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Galinski v. Kessler

OPINION FILED JUNE 20, 1985.

ADOLPH W. GALINSKI, D.P.M., PLAINTIFF-APPELLEE AND APPELLANT,

v.

SEYMOUR KESSLER, D.P.M., ET AL., DEFENDANTS-APPELLANTS AND APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.

PRESIDING JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

The plaintiff, Adolph W. Galinski, D.P.M., a licensed podiatrist filed a six-count fifth verified amended complaint against the defendants, Seymour Kessler, D.P.M., John Briggs, Richard Polisner, D.P.M., and Warren Levy, D.P.M., charging the various defendants with barratry, interference with contractual relationships and interference with prospective economic advantage. The defendants filed motions to dismiss and a motion for summary judgment. Motions to dismiss were granted in part and denied in part while the motion for summary judgment was granted. Each party now appeals from the applicable court order.

According to Galinski's complaint, the instant lawsuit arose because in early October 1980, Galinski was retained as an expert witness in an unrelated podiatric malpractice action against Kessler. Galinski alleges that on October 6, 1980, he was contacted by the defendants and was informed that if Galinski testified against Kessler in the action, then in retaliation multiple malpractice suits would be filed against Galinski by Galinski's former patients. On October 14, 1980, during Galinski's deposition in the malpractice suit against Kessler, Kessler's attorney questioned him about the names of Galinski's former patients. Subsequent to this deposition, five malpractice suits were filed against Galinski, with two of the five lawsuits being initiated by former patients named in the above mentioned deposition. Galinski alleges that the defendants contacted these former patients of Galinski's and encouraged them to file lawsuits against Galinski. The defendants' purpose in contacting Galinski's former patients was to retaliate against Galinski for testifying against Kessler and to prevent Galinski from testifying against Kessler in other known or expected lawsuits filed against Kessler.

Count I of Galinski's complaint charges Kessler with barratry and seeks damages of $1,000,000. Barratry presently exists in Illinois as a petty offense, and the pertinent question is whether it also exists as a common law action for damages.

At common law, barratry, maintenance and champerty were all three offenses aimed at the prevention of multitudinous and useless lawsuits and at the speculation in lawsuits. (See generally 14 Am.Jur.2d Champerty & Maintenance sec. 1 et seq. (1964); Milk Dealers Bottle Exchange v. Schaffer (1922), 224 Ill. App. 411.) Barratry was defined as the offense of frequently exciting or stirring up suits and quarrels between others. (See 14 Am.Jur.2d Champerty & Maintenance sec. 19 (1964).) Maintenance involved 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. (See 14 C.J.S. Champerty & Maintenance sec. 1 (1939).) Champerty was a species of maintenance. It was defined as a bargain with a plaintiff or defendant for a portion of the matter involved in which the champetor undertook to maintain or carry on at his own expense. See 14 Am.Jur.2d Champerty & Maintenance sec. 3 (1964).

Historically, all three offenses were considered malum in se and were viewed as being offenses committed against the public welfare. (See generally 14 C.J.S. Champerty & Maintenance sec. 3 (1939).) Specifically, barratry was a criminal offense at common law and it has since been made a criminal offense by statutes of many, if not all, the states in the United States. (See Annot., 139 A.L.R. 620 (1942); see also note, Maintenance by Champerty, 24 Cal. l. Rev. 48, 67 (1935).) In Illinois, barratry was codified as early as 1827 and in its present form, the statute classifies barratry as a petty offense. (Ill. Rev. Stat. 1983, ch. 13, par. 21.) As a petty offense, the court may sentence an offender to: (A) a period of conditional discharge; (B) a fine; and (C) make restitution to the victim. Ill. Rev. Stat. 1983, ch. 38, par. 1005-5-3(c)(4).

