                                         2014 IL App (1st) 133551
                                              No. 1-13-3551
                                                                                       Fifth Division
                                                                                     August 15, 2014


                                            IN THE
                                 APPELLATE COURT OF ILLINOIS
                                   FIRST JUDICIAL DISTRICT


     MARSHALL DAVIES, a Disabled Person,                )     Appeal from the Circuit Court
     by Cook County Public Guardian                     )     of Cook County.
     Robert F. Harris,                                  )
                                                        )
                  Plaintiff-Appellant,                  )
                                                        )     No. 11 P 3699
           v.                                           )
                                                        )
     CARMELITA PASAMBA, EDGARDO                         )
     PASAMBA, and JOCELYN BAKER,                        )     The Honorable
                                                        )     Daniel B. Malone,
                  Defendants-Appellees.                 )     Judge Presiding.


                PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
                Justices McBride and Palmer concurred in the judgment and opinion.

                                              OPINION

¶1         Plaintiff Marshall Davies, age 95, is a disabled person who suffers from dementia and,

        through the public guardian, seeks to recover money that he alleges was wrongfully taken

        from him by the defendants, Carmelita Pasamba, Edgardo Pasamba, and Jocelyn Baker.

        Carmelita Pasamba met Davies in 2007 when he was hospitalized due to hip pain at a

        hospital where she worked as a certified nursing assistant. After Davies was discharged from

        the hospital, he hired Carmelita to be his caregiver and she began working in that capacity;

        Carmelita obtained a power of attorney from Davies on April 24, 2008. Carmelita introduced

        Davies to her sister, Jocelyn Baker, a “CNA, a certified medical aide,” who also helped as
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        Davies’ caregiver. Defendant Edgardo Pasamba is the husband to Carmelita and served as a

        driver for Davies.

¶2          Catholic Charities Older Adult Services, a nonprofit agency that receives and assesses

        reports of suspected abuse, neglect, or financial exploitation of adults age 60 or over in

        Illinois, received two reports of suspected financial exploitation of Davies by Carmelita. 1

        Subsequently, on June 23, 2011, Catholic Charities petitioned for the appointment of a

        guardian for Davies, alleging that he has “severe dementia” and “has named an agent under

        power of attorney who has not been forthcoming with an accounting of her financial actions

        on behalf of Mr. Davies.” On July 7, 2011, the probate court appointed the public guardian as

        temporary guardian of Davies.

¶3          On September 11, 2011, the public guardian filed a citation to discover assets under

        section 16-1 of the Probate Act of 1975 (755 ILCS 5/16-1 (West 2010)) 2 against the Pasamba

        family, including the three defendants in the case at bar; Carmelita’s supervisor at the

        hospital where she works; the attorney who prepared Davies’ power of attorney and will and

        trust documents; and the health care organization operating the hospital. The public guardian

        deposed defendants Carmelita, Edgardo, and Jocelyn, none of whom invoked their privilege

        against self-incrimination during the deposition. On April 26, 2012, the public guardian filed




            1
               Neither the parties who reported the suspected abuses nor the date Catholic Charities
     Older Adult Services received the reports appears in the record on appeal.
             2
               Section 16-1 of the Probate Act provides that “the court shall order a citation to issue
     for the appearance before it of any person whom the petitioner believes (1) to have concealed,
     converted or embezzled or to have in his possession or control any personal property, books of
     account, papers or evidences of debt or title to lands which belonged to a person whose estate is
     being administered in that court or which belongs to his estate or to his representative or (2) to
     have information or knowledge withheld by the respondent from the representative and needed
     by the representative for the recovery of any property by suit or otherwise.” 755 ILCS 5/16-1(a)
     (West 2010).
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        a citation to recover assets under section 16-1 of the Probate Act (755 ILCS 5/16-1 (West

        2010)) against the Pasamba family, the attorney, and the hospital.

¶4         In April of 2013, a Cook County grand jury indicted defendants on criminal charges for

        theft and financial exploitation of Davies and also indicted Carmelita for forgery of a

        doctor’s note on Davies’ mental condition. On June 26, 2013, defendants moved to stay the

        citation to recover assets in the instant case until their pending criminal cases were resolved.

