First Federal Savings & Loan Ass'n v. Schamanek
684 P.2d 1257
Utah
1984
Check Treatment

*1 FIRST FEDERAL & SAVINGS LOAN LAKE SALT

ASSOCIATION OF

CITY, Respondent, Plaintiff and SCHAMANEK,

Gail Defendant Appellant.

No. 17910.

Supreme Court Utah.

1,May *4 Frank, Murray,

Gary A. for defendant appellant. and Lowe, City, plain- W. Lake for John Salt respondent. tiff and STEWART, Justice: In this the trial court struck the to respond for failure defendant’s answer requests discovery to for and entered a judgment default defendant for $6,122.79plus costs. interest and The de- deposition respond refusal to fendant’s to requests questions, admissions a for and production for of certain docu- demand ments, including returns, income tax was on her based assertion against self-incrimination. We affirm the trial court. requests First

I. Federal submitted for ad- pursuant missions to Rule 36 of the Utah August Schamanek en- On Gail production Rules of Civil and for Procedure presented First tered Federal and cash- pursuant of documents to Rule and also $6,122.79. check ier’s for Pursuant to her sought depose to Schamanek. Schamanek instructions, $6,000 credited to her ac- was respond requests refused to to for ad- count, paid and to her in cash. $122.79 production mission or of documents. She day, At the close of that the First Federal deposition ques- also refused to answer teller was unable to locate the cashier’s tions, ground that the answers help. check and solicited Schamanek's might However, tend to incriminate her. bank, being Upon contacted Schama- transcript of deposition part not a any nek refused to furnish information that appellate record, nothing and there is check, trying be used in to trace the questions the record to what indicate she identity as bank such that issued declined to answer. person purchased the check or the had who First an Federal obtained order to com- it. This suit was on the basis of filed pel discovery. to to Af- submit plaintiff’s information and belief so, ter Schamanek’s continued refusal to do Schamanek, cashing check, after re- pursuant the trial court her struck answer cage trieved the check from teller’s grounds to Utah R.Civ.P. 37 while teller’s attention was diverted. respond questions Schamanek failed to alleged: complaint The amended deposition, respond requests at her admissions, produce documents. check was delivered de- [A]fter *5 Accordingly, the court trial entered a de- fendant to the teller defend- [Schamanek] judgment. fault wrongfully surreptitiously ant and and unknown to the teller retrieved said II. [previously check credited to defendant’s It long has been- settled that the account], it, pro- cashed received the and against privilege may self-incrimination be ceeds therefrom. proceeding invoked in a under civil both the allega- denied the Schamanek’s answer Fifth Amendment of the United States Con response In tions. to inter- Schamanek’s §I, 12 of stitution and Article the Utah rogatories, amplified First Federal the fac- States, Kastigar v. United Constitution. basis of relief: tual its claim for 1653, 32 406 U.S. L.Ed.2d S.Ct. plaintiff’s given The check was to teller. Kordel, v. (1972); United States 397 U.S. obtaining

