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Barry v. Bally Gaming, Inc.

Court of Appeals of Colorado, Sixth Division

December 19, 2013

Charles Barry, Plaintiff-Appellant,
Bally Gaming, Inc., d/b/a Bally Technologies, a Nevada corporation; and CCSC/Blackhawk, Inc., d/b/a Lady Luck Casino Black Hawk, a Colorado corporation, Defendants-Appellees

Page 388

Gilpin County District Court No. 12CV58. Honorable Jack W. Berryhill, Judge.

Stoneman O'Connell, Todd Stoneman, Ann O'Connell, Longmont, Colorado, for Plaintiff-Appellant.

Dill Dill Carr Stonbraker & Hutchings, PC, Daniel W. Carr, Denver, Colorado, for Defendant-Appellee Bally Gaming, Inc.

Brownstein Hyatt Farber Schreck, LLP, Mark T. Barnes, Carrie E. Johnson, Denver, Colorado, for Defendant-Appellee CCSC/Blackhawk, Inc.

Opinion by JUDGE GABRIEL. Furman and Rothenberg[*] JJ., concur. JUDGE FURMAN and JUDGE ROTHENBERG concur.


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[¶1] Plaintiff, Charles Barry, appeals the district court's dismissal of his claims against defendants, Bally Gaming, Inc., d/b/a Bally Technologies (Bally) and CCSC/Blackhawk, Inc., d/b/a Lady Luck Casino Black Hawk (Lady Luck), for lack of jurisdiction over those claims. We conclude that (1) the district court correctly concluded that Barry's claims fall within the original and exclusive regulatory jurisdiction of the Colorado Limited Gaming Control Commission (the Commission), and (2) Barry has failed to show that exhaustion of his administrative remedies would be futile or would involve questions of law outside the agency's expertise or capacity to resolve. Accordingly, we affirm.

I. Background

[¶2] Barry alleges that he played a slot machine manufactured by Bally in a casino owned and operated by Lady Luck. He asserts that the machine indicated that he had won $31,202.41 but that a casino employee told him that the machine had malfunctioned. Accordingly, pursuant to a small plaque on the machine stating " malfunction voids all pays and plays," defendants refused to pay Barry the $31,202.41.

[¶3] Barry challenged defendants' position, and the Department of Revenue's Division of Gaming (Division) investigated the incident. The Division ultimately determined that the machine had, in fact, malfunctioned and that Barry was not entitled to the jackpot amount but rather had actually won just eighty cents. Barry sought review of the Division's decision by the Commission, but before the Commission had issued a final written decision, Barry filed the present lawsuit in district court.

[¶4] In this lawsuit, Barry brought claims against defendants for extreme and outrageous conduct, breach of implied contract, and violations of the Colorado Consumer Protection Act (CCPA), § § 6-1-101 to -1121, C.R.S. 2013. In support of his outrageous conduct claim, he alleged that Lady Luck's " revocation of the super jackpot" caused him severe emotional distress, and he sought money damages arising from Lady Luck's conduct. In support of the contract claim, he alleged that " Bally and Lady Luck breached their contract with [him] by failing to . . . pay out the super jackpot that their [machine] displayed as Barry's prize." And in support of his CCPA claim, he alleged that defendants do not inform patrons who lose when playing a slot machine if their loss was due to a machine malfunction but that defendants refuse to pay when a patron's win is caused by a malfunction. Barry thus sought monetary damages of $93,607.23, representing three times the amount of the super jackpot that he claims defendants improperly refused to pay him.

[¶5] Defendants moved to dismiss Barry's claims pursuant to C.R.C.P. 12(b)(1). As pertinent here, defendants argued that (1) the Commission had exclusive authority to resolve disputes related to limited gaming, (2) only the Colorado Court of Appeals has jurisdiction to conduct a judicial review of the

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Commission's action, and (3) this judicial review may be conducted only after Barry has exhausted his administrative remedies.

[¶6] The district court granted defendants' motion, concluding that the court lacked jurisdiction over Barry's claims because the Commission has original and exclusive jurisdiction and the administrative expertise to resolve a dispute between a casino and a patron related to limited gaming. The court further noted that after exhausting his administrative remedies, which Barry had not yet done, his remedy would be to seek judicial review in the Colorado Court of Appeals.

[¶7] Barry now appeals.

II. Standard of Review

[¶8] In considering a motion to dismiss for lack of subject matter jurisdiction pursuant to C.R.C.P. 12(b)(1), a district court examines the substance of the claim based on the facts alleged and the relief requested. City of Aspen v. Kinder Morgan, Inc., 143 P.3d 1076, 1078 (Colo. App. 2006). " The plaintiff has the burden of proving jurisdiction, and evidence outside the pleadings may be considered to resolve a jurisdictional challenge." Id. When, as here, " all relevant evidence is presented to the trial court, and the underlying facts are undisputed, the trial court may decide the ...

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