        They claimed that if the court allowed the citation proceedings to proceed, they would violate

        their fifth amendment privilege against self-incrimination.

¶5         On August 21, 2013, the probate division of the circuit court of Cook County granted a

        stay of the recovery citation proceedings with respect to defendants; the citation proceedings

        against the other members of the Pasamba family, the attorney, and the hospital were not

        stayed. The public guardian moved to reconsider and that motion was denied. On November

        15, 2013, the public guardian filed a notice of interlocutory appeal before the appellate court

        under Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 2010), seeking reversal of the

        orders denying the public guardian’s motions to reconsider and to lift the stay. For the

        reasons that follow, we reverse and remand.

¶6                                          BACKGROUND

¶7                                       I. Adjudicated Disabled

¶8         Catholic Charities Older Adult Services, a nonprofit agency that evaluates reports of

        suspected abuse, neglect, or financial exploitation of adults age 60 or over in Illinois,

        received two reports of suspected financial exploitation of Davies by Carmelita, whom he

        hired as caregiver in 2007 after his discharge from the hospital. On June 23, 2011, Catholic

        Charities petitioned for the appointment of a guardian for Davies, alleging that he has “severe


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          dementia” and “has named an agent under power of attorney who has not been forthcoming

          with an accounting of her financial actions on behalf of Mr. Davies.” On July 7, 2011, the

          probate court appointed the public guardian as temporary guardian of Davies. On October 12,

          2011, the probate court found Davies incompetent and appointed the public guardian as

          plenary guardian of his estate and person.

¶9                              II. Petition for a Citation to Discover Assets

¶ 10         On September 11, 2011, the public guardian filed a petition for a citation to discover

          assets. The public guardian also filed a temporary restraining order and a preliminary

          injunction pursuant to section 11-101 of the Code of Civil Procedure (735 ILCS 5/11-101

          (West 2010)) to protect Davies’ assets from Carmelita, which the court entered on September

          15, 2011, and on September 26, 2011, respectively. According to Carmelita’s accounting,

          provided to the probate court on a motion to vacate the temporary restraining order,

          Carmelita, her sister Jocelyn, and her son Dennis withdrew $112,381.58 for loans from

          Davies’ accounts in 2008. Carmelita also testified at the hearing on the motion to vacate that

          she withdrew $9,425.21 in 2009 and $24,000 in 2010 of Davies’ money for loans to herself

          and other family members but did not pay the money back.

¶ 11         Next, the public guardian deposed Carmelita, Edgardo, and Jocelyn, who did not assert

          their fifth amendment right to refuse to answer questions that could incriminate them.

¶ 12                                            A. Carmelita

¶ 13         Carmelita testified that she met Davies in 2007 when he was a patient at the hospital

          where she worked as a certified nursing assistant. After his discharge, she and Jocelyn started

          working as caregivers for Davies.




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¶ 14         Carmelita testified that Davies requested that she have his power of attorney and desired

          to execute a new will with a trust. She introduced Davies to Alfonso Bascos, an attorney, in

          April of 2008. Bascos prepared the power of attorney and will and trust documents, which

          Davies signed on April 24, 2008, and April 27, 2008, respectively. Carmelita believed that

          Davies was “competent” at that time, but Bascos was concerned about Davies’ level of

          alertness. Consequently, Carmelita asked Dr. Simovic 3 to write a note stating that Davies was

          competent. Dr. Simovic provided her with the note on April 30, 2008, which she gave to

          Bascos.

¶ 15         Davies’ previous will had devised most of his estate to the Salvation Army; however, the

          new pour-over will transferred Davies’ assets to a new trust and devised $50,000 to the

          Salvation Army, $100,000 to Carmelita, and $25,000 each to her daughter Donabel, her

          husband Edgardo, and her sister Jocelyn. The new will also designated Edgardo as executor.

