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Moser v. Heffington

Court of Appeals of Maryland

August 16, 2019

RONALD F. MOSER, et al.
v.
KRISTI HEFFINGTON, et al.

          Argued: April 8, 2019

          Circuit Court for Prince George's County Case No. CAL16-07681

          Barbera, C.J. [*] Greene, McDonald, Watts, Hotten, Getty, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

          OPINION

          RAKER, J.

         At the heart of this case is whether a plaintiff in a civil lawsuit, a defamation action, who is also the defendant in a related criminal case, is entitled to a stay of the civil lawsuit she initiated pending resolution of the criminal case. Petitioners, Ronald F. Moser, Anne M. Moser, and Ronald F. Moser, D.D.S., P.A. ("the Mosers"), appeal from the Court of Special Appeals's reversal of a judgment in the Circuit Court for Prince George's County granting judgment at the end of plaintiff's case in favor of the Mosers. Before the Court of Special Appeals, respondents Kristi and Matthew Heffington ("the Heffingtons") argued that the circuit court abused its discretion by denying their motion to stay the civil proceeding because it did not weigh properly Mrs. Heffington's constitutional protection against self-incrimination against the Mosers' interest in an expeditious trial of the claims against them. The Court of Special Appeals agreed with the Heffingtons, holding that the trial court abused its discretion in not granting the stay, reversed, and remanded the matter for further proceedings. Heffington v. Moser, 238 Md.App. 509, 192 A.3d 900 (2018). We granted the Mosers' petition for a writ of certiorari to answer the following questions:

1. Did the trial court abuse its discretion in denying respondents' motion to stay the civil proceedings in this defamation action pending resolution of the criminal proceedings pending against petitioner?
2. Did employee waive her Fifth Amendment privilege in the civil action by testifying at her deposition and providing other discovery responses without invoking the privilege after she was on notice that the police were investigating her for embezzlement and identity theft?
3. Given that employee had already answered questions at her deposition concerning acts of embezzlement and identity theft, did employee fail to preserve for review the denial of a stay of the civil action where she failed to proffer the questions as to which she intended to invoke her right to silence-which was necessary to determine if she could validly exercise the privilege or had waived it?
4. Did the Court of Special Appeals unnecessarily decide a constitutional question, i.e., whether the trial court had failed to fully consider employee's Fifth Amendment right by not granting a stay of her civil action, after it learned that employee had been convicted of the very conduct that formed the basis for dentist's alleged defamation against her, which rendered moot her defamation claim?

         We shall hold that the trial court did not abuse its discretion in denying the Heffingtons' motion to stay the civil proceedings, and we shall reverse the judgment of the Court of Special Appeals.

         I. Procedural History

         On March 21, 2016, respondents Kristi and Matthew Heffington filed in the Circuit Court for Prince George's County an eleven-count Complaint against petitioners Ronald F. Moser, Anne M. Moser, and Ronald F. Moser, D.D.S., P.A. The Complaint alleged defamation per se, malicious use of process, tortious interference with prospective business advantage, tortious interference with contractual relations, and civil conspiracy, all based upon the Mosers' allegedly false statements to the police, to the dental practice's insurer, and to others. The essence of the statements was that Kristi Heffington stole money from the dental practice and committed identity fraud.

         Following the circuit court's denial of the Moser defendants' motion to dismiss the Complaint, the parties engaged in discovery, including interrogatories and depositions. The circuit court set a trial date of June 19-22, 2017, and Mrs. Heffington was deposed on November 14, 2016. On February 16, 2017, Mrs. Heffington was indicted by the Grand Jury for Prince George's County for the same events underlying the defamation action. She was charged with a theft scheme of $10, 000 to under $100, 000 and four counts of fraud by identity theft. Two further indictments-for related crimes in the same transactions-followed.

         On June 13, 2017, the Heffingtons filed a motion to stay the civil action. They argued that Mrs. Heffington's testimony in the civil action would implicate her Fifth Amendment right against self-incrimination in her criminal case and that she therefore could not present her defamation action before she resolved her criminal case. The circuit court denied the motion, and the matter proceeded to trial before a jury. The Heffingtons waived opening statement and presented absolutely no evidence. They moved for a mistrial, citing the arguments from their motion to stay. The trial court denied the mistrial motion, and the Mosers reserved opening statements and then moved for judgment on all claims. The court granted judgment in favor of all defendants on all counts.

