2013 COA 176
Colo. Ct. App.2013Background
- Barry played a Bally-manufactured slot machine at Lady Luck Casino; the machine displayed a $81,202.41 jackpot but casino refused payout citing a "malfunction voids all pays and plays" notice and paid only $0.80 after investigation.
- The Division of Gaming investigated and concluded the machine malfunctioned and Barry was not entitled to the jackpot; Barry sought Commission review but filed a district-court lawsuit before a final Commission decision.
- In district court Barry asserted claims for outrageous conduct (emotional distress), breach of implied contract (failure to pay displayed jackpot), and violations of the Colorado Consumer Protection Act (CCPA) seeking treble damages.
- Defendants moved to dismiss for lack of jurisdiction, arguing the Colorado Limited Gaming Control Commission has original and exclusive jurisdiction over patron disputes and that judicial review lies in the Colorado Court of Appeals after exhaustion of administrative remedies.
- The district court dismissed for lack of jurisdiction; the court of appeals affirmed, holding Barry’s claims fall within the Commission’s exclusive regulatory authority and that Barry failed to exhaust administrative remedies (no futility or non-expertise exception shown).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether outrageous conduct and breach-of-contract claims are outside the Commission's exclusive jurisdiction | Barry: common-law claims (emotional distress, contract) are not regulated/licensed matters and thus outside Commission authority | Defs: patron dispute over alleged winnings falls squarely within Act and patron-dispute regulation; Commission has exclusive authority | Held: Claims fall within Commission's original and exclusive regulatory jurisdiction; dismissal affirmed |
| Whether a CCPA claim is barred by Commission's exclusive jurisdiction | Barry: Showpiece Homes means CCPA can proceed alongside regulatory scheme; no express preclusion of CCPA | Defs: Barry's CCPA claim is effectively a patron dispute about refusal to pay alleged winnings and thus within Commission jurisdiction | Held: CCPA claim is not distinct from regulated patron dispute and is within Commission's exclusive jurisdiction |
| Whether Barry needed to exhaust administrative remedies (exceptions) | Barry: exhaustion unnecessary because issues are legal (CCPA, contract, outrageous conduct) beyond Commission expertise or because administrative process would be futile | Defs: exhaustion required; Commission has expertise; no record showing futility | Held: Exhaustion required; alleged exceptions (non-expertise, futility) not shown; proper review is by Court of Appeals after final Commission action |
| Request for appellate attorney fees | Defs: appeal frivolous and groundless | Barry: appeal raised non-frivolous jurisdictional questions | Held: Denied; arguments were non-frivolous though unsuccessful |
Key Cases Cited
- People v. Warner, 930 P.2d 564 (Colo. 1996) (Limited Gaming Act creates comprehensive regulatory scheme for limited-stakes gaming)
- Purcell v. Colo. Div. of Gaming, 919 P.2d 905 (Colo. App. 1996) (statute vests gaming regulation authority in Commission)
- Showpiece Homes Corp. v. Assurance Co. of Am., 38 P.3d 47 (Colo. 2001) (CCPA is remedial and can operate alongside industry-specific regulatory schemes)
- Thomas v. Fed. Deposit Ins. Corp., 255 P.3d 1073 (Colo. 2011) (administrative-exhaustion doctrine and limited exceptions for futility and non-expertise)
- City of Aspen v. Kinder Morgan, Inc., 143 P.3d 1076 (Colo. App. 2006) (jurisdictional standard for motion to dismiss under C.R.C.P. 12(b)(1))
- Medina v. State, 35 P.3d 443 (Colo. 2001) (when facts undisputed, jurisdictional issues reviewed de novo)
- Winter v. Indus. Claim Appeals Office, 321 P.3d 609 (Colo. App. 2013) (de novo review of statutory/regulatory construction)
- Hamon Contractors, Inc. v. Carter & Burgess, Inc., 229 P.3d 282 (Colo. App. 2009) (standard for awarding attorney fees for frivolous claims)