While the teller (1970); was theater 25 L.Ed.2d Affleck Court, Utah, Third buy, tickets which wanted to v. Judicial District Byington, v. papers left other State she the check and 655 P.2d 665 counter, Utah to which defendant had ac- teller, immediately cess. The after serv- may be asserted in customer, ing the next discovered the discovery proceedings civil to refuse to an teller missing. check was and other interrogatories, e.g., Geld swer Rule 33 plaintiff’s personnel asked defendant of Transport Delay, v. Mo., back Inc. gave vague the check. re- about She posed questions depo S.W.2d 120 in inquiries sponses repeated and after re- sitions, e.g., v. Third District Affleck give plaintiff fused to information in re- Court, supra; Rule 34 and demands for thereto, plaintiff to iden- lation to enable documents, e.g., Dog Giles v. production of check, tify bank, who drew on what Okla., gett, 500 P.2d Because who cashed the check. She is still and pursuant may admissions made Rule 36 refusing, ergo opportunity she only then-pending proceedi had used ng,1 authority the check did so. there is a take back and division as to 36(b) 36(b), identical, part: 1. Utah R.Civ.P. and Fed.R.Civ.P. which are in relevant read Rogers be filed. v. United privilege may properly be in- whether the States, 374-75, terposed requests for against admissions. S.Ct. recognize privi- 442-43, refuse to United States Some courts 95 L.Ed. lege 36(b) prevents ground (2d Cir.1958); that Rule Miranti, F.2d prosecu- of admissions criminal Co., use Krueger Group, Camelot Ltd. W.A. tions.2 (S.D.N.Y.1980). Al- charges pend- need though criminal not be view, In the interests that our Hitchcock, Counselman ing, de privilege against self-incrimination were 547, 562, 12 35 L.Ed. 1110 safeguard adequately signed cannot be (1892), prosecu- of a criminal possibility person protected by compelling a to trade danger,” “real not a “mere tion must be a protection right for the attenuated imaginary possibility.” Rogers v. United 36(b). complete protection Rule Full and States, 374-75, 71 442- S.Ct. at only party afforded if a right can be Third 43. Accord Judicial Dis- an interposing to answer decline Affleck Court, Utah, trict objection requests for As 655 P.2d admissions.3 case, prose- one commentator has stated: of a possibility this criminal exists, against cution Schamanek and that imply that, an state or since Three cases disputed by possibility not First Federal. request can- is answer to [for admission] not as evidence in a criminal be used judge properly trial ruled Whether the incriminating, cannot be the answer (1) this case turns on whether Schamanek request objec- and therefore a cannot be properly invoked the grounds.4 on self-incrimination tionable questions and the documents de- asked privi- This conclusion is erroneous. The (2) manded whether trial court’s lege may be claimed unless the witness striking pleadings Schamanek’s against prosecution future immunized permissible respond. for failure to sanction knowledge based on or information ob- testimony.5 as a result of his tained 36(b)

Rule the Federal Rules of Civil [of III. confer kind of does not this Procedure] circumstances, Except in unusual consequently immunity and would self-incrimination *6 preclude privilege if liti- a claim of the response specif must be in to each invoked gant’s might criminal answer cause question ic or oth propounded document or brought against charges to him. be physical sought, privi er or evidence the Finman, Request for in “The Admissions lege may generally is It be waived. Procedure,” 382, 71 Federal Civil Yale L.J. response dis asserted as a blanket to all (footnotes (1962) original). 384-85 in v. Third District covery. Judicial Affleck Court, supra. United v. See States may privilege be invoked if Moore, 853, (9th Cir.1982); might is F.2d 856 an incriminate and there 682 answer Arndt, 524, 532, that a criminal action Eastham v. Wash.App. possibility some 28 Finman, Any by party generally Request this "The admission made under for Admis- Procedure," purpose pending action Rule is for the in sions 371, Federal Civil 71 Yale LJ. any only by not an admission him for (1962). and is 382-86 purpose other nor it be used him any proceeding. [Emphasis added.] other Robb, 539, (5th Citing 4. 171 F.2d Woods v. 541 Cir.1948); Fontaine, supra v. La United States Fontaine, 2. United States v. La 12 F.R.D. 518 2; Lewis, 56, note States v. 10 (D.R.I.1952); United F.R.D. 5 Hennepin County Parker v. Dist. (D.N.J.1950). Ct„ Minn., Dodge Phelps N.W.2d 81 285 7 277, Ct., Ariz.App. Corp. Superior v. 7 438 P.2d (1968). States, 422, 424 Citing 5. Ullmann v. United 436-37, 497, 505-06, 100 76 S.Ct. L.Ed. 511 Deposit Corp., Ins. F.2d 3. Gordon v. Federal 427 (1956) (dictum); Hitchcock, Counselman v. (D.C.Cir.1970); Spector, v. LeBlanc 547, 195, (1892). U.S. 12 S.Ct. 35 L.Ed. 1110 (D.Conn.1974); Deposit Federal Ins. (W.D.Ky.1955). Corp. Logsdon, v. 18 F.R.D. 57 (1981). question explanation But or 1159, 1165 see United an P.2d why it of Goodwin, (5th States 625 F.2d be cannot answered be danger- Cir.1980), which sustains a blanket invoca injurious ous because disclosure could privilege party tion of the because the result. judge The trial in appraising the “legitimately refuse to essen could answer governed claim “must be as much his quoting tially questions,” all relevant personal perception peculiarities of Gomez-Rojas, States v. F.2d United the actually case as the facts in evi- (5th Cir.1975). ques As to each omitted; dence.” emphasis [Citations sought, asked and document tion each added.] respond must decide if a refusal court to Malloy Hogan, See also States, supra, justified. Rogers v. United 1489, 12 S.Ct. L.Ed.2d 653 In apply 340 U.S. at 71 S.Ct. at 442. test, ing judge this not deny should on in “ ruling propriety privilege ‘perfectly clear, unless it is from voking privilege, whether under the a careful consideration all the circum Constitution, court or Federal State stances in the witness is scope of should construe the mistaken, and that cannot answer[s] liberally a hostile niggardly and not in or possibly tendency’ have such to incrimi States, spirit. Ullmann United Hoffman, supra, nate.” 341 U.S. at U.S. L.Ed. 511 Temple quoting v. Com applied in The standard to be such cases monwealth, 75 Va. Hoffman, United States v. stated in was argues First Federal that several of the 486-87, 818-19, admissions, requests requests pro- (1951): 95 L.Ed. 1118 duce, questions put to Schamanek at only afforded not ex- deposition her incriminating.6 were not tends to answers that would in them- requests The critical for admissions essen- support selves a conviction fed- under a sought tially to establish that Schamanek eral criminal statute but em- likewise gave Federal a First cashier’s check which brace those which would furnish a link account, to her was credited she took in the chain evidence prose- needed again back and check cashed it and that cute the claimant for a federal crime.... cooperate supplying she refused to privilege, only To sustain the it infor- need concerning implications evident mation the check.7 First Feder- from question, setting in the it is request (1) which al’s for documents included: asked, responsive returns; (2) that a answer to relating income tax documents language permit plaintiff First Federal sufficient relies from State mation to ascer- Byington, 114 Utah P.2d did cash the tain who check. (1948), privi- in which Court stated this that the any 7. Defendant refused to furnish infor- lege "any applicable fact which is a concerning the mation check. *7 ” ‘necessary part or essential of a crime.' To the payment. stop 8. Defendant refused to language extent that this is narrower than the furnish 9. Defendant refused to informa- Hoffman, Byington standard stated in is over- concerning tion the check. ruled. 10. Defendant knows what bank check was drawn. requests read in 7. for admissions full: delivering plaintiff’s 11. After the check to 8, August 1. On or about 1980 defendant regained possession teller defendant of said gave plaintiff in the to a teller of a check check. $6,122.79. amount of 12. Defendant knows where check was 2. Said check was cashier’s check. cashed. deposit 3. credit Defendant received for a by 13. Defendant knows whom the check $6,000 of therefor. was cashed. paid $122.79 4. of to de- The balance 14. Defendant cashed the check. fendant in cash. 13, proceeds August plaintiff requested 15. Defendant received the there- 5. On payment stop check. from. 13, August plaintiff 6. On or about give requested plaintiff infor- that defendant sales; (3) Supreme

