Jewell v. Ferrell & Associates

By JUDGE JACK B. STEVENS This matter is before the Court upon Plaintiff’s Motion to Strike the Pleadings of Defendants, Donald G. Ferrell and Ferrell and Associates, pursuant to Section 8.01-401(B), Code of Virginia (1950), as amended, and enter Summary Judgment for Plaintiff; the Defendants having asserted a Fifth Amendment privilege not to answer Interrogatories. Code § 8.01-401(B) provides that: If any party, required by another to testify on his behalf, refuses to testify, the court, officer, or person before whom the proceeding is pending, may, in addition to punishing said party as for contempt, dismiss the action, or other proceeding of the party so refusing, as to the whole or any part thereof, or may strike out and disregard the plea, answer, or other defense of such party, or any part thereof, as justice may require. While both sides rely upon Davis v. Davis, 233 Va. 452 (1987), and argue the holding therein as supporting their respective position, the Court does not read Davis [373] to support either side insofar as the issue here is concerned. The decision in Davis is directed toward the situation where a moving party is exercising a Fifth Amendment right; a "sword and shield" situation. That situation does not exist here. Defendants here are not "moving" parties, and the Fifth Amendment is only being raised as a shield. More in point is Judge Bach’s letter opinion in this Court in Dickstein v. Liboro, 14 Va. Cir. 321 (1989), relied upon by Plaintiff. Judge Bach clearly held that Section 8.01-401(B) could be utilized to strike answers and defenses even though the Fifth Amendment was properly invoked where the Defendant refused to answer questions concerning the factual basis for his defenses and denial of facts alleged by Plaintiff. The Defendants here have likewise brought themselves within the ambit of Section 8.01-401(B) by refusing to answer interrogatories concerning the basis for denial of factual allegations in the Motion for Judgment. The Motion to Strike and for Summary Judgment is granted as to Defendants, Donald Ferrell and Ferrell and Associates.