Proctor v. Whitlark & Whitlark

THE STATE OF SOUTH CAROLINA
In The Supreme Court
Lauren Proctor and Trans-Union National Title Insurance
Company, f/k/a Atlantic Title Insurance Company,
Respondents,
v.
Whitlark & Whitlark, Inc., d/b/a Rockaways Athletic
Club and Pizza Man, Forrest Whitlark, Paul Whitlark,
Charlie E. Bishop, and Brett Blanks, Defendants,
of whom Whitlark & Whitlark, Inc., d/b/a Rockaways
Athletic Club and Pizza Man, Forrest Whitlark and Paul
Whitlark are Petitioners.
Appellate Case No. 2013-002470
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Richland County
Alison Renee Lee, Circuit Court Judge
Opinion No. 27580
Heard May 19, 2015 – Filed October 7, 2015
AFFIRMED IN PART AND REVERSED IN PART
Ariail Elizabeth King and James Mixon Griffin, both of
Lewis Babcock & Griffin, L.L.P., of Columbia, for
Petitioners.
Jessica Hanna Lerer and Joseph Preston Strom, Jr., both
of Columbia, and Mario Anthony Pacella, of Brunswick
GA, all of Strom Law Firm, L.L.C., for Respondent.
JUSTICE BEATTY: Lauren Proctor and Trans-Union National Title
Insurance Company ("Trans-Union") brought this action against Whitlark &
Whitlark, Inc., d/b/a Rockaways Athletic Club ("Rockaways") and Pizza Man,
Forrest Whitlark, Paul Whitlark, Charlie E. Bishop, and Brett Blanks (collectively
"Defendants") seeking to recover money Proctor lost while gambling on video
poker machines located at Rockaways and Pizza Man over the course of several
years, including a time period following the South Carolina Legislature's ban of
video poker in 2000. The circuit court granted Proctor's motion for partial
summary judgment on her claim under the South Carolina Unfair Trade Practices
Act ("UTPA") as to the liability of Defendants. In so ruling, the court found the
Legislature had abrogated the doctrine of in pari delicto1 with regard to losses
sustained by illegal gambling for public policy reasons. The Court of Appeals
affirmed. Proctor v. Whitlark & Whitlark, Inc., 406 S.C. 225, 750 S.E.2d 93 (Ct.
App. 2013). This Court granted Petitioners' request for a writ of certiorari to
review the decision of the Court of Appeals.
We find our Legislature has enacted specific gambling loss statutes as the
exclusive remedy for a gambler seeking recovery of losses sustained by illegal
gambling. Accordingly, we now overrule our decisions that have implicitly
authorized recovery beyond these statutes. As a result, we hold that one engaged
in illegal gambling cannot recover under UTPA. However, based on the distinct
facts of this case, we find that Proctor may pursue the portion of her UTPA claim
for the losses she alleged that she sustained between 1999 and July 1, 2000, the day
on which the ban on video poker became effective.
I. Factual / Procedural History
Beginning in 1995, Proctor started gambling on video gaming machines at
various restaurants and bars in Columbia, South Carolina. From 1999 to 2005,
Proctor frequently gambled on video poker machines located in Rockaways and
1
"The doctrine of in pari delicto is the principle that a plaintiff who has
participated in wrongdoing may not recover damages resulting from the
wrongdoing." Myatt v. RHBT Fin. Corp., 370 S.C. 391, 395, 635 S.E.2d 545, 547
(Ct. App. 2006) (internal quotation marks and alterations omitted).
Pizza Man, which are operated by Whitlark & Whitlark, Inc. ("Whitlark"). Forest
Whitlark and Paul Whitlark are part owners of Whitlark. At the time, Charlie E.
Bishop and Brett Blanks co-owned a limited liability company named Zodiac
Distributing, LLC, which placed one coin-operated gaming machine at the Pizza
Man restaurant.
According to Proctor, she lost between $1,000 and $5,000 per week while
gambling at the restaurants. Proctor claimed the two restaurants provided her cash
advances on her credit cards to enable her to fund her gambling, as well as free
food, alcohol, and cocaine.2
Proctor also funded her gambling with money illegally obtained from her
employer State Title, which her mother owned. State Title provided real estate
closing services to attorney Walter Smith. During the time period at issue, Proctor
forged her mother's name on checks and stole money from Smith's trust account in
order to play the video poker machines. As a result of Proctor's actions, Smith's
trust account contained insufficient funds to satisfy the mortgages on several
properties at closing. In turn, Trans-Union3 paid approximately $550,000 in claims
stemming from the shortages in Smith's trust account.