to real estate and documents The United States Court has relating principle to loans obtained. of addressed the boundaries this in a series of cases. See Fisher v. United requests to the could Answers States, 391, 1569, 425 U.S. 96 S.Ct. check, have linked Schamanek with the States, (1976); Bellis v. United L.Ed.2d it shown that she had received value for 85, 2179, 417 U.S. 94 S.Ct. 40 L.Ed.2d 678 check, possi that had and she retrieved States, v. United (1974); Couch 409 U.S. bly purpose cashing again. for the of it 322, 611, (1973). 93 S.Ct. 34 L.Ed.2d 548 Then had answered the re Schamanek — Doe, also United States v. admissions, quests for the answers could —, 1237, 79 L.Ed.2d 552 S.Ct. have furnished “a link in the chain of evi Fisher, supra, prosecute dence” which could be used to In the Court held that for United States for theft. apply, producing Schamanek the act of 479, 486-87, Hoffman, 341 U.S. 71 S.Ct. the documents must be “testimonial” in 814, 818-19, 95 L.Ed. 1118 nature, stating: It is ... clear that the Fifth Amend- Schamanek was also entitled to independently proscribe ment privilege against self-incrimina does not invoke the compelled production every the demand documents tion as to for sort of making necessary showing threshold incriminating applies only evidence but production that of the documents compelled the accused when is to make a incriminatory. Since the landmark case testimonial communication that is in- States, 616, Boyd v. United 116 U.S. criminating. [Emphasis original.] 524, (1886), it S.Ct. 29 L.Ed. 746 has been 408, S.Ct. at 1579. See also 425 U.S. that the com well-settled Braswell, United States v. pulsory protects self-incrimination an indi State, (E.D.N.C.1977); B.M. v. 113 Wis.2d compelled production vidual from of his Fisher, 183, 335 N.W.2d 420 personal papers, compelled as well as oral general declined to fashion a rule as Court See also Bellis v. United testimony. compelled production to when the of docu- States, 2179, 417 U.S. ments becomes “testimonial.” The Court (1974); Wilson v. United L.Ed.2d 678 question stated that resolution of that States, 55 L.Ed. “may depend on the facts and circumstanc- (1911); People Myers, 35 Ill.2d particular es of cases or classes thereof.” Wig 220 N.E.2d 8 J. Fisher, supra, 425 U.S. at 96 S.Ct. at § more, Evidence 2264 at n. 1 1961). (McNaughton rev. Lower federal courts have characterized accepted extending rationale One in Fisher as holding defining a three- production person’s to the of a part person may Before a test. assert the production pursuant documents is that privilege argument produce to a demand to compulsory process court involves the testi- documents, subpoena produce, or a component monial a tacit confession (1) compulsion court must find there papers the existence of the and demanded (2) communication, of a testimonial possession person their and control (3) incriminating communication is required production.8 Fisher to make the standard. United under States, v. United n. Hoffman Authement, (5th States 607 F.2d 1129 1582 n. 48 L.Ed.2d Cir.1979); Jury Empanelled, Means, Okla., Grand Rey v. (3rd Cir.1979); People Defore, Jury Em F.2d 851 Grand 242 N.Y. 150 N.E. *8 panelled 19, 1980, 585, (1926) (Cardozo, J.); March Wigmore, F.Supp. 590 8 J. 1 541 § supra, (D.N.J.1981), aff'd, (3rd at 2264 380. 680 F.2d 327 Cir. suit, produced by party compulsion In civil documents is different from that used to en- 34, R.Civ.P., pursuant produc- to Rule Utah are subpoena force a in a criminal case. compulsion, although ed under the nature of the

