Mohegan Tribal Gaming Authority v. Jerome Powers (2010)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 119

FACTS

The plaintiff, the Mohegan Tribe Gaming Authority, commenced this action to collect certain debts from the defendant, Jerome Powers, by service of process on December 7, 2009.   In count one, the plaintiff alleges that the defendant issued to the plaintiff six checks drawn on a Mellon United National Bank account on May 23, 2009 totaling $1.2 million.   The checks were not honored by the bank.   Demand for payment was made, but the defendant has failed, refused and/or neglected to make the payments owed.   Attached to the complaint are copies of the returned checks (exhibits A through F), a copy of a casino credit agreement between the plaintiff and the defendant dated February 5, 2008 and signed by the defendant (exhibit G) and copy of the amendment to that agreement dated and signed May 23, 2009 (exhibit H).¹  The plaintiff seeks to recover the $1.2 million it lost because of the dishonored checks, as well as interest, costs and attorneys fees per the casino credit agreement.   In count two, the plaintiff alleges that the defendant has a Player's Club account and, on May 27, 2009, he over-drafted that account by $55,197.34.   The defendant repaid $25,000.   The plaintiff seeks restitution in the amount of $30,197.34 plus interest, costs and attorneys fees per the casino credit agreement.

On June 8, 2010, the defendant filed a motion to strike both counts of the complaint on the ground that it fails to state a claim for which relief can be granted because this court cannot enforce an illegal wagering contract.   The defendant filed a memorandum of law.   On June 10, 2010, the plaintiff objected and filed a memorandum of law.   This court heard oral argument on July 12, 2010.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).  “[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994).   Accordingly, “[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).   When ruling on a motion in strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Id.

“[A] motion to strike is essentially a procedural motion that focuses solely on the pleadings ․ It is, therefore, improper for the court to consider material outside of the pleading that is being challenged by the motion.”   (Internal quotation marks omitted.)  Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).  “A speaking motion to strike is one improperly importing facts from outside the pleadings.”  Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).  “Where the legal grounds for such a motion are dependent upon underlying facts not alleged in the plaintiff's pleadings, the defendant must await the evidence which may be adduced at trial, and the motion should be denied.”  (Internal quotation marks omitted.)  Commissioner of Labor v. C.J.M Services, Inc., 268 Conn. 283, 293, 842 A.2d 1124 (2004).

The defendant argues that a wagering contract is illegal and void and against the public policy of the state.   He maintains that when a claim is not properly cognizable or enforceable by a court, the court must strike the count as a matter of law.   In response, the plaintiff maintains that casino gambling is not illegal.   Pursuant to the Tribal State Compact, which is attached as exhibit B to the plaintiff's memorandum, the governor of this state agreed to allow the Mohegan Tribe to conduct casino gambling on its reservation lands.²  It argues that it is not against public policy to enforce the contract.   The state receives considerable revenue from the casino gambling, as demonstrated by an exhibit C attached to the plaintiff's memorandum, and thus the state has a vested interest in protecting casinos.   As a preliminary matter, the court notes that it cannot consider the document attached to the plaintiff's memorandum of law marked exhibit C as it is evidence outside the pleadings.

“Our rules of practice require certain matters to be raised as special defenses, including ‘illegality not apparent on the face of the pleadings ․’ Practice Book § 10-50.   The purpose of requiring affirmative pleading is to apprise the court and the opposing party of the issues to be tried and to prevent concealment of the issues until the trial is underway.”  (Internal quotation marks omitted.)  Parente v. Pirozzoli, 87 Conn.App. 235, 240-41, 866 A.2d 629 (2005).

“It is well recognized that no court will lend its assistance in any way toward carrying out the terms of a contract, the inherent purpose of which is to violate the law ․ In case any action is brought in which it is necessary to prove the illegal contract in order to maintain the action, courts will not enforce it, nor will they enforce any alleged right directly springing from such contract.”  (Citation omitted;  internal quotation marks omitted.)   Id., 246.  “[W]hether a contract is enforceable or illegal is a question of law for the court, to be determined from all the facts and circumstances of each case.   Similarly ․ the question whether a contract is against public policy is [a] question of law dependent on the circumstances of the particular case ․” Id., 245.

The crux of the parties' dispute is whether gambling on credit is illegal or contrary to the public policy of the state.   The defendant cites General Statutes § 52-533 for the proposition that it is illegal.³  Surprisingly, the defendant does not cite Sokatis v. Bakaysa, 293 Conn. 17, 975 A.2d 51 (2009), the most recent case in which our Supreme Court examined the scope of that statute and discusses our state's public policy regarding gambling and contracts related thereto.   Although the plaintiff concedes in its brief that “the debts incurred were largely for gambling or other activities related thereto,” this is not necessarily apparent from the face of the pleadings.   All the facts and circumstances necessary to resolve this dispute are not properly before the court on a motion to strike.

