KRISTI HEFFINGTON, ET AL.
RONALD F. MOSER, ET AL.
Circuit Court for Prince George's County Case No.
Deborah S., Leahy, Wilner, Alan M. (Senior Judge, Specially
Deborah S., J.
appeal presents a question of first impression in Maryland:
whether, and under what circumstances, a plaintiff in a civil
case who also is a defendant in a related criminal
prosecution is entitled to a stay of the civil case so as not
to penalize her for invoking her Fifth Amendment privilege
against self-incrimination. We shall hold that in deciding
whether to grant a stay, the court must balance the
plaintiff's Fifth Amendment right against
self-incrimination and Article 19 right of access to the
courts against the defendant's interest in a timely
resolution of the claims against him. A stay should be
granted to protect the plaintiff's constitutional rights
unless it will cause undue prejudice to the civil defendant.
Circuit Court for Prince George's County, Kristi
Heffington ("Kristi") and her husband, Matthew
Heffington ("Matthew"), the appellants, brought a
tort action against Kristi's former employer, Ronald F.
Moser, D.D.S, P.A. ("the Practice"), Ronald F.
Moser, D.D.S. ("Dr. Moser"), and Dr. Moser's
wife, Anne M. Moser ("Anne"), the appellees
("the civil suit"). The Heffingtons' tort claims
all were based on allegedly false statements the Mosers made
to the police, to the Practice's insurer, and to others
that Kristi had stolen money from the Practice and had
engaged in identity fraud while employed there.
the civil suit was pending, Kristi was indicted by a grand
jury in the Circuit Court for Prince George's County,
Case No. CT170240X, for one count of theft scheme and four
counts of identity fraud ("the criminal case").
Originally, the trial in the criminal case was scheduled to
commence before the assigned trial date in the civil case.
Later, upon the State's request, the criminal case trial
date was postponed. The new trial date for the criminal case
was after the trial date in the civil suit. The Heffingtons
filed a motion to stay the civil suit pending disposition of
the criminal case, arguing that to protect herself in the
criminal case, Kristi would be invoking the Fifth Amendment
in the civil suit and, therefore, would be unavailable to
testify on her own behalf. After a hearing, the court denied
the motion to stay.
shall explain in detail below, on the first day of trial in
the civil suit, the Heffingtons moved for a mistrial, which
was denied, and rested without putting on evidence. The
circuit court granted judgment in favor of the Mosers and the
Practice on all counts.
Heffingtons noted this appeal, asking whether the circuit
court abused its discretion by denying their motion to stay
the civil suit. For the following reasons, we answer that
question in the affirmative. We shall vacate the judgment of
the circuit court and remand for further proceedings.
Moser owns and operates the Practice, which is located in
Bowie. At the relevant time, Anne was working there as a
dental hygienist. Kristi was hired by the Practice in June
2008. In 2010 she became the office manager. In that
capacity, she was responsible for depositing all cash and
checks in the Practice's business account, balancing the
daily transactions, and providing Dr. Moser a daily report on
April 15, 2015, Dr. Moser fired Kristi for stealing money
from the Practice. Specifically, Kristi was accused of using
the Visa terminal at the Practice to charge and later refund
charges on medical credit cards she obtained in her name and
in the names of family members, without their knowledge or
consent. The day he fired Kristi, Dr. Moser reported
Kristi's thefts to the City of Bowie Police Department
and to CNA, the Practice's liability insurer. Five days
later, Kristi's cousin, Randall Tracey
("Randall"), reported to the Anne Arundel County
Police Department that Kristi had stolen his son Randy's
identity and used it to apply for a medical credit card.
Randall also reported that in 2013 Kristi had stolen his
identity and had used it to apply for a $10, 000 medical
March 21, 2016, the Heffingtons filed the civil suit that
gives rise to this appeal. They alleged that in December 2013
Anne had told Kristi, in confidence, that she was having an
affair and that in January 2015 Kristi had told Dr. Moser
about Anne's affair. They further alleged that Dr. Moser
and Anne then "conspired to develop a scheme to
disparage [Kristi's] reputation, and to cause injury to
her financial, mental, psychological, emotional, and personal
well-being, as well as interfere with her own standing as an
employee in the dental community." In furtherance of
that conspiracy, the Mosers falsely reported to the police
that Kristi had stolen over $3, 000 from the Practice; filed
a false insurance claim asserting that Kristi had stolen over
$100, 000 from the Practice; filed a civil action in the
District Court of Maryland for Anne Arundel County falsely
alleging that Kristi had wrongfully refused to repay a $5,
000 loan from Dr. Moser; and called Randall, who was
Matthew's employer, and made false allegations about
Kristi and false allegations that Matthew had participated in
Kristi's alleged theft scheme.
