Sister Nira Ledoux v. Grand Casino-Coushatta

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1500

SISTER NIRA LEDOUX, ET AL.

VERSUS

GRAND CASINO-COUSHATTA, ET AL.

************

APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT,
PARISH OF ALLEN, NO. C-2002-627
HONORABLE JOHN NAVARRE, DISTRICT JUDGE, PRO TEMPORE

************

JIMMIE C. PETERS
JUDGE

************

Court composed of Jimmie C. Peters, Billy H. Ezell, and James T. Genovese, Judges.

AFFIRMED.

M. Terrence Hoychick
Hoychick & Aguillard
Post Office Drawer 391
Eunice, LA 70535-0391
(337) 457-9331
COUNSEL FOR PLAINTIFFS/APPELLEES:
Sister Nira Ledoux
Gale Thomas

Charles D. Elliott
Faircloth, Vilar & Elliott, L.L.C.
Post Office Box 12730
Alexandria, LA 71315-2730
(318) 442-9533
COUNSEL FOR DEFENDANT/APPELLANT:
Coushatta Tribe of Louisiana

PETERS, J.

This appeal arises from a summary judgment rendered in favor of two

plaintiffs, Sister Nira Ledoux and Gale Thomas, against the defendants: Grand

Casino-Coushatta; the Coushatta Tribe of Louisiana; and Grand Casinos of Louisiana,

Inc.-Coushatta.1 The trial court awarded Sister Nira Ledoux $65,581.00 and awarded

Gale Thomas $32,790.50. Only the Coushatta Tribe of Louisiana (Tribe) has

appealed.2 For the following reasons, we affirm the trial court judgment rendered

against the Tribe.

DISCUSSION OF THE RECORD

The litigation began as a lawsuit filed jointly by the two plaintiffs asserting

separate claims based on breach of contract. The defendants own and operate a

gambling facility at Kinder, Louisiana—the Grand Casino-Coushatta (Casino). Both

claims in this litigation arise from jackpots registered on the identical slot machine

at the Casino one year and five days apart. Sister Ledoux’s award is exactly twice

that of Ms. Thomas because of the difference in the number of coins wagered at the

1
The original petition identifies the Coushatta Tribe of Louisiana as a sovereign nation
owning land in Louisiana and operating a casino thereon pursuant to a contract with the State of
Louisiana, and identifies Grand Casinos of Louisiana, Inc.-Coushatta as a Minnesota corporation
authorized to do business in Louisiana. It identifies the Grand Casino-Coushatta as a separate legal
entity—a joint venture operated by the other two defendants. The petition asserted that the three
defendants operated a casino in Kinder, Louisiana, where the events occurred which formed the basis
for this lawsuit. Subsequent pleadings make it clear that the Grand Casino-Coushatta is actually a
trade name for the casino operation. Despite the assertions in the subsequent pleadings, the summary
judgment now on appeal was rendered against the defendants as they were named in the original
petition, i.e., the Grand Casino-Coushatta, the Coushatta Tribe of Louisiana, and Grand Casinos of
Louisiana, Inc.-Coushatta.
2
Shortly after the summary judgment at issue in this appeal was rendered, the Coushatta Tribe
of Louisiana obtained new counsel. After new counsel obtained permission to enroll as counsel of
record in these proceedings, the counsel that had previously been representing all of the defendants
sought and obtained an order from the trial court allowing counsel to withdraw as counsel of record
for all defendants. Thereafter, new counsel for the Coushatta Tribe of Louisiana sought and obtained
an order of appeal. Accordingly, the Coushatta Tribe of Louisiana is the only appellant and the
judgment rendered against Grand Casinos of Louisiana, Inc.-Coushatta is a final judgment.

time of each individual incident. In both instances the Casino refused to honor the

jackpots.

