delivered the opinion of the court:
In these two consolidated appeals, defendants Margaret and Leonard McDannel seek reversal of orders finding them in contempt of court and entering sanctions of default and attorney fees against them. The sanctions were imposed as a result of defendants’ refusal to comply with court orders compelling discovery. The court ordered Margaret to pay plaintiffs $40,195 in compensatory damages, $60,000 in punitive damages, and required her to forfeit four years and three months’ salary she received from two of the three corporate plaintiffs. The court, however, dismissed the claim against Leonard, finding there was insufficient evidence of damages as to him. Plaintiffs cross-appeal the dismissal. For the following reasons, we affirm in part, and reverse and remand in part.
The three corporate plaintiffs are businesses owned and operated by Gene R. Farina (Farina), the individual plaintiff in this case. Plaintiff 10-Dix Building Corporation (10-Dix) owns and manages an office building in Chicago Heights; plaintiff Farina Insurance Agency Corp. (Farina Insurance) is an insurance agency; and plaintiff Summerwood Enterprises, Inc. (Summerwood), is a hotel in Lake Placid, New York.
As of May 1983, defendants Margaret and Leonard McDannel had been married for approximately 15 years. From 1975 through March 1980, Margaret was employed by 10-Dix and Farina Insurance as bookkeeper and general office administrator for the three corporate plaintiffs. Leonard, although a school teacher by profession, was employed by 10-Dix as a janitor and “handyman” during that same period.
On December 2, 1980, plaintiffs filed a 42-paragraph complaint in chancery alleging that defendants embezzled from plaintiffs in excess of $100,000 during the course of their employment. Plaintiffs alleged that defendants, acting in conspiracy, misappropriated funds by using Margaret’s check cashing authority and “position of trust” to fraudulently pay the defendants’ household and other personal bills, to acquire three pieces of real estate and to build up a cash fund. The complaint contained two counts, the first in equity and the second at law. Count I prayed for an accounting, disgorgement, injunctive relief, compensatory and punitive damages and attorney fees and costs. Count II sought compensatory and punitive damages and legal fees and costs. Later that month, plaintiffs filed their first request for the production of documents.
Both defendants initially filed motions to strike the complaint which were denied by the court. Thereafter, on August 14, 1981, defendants filed answers to the complaint, which were signed by their attorney. Margaret’s answer admitted the jurisdictional allegations and employment relationship, totally denied the allegations in 22 paragraphs and answered another three paragraphs by asserting insufficient knowledge. The answer admitted the allegations in one paragraph that defendants’ daughter, Jill McDannel, received funds in excess of what she was entitled to. Finally, Margaret stated in response to the allegations in the remaining paragraphs that any alleged overpayments were acquiesced in by Gene Farina. For example, paragraph 27 alleged:
“On at least 11 occasions, Margaret McDannel drew checks on the bank account of Farina Insurance to the order of ‘cash,’ or to the order of another payee, delivering these checks to such payees in exchange for cash which she retained for her personal use and the use of Leonard McDannel.”
Margaret answered as follows:
“The defendant admits that she drew some checks made to the order of cash on the account of Farina Insurance, but denies that she retained any money that was not due her, and any money that she did retain was so retained with the full knowledge of and at the direction of Gene R Farina.”
On September 4, 1981, two of the plaintiffs’ attorneys met with defendants’ attorney pursuant to a suggestion by the court that the parties attempt to settle this matter. At that meeting, one of the plaintiffs’ attorneys, Robert Cafferelli, made what defense counsel understood to be a threat of criminal prosecution if the matter was not settled to the satisfaction of plaintiffs. Defendants’ attorney then gave notice that, as a result of the statements made by Cafferelli at the conference, Margaret would avail herself of the right to assert the fifth amendment privilege against self-incrimination. On September 15, 1981, plaintiffs deposed Margaret. At her deposition, after stating her name and address, Margaret invoked the fifth amendment privilege as to all subsequent questions.