stated claims against the Mosers, individually, and the
Practice for defamation per se (Counts I & II);
malicious use of process (Counts III & IV); and tortious
interference with prospective business advantage (Counts V
& VI). Matthew stated claims against the Mosers,
individually, and the Practice for defamation per se
(Counts IX & X) and tortious interference with
prospective advantage (Counts VII and VIII). They both stated
a claim against the Mosers and the Practice for civil
conspiracy (Count XI). In each count, they sought
compensatory and punitive damages in excess of $75, 000.
August 16, 2016, the court entered a scheduling order,
setting the case in for a four-day trial from June 19-22,
Mosers noted Kristi's deposition, and, on November 14,
2016, Kristi was deposed for seven hours. She testified
that three weeks before she was fired, Randall's ex-wife
contacted her via Facebook messenger and asked her about an
issue with Randy's credit report. That is how she learned
that she was being accused of stealing Randy's identity.
Then, in May 2015, she learned the police were investigating
her for identity theft. In answers to questions, she spoke
about obtaining medical credit cards in her own name and in
the names of various family members; transactions using those
credit cards, including refunds of charges she had made from
the office Visa terminal; loans Dr. Moser extended to her;
and dental insurance claims she had made on behalf of her
aunt, who never was a patient of the Practice. She denied any
wrongdoing, claiming that the financial transactions were
proper and were made with the consent of her family members
and with Dr. Moser's knowledge and consent. Kristi did
not invoke her Fifth Amendment privilege against
self-incrimination during the deposition.
February 21, 2017, Kristi was indicted on one count of theft
scheme over $10, 000, but less than $100, 000, and four
counts of identity fraud-two pertaining to Randall and two
pertaining to her brother's girlfriend. The offense dates
all are April 15, 2015, and the crimes are based on
misconduct by Kristi in her capacity as the office manager
for the Practice. The trial in the criminal case was
scheduled to commence on June 8, 2017, roughly two weeks
before the trial date in the civil suit.
discovery continued in the civil suit. On May 2, 2017, the
parties attended mediation, which was unsuccessful. According
to the Heffingtons, at the mediation their attorney advised
the Mosers' attorney that he might file a motion to stay
the civil suit until the criminal case was resolved.
7, 2017, at the State's request, the trial date in the
criminal case was postponed until August 23, 2017.
days later, the Heffingtons filed a motion to stay the civil
suit pending the resolution of the criminal case. They
asserted that "[a]ny testimony provided by . . . Kristi
. . . in the [civil suit] will implicate her Fifth Amendment
right against self-incrimination and she will be unable to
testify and present her case." They pointed out that
because there is a one-year statute of limitations for
defamation, see Md. Code (1974, 2013 Repl. Vol.),
section 5-105 of the Courts and Judicial Proceedings Article
("CJP"), they had had no choice but to file suit in
2016. They analogized their circumstances to two cases in
which a stay of a civil action, or of particular proceedings
in a civil action, was sought by a defendant pending
resolution of related criminal charges against him. In re
Mid-Atlantic Toyota Antitrust Litigation, 92 F.R.D. 358
(D. Md. 1981); and In re Royal Ahold N.V. Securities
& ERISA Litigation, 220 F.R.D. 246 (D. Md. 2004).
Referencing those cases, the Heffingtons argued that a stay
would not burden them or the Mosers and would be convenient
for the court because, if Kristi were to be convicted in the
criminal case, the civil suit "will probably be
Mosers filed an opposition to the motion to stay. They argued
that the motion was untimely, having been filed just six days
prior to trial, and that, in any event, Kristi had waived her
Fifth Amendment privilege against self-incrimination by
testifying in deposition and engaging in discovery after she
was indicted. They further argued that the Fifth Amendment is
a shield and may not be used by a civil plaintiff as a sword
to delay the resolution of her action pending the resolution
of a related criminal action. They maintained that Kristi had
been free not to file suit, could dismiss her suit, could
attempt to prove her case through other evidence, or could
take the stand and invoke the privilege. They argued that
they had "an important interest in having their case
tried expeditiously[, ]" and would be prejudiced by a
stay that lasted until the conclusion of the criminal case,
whenever that might be.
