Judgment rendered September 4, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,749-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
MIKE YOUNG AND CELINA Plaintiffs-Appellants VINCENT, INDIVUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
versus
HORSESHOE Defendant-Appellee ENTERTAINMENT, LIMITED PARTNERSHIP
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 170,298
Honorable Allen Parker Self, Jr., Judge
STERNBERG, NACCARI & WHITE, Counsel for Appellants, LLC Mike Young and By: Graham H. Williams Celina Vincent
KEAN MILLER, LLP Counsel for Appellee By: Scott Louis Zimmer
Before PITMAN, STONE, COX, STEPHENS, and HUNTER, JJ. HUNTER, J.
Plaintiffs, Mike Young and Celina Vincent, individually and on behalf
of all other similarly situated individuals, appeal a trial court ruling in favor
of defendant, Horseshoe Entertainment, Limited Partnership, sustaining an
exception of no cause of action. For the following reasons, we reverse and
remand to the district court for further proceedings.
FACTS
On several occasions in 2021 and 2022, Plaintiffs visited the
Horseshoe Casino in Bossier City, Louisiana (“Horseshoe”). While at
Horseshoe, Plaintiffs engaged in gaming by inserting cash into a slot
machine and subsequently opted to cash out their remaining credits. At the
conclusion of gaming, the slot machine issued a redemption ticket or
“gaming voucher” reflecting the amount owed by Horseshoe to Plaintiffs.
After receipt of the gaming voucher, Plaintiffs customarily insert the
voucher into another machine (the “kiosk machine”) which would then
dispense all funds accordingly. However, the casino instituted an alternative
refund method which did not dispense coins in the exact change set forth on
the gaming voucher. This deviation only paid out the paper currency and not
the remaining change.
According to Horseshoe, this procedure was instituted in response to
the national coin shortage caused by the COVID-19 pandemic. The
traditional cashier “cage” remained operational, and coins were dispensed if
patrons had the requisite knowledge and foresight to retrieve their funds.
Horseshoe asserts patrons were able to take their vouchers to the cage and
obtain the full amount of the voucher. If any patron elected to use the kiosk
machine rather than the cashier, they would receive the paper currency from 2 the kiosk along with a ticket or receipt detailing (1) the monetary value of
the gaming voucher, (2) the amount of money dispensed, and (3) the
seemingly innocuous phrase: “Transaction Completed Successfully.” The
receipt did not provide specific instructions on how to redeem the full
amount owed to patrons. No other signage or notice was provided to patrons.
Plaintiffs alleged Horseshoe’s receipt failed to put an average player
on reasonable notice the gaming voucher would be rounded down and the
kiosk machine would simply keep a player’s change. Plaintiffs further
alleged Horseshoe, incrementally and by deviant design, effectively
deprived them and thousands of Horseshoe patrons of millions of dollars
through its misleading redemption process at the kiosk machine.
Plaintiffs filed their Class Action Petition for Damages on June 6,
2023, asserting claims of (1) breach of contract, (2) conversion, and, in the
alternative, (3) unjust enrichment. Plaintiffs alleged Horseshoe entered into a
binding obligation when players used Horseshoe’s slot machines and
Horseshoe breached the agreement when the kiosk machine failed to
dispense the entirety of the funds owed without a method of redemption. The
petition further alleged Horseshoe deprived Plaintiffs of their property and
committed conversion by retaining Plaintiffs’ funds through the kiosk
machine. Finally, Plaintiffs’ petition brings an alternative claim of unjust
enrichment, alleging Horseshoe was enriched at Plaintiffs’ expense because
it unjustly retained their funds.
In June 2023, Horseshoe filed peremptory exceptions of prescription
and no cause of action as to Plaintiffs’ claims. In its exception, Horseshoe
argued Plaintiffs failed to specifically allege any theory under which they
sought recovery in their petition. Horseshoe also argued regardless of 3 whether Plaintiffs were seeking to assert a breach of contract claim, a tort
action for conversion, or an unjust enrichment claim, they failed to set forth
sufficient allegations in their petition to demonstrate the law affords them a
remedy on any of those claims. Additionally, Horseshoe argued Plaintiffs’
claim for conversion must be dismissed because the claim had prescribed.