¶ 16         Carmelita testified that she received $50,000 a year as a salary for her duties under the

          power of attorney for Davies, and she received a $50,000 bonus for assisting him in selling

          his condominium in 2008. In addition, Davies gave her a $30,000 loan for home repairs on

          May 8, 2008, and Davies loaned her money to pay him back when she could.

¶ 17         Carmelita testified that Edgardo served as Davies’ driver but was paid “maybe three

          times” and received “like $500.” Dennis, her son, also received a $15,000 loan from Davies

          but never paid any money back; Dennis received a $5,000 check on October 15, 2008, a

          $5,000 check on October 22, 2008, and a $5,000 check on May 20, 2010. One of the three

          checks was an “accidental check” Carmelita thought she wrote from her own account instead

          of Davies’ account but she did not correct her mistake.


             3
                 Dr. Simovic’s first name does not appear in the record on appeal.
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¶ 18                                            B. Edgardo

¶ 19         In Edgardo’s discovery deposition, he testified that he served as Davies’ driver but did

          not receive a salary. However, he occasionally received money for driving Davies, and he

          received a 2000 Buick that he did not pay for from Davies in 2008. Edgardo knew Carmelita

          received money to remodel their house but he was unsure where it came from or how much

          she received.

¶ 20                                             C. Jocelyn

¶ 21         In Jocelyn’s discovery deposition, she testified that she first noticed signs of Davies’

          dementia in 2009. She obtained three loans from Davies: $10,000 on May 11, 2008; $15,000

          on July 19, 2008; and $8,000 on September 22, 2008, to repair her house. In January of 2011,

          she began repaying Davies $100 a month. She had agreed to pay more monthly but did not

          have enough money.

¶ 22                                   III. Citation to Recover Assets

¶ 23         On April 26, 2012, the public guardian filed a citation to recover assets under section 16-

          1 of the Probate Act (755 ILCS 5/16-1 (West 2010)) against Carmelita, Edgardo, and

          Jocelyn; Carmelita’s son Dennis and daughter Donabel; attorney Bascos; and the hospital.

          The public guardian alleged that the Pasamba family wrongfully appropriated over $536,682

          of Davies’ assets between 2008 and 2011 and asked the court to award Davies $536,682 in

          damages. The public guardian alleged that Davies was “severely demented and incapable of

          entering into contracts or making financial transactions at the time he purportedly executed a

          power of attorney to Carmelita Pasamba on April 24, 2008,” based on an examination and

          evaluation of Davies by a licensed psychiatrist, Dr. Geoffrey Shaw.




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¶ 24                                        IV. Criminal Charges

¶ 25         In April of 2013, a Cook County grand jury indicted Carmelita, Edgardo, and Jocelyn for

          theft and financial exploitation of Davies and also indicted Carmelita for forgery. The forgery

          indictment charged that Carmelita prepared a medical note and claimed it was from Dr.

          Simovic.

¶ 26                                          V. Motion to Stay

¶ 27         On June 26, 2013, Carmelita, Edgardo, and Jocelyn moved to stay the recovery citation

          proceedings pending the outcome of their criminal trial. They claimed that if the court

          allowed the citation proceedings to proceed, they would violate their fifth amendment

          privilege against self-incrimination. They also claimed that they are unable to compensate

          Davies if judgment was entered against them.

¶ 28                                               VI. Stay

¶ 29         On August 21, 2013, the probate court granted a stay based on the following factors: (1)

          the posture of the criminal case, (2) the extent to which defendants’ fifth amendment rights

          are implicated, (3) the public interest, (4) the plaintiff’s interest in prompt resolution of the

          civil proceeding, (5) the overlap in subject matter of the criminal and civil proceedings, and

          (6) the government’s involvement as a party in the criminal and civil cases.

¶ 30         The probate court found that five out of six legal factors favored a stay. First, defendants

          risk compromising their criminal case if a stay is denied because the criminal indictment and

          the recovery citation contain similar subject matter. Second, the issues in the criminal and

          civil cases overlap and, therefore, self-incrimination is more likely. Third, no significant

          public harm would occur if the stay was issued. Fourth, Davies’ interest in prompt resolution

          of the civil proceeding weighs against a stay but the delay will not financially prejudice him


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          due to his settlement funds from the hospital. 4 Fifth, the defendants’ conduct in both cases is

          identical and, therefore, the subject matter in the criminal and civil proceedings overlap.

