IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2018-CC-00206-COA CHRISTIAN SHRIVER AND MICHELLE SHRIVER APPELLANTS

v. BOYD BILOX I LLC D/B/A IP CASINO RESORT SPA APPELLEE

DATE OF JUDGMENT: 01/18/2018 TRIAL JUDGE: HON. LISA P. DODSON COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT ATTORNEY FOR APPELLANTS: MARVIN M. VINING ATTORNEY FOR APPELLEE: KATHRYN H. HESTER NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: AFFIRMED - 01/08/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. GREENLEE, J., FOR THE COURT: ¶1. Christian and Michelle S hriver appeal the dec i s i o n o f the Harrison County Circuit Court, w hich af

f irm e d the decision of the M ississippi Gam in g C om m ission (the Com m i ssion). The Com m ission adopted its Hearing Exam iner’s determ inatio n that the Com m i ssion’s Executive Director properly f ound that the Shrivers were not entitled to the redem ption of their vouchers by I m perial Palace Casino R e sort Spa (IP Casino). On appeal, the Shrivers assert that: (1) the Execu t i v e Director exceeded his s t atutory authority in allowing IP Casino’s internal rules to determ ine whether the Shrivers’ vouchers were expired; (2) the Com m ission does not have jurisdiction over their d ispute; (3) the Shriversare not bound by the patron-dispute process; (4) the Com m ission’s Executive Director does

not have jurisdiction over com m on-law tort claim s; and (5) there are strong policy reasons

as to why the C om m ission’s Executive Director should not be allowed to exceed i ts statutory authority . W e af

f i rm the circuit court’s judgm e n t. FACTS AND PROCEDURAL HISTORY ¶2. Christian and M ichelle Shriver a re a m a r r i ed c ouple. The h usband was an unem ploy ed

e n g i n e er who m ade his l iving by gam bling in 2012 a nd 2013. He placed nearly $ 3 m illio n into IP C asin o s l o t ma c h i n e s during that tim e and had net gains of over $ 110,000. At the

sam e tim e, the wif

e placed approxim ately $ 3.5 m illion into IP C asino slot m achines and had net gains of

over $170,000. ¶3. The couple received m o re than $41,000 of those gains in twenty -one individual slot vouchers but f

a iled to redeem those v o u c h ers within the sixty

- day e xpiration date f or “personal reasons.” Each voucher had printed on its f a ce, “Ticket void af

ter 60 day s,” or a variation of that phrase. ¶4. W h en they attem

pted to redeem the vouchers in April 2015, I P Casino initially ref used

to h onor them because the casino was unable t o v erif y their legitim a c y d u e t o a change in casino m achinery in 2 0 1 3

. A f t e r an internal i nvestigation, IP Casino deem ed that the vouchers were legitim ate but still ref used to honor them ; this tim e because they had expired long bef ore the attem

pted redem

ption. ¶5. The Shrivers th e n f i l e d a p a t r o n d i s p u t e with the Com m ission as provided by Mississippi Code Anno t a t e d section 75-76-157 (Rev. 2000). Af ter the C om m ission’s

2investigation , its Executive Director f ound that the S hrivers w ere not entitled to the redem ption: Af ter c aref ully reviewing the S hriver’s com plaint and the accom

p any ing investigati v e f

ile prepared by the M ississippi G am ing Com m ission, I have concluded that the cashout vouchers and p rocedures in question c om ply with both the requirem ents set f orth in 13 Mississippi Adm inistrative C ode Part 7, Rule 9.7, as w ell as the c asino’s own i nternal policy