Effective July 1, 2000, the Legislature banned the operation of video poker
machines in South Carolina.4 Proctor continued to gamble despite being aware
that her use of the video poker machines was illegal. Pizza Man and Rockaways
continued to operate video poker machines in their establishments until a Federal
Bureau of Investigation sting operation, in which Proctor assisted, occurred in
2005.
On September 10, 2007, Proctor entered into a plea agreement with federal
prosecutors and pled guilty to mail fraud pursuant to 18 U.S.C. § 1341. As part of
the agreement, Proctor was required to pay restitution in the amount of
$565,475.25 to Trans-Union and $195,000 to Smith.
2
Proctor offered evidence that she paid in excess of $500,000 in gambling debt to
the restaurants, which she documented with copies of checks paid to the restaurants
in the amount of $387,623.65, credit card transactions in the amount $28,057.69,
and debit card withdrawals in the amount of $91,598.47.
3
At the time, Trans-Union was named Atlantic Title Insurance Company.
4
Act No. 125, 1999 S.C. Acts 1319.
Proctor and Trans-Union brought this action against Defendants to recover
the losses they incurred as a result of Proctor's gambling.5 The Complaint alleged,
inter alia, that Defendants violated section 32-1-106 of the South Carolina Code
and the legislative prohibition against operating video gaming machines. As a
result, Proctor and Trans-Union asserted claims for unjust enrichment, civil
conspiracy, violations of UTPA7, and negligence.
5
Trans-Union filed a separate action against Proctor. Ultimately, Proctor entered
a Confession of Judgment in favor of Trans-Union in the amount of $461,495.32.
6
Section 32-1-10 provides:
Any person who shall at any time or sitting, by playing at cards, dice
table or any other game whatsoever or by betting on the sides or hands
of such as do play at any of the games aforesaid, lose to any person or
persons so playing or betting, in the whole, the sum or value of fifty
dollars and shall pay or deliver such sum or value or any part thereof
shall be at liberty, within three months then next ensuing, to sue for
and recover the money or goods so lost and paid or delivered or any
part thereof from the respective winner or winners thereof, with costs
of suit, by action to be prosecuted in any court of competent
jurisdiction.
S.C. Code Ann. § 32-1-10 (2007) (emphasis added).
7
Section 39-5-140 of UTPA provides in pertinent part:
Any person who suffers any ascertainable loss of money or property,
real or personal, as a result of the use or employment by another
person of an unfair or deceptive method, act or practice declared
unlawful by § 39-5-20 may bring an action individually, but not in a
representative capacity, to recover actual damages. If the court finds
that the use or employment of the unfair or deceptive method, act or
practice was a willful or knowing violation of § 39-5-20, the court
shall award three times the actual damages sustained and may provide
such other relief as it deems necessary or proper. Upon the finding by
the court of a violation of this article, the court shall award to the
person bringing such action under this section reasonable attorney's
fees and costs.
Defendants filed motions for summary judgment, alleging that (1) Proctor's
claims were barred by the doctrine of in pari delicto, (2) Proctor was precluded
from recovering her claim for unjust enrichment based on the equitable doctrine of
"unclean hands," and (3) Trans-Union lacked standing. In response, Proctor and
Trans-Union filed a cross-motion for partial summary judgment as to the liability
of Defendants.
Following a hearing, the circuit court granted Proctor's motion for partial
summary judgment.8 In so ruling, the court found the doctrine of in pari delicto
had been abrogated with regard to gambling losses. Specifically, the court found
that "the South Carolina legislature abrogated this doctrine in passing a number of
statutes, including S.C. Code Ann. §§ 32-1-10, 32-1-20,9 and the South Carolina
Unfair Trade Practices Act." Further, the court relied on this Court's decision in
Johnson v. Collins Entertainment Company, 349 S.C. 613, 564 S.E.2d 653 (2002)
for the proposition that:
S.C. Code Ann. § 39-5-140(a) (1985) (emphasis added); see id. § 39-5-20(a)
("Unfair methods of competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce are hereby declared unlawful.").
8
As threshold matters, the court found that Proctor had standing and timely filed
the lawsuit against Charlie Bishop and Brett Blanks within the three-year statute of
limitations. The court ruled, however, that Trans-Union lacked standing to assert
any claims against Defendants.
9
Section 32-1-20 states:
In case any person who shall lose such money or other thing as
aforesaid shall not, within the time aforesaid, really and bona fide and
without covin or collusion sue and with effect prosecute for the
money or other things so by him or them lost and paid and delivered
as aforesaid, it shall be lawful for any other person, by any such
action or suit as aforesaid, to sue for and recover the same and treble
the value thereof, with costs of suit, against such winner or winners as
aforesaid, the one moiety thereof to the use of the person that will sue
for the same and the other moiety to the use of the county in which the
offense shall have been committed.