A hearing was held on August 22, 2023, at which time the parties
agreed any claims for conversion before June 6, 2022, would be prescribed.
The trial court subsequently sustained Horseshoe’s peremptory exception of
no cause of action and dismissed Plaintiffs’ claim against Horseshoe with
prejudice.
Plaintiffs appeal.
STANDARD OF REVIEW
The appellate court standard of review of a judgment sustaining an
exception of no cause of action is de novo. Fluid Disposal Specialties, Inc. v.
UniFirst Corp., 53,014 (La. App. 2 Cir. 9/25/19), 316 So. 3d 1222, aff’d on
reh’g, 53,014 (La. App. 2 Cir. 6/3/20), 316 So. 3d 1252. The peremptory
exception of no cause of action is designed to test the legal sufficiency of a
petition by determining whether a party is afforded a remedy in law based on
the facts alleged in the pleading. Id. All well-pleaded allegations of fact are
accepted as true and correct, and all doubts are resolved in favor of the
sufficiency of the petition so as to afford litigants their day in court. Id. The
burden of demonstrating that a petition fails to state a cause of action is upon
the mover. Id. The sufficiency of a petition, subject to an exception of no
cause of action is a question of law, and a de novo standard is applied to the
review of legal questions; this court renders a judgment based on the record
without deference to the legal conclusions of the lower courts. 4 An exception of no cause of action should be granted only when it
appears beyond doubt the plaintiff can prove no set of facts in support of any
claim which would entitle her to relief. If the petition states a cause of action
on any ground or portion of the demand, the exception should generally be
overruled. Every reasonable interpretation must be accorded the language
used in the petition in favor of maintaining its sufficiency and affording the
plaintiff the opportunity of presenting evidence at trial. Badeaux v.
Southwest Computer Bureau, Inc., 05-0612 (La. 3/17/06), 929 So. 2d 1211;
Sharp v. Melton, 53,508 (La. App. 2 Cir. 5/20/20), 296 So. 3d 1135;
Stonecipher v. Caddo Par., 51,148 (La. App. 2 Cir. 4/7/17), 219 So. 3d
1187, writ denied, 17-0972 (La. 10/9/17), 227 So. 3d 830.
No evidence may be introduced at any time to support or controvert
the objection that the petition fails to state a cause of action. La. C.C.P. art.
931.
DISCUSSION
Herein, Plaintiff’s petition alleged as follows: the trial court erred in
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Judgment rendered September 4, 2024. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,749-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
MIKE YOUNG AND CELINA Plaintiffs-Appellants VINCENT, INDIVUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
versus
HORSESHOE Defendant-Appellee ENTERTAINMENT, LIMITED PARTNERSHIP
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 170,298
Honorable Allen Parker Self, Jr., Judge
STERNBERG, NACCARI & WHITE, Counsel for Appellants, LLC Mike Young and By: Graham H. Williams Celina Vincent
KEAN MILLER, LLP Counsel for Appellee By: Scott Louis Zimmer
Before PITMAN, STONE, COX, STEPHENS, and HUNTER, JJ. HUNTER, J.
Plaintiffs, Mike Young and Celina Vincent, individually and on behalf
of all other similarly situated individuals, appeal a trial court ruling in favor
of defendant, Horseshoe Entertainment, Limited Partnership, sustaining an
exception of no cause of action. For the following reasons, we reverse and
remand to the district court for further proceedings.
FACTS
On several occasions in 2021 and 2022, Plaintiffs visited the
Horseshoe Casino in Bossier City, Louisiana (“Horseshoe”). While at
Horseshoe, Plaintiffs engaged in gaming by inserting cash into a slot
machine and subsequently opted to cash out their remaining credits. At the
conclusion of gaming, the slot machine issued a redemption ticket or
“gaming voucher” reflecting the amount owed by Horseshoe to Plaintiffs.
