Florida/Georgia Personal Injury & Workers Compensation

...The appellant sued Hacker to collect for credit which it had extended to him for gambling at appellant's casino in Nevada. The appellee does not question either personal or subject matter jurisdiction of the Nevada court which entered the judgment. Citing section 849.26, Florida Statutes (1985) which makes void any agreement for the repayment of money advanced for the purpose of betting on gambling (except for any gambling transaction expressly authorized by law), the trial court held that Florida cou...

...$6,000.00 to pay for his losses. Jernigan then stopped payment on the check, and the Hotel brought this action in Florida. The trial judge entered summary final judgment for defendant on the grounds that the debt was uncollectable *831 by virtue of Section 849.26, Florida Statutes, F.S.A....

...ed for the purpose of gambling at a casino in appellee's hotel and that appellee had knowledge of that intent. At a trial without jury judgment was rendered for appellee and it is from that judgment this is taken. The affirmative defense is based on § 849.26, Fla....

...Its legislature has forbidden the keeping of a place for the purposes of gambling, including bookmaking within the State of Florida. See Fla. Stat. §§ 849.01 and 849.03, F.S.A. It has declared that it is the public policy of the State that gambling contracts relating to bookmaking are void, Fla. Stat. § 849.26, F.S.A....

...outweigh the choice of law provisions in the contract between the Plaintiffs and Defendant. Application of Florida law would make the Plaintiffs claims unenforceable. The enforceability of gambling contracts in Florida is governed by Fla. Stat. ch. 849.26. [28] The statute makes gambling contracts, unless expressly authorized by Florida law, "void and of no effect." [29] "In interpreting Section 849.26, Florida courts have consistently held that gambling obligations, even if valid in the state in which they were undertaken, are unenforceable in Florida as contrary to law and public policy." [30] Florida law would make the Plaintiffs...

...4th Dist.Ct. App.1995), quoting Bituminous Casualty Corp. v. Williams, 154 Fla. 191, 17 So.2d 98, 101-02 (1944). [26] See Punzi, supra nt. 18 at 600. [27] Mazzoni Farms, Inc. v. E.I. DuPont Nemours and Company, 761 So.2d 306 (Fla.2000). [28] Fla. Stat. ch. 849.26 (1991) states, All promises, agreements, notes, bills, bonds, or other contracts, mortgages or other securities, when the whole or part of the consideration if for money or other valuable thing won or lost, laid, staked, betted or wagered in a...

...f a gambling transaction for the purpose of being laid, betted, staked or wagered, are void and of no effect; provided, that this act shall not apply to wagering on pari-mutuels or any gambling transaction expressly authorized by law. Fla. Stat. ch. 849.26 (1991)....

...ken, are unenforceable in Florida as contrary to law and public policy. See Dorado Beach Hotel Corp. v. Jernigan, 202 So.2d 830 (Fla. 1st DCA 1967), appeal dismissed, 209 So.2d 669 (Fla. 1968); Young v. Sands, Inc., 122 So.2d 618 (Fla. 3d DCA 1960); § 849.26, Fla....

...He received $35,000 credit from Carnival for purposes of gambling at the casino. Arviv has not repaid the loan. In December, 1991 Carnival brought suit to recover the sums unpaid. Arviv defended on the ground that the credit agreement was an unenforceable gambling debt by virtue of section 849.26, Florida Statutes (1993). Thereafter, Carnival filed suit against another debtor, Phil C. Froug, to collect on a similar Crystal Palace gambling debt. [1] In the Froug case the circuit court ruled that section 849.26, Florida Statutes, did not bar the collection of the gambling debt. See Froug v. Carnival Leisure Indus., Ltd., 627 So.2d 538 (Fla. 3d DCA 1993). The court entered judgment in favor of Carnival, and Froug appealed. Meanwhile, Carnival's suit against Arviv remained pending. Because the interpretation of section 849.26 was the dispositive issue in both cases, the trial court stayed the Arviv case pending a decision of the Froug appeal. In 1993 this court announced its decision in Froug. This court concluded that, notwithstanding Florida's change in public policy with respect to a statewide lottery, section 849.26 continued to bar enforcement of a legally incurred casino gambling debt....

...Under the explicit terms of Rule 1.420(d) and Wilson, the trial court in this case had jurisdiction to entertain the application for attorney's fees by Arviv, the nondismissing party. On the merits, however, we are compelled to reverse the attorney's fee award. Section 849.26, Florida Statutes (1993) provides, insofar as pertinent here, that "[a]ll promises, agreements, ......

...." (Emphasis added). It is this statute which prevents Carnival from collecting the gambling debt from Arviv. Because the statute declares any such agreement "void and of no effect," the statute invalidates the nonseverable provision for attorney's fees. See § 849.26, Fla....

...Race, 135 So.2d 252, 257 (Fla. 2d DCA 1961). The attorney's fee award is therefore reversed. *181 III Arviv has cross-appealed the trial court's denial of attorney's fees under subsection 57.105(1), Florida Statutes (1993). Arviv contends that in view of the existence of section 849.26, Florida Statutes, and earlier case law, it was frivolous for Carnival to have filed this action....