          Sixth, two government offices brought the criminal and civil cases against defendants.

¶ 31          The probate court granted the stay, although the citation proceedings against Carmelita’s

          son Dennis, her daughter Donabel, attorney Bascos, and St. Joseph Hospital were not stayed.

          The public guardian moved to reconsider and that motion was denied. On November 15,

          2013, the public guardian filed a notice of interlocutory appeal as a matter of right under

          Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26, 210), seeking reversal of the orders

          denying the public guardian’s motions to reconsider and to lift the stay. “[A] motion

          requesting a court to stay its own proceedings pending resolution of a related case is in effect

          a request for an injunction, and a decision either granting or denying such a motion is

          immediately appealable under Rule 307(a)(1).” Disciplined Investment Advisors, Inc. v.

          Schweihs, 272 Ill. App. 3d 681, 691 (1995). As a result, this court has jurisdiction over

          Davies’ interlocutory appeal pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Feb. 26,

          2010). This appeal follows.

¶ 32                                            ANALYSIS

¶ 33          On appeal, the public guardian challenges the probate court’s issuance of a stay of the

          recovery citation proceedings. The public guardian argues that the probate court erroneously

          issued a stay because (1) the privilege against self-incrimination does not protect information

          previously disclosed under oath, (2) the stay unfairly prevents the public guardian from using

          defendants’ admissions to establish fraud, and (3) the probate court abused its discretion in

          entering a stay of the recovery citation proceedings.

              4
                On July 30, 2013, the court approved a settlement agreement between Davies and the
       hospital and dismissed the hospital as a respondent in the proceedings.
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¶ 34         Defendants have not filed a brief, so the instant appeal is taken for consideration on the

          record and Davies’ brief only. In re Petition of Howard, 343 Ill. App. 3d 1201, 1204 (2003).

¶ 35                                       I. Standard of Review

¶ 36          The entry of a stay maintains the case in its existing state without ruling on the dispute

          between the parties (Kaden v. Pucinski, 263 Ill. App. 3d 611, 615 (1994)), and it is within the

          probate court’s discretion (Jacksonville Savings Bank v. Kovack, 326 Ill. App. 3d 1131, 1136

          (2002)). When a criminal action is pending during the course of a civil action, a court can

          stay the civil action to protect a party’s right against self-incrimination. People ex rel.

          Hartigan v. Kafka & Sons Building & Supply Co., 252 Ill. App. 3d 115, 119 (1993).

          However, the party moving for a stay “must justify it by clear and convincing circumstances

          outweighing potential harm to the party against whom it is operative.” Zurich Insurance Co.

          v. Raymark Industries, Inc., 213 Ill. App. 3d 591, 595 (1991).

¶ 37         When evaluating whether to stay a civil suit to prevent compulsory self-incrimination,

          this court applies the abuse of discretion standard of review. Jacksonville Savings Bank, 326

          Ill. App. 3d at 1137. An abuse of discretion occurs when “the ruling is arbitrary, fanciful, or

          unreasonable, or when no reasonable person would take the same view.” Bovay v. Sears,

          Roebuck & Co., 2013 IL App (1st) 120789, ¶ 26.

¶ 38                                  II. The Fifth Amendment Right

¶ 39         The fifth amendment to the United States Constitution provides that no person "shall be

          compelled in any criminal case to be a witness against himself." U.S. Const., amend. V. The

          fifth amendment does not, however, mandate a stay of civil proceedings pending the outcome

          of similar or parallel criminal proceedings. See People ex rel. Hartigan v. Kafka & Sons

          Building & Supply Co., 252 Ill. App. 3d 115, 119 (1993) ("Where a criminal action is


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          simultaneously pending with a civil action, courts may stay the civil proceeding based on the

          fifth amendment until the resolution of the criminal matter." (Emphasis added.)); Keating v.