. Theref ore, they a re not entitled to collect the disputed $41,317.43. ¶6. Next, the Shrivers f ile d a p etition requesting a hearing to r econsider the Executive Director’s f

i ndings. The H earing Exam iner also f ound that IP Casino h ad com p l i e d with applicable Mississippi law in deny ing the Shrivers’ attem p ted redem

ption: The Mississippi Gam ing Com m i ssion retains exclusive jurisdiction over this m atter p u rsuant t o M i s s . Code Ann. § 75-76-157(2), as Petitioners’ claim springs directly f

rom IP Casino’s f

ailure t o pay gam i ng debts not evidenced by a c redit i nstrum ent. The Hearing Exam iner is certainly sy m pathetic to the predicam ent P e t i t i o n ers now f ind them selves in related to the expired vouchers. Notwithstanding, IP Casino com plied with 13 Miss. Adm in. Code Pt. VII, R. 9 .7, as p roperly prom ulgated by the Com m ission, and the expiration date was clearly

printed on each voucher. Petitioners knew the vouchers had expiration dates and m

ultiple options were available to Petitioners f or tim ely redeem ing the vouchers. Unf ortunately , Petitioners elected not to utilize any of these available options f or m o re than tw o y e ars. Accordingly , P etitioners have f a i l e d to m eet their burden of s h owing that the Executive Director’s decision was incorrect in this m atter. Based u p on the f o r e g o i n g , the Hearing Exam iner f inds that the Executive D i r ector’s decision in f

avor of IP Casino should be, and hereby is, af f irm ed. ¶7. Af ter the Shrivers chose not to seek review of the H earing Exam iner’s decision within the ten-day window under Mississippi C ode Annotated section 75-76-119 (Rev. 2000), the Com m i ssion declined to review the decision and adopted the f indings. ¶8. T h e S h r i v e r s a p p e a l e d , a n d t h e H a r r i s o n C ounty C ircuit Court reviewed th e

3C o m

m i s s i o n ’ s d e c i s i o n u

n d e r Mississippi Code A nnotated section 7 5-76-17 1 ( 3 ) ( R e v . 2 0 0 0 )

. The circuit court af

f irm ed th e Com m ission’s decision to d ecline to review the Hearing
Exam i ner’s decision: [ The Shrivers] challenge only the jurisdiction and the statutory a u thority of the Executive Director. The Hearing Exam i ner f ound that the dispute in this c ase was over a gam ing debt. That is sup p o r t e d b y the e vidence a s well as the provisions of the s tatutes.

. . . T he IP Internal C ontrol at issue in this case was so a pproved [ under Rule 9.1]. That Internal Control provides that the vouchers are of no value once the sixty (60) day s elapses. The only discretion that IP h as is to pay an expired vo u c h e r f o r a ppeasem ent purposes. It i s not required to pay any e xpired voucher. The Shrivers have f ailed t o establish that the decision and order o f the Com m ission has prejudiced the substantial r ights of the Shrivers by either a lack of jurisdiction or b y a n y e x ceeding o f statutory authority

. ¶9. The Shrivers appeal the circuit court’ s d e c i s i o n , asserting that: (1) the Executive Director exceeded h is statutory authority by allowing IP Casino’s internal rules to determ ine whether the Shrivers’ vouchers w ere expired; (2) the Com m ission does not have jurisdiction

over their dis p u t e ; (3) the Shrivers are not bound by the patron-dispute process; (4) the Com m i ssion’s Executive Director does not have j urisdiction over com m o n-law tort claim s; and (5) there are strong p olicy reasons as t o w h y t h e Com m i ssion’s Executive Director should not be allowed to exceed its statutory authority

. STANDARD OF REVIEW ¶10. Our suprem e court has recently abandoned the old standard of review that gave high def erence to agency

interpretations of statutes. King v. Mississippi Military Dep’t , 245 So. 3d 404, 408 (¶12) (Miss. 2018). “Because only statutes are at issue in the case sub judice , we today address the standard of review only as it applies to agency interpretations of statutes.”

