                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

ANNA MARIA CURCIO,                   NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D14-2324

STATE OF FLORIDA
DEPARTMENT OF THE
LOTTERY D/B/A FLORIDA
LOTTERY,

      Appellee.

_____________________________/

Opinion filed May 27, 2015.

An appeal from the Circuit Court for Leon County.
Terry P. Lewis, Judge.

Howard S. Marks, of Burr & Forman, LLP, Winter Park, and Lawrence G. Walters,
of Walters Law Group, Longwood, for Appellant.

Pamela Jo Bondi, Attorney General, and Teresa L. Mussetto and Joseph
Spejenkowski, Senior Assistant Attorneys General, Tallahassee, for Appellee.




WETHERELL, J.

      Appellant’s husband purchased what appeared to be a winning scratch-off

lottery ticket worth $500,000, but Appellee (the Lottery) refused to pay the prize
because the ticket turned out to be a “misprint.” Appellant 1 sued the Lottery under

a variety of legal theories. The trial court granted judgment on the pleadings and

summary judgment in favor of the Lottery. For the reasons that follow, we affirm.

                        Factual and Procedural Background

        In May 2007, Appellant’s husband purchased a $20 “Gold Rush” scratch-off

lottery ticket. The front of the ticket stated: “Match any of YOUR NUMBERS to

any of the WINNING NUMBERS, win prize shown for that number.” The back of

the ticket stated that “[a]ll tickets, transactions, and winners are subject to Lottery

Rules and State Law.” The rule adopted by the Lottery for the “Gold Rush” game

specified that the “YOUR NUMBERS” and the “WINNING NUMBERS” are

comprised of both “play symbols and play symbol captions,” including               and


       . See Fla. Admin. Code R. 53ER07-1(4), (5).

        One of the “YOUR NUMBERS” on the ticket purchased by Appellant’s

husband was         with an associated prize of $500,000. One of the “WINNING

NUMBERS” on the ticket also appeared to be a 1, but the caption under the number

included the letters TH and a partial N, which indicated that the number was a 13,




1
    Appellant became the holder of the ticket after her husband died.

                                           2
not a 1 (i.e., play symbol        , not play symbol      ). 2 The summary judgment


evidence established that the missing portions of the        play symbol and caption

was the result of a “misprint” caused by an ink jet malfunction in the machine that

printed the ticket.

      Appellant’s husband presented the ticket to the retailer from whom he

purchased the ticket for validation, but the ticket did not validate as a winner. He

then went to the Lottery’s headquarters in Tallahassee to collect the $500,000 prize

shown on the ticket. The Lottery refused to pay the prize because it was not able to

validate the ticket through its system. 3

      Thereafter, in May 2010, Appellant filed a complaint against the Lottery

raising a variety of legal theories. The complaint, as amended, alleged claims for

breach of contract, equitable estoppel, unfair and deceptive trade practices,

misleading advertising, and promissory estoppel. All of the claims were based on

the Lottery’s refusal to pay Appellant the $500,000 prize despite what appeared to

be matching numbers on the ticket.


2
  The Appendix to this opinion contains a copy of Appellant’s ticket and
enlargements of the relevant portions of the ticket.
3
  The trial court did not base the summary judgment on this ground because even
though validation of the ticket is a mandatory requirement for payment of a prize,
see Fla. Admin. Code R. 53ER06-4(11)(g), (i), (j), the court found that there was “at
least some slight dispute of fact on that issue.” This factual dispute is immaterial to
the issues raised by Appellant on appeal.

                                            3
      The trial court granted judgment on the pleadings in favor of the Lottery on

the equitable estoppel claim4 and granted summary judgment in favor of the Lottery

on the other claims. The trial court reasoned that the unfair and deceptive trade

practices and misleading advertising claims were barred by sovereign immunity5 and

that the Lottery was entitled to judgment as a matter of law on the promissory

estoppel and breach of contract claims.

      Appellant thereafter filed a motion for rehearing in which she argued that,

under the Lottery’s rules,6 she was at least entitled to a judgment for the $20 purchase

price of the ticket. 7 The Lottery filed a response in opposition to the motion in which

it pointed out that the amended complaint alleged that the Lottery breached the


4
  Appellant does not challenge this ruling on appeal.
5
   The grant of summary judgment on these claims followed a decision from this
court holding that “the sovereign immunity defense to Counts III [unfair and
deceptive trade practices] and IV [misleading advertising] raises questions of law
and can be resolved without resort to discovery.” Dep’t of Lottery v. Curcio, 71 So.
3d 931, 932 (Fla. 1st DCA 2011).
6
  See Fla. Admin. Code R. 53ER06-4(11)(j) (“In the event a defective ticket is
purchased, the only responsibility or liability of the Florida Lottery shall be the
replacement of the defective ticket with an unplayed ticket or tickets of equivalent
sales price from a current Florida Lottery game, or refund the retail sales price.”).
7
   Specifically, the motion asked the trial court to rehear and/or reconsider its
disposition of the breach of contract and promissory estoppel claims and then
“[a]ward judgment in favor of [Appellant] in the minimum amount of $20.00
representing the purchase price of the ticket.” Alternatively, the motion sought to
“conform the pleadings to the undisputed evidence, or permit [Appellant] to amend
[the breach of contract count in the complaint] to alternatively assert that [the
Lottery] breached the contract between the Parties by both failing to pay the
promised prize and by failing to refund [Appellant] the $20 purchase price of the
Ticket.”

