Gabriel v. Columbia Nat. Bank of Chicago as T/U/T 2292

• Citation: 592 N.E.2d 556,228 Ill.App.3d 240,170 Ill.Dec. 120
• Decision Date: 10 April 1992
• Docket Number: No. 1-91-0282,1-91-0282
• Parties: , 170 Ill.Dec. 120 Dolores GABRIEL, Plaintiff-Appellee, v. COLUMBIA NATIONAL BANK OF CHICAGO AS T/U/T 2292 and Melanie Payonk, Defendants-Appellants. First District, Fifth Division
• Court: United States Appellate Court of Illinois

Page 556

592 N.E.2d 556

228 Ill.App.3d 240, 170 Ill.Dec. 120

Dolores GABRIEL, Plaintiff-Appellee, v. COLUMBIA NATIONAL BANK OF CHICAGO AS T/U/T 2292 and Melanie

Payonk, Defendants-Appellants.

No. 1-91-0282.

Appellate Court of Illinois,

First District, Fifth Division.

April 10, 1992.

Katherine A. Williams, Chicago, for defendants-appellants.

Frank & Levin, Chicago, for plaintiff-appellee.

Presiding Justice MCNULTY delivered the opinion of the court.

Plaintiff Dolores Gabriel (Gabriel) brought an action against her sister, defendant Melanie Payonk (Payonk), alleging fraud and seeking to reform a land trust. The land trustee, Columbia National Bank of Chicago, is not a party for the purposes of this appeal. The dispute arose from a land trust document assigning Gabriel's joint tenancy interest to her mother, Deana Jendricka (Jendricka) and Payonk as joint tenants.

Following are the pertinent facts. Jendricka died on October 19, 1989, survived by two daughters, Payonk and Gabriel. At the time of her death, Jendricka was living in a two-flat building located in Chicago, Illinois, with her daughter Payonk. This building is the subject of litigation initiated by Gabriel in the chancery division of the circuit court of Cook County.

The real estate was originally held in joint tenancy by Jendricka and her late husband, George. When George died, his interest passed to Jendricka as his surviving spouse. According to Gabriel and Payonk, Jendricka deeded the property to them and they deeded the property into the land trust. However, this deed was never recorded, registered or found. Before Jendricka's death, an assignment of Gabriel's share of the beneficial interest back to Payonk and Jendricka in joint tenancy was executed. Thus, upon Jendricka's death, the entire interest passed to Payonk, excluding Gabriel.

Gabriel's verified complaint alleged that the assignment from Gabriel back to Jendricka and Payonk was forged by Payonk. In response to the verified complaint, Payonk filed a verified answer and in response to the two paragraphs alleging that Payonk caused or participated in the forgery, Payonk invoked her privilege against self-incrimination as guaranteed by the fifth amendment of the Constitution of the United States and by article I, section 10 of the Illinois Constitution. Ill. Const.1970, art. I, § 10.

Gabriel then moved for judgment on the pleadings maintaining that the invocation of the privilege was equivalent to no answer and was the same as admitting the allegations. This motion was briefed and argued, the trial court granted judgment on the pleadings, and further found that its order was final and appealable pursuant to Supreme Court Rule 304(a). 107 Ill.2d R. 304(a).

The single issue presented on appeal is whether a defendant's invocation of the privilege against self-incrimination by verified answer in a civil case in response to a plaintiff's verified complaint alleging defendant's forgery, is equivalent to an admission of those allegations thereby entitling plaintiff to judgment on the pleadings.

This precise issue has not been addressed by courts of review in this State. However, Federal and State courts of review in other jurisdictions have addressed this issue and Federal and State courts of review in Illinois have considered issues closely related to the one now before this court. For the reasons that follow, we reverse and remand.

The privilege against self-incrimination is available in civil matters as well as criminal matters. (Lefkowitz v. Cunningham (1977), 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1; McCarthy v. Arndstein (1924), 266 U.S. 34, 45 S.Ct. 16, 69 L.Ed. 158.) The privilege has been held to extend to a civil defendant, even if no criminal action is pending and the risk of criminal prosecution is remote. 10-Dix Building Corp. v. McDannel (1985), 134 Ill.App.3d 664, 89 Ill.Dec. 469, 480 N.E.2d 1212, citing In re Master Key Litigation (9th Cir.1974), 507 F.2d 292; see also In re Mid-Atlantic Toyota Center Trust Litigation (D.Md.1981), 92 FRD 358.

The United States Supreme Court has extended the protection of the testimonial privilege to discovery. (United States v. Kordel (1970), 397 U.S. 1, 90 S.Ct. 763, 25 L.Ed.2d 1.) A Federal court of appeal has reached a similar conclusion in In re Folding Carton Antitrust Litigation (7th Cir.1979), 609 F.2d 867, and another has extended it to the pleading stage of a case as well. In re Sterling-Harris Ford, Inc. (1963), 315 F.2d 277, cert. denied 375 U.S. 814, 84 S.Ct. 46, 11 L.Ed.2d 50.

