THE STATE OF SOUTH CAROLINA
In The Supreme Court
Jay Justice, Respondent,
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
Mary Heatherly, Thirty
Something, Gene Lamb
& Mary Alice Lamb,
Highway Number 9
Auto Stop, & Steve
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From Richland County
L. Casey Manning, Judge
Opinion No. 24972
Heard June 9, 1999 - Filed July 13, 1999
AFFIRMED AS MODIFIED
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.
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have been replaced by the South Carolina Rules of Civil Procedure."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.
Appeals' opinion addressing whether S.C. Code § 32-1-20 (1991) had been
impliedly repealed by the Video Game Machine Act.
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in Trumbo v. Finley , supra, have been replaced by the South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?
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.
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
language has changed very little since then. See Berkebile v. Outen, 311
S.C. 50, 426 S.E.2d 760 (1993).
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
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.
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
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."
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).
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.