1265 Porter, 1982). § States v. See United Wigmore, 8 Evidence J. 2259c 703, (N.D.Ill.1982). 1961). (McNaughton rev. Shapiro rule could be used to production A demand for circumvent self-in compulsory documents is because sanctions government crimination if the require could may imposed be comply. for failure to reports persons from classes of thought to Furthermore, if complied Schamanek had engaged activity criminal documents, produce with the demand to ground reports public that such are docu returns, except the compli income tax her ments. The govern law is clear that the ance would have been “testimonial.” may require ment those who are sus tacitly Schamanek would have authenticat pect of criminal activities to disclose their possession ed the documents and her criminal government activities in reports. Compare Owens, Utah, Hansen v. them. States, Mackey v. United 667, 401 U.S. (1980), expands which 1160, Marchet S.Ct. 28 L.Ed.2d 404 privilege by holding that it is not limited to States, ti v. United 39, 47, 390 U.S. compulsion Therefore, testimony.9 if 697, 702, 19 S.Ct. Gros L.Ed.2d 889 proper showing the defendant made a un States, so v. United 62, 390 U.S. 88 S.Ct. der the standard as to the incrim Hoffman 19 L.Ed.2d 906 Albertson v. documents, inatory privi nature of the SACB, 70, 79, 194, 199, 15 382 U.S. 86 S.Ct. lege against self-incrimination would have (1965). L.Ed.2d 165 Jury Grand Proceed protected her producing from them. How ings, (5th Cir.1979). F.2d ever, since the trial court struck Schama- Although tax returns must be filed pleading partially nek’s because of her fail §§ government, with the 26 U.S.C. produce ure to those documents and since (1982 ed.), they purport do not brought appeal abbreviated record require compulsory disclosure of incrimi suggesting they contains no evidence natory They material. are directed to the incriminatory, presume were we must general public and utilized in the adminis supported the trial court’s order was tration of the apply revenue laws that evidence, i.e., that the documents were not If filling all. out a return calls for disclo incriminatory under Hoffman. incriminating information, sure of privi tax returns do not fall Income lege may be invoked on the return. Unit within spe the above rule because of their Kordel, ed States v. U.S. 90 S.Ct. semi-public cial nature as records which are 25 L.Ed.2d 1 Shapiro required kept by to be law. questions income tax re- “[T]he [an] States, United 68 S.Ct. turn neutral on their face and di- [are] (1948), leading L.Ed. 1787 case on the public large....” rected at the at point, Supreme Court stated: requirement that such returns be com- privilege [against self-incrimina- [T]he pleted simply and filed does not involve private papers which exists as to tion] compulsion to incriminate considered cannot be maintained in relation to States, in Mackey United U.S. [v. required by kept “records law to be 91 S.Ct. 28 L.Ed.2d 404 order that there be suitable informa- (1971)]. tion appro- of transactions which are the States, Garner v. United U.S. priate subjects governmental regula- 660-61, 1178, 1185-86, 47 L.Ed.2d tion and the enforcement of restrictions (1976) quoting SACB, Albertson v. validly established.” 194, 199, 15 L.Ed.2d 1392, quoting Id. at States, Davis v. S.Ct. In Garner v. United States, 582, 589-90, supra, United Supreme the United States Court 1256, 1259-60, 90 L.Ed. 1453 held that if a defendant makes incrimina- (1980), opinion recognizes 9. The author of this P.2d 315 but continues to adhere to his Utah, Owens, present authority of Hansen v. dissent. *9 1266 Wilkinson, v. (1983); Utah, Goodman