One of the first cases in which a State court of review extended the protection of the privilege against self-incrimination to an answer in a chancery case was People v. Danziger, et al. (1927), 238 Mich. 39, 213 N.W. 448. Since this case was decided before the United States Supreme Court had made the fifth amendment privilege against self-incrimination applicable to State court proceedings through the due process clause of the fourteenth amendment, the court applied the protection available through the Michigan Constitution.

Danziger was charged with a bill under a Michigan statute to abate a nuisance caused by the fact that certain premises he owned were being used for the purposes of lewdness, assignation and prostitution. The defendant filed a motion to dismiss on the ground that the statute was unconstitutional for various reasons. One of the reasons set forth was that the bill accused the defendant of the commission of a crime, and sought to subject him to a penalty and forfeiture. Therefore, he contended that the statutory requirement compelling him to answer allegations admitting the commission of a crime or suffer a default on the pleadings rendered the act unconstitutional and void.

The trial court agreed with defendant's position and dismissed the bill. The Michigan Supreme Court, reversing on other grounds, reviewed the writings of legal scholars, Pomeroy and Story, which enunciated the principle that a defendant in a discovery suit is never compelled to disclose facts which would tend to incriminate him or expose him to criminal punishment or prosecution. From that principle the court cited with approval the observation of a text writer that "the constitutional inhibition is directed not merely to the giving of oral testimony, but embraces as well the furnishing of evidence by other means than by word of mouth; the divulging, in short, of any fact which the accused has a right to keep secret. * * * As defendant in a penal action cannot be required to furnish evidence against himself, he cannot be required to file an answer specifically denying all the allegations of the petition." Danziger, 238 Mich. 39, 43, 213 N.W. 448, 449.

The court in its opinion cited numerous English and American cases supporting this conclusion, among them Robson v. Doyle (1901), 191 Ill. 566, 61 N.E. 435. In Robson, an action at law had been brought to recover a penalty under the Illinois Criminal Code prohibiting gambling in puts and calls on wheat. Plaintiff filed a bill for discovery to compel defendant to disclose his dealings in puts and calls with others. The suit was not for recovery of anything plaintiff had lost, but was a prosecution in a special action on the case for penalties for violation of the criminal law. The court held that equity will not aid actions penal in nature by compelling a defendant to disclose facts which would expose him to criminal punishment or prosecution, or to disclose any fact that might form a link in the chain of evidence establishing his liability to punishment, penalty or forfeiture. (See also Hayes v. Caldwell (1848), 10 Ill. 33, 36, where the supreme court answered defendant's argument that the effect of dismissing the writ of error will be to compel him to make discovery as to all allegations of the bill, although he may, by so doing, subject himself to prosecution for a criminal offense: "No such result can follow. He can insist upon his rights in this respect, as well as on his answer by demurrer. He can answer the allegations that have no such tendency, and as to those, the response to which may tend to incriminate him, he may claim his privilege and decline to answer; and the court, if satisfied that he cannot safely make the discovery, will certainly protect him in refusing to do so.")

The court in Danziger cited Robson as a case "in line with the many other holdings that a defendant may not be required by his answer to state facts which will tend to incriminate himself * * *." Danziger, 238 Mich. 39, 46, 213 N.W. 448, 450. See annotation 52 ALR 143.

Danziger also disapproved of a comment by the Alabama Supreme Court in Ridge v. State (1921), 206 Ala. 349, 89 So. 742, that the invocation of the privilege against self-incrimination in a defendant's answer to a complaint, because it was not a denial of the allegation, would normally result in a default judgment. The court stated: "This we do not approve. The assertion of a constitutional right should not deprive a party of his day in court." (Danziger, 238 Mich. 39, 50, 213 N.W. 448, 452.) In accord are Sunley v. Badler (1942), 33 N.Y.S.2d 642, and Manners v. Sohnen (1954), 206 Misc. 845, 134 N.Y.S.2d 162, in which the New York Supreme Court held that a verified pleading is testimony within the scope of the privilege against self-incrimination and excusing a defendant from filing a verified answer to a verified complaint where the party pleading would be privileged from testifying as a witness concerning an allegation or denial in a pleading. (See also Galante v. The Steel City National Bank of Chicago (1978), 66 Ill.App.3d 476, 23 Ill.Dec. 421, 384 N.E.2d 57, where counter-defendants refused to answer questions at their depositions invoking the fifth amendment privilege against self-incrimination, the trial court erred in ordering a default judgment against them because they were entitled to a question-by-question determination as to whether...