What You (Don’t) Say Will be Used Against You:

COA Reminds of Consequences When Invoking the Fifth Amendment in a Civil Action

By: Cassie Nielsen, Associate


Although often viewed as a strategy for a criminal defendant, invoking the Fifth Amendment privilege has implications in civil cases too.  In R.L Rynard Development Corp. v. Martinsville Real Prop. LLC,[1] the Indiana Court of Appeals reminds litigants and attorneys alike of the limitations and consequences of invoking the Fifth Amendment in a civil action.

In Rynard, property owners executed a series of contracts which required progress payments to the contractor.  To receive the progress payments, the contractor was required to submit lien waivers signed by subcontractors together with applications for payment.  Over the course of the project, the property owners paid over $17 million to the contractor.  Nearly four years after the project’s initiation, a subcontractor recorded a lien and filed a complaint for non-payment.  The property owners filed suit and alleged the contractor’s president, Robert Rynard, forged subcontractor’s signatures on lien waivers to induce payments.  The contractor counterclaimed and alleged non-payment for change orders.  Property owners argued that because the contractor had submitted fraudulent lien waivers, it was equitably estopped from its nonpayment claim.  During his deposition, Mr. Rynard invoked his Fifth Amendment privilege to numerous questions regarding the lien waivers and payment applications.  The property owners were awarded partial summary judgment and the contractor’s counterclaim was dismissed on equitable estoppel grounds.

Contractor appealed and argued the property owner failed establish two elements of the equitable estoppel defense.  The Indiana Court of Appeals disagreed and affirmed the trial court’s grant of summary judgment.  The appellate court noted Mr. Rynard’s invocation of the Fifth Amendment in response to questions regarding the lien waivers.  Although adverse inferences may not be drawn from a defendant’s invocation of the Fifth Amendment in a criminal matter,[2] the court reiterated Indiana’s allowance of drawing negative inferences in a civil matter.  Specifically, “while Rynard . . . exercised his privilege not to answer question posed during his deposition, the trial court was permitted to ‘infer what his answer[s] might have been.’” (citations omitted).  The trial court was permitted to draw negative inferences from Mr. Rynard’s silence and therefore properly concluded that the lien waivers were fraudulently submitted, with the intent to induce payment, that the property owners reasonably relied upon the contractor’s submissions, and that fraud by the contractor precluded relief to the contractor and instead entitled the property owners to judgment.

[1] 2021 Ind. App. LEXIS 378 (Ind. Ct. App. 2021)

[2] See, e.g., Boatright v. State, 759 N.E.2d 1038 (Ind. 2001)