DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

WALLISVILLE CORPORATION, INC., a Florida Corporation,

Appellant,

v.

CHRIS McGUINNESS, DODIE’S REEF, INC., a Texas Corporation,

Appellees.

No. 4D13-4112

[January 7, 2015]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Joseph Marx, Judge; L.T. Case No. 502013CA007962.

David A. Yarema of David A. 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. We reverse, because there are insufficient 

allegations in the complaint for the court to dismiss this claim based upon 

the statute.

Appellant filed a complaint against appellees Chris McGuinness and 

Dodie’s Reef, Inc. for civil theft, conspiracy to commit civil theft, 

conversion, fraud, and unjust enrichment. The complaint alleged that in 

January 2013, appellant gambled on a website called hustler365.com, 

which was owned or operated by appellees and believed to be hosted on 

an off-shore website. “Prior to placing the wagers,” the complaint alleged, 

appellant “gave [appellees] a $10,000.00 deposit.” Appellant “won 

approximately $55,400.00 from the above-described wagers.” Appellees 

later paid appellant $32,000 via two wire transfers, but had not paid 

appellant its remaining winnings or returned the deposit.
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The complaint attached banking records showing the two payments 

appellees did make to appellant. 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. Thereafter, 

with leave of court, appellant filed an amended complaint. The amended 

complaint dropped the conspiracy count, as well as the fraud count, 

leaving only claims for civil theft, conversion, and unjust enrichment. The 

amended complaint was based only on the $10,000 deposit, rather than 

the gambling winnings, and sought $30,000 in treble damages under the 

civil theft statute. 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). After a full 

hearing, the trial court granted the motion and dismissed the complaint, 

refusing to change its ruling after an extensive motion for rehearing.

An order dismissing a complaint for failure to state a cause of action is 

reviewed de novo. Stubbs v. Plantation Gen. Hosp. Ltd. P’ship, 988 So. 2d 

683, 684 (Fla. 4th DCA 2008). In considering a motion to dismiss, the trial 

court “may not properly go beyond the four corners of the complaint in 

testing the legal sufficiency of the allegations set forth therein.” Id. 

(quoting Hewett-Kier Constr., Inc. v. Lemuel Ramos & Assocs., Inc., 775 So. 

2d 373, 375 (Fla. 4th DCA 2000)). The party moving for dismissal must

“admit[] all well pleaded facts as true, as well as reasonable inferences that 

may arise from those facts.” Id. (quoting Palumbo v. Moore, 777 So. 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 valuable thing 

won or lost, laid, staked, betted or wagered in any gambling 

transaction whatsoever, regardless of its name or nature, 
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whether heretofore prohibited or not, or [b.] 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, [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. Stat. (2013) (numbering added). This statute bars 

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

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 “that 

on cashing the check he had no knowledge of the purpose for which the 

defendant intended to use it. The defendant’s testimony was to the 

contrary . . . .” Id. The Third District concluded,

 Thus there was a conflict in the testimony as to the nature of 

the payment which was made on the check and as to whether 

the party cashing the check had knowledge of a purpose to use 

or apply the proceeds in gambling. While it is hard to believe 

that such a transaction conducted in a gambling casino in a Las 

Vegas hotel could be disassociated from gambling so as to escape

invalidity under the statute, it was for the trial judge, acting 

without a jury, to resolve the conflicts, weigh the evidence and 

draw the reasonable inferences therefrom, and the judgment for 

the plaintiff [casino] was not against the manifest weight of the 

evidence.

Id. at 619-20 (emphasis added). Cf. Hilton of San Juan, Inc. v. Lateano, 

305 A.2d 538, 539-40 (Conn. Cir. Ct. 1972) (on summary judgment, 
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finding similar Connecticut statute barred casino’s attempt to collect loan 

paid to defendant in casino chips; rejecting casino’s argument that loan 

was not covered by statute because defendant could have used chips to 

pay for things in the casino’s hotel other than gambling).

Young stands for the proposition that for a transaction to be 

unenforceable under the statute, there must be some knowledge that the 

proceeds were intended to be used for gambling. In this case, however, 

the record is insufficient for us to determine, as a matter of law, that a 

claim seeking the return of the deposit is a transaction void under the 

statute. It seems likely that the purpose of the deposit was to cover losses 

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. Stat. 

(2013). However, on a motion to dismiss, all reasonable inferences must 

be drawn in favor of the plaintiff. See Stubbs, 988 So. 2d at 684. 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. See Young, 122 So. 2d at 619. Affirmative 

defenses “cannot ordinarily be raised by motion to dismiss” unless “the 

face of the complaint is sufficient to demonstrate the existence of the 

defense.” Ramos v. Mast, 789 So. 2d 1226, 1227 (Fla. 4th DCA 2001); see 

also Fla. R. Civ. P. 1.110(d) (“Affirmative defenses appearing on the face of 

a prior pleading may be asserted as grounds for a motion or defense under 

rule 1.140(b)[.]”). Here, given the complaint’s minimal factual allegations 

regarding the deposit, the trial court did not have enough information to 

decide the merits of appellees’ affirmative defense. See Ramos, 789 So. 2d 

at 1227 (“[A]ppellant’s complaint did not set forth sufficient allegations 

regarding the bar proceedings to enable the trial judge to address the 

merits of the collateral estoppel defense asserted in appellees’ motion to 

dismiss.”); Ingalsbe v. Stewart Agency, Inc., 869 So. 2d 30, 34 (Fla. 4th 

DCA 2004) (finding affirmative defense did not appear on the face of the 

complaint, noting, “[t]he complaint is permissibly sketchy”); see also Grove 

Isle Ass’n v. Grove Isle Assocs., LLLP, 137 So. 3d 1081, 1089 (Fla. 3d DCA 

2014) (“Because affirmative defenses may be avoided by facts pled in a 

reply, the allegations of the complaint must also conclusively negate the 

plaintiff’s ability to allege facts in avoidance of the defense by way of reply 

or dismissal is inappropriate.”). Thus, it was error for the trial court to 

dismiss the complaint based on appellees’ affirmative defense, because the 

complaint did not contain sufficient allegations regarding the purpose of 
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the deposit to determine whether appellant’s claim was barred by the 

statute.

We therefore reverse the dismissal of the complaint and remand with 

directions to reinstate the complaint and for further proceedings thereon.

TAYLOR and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.