          Office of Thrift Supervision, 45 F.3d 322, 324 (9th Cir. 1995) (the Constitution does not

          require a stay of civil proceedings pending the outcome of criminal proceedings); Nowaczyk

          v. Matingas, 146 F.R.D. 169, 174 (N.D. Ill. 1993) ("A stay of civil discovery is sometimes

          appropriate to protect competing interests arising from parallel civil and criminal proceedings

          involving the same subject matter." (Emphasis added.)).

¶ 40         However, this is not a case where the defendants are completely hamstrung trying to

          defend themselves in a civil proceeding because they might incriminate themselves in a

          pending criminal investigation or case. Here, defendants have already shown through their

          deposition testimony, where they did not invoke their fifth amendment rights, that they took

          advantage of the plaintiff, who suffers from dementia. The information that they already

          provided in the civil case caused their criminal indictment.

¶ 41                                III. Previously Disclosed Information

¶ 42         The public guardian argues that the privilege against self-incrimination does not protect

          previously disclosed information and, therefore, the public guardian is entitled to use

          defendants’ discovery deposition testimony in the recovery citation proceedings. “A party

          who chooses to testify in a civil case in spite of the risk that a prosecutor later might seek to

          use his statements against him in a criminal prosecution involving the same subject matter is

          hard put to complain about the subsequent denial of a stay.” Microfinancial, Inc. v. Premier

          Holidays International, Inc., 385 F.3d 72, 78-79 (1st Cir. 2004).

¶ 43         For instance, in Microfinancial, Inc., even though one defendant had already given

          extensive deposition testimony, the defendants moved to stay their civil case, claiming that


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          they were subjects of a grand jury investigation that was related to the plaintiff’s civil claims.

          Microfinancial, Inc., 385 F.3d at 76-78. The court found that there was no need to stay the

          civil proceedings because one defendant had already given extensive testimony and,

          therefore, a stay would not significantly burden the defendants’ fifth amendment rights.

          Microfinancial, Inc., 385 F.3d at 78. The court reasoned that “[b]y failing to invoke his Fifth

          Amendment privilege, [the defendant] likely waived the privilege with respect to the subject

          matter of his deposition testimony for the duration of the proceeding in which that testimony

          was given.” Microfinancial, Inc., 385 F.3d at 78.

¶ 44         The fifth amendment right against self-incrimination does not apply to the testimony

          already given in the instant case. Like Microfinancial, Inc., this case involves defendants

          who answered questions without asserting their right against self-incrimination and gave

          extensive testimony in their depositions and, in Carmelita’s case, before the probate court.

          According to Carmelita’s accounting, Carmelita, her sister Jocelyn, and her son Dennis

          withdrew $112,381.58 in loans from Davies in 2008. Carmelita received $9,425.21 in loans

          in 2009 and $24,000 in 2010. She received a $50,000 bonus for assisting Davies in selling his

          condominium in 2008 and a $30,000 loan for home repairs on May 8, 2008. Edgardo testified

          that he occasionally received money for driving Davies, and he was given a 2000 Buick by

          Davies. Jocelyn testified that she received three loans of $10,000, $15,000, and $8,000 to

          repair her house from Davies. Defendants cannot use a stay to “preserve what [the party]

          already has surrendered” in the civil case. Microfinancial Inc., 385 F.3d at 79.

¶ 45         Thus, the previously disclosed information could not provide a basis for staying the

          recovery citation proceedings.




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¶ 46                         IV. Use of Defendants’ Testimony to Prove Fraud

¶ 47         Additionally, the public guardian argues that a stay of civil proceedings unfairly prevents

          the public guardian from using defendants’ deposition testimony to establish fraud.

¶ 48         In Cardiel v. Warren, 191 Ill. App. 3d 816, 821 (1989), the court found that it was proper

          to admit into evidence a defendant’s answers to interrogatories and answers to questions in a

          pretrial oral deposition. The court reasoned that “answers given in discovery depositions may

          be used as admissions made by a party *** in the same manner and to the same extent as any

          other admission made by that person” and “when relevant to issues in the case, admissions by

          a party are admissible as substantive evidence of the truth of the statements made or of the

          existence of any facts which they have a tendency to establish.” Cardiel, 191 Ill. App. 3d at

          821.