Sister Ledoux and Ms. Thomas filed suit against the defendants on November

4, 2002, cumulating their actions in the same judicial demand. The Tribe and the

Grand Casinos of Louisiana, Inc.-Coushatta responded with a number of pleadings,

including a motion for summary judgment with respect to Ms. Thomas’s claim. In

that motion, the defendants asserted that a malfunction in the slot machine voided any

winnings registered by the machine and, thus, they were not liable to her for the

claimed amount. In response to the defendants’ motion for summary judgment, both

plaintiffs jointly filed a motion for summary judgment of their own. After a hearing,

the trial court rejected the defendants’ motion for summary judgment and granted the

plaintiffs’ motion for summary judgment, awarding the previously stated amounts.

The Tribe then perfected this appeal.

OPINION

Before discussing the summary judgment issue, we deem it appropriate and

necessary to discuss two issues preliminarily. One involves the Tribe’s assignment

of error concerning jurisdiction, and the other involves the Tribe’s exception of

prescription.

Jurisdiction

Pleading that it is a sovereign Indian nation enjoying immunity from suits in

state court, and claiming that it has not waived its immunity, the Tribe timely filed an

exception of lack of jurisdiction in the trial court. In a written opinion, the trial court

rejected this exception, concluding that the Tribe, by means of language contained in

its compact with the State of Louisiana (state) had specifically waived its sovereign

2

immunity. The Tribe previously filed a writ application with this court complaining

that the trial court had erred in rejecting the exception, but this court, in an

unpublished opinion, denied writs. Ledoux v. Grand Casino-Coushatta, 04-87

(La.App. 3 Cir. 3/5/04). The Tribe’s effort to have the supreme court review our

rejection of its writ application met with the same fate. Ledoux v. Grand

Casino-Coushatta, 04-971 (La. 6/4/04), 876 So.2d 84.

In one of its assignments of error now before this court, the Tribe has renewed

its immunity argument and has requested that this court revisit the issue. The

plaintiffs have responded by asserting that we should reject this assignment of error

by applying the law of the case doctrine.3

We find no merit in this assignment of error because we find no error in the

trial court’s original judgment or in our denial of the prior writ application. However,

because no reasons were given in this court’s earlier disposition of this issue, we will

briefly explain why we agree with that prior decision that the Tribe expressly waived

its sovereign immunity as to the claims asserted in this suit.

We begin by noting that the relationship between the Tribe and the state is set

forth in the Tribal-State Compact for the Conduct of Class III Gaming. The pertinent

language of the version of the compact in effect in 1998 and 1999, when the

3
The law of the case doctrine provides that “an appellate court ordinarily will not reconsider
its own rulings of law in the same case;” it applies to prior rulings of the appellate court and/or
supreme court in the same case. This doctrine applies to parties who were in the litigation at the time
of the prior ruling and had their day in court. The purposes of the doctrine are to avoid litigating the
same issue again and to promote consistency of result within the case, essential fairness to the
parties, and judicial efficiency. The “law of the case” is discretionary; it is not applicable to cases
in which “the prior decision was palpably erroneous or its application would result in manifest
injustice.” Estate of Patout v. City of New Iberia, 01-151, p. 7 (La.App. 3 Cir. 6/27/01), 791 So.2d
741, 747 (quoting Griggs v. Riverland Med. Ctr., 98-256, p.6 (La.App. 3 Cir. 10/11/98), 722 So.2d
15, 19, writ denied, 99-385 (La. 5/28/99), 735 So.2d 622).

3

plaintiffs’ claims arose, is contained in Section 14:(B), and is entitled “DISPUTE

RESOLUTION.” That section reads as follows:

In the event a dispute arises from the gaming operation refusing to
award an alleged prize or pay an alleged winning to a patron, the dispute
is not resolved to the satisfaction of the patron, and the dispute involves
an alleged prize or winning with a value of $500 or more, then:
(1) The gaming operation shall immediately notify the Tribal
Gaming Commission. The Tribal Gaming Commission shall
investigate the dispute and determine how much, if any, of the
prize is to be awarded or the winning is to be paid, and shall
provide written notification to the patron of their determination
within thirty (30) days from the date of the dispute.
(2) In the event that the dispute is not resolved to the satisfaction
of the patron, then the patron may pursue the matter in the
following sequential manner:
(a) mediation as provided in Section 14:(C) of this Tribal-
State Compact.
(b) legal action or proceeding as provided in Section 14:(D) of
this Tribal-State Compact.

