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III NEMETH200 Talon Centre Dmc telephone: (313) 567-5921BURWELL PC Suite 200 fac,imjlc: (.1 L)l 5675928Attorneys & Counselors Detroit, ~ 8 2 0 7 -.1199 email:

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September 18, 2009

VIA HAND-DELIVERYClerk of the CourtHon. Michael F. SapalaTwo Woodward Ave., Rm. 1707Coleman A Young Municipal BuildingDetroit, MI 48226RE: Parise v. Detroit Entertainment, LLCCase No. 09-007370-CZDear Mr. Cusumano:Enclosed please find the following documents regarding the above mentioned maiter that wasfiled with the court today:

1. Defendant's Response BriefIn Opposition To Plaintiff's Motion For SummaryDisposition; and2. Proofof Service.

Very Truly Yours,

eborah BrouwerDB/shEnclosurescc: Frank A. Cusumano, Esq. (via hand-delivery)

Working with Employers to Prewllt, Resolve, and Litigate E m p l ~ ) ! m e n t D i ~ p u t e s

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STATE OF MICHIGANIN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

IT ALO M. PARISE,

Plaintiff, Case No. 09-007370-CZ-vs- Hon. Michae! F. Sapala

DETROIT ENTERTAINMENT, L.L.c.,

Defendant.

Frank A. Cusumano (P42781)Attorney for Plaintiff4000 Crooks Rd., Ste. 100ARoyal Oak, MI 48073(248) 822-8760

Patricia Nemeth (P3 7004) Deborah Brouwer (P34872) Louis B. Eble (P59368) Nemeth Burwell P.C. Attorney for Defendant 200 Talon Centre Dr., Ste. 200 Detroit, MI 48207 (313) 567-5921

DEFENDANT'S RESPONSE BRIEF IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY DISPOSITION

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I. INTRODUCTION

Plaintiff, after lawfully gambling at MotorCity Casino (a fully licensed casino) for nineyears, now wants his money back. In this suit, he claims that MotorCity Casino owes him the$673,854.00 he allegedly wagered and lost. Plaintiff's claim is premised on MCL 600.2939(the "Prior Act"), a statute first enacted 150 years before the legalization of nontribal gaming atthe three Detroit casinos, which permits recovery by those who have lost money from illegalgaming activities. Plaintiff's argument, if adopted by the Michigan courts, would create agaping loophole under which all risk would be removed for bettors gambling in the Detroitcasinos, thereby ensuring that all such casino gaming would grind to a screeching halt. Acasino not allowed to keep its winnings obviously cannot survive.

A ruling in Plaintiff's favor would completely thwart the will of the people ofMichigan, who specifically voted in 1996 to allow casino gaming in the City of Detroitpursuant to an initiated law known as Proposal Such a ruling would also thwart the will ofthe Legislature, which foresaw the obvious potential for conflict between, on the one hand, theauthorization of legalized gambling in Detroit, and, on the other hand, the existence of ascheme of pre-existing laws, which were enacted when gambling was uniformly illegalthroughout the State. In Proposal E as amended, the Legislature expressly provided that "[a]nyother law that is inconsistent with this act does not apply to casino gaming as provided forby this act." See MeL 432.203(3). The law upon which Plaintiff relies allows bettors to sueto recover any losses incurred in illegal gaming and clearly is inconsistent with the legal casinogaming in Detroit authorized by Proposal E, as amended.

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Because the law upon which Plainti ff relies does not apply to the casino gaming offeredby Defendant and pursuant to which Plaintiff admittedly wagered and lost, Plaintiff has failedto state a claim upon which relief can be granted and is not entitled to summary disposition.Accordingly, Defendant requests that the Court deny Plaintiffs motion for summarydisposition, grant Defendant's motion for summary disposition, and award Defendant its costsand fees incurred as a result of Plaint iff s frivolous lawsuit.

