288 P.3d 48
Wash. Ct. App.2012Background
- Washington’s Lottery Thanksgiving Raffle offered 250,000 tickets at $10, with 2,720 scheduled prizes and 30 early-bird prizes funded separately.
- Early-bird prizes were awarded at intervals based on ticket sales (initially every 8,000th ticket) and paid instantly; intervals could be adjusted to ensure all prizes were awarded.
- Cole & Weber served as the Lottery’s advertising vendor but did not create the early-bird ads; their campaign emphasized selling fast but did not mention early-bird prizes.
- Brummett, an avid player, saw ads stating tickets were selling fast and later questioned whether all early-bird prizes would be awarded given sales pace.
- The Lottery adjusted the nth-ticket interval from 8,000 to 1,000 to ensure all early-bird prizes were awarded; overall odds changed from 1 in 92 to 1 in 77 for scheduled prizes if sales underperformed.
- Brummett sued in part for fraud and Consumer Protection Act claims; the trial court dismissed Cole & Weber claims under CR 12(b)(6) and granted summary judgment for Washington’s Lottery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal against Cole & Weber was proper | Brummett argues for summary judgment consideration due to outside evidence. | Cole & Weber contends CR 12(b)(6) suffices; records outside pleadings improper. | Affirmed; treated as summary judgment and upheld dismissal. |
| Fraud by Cole & Weber | Brummett alleges gambling fraud via “going fast” ads. | Cole & Weber contends no recognized gambling-fraud claim; not material. | Gambling fraud claim dismissed; no recognized common-law basis. |
| Consumer Protection Act claim against Cole & Weber | Brummett asserts deceptive practices under RCW 19.86.020. | Cole & Weber not responsible; ads were created by Lottery staff, not vendor. | CPA claim against Cole & Weber rejected; no per se violation or misrepresentation. |
| Breach of contract / RCW 67.70.040(1) | Brummett asserts contract violation due to ad practices and nth interval. | Statutory claim not actionable; no private right of action under RCW 67.70.040(1). | No actionable breach; RCW 67.70.040(1) not enforceable as described. |
| Negligence, negligent misrepresentation, unreasonableness | Brummett claims advertising conduct was unreasonable and negligent. | Brummett relied on advertisements heard before ticket sales; claims lack specificity. | Claims fail as a matter of law; no justification for reliance or fault shown. |
Key Cases Cited
- Sea-Pac Co. v. United Food & Commercial Workers Local 44, 103 Wn.2d 800 (1985) (treats 12(b)(6) motions with outside evidence as summary judgment when appropriate)
- Brown v. MacPherson’s, Inc., 86 Wn.2d 293 (1975) (summary judgment standard and consideration of evidence outside pleadings)
- Poulsbo Grp., LLC v. Talon Dev., LLC, 155 Wn.App. 339 (2010) (elements of fraud and reliance considerations)
- Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778 (1986) (per se unfair trade practice and elements of CPA claim)
- Ducote v. Dep’t of Soc. & Health Servs., 167 Wn.2d 697 (2009) (implied private right of action under statutory provisions)
- Rodriguez v. Loudeye Corp., 144 Wn.App. 709 (2008) (outside material considered on appeal with caution in 12(b)(6) context)
- Crane & Crane, Inc. v. C&D Elec., Inc., 37 Wn.App. 560 (1984) (necessity of statutory public-interest declaration for per se unlawful conduct)
- EsCA Corp. v. KPMG Peat Marwick, 135 Wn.2d 820 (1998) (negligent misrepresentation standard and reliance principles)