State ex rel. Schmidt v. Heffington

344 P.3d 971 (Table)

STATE of Kansas ex rel. Derek SCHMIDT, Attorney General, Appellee

v.Joan HEFFINGTON, an Individual d/b/a Association for Honest Attorneys (A.H.A.!), Appellant.

111,448.

Court of Appeals of Kansas.

March 13, 2015.

Review Denied Sept. 14, 2015.

Joan Farr, a/k/a Joan Heffington, appellant pro se.

Jeffrey A. Chanay, deputy attorney general, and Bryan C. Clark, assistant solicitor general, for appellee.

Before SCHROEDER, P.J., BUSER and ATCHESON, JJ.

MEMORANDUM OPINION

PER CURIAM.

This action brought by the Kansas Attorney General for violations of the Kansas Consumer Protection Act (KCPA), K.S.A. 50–623 et seq ., appears before us for a second go round on the remedies the Sedgwick County District Court imposed on Defendant Joan Heffington after defaulting her on liability for discovery abuses. Heffington, who has represented herself throughout the litigation, offers an array of mostly inapposite arguments. Those arguments actually having some bearing on the remedies lack any legal traction. We, therefore, affirm the district court's judgment.

In December 2009, then-Attorney General Steve Six sued Heffington for the unauthorized practice of law and violations of the KCPA, alleging she provided legal advice and services to individuals without being a lawyer and was compensated for doing so. Heffington essentially argued that she provided only moral support to those individuals and they made “donations” to the Association for Honest Attorneys (AHA), a not-for-profit corporation she set up. Attorney General Derek Schmidt continued the litigation upon taking office in 2011.

Heffington refused to comply with various district court orders compelling her to provide proper discovery, including the taking of her deposition. As a result, the district court sanctioned Heffington by entering default judgment against her on liability. See K.S.A. 60–237(b)(2)(A)(vi). The district court then conducted a hearing on appropriate relief due the Attorney General and entered judgment against Heffington.

Heffington appealed those rulings. In an unpublished decision, this court affirmed the default as an appropriate, if severe, discovery sanction. State ex rel. Schmidt v. Heffington, No. 105,841, 2012 WL 687942, at *1 (Kan.App.2012) (unpublished opinion), rev. denied 296 Kan. 1131 (2013) ( Heffington I ). This court, however, found that Heffington had not been properly served with a notice outlining the monetary relief the Attorney General sought, as required under K.S.A. 60–254(c) and related court rules. This court, therefore, set aside the relief the district court had granted and remanded the case so that Heffington might receive a compliant notice and another hearing on remedy. 2012 WL 687942, at *7.

The Attorney General then mailed a notice to Heffington, and the district court ruled the notice complied with K.S.A. 60–254(c). At the renewed remedy hearing, the district court found that AHA had received $70,000 in “donations.” Heffington had given that figure to the district court at an earlier hearing. The district court ordered Heffington to disgorge $70,000 to the Attorney General as “damages and restitution” for the individuals who had sent money to AHA. See K.S.A. 50–632(a)(3) (attorney general may recover damages on behalf of consumers for violations of KCPA). The district court found 19 discrete violations of the KCPA and imposed a civil penalty of $2,000 against Heffington for each of them. See K.S.A. 50–636(a) (district court may impose civil penalty up to $10,000 for each violation). The district court also awarded the Attorney General costs and investigative expenses. See K.S.A. 50–632(c)(7) (attorney general may recover “reasonable expenses and investigation fees, civil penalties and costs”). The remedies match what the district court granted before the appeal in Heffington I. The district court also entered injunctive relief that is not directly at issue here.

Heffington has now appealed from the judgment the district court entered after the remand in Heffington I.

Heffington makes a general argument that the evidence presented to the district court failed to prove a violation of the KCPA. At this stage, however, the extent and quality of any evidence related to violations of the Act are legally beside the point. The district court entered a default against Heffington based on her contumacious refusal to allow proper discovery. The default was the legal equivalent of a finding of liability, meaning the Attorney General did not need to prove the allegations in the petition. That determination was upheld on appeal in Heffington I. Accordingly, Heffington cannot now attempt to reargue the issue or the basis for her liability. Any further consideration of liability or the evidence supporting liability is precluded by the doctrine of law of the case. State v. Collier, 263 Kan. 629, Syl. ¶ 3, 952 P.2d 1326 (1998) (An argument once made to and resolved by an appellate court becomes “the law” in that case and generally cannot be challenged in a second appeal.).

Heffington offers other arguments that effectively challenge her liability rather than the remedies. They, too, are barred by law of the case. For example, Heffington submits: (1) no KCPA claim lies because the Attorney General received no complaints from the putative victims about her conduct; (2) her conduct in operating AHA was constitutionally protected speech; and (3) because practicing law without a license is not itself unlawful, she could not have violated the KCPA. Those points are without merit precisely because this court upheld the district court's liability finding in Heffington I. We, therefore, devote no more attention to them.

Heffington makes several arguments premised on the notion the KCPA claims are criminal rather than civil in nature. The assumption is wrong, so the arguments fail. Heffington contends she was entitled to have a lawyer appointed to represent her, as provided in the Sixth Amendment to the United States Constitution. But that right extends only to criminal prosecutions. See Brown v.. State, 278 Kan. 481, 483, 101 P.3d 1201 (2004) ; Guggenheim Capital, LLC v. Birnbaum, 722 F.3d 444, 453 (2d Cir.2013). She claims a violation of her right against self-incrimination as protected in the Fifth Amendment. Persons have a right not to speak if they reasonably believe what they may say will implicate them in criminal conduct. It is less than clear just how Heffington thinks that protection was implicated or breached here. A witness may refuse to answer specific questions at a deposition if the response reasonably might be incriminating, but the individual has no right to ignore a court order to appear for the deposition. See Birnbaum, 722 F.3d at 453–54 ; Vazquez–Rijos v. Anhang, 654 F .3d 122, 129 (1st Cir.2011). And a party's invocation of the privilege at a deposition commonly permits an adverse inference that the response would be unfavorable to that party's case. Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 97–98 (2d Cir.2012). As presented, Heffington's suggestion regarding self-incrimination affords no grounds for reversal.

Heffington says the district court deprived her of a right to jury trial in a civil action as secured in the Seventh Amendment to the United States Constitution. But the Seventh Amendment has never been incorporated through the Due Process Clause of the Fourteenth Amendment and, therefore, does not apply to proceedings in state court. See McDonald v. City of Chicago, 561 U.S. 742, 765 n. 13, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). The argument has no legal foundation, so we reject it.

Heffington next suggests the federal courts have exclusive jurisdiction to hear this case. She presents no relevant authority for the proposition. We are not surprised. The proposition is meritless on its face. State courts have jurisdiction to adjudicate cases arising under their own statutes. That jurisdiction may be concurrent with the federal courts, as when the requirements for diversity jurisdiction have been met. See 28 U.S.C. § 1332(a). But jurisdiction is most certainly not lodged exclusively in the federal courts.

With somewhat more pertinence, Heffington argues that the civil...