II. FACTUAL BACKGROUNDHistorically, gaming was illegal in Michigan, as codified by the Prior Act and certain

penal provisions rendering gaming a crime subject to prosecution. Over the years, numerousforms of regulated gaming have been authorized, including the State lottery, l charitable gamingsuch as bingo games and millionaires' parties,2 parimutuel race track betting3 and tribalgaming, which is conducted throughout the State and has been for more than 20 years. OnNovember 5, 1996, more than 1.8 million individuals voted to further expand gaming inMichigan by authorizing gambling at three licensed casinos in Detroit pursuant to Proposal E,known as the Michigan Gaming Control and Revenue Act. Proposal E became effective onDecember 5, 1996. In 1997, the Legislature amended that initiated law by enacting Public Act69, which became effective on July 17, 1997.

The Michigan Gaming Control and Revenue Act as amended is codified as MCL 432.201 et seq. (the "Gaming Act") [Ex. A]. The Gaming Act is a comprehensive statutegoverning all aspects of casino gaming at the three licensed Detroit casinos (includingDefendant MotorCity Casino) and setting forth in detail the rights and obligations of everyone

I MCL 432.1 et. seq.2 MCL 432.101 et. seq.3 MCL 432.301 et. seq.

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who participates in gambling at these facilities. Indeed, the Gaming Act specifically providesthat gaming is authorized only "to the extent that it is conducted in accordance with this act."MCL 432.203(1).

To legalize nontribal casino gambling in Michigan, the Gaming Act obviously had torender inapplicable all pre-existing laws inconsistent with its provisions. Otherwise, forexample, Michigan's penal laws would have continued to criminalize what the Gaming Actexpressly legalized. To avoid any confusion in this regard, the Legislature expressly stated thatall inconsistent laws simply do not apply to casino gaming as authorized by the Gaming Act.Specifically, the Gaming Act provides:

Any other law that is inconsistent with this act does not apply to casinogaming as provided for by this act.

MCL 432.203(3).That statutory section is key to the resolution of the legal issues raised in the cross

motions for summary disposition pending before this Court. For purposes of those motions, theessential facts of this matter are not in dispute. On March 30, 2009, PlaintiffItalo Parise filedsuit against MotorCity Casino, seeking return of the $673,854.00 that Plaintiff claims to havelost legally gambling at MotorCity Casino during the nine years between 2000 and 2009. 4 TheComplaint cited no legal authority in support of his claim and alleged that he was a "patron,customer and business invitee" of MotorCity Casino, and as such "engaged in gaIningactivities, including placing wagers on games of chance." [Ex. A - Complaint, 8]. Plaintifffurther alleged that he lost money to MotorCity Casino by gaming. [Ex. A - Complaint, 9]Attached to the Complaint was a sworn Affidavit from Plaintiff, stating that:

4 The Complaint was not served on Defendant until June 10,2009.4

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3. Between February 25, 2000 and March 22, 2009, I lost moneyby gaming to MotorCity. . . . through the loss of wagers and betsplaced on games of chance commonly known as slot machines,table games, including "Black Jack" and other occasional tablegames, gaming devices or games of skill and chance.5. The total money loss transferred from me to MotorCity bylosses and now in the hands of MotorCity from gaming duringthe above mentioned period was Six Hundred Seventy ThreeThousand Eight Hundred Fifty Four and 00/100 ($673,854.00)after set-offs for any winnings. . .

[Ex. B - Affidavit attached to Plaintiff 's Complaint].In lieu of an answer, on July 14, 2009, Defendant timely filed a Motion for Summary

Disposition pursuant to MCR 2.116(C)(8), based upon the absence of any valid legal theorysupporting Plaint iff s claim for relief. Defendant also cited statutory and regulatory authorityestablishing that this Court lacks jurisdiction over Plaintiffs claim.5 PlaintitT responded toDefendant's Motion on July 17, 2009, submitting two pleadings to the Court, one labeled"Plaintiffs Motion for Summary Disposition" and the other labeled "Plaintiffs Response toDefendant's Motion for Summary Disposition," which were supported by identical briefs. Inthose briefs, Plaintiff claims to be entitled to judgment against MotorCity Casino in the amountof $673,854.00 pursuant to the Prior Act. Then, on August 5, 2009, without leave of the Courtand before Defendant had the opportunity to respond to Plaintiffs Motion, Plaintiff filed whathe titled "Supplemental Brief in Support of Plaint iff s Motion for Summary Disposition,"which is essentially a reiteration of his initial position. Despite these multiple attempts toformulate a legally justiciable position that even arguably supports his claim for reimbursement

