DeLisi v. Bankers Ins. Co., 82-1946

• Decision Date: 07 September 1983
• Docket Number: No. 82-1946,82-1946
• Citation: 436 So.2d 1099
• Parties: Theodore J. DeLISI, Sr., et al., Petitioners, v. BANKERS INSURANCE COMPANY, a Florida corporation, Respondent.
• Court: Florida District Court of Appeals

Page 1099

436 So.2d 1099

Theodore J. DeLISI, Sr., et al., Petitioners, v. BANKERS INSURANCE COMPANY, a Florida corporation, Respondent.

No. 82-1946.

District Court of Appeal of Florida Fourth District.

Sept. 7, 1983.

A.J. Barranco, Jr., and Steven Cripps of Barranco & Kellough, P.A., Miami, for petitioners.

Steven L. Selph of Harris, Barrett & Dew, St. Petersburg, for respondent.

HURLEY, Judge.

The petitioner invoked his Fifth Amendment privilege against self-incrimination during a civil discovery deposition. Thereafter, the trial court entered an order imposing sanctions. Now, by petition for writ of certiorari, we are asked to review the propriety of the trial court's decision. Upon consideration of the record, we conclude that the trial court departed from the essential requirements of law by failing to employ the correct test to determine whether the petitioner was justified in invoking the Fifth Amendment privilege. Accordingly, we issue the writ, quash the order imposing sanctions and remand the cause for further proceedings consistent with this opinion.

A sketch of the factual background will aid in understanding the present posture of the case. Multiple defendants, including the petitioner's son, were charged with various criminal violations in the Circuit Court for the Tenth Judicial Circuit. Respondent, Bankers Insurance Company ("Bankers"), insured appearance bonds which were posted on behalf of the defendants. To secure the bonds, the petitioner DeLisi, on his own behalf, and as "attorney in fact" for some of the defendants seeking to post bond, granted a mortgage deed, subsequently augmented by mortgage modification agreement, to Bankers as collateral for the bond. Subsequently, the criminal defendants forfeited their bonds by failing to appear. As a result, Bankers filed suit in the Circuit Court for the Seventeenth Judicial Circuit to foreclose upon the mortgage securing the bonds. Mr. DeLisi filed an answer and asserted two affirmative defenses: (1), that he was not legally authorized to mortgage the properties on behalf of the four defendants, and, (2), that various previously recorded quitclaim deeds by petitioner to "DeLisi Property Management" and to Mr. DeLisi and his brother, as tenants in common, were for valuable consideration and, therefore, placed the mortgage grants outside the chain of title.

As the foreclosure suit progressed, Bankers sought to depose Mr. DeLisi regarding his personal and corporate finances, his ownership interests in the mortgaged properties, and the present location of the defendants who had failed to appear in the criminal action. Mr. DeLisi invoked his Fifth Amendment privilege in response to all deposition questions, save for his name, address, age, date of birth, and the fact that he had seen Bankers' complaint. Accordingly, Bankers filed two motions to compel.

In the ensuing hearings, the trial court basically reasoned that it could not compel Mr. DeLisi to answer the questions to which he had asserted the privilege, but that it could sanction Mr. DeLisi's failure to answer by striking his pleadings and entering a default against him. In taking this action, the court did not attempt to determine whether there was a realistic possibility that the requested answers could be used to convict Mr. DeLisi of a crime. Rather, the court seemed to travel on its own understanding of the "sword and shield" theory. After concluding that the deposition questions were within the proper scope of civil discovery, it ruled that Mr. DeLisi's pleadings should be stricken and a default entered due to his failure to answer the deposition questions.

Initially, we note that 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 pertinent to the litigation." City of St. Petersburg v. Houghton, 362 So.2d 681, 685 (Fla. 2d DCA 1978). In language approved by the Houghton decision, one court has gone so far as to note that "[p]lain justice dictates the view that regardless of plaintiffs' intention, plaintiffs must be deemed to have waived their assumed privilege by bringing this action ...." Independent Productions Corp. v. Loew's Inc., 22 F.R.D. 266, 276 (S.D.N.Y.1958). In the case at bar, petitioner's assertion of affirmative defenses does not constitute a voluntary application for affirmative relief so as to permit utilization of the "sword and shield" doctrine. Thus, the trial court erred in resolving the case on this basis.

The test which should have been applied was restated recently in two cases: DeLisi v. Smith, 423 So.2d 934 (Fla. 2d DCA 1982) and Pillsbury Co. v. Conboy, 459 U.S. 248, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983). DeLisi, interestingly enough, involved the same parties who are now before this court. The principal issue there was whether a RICO forfeiture action ¹ was essentially civil (remedial) or...