• 1 Although barratry has existed as some sort of a criminal offense both at common law and as codified, there is only scant evidence that it may also exist as a common law cause for damages. The authority in Illinois for the proposition that barratry exists as a common law action for damages is in the case of Berlin v. Nathan (1978), 64 Ill. App.3d 940, 381 N.E.2d 1367, cert. denied (1979), 444 U.S. 828, 62 L.Ed.2d 36, 100 S.Ct. 53, where the court makes the statement that, "[a]fter all, it is clear that at common law an action in tort could be brought against one guilty of maintenance, [citations] and we see no reason why the same rules should not apply to common barratry." (64 Ill. App.3d 940, 955.) The statement in that case was dictum. The authority for that statement is Fletcher v. Ellis (Territory of Ark. 1836), 9 F.Cas. 266 (No. 4863a), and Goodyear Dental Vulcanite Co. v. White (C.C.S.D.N.Y. 1879), 10 F.Cas. 752 (No. 5602). We find the authority cited in Nathan to be unpersuasive and is of course not binding upon this court. With regard to barratry, all the cases and all the legal encyclopedia characterize barratry only as a criminal offense punishable by fine. (See Annot., 139 A.L.R. 620 (1942); 14 Am.Jur.2d Champerty & Maintenance sec. 1 et seq. (1964); 14 C.J.S. Champerty & Maintenance sec. 3 (1939).) Furthermore, there has been no citation to any case that has awarded damages for barratry. Therefore, given the criminal characterization of barratry and absent any persuasive authority to the contrary, we believe that barratry does not exist in Illinois as a civil cause of action for damages.

Galinski appears to suggest that a cause of action for damages should be implied because the petty offense of barratry accords insufficient relief to him. We believe that any cause of action for barratry for damages would have to be implied from the barratry statute. (See Ill. Rev. Stat. 1983, ch. 13, par. 21.) To imply a cause of action, it is clear that it is not necessary to show a specific legislative intent. If there is no indication that the remedies available are only those the legislature expressed in the Act then where it is consistent with the underlying purpose of the Act and necessary to achieve the aim of the legislation, a private right of action can be implied. (Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 384 N.E.2d 353; Sherman v. Field Clinic (1979), 74 Ill. App.3d 21, 392 N.E.2d 154.) The court looks to the totality of circumstances in endeavoring to discover legislative intent. Hoover v. May Department Stores Co. (1979), 77 Ill.2d 93, 395 N.E.2d 541.

In the instant case, the policy behind the barratry statute is to prevent the multitude of lawsuits and the intimidation and strife generated by such actions by punishing individuals who engage in barratrous conduct. The statute is clear that barratrous conduct is to be treated as a criminal offense. As it was noted before, barratry has always been and still is characterized as criminal in nature.

Although the courts have demonstrated a willingness to imply private causes of action where there exists a clear need to effectuate the purpose of an act (see Sawyer Realty Group, Inc. v. Jarvis Corp. (1982), 89 Ill.2d 379, 432 N.E.2d 849), the judiciary by implying causes of action is assuming policy-making authority, a power more properly exercised by the legislature. The court should exercise such authority with due caution. (See Cannon v. University of Chicago (1979), 441 U.S. 677, 60 L.Ed.2d 560, 99 S.Ct. 1946 (Powell, J., dissenting); Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 384 N.E.2d 353 (Underwood, J., dissenting).) In the case at bar, there is absolutely no indication that the legislature ever intended to allow a cause of action for damages for barratry. Further, we are unable to discern, after over 150 years of not having a cause of action for damages, how the exercise of the court's authority to imply a private cause of action for damages for barratry will clearly effectuate the purpose of the barratry statute.

Accordingly, Illinois has no common law action for barratry seeking damages nor will one be implied. The denial of Kessler's motion to dismiss count I is reversed.

• 2 In a related matter, defendants Kessler, Briggs and Polisner appeal from the denial of their motion to dismiss count II conspiracy to commit barratry. They contend that absent a finding by this court that common law barratry still exists, then count II is not actionable and must be dismissed.

The law is well settled that the bare allegation of the existence of the conspiracy does not of itself constitute an actionable wrong upon which liability for damages may be found. The conspiracy to commit an act is not actionable at law unless the underlying act itself constitutes wrongful or tortious conduct. (Bertash Market Co. v. Brown (1966), 70 Ill. App.2d 8, 217 N.E.2d 362.) Since we have just determined that no action for common law barratry exists in Illinois, Galinski's count II alleging a conspiracy to commit barratry is not actionable, the denial of the motion to dismiss count II is reversed.

• 3 Count V charges defendants, Kessler, Briggs and Polisner, with tortious interference with prospective economic advantage. Count VI charges Kessler and Briggs with conspiracy to tortiously interfere with prospective economic advantage. The trial court dismissed both counts V and VI. Galinski argues that these counts should not have been dismissed since they allege facts sufficient to satisfy the elements of tortious interference with prospective economic advantage. Specifically, Galinski argues that a cause of action for the above tort will ...


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