15, 2017, the court held a hearing on the motion to stay. The
Heffingtons' lawyer requested a "short stay just to
let the criminal trial get out of the way," explaining
that if the stay were not granted, Kristi "would invoke
her Fifth [Amendment privilege and the Heffingtons would]
have no case" to put on. Counsel for the Mosers and the
Practice responded that, given the likelihood of additional
continuances in the criminal case and an appeal if Kristi
were to be convicted, any stay would not be "short"
and that they had incurred significant costs preparing for
trial and should not be forced to delay defending themselves
against the civil suit.
conclusion of argument, the court denied the motion to stay,
I think there is a good likelihood that more likely so than
not that there may be a finding that [Kristi] . . . may have
waived her Fifth Amendment privilege to a certain extent. I
haven't looked at the depositions. I don't know what
the testimony is, but there's no dispute that she did
give a deposition in this matter regarding the issue -
surrounding the issues in this case, and that to a certain
extent, from what I hear from counsel, the allegations in
this case relate somewhat to the allegations in the criminal
There is no guarantee when the criminal case is going to go
forward when scheduled. I think the criminal case was
scheduled previously in this matter and got continued. I have
the criminal case here. It doesn't look like this
criminal case is specially assigned to any judge, so there is
extensive discovery, extensive documents in this case that
may make this case go beyond the usual two- or three-day
trial. That may continue it.
I just say all this to say you don't have a guarantee
that the [criminal] case is going to go forward on the date
that it is currently assigned. This is a civil case and it
could be continued. The civil case could be bumped further
and further and further along. I do find that the motion is
filed somewhat late since you knew that she was indicted
For those reasons and the extensive discovery and preparation
on the part of the defendant[s], just to note you were just
in pretrial where defense counsel noted that as far as the
documents they have in this case for exhibits, it's over
a hundred documents in this matter. The civil case was
specially assigned to this member of the bench. For those
reasons, because there's no guarantee that the criminal
case will go forward when . . . it's supposed to happen,
I'm going to deny the motion to stay in this case.
If [Kristi] does invoke her Fifth Amendment right in the
civil case, a jury is able to take that evidence and draw
reasonable inferences from that evidence. Those are things
that she has to consider and I'm going to deny the motion
19, 2017, the first day of trial, judgment was entered in
favor of the Mosers. This timely appeal followed.
the Fifth Amendment to the United States Constitution,
"No person . . . shall be compelled in any criminal case
to be a witness against himself." U.S. Const. Amend. V.
The Fifth Amendment applies to the States through the
Fourteenth Amendment. See Malloy v. Hogan, 378 U.S.
1, 6 (1964).
order to invoke successfully the protection of the Fifth
Amendment, an individual's statement must be compelled,
testimonial, and self-incriminating." In re Ariel
G., 383 Md. 240, 244 (2004) (citing Fisher v. United
States, 425 U.S. 391, 408 (1976)). It is
well-established that the privilege against
self-incrimination extends to witnesses in civil litigation:
"[I]n a civil case the [F]ifth [A]mendment . . .
protects a witness from being required to make disclosure,
otherwise compellable in the trial court's contempt
power, which could incriminate him [or her] in a later
criminal prosecution." Whitaker v. Prince
George's County, 307 Md. 368, 385 (1986) (citing 8
John H. Wigmore, Wigmore on Evidence § 2254 at
331 (McNaughton rev. ed. 1961)). See also Lefkowitz v.
Turley, 414 U.S. 70, 77 (1973) (the Fifth Amendment
"not only protects the individual against being
involuntarily called as a witness against himself in a
criminal prosecution but also privileges him not to answer
official questions put to him in any other proceeding, civil
or criminal, formal or informal, where the answers might
incriminate him in future criminal proceedings"). In a
criminal prosecution, a party's invocation of the
privilege may not be used against her. However, "the
prevailing rule [is] that the Fifth Amendment does not forbid
adverse inferences against parties to civil actions when they
refuse to testify . . . ." Baxter v.
Palmigiano, 425 U.S. 308, 318 (1976) (citing Wigmore
§ 2272, at 439); see also Long v. Long, 141
Md.App. 341, 349 (2001).
appeal, the Heffingtons contend the circuit court abused its
discretion by denying their motion to stay because it did not
properly weigh Kristi's constitutional privilege against
self-incrimination against the ...