to pay a primary
progressive jackpot when a player did not win pursuant to the clearly
posted rules of the game.” Id. at 851.
Likewise, in this case, the rules and paytable of the Miss Kitty
game listed all the winning combinations of reels and did not include the
possibility of additional bonus wins. The only possible representation of
a bonus, i.e., the “Bonus Award” message, did not induce detrimental
reliance on McKee’s part. The district court therefore properly granted
summary judgment to the casino on McKee’s estoppel claims.
C. Consumer Fraud. Chapter 714H is the Private Right of Action
for Consumer Frauds Act. See Iowa Code § 714H.1. It prohibits certain
unfair and fraudulent acts:
A person shall not engage in a practice or act the person
knows or reasonably should know is an unfair practice,
deception, fraud, false pretense, or false promise, or the
misrepresentation, concealment, suppression, or omission of
a material fact, with the intent that others rely upon the
unfair practice, deception, fraud, false pretense, false
promise, misrepresentation, concealment, suppression, or
omission in connection with the advertisement, sale, or lease
of consumer merchandise . . . .
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Id. § 714H.3(1). The act establishes a private right of action: “A
consumer who suffers an ascertainable loss of money or property as the
result of a prohibited practice or act . . . may bring an action at law to
recover actual damages.” Id. § 714H.5(1).
We agree with the district court that McKee cannot show “an
ascertainable loss of money or property.” See id. McKee’s consumer
fraud claim rises or falls with her breach of contract claim. If McKee had
no contractual right to the bonus, and we have already determined she
did not, then she could not have suffered an ascertainable loss of money
or property when she was denied that bonus. This is analogous to the
situation in Blackford, where we held the plaintiff’s lack of a contractual
right to a jackpot foreclosed his conversion claim. See 778 N.W.2d at
190. In addition, McKee made money on her gambling that evening, so
she had no out-of-pocket loss.
McKee cites a decision of the Missouri Court of Appeals that
reversed the dismissal of a casino patron’s consumer fraud claim. See
Raster v. Ameristar Casinos, Inc., 280 S.W.3d 120, 131 (Mo. Ct. App.
2009). In Raster, the casino made changes to its compensation program,
which was like a frequent-flyer program and rewarded customers based
on their overall gaming volume. See id. at 123. These changes included
restructuring the point-award formulas so it was more difficult to earn
certain awards or achieve elite status. Id. at 123–24. The casino sent a
letter to its program members, including the plaintiffs, indicating that
“[n]othing really has changed” despite the new formulas and policies. Id.
at 124 (internal quotation marks omitted). The plaintiffs thought
otherwise and brought claims under that state’s consumer fraud act
which, much like Iowa’s, required the plaintiffs to have suffered an
“ascertainable loss” due to an unfair act “in connection with the sale or
26
advertisement of any merchandise.” Id. at 128 (internal quotation marks
omitted). The appellate court concluded that the claims should go
forward. Id. at 131.
We find Raster distinguishable. This is not a situation as in Raster
where the casino changed the rules of the game after the plaintiffs had
spent money and accumulated points, which were now devalued by the
casino’s rule changes. See id. at 123–24. Rather, in this case, the rules
of the game did not provide for the bonus in question and McKee
therefore did not suffer an “ascertainable loss” when the casino refused
to pay it. See Iowa Code § 714H.5(1).
V. Conclusion.
For the foregoing reasons, we affirm the district court’s grant of
summary judgment.
AFFIRMED.