Justin CURZI, on behalf of himself and all other similarly situated individuals, Plaintiff-Appellant,
OREGON STATE LOTTERY; IGT (INC.); GTECH Canada, ULC; and WMS Gaming, Inc., Defendants-Respondents.
and submitted on August 26, 2016.
County Circuit Court 14CV20598; Judith H. Matarazzo, Judge.
Zollinger argued the cause for appellant. With him on the
briefs were Outside General Counsel Services, P.C., Helen C.
Tompkins, and Tompkins Law Offce, LLC.
L. Kutler, Assistant Attorney General, argued the cause for
respondent Oregon State Lottery. With him on the brief were
Ellen F. Rosenblum, Attorney General, and Paul L. Smith,
Deputy Solicitor General.
W. Sondag argued the cause for respondents IGT (Inc.) and
GTECH Canada, ULC. With him on the brief was Lane Powell PC.
S. Daniels, Timothy W. Snider, and Stoel Rives LLP fled the
brief for respondent WMS Gaming, Inc.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
brought claims against the Oregon State Lottery (the Lottery)
and several manufacturers who make video poker machines for
the [286 Or.App. 255] Lottery. Plaintiff appeals from a
judgment dismissing his claims with prejudice and a
supplemental judgment awarding prevailing party fees to the
manufacturers. On appeal, plaintiff raises two assignments of
error. First, plaintiff argues that the trial court
erroneously granted defendants' motions to dismiss after
it incorrectly concluded that (1) plaintiff failed to provide
timely notice of his tort claims against the Lottery as
required by ORS 30.275(2)(b) and (2) the state had not waived
sovereign immunity from plaintiff's quasi-contract claim.
Second, plaintiff argues that the trial court erred because,
under ORS 20.190(6)(a), prevailing party fees may not be
assessed in a "class action proceeding under ORCP
failed to provide the state with timely notice of his tort
claims under ORS 30.275(2)(b). Plaintiff was or reasonably
should have been aware that he had been harmed by the
Lottery's conduct more than 180 days before he fled his
tort claim notice, the Lottery's torts were not
"continuing, " plaintiff failed to allege that he
played any of the purportedly flawed video poker games within
180 days of his tort claim notice, and there were no other
joined class representatives whose claims were not time
barred. Further, the state had not waived sovereign immunity
from plaintiff's quasi-contract claim against the
Lottery. Finally, the manufacturers were not entitled to
prevailing party fees because, although the proceeding was
never "maintained" or certified as a class action,
it was alleged as a class action under ORCP 32, and, thus,
the manufacturers were barred from recovering prevailing
party fees by ORS 20.190(6)(a).
judgment reversed and remanded; otherwise affirmed.
Or.App. 256] SHORR, J.
Justin Curzi appeals from a judgment dismissing his claims
with prejudice and a supplemental judgment awarding certain
defendants their prevailing party fees. Plaintiff played
state-sanctioned video poker machines offered by defendant
Oregon State Lottery (the Lottery). Plaintiff brought claims
against both the Lottery and several defendants who
manufacture video poker machines for the Lottery
(collectively, the manufacturers). On appeal, plaintiff raises
two assignments of error. Plaintiff first assigns error to
the trial court's dismissal of his claims with prejudice.
Plaintiff argues that the trial court erred when it dismissed
plaintiff's tort claims after it concluded that plaintiff
failed to provide timely notice of his claims within the
180-day tort-claim notice period required by the Oregon Tort
Claims Act (OTCA), ORS 30.275(2)(b). Plaintiff also argues
that the trial court erred when it dismissed his unjust
enrichment claim based on its conclusion that the State of
Oregon had not waived sovereign immunity from quasi-contract
claims. We conclude that the trial court did not
err in granting defendants' motion to dismiss with
prejudice on either of those bases.