With regard to pursuing legal action as contemplated by Section 14(B)(2)(b), Section

14:(D) provides in pertinent part:

Upon completion of the mediation in Section 14:(C) of this Tribal-State
Compact, and if the dispute is not resolved to the satisfaction of a party,
then that party may seek their remedy through a legal action or
proceeding . . . .

The Tribe waived its sovereign immunity in its dispute with Sister Ledoux and Ms.

Thomas by agreeing to these terms.

The Tribe’s argument on appeal in support of this assignment is vague and

non-specific.4 It has cited one Louisiana case, Webb v. Paragon Casino, 03-1700

(La.App. 3 Cir. 5/12/04), 872 So.2d 641, in support of its position. However, that

4
The Tribe’s argument makes the general statement that “[t]he Compact only contains a
waiver of immunity from suit in State Court as to claims between the Coushatta Tribe and the State.”
This is apparently a reference to the present compact, not the compact in effect when the instant
claims arose. Although the Tribe did not expressly allude to the present compact’s dispute resolution
language, the record contains an amended version of the Tribal State Compact executed by the
Louisiana Governor on December 8, 2000, and by the Tribal Chairman on December 11, 2000. The
dispute resolution provisions we have quoted were modified by that amended version. However,
these dispute resolution provisions were not in effect in 1998 and 1999.

4

case held that a tribe had not waived its sovereign immunity in a workers’

compensation claim against the tribe and did not address the effect of the compact

provisions set forth herein. That is to say, it did not address a dispute over the

payment of a prize or winning to a patron as is now before us, and is, therefore, easily

distinguishable from the case at hand.

Exception of Prescription

The Tribe has filed an exception of prescription in this court,5 asserting that

the plaintiffs’ claims had prescribed based on the two year prescription provided by

tribal law. In support of this argument, the Tribe attached two exhibits to the

exception. One is an excerpt taken from the Tribe’s Judicial Codes, and the other is

a tribal amending resolution dated September 11, 2001. These exhibits purport to

show that the Tribe imposed a two-year prescription on tort claims arising before

September 11, 2001, and amended the period to one year by the resolution dated

September 11, 2001. Neither of these exhibits is in the appeal record.

With regard to the filing of an exception of prescription in the appellate court,

La.Code Civ.P. art. 2163 (emphasis added) states:

The appellate court may consider the peremptory exception filed
for the first time in that court, if pleaded prior to a submission of the
case for a decision, and if proof of the ground of the exception appears
of record.

If the ground for the peremptory exception pleaded in the
appellate court is prescription, the plaintiff may demand that the case be
remanded to the trial court for trial of the exception.

5
The pleading filed with us states that the exception is being raised for the first time. That
statement is incorrect. The defendants, including the Tribe, pleaded the exception of prescription
in their December 27, 2002 answer to the petition. They pleaded prescription again on May 20, 2005
in their supplemental and amending answer to the petition. However, the prescription issue was
never taken up in the trial court.

5

Even assuming we can consider the Tribe’s Judicial Code excerpts,6 they do not

support the Tribe’s position. It is readily apparent from the exhibits that they relate

to tort claims, while the claims before us are in contract. We recognize that we have

the discretion to remand the exception to the trial court for a full hearing should the

interests of justice require it. Willett v. Premier Bank, 97-187 (La.App. 3 Cir. 6/4/97),

696 So.2d 196. However, we do not find that the interests of justice require a remand

in this matter. We simply reject the exception of prescription.

