Moser v. Heffington

Ronald F. Moser, et al. v. Kristi Heffington, et al., No. 62, September Term 2018 Opinion by Raker, J. (Senior Judge, Specially Assigned) FIFTH AMENDMENT – WAIVER OF PRIVILEGE AGAINST SELF- INCRIMINATION – For the purpose of the Fifth Amendment privilege against self- incrimination, a deposition and the trial for which it is given are part of the same “proceeding.” Thus, when the plaintiff waived her Fifth Amendment privilege at a deposition, she waived the privilege to the same extent at her subsequent trial. CIVIL PROCEDURE – MOTION TO STAY – When a plaintiff in a civil case moves to stay her civil case pending parallel criminal proceedings against her, the court must consider the relevant rights and interests of the parties and may consider the inconvenience to the court’s docket. The Circuit Court for Prince George’s County did not abuse its discretion when it concluded that the plaintiff had waived her Fifth Amendment privilege against self-incrimination, considered the defendants’ right to timely resolution of claims against them, and denied the motion.

CIVIL PROCEDURE – MOTION FOR JUDGMENT – Where the plaintiffs consented to an abbreviated trial proceeding in which the plaintiffs presented no evidence, the Circuit Court for Prince George’s County did not err in granting the defendant’s motion for judgment pursuant to Maryland Rule 2-519. Circuit Court for Prince George’s County Case No. CAL16-07861 Argued: April 8, 2019 IN THE COURT OF APPEALS OF MARYLAND No. 62 September Term, 2018 ______________________________________ RONALD F. MOSER, et al. v. KRISTI HEFFINGTON, et al. ______________________________________ Barbera, C.J. Greene*, McDonald, Watts, Hotten, Getty, Raker, Irma S. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Raker, J. ______________________________________ Filed: August 16, 2019 Pursuant to Maryland Uniform Electronic Legal Greene, J., now retired, participated in the Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. hearing and conference of this case while an 2019-10-17 13:57-04:00 active member of this Court; after being recalled pursuant to the Maryland Constitution, Article IV, Section 3A, he also participated in the Suzanne C. Johnson, Clerk decision and adoption of this opinion. ______________________________________________________________________________ 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 2 ______________________________________________________________________________ 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). 3 ______________________________________________________________________________ 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 4 ______________________________________________________________________________ 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 5 ______________________________________________________________________________ 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 6 ______________________________________________________________________________ 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 I’m going to deny the motion to stay.” As indicated, the trial commenced, the circuit court granted judgment in favor of the Mosers, and the Heffingtons filed a timely notice of appeal.

III

The Court of Special Appeals Opinion The Court of Special Appeals held that the circuit court abused its discretion in denying the Heffingtons’ motion to stay the civil case. Heffington v. Moser, 238 Md. App. at 509 , 518 192 A.3d at 905 . Specifically, the Court of Special Appeals concluded that Mrs. Heffington did not waive her Fifth Amendment privilege against self-incrimination when she gave inculpatory testimony during her deposition prior to the February 2017 indictment. Heffington, 238 Md. App. at 532 , 192 A.3d at 913 .

The court held also that the circuit court erred when it failed to balance explicitly Mrs. Heffington’s right to assert her Fifth Amendment privilege and her right of access to the courts under the Maryland Declaration of Rights against the Mosers’ right to timely resolution of the claims against them without harm to their defense. Id. at 540 , 192 A.3d at 917 . The Mosers argued in the Court of Special Appeals that Mrs. Heffington waived her Fifth Amendment privilege in two ways: first, she did not take the witness stand and invoke 7 ______________________________________________________________________________ the privilege, and second, she waived her Fifth Amendment privilege by testifying to the acts at issue in her deposition before she was indicted. Id. at 527 , 192 A.3d at 910 .

The court held that as to the procedural default, i.e., that she did not invoke her privilege properly, the Mosers did not object below, and hence, that argument was waived and not preserved for appellate review. Id. at 526 , 192 A.3d at 909 . As to the waiver of the privilege by testifying at the deposition, the court held Mrs. Heffington did not waive her Fifth Amendment privilege. The court held that “[i]n light of the uncertainty regarding potential criminal charges at the time of Kristi’s deposition and the change in circumstances brought about by her indictment, we hold that Kristi did not waive her Fifth Amendment privilege, for purposes of trial, by testifying before trial at her pre-indictment deposition.” Id. at 532 , 192 A.3d at 913 .

The Court of Special Appeals acknowledged that if waived, the privilege is waived for the entire “proceeding” in which it was waived. Id. at 529–30, 192 A.3d at 911 . But the court avoided addressing whether a deposition and a trial in the same case are different “proceedings” for Fifth Amendment waiver purposes. The court held that even if they were part of the same proceeding, Mrs. Heffington’s later criminal indictment was a significant change in her circumstance between her deposition testimony and her trial.

Id. at 530–31, 192 A.3d at 912 . The court reasoned as follows: “Although, when she filed suit, Kristi knew that criminal charges might be brought against her, she reasonably could have believed by November 2016 that that might not happen, given the passage of time. When she was indicted in February 2017, the Fifth Amendment calculus changed dramatically. She no longer faced only a possibility of being charged with crimes arising from her employment at the Practice, but the 8 ______________________________________________________________________________ absolute certainty of it. ‘[T]he potential for self-incrimination is greatest’ after an indictment is returned.