S.C. Code Ann. § 32-1-20 (2007) (emphasis added).
Sections 32-1-10 and 32-1-20 do not have preclusive effect regarding
remedies afforded under the South Carolina Unfair Trade Practices
Act because S.C. Code Ann. § 39-5-160 provides that powers and
remedies under this section are cumulative and supplementary to all
powers and remedies provided by existing law.
Additionally, the court granted Defendants' motion for summary judgment on
Proctor's unjust enrichment claim based on their unclean hands defense.
After the court denied their motion for reconsideration, Defendants appealed
to the Court of Appeals. The Court of Appeals affirmed. Proctor v. Whitlark &
Whitlark, Inc., 406 S.C. 225, 750 S.E.2d 93 (Ct. App. 2013). Like the circuit court,
the Court of Appeals relied on this Court's decision in Johnson and held that
sections 32-1-10 and 32-1-20 of the South Carolina Code, which authorize
gamblers and affected third parties to recover gambling losses in certain limited
circumstances, were viable despite the existence of the in pari delicto doctrine. Id.
at 230, 750 S.E.2d at 95. Further, the court ruled that the gambling loss statutes
were not the exclusive remedy and, therefore, Proctor could seek to recover her
losses under other applicable laws, including UTPA. Id. at 231, 750 S.E.2d at 96.
Although the Court of Appeals acknowledged that the facts in Johnson were
distinguishable from those in Proctor's case, since video poker was generally legal
at the time of the Johnson case, it found three tenants recognized by this Court in
Johnson were instructive and lead to the same conclusion as the circuit court that
an in pari delicto defense did not bar Proctor's claims. Id. at 230, 750 S.E.2d at 95.
The Court of Appeals stated:
First, statutory and case law in South Carolina support the policy of
allowing plaintiffs to recover gambling losses as a way of both
discouraging illegal gambling and of protecting gamblers and their
family members from imprudent gambling activities. See Johnson,
349 S.C. at 635, 564 S.E.2d at 664–65 (noting that sections 32–1–10
and –20 promote a policy of limiting excessive and/or unlawful
gambling); S.C. Code Ann. §§ 32–1–10, –20. Second, the owners and
operators of video poker machines are not truly in pari delicto with
the persons who use the machines for gambling because in many
cases, a habitual gambler is acting under the sway of "uncontrollable
impulses" and, thus, requires protection from his or her bad judgment.
See Johnson, 349 S.C. at 635, 564 S.E.2d at 664–65. Finally, sections
32–1–10 and –20 are not the exclusive avenues for plaintiffs to
recover gambling losses and do not preclude plaintiffs from seeking
recovery under other state law theories, including SCUTPA. See
Johnson, 349 S.C. at 635, 564 S.E.2d at 665 (noting that sections 32–
1–10 & and –20 do not preclude plaintiffs from recovering gambling
losses under other remedies provided by law, including SCUTPA).
We find these tenets espoused by the supreme court in Johnson
support the circuit court's holding that the defense of in pari delicto
does not bar Proctor's claims.
Id. at 230-31, 750 S.E.2d at 95-96.
Following the denial of their petition for rehearing en banc, this Court
granted Petitioners' request for a writ of certiorari to review the decision of the
Court of Appeals.
II. Standard of Review
When reviewing the grant of a summary judgment motion, an appellate
court applies the same standard that governs the trial court under Rule 56(c),
SCRCP, which provides that summary judgment is proper when there is no
genuine issue as to any material fact and the moving party is entitled to judgment
as a matter of law. Rule 56(c), SCRCP; Fleming v. Rose, 350 S.C. 488, 493, 567
S.E.2d 857, 860 (2002). "Determining the proper interpretation of a statute is a
question of law, and this Court reviews questions of law de novo." Town of
Summerville v. City of N. Charleston, 378 S.C. 107, 110, 662 S.E.2d 40, 41 (2008).
III. Discussion
A. Arguments
Petitioners primarily contend the Court of Appeals erred in holding that the
doctrine of in pari delicto has been abrogated. In support of this contention,
Petitioners claim the Court of Appeals: (1) ignored the express limitations of
sections 32-1-10 and 32-1-20, which provide the exclusive remedy for losses
sustained by illegal gambling; (2) misinterpreted this Court's decision in Johnson
as that case was decided when video poker was legal unlike the current matter
where Proctor gambled while admittedly knowing her actions were illegal; and (3)
erred in relying on cases from other jurisdictions because any decision is controlled
by sections 32-1-10 and 32-1-20.