Summary Judgment Issue

We turn now to a discussion of the record pertaining to the trial court’s ruling

on the plaintiffs’ motion for summary judgment. As an appellate court, we perform

a de novo review of summary judgment rulings. Doerr v. Mobil Oil Corp., 00-947

(La. 12/19/00), 774 So.2d 119. A motion for summary judgment should be granted

if the pleadings, depositions, answers to interrogatories, and admissions on file,

together with affidavits, show that there exists no genuine issue as to any material fact

and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art.

966(B). The mover has the burden of proving entitlement to summary judgment.

La.Code Civ.P. art. 966(C)(2). However, La.Code Civ.P. art. 966(C)(2) further

explains that if the movant will not bear the burden of proof at trial on the matter that

is before the court on the motion for summary judgment, the movant's burden on the

motion does not require him to negate all essential elements of the adverse party's

claim, action, or defense, but rather to point out to the court that there is an absence

of factual support for one or more elements essential to the adverse party's claim,

6
Louisiana Code of Evidence Article 202(B)(1)(f) provides that “[a] court shall take judicial
notice of the . . . [l]aw of foreign countries” when requested to do so by a party and when that party
“provides the court with the information needed by it to comply with the request.”

6

action, or defense. “Thereafter, if the adverse party fails to produce factual support

sufficient to establish that he will be able to satisfy his evidentiary burden of proof

at trial, there is no genuine issue of material fact.” Id.

The parties in this litigation recognize that the law of contracts is determinative

of the issues before us. A party who asserts that an obligation is null, or that it has

been modified or extinguished, must prove the facts or acts giving rise to the nullity,

modification, or extinction. La.Civ.Code art. 1831. Once a prima facie case has been

established by the plaintiff by a preponderance of the evidence, the burden shifts to

the defendant. Artificial Lift, Inc. v. Production Specialties, Inc., 626 So.2d 859

(La.App. 3 Cir. 1993), writ denied, 94-112 (La. 3/11/94), 634 So.2d 394. “Further,

one who asserts a fact must carry the burden of proving that fact by a preponderance

of the evidence.” Id at 862. Under this article the Tribe had the burden of proving

the facts rendering its obligations null. Thus, plaintiffs are entitled to summary

disposition if they can show an absence of factual support for one or more elements

essential to the Tribe’s claim of the contract’s nullity, modification, or extinction, and

the Tribe is then unable to produce factual support sufficient to establish that at trial

it will be able to prove by a preponderance of the evidence the contract’s nullity,

modification, or extinction.

The first claim arose on the evening of November 15, 1998, when Sister

Ledoux visited the Grand Casino-Coushatta and played a Bonus Wheel Double

Diamond Deluxe slot machine. When she deposited two quarters and activated the

machine, it displayed three “7s,” and the “Bonus Spin” display monitor then advised

her that she had a bonus round. When she played the bonus round, the monitor on top

of the machine lit up and displayed the message: “Congratulations, you have won

7

262,324 coins.” Two Casino employees approached Sister Ledoux and informed her

that she had just won a jackpot worth $65,581.00. After the machine was opened and

examined by a Casino technician, a Casino supervisor advised Sister Ledoux that the

Casino would not pay her the jackpot because the machine had malfunctioned.

Instead, he paid her $100.00 for hitting the three “7s.” Sister Ledoux refused to

release the defendants and demanded payment of the full amount of the jackpot.

Immediately after the November 15, 1998 incident, the Casino took the

machine out of service for in-house testing. During the testing process, the Casino

technician was unable to locate a specific malfunction or replicate Sister Ledoux’s

winning scenario. Finding nothing wrong with the machine and convinced that no

remedial work was necessary, the Casino technician simply replaced a chip on the

machine’s logic board as a precaution and returned the machine to the Casino floor.