The following month, Leonard’s deposition was taken during which he was questioned extensively as to his finances. He produced documents at the time of his deposition and in November 1981. He refused, however, to produce documents over which Margaret had possession and control.
On November 20, 1981, plaintiffs filed a motion to compel discovery. Plaintiffs claimed that Margaret waived any fifth amendment privilege by answering the complaint and that her assertion of the privilege was overly broad. Attached to plaintiffs’ motion was the affidavit of attorney Cafferelli, in which he admitted demanding from Margaret at the September conference full disclosure of the “amounts she had taken from the plaintiffs” and the disclosure as to how she would pay the money. Cafferelli further acknowledged that when defendants’ attorney refused to accede to this demand he responded, “[W]ith an attitude like that, Margaret McDannel was headed right to jail.” Cafferelli admitted he made reference to the State’s Attorney and indicated that, in determining whether to prosecute, the State’s Attorney might consider whether or not restitution was made. Finally, the affidavit indicates that one year prior to the September 4, 1981, conference, an assistant State’s Attorney had interviewed Margaret in the presence of the affiant, Gene Farina, and Margaret’s former attorney. No mention is made in the affidavit as to what transpired at the interview or its purpose.
On February 28, 1983, the court granted plaintiffs’ motion to compel, ruling that Margaret had waived her testimonial privilege to the extent she had made substantive statements of fact in her answer, and ordered her to answer deposition questions with respect to these substantive statements. The court also ordered Margaret and Leonard to produce the documents requested. The court ruled that Margaret could not assert a privilege with respect to the documents.
On March 7, 1983, Margaret was indicted. Defendants requested reconsideration of the court’s ruling on the motion to compel in light of the indictment. On April 6, 1983, the court reaffirmed its prior ruling and ordered Margaret to answer deposition questions concerning the facts underlying her answer to the complaint.
On May 3, 1983, Margaret appeared for her second deposition and again asserted the fifth amendment privilege. She additionally refused to produce any documents, claiming the fifth amendment. Leonard also did not produce more documents.
On May 5, 1983, plaintiffs filed a motion for sanctions for defendants’ failure to comply with discovery orders. The court thereafter issued a rule to show cause against Margaret and Leonard for their failure to comply with the discovery ordered by the court. On May 18, 1983, after hearing arguments but no testimony, the court found Margaret in contempt and ordered Leonard to appear for a hearing on the question of whether he had control over the documents sought, and reserved ruling on the question of sanctions. On May 20, 1983, following a hearing on the control issue, the court entered an order finding Leonard in contempt, striking the answers of both defendants and entering a judgment of default on count I as to Margaret and Leonard. On May 25, 1983, the court entered another order requiring defendants to pay plaintiffs $7,644 for attorney fees and costs they incurred as a result of defendants’ failure to comply with discovery. Defendants appealed the court’s orders under docket No. 83 — 1314.
On June 23, 1983, the court began a prove-up on the default judgments. Defendants attempted to show at the prove-up that Margaret was in fact authorized by Farina to sign the checks in question as part of an irregular scheme of compensation Farina instituted for tax purposes. Following the prove-up, the court ordered Margaret to pay plaintiffs $40,195 in compensatory and $60,000 in punitive damages, and ordered her to forfeit her salary for four years and three months. The court, however, dismissed count I as to Leonard for insufficient proof of damages. The court stated that its judgment was final and appealable as to count I and transferred the cause for reassignment to the law division for further proceedings as to count II. Margaret filed an appeal from the entire judgment, and plaintiffs cross-appealed the court’s ruling in favor of Leonard under docket No. 84 — 775.
I
We first review the propriety of the trial court’s order holding Margaret in contempt for failure to comply with court orders requiring her to answer deposition questions and produce documents. The court held that Margaret, by answering plaintiffs’ complaint, waived her right to assert the fifth amendment privilege against self-incrimination in response to discovery. Without citing authority, the court found that once a factual statement is made, whether or not incriminating on its face, the fifth amendment privilege is waived with respect to questions as to facts underlying the statement.
