In New Port Richey, Florida, the St. Petersburg Times
- On the last day Eloise Mudway was alive, she still worried about being mistreated and alone. "You're not going to throw me out, are you?" the 94-year-old widow asked her caretaker, Jeff Kores, from her hospice bed. "No, honey," Kores said. "We love you. You're not going anywhere.""Oh, good," she said.
- Mudway died Wednesday (Nov. 30, 2011), broke and still mired in a legal battle with the couple convicted of stealing her home and draining her bank accounts.
- Joseph and Cynthia Clancy were arrested in 2005 on charges of tricking Mudway into signing over the deed to her Hilltop Drive home in New Port Richey. Mudway also told investigators the Clancys, then her live-in caregivers, stole her dead husband's diamond ring, fed her only bologna and pickle loaf sandwiches and made her do laundry for them.
- "I stayed in my room most of the time," Mudway testified at the Clancys' trial in 2009. "I was not allowed to have company. It was like I was in prison."
- Joseph Clancy, now 58, and Cynthia Clancy, 49, were convicted of grand theft of a person 65 or older and were sentenced to 10 years in prison.
- A judge ordered the house be returned to Mudway, but the property is still tied up in a civil lawsuit winding its way through the court system. That prevented Mudway from living in the house or selling it to recoup some of her lost funds.(1) She spent her remaining years with Kores and his family on a $1,200 monthly Social Security check.
- Until her death, she kept asking when they could move back into her old house. "The sad thing is that nothing is resolved," said Kores, who said his own home is in foreclosure because of thousands of dollars spent in legal bills he accumulated fighting for Mudway.
- Even from prison, the Clancys have fought to keep the home they say Mudway willingly signed over to them.
- Kores said he now has to get a probate attorney to represent Mudway's estate in the civil suit over her assets. He feels overwhelmed and sad and frustrated.
- He's trying to gather enough money to get Mudway cremated. She wanted her ashes spread over her mother and stepfather's graves in St. Petersburg. He plans to abide by her wishes. "We were hoping it was over with when they went to prison," Kores said. "No way. ... They won. "She never saw a dime."
For more, see Pasco woman dies, but fight over her home goes on.
(1) One may wonder why the homeowner/victim of this ripoff couldn't recover title and possession of her home shortly after the successful completion of the criminal prosecution of the scammers. After all, if the ripoff of the title to the homeowner's residence was perpetrated as a result of an act that is determined to be a crime, it is at least arguable that any contract or real estate conveyance founded upon such act is absolutely void. The case law, at least in the State of Florida, appears to support this view, as the Florida Supreme Court appears to make pretty clear in one case. See:
- Town of Boca Raton v. Raulerson, 146 So. 576, 577 (Fla. 1933):
"where a statute pronounces a penalty for an act, a contract founded upon such act is void, although the statute does not pronounce it void or expressly prohibit it."
Chen v. Whitney National Bank, 65 So. 3d 1170 (Fla. App. 1st DCA, July 22, 2011) ([alteration added] - not in the original text):
- [T]he Florida Supreme Court has expressed that "where a statute pronounces a penalty for an act, a contract founded upon such act is void, although the statute does not pronounce it void or expressly prohibit it." Town of Boca Raton v. Raulerson, 146 So. 576, 577 (Fla. 1933).
Hooten v. Lake County, 177 So. 2d 696 (Fla. App. 2nd DCA, 1965):
- As we have indicated, the supreme court in the Town of Boca Raton case approved the principle that where a statute pronounces a penalty for an act, a contract founded on such act is void, although the statute does not pronounce it void nor expressly prohibit it.
Jaylene, Inc. v. Steuer, 22 So. 3d 711 (Fla. App. 2nd DCA, 2009) (Northcutt, J. concurring):
- One well-established defense to the enforcement of a contract is that the contract violates public policy. See E. Allan Farnsworth, Unenforceability on Grounds of Public Policy, in Contracts ch. 5 (2d ed. 1990).
This defense is firmly rooted in common law, and because it protects the interests of society at large as well as—and sometimes contrary to—those of the contracting parties, it is an important aspect of the courts' authority. As far back as 1775, Lord Mansfield was expressing the view that an agreement may be void on grounds of public policy, stating: "No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act." Id. § 5.1 at 347 (quoting Holman v. Johnson, 1 Cowp. 341, 343, 98 Eng. Rep. 1120, 1121 (1775)).
An early Florida case recognized this defense to contract enforcement, citing the principle "ex turpi causa non oritur actio" to explain the law's reluctance to enforce contracts in violation of public policy. Town of Boca Raton v. Raulerson, 146 So. 576, 577 (Fla. 1933). Translated, the maxim means "`from an immoral consideration an action does not arise,'" which "expresses the principle that a party does not have a right to enforce performance of an agreement founded on a consideration that is contrary to the public interest." Black's Law Dictionary 607 (7th ed. 1999).