Hardick v. Homol

• Decision Date: 05 October 2001
• Docket Number: No. 5D00-1836.,5D00-1836.
• Citation: 795 So.2d 1107
• Parties: Rudolph L. HARDICK, Appellant, v. David K. HOMOL, et al., Appellee.
• Court: Florida District Court of Appeals

795 So.2d 1107

Rudolph L. HARDICK, Appellant, v. David K. HOMOL, et al., Appellee.

No. 5D00-1836.

District Court of Appeal of Florida, Fifth District.

October 5, 2001.

Jason M. Gordon of Law Offices of Jason M. Gordon, Cocoa Beach, for Appellant.

David G. Larkin of Fallace & Associates, P.A., Melbourne, for Appellee John W. Walden.

Kevin Knight of Drage, Debeaubien, Knight, Simmons, Mantzaris & Neal, Orlando, for Appellee Robert Baugher.

(David K.) Donald Homol, Cocoa Beach, George Panton, Jr., Melbourne Beach, and John Maddelin, Jr., Cape Canaveral, pro se.

PALMER, J.

Rudolph Hardick (Hardick) appeals the final order entered by the trial court dismissing with prejudice his third amended complaint for failing to state a cause of action. The complaint alleged causes of action for maintenance and champerty. Concluding that, in Florida, claims for maintenance and champerty have been supplanted by causes of action for malicious prosecution and abuse of process, frivolous litigation statutes, and rules of professional conduct for attorneys, we affirm the instant dismissal order. Hardick's original complaint alleged that appellees had conspired to have false criminal charges filed against him, maliciously engaged in a conspiracy to initiate a lawsuit for the purpose of harassment, and furthered the conspiracy by initiating lawsuits against his family, friends, and business associates. A motion to dismiss the original complaint was granted. An amended complaint and a second amended complaint were subsequently filed yet both basically repeated the same allegations and were likewise dismissed. Hardick then retained an attorney to represent him, who filed a third amended complaint which contained many of the same allegations as set forth in the previous complaints, but which asserted causes of actions for maintenance and champerty. Appellees moved to dismiss the complaint and the trial court granted the motion with prejudice, concluding that the allegations of the third amended complaint did not state a cognizable cause of action.

The threshold, and as it turns out determinative, question presented in this case is whether the causes of action of maintenance and champerty exist in Florida. We hold that they are not viable causes of action today, but instead, only remain as affirmative defenses.

Under English common law, a party who was injured by a groundless or speculative lawsuit could sue by asserting claims of maintenance and champerty. "Maintenance is defined as an officious intermeddling in a suit which in no way belongs to the intermeddler, by maintaining or assisting either party to the action, with money or otherwise to prosecute or defend it." Kraft v. Mason, 668 So.2d 679, 682 (Fla. 4th DCA 1996)(quoting 9 Fla. Jur.2d. Champerty and Maintenance § 1 (1979)). Champerty, meanwhile, "is a form of maintenance wherein one will carry on a suit in which he has no subjectmatter interest at his own expense or will aid in doing so in consideration of receiving, if successful, some part of the benefits recovered." Id. (quoting 14 C.J.S. Champerty and Maintenance § la (1991)). "Historically, the common-law doctrines of champerty and maintenance arose in England from causes unique to society as it then existed." Id. (quoting 14 Am.Jur.2d. Champerty and Maintenance § 1 (1964)). "The power of influential persons to whom rights of action were transferred in order to obtain their support and favor in suits brought to assert those rights was the cause of the rigid doctrines ... and as civilization and law progressed, the need for these strict rules decreased." Id. (quoting 14 C.J.S. Champerty and Maintenance § 3 (1991) and 14 Am.Jur.2d, supra, § 1).