Margaret contends, and we agree, that the court erred in finding a waiver. It is well established that the provisions of the fifth amendment must be liberally construed toward protection of the rights which the amendment was intended to secure, and every reasonable presumption against waiver of such rights must be indulged. (Johnson v. Zerbst (1938),
As early as 1924, the Supreme Court held that the fifth amendment privilege is not waived by the filing of nonincriminating pleadings in a civil action. (Arndstein v. McCarthy (1920),
Following Arndstein, cases have held that the fifth amendment privilege is not waived by the filing of a complaint followed by an answer to a counterclaim (Backos v. United States (E.D. Mich. 1979),
“If *** the allegations constituting claimant’s affirmative defense do not amount to an admission of guilt or furnish clear proof of crime, claimant’s constitutional privilege to refuse to answer interrogatories must be sustained if responsive answers might tend to incriminate him.” (Emphasis added.)26 F.R.D. 4 , 8.
Applying Arndstein to the present case, the record does not support a finding that Margaret waived her fifth amendment rights by answering the complaint. To find a waiver, it was incumbent upon the trial court to determine that the responses in the answer amounted to an “admission of guilt or furnish clear proof of crime.” The court in this case never made such a finding. On the contrary, the court specifically stated that the responses in the answer were not incriminating. In the absence of a determination that her answer met the standard set forth in Arndstein, Margaret cannot be presumed to have waived her fifth amendment privilege. To so hold would violate the established tenet that every reasonable presumption against waiver of the privilege must be indulged. Johnson v. Zerbst (1938),
Plaintiffs, in support of their position that an answer to a civil complaint waives the privilege against self-incrimination, cite National Acceptance Co. v. Bathalter (7th Cir. 1983),
Plaintiffs alternatively contend that even if Margaret did not waive the fifth amendment privilege, the trial court should be affirmed because her exercise of the privilege was overly broad. This argument is also unpersuasive. Plaintiffs, in support of this contention, rely on People v. Mileris (1981),
In the present case, the court held no hearing to ascertain the reasonableness of Margaret’s assertion of the fifth amendment privilege. The court in fact never ruled on the validity of her claim of privilege, but only on the waiver question.
Plaintiffs’ argument above is further undermined by our holding in Galante v. Steel City National Bank (1978),
“As counterdefendants, the plaintiffs here clearly retained their Fifth Amendment privilege against self-incrimination at the depositions. The trial court, however, did not conduct a review of each question in order to determine whether the answer could possibly have tended to incriminate plaintiffs. We believe plaintiffs, in their capacity as counterdefendants, were entitled to such a question by question determination in order to adequately protect their rights under the Fifth Amendment.” (66 Ill. App. 3d 476 , 483.)
We reversed the default judgment entered against the counterdefendants in Galante and remanded the cause for further proceedings.
In the present case, the court failed to conduct a particularized review of the deposition questions, even though the record reflects that counsel for defendants specifically requested such a review. Nor did the court conduct any type of review with regard to the documents that were sought. Instead, in its order granting plaintiffs’ motion to compel, the court merely indicated that the fifth amendment privilege did not protect any of the documents requested under Fisher v. United States (1976),
We note that Margaret was not deprived of the protection of the fifth amendment by virtue of the fact that no indictment had yet issued when she initially claimed the privilege. A party who reasonably apprehends a risk of self-incrimination may claim the privilege even though no criminal charges are pending against him (Savannah Surety Associates, Inc. v. Master (1978),
Plaintiffs cite the proposition that “the mere fact that criminal proceedings are pending does not excuse a witness from testifying in a civil proceeding unless there is a nexus between the information sought and the risk of criminal conviction.” (Martin-Trigona v. Gouletas (7th Cir. 1980),
The supplemental motion requested the court stay proceedings until the resolution of the pending criminal litigation. Faced with similar circumstances, other courts have routinely stayed discovery in a civil case pending resolution of a closely related criminal action against the party invoking the privilege. (Dienstag v. Bronsen (S.D.N.Y. 1970),
Given these principles, and our findings above with regard to both the waiver issue and the court’s failure to properly review the validity of Margaret’s assertion of the fifth amendment privilege, we must reverse the orders entering sanctions against Margaret pursuant to Rule 219(c). The cause as to her is remanded to the circuit court for further proceedings.
