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24972 - Justice v. the Pantry, et al.

Shearouse Adv. Sh. No.24
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court



Jay Justice, Respondent,

v.

The Pantry, Hot Spot,

R.L. Jordan, Short Stop,

Thomas Reagan, Li'l

Cricket Food Stores,

Gordon Zuber, The

Dugout, Mid-South, Inc.,

Fuel City.Number 61,

Briar Patch, Jerry

Matheson, Aladdins,

Mary Heatherly, Thirty

Something, Gene Lamb

& Mary Alice Lamb,

Highway Number 9

Auto Stop, & Steve

West, Petitioners.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Richland County

L. Casey Manning, Judge



Opinion No. 24972

Heard June 9, 1999 - Filed July 13, 1999

AFFIRMED AS MODIFIED


JUSTICE v. THE PANTRY, ET AL.





John J. McCauley, of Breibart, McCauley &

Newton, P.A., of Lexington, for Petitioner The

Pantry. H. Buck Cutts, of Surfside, for Petitioner

Mid-South, Inc., d/b/a The Dugout. Dwight F.

Drake, C. Mitchell Brown, & Zoe Sanders Nettles,

all of Nelson Mullins Riley & Scarborough, L.L.P.,

of Columbia, for all other petitioners.

Christopher G. Isgett, of Lee, Eadon, Isgett, &

Popwell, of Columbia, for respondent.





BURNETT, A.J.: This Court granted certiorari to review the

Court of Appeals' opinion in Justice v. The Pantry, 330 S.C. 37, 496 S.E.2d

871 (Ct. App. 1998).1 We affirm as modified.







FACTS



Respondent filed two lawsuits against petitioners under S.C.

Code Ann. § 32-1-20 (1991) to recover gambling losses incurred by his

mother and sister while playing video poker. Petitioners moved to dismiss

pursuant to Rule 12(b)(6), SCRCP, claiming respondent failed to plead

facts sufficient to support a cause of action under the statute. Relying on

Trumbo v. Finley, 18 S.C. 305 (1882), the trial court granted the motion

finding § 32-1-20 is a penal statute and must be pled "according to the

strict letter of the law."





On appeal, the Court of Appeals reversed and remanded the

case finding the trial court's reliance on Trumbo was "misplaced because

the pleading rules established in Trumbo for penal statutes in civil actions

have been replaced by the South Carolina Rules of Civil Procedure."

Justice, 330 S.C. at 41, 496 S.E.2d at 873. Further, under Rule 8,

SCRCP, the Court of Appeals determined respondent had sufficiently pled

the facts to establish a cause of action under § 32-1-20.




1 This Court denied certiorari to review the portion of the Court of

Appeals' opinion addressing whether S.C. Code § 32-1-20 (1991) had been

impliedly repealed by the Video Game Machine Act.

p.37


JUSTICE v. THE PANTRY, ET AL.





ISSUES



I Did the Court of Appeals err in holding the pleading rules

in Trumbo v. Finley , supra, have been replaced by the South

Carolina Rules of Civil Procedure?



II Did the Court of Appeals err in finding a cause of action

under § 32-1-20 was sufficiently pled?





DISCUSSION

I

Petitioners argue the Court of Appeals erred in holding the

SCRCP have superseded the pleading rules established in Trumbo for

penal statutes in civil actions. We agree.







The Trumbo court discussed the requirements of pleading a

cause of action under a penal statute. Under Trumbo, a penal statute will

be strictly construed against the pleader; however, it will not be so strictly

construed as to absolutely require pleading the exact words of the statute.

The Court stated "[t]echnicalities are disregarded, and it may be that the

statutory offense could be stated sufficiently without using the very words

of the statute," as long as the words which are used express the exact

wrong. Trumbo, 18 S.C. at 312. The Court stated "there is no peculiar or

technical meaning given to language in penal more than in remedial laws."

Id. at 312. Moreover, the Court noted "[p]enal acts are not to be

construed so strictly as to defeat the obvious intention of the legislature."