5 All disputes between patrons and the Detroit casinos concerning the conduct of gaming arewithin the exclusive jurisdiction of the Michigan Gaming Control Board. MCL 432.204aGiven that, in this case, Plaintiff does not allege any VvTongful, much less illegal, conduct byDefendant, or any violation of the Gaming Act but simply seeks relief under the Prior Act,5

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of monies he lost while legally gambling, Plaintiff has failed to espouse any viable theory.Plaintiffs reliance on the Prior Act is simply misplaced, because the premise of and remedyunder the Prior Act are entirely inconsistent with the la\\-ful casino gaming in which Plaintiffadmittedly engaged, thereby making the Prior Act inapplicable pursuant to the expresslanguage of MCL 432.203(3). Because Plaintiffs frivolous claim lacks any legitimate basis,his Complaint should be dismissed in its entirety and Defendant should be awarded sanctions.

III. ARGUMENTA. Tile casino gaming offered by Defendant and engaged in by Plaintiff isgoverned exclusively by tile Gaming Act, wllicll provides 110 vellicle forrecovery o fgambling losses.The Gaming Act legalized casino gaming at three licensed Detroit casinos and created

an extensive and comprehensive regulatory scheme governing the conduct of casino gaming atthose casinos. The Gaming Act created a Michigan Gaming Control Board (the "board"),which has exclusive and expansive regulatory authority over the conduct of casino gaming atthe three licensed casinos. See, e.g. MCL 432.204a, which provides that "(1) The board shallhave jurisdiction over and shall supervise all gambling operations governed by this act."

The Gaming Act explicitly delineates the persons and activities covered by that statute.It specifies that a "casino" is a "building in which gaming is conducted" (see MCL 432.202(g) and defines "gaming" to mean "to deal, operate, carryon, conduct, maintain orexpose or offer for play any gambling game or gambling operation.,,6 It defines "gambling

which has no applicability whatsoever to the facts asserted by Plaintiff, this Court hasjurisdiction to dismiss Plain tif f s claim for lack of any viable theory entitling Plaintiff to relief.6 MCL 432.202(x)

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operation" as "the conduct of authorized gambling games in a casino"? and defines "gamblinggame" as:

any game played with cards, dice, equipment or a machine...including but not limited to faro, monte, roulette, keno, bingo, fantan, twenty one, blackjack, seven and a half, klondike, craps,poker, chuck a luck, Chinese chuck a luck (dai shu),wheel offortune, chemin de fer, baccarat, pai gow, beat the banker,panguingui, slot machine, any banking or percentage game, orany other game or device approved by the board . . . 8

Further, a "wagerer" is defined by the Gaming Act as "a person who plays a gambling gameauthorized under this act.,,9

By his own admissions, Plaintiff's gambling at MotorCity Casino falls within thepurview of the Gaming Act, not outside of it. MotorCity Casino, which Plaintiff concedes hevisited in order to legally gamble over a nine-year period, falls within the Gaming Act'sdefinition of a casino. [Ex. B - Plaintiff's Complaint, 6, 7]. Further, Plaintiff, by his owndescription of his activities at MotorCity Casino, was a wagerer as defined by the Gaming Act.Plaintiff admits that, while at MotorCity Casino, he placed:

wagers and bets on games of chance commonly known as slotmachines, table games including "Black Jack" and otheroccasional table games, gaming devices or games of skill andchance.

[Ex. C - Plaintiff's Affidavit, 3]. Plaintiff's Complaint also admits that he was a patron ofMotorCity Casino and that he placed "wagers on games of chance, to wit: slot machines, andtable games, including but not limited to a card game known as "blackjack." [Ex. B - Plaintiff'sComplaint, 8]. Plaintiff thus acknowledges, repeatedly and under oath, that he engaged in

? MCL 432.202(w)8 MCL 432.202(v)

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activities that bring him squarely within the definition of a \vagerer under the Gaming Act -- "aperson who plays a gambling game authorized under this act."IO

Plaintiff disingenuously argues, however, that his wagering activities at MotorCity Casinowere somehow not governed by the Gaming Act, claiming (evidently on the basis of a readingof the Gaming Act definitions of "casino" and "gaming" in isolation and without reference toany other provisions of the statute) that the Gaming Act applies only and exclusively to theentities that operate casinos and not to patrons engaged in wagering at the casinos [Pla inti ff sBrief in Support of Motion for Summary Disposition at 14-15; Supplemental Brief at 4]Plaintiffs contention in this regard ignores multiple provisions of the Gaming Act and issimply "'Tong.