On November 20, 1999, Ms. Thomas came to the Grand Casino-Coushatta and

played the same machine. Instead of playing two quarters, as had Sister Ledoux, she

deposited only one quarter. When she did, the machine immediately displayed three

“7s” and the “Bonus Spin” display monitor advised her that she also had a bonus

round. When she played the bonus round, the monitor on top of the machine lit up

and displayed the message: “Congratulations, you have won 131,162 coins.” As had

been the case with Sister Ledoux, two Casino employees approached Ms. Thomas and

informed her that she had just won a jackpot worth $32,790.50; a technician opened

and examined the machine; and a supervisor then informed her that the Casino would

not pay the jackpot because the machine had malfunctioned. Instead, the supervisor

offered her $625.00 in settlement. Ms. Thomas rejected this offer.

8

After the incident with Ms. Thomas, the Casino sent the slot machine to

Gaming Laboratories International, Inc. (GLI), a testing laboratory which provides

testing and consulting services to the lottery and gaming industry. GLI received the

machine at its Golden, Colorado location on December 6, 1999, and the Casino

provided it with the history surrounding the plaintiffs’ claims. After extensive

testing, GLI was unable to locate a specific malfunction or to replicate the results

which gave rise to this litigation. Notwithstanding its negative testing results, GLI

concluded that the slot machine “must have malfunctioned” because it was not

programmed to pay out that much money. GLI reported this conclusion to the Tribe

but acknowledged that “the cause of the malfunction was indeterminate” because, like

the Casino technicians, it was unable to reproduce the malfunction.

GLI’s conclusion was the basis of the defendants’ motion for summary

judgment addressing Ms. Thomas’s claim. Among the exhibits filed in support of

the summary judgment was the affidavit of James R. Maida, the President, Chief

Executive Officer, and co-founder of GLI. In his affidavit Mr. Maida stated that,

based on a forensic review of the device, GLI had concluded that the machine

malfunctioned on November 20, 1999 (the date of Gale Thomas’s play) causing

erroneous data to be displayed on the LCD screen. Mr. Maida stated that the program

code of the machine only allowed for a bonus win of 800 for a one-coin bet, 1600 for

a two-coin bet, and 2500 for three-coin bet. Noting that GLI’s report had stated that

“the game code software can not award any larger of a win under normal operating

conditions,” Mr. Maida concluded that “[f]or this to occur, the machine must have

malfunctioned on November 15, 1998 and November 20, 1999.” Elsewhere in his

affidavit, Mr. Maida stated that the hardware had malfunctioned on November 20,

9

1999, adding that the machine bears a sign that states in large letters that

“MALFUNCTIONS VOID ALL PAYS AND PLAYS.”

Despite the fact that the slot machine had been sent to GLI with the specific

request that it try to determine what happened regarding the jackpot hit by Ms.

Thomas, it is clear from the GLI report that it was unable to do so. GLI described its

“[a]ttempt to re-enact scenario on duplicate game” in its report in these words

(emphasis added):

After reviewing the state of game and reviewing the version of software
in the game, it was determined that GLI Colorado did not have the
proper equipment to emulate the game. A comparison of the amount of
time that would have been needed to accomplish the task compared to
the possible outcome resulted in the conclusion that this step would not
be performed.

The deposition of Kevin Fontenot, the primary slot machine technician at the

Kinder casino location, was also offered in support of the defendants’ motion for

summary judgment. In his deposition, Mr. Fontenot testified that he opened the

suspect slot machine on both occasions at issue and was unable to ascertain the

malfunction on either occasion. Despite finding nothing to support his position, he

concluded that the slot machine had malfunctioned because something had occurred

which was “not in the normal operating range.” That is to say, both jackpots were in

excess of the limits programmed into the machine, and the award of a jackpot in

excess of those limits could only be the result of a malfunction.

The Tribe’s defense is based on two contentions. One is that the bonus wheel

on its face showed that the maximum pay for a three “7s” bonus was 800 for a one-

coin bet; 1,600 for a two-coin bet; and 2,500 for a three-coin bet. However,

photographs introduced in support of the motion for summary judgment do not

support this assertion. Nowhere does any language appear on the slot machine that

10

the maximum payout is fixed by these numbers. In fact, Mr. Fontenot admitted that

the language was not there. Thus, the Tribe’s contention in this context is an

argument not based on fact. Therefore, we find no material issue of disputed fact over

whether the machine informed the player that there was a “maximum” payout in

playing the bonus wheel. It did not do so.