ting 629 on his tax returns rather disclosures Garrand, v. return, (1981); Garrand P.2d 447 asserting privilege than the on the Utah, (1980). re- 422 he raise the when the 615 P.2d cannot The turns are adduced as evidence at trial. individual under com- Court stated: “[A]n IV. pulsion a witness to make disclosures as general party rule is that a claim- who information instead of reveal[s] respond in civil refuses to a case who to an ing benefit los[es] discovery compelling subject order is to at privilege.” 424 U.S. at 96 S.Ct. to pursuant sanctions Utah R.Civ.P. Kordel, v. citing United States 397 37(b)(2)(C). also 4A J. See Moore & J. 1, 7-10, U.S. 766-769 ¶ Lucas, Federal Practice Moore’s 37.03[2.- short, are tax returns (1983). The sanctions are intended to -5] most, semi-private at documents which deter in connection with dis misconduct filed. authen- requires to be law Hockey League v. Metro covery, National resulting from com- tication defendant’s Club, Inc., politan Hockey 96 pelled production of the documents adds (1976), 747 49 L.Ed.2d and re little, anything, quantum if to “willfulness, faith, quire showing a bad court. by the knowledge possessed part non-complying or fault” States.... Fisher United [Therefore] Id.; Rog Societe Internationale v. party. aspect involved ... the testimonial ers, 1087, 2 357 L.Ed.2d producing tax would defendant’s returns appropriate 1255 The choice of an rise to not sufficient to the level be discovery primarily respon sanction protection. fifth amendment sibility judge of the trial and will not be Mills, Inc., 301 N.C. Lowder v. All Star reversed an abuse of discretion. absent 561, 590-91, 273 S.E.2d 264 League, supra, Hockey National Bar

