Daily Record and the Kansas City Daily News-Press: COA remands summary judgment for Gaming Commissio

Harrah's casino is off the hook for punitive damages in a false arrest case decided by the Western District Court of Appeals, but it cornered the cop who did the incarcerating.

In Tracey Blue v. Harrah's North Kansas City and B.L. Sweiger, the appellate court affirmed Clay County Circuit Court Judge James E. Welsh, Jr. in part but reversed the case so he can reconsider the summary judgment he awarded to B.L. Sweiger, the Missouri Gaming Commission agent who cuffed and questioned Blue back in April 2003 after a patron complained someone stole about $90 in gambling chips.

On the evening in question, Blue and his buddy Darren Houcks first tried their luck playing slots and then moved over to the craps table. Houcks apparently went back to play the slot machines and Blue played craps until he ran out of money. Meanwhile, another gambler complained that someone nabbed her chips when she briefly left the roulette table.

The surveillance team at Harrah's reviewed the videotape that recorded the theft and senior surveillance officer Eric Jarvis called in Sweiger. The tape was apparently in black and white and showed that the thief was a black male, wearing a shirt with a contrasting collar but the perpetrator's face wasn't viewable. Blue was wearing a blue pullover sweatshirt and gold pants.

Another member of the surveillance team was scanning the casino when she spotted Blue sitting by the escalators. She pointed him out to Sweiger and he figured he looked enough like the person on the grainy tape that they should speak with him.

At that juncture Blue and Houcks started for the exit so Sweiger asked security guards to detain Blue, even though Jarvis said he didn't think they had the right guy since the shirts were different.

The two were detained at the turnstiles at the exit. When Sweiger arrived he pulled Blue aside to talk with him. Blue apparently asked to see that video that had vilified him but the agent refused and eventually, figuring he was getting nowhere with Blue, cuffed him and led him through the casino to the office.

He got irritated with my guy because my guy didn't just roll over and say he did it, Blue's Maryville attorney G. Spencer Miller said. My guy didn't do it. But because my guy was a little loud he arrested him. It burned my guy up. He was not a happy camper.

On their way to the office, Kathy Martin, the security supervisor on duty, asked the dealer at the roulette table whether Blue was the thief. The dealer said that he was.

When they got to the office, Sweiger un-cuffed Blue, issued him a citation and the casino staff banned him from establishment while the matter was reviewed.

The next day the videotapes were studied again and they saw that Blue was at the casino's craps table - not the roulette table - when the chips were taken.

Sweiger sent Blue a letter informing him that the citation was dismissed. Blue brought a claim of false arrest against Harrah's and Sweiger.

Sweiger asked the judge to dismiss him from the case, saying he had probable cause to arrest Blue and he was entitled to official immunity. The judge granted Sweiger's summary judgment and Harrah's and Blue proceeded to a jury trial.

In a bifurcated trial, the jury found in favor of Blue but didn't award any actual damages, the panel did, however, sock Harrah's with $250,000 in punitive damages.

Miller asked Welsh to amend the judgment, to enter a nominal award to support the punitive damage award or if the judge didn't buy that he wanted a new trial because the verdict didn't agree with the evidence.

Harrah's asked Welsh for a judgment notwithstanding the verdict both on the liability issue and the punitive award.

Welsh denied all but the punitive damage award motion and both Blue and Harrah's appealed. Blue complained Welsh erred when he granted Sweiger's summary judgment, when he denied the motion to amend the judgment to add a nominal damage award and when he denied Blue a new trial.

Harrah's wanted its name completely cleared and said the judge was mistaken when he denied their post-trial motions.

The court took up Harrah's cross-appeal first, discussing the casino's claims that its employees were merely following Sweiger's directions and had they not, they would have put the casino's gaming license in jeopardy.

The appeals court said some of the evidence favored Harrah's and some didn't, therefore it was a proper question for the jury and they were loathe to overturning the jury's judgment. The point was denied.

Next, the court looked to Blue's contention that he deserved a new trial, given the inconsistent verdict. Writing for the concurring court, Judge Thomas H. Newton denied the point.

It does not matter that Mr. Blue got a judgment in his favor, and it does not matter that he received punitive damages. It also does not matter that he believes that this problem could be resolved by giving him an award of nominal damages, which will be considered below. The only basis for a new trial is that a verdict in his favor without an award of actual damages is an inconsistent verdict, Newton wrote. Once that inconsistent verdict was given, the burden was on Mr. Blue to ask the court to instruct the jury to award him nominal damages if it did not find that he suffered actual damages, and he failed to do so. Jacobs v. Bonser , 46 S.W.3d 41, 47 (Mo. App. E.D. 2001). The law is very clear that Mr. Blue's failure to raise that problem before the jury was discharged means that he has waived that claim and is not entitled to a new trial.

Miller explained the gamble he was forced to take in this case.

To me, my thought was, 'What if I don't make punitive damages?' he said in retrospect. I needed to focus primarily on actual damages. If I requested an instruction on nominal damages, which would be a dollar, I might be shooting myself in the foot. You can't very well argue what's this embarrassment worth to a casino that's making millions of dollars for a man that's been admittedly, wrongfully arrested. I thought that would carry the day, it didn't.

On Blue's second point, that Welsh should have, after the fact, awarded him nominal damages. The appeals court said the judge was not free to amend the jury's determination and that Miller should have asked the judge to instruct the jury on nominal damages before the jury was dismissed so the jury could rectify the inconsistency if it so chose.

Lastly, the court found that the judge improperly let Sweiger out of the case on summary judgment.

These facts create a genuine dispute about whether Officer Sweiger acted in bad faith or with malice, thereby precluding him from claiming official immunity. Because the facts are unclear, the question should not have been taken away from the jury, the opinion reads. Summary judgment was not appropriate here because the facts do not support a finding that Officer Sweiger was entitled to a judgment in his favor as a matter of law. Rule 74.04(c)(6). A jury should be given an opportunity to consider all the evidence that both sides can present and decide whether or not Officer Sweiger acted in bad faith or with malice when he arrested Mr. Blue.

Harrah's attorney couldn't be reached for comment. Scott Holste, spokesman for the Attorney General's office - the entity representing Sweiger - said they are still reviewing the opinion to determine whether or not they'll ask the Western District for a re- hearing or petition the Missouri Supreme Court.

Miller for his part said he plans to take both of those actions. He doesn't expect the Western District to reconsider, but he feels the Supreme Court might just roll the dice on this one.

I think there's enough there that the court could take it if they wanted to, he said. That is, is a lawyer, under these circumstances, required to have the trial court send it back to the jury to fix it? The risk I had in my mind was, they awarded zero damages and say you're entitled to punitives. They may decide you get nothing, period. There was some risk. It's almost like a bird in the hand is worth two in the bush.