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Heffington v. Moser

Court of Special Appeals of Maryland

August 30, 2018

KRISTI HEFFINGTON, ET AL.
v.
RONALD F. MOSER, ET AL.

          Circuit Court for Prince George's County Case No. CAL16-07861

          Eyler, Deborah S., Leahy, Wilner, Alan M. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Eyler, Deborah S., J.

         This 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.

         In the 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").[1] 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.

         While 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.

         As we 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.

         The 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.

         FACTS AND PROCEEDINGS

         Dr. 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 revenue.

         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 loan.

         On 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.

         Kristi 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.

         On August 16, 2016, the court entered a scheduling order, setting the case in for a four-day trial from June 19-22, 2017.

         The Mosers noted Kristi's deposition, and, on November 14, 2016, Kristi was deposed for seven hours.[2] 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.

         On 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.

         Meanwhile, 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.

         On June 7, 2017, at the State's request, the trial date in the criminal case was postponed until August 23, 2017.

         Eight 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 dismissed."

         The 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.

         On June 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.

         At the conclusion of argument, the court denied the motion to stay, opining:

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 case.
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 months ago.
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 to stay.

         On June 19, 2017, the first day of trial, judgment was entered in favor of the Mosers. This timely appeal followed.

         DISCUSSION

         Under 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).

         "In 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).

         In this 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 ...


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