*1 613 Aрpellee’s Opinion Supplemental Reheakeng Rebecca KINNARD and Harold Motion foe Kinnard, Appellants, original opinion, we held necessity for a “a mistrial manifest existed willingness pro regardless of Rhodes’ INC., Appellee. CIRCLE STORES authority, at 612. As ceed.” 966 S.W.2d Smith, 797, parte we Ex 817 S.W.2d cited No. 04-96-00798-CV. pet.). (Tex.App. no 800 — Amarillo rehearing, criticizes her motion for Rhodes Appeals of Court of felony other our reliance Smith and Antonio. Proce cases because Code Criminal 28, 1998. Jan. waiving prohibits a from dure defendant than See Tex.Code jury of less twelve. 4, 1998. Rehearing March Overruled (Vernon 36.29(a) art. CRIM. PROC. 1977). Smith, however, not based on premise, Court Criminal which the recently Appeals overruled Hatch v.
State, (Tex.Crim.App.
1997) Hernandez, parte (overruling Ex 1995)). (Tex.Crim.App.
S.W.2d 931 argues in her motion for re
Rhodes also con
hearing that the cannot withhold State proceed election to
sent a defendant’s statutorily required
fewer than the number jurors. disagree. We The Code of Crimi requires the consent to
nal Procedure State’s jury waiver of trial. defendant’s (Vernon 1.13(a) CRiM. PROC. Ann. art. 1977). applies procedure de same subsequent required waiver of the
fendant’s jurors.
number of See Patton United
States, 253, 263, 281 U.S. 50 S.Ct. (1930) (explaining that before a L.Ed. may jurors, than
defendant waive less twelve government counsel and the
“the consent had”); he
sanction of the court must be State,
Hanley pet.) no [14th Dist.] — Houston waiver of less (applying article to the case). jurors in a Sec
than six misdemeanor
ond, to a defen the State’s refusal consent ju number
dant’s waiver necessity a manifest to declare
rors creates
Hatch,
n.
mistrial. See deny for re
Accordingly, we Rhodes’ motion
hearing.
FACTS for the bought tickets Rebecca Kinnard drawing1 at a January 1993 Lotto Ms. Kinnard store. Antonio Circle *3 not that she did deposition her stated in at the time because her tickets double-check behind long a line of customers there was plays- one of the Kinnards contend her. The handed to the clerk lips Kinnard Ms. winning combination night contained the numbers; they contend that also six playslips her was not processed clerk who this combina- employee. store Lottery Com- register with the tion did not computer Kinnards were not and the mission winners; register with the Commis- what did number, processed at duplicate was a sion store, time the Kinnards roughly at the Black, Antonio, D. Paul B. San Thomas that one played. appears It hаve thus Alonzo, P.C., Rich, Dallas, William A Rich & processed twice. playslips L.L.P., Boeme, Brant, for Nunley Jolley, & Alleging that the error occurred Appellants. negligently staff its stores Circle K failed Michels, Gregory Zager, M. Joe S. Steven to han- personnel authorized with sufficient Weil, Coleman, Higgason, Robert W. Gotshal lottery slips, the Kinnards filed suit dle L.L.P., Houston, Joseph Manges, C. El- & negligence, negligence K for against Circle Gibson, Inc., Antonio, liott, Plunkett & Deceptive per of the Texas se and violation III, Attorney Dewey Helmcamp, E. Assistant Practices Act. Trade Division, Austin, General Administrative Law discovery, K for sum- Circle moved After Appellee. 1) contending; mary judgment, errors, as inspect did not their RICKHOFF, LÓPEZ and Before rules, failure to by lottery and this ANGELINI, JJ. 2) playslip recovery; did mitigate barred of the Kinnards’ constitute evidence 3) law; policy public claim as a matter OPINION claims, every precluded the Kinnards’ RICKHOFF, Justice. jurisdiction faced with that has been other it. The ruled trial similar claim has in impression In this case of first summary judgment without granted appeal from a and Rebecca Kinnard Harold specifying ground. summary granted in of Circle judgment favor K”) Stores, (“Circle argue Kinnards points of error the Inc. on their claim four K in its construction duty the trial court erred K its to them to that Circle breached surrounding the regulations conformity in with their statutes and lottery sell Lottery; that there were fact issues affirm. instructions. We puter, the number combination game which transmits is run the Texas 1. Lotto Texas an on-line headquarters On Wed- lottery Austin. Id. in Commission. See 16 Tex Admin. nights, p.m., (West 1997). Saturday at play nesday 9:59 § Each chance 401.305(c). at from one player picks six numbers random § officials select $1. The costs Id. at 401.305(g). player § fifty. The fifty, marking Id. at these to sucсessfully picks from one six numbers the stated all six numbers wins process playslip in a similar numbers on test; jackpot is if there more jackpot, or shares "bubbling in” answers on a standardized 405.305(e)(1). § Id. at opt than one winner. selection of can also for a random against picking the cоrrect numbers computer. Id. at stated odds generated numbers 401.305(e)(1). 15,890,700:1. at§ 401.305(d)(2). Id. playslip are is fed into a com- This question causation, and on viola- Swilley Hughes, 310-11 Deceptive tions of the Texas Trade Practices
Act; represents and that judgment I, OF ACTION NEGLIGENCE CAUSES
violation of Art. also CONST. open рrovision. known as courts argues that the is a arrangement.