And, even if Kristi’s trial testimony merely repeated her deposition testimony, ‘reiteration adds to the credibility of the statement.’” Id. (internal citations omitted). The intermediate appellate court held that the trial court abused its discretion in denying Mrs. Heffington’s motion because the court “did not balance her Fifth Amendment right against self-incrimination and her Article 19 right to access to the courts against the Mosers’ right to a timely resolution of the claims against them without harm to their defense.” Id. at 541 , 192 A.3d at 918 . The Court of Special Appeals elaborated that because the trial court held that Mrs. Heffington did not waive her Fifth Amendment privilege, the court erred by finding that she waived the privilege “to a certain extent” in her deposition testimony.

Id. at 540 , 192 A.3d at 918 . Finally, the intermediate appellate court held that the trial court erred in not considering whether a stay would not merely inconvenience the Mosers but actually would prejudice them. Id. at 542–43, 192 A.3d at 919 . The Court of Special Appeals vacated the judgment of the circuit court in favor of the Mosers.

The intermediate appellate court remanded for the trial court to consider the Mosers’ motion for summary judgment1 because, while the appeal was pending but after 1 The Court of Special Appeals explained as follows: “On May 26, 2017, before the stay was requested, the Mosers filed a motion for summary judgment. The motion remained open on the first day of trial. It was not ruled upon because the Mosers and the court agreed that it (footnote continued . . .) 9 ______________________________________________________________________________ oral argument in the Court of Special Appeals, Mrs. Heffington entered into a plea agreement with the State that concluded the criminal case. We granted certiorari to consider the issues presented.

IV

Arguments of the Parties Before this Court, the Mosers ask that we vacate the judgment of the Court of Special Appeals and reinstate the judgment of the Circuit Court for Prince George’s County. The Mosers argue first that the circuit court did not abuse its discretion in denying the motion to stay. They argue in the alternative that the Heffingtons’ civil suit is moot because Mrs. Heffington pled guilty in the criminal case and that those convictions establish the defense of “truth” as a matter of law. On the merits, they argue that whatever the balancing test, the circuit court balanced properly the competing interests at stake.

They contend that the court considered the parties’ interests in resolving the case, the uncertainty of the length of the stay, the Heffingtons’ late filing of their motion after civil discovery, and the inference the jury could draw from invocation of the Fifth Amendment in a civil trial. They emphasize that the Heffingtons filed their motion to stay months after Mrs. Heffington’s indictment and only six days before the civil trial. They argue that the Heffingtons’ delay prejudiced them would be rendered moot by the grant of the Mosers’ motion for summary judgment. Our decision in this appeal, vacating the judgment in the Mosers’ favor, revives the motion for summary judgment.

We express no opinion about the appropriate outcome of the motion. 10 ______________________________________________________________________________ because the Heffingtons initiated and responded to discovery requests in the interim months, incurring litigation costs for the Mosers. Turning to mootness, the Mosers argue that Mrs. Heffington’s guilty plea in her criminal case mooted the Heffingtons’ civil claim. Mrs. Heffington pled guilty to identity fraud, making a false statement in an insurance claim, and conspiracy to commit identity theft. At her plea hearing, Mrs. Heffington agreed that she used the personal information of Randall Tracey, Dr. Moser, and others to obtain for herself funds from a bank, an insurance company, and the dental practice.

The Mosers argue that her guilty pleas and the underlying admissions of fact form an absolute defense against the Heffingtons’ claim of defamation relating to the same issues, mooting the defamation claims against the Mosers. In response to the holding of the Court of Special Appeals that they waived the right to challenge Mrs. Heffington’s assertion of her Fifth Amendment privilege in the manner in which she did, the Mosers argue that they retain the right to challenge before this Court the improper procedure followed below in asserting the Fifth Amendment privilege. They contend that they did not agree to waive potential defenses and that they “cannot reasonably be penalized for a decision made by the Heffingtons when, in fact, at no point did [Mrs. Heffington] even proffer which questions that, if asked, would likely cause her to invoke the privilege.” The Heffingtons pray that we affirm the judgment of the Court of Special Appeals, asserting that the circuit court erred by failing to weigh the parties’ interests regarding the motion to stay. Beginning with the timeliness of their motion to stay, the Heffingtons argue 11 ______________________________________________________________________________ that their motion was timely because the criminal trial was postponed only the week before the civil trial.

They note that they filed their motion six days after the postponement. Turning to the merits of the circuit court’s decision, the Heffingtons argue that the circuit court failed to balance correctly the competing interests at stake. Specifically, they assert that the circuit court found incorrectly that Mrs. Heffington waived her Fifth Amendment right by testifying at her deposition. Because she was not indicted until after her deposition, they argue, she had no apprehension of criminal testimony and therefore no grounds for asserting a Fifth Amendment privilege.

They note also that the circuit court did not mention in its ruling her right to access the courts. Further, they argue that delay would not harm the Mosers, only inconvenience them. Addressing the Mosers’ arguments, the Heffingtons contend that the Mosers cannot argue against the manner by which Mrs. Heffington asserted herFifth Amendment privilege. The Mosers participated in the abbreviated trial procedure employed below, and the Heffingtons argue that their failure to object to the way Mrs. Heffington asserted the privilege precludes the Mosers from arguing on appeal that she improperly asserted the privilege.

The Heffingtons argue that their civil suit is not moot. Although Mrs. Heffington pled guilty to three criminal charges, they argue that she did not plead guilty to theft. The Heffingtons argue that the nolle prosequi of that count is affirmative evidence that supports their claims that the Mosers defamed Mrs. Heffington when they