Brancaccio v. Mediplex Management of Port St. Lucie, Inc.

• Decision Date: 30 April 1998
• Docket Number: No. 97-1013,97-1013
• Citation: 711 So.2d 1206
• Parties: Victor BRANCACCIO, Appellant, v. MEDIPLEX MANAGEMENT OF PORT ST. LUCIE, INC., a Florida corporation as general partner for Savannas Hospital Limited Partnership, a Florida limited partnership, d/b/a Savannas Hospital, Donald Berghman, M.D., Donald Berghman, M.D., P.A., Hermin I. Levin, Ph.D., and Hermin I. Levin, Ph.D., P.A., Appellees.
• Court: Florida District Court of Appeals

Page 1206

711 So.2d 1206

Victor BRANCACCIO, Appellant, v. MEDIPLEX MANAGEMENT OF PORT ST. LUCIE, INC., a Florida corporation as general partner for Savannas Hospital Limited Partnership, a Florida limited partnership, d/b/a Savannas Hospital, Donald Berghman, M.D., Donald Berghman, M.D., P.A., Hermin I. Levin, Ph.D., and Hermin I. Levin, Ph.D., P.A., Appellees.

No. 97-1013.

District Court of Appeal of Florida,

Fourth District.

April 30, 1998.

Rehearing, Rehearing En Banc,

Clarification and Certification of

Conflict Denied July 8, 1998.

Kenneth J. Sobel of Greenspoon, Marder, Hirschfeld, Rafkin, Ross & Berger, P.A., Fort Lauderdale, for appellant.

Janis Brustares Keyser of Gay, Ramsey & Warren, P.A., West Palm Beach, for appellees Mediplex and Berghman.

Louise H. McMurray of Stephens, Lynn, Klein & McNicholas, P.A., Miami, for appellees Levin.

CORRECTED OPINION

FARMER, Judge.

Victor Brancaccio killed an elderly woman one month after being released from Savannas Hospital, a psychiatric institution. He admitted the killing but contended that it was induced by an involuntary intoxication caused by medicines he was prescribed at the institution. Nevertheless he was convicted of first degree murder. On direct appeal, this court reversed for a new trial because the trial court had refused to give a jury instruction on the primary theory of defense, involuntary intoxication from prescribed medication. Brancaccio v. State, 698 So.2d 597 (Fla. 4th DCA), rev. denied, 705 So.2d 10 (Fla.1997).

Before his retrial on the criminal charges, he filed a civil action against the psychiatric institution and the professionals there involved in his treatment. He alleged that they had negligently evaluated and treated him for his psychiatric condition and that, but for their negligence, he would not have committed the murder. He gave the required notice of intent to initiate litigation ¹ just prior to the expiration of the two-year statute of limitations, but refused to give a presuit statement ² to defendants. Instead, he offered to produce his parents for this purpose. He then filed a motion to abate the civil action, pending a final resolution of the criminal case.

After conducting a hearing, the trial court gave him 60 days to give a presuit statement and a sworn deposition. He then asserted his Fifth Amendment right of silence and indicated that he would give only his name and date of birth. Thereupon the trial court dismissed the civil action, saying:

"The Court finds that dismissal is the proper remedy where the plaintiff has invoked the Fifth Amendment privilege and refuses to answer any questions pertinent to the issues involved in this case. See: Minor v. Minor, 240 So.2d 301 (Fla.1970); City of St. Petersburg v. Houghton, 362 So.2d 681 (Fla. 2d DCA 1978).

"This court further finds that the plaintiff's refusal to comply with the presuit discovery procedures warrants a dismissal of this action. See: Section 766.106(6)(7), Florida Statutes; Bartley v. Ross, 559 So.2d 701 (Fla. 4th DCA 1990)."

The trial court indicated, however, that it personally preferred a different result. Plaintiff appeals. We reverse.

Plaintiff argues that the trial court wrongly interpreted Minor v. Minor, 240 So.2d 301 (Fla.1970), as requiring a dismissal. In Minor the court had followed its earlier decision in Stockham v. Stockham, 168 So.2d 320 (Fla.1964). Both of these cases are based on the notion that where the person claiming the privilege is the party initiating the civil litigation in which the privilege is asserted equity requires a dismissal of the action. In both cases, the party claiming the Fifth Amendment privilege had initiated an action for divorce and then refused to answer discovery questions relating to adultery, a defense in such cases before no-fault divorce was enacted. As the court had explained in Stockham:

"The distinction made in the cases is that the privilege against self-incrimination operates as a protection against one being required to incriminate himself in a criminal or other proceeding which might degrade him, however, in civil litigation where it is manifest the exercise of the privilege would operate to further the action or claim of the party resorting to the privilege against his adversary contrary to equity and good conscience, the party asserting privilege will not be permitted to proceed with his claim or action."

