Dacy v. Gors

¶1(dissenting).

¶2I agree with the special writing of Justice Sabers and with the law cited in the majority opinion. Where I part company with the majority opinion is the application of the law to the facts of this case. There is no doubt the trial court has discretion to grant or deny injunctive relief, particularly where the facts are in dispute. Here, however, the relevant facts are not in dispute and the claim of Ionia Klein to the prize money is precarious at best. Whether she is entitled to the money is a question of law and not a question of fact.

¶3An essential element of the game of lottery is chance. When the element of chance is absent, “the game’s character as a lottery ceases to exist.” Horan v. State of Calif, 220 Cal.App.3d 1503, 1508, 270 Cal.Rptr. 194, 196 (1990). The undisputed facts before the trial court show Ms. Klein ventured no chance with respect to the April 6th Lotto America drawing; she acquired the winning ticket after the drawing and with the knowledge that it was the winning ticket. Therefore, as to Ms. Klein, there was no lottery.

¶4The majority opinion correctly states we are not determining ownership of the ticket in this proceeding. But we are considering the probability of Mr. G’s success in a trial on the merits. The facts before the trial court tend to show that Mr. G’s was the owner of the ticket at the relevant time. Under its agreement with the South Dakota Lottery, Mr. G’s was liable for all tickets issued at the store, whether sold or not. And, at the time of the drawing, the winning ticket had not been sold and Mr. G’s was liable for it. Thus, there exists a strong probability that Mr. G's will ultimately prevail at trial.

¶5Moreover, given the financial status of Ms. Klein, Mr. G’s faces irreparable harm in that she will likely be judgment proof after a trial on the merits, at least to the extent her legal counsel is compensated from the first disbursement of the lottery proceeds. Indeed, it is in the public interest to insure that all who take a chance in the lottery, take an equal chance.

¶6Quoting S.D. Trucking Ass’n, 305 N.W.2d at 684, the majority opinion ac*581knowledges that the trial court does not exercise unfettered discretion in granting or denying injunctive relief: “The [trial court’s] discretion must be exercised under the established rules of law, and it may be said to be abused ... where it amounts to an evasion of a positive duty[.]” Under the circumstances of this case, I believe the trial court had a positive duty to maintain the status quo pending a determination of the ownership of the ticket. The trial court’s refusal to issue the preliminary injunction amounts to an evasion of this duty and is an abuse of discretion.

¶7I know my position is controversial and may be unpopular, but judges have to bite the bullet and decide cases according to the evidence and law as they see it, disregarding the popularity polls.1 If the plaintiffs ultimately prevail in the ownership case and decided to play hardball, all kinds of lawsuits may be spawned by our failure to freeze these funds until title is finally determined. Couldn’t the funds be traced and retrieved from the people who take the money from Ms. Klein? See McFarland v. McFarland, 470 N.W.2d 849 (S.D.1991). Can the South Dakota Lottery Commission be sued successfully, or otherwise? Why open Pandora’s box any further?

¶8I would issue the writ of mandamus.

¶10(dissenting).

¶11We should maintain the freeze on these funds to preserve them for the rightful owner, prevent harm and avoid multiple lawsuits.1

¶12A basic premise of the law is that a person cannot profit from her own wrong. The law also prevents an employee from taking advantage of her employer.2 Ionia Klein knew she was taking advantage of her position as an employee and she knew she was doing wrong because she lied about the time and circumstances of the claimed purchase. This is not based on employer’s version, but hers. She cannot claim a more favorable version of the facts than her own testimony.3

¶13Klein neither participated in nor won the lottery drawing because she knew the ticket was a winner before she took possession of it. Since she took no risk in acquiring the ticket, as to her, there was no lottery.4 Because the ticket was issued but not sold at 8:00 p.m. on April 6, 1991, the employer’s account was responsible to pay for it at the time of the drawing and the employer became the winner of the lottery.

¶14Since it is clear that Klein is not the owner, irreparable harm will occur to the owner if the first installment of $500,000 is released to her. Therefore, the owner is entitled to maintain the status quo,5 and, *582there being no adequate remedy at law,6 injunctive relief is appropriate. To hand the check over to Klein under these circumstances, although it may be more popular, would constitute a clear abuse of discretion.7 One cannot mask this abuse of discretion by failing to make the obvious findings and legal conclusions.

¶15Despite this, to avoid claimed temporary hardship to Ionia Klein and her husband, who terminated their employment upon “winning” the lottery, I would vote to let Klein obtain a monthly amount of $1,000 from these lottery funds during the pend-ency of the action. Any amounts obtained would be subject to repayment when ownership is conclusively determined.