COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73408 JOHN BRYANT : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION JAMES CONRAD, Administrator : Bureau of Workers' Compensation : : THE INDUSTRIAL COMMISSION OF OHIO : : THE CITY OF CLEVELAND : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 10, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-319805 JUDGMENT: JUDGMENT OF DISMISSAL VACATED AND CAUSE REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellees: DAVID L. MEYERSON ROBERT J. MAREK Garson & Associates Co., L.P.A. NANCY WALKER 1600 Rockefeller Building Assistant Attorney Generals 614 Superior Avenue, N.W. 615 West Superior Avenue Cleveland, Ohio 44113 12th Floor Cleveland, Ohio 44113 THOMAS D. CORRIGAN, Assistant Law Director-City of Cleveland Room 106 City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 -2- TERRENCE O'DONNELL, PRESIDING JUDGE: John A. Bryant, a water meter serviceman for the City of Cleveland, appeals from a decision of the common pleas court dismissing his workers' compensation appeal for his refusal to answer questions regarding his cocaine use at a deposition taken in connection with his claim for benefits arising from injuries he sustained when he fell through the rear doors of a moving water department truck as it traveled on the East Shoreway near E. 185th Street. Although the trial court correctly determined that Bryant had no Fifth Amendment basis to refuse to answer questions at his deposition and still maintain his action, Civ.R. 41 requires notice before a court can dismiss a case with prejudice and, for that reason, we are required to remand this case to common pleas court to enable that notice to be given to Bryant before dismissal of his case. The record reveals that on the morning of March 6, 1996, as Bryant rode in the back of a water department truck on his way to a jobsite, he moved to the rear of the truck to find his work gloves and boots, and fell through the rear doors of the moving truck and landed on the freeway pavement. An ambulance transported him to Mt. Sinai Hospital, where he received treatment for his injuries and a routine drug test revealed the presence of cocaine in his system. Subsequently, he filed a claim for workers' compensation benefits, which the Bureau denied. He then appealed to the Industrial Commission and that agency upheld the Bureau's -3- decision. Subsequently, he appealed to common pleas court urging his entitlement to participate in the workers' compensation fund. When the city failed to file an answer or to respond to his discovery requests, Bryant filed a motion to compel which the court granted. Thereafter, the city failed to comply with the court's order compelling the discovery, Bryant moved for a default judgment, the court scheduled a hearing on that motion, but later denied the default because the Bureau subsequently filed an answer to Bryant's complaint; in addition, the court again ordered the city to respond to discovery. The Industrial Commission then took Bryant's deposition and inquired about his prior use of cocaine. In response, Bryant asserted his Fifth Amendment privilege against self-incrimination, refused to answer the questions and, as a result, the Industrial Commission filed a motion to compel him to answer. Thereafter, the court granted Bryant's motion for sanctions against the city for its failure to respond to discovery and set the case for trial. On the day of trial, the court conducted a hearing on the motion for sanctions resulting from Bryant's assertion of the Fifth Amendment, and his refusal to answer the questions about his cocaine use at his deposition. Thereafter, learning that he would not answer questions regarding his alleged drug use on the day of the injury, the court dismissed the case with prejudice. Bryant now appeals raising two assignments of error for our consideration; the first states: I. -4- THE TRIAL COURT ERRED IN DISMISSING THE CASE WITH PREJUDICE ON THE BASIS OF THE PLAINTIFF ASSERTING HIS FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION DURING A DISCOVERY DEPOSITION, THE TRIAL COURT HAD NEVER PREVIOUSLY ORDERED THE PLAINTIFF TO ANSWER THOSE SPECIFIC QUESTIONS FOR WHICH HE INVOKED HIS FIFTH AMENDMENT PRIVILEGE. Bryant contends the trial court erred in dismissing his case with prejudice, arguing that he asserted his Fifth Amendment privilege against self-incrimination because he had a real and appreciable fear that his testimony regarding prior cocaine use would lead to his prosecution for that offense, that his testimony regarding prior cocaine use is not material to the Bureau's defense, and that the trial court failed to give him notice that it intended to dismiss his case with prejudice as a sanction for failing to answer the deposition questions. The Industrial Commission urges the trial court did not err in dismissing Bryant's case, arguing that he had no real or appreciable fear that his testimony would result in criminal prosecution, that his refusal to answer the deposition questions prejudiced its defense, and that refusal to answer the questions constituted a flagrant, substantial disregard for the court's rules which justified dismissal of the case. The issue then presented for our review concerns whether the trial court erred in