The Tribe’s second contention is that on its face the machine contained the

language “[m]alfunctions void all pays and plays,” and that this language is an

explicit part of the contract between it and any player. Although the photographs

filed in support of the Tribe’s motion for summary judgment are not sufficiently clear

to establish the presence of the language, the affidavit and deposition testimony

offered by the Tribe declare that the language is present. However, the plaintiffs deny

having ever seen it, thereby creating a factual dispute concerning this issue. The

Tribe correctly points out that this language, if present, constitutes an explicit part of

the contract between it and the plaintiffs. However, assuming the language to be

present on the slot machine, an essential element of the Tribe’s defense is that a

malfunction occurred—and this is where the Tribe’s argument fails. Whether a slot

machine malfunctioned is a question of fact. Griggs v. Harrah’s Casino, 05-321

(La.App. 4 Cir. 3/22/06), 929 So.2d 204, writ denied, 06-916 (La. 6/16/06), 929

So.2d 1288. To prove a malfunction caused these outcomes it was incumbent on the

Tribe to prove that the malfunction occurred when the game was played. Id. “The

bet is wagered when the game is played, and when the game is completed, the result

is final.” Id. at 217.

It is undisputed that nothing in the behavior of the slot machine in either

instance suggested a malfunction. On both occasions the slot machine registered

11

jackpots and displayed messages informing the players of their good fortune. There

were no noises, alerts, signs, warnings, LED displays, or other explanations signaling

the players or the Casino that something was amiss in the operation of the machine.

In fact, on each occasion Casino employees in the vicinity of the winning machines

immediately, and without hesitation, informed the players of the specific amount won.

Trained experts in both Louisiana and Colorado examined the machines and were

unable to find a malfunction or even to duplicate the machine’s mechanics in

awarding the jackpots at issue.

The only basis for a claim of malfunction is the Tribe’s suggestion that the

jackpot awards simply should not have happened because the hardware and software

were designed, built, and programmed to limit the machine payout, and the two

jackpots at issue exceeded those limits. According to the Tribe, normal operation of

this machine should have never produced the resulting jackpots.

The flaw in this argument is the assumption that neither the design,

construction, nor programming of the device could conceivably yield any result other

than that desired by the designer, manufacturer, or programmer. We know of no

presumption in the law that would operate to say that just because a generally

successful effort was made to build and program the machine to yield no results larger

than a certain number, any result producing such a larger number was the result of a

malfunction.7 A malfunction defense requires factual support, not a presumption.

Both Mr. Fontenot and Mr. Maida candidly admitted that no malfunction could be

7
The functioning of software reflects the ingenuity of the designer-programmer. Who is to
say that this software did not behave as it was intended to behave? A result undesirable from the
Casino’s standpoint does not necessarily mean that a malfunction caused it. It might have been that
the result was programmed accidentally, or even purposely. It cannot be inferred that simply because
the machine twice paid out more than it was believed to have been designed and programmed to pay
out, there was a malfunction.

12

identified or duplicated, and Mr. Maida was not even sure whether the malfunction

was in the hardware or the software. Thus, the Tribe was unable to produce factual

support sufficient to establish that it would be able to satisfy its burden of proving a

malfunction by a preponderance of the evidence at trial.

Additionally, a factually unsupported opinion, albeit from an expert in slot

machines, cannot be used to invoke the resolutory condition that “[m]alfunctions void

all pays and plays.” If the Casino is the only authority that can determine whether a

malfunction has occurred, there exists a basic unfairness in this wager contract.