4Id. at 407 ( ¶9). Theref ore, this court will proceed with the proper d e novo standard of review instead. DISCUSSION ¶11. The Mississippi Gam ing Control Act of 1990 (the Act) is codif ied f rom section 75-76- 1 t o s ection 75-76-325 of the Mississippi Code Annotated. The Act authorized the creation of the M ississippi Gam ing Com m ission (the Com m ission), as well as e num e rated the powers of the Com m ission’s Executive Director. Miss. Code Ann. § 75-76-7(2) (Rev. 2016); Miss. Code Ann. § 75-76-21 (Rev. 2016). The statutes authorize the Executive Director to retain signif icant authority in overseeing interna l c a s ino procedures and disputes with casino

custom ers. I. Did the Ex e cutive Director ex ceed his authority by allow ing IP Casino’s i n t e rnal rules to determ ine w hether the Shrivers’ vouchers w e re ex pired? ¶12. Th e S h r i v e r s a s s e r t that the Executive Director of the Com m i ssion exceeded his statutory authority by allowing IP Casino’s internal rules to determ ine whether the Shrivers’ vouchers were expired. IP Casino argues that the Com m ission was authorized t o prom ulgate Rule 9 .7 and the Executive Director was authorized to f ind that IP Casino’s actions com plied with that regulation. ¶13. W h en the Mississippi Legislature authorized the cr e a t i o n o f the Com m ission under section 75

- 7 6

- 7 ( 2 ) of the Mississippi Code Annotated, it a lso detailed the powers of the Com m i ssion’s Executive Director. Miss. Code Ann. § 75-76-21. The Executive Director is authorized to “ direct and supervise all adm i nistrative and t echnical activities of the

5com m ission

. . . .” Miss. Code Ann. § 75-76-23 (Rev. 2016). O ne of the a ctivities with which

the Com m ission is charged is t h e r e g u l a tion of gam es a nd wagering sy stem s. M iss. Code Ann. § 75-76-51 (Rev. 2016) ( “The com m ission shall adopt regulations which prescribe the

m anner in which w i nnings, com pensation f

rom g am es and gam i ng devices, and gross

revenue m

ust be com

puted and reported by

the licensee.”). ¶14. Som e of the Com m ission’s adopted r ules include r equiring that casinos u se o nly chips and tokens approved by

the Executive Director and setting standards f or slot m a chines. 13 Miss. Adm in. Code Pt. 7, Ch. 7, R. 7.1 (2011) (“All gam e s s hall be conducted o nly with the

use of chips or approved tokens or other instrum entalities which have b een approved by the Executive Director, or with lawf u l currency o r c o inage o f the United States of Am erica.”); 13 Miss. A dm in. C ode Pt. 7, Ch. 7, R. 9.1 (2011) (detailing “m inim um procedures or standards, prescribed by the Executive Director f or adoption by each licensee

. . .”). The m ost pertinent rules here, however, are Rules 9.7(a) and 9.7(b), which say : (a) Slot Machine W agering Vouchers are bar coded vouchers created through a cashless w agering s y s tem which allows collective hardware, sof tware, com munications technology , and other associated equipm ent to f acilitate wagering. The bar coded voucher can b e redeem ed at the casino cage, voucher redem ption kiosk, or inserted into a com p atible slot m achine. Vouchers redeem ed m

ust be validated through the cashless wagering sy stem prior to pay m ent. (b) Each voucher m

ust contain the f

ollowing printed i nf

orm ation: 1. licensee nam e, city and s t a t e ; 2

. slot m a chine num ber or p rinter station num ber, as applicable; 3. date and tim e of issuance; 4. alpha and num eric dollar am ount; 5. sequence num

ber; 6. v a lidation num

ber; 7. s eco n d p r inting o f validation num ber on the leading edge of the v oucher; 8. unique identif ier ( e.g. bar c ode); 9. transaction ty

p e or o ther acceptable m ethod of dif f erentiating voucher ty

pe; and 10. expiration period or date when the voucher will expire.

613 Miss. Adm in. Code Pt. 7, Ch. 7, R. 9.7(a)-(b) (2011). Clearly , the Com m ission requires

casino vouchers to c ontain “expiration period[ s] or date[ s] when the voucher[ s] will expire.” ¶15. The vouchers that the Shrivers subm itted m eet these requirem ents. Plainly and on the f ace of the vouchers are expiration dates:

IP Casino’s vouchers adhere to th e r e q uirem ents p rom

ulgated by the Executive Director. Furtherm o re, the prom

ulgation of these requirem ents is com pletely within the E x e c u t ive Director’s sta t u t o ry authority