The Gaming Act under its terms governs all aspects of casino gaming which, bynecessity, involves everyone participating in casino gaming, including not only the casinoowners/operators but also casino employees and wagerers such as Plaintiff. Indeed, Section 3of the Gaming Act explicitly states that "this act and rules promulgated by the board shall applyto all persons who are licensed or otherwise participate in gaming under the act." See MCL 432.203( 4). Section 4 of the Gaming Act confirms the application of the statute to allparticipants in casino gaming; it specifically empowers the board to have "jurisdiction over andsupervise casino gambling operations authorized by this act and all persons in casinos wheregambling operations are conducted under this act (emphasis added)." See MCL 432.204a(1 )(b). II

9 MCL 432.202(ii)10 MCL 432.202(ii) 11 The Court of Appeals in McEntee v Incredible Technologies, 2006 WL 659347 (2006), has already held that the Gaming Act applies to all persons who "participate in gaming" as set forth in the Gaming Act McEntee is more fully discussed in Section B, infra.

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The Gaming Act is also replete with other proVIsIOns governing patrons, includingprovisions designed to assist compulsive gamblers. 12 Under the Gaming Act, for example,wagerers are not permitted to place wagers on behalf of persons not present in the casino, andthey are not permitted to place wagers using money or other negotiable cUlTency.13 Wagererscan only purchase chips or tokens from the licensed casino, inside the casino, and may only usesuch chips or tokens in the casino, for the purpose of placing a wager. 14 Persons under the ageof 21 who are not employees cannot enter areas of a casino where gaming is being conductednor can they place a wager. 15 Patrons are subject to criminal prosecution and permanentexclusion from the Detroit casinos in a variety of circumstances. 16 Patrons cannot carryweapons in the casino. 17 Patrons who are placed on the disassociated persons list are prohibitedfrom entering any of the Detroit casinos. 18

Given the breadth of these provisions relating to patrons, there is no merit to Plaintiffsargument that the scope of the Gaming Act does not extend to the patrons who engage in

12 The Legislature recognized that some persons may develop gambling problems, and thusincluded in the Gaming Act specific provisions addressing this important issue. The Detroitcasinos are not permitted to place electronic funds transfer terminals within fifty feet of anygame in the casino and are also prohibited from operating games played with devices allowingplayers to use a credit or debit card. The Detroit casinos are also required to pay money fordeposit into the compulsive gambling prevention fund, and they are required to post thecompulsive gambling helpline number in the casino and on certain advertising and promotionalmaterials. The Legislature also created a process under which persons may request to be placedon a list of permanently disassociated persons. Persons on the list are balTed from gambling atthe Detroit casinos for life; if a person on the list does gamble at one of the casinos, his/herwinnings are subject to confiscation by the board. See, e.g. MeL 432.209a; MeL 432.212a;MeL 432.209c; and MeL 432.225. It does not appear that Plaintiff has sought theprotection of the disassociated persons list.3 MeL 432.209(6) and (7)

14 MeL 432.209 (8)15 MeL 432.209 (9)16 MeL 432.218(2) and (3)17 R432.121218 MeL 432.225(13)

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gaming at the Detroit casinos and thus does not apply to him. These provisions, coupled withthe many Gaming Act provisions regulating the conduct of casino gaming by the casinoovvners/operators, make it clear that the casino gaming conducted at MotorCity Casino isgoverned exclusively by the Gaming Act. Nothing in that all-encompassing statute, however,permits the wagerer to recover losses arising from his/her participation in casino gamingauthorized by and conducted pursuant to that statute. By his own admission, the losses Plaintiffseeks to recover arose precisely from such gaming activity at MotorCity Casino, not fromgaming conducted outside of the scope of the Gaming Act. Accordingly, the remedy Plaintiffseeks is not available to him.

B. The Gaming Act rendered the Prior Act inapplicable to the wagering activitiesin which Plaintiff engaged at MotorCity Casillo.