contractual This is the case in public Texas when a offer is made whose STANDARD OF REVIEW acceptance performance, conditioned as party moving in a or Kasling reward situation contest. showing has the burden of thаt no Morris, (1888); 71 Tex. 9 S.W. genuine issue material fact exists and that Bean, Hall *4 it is entitled to judgment as a matter of law. writ). Civ.App 1979, no This is . —Beaumont p. 166a(c); Proper Nixon v. Mr. Tex.R. Civ. also generally accepted the view of the lot ty Co., Management 546, 690 S.W.2d tery’s relationship players. with its See (Tex.1985). dеciding a disputed whether (12 City Washington, Clark v. 25 U.S. of precludes material fact summary judg issue Wheat.) 40, 60, (1827) (dicta); 544 6 L.Ed. ment, reviewing the court take as all will true Theuman, Annotation, John E. State Lotter favoring nonmovant; every evidence the rea by against ies: Actions Ticketholders State sonable from inference the evidence will be State, 662, or Contractors 40 A.L.R.4th nonmovant, indulged in any favor of the (1985) 663 and cases cited therein. Nixon, will doubts be resolved in his favor. law, At common when a contract is 690 at 549. If general, S.W.2d the order is by acceptance offer, a promоter’s formed of without specifying grounds the on which the rights the performed of contestant who has trial granted summary judgment, the act(s) the promoter’s in the offer nonmoving party appeal negate any must offer, is, by are limited of the terms the that grounds on which the trial court have сould by the conditions and rules of the contest as granted summary judgment. Malooly Brothers, public. made Bowlerama Texas Inc. v. 119, 121 Inc. v. Napier, 461 S.W.2d of 357, Miyakawa, 449 S.W.2d 359 Civ. Sipes Stewart, Petry v. & 812 dism’d). Antonio writ (Tex.App S.W.2d 430 Antonio — San . —San ease, principle 1991, writ). explicit by is hand, made no On the other a sum stаtute. Tex. Gov’t mary judgment defendant, disposing for a of (Vernon Supp.1998) (by purchase of if, proper only an entire is aas matter ticket, player agrees to law, abide and be plaintiff of the upon could not succeed rules). any bound the commission’s pleaded. Burns, Delgado theories 428,429 (Tex.1983) curiam). (per S.W.2d adopted by The rules the Texas Lot tery game Commission for the Lotto Texas A defendant conclusively ne placed on the Kinnards the “exclusive re gates at least of one the essential elements sponsibility” verify accuracy to the each plaintiff’s causes of action is player’s 16 selections. Admin. Code to summary judgment. entitled Wornick 401.305(f)(3) (West 1997). This caveat is Casas, v.Co. printed every playslip.2 also back of the may A defendant also show entitlement to by conclusively proving that, by using It is obvious to us the all elements of language responsibility,” an affirmative defense. “exclusive Tex the Montgomery Kennedy, Lottery place as Commission intended all occurrence, playslip 2. At the time of this the (cid:127) included these notations: ticket, playslip, only the the is valid (cid:127) You will receivе a your ticket from on-line proof only number selection and is the your game, terminal that lists chosen draw receipt prize. The Texas valid claim date(s) tickets, and numbers. your responsibility It is responsible is not lost or stolen your immediately check to make sure it (emphasis original) in represents game, date(s), the correct draw numbers. fault of a third claiming through not meet for tickets do corresponding ticket was issued? party no on the alone. player’s specifications certainly lamen- plight is appellants’ While case for several reasons. We think this is the table, of action a viable cause recognize plain meaning First innu- open the in door this case most responsibility.” The term “exclusive deceptive prac- and unenforceable merable of “exclusive” is “vested pertinent definition ticеs. person in one alone.” Black’s Law DICTIO Haynes Dep’t Lottery, 630 So.2d ed.1979). (5th pertinent The