In considering this issue we begin with the proposition that "the common law of England is in effect in Florida except insofar as it is modified or superceded by statute," Wester v. Rigdon, 110 So.2d 470, 472 (Fla. 1st DCA 1959)(citing section 2.01 of the Florida Statutes),¹ or where the reason for the rule of law ceases to exist, or when change is demanded by public necessity or required to vindicate fundamental rights. See Stone v. Wall, 734 So.2d 1038, 1044 (Fla.1999)

; Hoffman v. Jones, 280 So.2d 431, 435-36 (Fla.1973). Thus, since maintenance and champerty were viable causes of action under the English common law, they must be recognized as viable causes of action in Florida unless they have been supplanted by statute or otherwise.

This issue has not been specifically addressed by the Florida courts. Instead, the few cases that involve dismissal of complaints based on these causes of action have assumed, without deciding, that such causes of action still exist. For example, the Third District, when confronted with an appeal from a trial court's dismissal of an action for maintenance and champerty, affirmed the dismissal stating: "Assuming arguendo, that a civil action lies in Florida for champerty and maintenance, there are no allegations in these pleadings that defendants were to share in the proceeds of any lawsuit." Harry Pepper & Assoc., Inc. v. Lasseter, 247 So.2d 736, 737 (Fla. 3d DCA 1971). A survey of Florida case law reveals that the vast majority of Florida cases discussing champerty and maintenance recognize them only as affirmative defenses. See Savage v. Horne, 49 So.2d 329 (Fla.1951)

(noting that champerty raised as defense to assignment of contract); Nationwide Mut. Ins. Co. v. McNulty, 229 So.2d 585 (Fla.1970)(noting that champerty asserted as defense to assignment of contract); Winthrop & Joseph, Inc. v. Marriott Resort Hospitality Corp., 695 So.2d 789 (Fla. 5th DCA 1997) (applying champerty as a defense to contract action); Cone v. Benjamin, 157 Fla. 800, 27 So.2d 90, 107 (1946)(stating that the laws against champerty and maintenance cannot be used as offensive weapons against defendant).

Other jurisdictions have similarly questioned the existence of champerty and maintenance as viable causes of action for damages. For example, the Second Circuit Court of Appeals held that there were no causes of action for maintenance and champerty under New York law, explaining:

[T]here is no established New York tort encompassing maintenance and champerty. Although such a tort has made rare appearances in the decisional law of some jurisdictions, see, e.g., Schnabel v. Taft Broadcasting Co., 525 S.W.2d 819 (Mo.App.1975)

; Golden Commissary Corp. v. Shipley, 157 A.2d 810 (D.C.Mun.Ct.App.1960), only a lone New York Supreme Court case, Piranesi Imports, Inc. v. Laverne, 36 Misc.2d 1077, 233 N.Y.S.2d 659 (1962), suggests that such a tort might exist at common law in New York. As long ago as 1887, English legal scholar Fredrick Pollock noted that actions for the wrong of maintenance `are in modern times rare though possible.' (citation omitted). And the modern American treatises do not mention the tort at all.

Alexander v. Unification Church of Am., 634 F.2d 673, 678 (2d Cir.1980), abrogation recognized by PSI Metals, Inc. v. Firemen's Ins. Co. of Newark N.J., 839 F.2d 42, 43 (2nd Cir.1988).

The Tenth Circuit Court of Appeals, applying Kansas law, also ruled that there was no cause of action for maintenance or champerty: "It is generally accepted that a cause of action for damages arising out of the common-law doctrine of champerty and maintenance as it was then known, is not now recognized." Security Underground Storage, Inc. v. Anderson, 347 F.2d 964, 969 (10th Cir.1965) (citations omitted). "The decisional law of today dealing with the subject usually involves the validity of contracts asserted to be violations of the doctrine." Id. (citations omitted). Similarly, an Ohio appellate court stated that the torts of champerty and maintenance are not recognized as causes of action under Ohio law in that champerty and maintenance have been supplanted by the tort actions of malicious prosecution and abuse of process, other statutes, and the code of professional responsibility for attorneys. Tosi v. Jones, 115 Ohio App.3d 396, 685 N.E.2d 580, 583 (1996). The Supreme Court of Kentucky has also held: "After a review of the law,...