Accord Minnesota State Association 2780; Hindmon v. Na S.Ct. at Association, Inc., v. Divorce Assistance tional-Ben Franklin Insurance Life 311 Minn. 248 N.W.2d 733 Cir.1982). Corp., (7th F.2d Empanelled Jury Grand March exception to the general An (D.N.J.1981); United States F.Supp. privilege is validly rule exists when a as Braswell, (E.D.N.C. F.Supp. ordinarily A serted. court not strike a State, 1977). Contra B.M. 113 Wis.2d party’s if refusal to pleadings respond rel. State ex 335 N.W.2d discovery to a order is based a valid Weinstein, Mo.App., Caloia v. 525 S.W.2d Webster, See Savola privilege. claim of Voyage Agency, Bon Travel (8th Cir.1981); Wehling 644 F.2d (N.D.Ill.1978). Broadcasting System, v. Columbia Schamanek also asserted the (5th Cir.1979); Campbell v. Ger F.2d 1084 privilege against self-incrimination in re rans, (9th Cir.1979); Moore’s 592 F.2d 1054 put questions answer her on fusing to ¶ Practice, supra, Federal 37.03[2.-5]. However, deposition. deposition tran Striking permissible, pleadings is how script appeal, record on is not and we ever, where there is an invalid refusal able, therefore, are determine obey order. See Hindmon v. discovery directing trial court’s validity of the order National-Ben Franklin Insurance Life deposition the defendant to answer Fendler, Corp., supra; Davis v. F.2d questions. appellant obligation An has the (9th Cir.1981). provide adequate appeal record on an reviewing judge’s ruling. In the a trial To sustain an assertion must, record, self-incrimination, we in this party absence of a do, presume responses sought case that the trial rul must show court’s that the to be E.g., Bevan v. J.H. Con ings compelled might incriminating. are correct. This re Inc., Utah, quires struction Co. merely declaring P.2d more than that an *10 requires, answer will incriminate —it “at a the summary judgment was properly minimum, good provide a faith granted. effort to judge trial with sufficient information from proposition is well established which he intelligent can make an evaluation that party’s civil cases a failure to re Fendler, supra, Davis v. of the claim.” spond inquiries to valid on the basis of the 650 F.2d at 1160. “The claimant is not the privilege against give self-incrimination can final arbiter of validity of his asser- rise to an against adverse inference that tion.” Id. party at trial. Baxter Palmigiano, v. the instant the trial court In 308, 1551, U.S. 47 L.Ed.2d 810 ordered appear Schamanek to and answer (1976); v. Cunningham, Lefkowitz deposition questions produce and to 801, 5, n. 2137 n. requested documents. On the record be Baxter); (1977) 53 L.Ed.2d 1 (explaining us,

