Opinion
No. 98-2366.
Opinion filed October 13, 1999.
An appeal from the Circuit Court for Dade County, Gisela Cardonne, Judge, L.T. No. 95-3470.
Frank M. Marks and Richard J. Diaz, for appellant/cross-appellee.
Akerman, Senterfitt Eidson and David R. Carlisle and Steven E.M. Hartz, for appellees/cross-appellants.
Before SCHWARTZ, C.J., and JORGENSON and COPE, JJ.
Randy Giunto appeals from an order granting a new trial. Appellees Florida Coca-Cola Bottling Company, Blockbuster Entertainment Corporation and Florida Panthers Hockey Club, Limited ("the Sponsors") cross appeal from orders denying their motions for directed verdict and for judgment notwithstanding the verdict. We reverse on the cross appeal, rendering the main appeal moot.
In March 1994, Mr. Giunto completed a sweepstakes application for the "Coca-Cola/Blockbuster/Florida Panthers Sweepstakes." The application contained contest rules (the "Entry Form Rules"). Pursuant to the Entry Form Rules, ten persons would be chosen to receive free tickets to one of ten different Florida Panthers home games. At the game, the ticket winner would be given a chance to win $1,000,000 by shooting a hockey puck across the ice "into and through a special small goal." Mr. Giunto was selected as one of the persons to have a try at the $1,000,000 prize.
On March 18, 1994, Mr. Giunto appeared at the designated Florida Panthers game for his attempt at the prize. Just prior to his attempt, Mr. Giunto signed a Spectator Agreement to Participate (the "SAP"). Included on the SAP was the requirement that in order for the contestant to win, the puck had to "pass completely through" the goal.
The target in this case was a piece of plywood placed in front of the hockey goal. At the bottom of the plywood sheet a small slot had been created, somewhat larger than the hockey puck.
From a position 118 feet from the hockey goal Mr. Giunto took the contest shot. A videotape shows that the puck hit the corner of the small slot and rebounded from side to side. It did not go completely through the opening, but came to rest just slightly within the slot. A contest judge declared that the shot was unsuccessful.
The Sponsors acknowledge that the puck passed the plane of the opening of the goal. Mr. Giunto acknowledges that the puck did not pass "completely through" the goal.
Mr. Giunto sued the Sponsors for breach of contract alleging that he had successfully made the goal. Mr. Giunto contended that the controlling contest requirement was that the puck pass "into and through" the goal; that the SAP requirement that the puck pass "completely through" the goal was a nullity; and that "into and through" was satisfied if any part of the puck entered the opening, even if the puck did not pass completely through the opening.
The trial court submitted the case to a jury, which found in favor of Mr. Giunto. The court ordered a new trial for reasons we need not explore here, and Mr. Giunto appealed the new trial order. The Sponsors cross appealed, contending that they were entitled to judgment as a matter of law. We agree with the Sponsors.
The Sponsors, in their motion for directed verdict and motion for judgment notwithstanding the verdict, claimed that Mr. Giunto's claims were barred because the contest judge had made the determination that Mr. Giunto did not successfully make the shot. The Entry Form Rules provided, "By participating in this sweepstakes, entrants agree to abide by and be bound by these official rules and the decisions of the judges which are final in all matters relating to this sweepstakes." By submitting the application containing the Entry Form Rules, Mr. Giunto agreed to abide by the decision of the judges.
This is akin to an arbitration clause which accomplishes "the salutary purpose of resolving controversies out of court." Royal Caribbean Cruises, Ltd. v. Universal Employment Agency, 664 So.2d 1107, 1108 (Fla. 3d DCA 1995).
Other jurisdictions have held that "when a contestant agrees to be bound by the decisions of a tournament director or an awards committee, such decisions are final and binding on contestants absent fraud, gross mistake, or lack of good faith." National Amateur Bowlers, Inc. v. Tassos, 715 F. Supp. 323, 325 (D. Kan. 1989) (citation omitted); Ahrens v. McDaniel, 336 S.E.2d 505, 506 (S.C. Ct. App. 1985) (holding that decisions of the tournament committee would be final, unless there was "fraud, intentional or gross mistake, or lack of good faith"); Johnson v. New York Daily News, 467 N.Y.S.2d 665, 666 (N.Y. App. Div. 1983) (holding that the decisions of the independent judging organization would be final, "unless there has been a fraud, intentional or gross mistake, irregularity, or lack of good faith"); cf. National Collegiate Athletic Assoc. v. Brinkworth, 680 So.2d 1081, 1084 (Fla. 3d DCA 1996) (finding that association's internal decision precluding a student-athlete from playing football would not be reversed where the procedure implemented in the decision making was fair and there was no suggestion that the association acted maliciously or in bad faith). See generally Michael P. Sullivan, Annotation, Private Contests and Lotteries: Entrants' Rights and Remedies, 64 A.L.R. 4th 1021 (1988); 38 Am. Jur. 2d Gambling § 246 (1999).
