City of St. Petersburg v. Houghton

Decision Date11 August 1978
Docket NumberNos. 78-574,78-748,s. 78-574
Citation362 So.2d 681
PartiesCITY OF ST. PETERSBURG, Florida, a Municipal Corporation, Harold Mullendore, as Custodian of Evidence for the Grand Jury of Pinellas County, and Harold Mullendore, as Clerk of Court in and for the Sixth Judicial Circuit, Petitioners, v. W. R. HOUGHTON, Respondent. W. R. HOUGHTON, Petitioner, v. CITY OF ST. PETERSBURG, Florida, a Municipal Corporation, Harold Mullendore, as Custodian of Evidence for the Grand Jury of Pinellas County, and Harold Mullendore, as Clerk of Court in and for the Sixth Judicial Circuit, Respondents.
CourtFlorida District Court of Appeals

Michael S. Davis, Chief Asst. City Atty. and Richard Luce, Asst. City Atty., St. Petersburg, Philip W. Dann, St. Petersburg, for W. R. Houghton.

W. Gray Dunlap, County Atty., James A. Helinger, Jr., Chief Asst. County Atty., and Gerald A. Figurski, Asst. County Atty., Clearwater, for Harold Mullendore, as Clerk of Court in and for the Sixth Judicial Circuit.

James T. Russell, State's Atty., D. Lee Fugate and Myron J. Mensch, Asst. State Attys., Clearwater, for Harold Mullendore, as Custodian of Evidence for the Grand Jury of Pinellas County.

RYDER, Judge.

W. R. Houghton, the plaintiff below, filed a civil action against the City of St. Petersburg (City), Harold Mullendore (Mullendore), as Custodian of Evidence for the Grand Jury of Pinellas County, and also as Clerk of Circuit Court in and for the Sixth Judicial Circuit. 1

The third amended complaint has three counts. Count I, an action in replevin, alleges, Inter alia, that $316,380.00 were seized from the custody and control of Houghton by certain law enforcement officers subsequent to a stop of his vehicle and arrest of Houghton on the charge of conspiracy to deliver thirty pounds of hashish. Sometime after his arrest, a "no information" was filed in regards to the charge against Houghton but the Pinellas County Grand Jury recommended forfeiture of the currency seized from Houghton. In August of 1977, the county court of Pinellas County dismissed the forfeiture proceedings on the ground that the seized currency was not subject to forfeiture under the laws of the State of Florida.

Count I further alleges that defendant Mullendore, as Custodian of Evidence for the Grand Jury, presently has custody of a certificate of deposit for the currency which was deposited in a bank; that all of the defendants have refused demand for the return of the currency; and that plaintiff Houghton is entitled to possession of the currency, the source of his right to possession of the money being his exclusive possession of same prior to its allegedly unlawful removal from his possession.

Count II realleges most of Count I and seeks declaratory relief alleging that Houghton has a possessory interest in the currency superior to all defendants who assert adverse interest thereto. However, Count II does not indicate how this possessory interest was obtained.

Count III realleges most of the previous two counts and avers that the officers of the City and the Sheriff deprived him of his constitutional rights in illegally seizing the money and seeks damages. The record is unclear as to whether or not Mullendore is a defendant in this particular count. Also, it should be noted that there has been no determination that the money was, in fact, illegally seized.

On December 19, 1977 Houghton was deposed by defendants. Houghton refused to answer thirty-eight questions on the ground of his Fifth Amendment privilege against self-incrimination. 2

The City and Mullendore then filed motions to compel Houghton to answer these questions and to abate the cause for a reasonable time therefor; and, alternatively to dismiss the cause in the event Houghton did not respond within a given time period.

Upon hearing on the aforesaid motions, the court entered a four-part amended order on March 27, 1978 which (1) abated Count I (replevin) for sixty days from February 21, 1978 for the plaintiff to submit himself to further discovery; (2) if plaintiff did not submit to discovery or respond satisfactorily within the sixty-day period, Count I shall stand dismissed, without prejudice; (3) defendants' motions for sanctions were denied as to Count II (declaratory relief) and as to Count III (damages) and, further the defendants were directed to respond thereto; and (4) denied the City's motion to compel and abate in all other respects.

Thereafter, the City answered Counts II and III, denying liability. Mullendore filed motions to dismiss and for a more definite statement. Houghton moved for summary judgment against the City on Count II, but has not submitted to further discovery.

Houghton filed a petition for writ of certiorari (Case 78-748) seeking reversal of paragraphs (1) and (2) of the aforementioned order. The City and Mullendore, in turn, filed petitions for writ of certiorari (Case 78-574) seeking reversal of paragraphs (3) and (4) of the above order. This court consolidated the cases.

The plaintiff claims a right to invoke his Fifth Amendment privilege in the course of discovery in this case, and to refuse to answer questions on deposition. His right to do so is the subject of an A.L.R. Annotation "Dismissing Action or Striking Testimony Where Party to Civil Action Asserts Privilege Against Self-Incrimination as to Pertinent Question," 4 A.L.R.3d 545 Et seq.