. As the circuit c o urt noted in its order, “[ t]he Shrivers’ challenge to the Internal C ontrol concerning vouchers is not really that there w as no authority f or its approval; they m erely com plain about its term s.” ¶16. Theref

ore, we af f i rm the circuit court’s decision and f ind that the Executive Director did not exceed his statutory authority

. II. Does the Com m ission have jurisdiction over the Shrivers’ dispute? ¶17. The Shrivers argue that our suprem e c o urt in Ameristar Casino V i c k s b u r g I n c
. v
. Duckworth , 990 S o. 2d 7 58 (Miss. 2008), lim ited the j urisdiction of the Commi ssion over patron disputes to “gam i ng debts,” which was only later statutorily e x p a n d ed to include

7patron disputes over “prom otional activity .” Theref ore, they assert the Duckworth court distinguished and ef

f ectively o verruled Grand Casino Tunica v. Shindler , 772 So. 2d 1036 (Miss. 2000). Furtherm ore, they assert their case does not f all within the C om m ission’s jurisdiction because it i s n o t “ a d ispute between a l icensee and a patron associated with
prom otional activity .” I P Casino responds that both Duckworth and Shindler recognize that the Com m ission i s “the exclusive venue f or s eeking p ay

m ent of a gam

b ling debt.” They
agree that the vouchers were not a prom otional ac t i v i ty , the expiration dates are m andated by s t atute, and it is within IP Casino’s discretion t o pay or not p ay expired vouchers. 1
Theref ore, they assert that the dispute is under the Com m ission’s jurisdiction. ¶18. The Act bestows upo n t h e C om m ission’s Executive Director certain powers. Miss. Code Ann. § 75-76-21. Specif ically , i t a u thorizes him to resolve disputes between patrons and casinos:
A c laim by a patron of a licensee f o r pay m e nt of a gam i ng debt not evidenced by a credit instrum ent, a nd a dispute b etw een a licensee and a patron associated with a prom otional activity as def ined in Section 75-76-5(nn), shall be resolved by

the executive director in accordance with Sections 75-76-159 through 75-76-165, inclusive. The resolution of such a claim or dispute by the executive director shall include any claim s f or alleged winnings or losses

. . . . Miss. Code Ann. § 75-76-157(2). ¶19. W e agre e t h a t t h e d ispute over the vouchers is not over “prom otional giveaway s.”
D u ckw o rth , 9 9 0 S o . 2 d at 7 6 0 (¶1 0 ) (M iss. 2 0 0 8 ) (h o ld in g th at “ran d o m d raw in g clearly is

n o t ‘ p l ay e d w ith card s, w ith d ice, o r w ith an y . . . d ev ice o r m a ch in e f o r m o n e y . . . , ’ a n d th eref o re, d o es n o t f

a l l u n d e r th e d ef

in itio n o f a ‘g am e’ o r ‘ g am b lin g ’ as p er [ th e A ct] ”).

1 F o r clarity , w e h av e co m b in ed issu es tw o an d th ree o f th e S h riv ers’ b rief

. 8Rather, the vouchers exist by virtue of the Shrivers’ gam bling activities. They w ere created by a m achine f

or m oney , and p e r the Mississippi Suprem e Court’s holding in Duckworth , cannot b e “ p r o mo t i o nal giveaway s.” The vouchers qualif y as “gam i ng debts,” and the Mississippi Code Annotated h a nd s t h e E xecutive Director jurisdiction o ver disputes on “gam ing debts.” Theref

ore, we af f irm the circuit court’s holding that jurisdiction was proper. III. Are the Shrivers bound by the patron-dispute process? ¶20. O n appeal, the S hrivers argue that they should be f ree to f i le a civil suit against I P Casino and not be bound by the patron-dispute process governed b y the Com m ission. IP Casino contends that S

hi n d l e r h olds that a party cannot initiate the patron-dispute p rocess and then seek relief in circuit c ourt. IP Casino argues, theref ore, that the S hrivers are estopped f rom f iling a separate civil suit in Harrison County Circuit Court. ¶21. In its order, the circuit court wrote the f ollowing: [ I]t i s f i r s t noted that it was the Shrivers them selves w ho i nvoked the jurisdiction of the Com m ission. They initiated this m atter b y f iling the patron dispute inf

orm ation pursuant to g am ing s t a t u tes. They participated in the investigation of this m atter by an Agent of the Com m ission.