                                           4
contract with Appellant by refusing to pay her the $500,000 prize, not by its failure

to provide a $20 refund that Appellant never requested before filing suit. The trial

court denied the motion without comment.

      This appeal followed.

                                      Analysis

      Appellant raises three issues on appeal. First, she contends that the trial court

erred in determining that her unfair and deceptive trade practices and misleading

advertising claims are barred by sovereign immunity. Second, she contends that the

trial court erred in determining that the Lottery did not breach the contract embodied

in the lottery ticket when it refused to pay her the $500,000 prize.8 Third, she

contends that the trial court erred in determining that the Lottery could not be liable

for promissory estoppel under the circumstances of this case.

      We find no merit in any of the issues raised by Appellant.

      With respect to the first issue, the trial court correctly ruled that although

sovereign immunity has been waived for breach of contract claims against the State


8
  Notably, under this issue, Appellant did not argue that the trial court erred in
entering judgment in favor of the Lottery on the breach of contract claim because
she was entitled to a judgment for the $20 purchase price of the ticket pursuant to
the Lottery’s rules. Nor did Appellant argue that the trial court abused its discretion
in denying her motion for rehearing on this point. She did raise her entitlement to a
refund of the purchase price of the ticket in her argument on the promissory estoppel
issue, but as discussed below, that claim is barred as a matter of law. Accordingly,
the question of whether the trial court should have awarded Appellant $20 on her
breach of contract claim is not properly before us in this appeal.

                                          5
and its agencies, see Pan-Am Tobacco Corp. v. Department of Corrections, 471 So.

2d 4 (Fla. 1984), sovereign immunity has not been waived for the unfair and

deceptive trade practices and misleading advertising claims asserted by Appellant.

These claims are not common law tort claims subject to the waiver of sovereign

immunity in section 768.28, Florida Statutes; they are statutory claims arising under

part II of chapter 501 (unfair and deceptive trade practices) and section 817.41

(misleading advertising), respectively. Neither of those statutes contains a clear and

unequivocal waiver of the State’s sovereign immunity, 9 nor is there anything in the

Lottery’s enabling statute, chapter 24, Florida Statutes, that amounts to a clear and

unequivocal waiver of sovereign immunity for the statutory claims alleged by

Appellant. See generally Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp.,

908 So. 2d 459, 472 (Fla. 2005) (“[A]ny waiver of sovereign immunity must be clear

and unequivocal.”).

      Moreover, even if the unfair and deceptive trade practices and misleading

advertising claims were not barred by sovereign immunity, we would still affirm the

summary judgment on these claims because the claims lack merit. The claims are

premised on Appellant’s allegation that the ticket purchased by her husband was a


9
  Accord Stansell v. New Mexico Lottery, 211 P.3d 214, 217-18 (N.M. Ct. App.
2009) (holding that state’s unfair trade practice statute did not apply to activities of
the state lottery agency); Janis v. California State Lottery Comm’n, 68 Cal App. 4th
824, 831 (Cal. Ct. App. 1998) (same); Bretton v. State Lottery Comm’n, 673 N.E.
2d 76, 78-79 (Mass. App. Ct. 1996) (same).

                                           6
winner. However, as more fully discussed below, this premise is refuted by the

summary judgment evidence, which established that the ticket was not a winner

based on the clear and unambiguous terms and conditions in the applicable statutes

and rules that were incorporated by reference on the back of the ticket.

       With respect to the second issue, the trial court correctly concluded that it was

not a breach of contract 10 for the Lottery to refuse to pay Appellant the $500,000

prize shown on the ticket. In support of its conclusion, the trial court relied on

section 24.115(1)(c), Florida Statutes, which provides in pertinent part that “[n]o

prize may be paid arising from claimed tickets that are . . . produced or issued in

error, unreadable, . . . lacking in captions that confirm and agree with the lottery play

symbols as appropriate to the lottery game involved . . . .” The trial court reasoned

that this statute

       is not some obscure, archaic detail that a reasonable person could not
       anticipate. It is only common sense that the state would want to insure,
       for the security of the lottery system and its many players, that prizes
       were not paid out because of either intentional conduct of parties or
       innocent mistakes in the production or issuance of tickets. Anyone who
       buys a lottery ticket knows, or should know, that there will be such
       security measures for protection of both the state and those who actually
       have a legitimate winning ticket.