fore showing she made no the Bradley O’Hare, 2 A.D.2d 156 N.Y. incriminatory. documents would be In (1956); Curtis, S.2d 533 Ikeda v. stead, she violated by failing the order Wash.2d (1953); Molloy produce the by failing documents and Molloy, 46 Wis.2d 176 N.W.2d 292 appear was, deposition. at a There there § Wigmore, Evidence 2272(e) J. fore, a imposition sufficient basis for of a (McNaughton 1961) n. 14 cases). rev. (citing sanction, and it was within the trial court’s Ordinarily, however, invoking prerogative pleadings to strike the as a privilege by a civil defendant does sanction for a respond. willful failure to by justify not itself striking a defendant’s concurring opinion of Chief Justice pleadings granting or summary judgment a suggests Hall that we should affirm the against a E.g., de Antonio v. defendant. trial court in this case on the basis of Solomon, (D.Mass.1966); F.R.D. 447 Young, Gerard v. 20 Utah 2d 432 P.2d Nolan, Abbate v. Fla.App., 228 So.2d 433 Gerard, a lessor sued a Wapnick, Steinbrecher lessee of a cafe. The sole issue was wheth- N.Y.2d 300 N.Y.S.2d 248 N.E.2d er the lessee had gambling conducted Voletsky, Abrahamowitz v. premises in violation of the lease. The Misc.2d (Sup.Ct. N.Y.S.2d 991 lessor summary judgment and, moved for 1965); McKelvey Freeport Housing Au support motion, filed the affida- thority, 29 Misc.2d 220 N.Y.S.2d 628 vits persons of three who saw others re- (Sup.Ct.1961). See also cases discussed at ceive gambling payoffs at the cafe. The § Wigmore Evidence, supra, 2272(e) J. n. lessee first controverted these by affidavits 14; Annot., “Dismissing Striking Action or his own affidavits. deposition, At his Testimony Party Where to Civil Action As lessee invoked the Fifth Amendment and Privilege serts Against Self-Incrimination any questions refused to answer concern- Question,” As To Pertinent 4 A.L.R.3d ing gambling. The trial court ruled for the § Grognet Valley v. Fox lessor, and Cf. this Court affirmed. Service, Trucking 45 Wis.2d The rationale of Gerard v. Young is un- (dictum). N.W.2d clear. A plurality affirmed, of the Court apparently ground that the defend- allowing Before an adverse in ant had invoked the Fifth Amendment ference against to be drawn the defendant merely delay Ellett, as a trial, tactic. Justice plaintiff would have to intro concurring opinion, reasoned that be- duce evidence that connects the cause the lessor had submitted plaintiff’s uncontro- to the claim for relief. That verted support evidence in of the motion independent evidence must be of the infer gambling was conducted on arising the leased ence from invoking the defendant’s premises, and because the in- privilege. defendant’s The adverse inference that voking self-incrimi- arises from invoking gave nation inference, rise to an adverse along then be any considered with other incriminate him. This ground that it reaching trier of fact when evidence decision; enough, to conclude that no prompted but the inference is the trial court itself, judgment grant to sustain a remained and to sum- factual issue defendant without some other evidence. accordingly. appeal, mary judgment On *11 in “The fact that a defendant a civil suit affirmed, party holding that a in this Court he risk when choos- assumes substantial liability escape civil a civil action not privi- to assert his es [Fifth Amendment] by claiming privilege incrimina- not, however, mean that lege does tion, it in- if the is claimed for obligation to plaintiff is relieved of his if the had the inference that evidence vokes he entitled to prove a case before becomes have unfavor- been-produced it would been Wapnick, 24 judgment.” Steinbrecher able. at N.Y. at 300 N.Y.S.2d in El- further observed Justice As was N.E.2d at 427. in concurring opinion Gerard v. lett’s Accordingly, Young, 20 Utah Gerard v. Young: (1967), stands for the 2d 432 P.2d 343 quarrel There is no with the claim that where, proposition on a motion narrow to incrimi the defendant cannot be made summary judgment, plaintiff estab- himself, in he nate but a civil case when independent, through lishes uncontroverted fact, duty he does not has a to state a summary he is entitled to evidence that claiming privilege. that fact In state judgment, cannot avoid a sum- a defendant Chambers, 355 the case of Albert v. mary judgment by claiming the Mich. the defendant N.W.2d against self-incrimination. cer did not want to answer under oath striking In the instant complaint given allegations tain re- pleadings resulted from the defendant’s oath lest the answer incriminate under comply discovery order fusal with a Michigan Supreme Court at her. obligated to assume was val- which we are Reporter page of the North Western imposed in this id. The sanction case was said: Gerard, for violation of that order. Unlike portion of the rule which deals That summary judgment was no motion for equity and in re- with answers law made, striking but the order defendant’s quires answer the the defendants to entering judgment pleadings and a default allegations of the declaration. How- was valid. ever, allegations may those be either respondent. Affirmed. Costs If alle- admitted or denied. a material in answer- gation the declaration is not OAKS, DURHAM, JJ., HOWE and con- ed, provides it the rule shall be cur. taken as admitted. HALL, (concurring special- Chief Justice To allow this defendant to remain ly): court under these circumstances would affirming judgment refusing I concur different from to direct a court, plaintiff trial do so for the reason that but verdict in a civil case where the presented by appeal showing the issue this has been testified to facts the defendant previously determined this Court. hogs, had stolen and the defendant had grounds testify refused to on the that his Young,1 plaintiff In Gerard v. answers would tend to incriminate him. sought to terminate a cafe lease where any Is there reason to allow that case to allegedly gambling being conducted in go jury? to the a condition of the lease. The violation of protecting rights allegation in the constitutional defendant denied the his an- Thereafter, not to incriminate deposition, in a he refus- him- swer. self, alleged gambling sight must not of the fact ed to admit the we lose 20 Utah 2d plaintiff that the has a also constitutional

right, and his case that is to have decided law,

under rules and the should not protect

be bent to a man who refuses to simply

make an issue because to do so

would tend to incriminate him.

432 P.2d 347. applies

The same rationale the instant trial

case. sole issue at was whether purloined

the defendant the check after

receiving payment full therefor. Had she give

been able to a truthful answer to

plaintiff’s requests for admission that she check, not take the

did she course could have incriminated herself. On the oth- hand, having

er claimed incrimination, logical justi- and

fiable inference to be drawn that she did Therefore,

take the check. the court did striking

not abuse its discretion her

pleadings2 entering judgment in favor plaintiff by default. FUND, Plaintiff,

SECOND INJURY

PERRY’S MILL AND CABINET SHOP Fund, Ralph State Insurance

and/or C.

Lamoreaux, and the Industrial Com- Utah,

mission of Defendants.

No. 19551.

Supreme of Utah. Court 28, 1984.

June Wilkinson, Atty. Gen., David L. Frank V.

Nelson, Gen., Atty. City, Asst. Salt Lake plaintiff. Sandack, Silvester,

Arthur R. Fred Salt City, Lake for defendants.

STEWART, Justice: appeals The Second Injury Fund an In- order appor- dustrial Commission which 37(b)(2)(C), provided by 2. Pursuant to the sanctions Rule Utah Rules of Civil Procedure.