¶ 49         Like the defendant in Cardiel, Carmelita admitted to making transactions to benefit

          herself and her family after obtaining a power of attorney from Davies. For example, during

          the time Carmelita acted under the power of attorney, she received a $30,000 loan for home

          repairs, her sister Jocelyn received a $33,000 loan for home repairs, and her son Dennis

          received a $15,000 loan from Davies. “A power of attorney gives rise to a general fiduciary

          relationship between the grantor of the power and the grantee as a matter of law” and “the

          presumption is that a transaction between the dominant and servient parties which profits the

          dominant party is fraudulent.” White v. Raines, 215 Ill. App. 3d 49, 59 (1991). Due to

          defendants’ extensive deposition testimony, the public guardian has evidence to establish the

          fraud. Therefore, we agree with Davies that the stay prevents the public guardian from using

          defendants’ deposition testimony to prove fraud.




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¶ 50                                    V. The Trial Court's Decision

¶ 51         The trial court considered six factors in its decision-making process in granting the stay.

          However, these factors need not be considered when defendants have already given their

          testimony in extensive depositions because again, the fifth amendment right against self-

          incrimination does not apply to testimony already given.

¶ 52         Ordinarily, a court will consider certain factors before a defendant has testified or

          provided evidence of his wrongful conduct in determining whether a stay should be granted

          when a civil proceeding is pending and there is a criminal investigation pending or likely to

          occur. United States v. Kordel, 397 U.S. 1 (1970). Those factors include: (1) the plaintiff's

          interest in an expeditious resolution of the civil case and any prejudice to the plaintiff in not

          proceeding; (2) the interests of and burdens on the defendant, including the extent to which

          defendant's fifth amendment rights are implicated; (3) the convenience to the court in

          managing its docket and efficiently using judicial resources; (4) the interests of persons who

          are not parties to the civil proceeding; and (5) the interests of the public in the pending civil

          and criminal actions. Jacksonville Savings Bank v. Kovack, 326 Ill. App. 3d 1131, 1136

          (2002); Keating, 45 F.3d at 324-25; Nowaczyk, 146 F.R.D. at 174.

¶ 53         However, even if a court considers these factors under all circumstances where a

          defendant claims a fifth amendment right against self-incrimination, none of these factors

          would favor the defendants here.

¶ 54                                      A. The Plaintiff's Interests

¶ 55         The 95-year-old plaintiff here suffered a substantial financial loss and has a right to

          proceed with his civil case against the defendants and such recovery of his lost funds during

          his lifetime. People who claim to have been victimized by fraud or other crimes are entitled


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          to pursue their civil remedies. They should not be required to receive slower justice simply

          because the conduct they allege is egregious enough to attract the attention of criminal

          authorities.

¶ 56                                    B. The Defendants' Interests

¶ 57          The defendants have already given extensive deposition testimony that they cannot take

          back. They have waived their privilege against self-incrimination. The admissions that have

          been made were significant and a stay of the proceedings will be of no or limited benefit in

          the criminal proceedings because their admissions can and will be used against them.

¶ 58                                 C. Convenience to the Trial Court

¶ 59          A stay would burden the court's ability to manage its cases and an indefinite delay could

          cause the court to be in the position of waiting until the defendants serve their jail sentences

          in the event that they are convicted and sentenced to a period of incarceration.

¶ 60                                   D. Private and Public Interests

¶ 61          Finally, the interests of nonparties and the public favor prompt resolution of civil

          proceedings, especially promptly recovering misappropriated funds by people in fiduciary

          relationship who manipulate the elderly, particularly when weighed against the interest in a

          merely conjectural criminal prosecution.

¶ 62                                           CONCLUSION

¶ 63          Having reviewed the trial court's decision in light of the particular circumstances of this

          case, we conclude that the trial court's ruling is unreasonable and as a result, the trial court

          abused its discretion in granting defendants' motion to stay the civil proceedings.

¶ 64          Reversed and remanded.



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