Id. at 312. Under Trumbo, the pleading shall contain the fundamental

facts necessary to establish a cause of action under the statute. The

Trumbo court held § 32-1-20 is penal in nature.





The Court of Appeals erroneously decided the SCRCP have

superseded Trumbo's pleading rules. The SCRCP became effective on July

1, 1985. Rule 86, SCRCP. However, the SCRCP retained the

requirements of Code Pleading. Harry M. Lightsey, Jr., & James F.

Flanagan, South Carolina Civil Procedure 276 (1985). Code Pleading was

adopted in South Carolina in 1870, prior to the Trumbo decision. Id. at

46. Accordingly, the Trumbo pleading rules were established pursuant to

Code Pleading and these rules are still valid.

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JUSTICE v. THE PANTRY, ET AL.





II

Petitioners argue the Court of Appeals erred in finding a cause

of action under § 32-1-20 had been sufficiently pled. Specifically,

petitioners claim the complaints fail to give petitioners notice of when or

to whom the losses occurred. We disagree.





The grant of a motion to dismiss for failure to state facts

sufficient to constitute a cause of action cannot be upheld if facts alleged

in the complaint and inferences reasonably deducible therefrom, if proven,

would entitle the plaintiff to relief on any theory of the case. Newton v.

South Carolina Public Railways Comm'n, 319 S.C. 430, 462 S.E.2d 266

(1995); Brown v. Leverette, 291 S.C. 364, 353 S.E.2d 697 (1987). "The

trial court and this [C]ourt on appeal must presume all well pled facts to

be true." Morrow Crane Co. v. T.R. Tucker Constr. Co., 296 S.C. 427, 429,

373 S.E.2d 701, 702 (Ct. App. 1988). "[A] judgment on the pleadings is

considered to be a drastic procedure by our courts." Russell v. City of

Columbia, 305 S.C. 86, 89, 406 S.E.2d 338, 339 (1991) (citation omitted).

Section 32-1-10 states:

Any person who shall at any time or sitting, by

playing at cards, dice table or any other game

whatsoever, ... 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 ... shall be at liberty, within three months

then next ensuing, to sue for and recover the

money or goods so lost ....

S.C. Code Ann. § 32-1-10 (1991) (emphasis added). Section 32-1-20

permits any person to sue for the gambling losses, provided the loser does

not sue and there is no covin or collusion between the loser and the

plaintiff. A person who sues pursuant to § 32-1-20 may recover treble the

value of the gambling losses.2


2 Sections 32-1-10 & -20 were originally adopted in 1712 and statutory

language has changed very little since then. See Berkebile v. Outen, 311

S.C. 50, 426 S.E.2d 760 (1993).

p.39


JUSTICE v. THE PANTRY, ET AL.





Under Trumbo, the plaintiff must plead facts which are

sufficient to establish the statutory elements of the cause of action.

Trumbo, supra. The Court in Trumbo construed the phrase "at any time

or sitting" to require the gambler to incur the loss at any one time (i.e. a

single bet) or sitting (i.e. a course of play). Id. at 311. In Trumbo, the

Court noted the complaint did not state the money was lost "at one time

or sitting" and did not contain the word "sitting" at all in the complaint.

Id. at 312-13. Because the plaintiffs complaint in Trumbo "did not

attempt to state the offense in the words of the statute nor in equivalent

words," the Court held the complaint did not sufficiently state a cause of

action. Id. at 312.





Respondent's complaints alleged:

That on several dates throughout the calendar

years of 1995-1996, [sister/mother] of the Plaintiff,

while gambling on the poker video [sic] machines,

owned and/or operated by the Defendants, lost in

excess of Fifty Dollars ($50.00) per sitting.