In order to effectuate the legalization of casino gaming at three licensed Detroit casinos,the Gaming Act expressly and unambiguously rendered inapplicable all pre-existing lawsinconsistent with its provisions; it provided as follows:

Any other law that is inconsistent with this act does not apply tocasino gaming as provided for by this act.

MCL 432.203(3).When interpreting this statutory provision, the Court must give effect to the intent of

the Legislature. In re !vICI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999). Todetennine the intent of the Legislature, one must first look at the language of the statute itselfHouse Speaker v State Admin Board, 441 Mich 547,567; 495 NW2d 539 (1993). If the statuteis unambiguous on its face, the Legislature is presumed to have intended the meaning plainlyexpressed and further judicial interpretation is not permitted. Lorencz v Ford !viotor Co, 439Mich 370,376; 483 NW2d 844 (1992). "Only where the statutory language is ambiguous may

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a court properly go beyond the words of the statute to ascertain legislative intent." Sun ValleyFoods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).

The Michigan Court of Appeals has already reviewed this specific Gaming Actprovision and concluded that the Legislature intended its scope to be broad. In Kraft v DetroitEntertainment, LLC, 261 Mich App 534; 683 NW2d 200 (2004), the Court concluded that the"Legislature's use of the phrase '[a]ny other law' [in MCL 432.203(3)] implies that thepreemption clause is all-inclusive when referring to the laws it was meant to encompass. Thatthe phrase '[a]ny other law' sweeps broadly suggests that the Legislature meant to includecommon law in addition to legislative enactments." Id. at 546 (Emphasis added). Afterreaching this conclusion, the Kraft court analyzed whether the common law claims forfraudulent inducement to play slot machines asserted by the plaintiffs were inconsistent withthe Gaming Act and concluded that they were. Id. at 547.

A similar result should be reached in the instant case. Plaintiff relies on the Prior Act,which provides:

In any suit brought by the person losing any money or goods,against the person receiving the same, when it appears from thecomplaint that the money or goods came to the hands of thedefendant by gaming, if the plaintiff makes oath before the courtin which such suit is pending, that the money or goods were lostby gaming with the defendant as alleged in the complaint,judgment shall be rendered that the plaintiff recover damages tothe amount of said money or goods, unless the defendant makesoath that he did not obtain the same, or any part thereof bygammg . . .

MCL 600.2939(1).The Prior Act thus contemplates that anyone who is a "loser" of money or goods in

gaming may recoup those losses. The Prior Act thereby sanctions the very conduct that the

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Gaming Act authorizes and seeks to facilitate. As applied to the licensed Detroit casinos, thepremise of the Prior Act, that all losing bettors may recover their losses, is directly inconsistentwith the fundamental concept underlying the Gaming Act, that betting on games of chance(with corresponding wins and losses) should occur in licensed Detroit casinos, thus generatingrevenues for the casinos' owners/operators, the City of Detroit and the State. The legalremoval of any right to retain a bettor's losses would remove any incentive for legal non-tribalcasinos to operate in Detroit, thereby eviscerating the central goal of the Gaming Act andthwarting the intent of the Legislature. 19 Additionally, because the Prior Act applies to bothparties to an illegal game, if the Prior Act were somehow deemed to provide Plaintiff a remedyfor monies lost at the Detroit casinos, it would also provide a remedy to each Detroit casino formonies won by a patron and, in tum, lost by the casino. The absurdity of such a result is self-evident. No patron would gamble at a Detroit casino if he could be immediately sued by thecasino and forced to return his winnings (and "comps").

"1]t is a recognized rule of statutory interpretation that the courts will 110t construe astatute so as to achieve an absurd or unreasonable result." Luttrell v Dept a/Corrections, 421Mich 93, 106; 365 NW2d 74 (1985). It would be absurd for the Legislature to authorizegaming, credit extension, and causes of action to recover anlOunts due for credit extended underthe Ganling Act and then permit patrons and the casinos to recover their losses and/or rendercredit contracts unenforceable at will under the Prior Act. Accordingly, as applied to the legalnon-tribal casinos in Detroit, the Prior Act is directly inconsistent with the Gaming Act and,

19 Plaintiffs argument that application of the Prior Act would not end casino gambling inDetroit because the casinos still retain the right to refuse bets is nonsensical. The right to refusebets is no consolation if the bets that are allowed to be placed can be placed with no risk ofloss. And no one is going to place a bet knowing that if he/she hits a jackpot the casino can sueto recover its losses.

