RONALD F. MOSER, et al.
KRISTI HEFFINGTON, et al.
Argued: April 8, 2019
Circuit Court for Prince George's County Case No.
Barbera, C.J. [*] Greene, McDonald, Watts, Hotten,
Getty, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.
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
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
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.
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.
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.
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.
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).
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
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.
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.
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.
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.
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."
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
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 ...