Based on these purported errors, Petitioners maintain that the Court of
Appeals created new law that allows a person, who voluntarily engages in an
illegal trade or activity, to recover under UTPA. By doing so, Petitioners aver that
the Court of Appeals' decision not only contradicts public policy of this state and
this Court's decisions, but also effectively eliminates any personal responsibility of
the gambler.
B. Analysis
a. Abrogation of the Doctrine of In Pari Delicto10
The doctrine of in pari delicto is grounded in the "general principle that a
person cannot base a cause of action upon an illegal or immoral act, transaction or
contract." 4 S.C. Jur. Action § 21 (1991 & Supp. 2015). "It has been succinctly
stated that no court will lend its aid to a man who founds his cause of action upon
an immoral or an illegal act." Id. (internal quotation marks and alterations
omitted). "The policy is reflected in the general rules providing that where parties
are in pari delicto, that is, equally in the wrong, no affirmative relief will be given
to one against the other and that no one shall be permitted to profit by his own
wrong." Id. (footnote omitted). "On the other hand, there may be an overriding
policy consideration that permits relief to be granted." Id.
1. Legislative Pronouncements
Despite the well-established doctrine of in pari delicto, the Legislature in
1712 received into law11 the precursors to sections 32-1-10 and 32-1-20 to permit
10
Petitioners cite to several cases from the 1800's for the proposition that the
doctrine of in pari delicto is still recognized as a viable defense to a lawsuit for the
recovery of gambling losses. See, e.g., Rice v. Gist, 32 S.C.L. (1 Strob.) 82, 85
(1846) (stating, "all wagers are unlawful, and not to be recovered in courts of
justice"). Petitioners are correct that the doctrine of in pari delicto is well-
established and still recognized by our appellate courts. See Myatt v. RHBT Fin.
Corp., 370 S.C. 391, 395, 635 S.E.2d 545, 547 (Ct. App. 2006) (recognizing
doctrine of in pari delicto). However, due to more recent statutory enactments and
case law, these early cases are of "doubtful utility." See 7 S.C. Jur. Gaming § 2
(1991 & Supp. 2015).
11
In 1712, the South Carolina Legislature adopted the English Statute of Anne,
which included the gambling loss recovery provisions. Berkebile v. Outen, 311
relief for one engaged in gambling based on "a policy which prevents a gambler
from allowing his vice to overcome his ability to pay." Justice v. The Pantry, 330
S.C. 37, 44, 496 S.E.2d 871, 875 (Ct. App. 1998), aff'd as modified, 335 S.C. 572,
518 S.E.2d 40 (1999). Thus, based on this overriding policy consideration, the
Legislature provided a means by which a gambler could "recover excessive
gambling losses" or by which another person could "recover the losses if the
gambler fails to do so." Id. at 44-45, 496 S.E.2d at 875.
Notably, these code sections were drafted in general terms and did not
qualify whether recovery was permitted for losses sustained by illegal gambling.
Consequently, as originally codified, the Legislature created a civil remedy akin to
a strict liability offense as it authorized "any person" or third party to recover for
gambling losses regardless of the legality of the game. By implication, the
Legislature abrogated the doctrine of in pari delicto as it authorized an at-fault
party to recover losses sustained by illegal gambling.
Sections 32-1-10 and 32-1-20 remained essentially unchanged until 2000.
Justice v. The Pantry, 335 S.C. 572, 577 n.2, 518 S.E.2d 40, 43 n.2 (1999)
("Sections 32-1-10 & -20 were originally adopted in 1712 and statutory language
has changed very little since then."). Effective July 1, 2000, the Legislature
promulgated Act No. 125 to ban video gambling. Act No. 125, 1999 S.C. Acts
1319. As part of this Act, the Legislature expressly amended sections 32-1-10 and
32-1-20. Act No. 125, 1999 S.C. Acts 1319, 1384. Significantly, the Legislature
enacted section 32-1-60, which states that "[b]eginning on the effective date of this
section, the provisions of Sections 32-1-10, 32-1-20, and 32-1-30 apply only to
those gambling activities not authorized by law." S.C. Code Ann. § 32-1-60
(2007) (emphasis added); see Joytime Distribs. & Amusement Co. v. State, 338
S.C. 634, 649, 528 S.E.2d 647, 655 (1999) (analyzing substantive parts of Act No.
125 and stating that "Part IV amends S.C. Code Ann. §§ 32-1-10 to -30, to allow
for recovery of gambling losses only where the gambling activity which resulted in
the loss is unlawful").
