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holding that where "a party opposes a motion for summary disposition on the ground that discovery is incomplete, the party must at least assert that a dispute does indeed exist and support that allegation by some independent evidence"
Summary of this case from Vanvorous v. BurmeisterOpinion
Docket No. 145145.
Submitted January 13, 1994, at Grand Rapids.
Decided September 6, 1994, at 9:05 A.M.
Currie Kendall, P.C. (by Thomas L. Ludington), and Smith Brooker, P.C. (by A.T. Lippert, Jr.), for the plaintiff.
Sonnenschein Nath Rosenthal (by Frederic S. Lane, Elpidio Villarreal, and Deborah M. Neyens), and Seward, Tally Piggott, P.C. (by John M. Morosi and Kenneth K. Wright), for the defendants.
Plaintiff appeals as of right from an order of the circuit court granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(8) and (10) in this breach of contract action. We affirm.
I
On October 11, 1990, plaintiff received a number of "McMillion$" game tickets while visiting a McDonald's franchise restaurant owned by defendant Rymac, Inc. The lottery-style promotional game, "McMillion$ on NBC," promised millions of dollars in prize money to the holder of a winning game ticket. While watching television that night, plaintiff discovered that the number on one of her tickets matched the winning prize number. After calling a telephone number printed on the ticket, plaintiff was told to report to the Detroit advertising office of defendant Arthur Andersen Company to verify that she had won the $10 million prize.
The following morning, plaintiff, her husband, and one of her daughters met with an employee of Andersen, who confirmed that plaintiff possessed the winning ticket. Shortly thereafter, a representative of McDonald's arrived and congratulated plaintiff on winning the prize. Plaintiff spent the remainder of the day engaging in promotional activities that included television appearances and radio interviews. Later that evening, plaintiff was informed that she was "disqualified" from winning the contest because her daughter, Charlene Saunders, worked at the McDonald's franchise where plaintiff obtained the winning ticket. Under the contest rules, "persons who are immediate family members of or who reside in the same household" as an employee of a McDonald's franchisee were ineligible to participate in the contest. Saunders was married and resided approximately thirty miles from her mother.
On October 30, 1990, plaintiff brought the instant action, alleging breach of contract, intentional infliction of emotional distress, defamation, portrayal in a false public light, and violation of the Michigan Consumer Protection Act. Following defendants' motion for summary disposition, the trial court dismissed all of plaintiff's claims except for her breach of contract count against defendants Delaware McDonald's Corporation and National Broadcasting Company, Inc. Thereafter, plaintiff amended her complaint to allege estoppel and breach of contract against both remaining defendants. Following defendants' motion for summary disposition under both MCR 2.116(C)(8) and (10), the trial court dismissed the amended complaint. The trial court ruled that plaintiff was ineligible to participate in the contest under the contest rules because she was a member of her daughter's "immediate family." Plaintiff now appeals as of right.
II
Although the parties agree that there is no prior Michigan case on point, other jurisdictions have recognized that contract law governs the relationship between the sponsor of a prize contest and an entrant in the contest. See, e.g., Johnson v BP Oil Co, 602 So.2d 885, 888 (Ala, 1992); First Texas Savings Ass'n v Jergins, 705 S.W.2d 390 (Tex App, 1986); Chenard v Marcel Motors, 387 A.2d 596 (Me, 1978). In order to establish the formation of an enforceable contract, an entrant must show (1) the offer of a prize by the sponsor for the performance of a specified act, (2) competition in the contest, and (3) the performance of the specified act required for winning the contest. Nat'l Amateur Bowlers, Inc v Tassos, 715 F. Supp. 323, 325 (D Kansas, 1989); Las Vegas Hacienda, Inc v Gibson, 77 Nev. 25, 27; 359 P.2d 85 (1961).