The contest judge determined that Mr. Giunto had not successfully made the hockey shot. There was neither pleading nor proof of fraud, gross mistake, or lack of good faith. When the puck entered the plywood slot but did not pass completely through it, the contest judge was required to decide whether Mr. Giunto had won under the contest rules. The judge's decision was binding on Mr. Giunto.
As to the question of whether the puck had to pass "into and through," or "completely through," the opening, Mr. Giunto signed the SAP which stated, in pertinent part, "I understand that the Official Rules are as follows: . . . 9. The puck must pass completely through the target template." This document clearly informed Mr. Giunto, before he took his contest shot, that the judges would interpret "into and through" to mean "completely through" in order to win. The contest judge's ruling was in accordance with that interpretation. We are inclined to think that "into and through" means "completely through," but if there is any room for interpretation, it is better that the interpretation be issued before, rather than after, the attempt at the prize.
A videotape of five other contests using the same plywood goal elsewhere in the country showed that in the other contests, the winning puck passed completely through the goal in each case.
Accordingly, we reverse on the cross appeal with directions to the trial court to enter judgment in favor of the Sponsors. In light of that ruling, Mr. Giunto's appeal is moot.
Reversed and remanded with directions.
JORGENSON, J., concurs.
The unilateral offers in this case represent the ultimate in "contracts of adhesion," Pasteur Health Plan, Inc. v. Salazar, 658 So.2d 543 (Fla. 3d DCA 1995), review denied, 666 So.2d 901 (Fla. 1996); Hussmann Corp. v. UPS Truck Leasing, Inc., 549 So.2d 215 (Fla. 5th DCA 1989). It is therefore the rule that any ambiguities or conflicts within or between the agreements must be resolved against the draft persons. See Stuyvesant Ins. Co. v. Butler, 314 So.2d 567 (Fla. 1975); Graham v. Scissor-Tail, Inc., 28 Cal.3d 807, 623 P.2d 165 (1981). Applying both this doctrine and the principle that the use of different expressions implies that different meanings were intended, Ocasio v. Bureau of Crimes Compensation, 408 So.2d 751 (Fla. 3d DCA 1982), the applicable requirement was not that the puck "pass completely through" [e.s.] the goal, as provided in the Spectator Agreement to Participate, but only the lesser one that it go "into and through" it, as stated in the first contract. On this point, I believe that the record contains ample evidence to support the jury's conclusion that Mr. Giunto sent the puck "into and through" the goal (although perhaps not "completely" so) and was thus entitled to win.
So much is this the case that some wag suggested at oral argument that the term, "contracts of superglue" would be more appropriate.
The same legal reasoning applies to the term of the first contract that "the decisions of the judges . . . are final in all matters relating to this sweepstakes" upon which the majority so heavily relies. That provision should be entirely disregarded because it conflicts with the Spectator Agreement, which contains no such term. Even if this is not the case, moreover, the judge's decision clause is wholly invalid and unenforceable, because the omnipotent, omniscient judge (not, as provided, judge s) turned out to be one Declan Bolger who is the Director of Promotions of the Florida Panthers, one of the defendant-sponsors. The rule that no person may be a judge in her own case, Power v. Chillingworth, 93 Fla. 1030, 113 So. 280 (1927), which applies universally, including to what the court deems the analogous arbitration situation, Gaines Constr. Co. v. Carol City Utilities, Inc., 164 So.2d 270 (Fla. 3d DCA 1963), precludes the defendants' reliance on what amounts to their own denial of their own responsibility. Finally Bolger testified at trial. In my judgment, the jury could well conclude that his views were contrary not only to what clearly appeared on the videotape but to the laws of physics, and were thus based upon the "fraud, gross mistake, or lack of good faith" which would negate even an otherwise unbiased judge's conclusion. See cases collected, majority opinion at 4. Under all of these circumstances, the majority is wrong to permit Bolger to act as the judge, jury, executioner and goalie in this dispute.
On the plaintiff's appeal from the order granting a new trial, I disagree with both of the grounds assigned by the trial court. The conclusion that an issue of the defendants' fraud or misconduct was improperly inserted into the record fails because, unlike the cases upon which the defendants rely, e.g., Arky, Freed, Stearns, Watson, Greer, Weaver Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561 (Fla. 1988), there is no showing that an unpled issue formed the basis of the verdict in the plaintiff's favor. The other ground, that the plaintiff improperly asked the jury in argument to punish the defendants because of their wealth and influence, is simply not justified by the record.
For these reasons, I would affirm on the cross-appeal, reverse on the appeal, and remand for entry of judgment on the jury verdict for the plaintiff.