Heffington v. Moser, 192 A.3d 900

Background

Kristi and Matthew Heffington sued Dr. Ronald Moser, his wife, and his dental practice for defamation, malicious use of process, tortious interference, and conspiracy based on allegations that the Mosers reported Kristi to police and insurer for theft/identity fraud.
Kristi was deposed for seven hours pre-indictment and gave extensive testimony denying wrongdoing; she did not invoke the Fifth Amendment at that deposition.
Months later Kristi was indicted on theft and identity-fraud charges arising from the same events. The criminal trial originally was set before the civil trial but the State obtained a postponement moving the criminal trial to after the civil trial date.
Eight days after the criminal trial was postponed, the Heffingtons moved to stay the civil trial pending resolution of the criminal case; the circuit court denied the stay and the plaintiffs rested without presenting witnesses (they had agreed procedure with defense), the court entered judgment for the Mosers, and the plaintiffs appealed.
The Court of Special Appeals held the circuit court abused its discretion by refusing to balance Kristi’s Fifth Amendment and Article 19 access-to-courts interests against the Mosers’ interest in timely resolution; it vacated judgment and remanded for further proceedings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court abused its discretion by denying a stay of the civil case pending the related criminal prosecution	Heffington: a stay was necessary so Kristi could invoke the Fifth Amendment without forfeiting her civil claim or access to courts	Moser: stay was untimely; defendants have right to timely resolution and would be prejudiced; plaintiff voluntarily sued and cannot use the privilege to delay	Court: trial court failed to balance competing rights; proper balancing would have supported a stay here; denial was an abuse of discretion
Whether Kristi waived the Fifth Amendment by testifying at a pre-indictment deposition	Heffington: pre-indictment deposition did not waive privilege post-indictment because circumstances changed once indicted	Moser: wide-ranging deposition testimony constituted waiver as in Brown	Held: no waiver — an indictment materially changed the risk of self-incrimination, so pre-indictment testimony did not bar invoking the privilege at trial
Whether plaintiffs acquiesced/preserved the right to challenge the denial of stay after agreeing to rest and obtain a ruling	Heffington: they did not acquiesce in judgment; the parties and court followed an agreed procedure to avoid forcing Kristi to testify	Moser: plaintiffs consented to entry of judgment and thus waived review	Held: issue preserved — defendants participated in and did not object to the agreed trial process, so plaintiffs did not acquiesce
Standard for resolving stay requests when a civil plaintiff faces related criminal charges	Heffington: court should balance Fifth Amendment and Article 19 access-to-courts interests against defendant’s interest in timely defense	Moser: plaintiff’s decision to sue limits invoking privilege; public interest in expeditious resolution favors denial	Held: adopt balancing approach (modern trend); protect plaintiff’s constitutional rights unless the civil defendant shows undue prejudice

Key Cases Cited

Malloy v. Hogan, 378 U.S. 1 (U.S. 1964) (Fifth Amendment applies to the states through the Fourteenth Amendment)
Baxter v. Palmigiano, 425 U.S. 308 (U.S. 1976) (adverse inferences allowed in civil cases when a party refuses to testify)
Brown v. United States, 356 U.S. 148 (U.S. 1958) (voluntary testimony can waive the privilege for cross-examination on the same subject matter)
Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir. 1979) (plaintiff entitled to stay of civil discovery/trial to avoid penalizing exercise of Fifth Amendment; dismissal is improper without balancing)
In re Morganroth, 718 F.2d 161 (6th Cir. 1983) (Fifth Amendment waiver is proceeding-specific; changed circumstances may create new grounds for asserting the privilege)
Armstrong v. Tanaka, 228 P.3d 79 (Alaska 2010) (Alaska Supreme Court endorses balancing plaintiff’s Fifth Amendment and access-to-courts rights against defendant’s interest in timely defense)
Ex parte Baugh, 530 So.2d 238 (Ala. 1988) (state supreme court reversed sanctions for plaintiff invoking Fifth Amendment and required balancing; stay appropriate when discovery complete)
Lefkowitz v. Turley, 414 U.S. 70 (U.S. 1973) (Fifth Amendment privilege applies in civil as well as criminal proceedings)