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thus, by the express terms of the Gaming Act, does not apply to the lawful gaming conducted atthe three licensed Detroit casinos.

This conclusion is fully supported by the Court of Appeals decision in McEntee vIncredible Technologies, Inc., 2006 WL 659347 (2006), unpublished per curiam opinion(Docket No. 263818, issued March 16, 2006) DJ. In that case, the Court held that theGaming Act preempts MCL 750.315, a statute almost identical to the Prior Act. MCL 750.315 provides, in relevant part:

Losing at Gambling-Any person who shall lose any sum ofmoney, or any goods, article or thing of value, by playing orbetting on cards, dice or by any other device in the nature of suchplaying or betting . . . may sue for and recover such money in anaction for money . . . .

In AfcEntee, players of electronic golf games sued the defendant pursuant to MCL 750.315for the money they lost while playing the games. Because the games were played for money,the Court deemed them "gambling games" as defined in and regulated by the Gaming Act. Id.The Court of Appeals upheld the trial court's dismissal of the plaintiffs' cause of actionbecause MCL 750.315 is inconsistent with the Gaming Act. The Court explained:

Any law that is inconsistent with the MGCRA [the Gaming Act]does not apply to casino gaming. MCL 432.203(3). Thus, thisCourt has held that the MGCRA preempts inconsistent laws,including common law. Kraft v. Detroit Entertainment, LLC,261 Mieh. App. 534, 551-552 . . . Therefore, we hold thatplaintiffs cause of action under MCL 750.315 is preempted bytheMGCRA.

Id. at slip op p 3.Plaintiff tries to distinguish McEntee, by arguing that it should not be followed because

he thinks it was wrongly decided and that its holding would somehow bar all other regulatoryand enforcement agencies from doing their respective jobs. What Plaintiff conveniently ignores

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is that in l'v/cEntee, as in the case at bar, the issue was limited to whether a wagerer whoengages in gaming as authorized by the Gaming Act can sue to recover his or her losses byrelying on a preexisting and no longer applicable statutory scheme. The Court of Appeals andthe Legislature have unequivocally (and necessarily) determined that the answer to thatquestion is a simple "no." This is precisely the result that should be reached in this case.Plaintiff's claim should be dismissed because the statute upon which he relies is directlyinconsistent with the Gaming Act,20

C. The PriorAct is also inapplicable because it applies ollly to illegal gamillg, notlegal gaming cOllductedpursuant to the Gaming Act

The provision relied upon by Plaintiff is only one section of a mUlti-part statute.Reading the statute in its entirety (as courts are required to do when interpreting a statute), it isevident that the Prior Act applies only to illegal gaming. Subsection (2) of the Prior Act refersto gaming as an "offense," while Subsection (3) refers to contracts made based on money to bewon by gaming or credit extended for that purpose as "illegal" and "void and of no efIect."MCL 600.2939(2) and (3).

The Legislature'S reference to "offinse" in subsection (2) and "illegality" in subsection(3) would make no sense if the "gaming" conduct described in subsection (1) were legaLConsistent with this conclusion, the Michigan Court of Appeals has recognized that both thePrior Act and its analogous penal statute, MCL 750.314, apply only to illegal gambling. See

20 Plaintiff seems to be claiming that 432.203(3) of the Gaming Act does not invalidate thePrior Act because 432.203(3) only invalidates pre-existing laws afIecting casinoowner/operators, not pre-existing laws afIecting casino gamblers. His position is completelyundercut by the Court of Appeals decisions in Kraji and l'v/cEntee, supra, both of whichconcluded that the laws relied upon by the plaintiffs in those cases were inconsistent with theGaming Act and thus, under 432.203(3), were inapplicable with respect to the claims assertedby the plaintiffs. In each of those cases, the claims of the plaintiffs, who were casino gamblers,not casino o'Wl1ers/operators, were thus rejected. The same result should occur here.

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People v Dansby, 48 Mich App 185, 190; 210 NW2d 392 (1973) (explaining that, pursuant toMCL 600.2939 and MCL 750.314, title to monies won gambling do not pass to the winnerbecause they are the result of an illegal act.).

