State ex rel. Verhovec v. Mascio

Per Curiam. S.Ct.Prac.R. X(5) provides that in original actions other than habeas corpus filed in this court, “[ajfter the time for filing an answer to the complaint or a motion to dismiss, the Supreme Court will either dismiss the case or issue an alternative or a peremptory writ, if a writ has not already been issued.” If the pertinent facts are uncontroverted and from these facts it appears beyond doubt that relators are entitled to the requested extraordinary relief, a peremptory writ will issue. See, e.g., State ex rel. Findlay Publishing Co. v. Schroeder (1996), 76 Ohio St.3d 580, 583, 669 N.E.2d 835, 839. The Verhovecs claim entitlement to a writ of procedendo. A writ of procedendo is appropriate if a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment. State ex rel. Miley v. Parrott (1996), 77 Ohio St.3d 64, 65, 671 N.E.2d 24, 26. Thus, a writ of procedendo will issue requiring a judge to proceed to final judgment if the judge erroneously [336] stayed a proceeding because of another pending case. See State ex rel. Crandall, Pheils & Wisniewski v. DeCessna (1995), 73 Ohio St.3d 180, 184, 652 N.E.2d 742, 745; State ex rel. Davey v. Owen (1937), 133 Ohio St. 96, 105-106, 10 O.O. 102, 106, 12 N.E.2d 144, 149. The determination of whether to issue a stay of proceedings generally rests within the court’s discretion and will not be disturbed absent a showing of an abuse of discretion. State ex rel. Wallace v. Tyack (1984), 13 Ohio St.3d 4, 5-6, 13 OBR 379, 380, 469 N.E.2d 844, 846. An abuse of discretion connotes an unreasonable, arbitrary, or unconscionable decision. State ex rel. Askew v. Goldhart (1996), 75 Ohio St.3d 608, 610, 665 N.E.2d 200, 202. The Verhovecs assert that Judge Mascio abused his discretion by staying their civil case against Dye based on Dye’s Fifth Amendment privilege against self-incrimination. 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. Minnesota v. Murphy (1984), 465 U.S. 420, 426, 104 S.Ct. 1136, 1141, 79 L.Ed.2d 409, 418. Nevertheless, the Fifth Amendment protection against compulsory self-incriminating testimony does not extend to prohibit civil litigation while the possibility of criminal prosecution exists. Tedeschi v. Grover (1988), 39 Ohio App.3d 109, 111, 529 N.E.2d 480, 482; see, also, Commonwealth Land Title Ins. Co. v. Davis (Sept. 22, 1992), Franklin App. Nos. 91AP-1239 and 91AP-1240, unreported, 1992 WL 238897, and Hauck v. Yockey (Sept. 1, 1988), Franklin App. No. 87AP-795, unreported, 1988 WL 92437, following Tedeschi. “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.” Tedeschi, 39 Ohio App.3d at 111, 529 N.E.2d at 482; see, also, Murphy, 465 U.S. at 427, 104 S.Ct. at 1142, 79 L.Ed.2d at 417 (“[T]he general obligation to appear and answer questions truthfully did not in itself convert Murphy’s otherwise voluntary statements into compelled ones.”). Similarly, a stay or continuance of a civil trial is not required pending an appeal from a conviction and sentence in a criminal case merely because the possibility exists that the criminal case could be reversed and remanded for trial. See Barr v. Intermark Internatl., Inc. (Aug. 28, 1992), Greene App. Nos. 91-CA-16 and 91-CA-20, unreported, 1992 WL 206779, citing Tedeschi with approval. We find that Judge Mascio abused his discretion in staying the civil case pending the resolution of Dye’s criminal appeal based on this possibility. If we were to hold otherwise, convicted criminal defendants could unreasonably delay civil trials by appeals of their convictions. Finally, the stay is not justified by Judge Mascio’s concern that Dye’s interest in not incriminating himself might preclude him from testifying in his own defense in the civil case. As the court of appeals held.in Tedeschi, 39 Ohio [337] App.3d at 111, 529 N.E.2d at 483, “merely because a civil defendant may lose a suit which involves a substantial monetary stake does not, ipso facto, raise a claim of compulsion by the state” and does not violate any Fifth Amendment guarantee. See, also, Barr. In other words, “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them * * Baxter v. Palmigiano (1976), 425 U.S. 308, 318, 96 S.Ct. 1551, 1558, 47 L.Ed.2d 810, 821. See, also, 4 Rotunda & Nowak, Treatise on Constitutional Law (2 Ed.1992) 666, Section 23.23 (“[T]he protection against self-incrimination was not necessarily designed to protect witnesses from every prejudicial effect resulting from their own testimony; the protection was designed to limit the coercive power of government.”); but, cf., 5 Wright & Miller, Federal Practice and Procedure (1990) 515-516, Section 1280. Based on the foregoing, Judge Mascio abused his discretion in staying the Verhovecs’ civil case pending the resolution of Dye’s criminal appeal. Because the pertinent facts are uncontroverted and it is beyond doubt that the Verhovecs are entitled to the requested extraordinary relief, we issue a peremptory writ of procedendo to compel Judge Mascio to reactivate the civil case and schedule it for trial on the merits as soon as reasonably possible. Writ granted. Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer, Cook and Lundberg Stratton, JJ., concur.