Heffington v. Moser
| Decision Date | 30 August 2018 |
| Docket Number | No. 922, Sept. Term, 2017,922, Sept. Term, 2017 |
| Citation | 238 Md.App. 509,192 A.3d 900 |
| Parties | Kristi HEFFINGTON, et al. v. Ronald F. MOSER, et al. |
| Court | Court of Special Appeals of Maryland |
Argued by: Timothy E. Fizer (Fizer, LLC, Towson, MD, Michael L. Sandul, Michael L. Sandul PA, Odenton, MD), all on the brief, for Appellant.
Argued by: Anne K. Howard (Budow and Noble PC, Terrell N. Robert, III, Roberts & Wood, Riverdale, MD), all on the brief, for Appellee.
Panel: Eyler, Deborah S., Leahy, Alan M. Wilner (Senior Judge, Specially Assigned), JJ.
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.
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...
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Moser v. Heffington
...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 abu......
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