dismissing Bryant's case for his refusal to answer deposition questions regarding his prior cocaine use. Regarding Bryant's claim concerning his right to invoke the privilege against self-incrimination, we observe that the Supreme -5- Court in State ex rel. Verhovec v. Mascio (1998), 81 Ohio St.3d 334, addressed this issue and stated in relevant part at 336: "While the umbrella of Fifth Amendment guarantees is broad, the prohibition against compulsory testimony does not relieve a party from appearing or answering questions in a civil action." Here, Bryant asserted the Fifth Amendment in refusing to answer deposition questions regarding his prior cocaine use. In accordance with State ex rel. Verhovec v. Mascio, supra, we conclude that Bryant's assertion of a Fifth Amendment privilege does not relieve him from the obligation to answer questions in his civil deposition. Regarding Bryant's next claim concerning whether his refusal to testify as to prior cocaine use prejudiced the Bureau's defense, we observe that R.C. 4123.54(B) entitles an injured employee to receive workers' compensation benefits provided the injuries did not proximately result from "the employee being intoxicated or under the influence of a controlled substance not prescribed by a physician * * *." Further, in Shrader v. Equitable Life Assur. Soc. (1983), 10 Ohio App.3d 277, the court stated in relevant part at 278: * * * a party to a civil proceeding has no right to continue to assert his claim or defense against an adverse party and at the same time refuse to give pertinent testimony, not otherwise obtainable, material to the claim or defense of such adverse party. Here, the Bureau sought deposition testimony from Bryant regarding his prior cocaine use for the purpose of asserting its defense against his claim. Bryant, however, asserted the Fifth -6- Amendment and refused to answer this line of questioning. In accordance with Shrader v. Equitable Life Assur. Soc., supra, and R.C. 4123.54(B), we conclude that Bryant's testimony is pertinent and material to the Bureau's defense, because if his cocaine use proximately caused his injuries he is not entitled to receive workers' compensation benefits. Finally, regarding Bryant's third claim that the court dismissed his case without providing notice, we recognize that Civ.R. 37(B)(2)(c) permits a court to impose a sanction of dismissal. However, this is limited by application of Civ.R. 41(B)(1) which states: Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff's counsel, dismiss an action or claim. (Emphasis added). The notice requirement of that rule applies to all dismissals with prejudice, including those premised upon a failure to comply with discovery. See Ohio Furniture Co. v. Mindala (1986), 22 Ohio St.3d 99. Here, the record reveals that on the day of trial, Bryant's counsel attempted to explain the reasons that Bryant asserted the Fifth Amendment and refused to answer the deposition questions, and stated that Bryant asserted his privilege in connection with the deposition questions regarding his prior cocaine use. While the court provided Bryant with the opportunity to explain or correct his refusal to answer the deposition questions, the record does not reflect any prior notice of the intended dismissal as required by -7- Civ.R. 41(B)(1). Hence, the matter will be returned to the common pleas court where Bryant can be advised of dismissal as a sanction if he again refuses to answer the deposition questions. Bryant's second assignment of error states: II. THE TRIAL COURT ERRED IN FAILING TO GRANT A DEFAULT JUDGMENT AGAINST THE CITY OF CLEVELAND WHEN THE CITY FAILED TO ANSWER THE COMPLAINT, FAILED TO RESPOND TO DISCOVER [sic] AND FAILED TO COMPLY WITH THE COURTS [sic] ORDERS. Bryant contends the trial court erred in denying his motion for default judgment against the City of Cleveland, arguing that it failed to file an answer to his complaint, to comply with his discovery requests and the court's orders compelling discovery, and to respond to his motion for default judgment. The Industrial Commission urges the court did not err in denying Bryant's motion for default judgment against the city, arguing that employers who participate in the workers' compensation fund are not required to become parties to a claimant's appeal, and that a default judgment against the city would effectively constitute an unlawful default judgment against the State of Ohio. The issue then presented for our review concerns whether the trial court erred in denying Bryant's motion for default judgment against the city. -8- R.C. 4123.512(B) provides that the claimant, the administrator and the employer shall be parties to an appeal from the Bureau's determination. However, that section also gives the administrator the authority to act on behalf of the employer "if the employer fails to become an active party to the appeal * * *." In Masci v. Keller (1969), 18 Ohio St.2d 67, the court stated at 69 in relevant part: * * * The fact that the employer does not file an answer or appear and contest the claim is inconsequential. Here, the record reveals that the city failed to plead or otherwise defend in connection with Bryant's appeal. However, in accordance with R.C. 4123.512(B) and Masci v. Keller, supra, the city's lack of