Commercial Litigation and Arbitration

Summary Judgment Granted to Plaintiff on Champerty Claim — Expert Opinion as to Law Barred

From Del Webb Communities, Inc. v. Partington, 2009 U.S. Dist. LEXIS 85616 (D. Nev. Sept. 18, 2009):


Both parties have moved for summary judgment as to Del Webb's claims for maintenance and champerty.

Maintenance and champerty are closely related common law doctrines. Maintenance "is 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." ... Champerty is a species of maintenance "in which the intermeddler makes a bargain with one of the parties to the action to be compensated out of the proceeds of the action." ... The United States Supreme Court has said, "[p]ut simply, maintenance is helping another prosecute a suit; champerty is maintaining a suit in return for a financial interest in the outcome; and barratry is a continuing practice of maintenance or champerty." In re Primus, 436 U.S. 412, 424 n. 15, 98 S.Ct. 1893, 1900 n. 15, 56 L.Ed.2d 417, 429 n. 15 (1978).

The doctrines of champerty and maintenance originated in medieval England. Osprey, Inc. v. Cabana Ltd. Partnership, 340 S.C. 367, 532 S.E.2d 269 (S.C. 2000). In medieval England, feudal lords and other privileged society members would often assist others, usually those of little means, by supporting the unprivileged's legal disputes against a third party, often the wealthy citizen's personal or political enemy.... In return for funding the lawsuit, the party to whom the claim actually belonged promised to give his or her benefactor a stake in the outcome of the lawsuit.... By such practices, the wealthier actually became wealthier. "Champerty was a 'means by which powerful men aggrandized their estates and the background was unquestionably that of private war.'" Id. at 375 (quoting Max Radin, Maintenance by Champerty, 24 Cal.L.Rev. 48, 58-64 (1935)). In response to rampant champerty and maintenance in feudal society, the law came to sternly prohibit these practices....

Some states have outrightly abolished these ancient doctrines. In Saladini v. Righellis, the Massachusetts Supreme Court held that champerty and maintenance would no longer be recognized in the state. 687 N.E.2d 1224, 1226 (Mass. 1997). In Saladini, ... [t]he Court ultimately determined that in the future, the legal analysis would turn on whether the fees charged were excessive or "overreaching," not whether the agreement was void under champerty.... See also, Osprey, Inc., 532 S.E.2d at 279 (abolition by South Carolina Supreme Court, concluding that "[w]e abolish champerty as a defense because we believe it no longer is required to prevent the evils traditionally associated with the doctrine as it developed in medieval times.").

Nevertheless, Nevada still recognizes maintenance and champerty. For purposes of these summary judgment motions, the Court limits its analysis to champerty. Champerty and maintenance are closely related, but there is a crucial distinction between the two: the offense of champerty differs from maintenance in that in the latter, the person assisting the suitor receives no benefit, while in the former, he receives some stake in the lawsuit. Here, Del Webb is basing its claim on the Mojave Defendants' efforts to promote the Chapter 40 complaints against Del Webb with the agreement that the Mojave Defendants would be reimbursed from the recovery. Therefore, although Del Webb characterizes its claim as one for champerty and maintenance, the claim is more appropriately limited to champerty. ***

There are three basic elements of a champerty claim. First, the party involved must be one who has no legitimate interest in the suit. Second, the party must expend its own money in prosecuting the suit. Third, the party must be entitled by the bargain to share in the proceeds of the suit. In this case, the Mojave Defendants had no interest in any lawsuit or similar proceeding between Del Webb and its homeowners. Del Webb already provided its homeowners protection for certain defects in their homes, which the homeowners needed to seek from Del Webb under the 2001 Del Webb Home Protection Plan. The Mojave Defendants expended their own money in instigating the complaints against Del Webb. The Mojave Defendants expended their time, money, and resources to provide the home inspections and related reports that were necessary to file the complaints. The Mojave Defendants did not charge the homeowners up front, but they ultimately required them to pay the Mojave Defendants from the proceeds that the homeowners got from Del Webb. Under the agreements that the Mojave Defendants had the homeowners sign, the Mojave Defendants were entitled to be reimbursed for the home inspections they performed or to the assignment of the homeowners' right against Del Webb so that the Mojave Defendants could collect their fees directly from Del Webb. The situation in this case is particularly problematic because the Mojave Defendants did not just offer a free home inspection, but they informed homeowners of how they could file complaints against Del Webb under Nevada law, the role of the home inspection in filing such complaints, and how they should go about hiring a law firm to assist with filing the complaint. As a result, the Mojave Defendants are liable for champerty in this case.

[Expert Opinion on Matters of Law Inadmissible]

As an evidentiary matter, Del Webb has properly opposed the admission of or this Court's consideration on summary judgment of the expert declaration by California attorney, Robert Kehr. Mr. Kehr has provided a declaration on his opinion of the doctrine of champerty. ***

Mr. Kehr's opinions simply define the common law doctrines of champerty and maintenance, summarize the treatment of these doctrines by the courts of this country, and conclude that the Court cannot recognize any affirmative cause of action under these doctrines. One type of expert testimony courts are consistently reluctant to admit is an expert's opinions of law. See, e.g., Mendenhall v. Cedarapids, Inc., 5 F.3d 1557, 1574 (Fed. Cir. 1993); Burkhart v. Washington Metro. Area Transit Auth., 112 F.3d 1207, 1213 (D.C. Cir. 1997) ("an expert may offer his opinion as to facts that, if found, would support a conclusion that the legal standard at issue was satisfied, but he may not testify as to whether the legal standard has been satisfied"); United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994). As the D.C. Circuit once aptly noted, "[e]ach courtroom comes equipped with a 'legal expert,' called a judge." Burkhart, 112 F.3d at 1213. Rule of Evidence 704 ("Rule 704") allows expert testimony on an ultimate issue, but that does not mean an expert may advise the court on purely legal issues. Mr. Kehr's opinions are purely on legal issues. As a result, the Court holds that Mr. Kehr's opinions are inadmissible under Rule 702 and cannot be considered by this Court on summary judgment.

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