In the District Court of Appeal of the State of Florida

In the District Court of Appeal of the State of Florida
FIFTH DISTRICT JULY TERM 2001
RUDOLPH L. HARDICK,
Appellant,
v. Case No. 5D00-1836
DAVID K. HOMOL, ET AL.,
Appellee.

Opinion filed October 5, 2001
Appeal from the Circuit Court
for Brevard County,
Charles M. Holcomb, Judge.
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,
Two
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 subject-matter
1Section 2.01 of the Florida Statutes (2000) states: “The common and statute
laws of England
which are of a general and not a local nature, with the exception hereinafter
mentioned, down to the 4th
day of July, 1776, are declared to be of force in this state; provided, the said
statutes and common law be
not inconsistent with the Constitution and laws of the United States and the
acts of the Legislature of this
state.”
Three
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 § 1a
(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
Four
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, 27 So. 2d 90, 107 (Fla. 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, 233 N.Y.S.2d 659
(Sup.Ct.
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
Five
Metals, Inc. v. Firemen’s Ins. Co. of Newark N.J., 839 F.2d 42, 43 (2nd Cir.
1998).
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, 685 N.E.2d 580, 583 (Ohio Ct. App. 3d 1996). The Supreme Court of
Kentucky has also held:
“After a review of the law, it appears that a collateral action by a stranger to
a champertous contract is not
now recognized.” McCullar v. Credit Bureau Systems, Inc., 832 S.W.2d 886, 887
(Ky. 1992)(explaining
that modern remedies for damages are to be pursued through such tort actions as
malicious prosecution,
abuse of process, or wrongful initiation of litigation)(citations omitted). But
see Weigel Broadcasting Co.
v. Howard Topel, No. 83-C-7921 (N.D. Ill. 1985)(holding that, under Illinois
law, a cause of action for
maintenance exists but explaining that it is so rare in modern times that the
law on the subject is neither
settled nor clear). The basis of these rulings finding no causes of action is
exemplified by the Tenth
Circuit’s conclusion that the conduct which was formerly the subject of action
for maintenance and
champerty; namely, groundless and speculative lawsuits, is now more commonly
redressed by means of
actions for abuse of process and wrongful initiation of litigation, or malicious
prosecution. Anderson, 347
2The elements of malicious prosecution are (1) a legal proceeding commenced or
continued against
the plaintiff, (2) the defendant caused or commenced the proceeding, (3) the
proceeding had a bona fide
termination in plaintiff’s favor, (4) there was no probable cause for commencing
the proceeding, (5) the
defendant acted with malice, and (6) the plaintiff suffered damage. Union Oil of
California, AMSCO Div.
v. Watson, 468 So. 2d 349 (Fla. 3d DCA 1985). A cause of action for abuse of
process requires proof
that: (1) the defendant made an illegal, improper, or perverted use of process;
(2) the defendant had an
ulterior motive or purpose in exercising the illegal, improper or perverted
process; and (3) the plaintiff was
injured as a result of defendant’s action. Thomson McKinnon Securities, Inc. v.
Light, 534 So. 2d 757,
760 (Fla. 3d DCA 1988)(citing Della-Donna v. Nova Univ., Inc., 512 So. 2d 1051
(Fla. 4th DCA 1987)).
Six
F.2d at 969. “It has been specifically held that the doctrine of champerty
remains viable only as a defense
in contract actions, [and] that damages resulting from a champertous agreement
can be recovered only by
means of an action under one of the aforementioned theories of recovery.” 14 Am.
Jur. Champerty,
Maintenance, and Barratry § 4 (2000)(citing McCullar v. Credit Bureau Systems,
Inc., 832 S.W.2d 886
(Ky. 1992)). We concur with this reasoning and adopt it as our own.
In reaching this conclusion we are persuaded that maintenance and champerty have
been
supplanted by the causes of action of malicious prosecution and abuse of process
coupled with other
remedies.2 For instance, the Florida Legislature has passed an assortment of
statutes that effectively
combat speculation in groundless lawsuits and the filing of frivolous suits that
were the evils intended to be
curtailed by allowing causes of action for champerty and maintenance.
Particularly, section 57.105 of the
Florida Statutes (1997), as amended in 1999, provides the authority for courts
to sanction litigants and
attorneys for filing frivolous lawsuits, and Chapter 766, Florida’s medical
malpractice statute, incorporates
a pre-suit screening process that is designed to combat the filing of frivolous
lawsuits.§§ 766.201-212, Fla.
Stat. (2001). Also, rule 4-3.1 of the Florida Rules of Professional Conduct
prohibits attorneys from
bringing or defending a proceeding, unless there is a basis for doing so that is
not frivolous.
Concluding that the causes of action 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.
AFFIRMED.
THOMPSON, C.J., and HARRIS, J., concur.
 

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