action is inconsequential, and the administrator is deemed to act in this case on behalf of the city. We, therefore, overrule this assignment of error. Accordingly, the assignments of error are not well taken and the determinations of the trial court are affirmed in all respects, except that the judgment of dismissal is vacated and the case is remanded to enable the court to notify appellant of dismissal as a possible sanction, in accordance with Civ.R. 41, prior to dismissing his case if he fails to answer the questions posed to him during his deposition. -9- It is ordered that appellees and appellant bear their respective costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, J., CONCURS; JAMES D. SWEENEY, J., CONCURS IN JUDGMENT ONLY WITH CONCURRING OPINION. PRESIDING JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(a). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73408 JOHN BRYANT : : Plaintiff-appellant : C O N C U R R I N G : vs. : O P I N I O N : JAMES CONRAD, Administrator : Bureau of Workers' Compensation : : THE INDUSTRIAL COMMISSION OF OHIO : : THE CITY OF CLEVELAND : : Defendant-appellees : : DATE: DECEMBER 10, 1998 SWEENEY, JAMES D., J., CONCURS IN JUDGMENT ONLY WITH SEPARATE OPINION: While the majority opinion is a thoughtful one, the case is remanded due to the trial court's failure to give prior notice of an intent to dismiss. While this legal conclusion is correct, as a practical matter, the trial court will simply give prior notice, and the case will be dismissed on the merits. This outcome is problematic. This court should keep in mind that the appellant has not refused to testify regarding his drug usage the day of the accident. Rather, he seeks only to protect himself from having to testify before the Attorney General's office and the Prosecutor's of the City of Cleveland, either of whom could prosecute him, regarding his past drug abuse. The majority opinion relies on State ex rel. Verhovec v. Mascio (1998), 81 Ohio St.3d 334 for the proposition that the appellant's assertion of his Fifth Amendment privileges does not -2- relieve him from answering questions in his civil deposition. I believe this proposition incorrectly interprets the holding in Verhovec. In Verhovec, supra, the Ohio Supreme Court noted that the U.S. Supreme Court in Minnesota v. Murphy (1984), 465 U.S. 420, held that the Fifth Amendment permits a person not to answer questions in any proceeding, civil or criminal, if the answers might incriminate that person in future criminal proceedings. The court in Verhovecnext cited to Tedeschi v. Grover (1988), 39 Ohio App.3d 109 (appellant sought to stay a civil proceeding due to an investigation by a federal grand jury) for the proposition that the Fifth Amendment protection against self-incriminating testimony does not extend to prohibit civil litigation while the possibility of criminal prosecution exists. An examination of Tedeschi reveals that the appellate court found: It is well-recognized that the constitutional protection afforded by the Fifth Amendment applies both to the accused in criminal proceedings and to witnesses in criminal and civil proceedings. Lefkowitz v. Turley (1973) 414 U.S. 70, 77; Shrader v. Equitable Life Assur. Soc. (1983) 10 Ohio App.3d 277. In the context of criminal proceedings, the Fifth Amendment privilege secures to the accused the right not to testify. Id.; Minnesota v. Murphy (1984), 465 U.S. 420, 426. Simi- larly, in civil proceedings the amendment prohibits the state from compelling a witness to testify as to matters which may tend to incriminate in subsequent proceedings. McCarthy v. Arndstein (1924), 266 U.S. 34. Compulsion, in this sense, arises whenever some penalty, be it imprisonment or economic, coercion, is imposed for failing to offer testimony. Turley, supra, at 77-84; Lefkowitz v. Cunningham (1977), 431 U.S. 801, 804-808. Thus, the Fifth Amendment privilege is composed of three elements as it applies to civil proceedings. First, the privilege is that of a witness. Second, the Fifth Amendment protects testimony. Finally, the privilege protects against official compulsion. -3- The court concluded the appellant did not meet any of the three tests, and thus the privilege did not apply. The case sub judiceis quite different. As to the first test, it is noteworthy that the Tedeschi court specifically found that there is no question but that Fifth Amendment protection extends to answers given in response to specific questions propounded in the course of discovery. The appellant herein, upon advice of counsel, sought to refuse to answer questions as to his past drug use by exerting his Fifth Amendment privilege in a deposition. As a witness, he therefore meets the first test. Similarly, the second test is met, the appellant sought protection from giving testimonial evidence. And finally, the State attempted to compel the appellant to forego his privilege when it asked the court for a dismissal of the appellant's case. Thus, the appellant properly exerted his Fifth Amendment privilege against self-incrimination regarding his past use of drugs. The State may, at its choosing, attempt to discover evidence of the appellant's prior drug usage from other sources, but it may not coerce the appellant to abandon his rights under the .