By enacting section 32-1-60, the Legislature purposefully retained sections
32-1-10 and 32-1-20 and limited their application to losses sustained by illegal
gambling. More specifically, because video poker is no longer authorized by law,
the Legislature clearly intended for gamblers or third parties to recover losses
sustained by illegal video poker gambling. As a result, section 32-1-60 constitutes
S.C. 50, 52-54, 426 S.E.2d 760, 762-63 (1993) (chronicling the history of the
gambling loss statutes).
definitive evidence that the Legislature abrogated the doctrine of in pari delicto in
the context of recovery for illegal gambling losses. See Hodges v. Rainey, 341
S.C. 79, 85, 533 S.E.2d 578, 581 (2000) ("What a legislature says in the text of a
statute is considered the best evidence of the legislative intent or will. Therefore,
the courts are bound to give effect to the expressed intent of the legislature."
(quoting Norman J. Singer, Sutherland Statutory Construction § 46.03, at 94 (5th
ed. 1992))). However, this conclusion does not end our analysis as we must also
determine whether the gambling loss statutes are the exclusive remedy.
2. Judicial Pronouncements
Although our decisions have effectuated the intent of the Legislature to
permit recovery for illegal gambling losses under sections 32-1-10 and 32-1-20,
this Court has expanded recovery beyond these statutes. We take this opportunity
to re-evaluate a line of decisions that implicitly permit one engaged in illegal
gambling to recover under UTPA. For reasons that will be discussed, we find
these decisions are contrary to the intent of our Legislature.
In a case pre-dating the ban on video gambling, this Court considered
"whether S.C. Code Ann. § 32-1-10 (1991), requires the playing of an illegal game
as a prerequisite to the recovery of a gambling loss." Berkebile v. Outen, 311 S.C.
50, 52, 426 S.E.2d 760, 761 (1993). In analyzing this question, the Court initially
noted that "[e]xcept for the changing of [the] monetary threshold, this statute has
remained unchanged since 1712, when it was adopted from English law by the
'reception statute' passed by the South Carolina colonial assembly." Id. at 52-53,
426 S.E.2d at 762. The Court rejected the argument that the statute requires the
gambling to be illegal, finding the statute does not specifically mention illegal
gambling as a prerequisite to recovery and not all gambling has been illegal during
the centuries the statute has been in effect. Id. at 53, 426 S.E.2d at 762. In
reaching this conclusion, the Court explained:
An illegal contract has always been unenforceable, so there is little
need for the statute to remain in effect if it is limited solely to illegal
gambling. . . . When the statute was originally adopted, the legality of
a game may not have been an issue; however, during the statute's
lengthy history, gambling in some form has not always been illegal. It
therefore stands to reason that it was not necessarily a futile gesture
by the legislature to maintain the status quo, especially when other
statutes, related to gambling on non-payout machines, were being
amended.
Id. at 53-54, 426 S.E.2d at 762 (footnote omitted and emphasis added).
Further, the Court recognized that section 32-1-10 applies regardless of the
legality of the game. Specifically, the Court stated:
In fact, Berkebile posits the more compelling argument, that the
statute has the effect of protecting a gambler, regardless of the legality
of the game, from abusing the vice and exceeding limits which bring
harm to the gambler and his or her family.
To discover further support for Berkebile's proposition, one need look
no further than the Statutes at Large which adopted the English
Statutes of Anne in 1712. The applicable act which has evolved into §
32-1-10 was originally titled, "An Act for the better Preventing of
excessive and deceitful Gaming."
Id. at 54, 426 S.E.2d at 762-63 (first emphasis added and footnote omitted). The
Court went on to state that, since the statute does not include an explicit
requirement that the gambling be illegal, it would not go beyond the plain and
ordinary meaning of the statute to find that an illegal game must exist as an
element of recovery under section 32-1-10. Id. at 55, 426 S.E.2d at 763.
Six years after Berkebile, at a time when video poker was still legal, this
Court considered a class action lawsuit brought by gamblers against owners and
operators of video poker machines, alleging causes of action pursuant to the
Racketeer Influenced and Corrupt Organizations Act ("RICO") and UTPA based
on the operators offering "special inducements" by advertising jackpots in excess
of the statutory $125 payout limit. Gentry v. Yonce, 337 S.C. 1, 522 S.E.2d 137
(1999). On appeal, the Court analyzed whether the circuit court erred in granting
the video poker operators' motion to dismiss both causes of action. Id. at 4-5, 522
S.E.2d at 138-39. Ultimately, the Court found the gamblers sufficiently pled their
causes of action. Id. at 14, 522 S.E.2d at 144. The Court concluded that "on the
basis of the complaint it cannot be stated appellants are not entitled to any relief
whatsoever." Id. Although the analysis was limited due to the procedural posture
of the appeal, the Court recognized that gamblers may present cognizable claims
under RICO and UTPA to recover for losses incurred during gambling. Id.