plaintiffs second assignment of error, plaintiff contends
that the trial court erred in assessing prevailing party fees
against him in the supplemental judgment because, under ORS
20.190(6)(a), prevailing party fees may not be assessed in a
"class action proceeding under ORCP 32." We agree
that the trial court erred in assessing prevailing party fees
against plaintiff because, while this case was not
"maintained" or certified as a class action
proceeding, it was alleged as a class action proceeding under
ORCP 32, and a plaintiff who alleges such a proceeding is not
subject to prevailing party fees, even if that plaintiff does
not [286 Or.App. 257] ultimately prevail. As a result, we
affirm the general judgment, but reverse the award of
prevailing party fees to the manufacturers in the
to the merits of this appeal. For the purpose of deciding
whether a trial court erred in granting an ORCP 21 motion to
dismiss, we assume the truth of all well-pleaded facts
alleged in the complaint. Doe v. Lake Oswego School
District, 353 Or. 321, 323, 297 P.3d 1287 (2013).
Further, where the parties have "quoted from, cited,
attached, and incorporated by reference a number of
documents" outside of the pleadings, we can
"consider [those] 'matters outside the pleading[s],
including affidavits, declarations and other evidence
presented to the court.'" Martin v. Lane
County, 281 Or.App. 285, 286-87, 383 P.3d 903 (2016)
(quoting ORCP 21 A(1)). However, we "must use care to
insure that [our] determination of the facts on a motion to
dismiss does not interfere with a party's right to a
trial on disputed questions of material fact." Black
v. Arizala, 337 Or. 250, 265, 95 P.3d 1109 (2004).
we assume the truth of the allegations in the complaint and
may rely on the undisputed facts that the parties
presented to the trial court in documents that supplemented
their pleadings. Here, the parties presented a number of
documents to the trial court to supplement their pleadings.
The parties did not dispute the facts in those documents,
although the parties argue that there are different
conclusions to be drawn from those facts, which we address
below. Further, the parties relied on those documents in the
trial court to make their arguments, and continue to do so
to those facts, the Lottery owns and operates video poker
machines made by the manufacturers. Those video poker
machines have an auto-hold feature that recommends to players
at certain points during their games which cards players
should discard or keep. Players have the option of overriding
the auto-hold feature at any time; however, players must
actively elect not to rely upon the auto-hold feature in
order to avoid following its recommended strategies. The
auto-hold feature does not always [286 Or.App. 258] recommend
the best possible playing strategy, and, at times, a
player's odds of winning would increase were that player
to disregard the auto-hold recommendation. The auto-hold
strategy is programmed by the manufacturers.
Lottery advertises the theoretical payouts for each video
poker game, but does not disclose the theoretical payouts
adjusted for the suboptimal strategies recommended by some
auto-hold features. However, on its website, the Lottery does
state, "Auto-hold strategies vary by game, based on the
particular features of a game and do not necessarily result
in theoretical payouts."
January 2014, plaintiff was playing video poker on one of the
machines owned by the Lottery and made by a defendant
manufacturer when he noticed that the game's auto-hold
feature was recommending a suboptimal strategy based on his
particular hand. On January 16, 2014, plaintiff emailed the
Lottery requesting more information about the auto-hold
feature. In that email, plaintiff stated:
"By holding the cards you suggested to me, I have a 50%
lesser chance of winning. My impression of the rules and
regulations surrounding the 'Hold' feature on your
machines is that the state of Oregon is being fair and
telling me the best possible hand to be played. This does not
seem to be the case.
"I'm concerned not only for this particular hand,
but also, for a) the number of times this hand must have been
misrepresented in the history of all of your machines and
also b) which other hands in these machines are telling the
bettor the wrong cards to hold."
Lottery responded by email on February 3, 2014. In that
response, a representative of the Lottery denied any
"OAR 177-200-0070 Requirements for Poker Games (3)
"Any auto hold features that assist players in their
decision as to which of the cards to hold and discard for the
chance to obtain a winning combination ...