Opinion
C.A. No. 98A-11-005 RRC.
Submitted: July 26, 1999.
Decided: October 21, 1999.
UPON APPEAL FROM A DECISION OF THE COURT OF COMMON PLEAS. AFFIRMED.
ORDER
Upon consideration of Appellant's appeal from a decision of the Court of Common Pleas, it appears to this Court that:
1. James D. "Nick" Fallon (Appellant) has appealed from an order of the Court of Common Pleas assessing Appellant penalties, fines, treble damages and attorneys fees after a civil inquisition hearing in the amount of $24,288. Appellant contends that the trial court erred in requiring him to testify at that hearing in violation of his Fifth Amendment privilege against self-incrimination because of the pendency of unrelated criminal charges against him. The State contends that Appellant had no right to invoke that privilege since Appellant made no showing that his answers "could reasonably be self-incriminatory." The trial court sustained the State's position at the hearing. For the following reasons, the decision of the trial court is AFFIRMED.
The sole issue on appeal is whether Appellant had the right to invoke his federal Fifth Amendment right against self-incrimination. No similar claim is made under Del. Const. Art. I, § 7; therefore, this Court does not reach that issue as it has been waived by Appellant.
Steigler v. Insurance Co. of North America, Del. Supr., 306 A.2d 742, 743 (1973) (holding that the defendant was not entitled to a stay of civil action based upon a Fifth Amendment privilege without a judicial determination that any answers "could reasonably be self-incriminatory.")
2. For this appeal, this Court incorporates by reference the facts set forth in its Order of February 27, 1998, which Order reversed a decision of the Court of Common Pleas that had held, inter alia, that Appellant's "fraudulent" and "deceptive" practices in conducting an automobile repair business were nevertheless not "willful" under 6 Del. C. § 2513(c). This Court remanded the case for determination by the Court of Common Pleas of the appropriate penalties under 6 Del. C. § 2513(c) and 6 Del. C. § 2533(d).
State v. Fallon, Del. Super., C.A. No. 96A-12-010, Cooch, J. (February 27, 1998) (ORDER).
3. The Court of Common Pleas then held an inquisition hearing on October 13, 1998, to determine damages, attorneys fees and costs sought by the State. Appellant was represented by counsel. The State had called Appellant to testify about his financial resources. Counsel for Appellant objected to the State calling Appellant as a witness, arguing that Appellant's testimony would violate his Fifth Amendment right against self-incrimination, asserting that
"[t]here are criminal charges pending. I would not like to see the scope of this hearing expand to provide him additional exposure . . . [the new felony theft charges] don't arise from this set of circumstances that he was prosecuted under . . . [T]hat information [about his financial status] could be made available to the State for the purposes of criminal prosection."
Inquisition hearing of October 13, 1998, Tr. at 5-6.
Inquisition hearing of October 13, 1998, Tr. at 5-6.
The felony theft charge was never further identified or discussed (there was also pending, in that same case, a misdemeanor theft charge). The Court overruled the objection, holding that the State had the right to call Appellant and ordered that he could testify to determine his assets. After it heard testimony, the Court then assessed Appellant penalties, fines, treble damages and attorneys fees in the amount of $24,228. It is from that order that Appellant brings this appeal.
4. Appeals in civil cases from the Court of Common Pleas to this Court are on the record and not de novo. In addressing appeals from a trial court, this Court is limited to correcting errors of law and determining whether substantial evidence exists to support factual findings. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. It is not the duty of the reviewing Court to weigh the evidence, determine the questions of credibility or make its own factual findings. When the determination of facts rests on a question of credibility and acceptance or rejection by the trial judge of live testimony, the trial Judge's findings will be approved on review. The factual findings in this case will not be overturned on appeal if they are "sufficiently supported by the record and are the product of an orderly and logical deductive process." Questions of law are reviewed de novo.
10 Del. C. § 1326(c); Super. Ct. Civ. R. 72(g).
Shahan v. Landing, Del. Super., 643 A.2d 1357 (1994).
Oceanport Indus. v. Wilmington Stevedores, Inc., Del. Supr. 636 A.2d 892, 899 (1994).
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965).
Levitt v. Bouvier, Del. Supr., 287 A.2d 671, 673 (1972).
Id.; Ensminger v. Merritt Marine Const., Del. Super., 597 A.2d 854, 855 (1988).
5. This Court finds that the decision of the Court of Common Pleas is supported by substantial evidence. As the Supreme Court of Delaware has stated:
A party cannot avoid interrogation, [i]n [v]accuo, by merely stating that his answers may tend to incriminate him. It is for the Court to decide whether the question, after actually being put, is such that any direct answer thereto could be reasonably self-incriminatory.
Steigler at 743. See also Brown v. State, Del. Supr., 729 A.2d 259 (1999) (holding that the Superior Court properly sustained the invocation of two witnesses' Fifth Amendment rights because the concern about self-incrimination was real and substantial.)
Steigler at 743. See also Brown v. State, Del. Supr., 729 A.2d 259 (1999) (holding that the Superior Court properly sustained the invocation of two witnesses' Fifth Amendment rights because the concern about self-incrimination was real and substantial.)
Appellant made no showing at all that his answers at the inquisition hearing about his financial resources could be "reasonably self-incriminatory." His Fifth Amendment right against self-incrimination did not meet the standard set forth in Steigler. No connection to the then-pending criminal charges was shown. The trial court allowed for Appellant's counsel's objection to be continuous in nature which gave the trial court the ability to intervene if any questions were improper. Although Appellant has identified numerous answers to questions at the hearing which he impliedly argues were "reasonably self-incriminatory," this Court disagrees. The decision of the Court of Common Pleas is AFFIRMED. IT IS SO ORDERED.
Id. at 743.
The Court notes that the pending criminal theft charges identified at the time of the inquisition hearing were nolle prossed by the State on July 8, 1999. State v. Fallon, Del. Super., ID # 98050491, July 8, 1998, Dkt. No. 17.