It is readily apparent that the wagering activities at MotorCity Casino are legal activitiesexpressly authorized by the Gaming Act and conducted pursuant to MotorCity Casino's licenseissued by the board. The Prior Act simply does not apply to those activities and thus providesno remedy to Plaintiff for the recovery of the money he allegedly and legally lost.

D. The Legislature did not repeal the Prior Act because it intended thatstatute to continue to apply to illegal gambling in ~ M i c h i g a n .

Plaintiff's contention that the Prior Act still applies to the Detroit casinos because it hasnot been expressly repealed is incorrect. The Legislature did not need to repeal the Prior Act inorder to effectuate the legalization of gaming at the Detroit casinos. A full repeal of the PriorAct would have made sense only if the Legislature had legalized gaming in all respects,throughout the state, which was not the case. In the case of the legalization of limited gaming,only those laws inconsistent with the newly authorized gaming needed to be invalidated. Whenthe Legislature enacted the McCauley-Traxler-Law-Bowman-Mcneely Lottery Act and theT r a x l e r - M c C a u l e y - L a w - B o ~ m a n Bingo Act, it included in the legislation provisions statingthat other laws penalizing activity made lawful by those acts were inapplicable. See MCL 432.37 and MCL 432.119. The Legislature followed the same approach in connection withthe legalization of limited gaming at the three Detroit casinos; it enacted a provision of theGaming Act stating that "any other law that is inconsistent with this act does not apply tocasino gaming as provided for by this act." See MCL 432.203(3). By so doing, theLegislature accomplished precisely the purpose it intended: it invalidated the Prior Act to the

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extent that it would otherwise have applied to the activities authorized by the Gaming Act(thereby eliminating an impediment to the effectuation of the will of the voters of the State ofMichigan to establish legalized gaming at three Detroit casinos), and it preserved theapplicability of the Prior Act to the situations in which the remedy provided by that statuteshould still apply, meaning illegal gaming.

E. Even if the Legislature had not expressly provided that the Prior Actand all other inconsistent acts were inapplicable, the Courts wouldfindthat to be the legislative intent by implication.

Even if the Legislature had not unambiguously stated that legislation inconsistent withthe Gaming Act is inapplicable, general rules of statutory construction would have so held.Repeal by implication may be found when there is a clear conflict between two statutes orwhen a subsequent law was clearly intended to occupy the entire field occupied by a priorenactment. Wayne County Prosecutor v Department of Corrections, 451 Mich 569, 577; 548N. W.2d 900 (1996). Thus, when a statute conflicts with an earlier enacted provision, theLegislature is deemed to have repealed the prior statute to the extent of the conflict. Shirilla vCity ofDetroit, 208 Mich App 434, 439; 528 NW2d 763 (1995). "Where a clear conflict exists,

6F tthe later enactment controls." Id. at 440; see also Irons v Judicial District CourtEmployees, 139 Mich App 313,321; 362 NW2d 262 (1984) ("[W]here two statutes whichencompass the same subject matter conflict, the later enacted statute controls."). Furthermore,where two statutes that encompass the same subject matter conflict, the more specific statutewill control. Irons, 139 Mich App at 322; see also Nationsbanc A10rtg Corp of Georgia vLuptak, 243 Mich App 560, 566; 625 NW2d 385 (2000) (same). This can result in a partialrepeal of the earlier act, in order to give effect to the newer law. Civil Service Conll'n 'n v.Wayne County Board ofSupervisors, 384 Mich. 363, 374,184 NW2d 201 (1971).

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In this case, given that the Prior Act on its face provides a sanction for the very conductauthorized by the Gaming Act, there is an inherent conflict between the two. Under the abovedescribed principles, the Gaming Act repeals by implication the Prior Act with respect toconduct covered by the Gaming Act.

F. Application of the Prior Act to gaming at JfotorCity Casino is against publicpolicy.

Finally, Plaintiffs assertion that gaming is contrary to Michigan's public policy issimply not true. In fact, the opposite is true. Michigan has a long history of condoning certaintypes of gambling. State lotteries, nonprofit bingos, and pari-mutuel horseracing have all beensanctioned under statutory law, beginning as early as 1933. In a case upholding theenforcement of a Nevada gambling debt in Michigan, the Court held that "it is clear that theState [of Michigan] sanctions State regulated gambling." National Recovery System v Kasle,662 F Supp 139, 146 (ED Mich 1987). The Kasle court went on to find that "it is the expresspolicy of Michigan to promote legal gambling." Id.