II
We next review the trial court’s rulings as to Leonard Mc-Dannel. The court held Leonard in contempt of court for his failure to comply with its orders directing him to produce documents. Pursuant to Supreme Court Rule 219(c) (58 Ill. 2d R. 219(c)), the court struck his answer, entered an order of default against him and ordered him to pay plaintiffs $7,644 in attorney fees and costs. Following the prove-up, however, the court held that the claims against Leonard must be dismissed because there was insufficient evidence as to damages.
We believe that the trial court correctly determined that plaintiffs proved no damages as to Leonard, even if he is found in default. We have considered plaintiffs’ contentions as to this issue and find them without merit. Plaintiffs first argue that the trial court erred as a matter of law in finding that Leonard was not a fiduciary. Citing H. Vincent Allen & Associates v. Weis (1978),
Moreover, although Farina testified as to allegedly unauthorized charges made by Leonard at Ace Hardware, no documentation in support of his testimony was received in evidence. Also, his testimony was contradicted by Leonard’s testimony that although he made some personal charges at Ace Hardware, the plaintiffs had been reimbursed. The trial court apparently believed Leonard. It is the province of the trial judge, as the trier of fact, to resolve the credibility of witnesses and the weight to be given their testimony, and the reviewing court will not substitute its judgment thereon unless the opposite conclusion is clearly evident. (Gibson v. State Farm Mutual Automobile Insurance Co. (1984),
Finally, contrary to plaintiffs’ assertion, the evidence in the record fails to provide a sufficient basis to support their allegations that Leonard had knowledge he was receiving the benefits of any of plaintiffs’ unauthorized funds. Without facts to support them, the conclusions in the complaint will not support a judgment even if Leonard is found in default. We have held that a court has the discretion to require proof of the allegations upon which a default is based before awarding damages. (Colonial Penn Insurance Co. v. Tachibana (1977),
We further find that the court erred in ordering Leonard to pay in excess of $7,000 in attorney fees and costs pursuant to Supreme Court Rule 219(c) (58 Ill. 2d R. 219(c)). Under that rule, the trial court may assess attorney fees and costs incurred by reason of the opposing party’s misconduct in refusing to comply with the rules of discovery. The assessment is discretionary and will not be interfered with unless the trial court’s discretion has been abused. Van Hyning v. Hyk (1979),
In the present case, the record reveals that Leonard made a good faith attempt to cooperate with plaintiffs’ discovery requests. At his deposition on October 12, 1982, he produced some of the documents requested and testified extensively as to various loans and property he and his wife owned and his source of income as a junior high school teacher. The following month he produced additional documents concerning six loans, his credit union account from the school district where he was employed, paycheck statements from the school district and pleadings in three lawsuits by and against Leonard and his wife. Additionally, plaintiffs subpoenaed from independent sources most of the documents not produced by Leonard such as utility bills and various charge account records. Leonard maintained at the contempt hearing that he did not produce the remaining documents because prior to and at the time of the hearing they were under the control and possession of Michael Nash, Margaret’s attorney in the criminal proceeding. An affidavit and other documentation to this effect were submitted by Leonard’s attorney. It is held that the present lack of possession or control of documents is a defense to a charge of contempt. (United States v. Rylander (1983),
For the foregoing reasons, the judgment of the circuit court is affirmed in part, and reversed and remanded in part.
Affirmed in part; reversed and remanded in part.
CAMPBELL and O’CONNOR, JJ., concur.
Notes
The court in Fisher held that a fifth amendment interest arises in documentary disclosure where “[t]he act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced.”
At oral argument before this court, counsel for Margaret informed the court that Margaret had been convicted of three misdemeanors in the criminal proceeding.