However, the rights of an entrant who has performed the act required in the sponsor's offer are limited "by the terms of the offer, i.e., by the conditions and rules in the contest." Nat'l Amateur Bowlers, Inc, supra at 325. Here, rule 8 of the contest rules provided that "persons in any of the following categories are not eligible to participate or win prizes: . . . (c) persons who are immediate family of or who reside in the same household as any person in the preceding categories." The categories listed included employees of McDonald's Corporation, its subsidiaries, franchisees, or affiliates, or employees, or agents, or independent contractors of any of the listed McDonald's organizations
Relying on Bryant v Deseret News Publishing Co, 120 Utah 241; 233 P.2d 355 (1951), plaintiff asserts that she was eligible to participate in the contest under the contest rules because she is not a member of her daughter's "immediate family." In Bryant, the plaintiff sued the defendant sponsor to invalidate a prize won by a contestant who was the father of one of the sponsor's employees. Id. at 242. The son was twenty-one years old and resided with his wife and children in their own home. Id. The contest rules precluded "employees of the Deseret News and their immediate families." Id. In upholding the award of the contest prize, the Utah Supreme Court construed the word "immediate" as having a restrictive effect upon the word "family," thus limiting this class to only those family members residing in the son's household. Id. at 244-245.
More recently, the Illinois Court of Appeals, in Harlem-Irving Realty, Inc v Alesi, 99 Ill. App.3d 932; 425 N.E.2d 1354 (1981), expressly rejected the rationale in Bryant. In Harlem-Irving Realty, the winner of a promotional contest run by a group of business tenants was sued after it was learned that he was the father and grandfather of two employees of the tenants. Id. at 933-934. The rules precluded employees and their "immediate families" from contest participation. Id. at 934. However, the defendant did not reside in the same household as either relative. Id. at 934. In upholding the grant of the plaintiff's motion for summary judgment, the panel in Harlem-Irving Realty criticized the narrow construction of the term "immediate family" advanced in Bryant. Instead, the Illinois Court of Appeals concluded that it should be liberally construed to "effectuat[e] the purpose of the contest rules." Id. at 938. Under this construction, the panel concluded that the plaintiffs clearly intended to exclude the defendant and members of his class. Id. We agree with Harlem-Irving Realty and adopt its analysis.
III
In the present case, rule 8(c) excludes from eligibility those who are immediate family members of or who reside in the same household as any employee of a McDonald's franchisee. In light of the additional exclusionary class included in the contest rules, the narrow construction of the term "immediate family" advanced by plaintiff would render the term surplusage.
Furthermore, we construe the term "immediate family" in light of the apparent purpose of the contest rules. Rule 8(c) and other exclusionary rules are designed to encourage public participation in the contest by creating an appearance of fair play and impartiality, while at the same time bolstering public confidence. Applying this principle, we conclude that defendants intended to exclude members of plaintiff's class.
We also reject plaintiff's claim that summary disposition was premature because discovery was incomplete. This Court has held that a grant of summary disposition is premature if granted before discovery on a disputed issue is complete. Mackey v Dep't of Corrections, 205 Mich. App. 330, 333; 517 N.W.2d 303 (1994). However, a disputed issue must be before the court. Pauley v Hall, 124 Mich. App. 255, 263; 335 N.W.2d 197 (1983). If a party opposes a motion for summary disposition on the ground that discovery is incomplete, the party must at least assert that a dispute does indeed exist and support that allegation by some independent evidence. Michigan Nat'l Bank v Metro Institutional Food Service, Inc, 198 Mich. App. 236, 241; 497 N.W.2d 225 (1993); Pauley, supra. Here, plaintiff failed to do so.
Finally, we agree that the trial court did not err in granting summary disposition with respect to plaintiff's equitable estoppel claim. The doctrine of equitable estoppel is not available to a plaintiff as a cause of action. Hoye v Westfield Ins Co, 194 Mich. App. 696, 707; 487 N.W.2d 838 (1992); Harrison Twp v Calisi, 121 Mich. App. 777, 787; 329 N.W.2d 488 (1982).
In view of our resolution, we find it is unnecessary to address defendants' alternative argument that the contest rules restrict the scope of judicial review. We recognize, however, that a split of authority exists regarding whether a contest rule that makes the decision of the promoter or sponsor final precludes judicial review of the decision. See, e.g., Johnson, supra; Bridges v Georgiana, 211 N.J. Super. 427; 511 A.2d 1255 (1985); Carlini v United States Rubber Co, 8 Mich. App. 501; 154 N.W.2d 595 (1967); anno: Private contests and lotteries: entrants' rights and remedies, 64 ALR4th 1021, §§ 12-13b, pp 1065-1068.