Third District Court of Appeal

State of Florida 

Opinion filed August 14, 2024.

Not final until disposition of timely filed motion for rehearing.

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No. 3D23-2234

Lower Tribunal No. 18-32780

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Kirk Taboada,

Appellant,

vs.

Rodrigo Chapur Duarte,

Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Carlos 

Guzman, Judge.

Dinsmore & Shohl LLP, and Kathryn L. Ender and Audriana A. 

Rodriguez, for appellant.

TA PLLC, and Alexander A. Salinas and Brady L. Taylor, for appellee.

Before SCALES, MILLER and BOKOR, JJ. 

BOKOR, J.
2

Kirk Taboada, the defendant below, appeals a grant of summary 

judgment in favor of Rodrigo Chapur Duarte (Chapur), the plaintiff, in an 

action for breach of a promissory note. The uncontested facts reveal that, in 

a prior action between the parties, Taboada sought and received a judgment 

for fees and costs under a prevailing party provision of the promissory note. 

The trial court concluded that because Taboada received a benefit under the 

contract, the principle of judicial estoppel barred him from asserting in this 

action that Florida law renders the note void and unenforceable. For the 

reasons explained below, judicial estoppel doesn’t apply, and Florida law 

renders the note void and unenforceable.

FACTS

Chapur brought the initial action against Taboada in March 2018, 

asserting claims for breach of promissory note and civil theft. Chapur later 

voluntarily dismissed the 2018 action without prejudice. Taboada sought, 

and the trial court granted, prevailing party attorney’s fees and costs under 

the promissory note resulting from Chapur’s dismissal of the 2018 action

without prejudice.1

1 This fee judgment was never appealed, and accordingly, we do not disturb 

it on this appeal.
3

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 enforceability of the note by seeking costs and fees based on the 

dismissal from the 2018 action, estopping Taboada from now asserting 

unenforceability of the note. The trial court agreed and granted judgment in 

Chapur’s favor, finding that Taboada did not deny breaching the note and 

that judicial estoppel bars Taboada from raising the defense of 

unenforceability. This appeal followed.

ANALYSIS

We review de novo a trial court’s order granting a motion for summary 

judgment. See, e.g., The Fla. Bar v. Greene, 926 So. 2d 1195, 1200 (Fla. 

2006). Similarly, we review de novo the interpretation of a contract or statute. 

See Lazzari v. Guzman, 314 So. 3d 374, 376 (Fla. 3d DCA 2020). Summary 

judgment is appropriate only when the movant shows that there is no 

genuine issue of material fact and that they are entitled to judgment as a 

matter of law. Fla. R. Civ. P. 1.510(a).
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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 . . . 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, are void and of no effect.” “This statute bars 

enforcement of gambling debts even if the debt was incurred in another state 

where the gambling was legal.” Wallisville Corp., Inc. v. McGuinness, 154 

So. 3d 501, 503 (Fla. 4th DCA 2015). “A contract which violates a provision 

of the constitution or a statute is void and illegal, and, will not be enforced in 

our courts.” Harris v. Gonzalez, 789 So. 2d 405, 409 (Fla. 4th DCA 2001); 

see also Atl. Coast Line R. Co. v. Beazley, 45 So. 761, 798 (Fla. 1907) 

(Whitfield, J., concurring) (“When a statute declares that no contract that 

accomplishes a stated purpose shall be legal or binding, any contract that 

indirectly accomplishes such purpose is included within the declaration of the 

statute, and is not legal or binding.”). Any attempt by the parties to ratify an 

illegal contract is also futile. See City of Stuart v. Green, 23 So. 2d 831, 835 

(Fla. 1945).

While the promissory note itself does not indicate the basis for the loan, 

the summary judgment record reflects, and Chapur concedes, that the note 
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concerned repayment of gambling debts incurred 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. Stat., the note was void and unenforceable. 

However, in granting summary judgment for Chapur, the trial court 

accepted Chapur’s argument that Taboada’s seeking of attorneys’ fees 

under the prevailing party fee provision of the promissory note in the 2018 

action constituted a benefit under the contract, invoking judicial estoppel on 

the issue of the enforceability of the contract. But there was never a 

determination of the enforceability of the contract. And the conclusion 

reached below misapplies both the facts of this case and the law on judicial 

estoppel. Per the supreme court:

In order to work an estoppel, the position assumed in the former 

trial must have been successfully maintained. In proceedings 

terminating in a judgment, the positions must be clearly 

inconsistent, the parties must be the same and the same 

questions must be involved. So, the party claiming the 

estoppel must have been misled and have changed his position; 

and an estoppel is not raised by conduct of one party to a suit, 

unless by reason thereof the other party has been so placed as 

to make it to act in reliance upon it unjust to him to allow that first 

party to subsequently change his position. There can be no 

estoppel where both parties are equally in possession of all 

the facts pertaining to the matter relied on as an estoppel; 

where the conduct relied on to create the estoppel was 
6

caused by the act of the party claiming the estoppel, or 

where the positions taken involved solely a question of law.

Blumberg v. USAA Cas. 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. Additionally, the “conduct relied on to create the 

estoppel” was caused by the act of the party claiming estoppel—here, 

Chapur’s initiation and subsequent dismissal of a lawsuit—and “the positions 

taken involved solely a question of law.” Id. Accordingly, the principle of 

judicial estoppel doesn’t apply to the pertinent question of law, namely, 

whether Chapur can enforce a void contract.

2 Because the parties effectively 

concede that the contract is void and unenforceable, and judicial estoppel 

offers no relief, Chapur’s motion for summary judgment must be denied.3

2 Because judicial estoppel doesn’t apply, and the promissory note is void 

and unenforceable, we decline to address Taboada’s other grounds for 

appeal.

3 Although not argued by Taboada, we note that this result comports with 

basic contract law. To prove a breach of contract, a plaintiff must prove that 

(1) a valid contract existed; (2) a material breach; and (3) damages. Deauville 

Hotel Mgmt., LLC v. Ward, 219 So. 3d 949, 953 (Fla. 3d DCA 2017). Where, 

as here, the contract is void and unenforceable under Florida law, a plaintiff 

can’t meet element one—the existence of a valid contract. That alone would 

have precluded summary judgment in favor of the plaintiff on a breach claim, 
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Reversed and remanded for further proceedings consistent with this 

opinion.

regardless of estoppel. Additionally, because it is neither briefed by the 

parties nor necessary to decide the issue, we simply question whether 

estoppel, an equitable principle, could be invoked to allow enforcement of a 

statutorily void and unenforceable contract.