Accordingly, the motion to strike must be denied.

The Court

Cosgrove, J.

FOOTNOTES

FN1. “Any plaintiff desiring to make a copy of any document a part of the complaint may, without reciting it or annexing it, refer to it as Exhibit A, B, C, etc., as fully as if it had been set out at length;  but in such case the plaintiff shall serve a copy of such exhibit or exhibits on each other party to the action forthwith upon receipt of notice of the appearance of such party and file the original or copy of such exhibit or exhibits in court with proof of service on each appearing party ․” Practice Book § 10-29(a).   A complaint includes all exhibits attached thereto.”  (Citation omitted;  internal quotation marks omitted.)  Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).   Accordingly, the court shall consider the exhibits attached to the complaint..  FN1. “Any plaintiff desiring to make a copy of any document a part of the complaint may, without reciting it or annexing it, refer to it as Exhibit A, B, C, etc., as fully as if it had been set out at length;  but in such case the plaintiff shall serve a copy of such exhibit or exhibits on each other party to the action forthwith upon receipt of notice of the appearance of such party and file the original or copy of such exhibit or exhibits in court with proof of service on each appearing party ․” Practice Book § 10-29(a).   A complaint includes all exhibits attached thereto.”  (Citation omitted;  internal quotation marks omitted.)  Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).   Accordingly, the court shall consider the exhibits attached to the complaint.

FN2. “The Indian Gaming Regulatory Act (gaming act);  25 U.S.C. § 2701 et seq. (1994);  regulates gaming operations on tribal land.   The gaming act permits a recognized tribe to conduct ‘Class III’ gaming only when the gaming operation is conducted in accordance with a gaming compact with a state and approved by the United States Secretary of the Interior.   See 25 U.S.C. § 2710(d)(1)(C) and (8) (1994).   The tribe has been recognized by an act of Congress and by the state of Connecticut.   In accordance with the gaming act, the tribe and the state of Connecticut entered into the Mohegan Tribe-State of Connecticut Gaming Compact (gaming compact), which governs gaming operations on the tribe's reservation.   The gaming compact was approved by the Secretary of the Interior and was incorporated by reference into federal law.   Sec 25 U.S.C. § 1775 (1994).”  Kizis v. Morse Diesel Intern., Inc., 260 Conn. 46, 54-55, 794 A.2d 498 (2002)..  FN2. “The Indian Gaming Regulatory Act (gaming act);  25 U.S.C. § 2701 et seq. (1994);  regulates gaming operations on tribal land.   The gaming act permits a recognized tribe to conduct ‘Class III’ gaming only when the gaming operation is conducted in accordance with a gaming compact with a state and approved by the United States Secretary of the Interior.   See 25 U.S.C. § 2710(d)(1)(C) and (8) (1994).   The tribe has been recognized by an act of Congress and by the state of Connecticut.   In accordance with the gaming act, the tribe and the state of Connecticut entered into the Mohegan Tribe-State of Connecticut Gaming Compact (gaming compact), which governs gaming operations on the tribe's reservation.   The gaming compact was approved by the Secretary of the Interior and was incorporated by reference into federal law.   Sec 25 U.S.C. § 1775 (1994).”  Kizis v. Morse Diesel Intern., Inc., 260 Conn. 46, 54-55, 794 A.2d 498 (2002).

FN3. General Statutes § 52-533 provides in relevant part:  “Wagering contract void.  “All wagers, and all contracts and securities of which the whole or any part of the consideration is money or other valuable thing won, laid or bet, at any game, horse race, sport or pastime, and all contracts to repay any money knowingly lent at the time and place of such game, race, sport or pastime, to any person so gaming, betting or wagering, or to repay any money lent to any person who, at such time and place, so pays, bets or wagers, shall be void ․”.  FN3. General Statutes § 52-533 provides in relevant part:  “Wagering contract void.  “All wagers, and all contracts and securities of which the whole or any part of the consideration is money or other valuable thing won, laid or bet, at any game, horse race, sport or pastime, and all contracts to repay any money knowingly lent at the time and place of such game, race, sport or pastime, to any person so gaming, betting or wagering, or to repay any money lent to any person who, at such time and place, so pays, bets or wagers, shall be void ․”

Cosgrove, Emmet L., J.