The trial court went on to explain that:



10
   A lottery winner’s entitlement to a prize is governed by principles of contract law.
See Miller v. Dep’t of Lottery, 638 So. 2d 172 (Fla. 1st DCA 1994); Haynes v. Dep’t
of Lottery, 630 So. 2d 1177 (Fla. 1st DCA 1994).

                                           7
      the fact that the word "misprint" is not included in the language of the
      [statute], does not mean it does not apply. Clearly, here, under the
      undisputed facts, the ticket was “produced or issued in error”, and it
      also was “lacking in captions that confirm and agree with the lottery
      play symbols as appropriate to the lottery game involved.” . . . .

      I thus agree with the [Lottery] that under the undisputed facts, the above
      statutory exception is part of the contract and therefore there is no
      enforceable agreement between the [Appellant] and the [Lottery] to pay
      any prize to the [Appellant]. Even in the absence of the above-quoted
      statutory provision, under the undisputed facts, there would be no
      breach of contract as a matter of law. The agreement is that a prize will
      be awarded if the numbers match. Here there are two sets of “numbers”.
      There is the arabic numeral (1) and an alpha numerical number (one).
      Although one of those numbers match with the winning number, both
      do not. The [Appellant] asserts that that is of no importance because the
      arabic numerals do match. That interpretation of the “contract”, would
      render part of it meaningless, however, which is contrary to
      fundamental rules of interpretation. What purpose would the alpha
      numerical numbers play if they were not meant to be part of the
      “numbers” that match? I can’t think of any other reason to include both
      the arabic numerals and alpha numerical numbers on the form except
      to validate or confirm that the number on the ticket matches the winning
      number.

      We fully agree with this analysis and adopt it as our own. We note that this

analysis is consistent with the decisions from other states rejecting breach of contract

claims under nearly identical circumstances. See Consola v. New York, 84 A.D. 3d

1557 (N.Y. App. Div. 2011) (affirming summary judgment in favor of state lottery

agency that refused to pay a $5 million prize because the disputed ticket contained

an illegible play symbol caption resulting from a misprint that made it appear that

one of the numbers was a 6 when it was actually a 26); Plourde v. Conn. Lottery

Corp., 2000 WL 1918014 (Conn. Super. Ct. Dec. 18, 2000) (granting summary

                                           8
judgment in favor of state lottery agency on breach of contract claim because state

law prohibited payment on tickets printed in error and the ticket at issue contained

game symbols 6 and 9 that resembled the winning number 8 but the captions below

symbols read “six” or “nine”); Ga. Lottery Corp. v. Sumner, 529 S.E.2d 925 (Ga.

Ct. App. 2000) (holding that state lottery agency did not breach contract in

determining that scratch-off ticket was not a winner because the mark on the ticket

that resembled the winning symbol resulted from a printing error); Valente v. Rhode

Island Lottery Comm’n, 544 A.2d 586 (R.I. 1988) (reversing decision in favor of

plaintiff who claimed to have won a $10,000 prize on a scratch-off lottery ticket

because the winning number on the ticket was blurred and ambiguous and the ticket

failed all of the lottery’s validation tests); Ruggiero v. State Lottery Comm’n, 489

N.E. 2d 1022 (Mass Ct. App. 1986) (reversing decision in favor of plaintiff who

claimed to have won a $100,000 prize on scratch-off lottery ticket because the

evidence showed that the ticket had been misprinted and could not be validated as a

winner as required by the applicable statutes and rules).

      With respect to the third issue, the trial court correctly concluded that

Appellant’s promissory estoppel claim was merely a recasting of her breach of

contract claim. The promise relied on by Appellant as a basis for this claim was the

Lottery’s promise on the face of the ticket to pay a prize if the numbers on the ticket

matched; however, this was the precisely the same ground on which Appellant’s


                                          9
breach of contract claim was based. Because Appellant failed to prove her breach

of contract claim, she cannot get “a second bite at the apple” by recasting the claim

as one of promissory estoppel. See Advanced Mktg. Sys. Corp. v. ZK Yacht Sales,

830 So. 2d 924, 928 (Fla. 4th DCA 2002) (“Promissory estoppel is not a doctrine

designed to give a party to a negotiated commercial bargain a second bite at the apple

in the event it fails to prove breach of contract.”) (quoting Gen. Aviation, Inc. v.

Cessna Aircraft Co., 915 F.2d 1038, 1042 (6th Cir. 1990)). Moreover, on the merits,

the trial court correctly noted that because “the numbers didn’t match . . . [the

Lottery] did not fail to deliver on that promise as a matter of law.”

                                     Conclusion

      For the foregoing reasons, we affirm the judgment in favor of the Lottery.

      AFFIRMED.

ROWE and MAKAR, JJ., CONCUR.




                                          10
  APPENDIX

Appellant’s ticket




       11
     Enlargement of the relevant portion of the
“WINNING NUMBERS” play area on Appellant’s ticket




     Enlargement of the relevant portion of the
 “YOUR NUMBERS” play area on Appellant’s ticket




                       12