The trial court ruled the complaints were insufficient because

they failed to allege: (1) the Trumbo "one time or sitting" element; (2)

whether the loss occurred "by playing at cards, dice table or any other

game;" and (3) to whom the alleged losses occurred. The Court of Appeals

disagreed stating:

Justice's complaints contain sufficient allegations

regarding these three elements and comply with

Rule 8, SCRCP. First, Justice clearly alleged in his

complaints that his mother and sister, while

gambling, "lost in excess of Fifty Dollars ($50.00)

per sitting" (emphasis added). Secondly, Justice

specifically alleged that the money was lost "while

gambling on the poker video machines." Finally,

Justice alleged the money was lost to the

Defendants named in the complaints, who "owned

and/or operated" the video poker machines.

Justice, 330 S.C. at 42, 496 S.E.2d at 873-74.

p.40


JUSTICE v. THE PANTRY, ET AL.





We agree with the Court of Appeals' assessment of

respondent's complaints. Even under the Trumbo pleading rules, these

complaints plead facts which sufficiently establish the required statutory

elements.





Petitioners further contend, because the complaints fail to

allege the specific dates of when the losses occurred, they were unable to

determine if the one year statute of limitations defense was applicable.

Specifically, citing Rule 9(f), SCRCP, petitioners maintain respondent is

required to aver the dates when the losses occurred.3





Rule 9(f), SCRCP,4 does not require allegations of time to be

included in a pleading. 24 S.C. Jurisprudence Rules of Civil Procedure §

9.2 (1994); see also Jones v. United Gas Improvement Corp., 383 F. Supp.

420 (E.D. Pa. 1974) (the rule does not require specific allegations of time,

but merely states when such specific allegations are made they are

material); 5 Miller & Wright, Fed. Prac. & Proc. § 1309 (2d ed. 1990).

Instead, it requires, if pleadings contain allegations of time, the allegations

must be accurate. 24 S.C. Jurisprudence Rules of Civil Procedure § 9.2; 5

Miller & Wright, Fed. Prac. & Proc. § 1308. Moreover, Rule 9(f) does not

require specificity when pleading time. See Supreme Wine Co. v.

Distributors of New England, Inc., 198 F. Supp. 318 (D. Mass. 19.61). The

purpose of this rule is to provide a mechanism for the testing of certain

claims and defenses, including the statute of limitations. See 5 Miller &

Wright, Fed. Prac. & Proc. §§ 1308-09; see also Gossard v. Gossard, 149

F.2d 111 (10th Cir. 1945).





Under Trumbo, the dates of the gambling are not a required

element of the statute. See Trumbo, 18 S.C. 312-13 ("We do not regard

time as important in reference to any particular day within three months,

but necessary as to the manner in which the money was won, viz., 'at one

time or sitting,' which, as we think, was an important element of the

offense under the statute."). Instead, the complaint should indicate "the

manner in which the money was won," i.e. "at one time or sitting."


3 Rule 9(f), SCRCP, states: "For the purpose of testing the sufficiency

of a pleading, averments of time and place are material and shall be

considered like all other averments of material matter."





4Rule 9(f), SCRCP is the same as Fed. R. Civ. Proc. 9(f).

p.41


JUSTICE v. THE PANTRY, ET AL.





Trumbo, 18 S.C. 312-13. Thus, the one year statute of limitations is not a

statutory element which must be specifically plead.





The complaints were filed March 8, 1996 and state the losses

occurred "on several dates throughout the calendar years of 1995-96."

This statement adequately sets out the time period when respondent

claims the losses occurred so petitioners can determine if they should raise

a statute of limitations defense. Any claim which arose more than one

year before the complaint was filed is time barred. See Montjoy v. One

Stop of Abbeville, Inc., 325 S.C. 17, 478 S.E.2d 683 (1996) (the general one

year statute of limitations applies to a third party's action to recover

gambling losses). Petitioners are on notice as to when the losses occurred

and pretrial discovery will assist petitioners in uncovering the exact dates

on which the gambling took place.





AFFIRMED AS MODIFIED.





FINNEY, C.J., TOAL, MOORE, JJ., and Acting Associate

Justice George T. Gregory, Jr., concur.

p.42