         The Heffingtons filed an appeal in the Court of Special Appeals on July 5, 2017. On July 19, 2018, Mrs. Heffington pled guilty to identity fraud, making a false statement in an insurance claim, and conspiracy to commit identity theft, criminal offenses arising from the same facts in this civil action. The Court of Special Appeals vacated the judgment of the Circuit Court for Prince George's County, holding, inter alia, that the trial court abused its discretion in denying the Heffingtons' motion to stay the proceedings. Id., 238 Md.App. at 541, 192 A.3d at 918. We granted the Mosers' Petition for Writ of Certiorari. Moser v. Heffington, 462 Md. 260, 199 A.3d 693 (2018).

         II. Factual Background

         Mrs. Heffington was an employee of Ronald F. Moser, D.D.S., P.A., a family dental practice. She held the position of office manager. She was responsible for depositing all cash and checks in the practice's business account, balancing the daily transactions, and providing Dr. Moser with a daily report on revenue. In April 2015, Dr. Moser fired Mrs. Heffington for stealing money from the practice. The Mosers accused her of using the Visa terminal at the practice to process and later refund to herself charges on medical credit cards she obtained in her name and in the names of family members-without their knowledge or consent. Dr. Moser reported Mrs. Heffington's thefts to the City of Bowie Police Department and to the practice's insurer. Five days later, Mrs. Heffington's cousin, Randall Tracey, reported to the Anne Arundel County Police Department that Mrs. Heffington stole his identity and used it to apply for a $10, 000 medical loan. He reported also that she stole his son's identity and used it to apply for a medical credit card.

         Nearly one year later, in March 2016, the Heffingtons filed the eleven-count civil lawsuit underlying this appeal. The circuit court scheduled the case for a four-day trial, from June 19-22, 2017.

         As part of the discovery process, Mrs. Heffington sat for a seven-hour deposition in November 2016. She did not invoke her Fifth Amendment privilege against self-incrimination and answered numerous inculpatory questions. She testified that three weeks before she was fired, Mr. Tracey's ex-wife asked her about an issue with Mr. Tracey's credit report. Mrs. Heffington said she learned from that conversation that she was accused of stealing Mr. Tracey's identity. Mrs. Heffington testified that she obtained medical credit cards in her own name and in the names of various family members, made transactions using those cards, and used the practice's Visa terminal to refund the transactions. She also testified about loans Dr. Moser extended to her and dental insurance claims she made on behalf of her aunt, who was never a patient of the practice. She denied any wrongdoing, claiming that the transactions were proper and were made with the consent of her family members and Dr. Moser.

         Following Mrs. Heffington's indictment, the Heffingtons and Mosers continued civil discovery. The Heffingtons deposed Dr. Moser in March 2017, and the parties attended an unsuccessful mediation in May.

         On June 7, 2017, the court postponed the criminal trial at the State's request. On June 13 (six days before the civil trial), the Heffingtons filed a motion to stay the civil proceedings, requesting that the court stay the civil proceedings pending the outcome of the criminal case. At the motion hearing, the Heffingtons requested a "short stay just to let the criminal trial get out of the way," explaining that Mrs. Heffington's testimony in the civil action would implicate her Fifth Amendment privilege against self-incrimination and that without the stay, she would not be able to present her case. The Heffingtons noted that because the statute of limitations in a defamation action is one year, see Md. Code (1974, 2013 Repl. Vol.), § 5-105 of the Courts and Jud. Proc. Art., they had no choice but to file suit in 2016.

         Opposing the stay, the Mosers argued that the motion was untimely (coming just days prior to trial) and that they had incurred significant costs preparing for trial and should not be forced to delay defending themselves against the civil suit. Significantly, they argued that Mrs. Heffington had waived her Fifth Amendment privilege by testifying without raising her privilege in her deposition and engaging in discovery after she was indicted. They maintained that Mrs. Heffington had been free not to file suit, could dismiss her suit, could attempt to prove her case through other evidence, or could testify at the civil trial but invoke her Fifth Amendment privilege on a question by question basis. They asserted that, given the likelihood of additional continuances in the criminal case and an appeal if a jury convicted Mrs. Heffington, any stay would not be "short."

         The trial court denied the motion to stay, ruling as follows:

"I think there is a good likelihood . . . that there may be a finding that [Mrs. Heffington] 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, 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 [Mrs. Heffington] 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 ...

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