Although in this particular case the Casino contests only a win that supposedly

exceeded the limits of the machine, by its reasoning the Casino could declare a

malfunction for any win, even those within the claimed outside payout limit of the

machine. At the same time, if there is a malfunction in the Casino’s favor,8 it would

never be detected because the wagerer would not recognize that the machine had

malfunctioned to deprive him of a win—he would simply assume a losing play of the

slot machine.

By the testimony of the Tribe’s own expert, a malfunction in the present case

cannot be explained and is presently incapable of discovery and explanation. The

assertion that a malfunction occurred rests solely on the Casino’s word. Such a

system places in the Casino’s power a means to avoid its obligations that depends

solely on its will as the obligor.

Louisiana Civil Code Article 1767 states that a conditional obligation, or one

dependent on an uncertain event, is resolutory. The Comments to this article state

that in its proper sense the word “condition” means “some operative fact subsequent

8
Mr. Fontenot suggested in his testimony that, while rare, malfunctions do occur.

13

to acceptance and prior to discharge, a fact upon which the rights and duties of the

parties depend.” Revision Comments-1984(f). In the present case the Casino regards

its obligation to pay a jackpot as enforceable if the machine is functioning properly;

if it malfunctions its obligation ceases, nullifying all plays and pays. Louisiana Civil

Code Article 1770 provides that a resolutory condition that depends solely on the will

of the obligor must be fulfilled in good faith.9 We believe that here good faith

requires that the Tribe be able to demonstrate with facts, not theory, that the machine

malfunctioned.

A case similar to the present one is Jones v. Fowler, 185 So. 40 (La.App.

Orleans 1938). In that case Fowler, the operator of a shooting gallery, offered a prize

of $300.00 to any person, after payment of a fee, who could shoot out and obliterate

a red figure “5” on a target from a certain distance with only three shots from a .22

caliber rifle. Jones claimed the prize when with three shots he succeeded in

obliterating the red “5.” The gallery operator admitted the agreement but refused to

pay the prize, claiming that the agreement made him “the sole judge of all shooting”

and that, according to his observation, not all the red was obliterated. No red could

be seen with the naked eye, although some could be detected with the use of a

magnifying glass. The trial court’s decision to award the plaintiff the prize was

affirmed because the contractual provision giving the operator the absolute power to

determine whether or not the plaintiff had performed the obligation was potestative

and hence voidable by the plaintiff, but the contract itself was not null and the court

could determine whether or not the plaintiff had performed his part. In a Note,

Contracts–Potestative Conditions–Good Faith in Performance–Articles 1901, 2034,

9
According to its comments Article 1770 did not change the law. It reproduced the substance
of Civil Code arts. 2024, 2034, and 2035 (1870).

14

2035, Louisiana Civil Code of 1870, 13 Tulane Law Review 626, the author points

out that the court in Jones v. Fowler reached the proper result but that it could have

decided the matter on the ground that the condition was not one dependent solely on

the will of one of the parties, but rather upon an act tested by an objective standard.

In other words, the condition was an enforceable one which required good faith in

performance on the part of the defendant.

We cannot accept the Tribe’s position that its contractual right to void a win

because the machine malfunctioned can be exercised merely by its after-the-fact

declaration that the machine had malfunctioned. It would not be good faith for the

Tribe to insist that it have the right to void a jackpot for a malfunction and at the same

time have the exclusive right to determine what a malfunction is and when it

occurred. Thus, where there was no apparent malfunction indication by the slot

machine itself, a casino may not rely on the argument that the machine was not

intended to register the particular jackpot to deny payment. That is to say, there must

objective proof of a malfunction. Good faith in performance of a contract requires

that the resolutory condition, i.e., that a malfunction occurred which caused the

jackpot, be tested by some objective standard. That objectivity is not demonstrated

in this case.

DISPOSITION

For the foregoing reasons we affirm the trial court judgment granting Sister

Nira Ledoux and Gale Thomas summary judgment against the Coushatta Tribe of

Louisiana. We assess all costs of this appeal to the Coushatta Tribe of Louisiana.

AFFIRMED.

15