168 So.2d at 322.

Before discussing the supreme court decisions in Stockham and Minor, we pause to survey two lower court decisions that the supreme court obviously considered when it decided Minor. The third district had reached a different result in Simkins v. Simkins, 219 So.2d 724 (Fla. 3d DCA 1969), reasoning that the intervening decisions in Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967), and Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), had called Stockham into question. Moreover, in Minor v. Minor, 232 So.2d 746 (Fla. 2d DCA 1970), the district court had addressed the United States Supreme Court cases, as well as Simkins, and concluded:

"Initially we observe that Garrity isn't strictly on the mark. That was a criminal case in which the defendants were policemen charged with conspiracy to obstruct the administration of the traffic laws of New Jersey. The specific question before the court was the admissibility of certain inculpatory admissions made during a prior investigation of police irregularities in which the defendants were told that pursuant to a New Jersey statute they would be removed from office as police officers if they invoked the Fifth Amendment privilege. True it is, the court observed that the Fifth Amendment could not be so employed as to place one who would invoke it in the position of choosing 'between the rock and the whirlpool,' but the case turned primarily on the involuntary nature of the admissions which were patently elicited at the peril of such a choice; hence such admissions were held to be inadmissible.

"In Spevack, on the other hand, the 'penalty' exacted for invocation of the privilege was more direct. That case involved a disbarment proceeding in which a member of the New York Bar was disbarred for invoking the privilege in response to questions relating to professional misconduct. Condemning such action, the court expressly concluded that the Fifth Amendment privilege 'should not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a price for asserting it.'

"Now concededly, in those cases, the parties invoking the Fifth Amendment were wrongfully penalized for their 'taking the Fifth.' They were forced to choose, as it is said, 'between Scylla and Charybdis.' But there they were involuntarily thrust into such quandary, while here, the invoking party is voluntarily the moving party affirmatively seeking equity. Appellant's choice in this case is not, involuntarily, one between two totally disadvantageous alternatives, as were the choices in Garrity and Spevack, but rather, voluntarily, one between two alternatives one of which can be employed to some advantage. Appellant can gain the affirmative relief she seeks from her choice, and the choice is freely hers; Garrity and Spevack on the other hand couldn't gain in any event, yet they were compelled to choose." [c.o.]

232 So.2d at 747. In reviewing this analysis of the district court, the supreme court said:

"We have carefully reviewed Spevack and Garrity, and other related cases for possible impact upon the precise issue now before the Court. We agree with the analysis of a majority of the district court that subsequent United States Supreme Court decisions do not require alteration of our previously expressed conclusion."

240 So.2d at 302. The court did not elaborate further.

Since the supreme court's decision in Minor, the issue was addressed in City of St. Petersburg v. Houghton, 362 So.2d 681 (Fla. 2d DCA 1978), which is not a divorce case but instead involved a claim for money. The police had seized $316,000 in cash from an auto driven by Houghton. He filed an action in replevin seeking a return of his money. The defendants in that action sought to learn in a deposition the source of the funds, and he invoked the privilege. The court began with Stockham, Simkins and Minor, noting that they were divorce cases, after which it turned to some nondivorce cases from various states. The court concluded that:

"the majority view in this land is that a plaintiff may not seek affirmative relief in a civil action and then invoke the Fifth Amendment to avoid giving discovery in matters pertinent to the litigation."

362 So.2d at 685. The district court instructed the trial court to dismiss the action if plaintiff continued to refuse to answer the questions.

This court confronted the issue from a different perspective in Delisi v. Bankers Insurance Co., 436 So.2d 1099 (Fla. 4th DCA 1983), where a defendant in a civil action asserted the Fifth Amendment privilege to discovery questions. Delisi involved a foreclosure suit brought by a surety on an appearance bond. The defendant had given the surety a mortgage on real property as collateral for the bond. When the criminal defendants failed to appear the bonds were forfeited. The bonding company then sued to foreclose the mortgage, and one of the defendants in the foreclosure action was also potentially a defendant in the criminal case. When that defendant refused to answer deposition questions in the foreclosure suit, the trial judge struck his defenses and entered a default judgment against him on the basis of Stockham/Minor, now called the "sword and shield" doctrine. In reversing the trial judge, we explained:

"the trial court incorrectly applied the 'sword and shield' metaphor. This phrase embraces the rule 'that a plaintiff may not seek affirmative relief in a civil action and then invoke the Fifth Amendment to avoid giving discovery in matters...