Three years later, this Court reaffirmed its holding in Gentry. Johnson v.
Collins Entm't Co., 349 S.C. 613, 564 S.E.2d 653 (2002). In Johnson, gamblers
brought suit in June 1997, a time in which video poker was legal but limited by
law, alleging that defendants operated video poker machines in a manner that
violated state law limiting the amount of payouts. Id. at 621, 564 S.E.2d at 657.
The gamblers asserted causes of action under RICO, the South Carolina UTPA,
and sections 32-1-10 and 32-1-20. Id.
One of the seven issues certified to this Court by the United States District
Court for the District of South Carolina was whether sections 32-1-10 and 32-1-20
provide the exclusive remedy for gambling losses and, thus, precludes recovery
under other state law theories. Id. at 634, 564 S.E.2d at 664. With respect to the
plaintiffs' claims under UTPA, the Court found sections 32-1-10 and 32-1-20 had
no preclusive effect. Id. at 635, 564 S.E.2d at 665. The Court stated:
There is nothing in sections 32-1-10 and 20 to indicate the legislature
intended to limit relief otherwise available. These statutes were
passed in 1712, and we cannot hold that they were intended to pre-
empt all future remedies for persons injured by unlawful gambling
activities.
Id. Additionally, the Court emphasized that section 39-5-160 of UTPA states,
"The powers and remedies provided by this article shall be cumulative and
supplementary to all powers and remedies otherwise provided by law." Id.
(quoting section 39-5-160 of UTPA). Further, the Court noted that its decision in
Gentry "clearly envision[ed] that both remedies would be available to the
plaintiffs." Id. The Court explained that "[n]othing in [Gentry] would indicate
sections 32-1-10 and 20 were the sole causes of action available to plaintiffs." Id.
The Court also rejected the operators' attempt to shift the blame to the
gamblers based on an in pari delicto defense. In a footnote, the Court stated:
The operators and machines at issue are licensed to operate in a
regulated area of the law. They should, therefore, be held to a greater
knowledge and understanding of the laws than their customers,
particularly where the laws are designed to protect the player from his
or her own bad judgment. In any case, what the law prohibits is the
making of the payouts in excess of the statutory cap. It does not
directly address the receipt of the funds. Thus, while this court is not
willing to suggest that the player who receives an excess payment is
without fault, the fault or culpability is certainly not "equal."
Id. at 638-39 n.13, 564 S.E.2d at 667 n.13 (third emphasis added).
Although Berkebile, Gentry, and Johnson were based on facts that occurred
when video gambling was legal, we affirm these decisions to the extent that their
holdings are consistent with the gambling loss statutes as currently codified.
Specifically, we find these decisions correctly suggested that sections 32-1-10 and
32-1-20 permit recovery for gambling losses sustained by illegal gambling.
However, we overrule Gentry and Johnson to the extent these decisions authorized
a gambler or third party to recover for illegal gambling losses under UTPA. We
now hold that the gambling loss statutes are the exclusive remedy. While we
recognize that our decision is a departure from the doctrine of stare decisis,12 we
find this conclusion is necessitated by the clear intent of the Legislature and for
public policy reasons.
We find determinative the disparity in the potential recovery for a claim
under section 32-1-10 versus UTPA.13 If a gambler prevails on a cause of action
under UTPA, he or she has the potential of profiting from his or her illegal activity.
Pursuant to section 39-5-140(a) of UTPA, a person who prevails is authorized to
recover actual damages, attorney's fees and costs, and potentially treble damages.
Yet, under section 32-1-10 a gambler is not entitled to recover treble damages.14
12
It is well-established that we need not blindly adhere to established precedent.
See McLeod v. Starnes, 396 S.C. 647, 654, 723 S.E.2d 198, 202 (2012) ("When the
court is asked to follow the line marked out by a single precedent case it is not at
liberty to place its decision on the rule of stare decisis alone, without regard to the
grounds on which the antecedent case was adjudicated. . . . An original case could
not possibly gain authority by a mere perfunctory following on the principle of
stare decisis." (quoting State v. Williams, 13 S.C. 546, 545-55 (1880))).
13
We also note the disparity in the respective statute of limitations. A cause of
action under section 32-1-10 must be filed within three months of the loss whereas
a cause of action under UTPA must be filed within three years after discovery of
the unlawful conduct. See S.C. Code Ann. § 39-5-150 (1985) ("No action may be
brought under this article more than three years after discovery of the unlawful
conduct which is the subject of the suit.").
14
Yet, we note that a third party may recover treble damages under section 32-1-
20 and the county in which the offense occurred is entitled to receive half of the
amount recovered.