Moreover, it was the Michigan voters who chose to permit gaming in the three DetroitcasIllos. Enacting the legislation necessary to accomplish this mandate, the MichiganLegislature created a statutory scheme that permits casinos to function. The Detroit casinossimply could not continue to operate if patrons with gambling losses were entitled to recoverthe monies they lost at the casinos, nor would patrons be willing to gamble at the Detroitcasinos if they knew that their winnings could be recouped by the losing casinos at their whim.Further, the clearly expressed goal that casino revenues will generate revenues for the State andthe City of Detroit through the wagering tax would be nullified if patrons were permitted toreceive all of their gaming losses back from the casinos. For the Court to accept Plaintiffs

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paradoxical argument, it would have to usurp the authority of this State's citizens and theLegislature to be the final arbiter ofpublic policy, which it cannot constitutionally do.

G. Defendant is entitled to recover sanctions because there is 110 legalsupportfor Plail1tiff'sfrivolous cause ofaction.

"Pursuant to MCR 2.114(D), an attorney or party that signs a pleading certifies that 'tothe best of his or her knowledge, information, and belief formed after reasonable inquiry, thedocument is well grounded in fact and is warranted by existing law or a good-faith argumentfor the extension, modification, or reversal of existing law. " John J Fannon Co v FannonProd, LLC, 269 Mich App 162, 168-69; 712 NW2d 731 (2006). An attorney or a party whosigns a pleading in violation of this rule is subject to sanctions:

If a document is signed in violation of this rule, the court, on themotion of a party or on its own initiative, shall impose upon theperson who signed it, a represented party, or both, an appropriatesanction, which may include an order to pay to the other party orparties the amount of the reasonable expenses incurred becauseof the filing of the document, including reasonable attorney fees.

MCR 2.1 14(E). A party pleading a frivolous claim, as in this case, is also subject to costs asprovided for in MCR 2.62S(A)(2). See MCR 2.114(F).

Plaintiff, or more aptly Plaintiff's counsel, either failed to conduct a reasonable inquiryinto the legal viability of Plaintiff's cause of action or filed the Complaint in disregard of theknowledge that there is no viability to the claim. Under these circumstances, sanctions arewarranted. See, e.g., John J Fannon Co, supra at 170 (upholding sanctions because attorneyfailed to conduct a reasonable inquiry into the factual and legal viability of plaintiff's claims).There is no reasonable possibility that an outdated law allowing recover for illegal gamingcould possibly apply to legalized gaming in Detroit in direct contravention of the express termsof the Gaming Act and settled rules of statutory construction.

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IV. CONCLUSION & RELIEF REQUESTED Michigan's voters and its Legislature have expressly authorized and legalized casino

gaming at MotorCity Casino, as well as the other licensed Detroit casinos. The Legislature hasexpressly stated that all prior inconsistent laws cannot apply to the lawful casino gamingconducted therein. Further, under well-settled principles of statutory construction, the GamingAct trumps the Prior Act. Finally, application of the Prior Act to lawful gaming at MotorCityCasino would run counter to the public policy inherent in the Gaming Act and would endcasino gaming in Detroit altogether, to the detriment of the casinos, patrons, citizens who votedto authorize gaming in Detroit, and the State and City that collect substantial wagering taxesfrom these casinos on a daily basis. Plaintiff has failed to state a claim upon which relief can begranted, and his claim must be dismissed as a matter of law.

For the reasons stated above, Defendant MotorCity Casino requests that this Court denyPlaintiffs motion for summary disposition, grant Defendant's motion for summary dispositionand award Defendant the costs and attorneys' fees it wrongfully incurred as a result ofPlaintiffs frivolous claim.

Respectfully submitted,NEMETH BURWELL, P.C.

atricia Nemeth (P37004)Deborah Brouwer (P34872)Louis B. Eble (P59368)Attorneys for DefendantMotorCity Casino200 Talon Centre, Ste. 200Detroit, Michigan 48207

Dated: September 18, 2009 (313) 567-5921

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