...d of even arguable substance." 410 So.2d at 506. In this case, and in the Froug case, Carnival argued that Florida public policy had changed as a result of the adoption of the statewide lottery. See Froug, 627 So.2d at 539. Carnival pointed out that section 849.26, Florida Statutes, has an exception which provides "that this act shall not apply to wagering on pari-mutuels or any gambling transaction expressly authorized by law." (emphasis added)....

...Carnival Leisure Industries, Ltd., 627 So.2d 538 (Fla. 3d DCA 1993), respectively. In both Froug and Herman, the courts reiterated the well established rule that foreign gambling obligations, although valid where created, are unenforceable in Florida pursuant to section 849.26, Florida Statutes (1993)....

...Following the voluntary dismissal, Holzman moved for an award of attorney's fees pursuant to section 57.105(1), Florida Statutes (1993). Basically, Holzman argued that because foreign gambling debts have consistently been held to violate both the state's public policy and section 849.26, Carnival's complaint failed to present a justiciable issue of law or fact and was therefore frivolous....

...Carnival Leisure Industries, Ltd., 627 So.2d 538 (Fla. 3d DCA 1993), and Carnival *413 Leisure Industries, Ltd. v. Herman, 629 So.2d 882 (Fla. 4th DCA 1993), as well as in the instant case, argued that the public policy of Florida has changed since the time section 849.26 was first passed....

...Jernigan, 202 So.2d 830 (Fla. 1st DCA 1967), appeal dismissed, 209 So.2d 669 (Fla. 1968); Young v. Sands Inc., 122 So.2d 618 (Fla. 3d DCA 1960). Foreign casino gambling obligations, although valid where created, are unenforceable in Florida. We interpret Florida Statute Section 849.26 as exempting transactions expressly authorized by Florida law, not by foreign law....

...l's Crystal Palace Casino in the Bahamas. Froug lost all $50,000 gambling, but failed to repay the loan. Carnival sought to collect the debt by filing suit against Froug in Dade Circuit Court. In defending the suit, Froug relied on Florida Statutes, Section 849.26 (1991), which states: All promises, agreements, notes, bills, bonds or other contracts, mortgages or *539 other securities, when the whole or part of the consideration if for money or other valuable thing won or lost, laid, staked, bet...

...Carnival was allowed to recover the amount of the debt plus interest. Froug now appeals, and this case presents for our consideration, once again, the issue of whether a creditor can recover legally incurred casino gambling debts in Florida courts, or whether such a recovery is barred because of Section 849.26. In interpreting Section 849.26, "Florida courts have consistently held that gambling obligations, even if valid in the state in which they were undertaken, are unenforceable in Florida as contrary to law and public policy." Barquin v. Flores, 459 So.2d 436, 436-37 (Fla. 3d DCA 1984). See § 849.26, Fla....

...50). Consequently, we do not recognize any change in public policy which would lead us to recede from the language contained in Barquin. Additionally, we note that the majority of American jurisdictions follow a protective policy, similar to that of Section 849.26....

...upon any such result, or whoever aids, or assists, or abets in any manner in any of such acts all of which are hereby forbidden, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. . Fla. Stat. § 849.26 states that: All promises, agreements, notes, bills, bonds or other contracts, mortgages or other securities, when the whole or part of the consideration if for money or other valuable thing won or lost, laid, staked, betted or wagered in a...

...In support of their Motion for Summary Judgment, the Defendants contend that Florida has a strong public policy against enforcing gambling debts like the Defendants' and, moreover, the debt is a void and unenforceable gambling debt under Fla.Stat. § 849.26 (2004)....

...1960), which also held that gambling debts are not enforceable by courts of this state based on the public policy of Florida, even though they are valid and enforceable in the state where the debt arose. This strong public policy has been codified in Florida Statute § 849.26, which provides that: All promises, agreements, notes, bills, bonds or other contracts, mortgages or other securities, when the whole or part of the consideration if for money or other valuable thing won or lost, laid, staked, betted or wag...

...violate Florida *925 public policy by resulting in the enforcement of an invalid gambling debt. This Court is further convinced that the debt resulting from the transaction between the Debtor and the Defendant falls within the purview of Fla. Stat. § 849.26 and is therefore unenforceable as a matter of state law....

...There is no question that were this Court a Florida court, or even a court with only diversity jurisdiction over this matter, Florida law would apply and this Court could not enforce this debt. Gambling, with certain exceptions, is against Florida's public policy. Fla. Stat. § 849.26 (2005) unequivocally provides that any type of gambling debt that is not expressly authorized by law is "void and of no effect"....

...tates that the law of Florida would nonetheless apply. See Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So.2d 306 (Fla.2000). The Casino invites this Court to independently determine that, notwithstanding the clear language of Fla. Stat. § 849.26, gambling is no longer against the public policy of Florida....

...telephone or telegraph for bookmaking and forbidding the keeping of a place for the purpose of gambling, including bookmaking. Florida Statutes §§ 849.01, 849.03, F.S.A. Moreover it is the public policy of the state as expressed in Florida Statute 849.26, F.S.A., that gambling contracts are void and of no effect save those expressly authorized by law....