Significantly, our appellate courts have expressly ruled that a gambler is
only entitled to net losses. See McCurry v. Keith, 325 S.C. 441, 444, 481 S.E.2d
166, 168 (Ct. App. 1997) (stating, in a case pre-dating the ban of video poker, "[t]o
allow a gambler to recover losses and pocket winnings would create a perverse
result contrary to legislative intent: Granting a windfall to a gambler would
neither punish excessive gaming nor protect a gambler and his family from the
gambler's irresistible impulses" (emphasis added)).
We believe that to permit a gambler to recover a windfall under UTPA when
the Legislature has specifically limited losses to actual damages under section 32-
1-10 would be in direct contravention of legislative intent. Cf. Capco of
Summerville, Inc. v. J.H. Gayle Constr. Co., 368 S.C. 137, 142, 628 S.E.2d 38, 41
(2006) ("Where there is one statute addressing an issue in general terms and
another statute dealing with the identical issue in a more specific and definite
manner, the more specific statute will be considered an exception to, or a qualifier
of, the general statute and given such effect."). We will not expand the scope of
recovery authorized by the Legislature.
Furthermore, if a gambler were permitted to recover under UTPA for losses
sustained by illegal gambling, such a decision would have significant
repercussions. Taken to its logical extreme, anyone engaged in an illegal activity
could allege an UTPA claim to recover losses sustained by the illegal activity. For
example, one who purchases illegal drugs could seek to recover against the drug
dealer pursuant to UTPA. We do not believe this was the intent of the Legislature.
Rather, by enacting section 32-1-60 in 2000, we conclude the Legislature
purposefully retained sections 32-1-10 and 32-1-20 to provide the exclusive
remedy for losses sustained by illegal gambling.
3. Application
Despite our holding, we must affirm a portion of the result reached by the
Court of Appeals. In granting Proctor's motion for partial summary judgment as to
the liability of Defendants, the circuit court found that "the operation of video
poker machine[s] in contravention of state law is an unfair act as defined in the
[UTPA]."15 Petitioners have not appealed this ruling. Thus, it is now the law of
15
"To recover in an action under the UTPA, the plaintiff must show: (1) the
defendant engaged in an unfair or deceptive act in the conduct of trade or
commerce; (2) the unfair or deceptive act affected [the] public interest; and (3) the
plaintiff suffered monetary or property loss as a result of the defendant's unfair or
the case. See Shirley's Iron Works, Inc. v. City of Union, 403 S.C. 560, 573, 743
S.E.2d 778, 785 (2013) ("An unappealed ruling is the law of the case and requires
affirmance."). Consequently, based on the distinct facts of this case, we are
constrained to find that Proctor has a viable claim under UTPA.
Nonetheless, Proctor is only entitled to seek recovery for those losses that
were allegedly sustained prior to July 1, 2000, the effective date of the ban on
video poker. In her pleadings, Proctor alleged that she sustained gambling losses
"[b]eginning in 1999, and continuing until June 2005." Because it was legal for
Proctor to engage in video poker prior to July 1, 2000, we find that she may pursue
her UTPA claim for gambling losses allegedly sustained between 1999 and July 1,
2000. We emphasize that this case was presented in the posture of a summary
judgment motion. Thus, Proctor still bears the burden of proving her alleged
damages.
IV. Conclusion
Based on the foregoing, the decision of the Court of Appeals is
AFFIRMED IN PART AND REVERSED IN PART.
KITTREDGE, J., and Acting Justices James E. Moore and Letitia H.
Verdin, concur. TOAL, C.J., concurring in part and dissenting in part in a
separate opinion.
deceptive act(s)." Wright v. Craft, 372 S.C. 1, 23, 640 S.E.2d 486, 498 (Ct. App.
2006). "An act is 'unfair' when it is offensive to public policy or when it is
immoral, unethical, or oppressive." Gentry v. Yonce, 337 S.C. 1, 12, 522 S.E.2d
137, 143 (1999). "An act is 'deceptive' when it has a tendency to deceive." Id.