After receipt of the gaming voucher, Plaintiffs customarily insert the
voucher into another machine (the “kiosk machine”) which would then
dispense all funds accordingly. However, the casino instituted an alternative
refund method which did not dispense coins in the exact change set forth on
the gaming voucher. This deviation only paid out the paper currency and not
the remaining change.
According to Horseshoe, this procedure was instituted in response to
the national coin shortage caused by the COVID-19 pandemic. The
traditional cashier “cage” remained operational, and coins were dispensed if
patrons had the requisite knowledge and foresight to retrieve their funds.
Horseshoe asserts patrons were able to take their vouchers to the cage and
obtain the full amount of the voucher. If any patron elected to use the kiosk
machine rather than the cashier, they would receive the paper currency from 2 the kiosk along with a ticket or receipt detailing (1) the monetary value of
the gaming voucher, (2) the amount of money dispensed, and (3) the
seemingly innocuous phrase: “Transaction Completed Successfully.” The
receipt did not provide specific instructions on how to redeem the full
amount owed to patrons. No other signage or notice was provided to patrons.
Plaintiffs alleged Horseshoe’s receipt failed to put an average player
on reasonable notice the gaming voucher would be rounded down and the
kiosk machine would simply keep a player’s change. Plaintiffs further
alleged Horseshoe, incrementally and by deviant design, effectively
deprived them and thousands of Horseshoe patrons of millions of dollars
through its misleading redemption process at the kiosk machine.
Plaintiffs filed their Class Action Petition for Damages on June 6,
2023, asserting claims of (1) breach of contract, (2) conversion, and, in the
alternative, (3) unjust enrichment. Plaintiffs alleged Horseshoe entered into a
binding obligation when players used Horseshoe’s slot machines and
Horseshoe breached the agreement when the kiosk machine failed to
dispense the entirety of the funds owed without a method of redemption. The
petition further alleged Horseshoe deprived Plaintiffs of their property and
committed conversion by retaining Plaintiffs’ funds through the kiosk
machine. Finally, Plaintiffs’ petition brings an alternative claim of unjust
enrichment, alleging Horseshoe was enriched at Plaintiffs’ expense because
it unjustly retained their funds.
In June 2023, Horseshoe filed peremptory exceptions of prescription
and no cause of action as to Plaintiffs’ claims. In its exception, Horseshoe
argued Plaintiffs failed to specifically allege any theory under which they
sought recovery in their petition. Horseshoe also argued regardless of 3 whether Plaintiffs were seeking to assert a breach of contract claim, a tort
action for conversion, or an unjust enrichment claim, they failed to set forth
sufficient allegations in their petition to demonstrate the law affords them a
remedy on any of those claims. Additionally, Horseshoe argued Plaintiffs’
claim for conversion must be dismissed because the claim had prescribed.
A hearing was held on August 22, 2023, at which time the parties
agreed any claims for conversion before June 6, 2022, would be prescribed.
The trial court subsequently sustained Horseshoe’s peremptory exception of
no cause of action and dismissed Plaintiffs’ claim against Horseshoe with
prejudice.
Plaintiffs appeal.
STANDARD OF REVIEW
The appellate court standard of review of a judgment sustaining an
exception of no cause of action is de novo. Fluid Disposal Specialties, Inc. v.
UniFirst Corp., 53,014 (La. App. 2 Cir. 9/25/19), 316 So. 3d 1222, aff’d on
reh’g, 53,014 (La. App. 2 Cir. 6/3/20), 316 So. 3d 1252. The peremptory
exception of no cause of action is designed to test the legal sufficiency of a
petition by determining whether a party is afforded a remedy in law based on
the facts alleged in the pleading. Id. All well-pleaded allegations of fact are
accepted as true and correct, and all doubts are resolved in favor of the
sufficiency of the petition so as to afford litigants their day in court. Id. The
burden of demonstrating that a petition fails to state a cause of action is upon
the mover. Id. The sufficiency of a petition, subject to an exception of no
cause of action is a question of law, and a de novo standard is applied to the
review of legal questions; this court renders a judgment based on the record
without deference to the legal conclusions of the lower courts. 4 An exception of no cause of action should be granted only when it
appears beyond doubt the plaintiff can prove no set of facts in support of any
claim which would entitle her to relief. If the petition states a cause of action
on any ground or portion of the demand, the exception should generally be
overruled. Every reasonable interpretation must be accorded the language
used in the petition in favor of maintaining its sufficiency and affording the
plaintiff the opportunity of presenting evidence at trial. Badeaux v.