. . . The Shrivers have consistently sought to avail them selves of the rem edies p rovided by the statutes a nd regulations adopted pursuant t o the gam ing s tatute s o n the one hand, but contest that very sam e jurisdiction o n the other. They c annot have it both way s. ¶22. W e agree. The Shrivers want two b i t e s a t t h e a pple, just in dif

f erent v enues. “The Mississippi Gam i ng Control Act codif ied the idea by m a king all gam i ng m atters the exclusive jurisdiction of the Mississippi Gam ing C om m ission.” Shindler , 772 S o. 2d at 1038 (¶10). In that codif

ication, “[ t]he Legislature gave the public a r i g h t that they had not possessed bef

ore, but with this right cam e the requirem ent that gam ing m atters be handled

9by the Mississippi Gam ing Com m ission.” Id. A nd because “[ i]t is a f undam e ntal principle that p arties m ay not continually relitigate the sam e claim s until they g et the desired result,” Id. at 1039 (¶14), the Shrivers are bound by the patron-dispute process. W e af f irm the circuit court’s judgm ent. IV. Does the Com m ission’s Ex ecutive Director have jurisdiction over com m on-law tort claim s? ¶23. The Shrivers argue that their constitutional right t o t r i a l b y j u r y i n t h i s case is f undam ental. Because it i s well established i n M ississippi that tort and f raud causes of action require a jury trial, e .g., Isaac v
. M cMorris , 461 So. 2d 714, 715 (Miss. 1984), they a rgue that this Court should allow the Shrivers to s eek a jury trial in this case. IP C asino r esponds that the Mississippi Suprem e Court rejected the constitutional claim of the right to a jury trial in Shindler , holding that the Gam ing Control Act gives p atrons a right they would not o therwise have had because a claim based on gam bling in Mississippi is i llegal a n d v o i d a t com m on law. ¶24. The S h r i v e r s are correct in their assertion that “a civil plaintif f h as a constitutional

r i ght to a jury trial.” Shindler , 772 So. 2d at 1040. But this dispute i s related to g a mb l i n g activities. And our legislature created a legal f orum that allows them to seek redress where bef ore they had none. The jurisdict i o n o f t h e Com m ission i s proper and the circuit court’s judgm ent is af

f irm ed.
V. Are the re strong policy r easons as to w hy the C om m i ssion’s Ex e cutive Director should not be allow ed to ex c e e d i t s s tatutory authority ? ¶25. The Shrivers argue that because the C om m ission is f unded by casino f

ees a nd not by

1 0taxpay ers—as required by the A ct—there is no o versight and p atrons’ r ights a re violated. IP

Casino argues that the current structure is statutorily authorized. ¶26. Af ter exam ination of the Shrivers’ brief , we conclude that they f

ailed to provide any statutory provision or caselaw in support of their public-policy argum e nt. In this case, the Executive Director did n o t exceed its authority

. T h e S hrivers’ policy argum ent i s b etter suited f or the Legislature to address than this Court. CONCLUSION ¶27. W e af

f irm the circuit court’s judgm e nt and f i nd that: (1) the Executive Director did

not exceed its statutory authority i n allowing I P Casino’s internal r ules to determ ine whether the Shrivers’ vouchers were expired; (2) the Com m ission has jurisdiction o ver their dispute because IP Casino’s v ouchers were a gam ing debt; ( 3) the Shrivers are bound by the patrondispute process; (4) the Shrivers’ dispute is not a com m on-law tort c laim ; a n d ( 5 ) the Shrivers’ policy argum ent is not supported by statutory provision or caselaw. ¶28. AFFIRMED. GRIFFIS, C.J., BARNES AND CARLTON, P.JJ., WILSON, WESTBROOKS AND TINDELL, JJ., CONCUR. McDONALD, LAWRENCE AND McCARTY, JJ., NOT PARTICIPATING.

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