most NARY 1177, 1180(Fla.App.1994). “responsibility” is “The obli definition of done, and to gation to answer for an act respon find this allocation We therefore repair or otherwise make restitution Legis sibility with thе aims of consistent injury may Id. at 1179. it have caused.” lottery system creating in an efficient lature accepted by the terms of the offer Therefore This conclusion is taint of fraud. free of the lottery tick purchasing in their the decisions of courts also consistent K. this claim ets bars similar situations. states faced with sister Secondly, See, the mechanics of the Management e.g., v. Games Molina purpose point Svcs., to this conclusion. 462 N.Y.S.2d 58 N.Y.2d *5 Lottery (1983); efficient source of 395, 396, Texas is to be an A.L.R.4th N.E.2d revenue, by influ- 1179; criminal state untainted Thao v. Control Haynes, 630 So.2d at еnce,3 responsibility play- on the placing Wash.App. and 790 P.2d Carp., Data (1990). her for er to check his or own numbers efficiency system. errors furthers the of the reasons, find the Kin- all these we For recognize to position The is in a better as a negligence claims were barrеd nards’ or a har- the numbers he she selected than law, judgment was matter of and clerk line of customers ried faced with a proper. night a waiting play to Lotto Texas on the and second the Kinnards’ first We overrule drawing. it is difficult to believe the And points of error. expect Lоttery the Texas Commission against a multimillion- retailer to insure such profit the mar- dollar miscue when retailer’s ACTION THE DTPA CAUSE OF gin is five on the dollar.4 on a ticket cents argue it was error next that The Kinnards compelling rejecting reason most summary judgment on their claims grant to allocating respоn- the Kinnards’ claim is that Deceptive Practices the Texas Trade under discourages sibility tempta- manner in this Act, 17.41- Ann. arts. Tex. Bus. & Comm.Code quote from another tion. To from a case (Vernon that Supp.1997), and .63 1987 &
jurisdiction,
question:
faced with the same
hearing.
jury
Circle
claims
these
desеrve
[A]ny
right arising
enforceable
out
not
this transaction does
K contends that
appellants
a correct
alleged failure
issue
pur-
provision of
“service”
qualify as
policy
fail for
reasons. The
ticket must
K.
Circle
poses
agree
of the DTPA
We
litigation
protraсted
concerns
fraud
the
To
themselves of
on either
avail
imposing
militate
DTPA
they
first
were
vendors,
must
show
Lottery
the
or its
retailers
they
This means
must show
“consumers.”
instant
scenario.
contractors under
the
or
they “sought
acquire,
lease
appellants
implication
the
Without
оr services.”
purchase,
goods
in such a fraudulent
participated
herein
Tex. Bus.
(Vemon 1987).
17.45(4)
§
scheme,
prevent
from & Com.Code
what
someone
Ann.
qualify as
Kinnards do not
believe the
completing playslip moments after learn- We
this transaction
purposes
“consumers”
ing
winning
the
numbers and thereafter
(West 1997).
401.304(h)(4)
C.S.,
Act,
§
Leg.,
Code
1st
ch.
3. State
72nd
Admin.
Tex
(now
1991 Tex. Gen. Laws
sec.
(Vemon
at
codified
Gov’t
Tex
Supp.1997)).
because a lottery
right
partici
ticket is a
CONCLUSION
pate in
drawing
the
held twice week. As
of the trial court is in all
such,
intangible,
it is an
and therefore nei
things affirmed.
good
ther a
nor a service. See
Hand Dean
Inc.,
Reynolds
Witter
incidental to the transaction.
Kinnards qualify do not as “consumers” un-
der the DTPA summary judgment
proper. point The Kinnards’ third of error is
overruled. D.R.H., Appellant,
OPEN COURTS Texas, Appellee. The STATE of error, point In their fourth Kinnards contend that the trial court’s sum No. 14-97-00480-CV. I, mary judgment violates Art. sec. 13 Appeals Court of However, Texas Constitution. the Kinnards Dist.). (14th Houston did opposition not raise this claim in to Circle summary judgment; K’s motion for there Feb. City fore it waived. San Antonio v. Schautteet, Auth., City Houston v. Clear Creek Basin 589