Houghton urges upon this court the idea that the trial court deviated from the essential requirements of law as to permit this discovery which will cause Houghton material injury for which appeal will be inadequate, citing to us our own case of Leithauser v. Harrison, 168 So.2d 95 (Fla. 2d DCA 1964). Houghton further argues the proposition that a state may not impose substantial economic sanctions on a non-immunized individual because he elects not to waive his Fifth Amendment privilege. Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1974); U. S. ex rel. Sanney v. Montanye, 500 F.2d 411 (2d Cir. 1974), Cert. denied, 419 U.S. 1027, 95 S.Ct. 506, 42 L.Ed.2d 302, and Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977).

Although the three federal cases cited above by Houghton relate to one's right to invoke the Fifth Amendment, they are distinguishable from the matter Sub judice. Lefkowitz v. Turley, supra, involves architects who were Summoned to testify before a New York State Grand Jury investigating various charges of conspiracy, bribery and larceny. This summons was issued pursuant to a New York statute which required public contractors, such as these architects, to testify before a grand jury relative to existing state contracts and if they refused to do so, they would suffer cancellation of their contracts and lose the right to bid on further state jobs. The architects refused to sign waivers of immunity, invoked the Fifth Amendment and, thereafter, challenged the New York State Statute. In U. S. ex rel. Sanney v. Montanye, supra, Sanney was a suspect in a murder and was later charged with manslaughter. In Lefkowitz v. Cunningham, supra, Cunningham, a public official, was subpoenaed before a grand jury for testimony concerning the conduct of his office. This is similar to the first Lefkowitz case cited by the plaintiff herein and the Supreme Court of the United States also ruled similarly. In each of these cases, the appellants were either suspect of murder or of other criminal wrongdoing and in both Lefkowitz cases the appellants who invoked the Fifth Amendment were subpoenaed before a grand jury and appeared involuntarily.

In the case at hand, we see that Houghton is the plaintiff and is not involuntarily involved in litigation but, rather, initiated the suit himself.

Recently, this court has dealt with a Defendant's right to invoke the privilege against self-incrimination in a civil action. See Roberts v. Jardine, 358 So.2d 588 (Fla. 2d DCA 1978). However, here we are confronted with the question of the Plaintiff's right to invoke the Fifth Amendment privilege in a civil action.

Our attention, thus, is immediately drawn to a series of Florida cases beginning with Stockham v. Stockham, 168 So.2d 320 (Fla.1964) wherein the Supreme Court of Florida affirmed a decision of this court holding that the wife/plaintiff who refused to respond to defendant's request for admissions must answer, and that upon her failure to do so (on claiming protection against self-incrimination) her suit for divorce would be dismissed. The Florida Supreme Court held that neither the provisions of Section 12 of the Declaration of Rights of the Florida Constitution nor the Fifth Amendment of the Federal Constitution, for protection against self-incrimination were available to the plaintiff in said suit, and if insisted upon, would result in dismissal of that party's suit.

Five years later, in another divorce case, Simkins v. Simkins, 219 So.2d 724 (Fla. 3d DCA 1969), plaintiff/husband refused to answer questions in a discovery deposition regarding the charge of adultery which the wife had leveled against him, invoking his constitutional privilege against self-incrimination. An interlocutory appeal was taken, but our sister court, the Third District Court of Appeal, declined to follow the Stockham case.

Thereafter, this court in Minor v. Minor, 232 So.2d 746 (Fla. 2d DCA 1970) again addressed the problem when in a pre-trial deposition of plaintiff/wife she invoked her Fifth Amendment privilege against self-incrimination in response to questions relating to defendant's charges of her adultery. Speaking for the court in a well reasoned opinion, then Judge McNulty observed that Simkins had departed from Stockham on the basis of the Supreme Court of the United States decisions in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) and Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967). After review of both...

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14 cases
  • Griffith v. Griffith
    • United States
    • South Carolina Court of Appeals
    • October 12, 1998
    ...246 (1984) (plaintiff invoking the privilege against self-incrimination risks having complaint dismissed); City of St. Petersburg v. Houghton, 362 So.2d 681 (Fla.Dist.Ct.App.1978) (petition for affirmative relief properly dismissed where party seeking affirmative relief invokes Fifth Amendm......
  • Zabrani v. Riveron
    • United States
    • Florida District Court of Appeals
    • September 23, 1986
    ...a civil suit, it is usually in those cases where the party is thrust into the litigation as a defendant. See City of St. Petersburg v. Houghton, 362 So.2d 681 (Fla.2d DCA 1978), and cases cited therein. In such situations, the party is forced to choose between two unpleasant alternatives--e......
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    • October 13, 1982
    ...is that a party may not assert the privilege against self-incrimination as both a sword and a shield. City of St. Petersburg v. Houghton, 362 So.2d 681 (Fla. 2d DCA 1978). We fail to see how the language in Baxter and the rationale behind it could extend to a situation in which a witness ot......
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    ...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......
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