Southwest Computer Bureau, Inc., 05-0612 (La. 3/17/06), 929 So. 2d 1211;
Sharp v. Melton, 53,508 (La. App. 2 Cir. 5/20/20), 296 So. 3d 1135;
Stonecipher v. Caddo Par., 51,148 (La. App. 2 Cir. 4/7/17), 219 So. 3d
1187, writ denied, 17-0972 (La. 10/9/17), 227 So. 3d 830.
No evidence may be introduced at any time to support or controvert
the objection that the petition fails to state a cause of action. La. C.C.P. art.
931.
DISCUSSION
Herein, Plaintiff’s petition alleged as follows: the trial court erred in
determining the petition alleged no grounds forming the basis of a breach of
contract claim. The well-settled elements of a breach of contract claim are
(1) the obligor undertook an obligation to perform, (2) the obligor failed to
perform the obligation, and (3) the failure to perform resulted in damages to
the obligee. Plaintiffs argue the bilateral obligations at issue here—the
contract—were confected when the players entered Horseshoe and used
Horseshoe’s slot machines. In doing so, the players agreed to the rules set
out by the slot machine’s algorithm in exchange for the ability to redeem
funds.
5 Plaintiffs further contend the trial court erred in finding they did not
allege a cause of action for conversion. However, a review of the record
provides the parties agreed any claims for conversion predating June 6,
2022, are prescribed.
Lastly, Plaintiffs argue the trial court erred in finding no facts
supported their claim of unjust enrichment. A person who has been enriched
without cause at the expense of another person is bound to compensate the
person. The term “without cause” is used in this context to exclude cases in
which the enrichment results from a valid juridical act or the law. The
remedy declared here is subsidiary and shall not be available if the law
provides another remedy for the impoverishment or declares a contrary rule.
La. C.C. art. 2298. As a “subsidiary” remedy under the plain language of
the statute, unjust enrichment is only applicable to fill a gap in the law where
no express remedy is provided. Hidden Grove, LLC v. Brauns, 22-00757
(La. 1/27/23), 356 So. 3d 974; Walters v. MedSouth Rec. Mgmt., LLC, 10-
0351 (La. 6/4/10), 38 So. 3d 245.
Before the enactment of Article 2298, which codified existing
jurisprudence, this court set forth five requirements for proving unjust
enrichment: “1) an enrichment on the part of the defendant; 2) an
impoverishment on the part of the plaintiff; 3) a causal relationship between
the enrichment and the impoverishment; 4) an absence of justification or
cause for the enrichment or impoverishment; and 5) no other remedy at
law.” Carriere v. Bank of Louisiana, 95-3058 (La. 12/13/96), 702 So. 2d
648, 651 (Citations omitted.)
In the present case, Plaintiffs alleged they received a redemption
ticket with the full amount on the voucher and the amount dispensed. The 6 petition asserts Plaintiffs were due change, which included dollars and coins,
and Defendant returned the dollars via the kiosk. However, the coins were
never returned to Plaintiffs, which, at a minimum, meets the requirements
for unjust enrichment. With no discussion regarding the intent and effect of
implementation on Plaintiffs’ due process, the cy-pres doctrine, modification
and approval of state gaming protocols during a pandemic, timelines for
claims vis-à-vis ongoing pandemics, or reporting of miscellaneous funds to
the state treasury, we find Plaintiffs’ petition alleges facts sufficient to state a
cause of action against Defendant. Consequently, we reverse the district
court’s ruling sustaining the exception of no cause of action.
CONCLUSION
For the reasons set forth herein, the judgment of the district court
sustaining the peremptory exception of no cause of action is hereby
reversed, and this matter is remanded for further proceedings. Costs of the
appeal are assessed to Defendant, Horseshoe Entertainment, Limited
Partnership.
REVERSED; REMANDED.