...Yarema, P.A., West Palm Beach, for appellant. No appearance for appellee. WARNER, J. The trial court dismissed appellant’s complaint for damages based on the appellee’s alleged failure to return a deposit made on a gambling website. It determined that section 849.26, Florida Statutes (2013), precluded such a suit....

...It also attached text messages wherein appellee McGuinness allegedly discussed paying appellant the money owed. It did not attach any other documents with respect to the $10,000 deposit. Appellees moved to dismiss the complaint. They argued, among other grounds, that the complaint was barred by section 849.26, Florida Statutes (2013), as an attempt to collect on a gambling debt....

...It alleged the deposit was given to appellee McGuinness “[p]rior to any gambling activity and before placing any wagers . . . .” Appellees moved to dismiss the amended complaint, again arguing that the complaint sought to recover on a gambling debt, which was unenforceable under section 849.26, Florida Statutes (2013)....

...2d 1177, 1178 (Fla. 5th DCA 2001)). “Further, a motion to dismiss cannot be granted based on an affirmative defense unless the defense appears on the face of a pleading.” Pac. Ins. Co., Ltd. v. Botelho, 891 So. 2d 587, 590 (Fla. 3d DCA 2004). Section 849.26, Florida Statutes (2013), provides: [1.] All promises, agreements, notes, bills, bonds or other contracts, mortgages or other securities, [2.] when the whole or part of the consideration if [a.] for money or other valua...

...transaction for the purpose of being laid, betted, staked or wagered, [3.] are void and of no effect; [4.] provided, that this act shall not apply to wagering on pari-mutuels or any gambling transaction expressly authorized by law. § 849.26, Fla....

...state where the gambling was legal. See Carnival Leisure Indus., Ltd. v. Herman, 629 So. 2d 882, 882 (Fla. 4th DCA 1993). Appellant relies on Young v. Sands, Inc., 122 So. 2d 618 (Fla. 3d DCA 1960), which was, according to the opinion, the first time section 849.26 had been construed by a Florida appellate court. There, a casino attempted to collect $1,600 it lent a patron. Id. at 619. The money was paid to the patron via a check made out to cash. Id. As an affirmative defense, the patron invoked section 849.26 and argued that “the check was given for money advanced for the purpose of gambling at a casino . . . and that [the casino] had knowledge of that intent.” Id. Following a bench trial, the trial court entered judgment for the casino. Id. The Third District held, “The clear language of [section 849.26] provides that a check given for the repayment of money lent or advanced at the time of a gambling transaction for the purpose of being wagered is void.” Id. However, the Third District noted that the casino’s manager testified “...

...appellant might subsequently incur while gambling on appellees’ website. If so, recovery of the deposit would likely be barred as “for the repayment of money . . . advanced at the time of a gambling transaction for the purpose of being laid, betted, staked or wagered.” § 849.26, Fla....

...As there are no allegations as to the terms on which the deposit was being held, we cannot conclude that part of the consideration was to repay an advance made by the website at the time of the gambling transaction. Furthermore, appellees’ motion to dismiss based on section 849.26 raised an affirmative defense....

...it on this appeal. 2  Subsequently, Chapur filed the underlying action, asserting only a breach of promissory note claim. Taboada responded by asserting affirmative defenses and counterclaims, including that section 849.26, Florida Statutes, rendered the note void and unenforceable because the note secured repayment of gambling debts incurred from a sports betting website. Chapur moved for summary judgment, arguing that Taboada conceded enforce...

...genuine issue of material fact and that they are entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(a). 3  We agree with Taboada that the undisputed record indicates that the note is void and unenforceable under Florida law. Section 849.26 provides that “[a]ll promises, agreements, notes, bills, bonds or other contracts, mortgages or other securities ....

...d by Taboada and others through a shared account on a sports betting website. Thus, as this note was “for the repayment of money lent or advanced at the time of a gambling transaction for the purpose of being laid, betted, staked or wagered,” § 849.26, Fla....

...Ins. Co., 790 So. 2d 1061, 1066 (Fla. 2001) (emphasis added) (quoting Chase & Co. v. Little, 156 So. 609, 610–11 (Fla. 1934)). Here, the record reveals no such determination of the validity or enforceability of the promissory note under section 849.26, so the “same questions” weren’t involved....

...On the assumption, however, that this conclusion may be disregarded because of the answer to question 4 and that the breach of contract theory is therefore the only cognizable basis for the judgment, it claims that the agreement sued upon was void as a gambling contract rendered unenforceable by section 849.26, Florida Statutes....

...5 See Federal Deposit Insurance . Corp. v. Munn, 804 F.2d 860 (5th Cir.1986). For these reasons, the judgment below is reversed on the cross-appeal. The cause is remanded for a new trial and for further consistent proceedings thereafter. Reversed and remanded with directions. .Section 849.26 states: All promises, agreements, notes, bills, bonds or other contracts, mortgages or other securities, when the whole or part of the consideration if for money or other valuable thing won or lost, laid, staked, betted or wagered in a...