CHIEF JUSTICE TOAL: I concur in part and respectfully dissent in part. I
concur with the majority in affirming the court of appeals' decision allowing
Proctor to pursue her UTPA claim for gambling losses she sustained between 1999
and July 1, 2000—a period of time in which video poker was legal in South
Carolina. I further concur with the majority's finding that the doctrine of in pari
delicto does not prevent recovery in this situation. Indeed, the operators of video
poker machines should "be held to a greater knowledge and understanding of the
laws than their customers," and while those who play the machines are not without
fault, "the fault or culpability is certainly not 'equal.'" Johnson v. Collins Entm't
Co., 349 S.C. 613, 639 n.13, 564 S.E.2d 653, 667 n.13 (2002). Nevertheless, I
write to emphasize that the General Assembly has not altogether abolished the
doctrine of in pari delictio, but instead, has indicated an intention to depart from
the doctrine with respect to illegal gambling losses.16
Unlike the majority, however, I would hold that Proctor may pursue her
UTPA claim for losses sustained after July 1, 2000, because I find the majority's
decision prohibiting Proctor's UTPA claim for losses sustained while video poker
was illegal to be a departure from our precedent, as well as South Carolina's anti-
gambling public policy. Therefore, I dissent from the majority's reversal of the
court of appeals' decision upholding the circuit court's order granting Proctor's
motion for summary judgment on her UTPA claim.
As the majority acknowledges, this Court's opinions in Johnson and Gentry
v. Yonce, 337 S.C. 1, 522 S.E.2d 137 (1999), at the least, do not prohibit—and at
the most, authorize—a gambler or third party's UTPA claim to recover for illegal
gambling losses. See Johnson, 349 S.C. at 635, 564 S.E.2d at 665; Gentry, 337
S.C. at 14, 522 S.E.2d at 144. I disagree with the majority's decision to partially
overrule those cases for two reasons. First, the General Assembly has not
responded to Johnson and Gentry to indicate its intention that sections 32-1-10 and
32-1-20 of the South Carolina Code provide the exclusive remedy for losses
sustained by illegal gambling. Moreover, unlike the majority, I do not find the
damages recoverable under those statutes indicative of the General Assembly's
16
The majority states that allowing a gambler to recover under UTPA for losses
sustained by illegal gambling could lead to "anyone engaged in an illegal activity
[being able to] allege an UTPA claim to recover losses sustained by the illegal
activity." However, because the General Assembly has only abolished the in pari
delictio doctrine in very limited circumstances, it is my opinion that the majority's
statement presents an inconceivable result, especially given this Court's
consciousness of public policy concerns.
intent on this matter. Rather, in my view, without evidence to the contrary,
recovery under the UTPA is "cumulative and supplementary" to recovery under
sections 32-1-10 and 32-1-20, and the recovery provided by those statutes has no
bearing on the possible UTPA claim. See S.C. Code Ann. § 39-5-160 (1985) ("The
powers and remedies provided by [the UTPA] shall be cumulative and
supplementary to all powers and remedies otherwise provided by law.").
Second, in my view, it is contrary to our state's public policy to disallow
Proctor's ability to recover all of her losses sustained from gambling under the
UTPA. After the state's legal prohibition against video gambling dissolved in
1986, the video gambling industry in South Carolina quickly built an expansive
and hugely profitable operation. See R. Randall Bridwell & Frank L. Quinn, From
Mad Joy to Misfortune: The Merger of Law & Politics in the World of Gambling,
72 Miss. L.J. 565, 573–80 (2002) (providing a definitive history of video gambling
in South Carolina). However, due to the extensive social costs caused by this
"unexpected and unintended gambling business," it wasn't long before the industry
began to come undone. Id. at 580. This Court's aversion to video gambling—and
more importantly, its serious repercussions to gamblers and their families—was
first evidenced in Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 (1993), in
which the Court permitted a gambler to bring an action to recover losses from
playing video poker under an old state statute (the state version of the Statute of
Anne). This Court found more compelling the gambler's argument that "the statute
has the effect of protecting a gambler, regardless of the legality of the game, from
abusing the vice and exceeding limits which bring harm to the gambler and his or
her family." Id. at 54, 426 S.E.2d at 762–63. The Court further noted the General
Assembly's intention to "adopt[] a policy to protect a citizen and his family from
the gambler's uncontrollable impulses." Id. at 55, 426 S.E.2d at 763. When this
Court answered certified questions in Johnson in 2002, it reiterated the goal of
limiting excessive gambling and protecting gamblers and their families from
allowing the gambler's vice to overcome his ability to pay. 349 S.C. at 635, 564
S.E.2d at 664–65 (citation omitted).17
For these reasons, I would allow Proctor to pursue her UTPA claim in full
against Defendants, who engaged in deliberate conduct that fed Proctor's gambling
addiction. Accordingly, I would affirm in full the court of appeals' decision
17
In my view, Proctor is not a sympathetic figure, and similar to the majority, I do
not wish to grant her a windfall. If Proctor recovers under UTPA for all of her
gambling losses, however, it would appear that her recovery would be used to
satisfy her outstanding Confession of Judgment in favor of Trans-Union.
affirming the circuit court's order granting Proctor's motion for summary judgment
on the issue of liability.