Res Judicata and Subject Matter Jurisdiction, Continued

September 24, 2019 § Leave a comment

Yesterday we visited the COA’s decision in Abercrombie v. Abercrombie, in which the majority rejected Faith Abercrombie’s argument that the trial court’s order should be set aside for lack of UCCJEA subject matter jurisdiction. The COA ruled that the issue was precluded by operation of res judicata.

Judge McCarty lodged a strong dissent that bears reading. Here it is:

¶36. The revelation of the extensive fraud that both parents purportedly committed destroys jurisdiction because we have learned for a fact that this case is centered in Louisiana. Since subject matter jurisdiction cannot be waived and cannot be achieved through deception or fraud, I believe we are required to reverse for lack of jurisdiction.

¶37. Our Uniform Child Custody Jurisdiction and Enforcement Act decrees that “[n]o infant shall be adopted to any person if either parent, having been summoned, shall appear and object thereto before the making of a decree for adoption . . . .” Miss. Code Ann. § 93-17-7 (Rev. 2014). The Act establishes that both parents are necessary parties to an adoption proceeding. Id. We know for a fact that this prerequisite of the Act was not complied with because the slow [sic] reveal that the natural father was not made aware of (much less provided consent for) the child’s adoption.

¶38. This was fraud, as even the parties have now belatedly conceded. “When consent for a supposedly ‘uncontested’ adoption is gained by intentionally concealing the identity of a known natural parent from the chancellor, a fraud is perpetrated upon the court.” Doe v. Smith, 200 So. 3d 1028, 1030 (¶1) (Miss. 2016). There was fraud in Doe too, where the natural mother falsified her son’s birth certificate to facilitate his adoption, and this “deception caused the court to grant an adoption to a third party based on false, material representations.” Id.

¶39. Such a fraud thwarted the whole purpose of the Act and the court’s role in following it because “an intentional fraud aimed solely to circumvent a natural parent’s statutorily mandated consent to an adoption undermines the effective administration of justice.” Id. at 1033 (¶17).

¶40. Because the adoption is void based upon fraud, neither of those two people who committed the fraud should have standing. “[A] lack of standing robs the court of jurisdiction to hear the case.” In re Estate of Ivy, 121 So. 3d 226, 243-44 (¶88) (Miss. Ct. App. 2012). Therefore, “any ruling on a case brought by someone who lacked standing is void ab initio.” Id. When a divorce decree is invalidated on grounds of fraud related to child custody and adoption, it follows that all subsequent custody determinations should be deemed void ab initio. We have previously held that “when a divorce is invalidated, all matters decided as a result of the divorce decree are null and void and should be brought in another hearing.” Clark v. Clark, 43 So. 3d 496, 502 (¶25) (Miss. Ct. App. 2010). Such matters to be reversed include the award of “alimony, child custody, and child support.” Id. (emphasis added). When the chancery court vacated the original judgment of divorce in this case, as it was required to do, it should have also vacated all custody determinations stemming from the divorce.

¶41. Our inquiry should end there. A court cannot find that it has jurisdiction over a custody dispute between two adoptive “parents” when the validity of the adoption itself has been shown to be fraudulent. For our courts to assert jurisdiction over a child born to a Louisiana resident, “adopted” by pretense in Louisiana, and who has resided in Louisiana at all times following the so-called adoption, would directly contradict the very purpose of the Act. The UCCJEA, now nearly universal, was enacted among the separate states in part to prevent exactly this forum-shopping.

¶42. The fact that the issue of jurisdiction arises at this late date does not matter because subject matter jurisdiction cannot be waived. Ridgeway v. Hooker, 240 So. 3d 1202, 1208 (¶23) (Miss. 2018). Nor can subject matter jurisdiction be acquired through the passage of time because a party may raise the issue of subject matter jurisdiction at any point, including on appeal. Pierce v. Pierce, 132 So. 3d 553, 560 (¶14) (Miss. 2014). Our Supreme Court has long been blunt that we must examine whether we have jurisdiction because “[s]ubject matter jurisdiction, which is succinctly defined as the authority of a court to hear and decide a particular case, depends on the type of case at issue, and we have the primary duty [to
determine sua sponte] whether a particular case lies within our jurisdiction.” Common Cause of Miss. v. Smith, 548 So. 2d 412, 414 (Miss. 1989).

¶43. The United States Supreme Court agrees this is a core duty of courts. “When a requirement goes to subject-matter jurisdiction, courts are obligated to consider issues [sua sponte] that the parties have disclaimed or have not presented.” Gonzalez v. Thaler, 565 U.S. 134, 141 (2012). This can be frustrating to the Judiciary, as the Court points out, because “[t]he objections [to jurisdiction] may be resurrected at any point in the litigation, and a valid objection may lead a court midway through briefing to dismiss a complaint in its entirety.” Id. As a result “months of work on the part of the attorneys and the court may be wasted.” Id.

¶44. This is unfortunately one such case—where months of effort by the lawyers and the court system end up with a dismissal. Yet we must reverse, and since when we do not have jurisdiction, we should not rule. Accord Common Cause of Miss., 548 So. 2d at 418 (dismissing the appeal sua sponte for lack of jurisdiction because contempt was criminal, not civil); Dudley, 979 So. 2d at 693 (finding a lack of jurisdiction sua sponte due the notice of appeal being filed untimely); Cotton v. Veterans Cab. Co., 344 So. 2d 730, 731 (Miss. 1977) (finding a lack of jurisdiction sua sponte because there was not a final judgment); Bolivar v. Waltman, 85 So. 3d 335, 339 (¶14) (Miss. Ct. App. 2012) (finding a lack of jurisdiction because necessary parties were not included).

¶45. Our prior rulings related to this point do not result in a procedural bar either. In the case addressed supra, we reviewed the nonpayment of child support, not custody, making the issue of jurisdiction under the UCCJEA inapplicable. Burgess v. Williamson, 270 So. 3d 1031, 1035 (¶16) (Miss. Ct. App. 2018). More importantly, the mother’s challenge of subject matter jurisdiction was deemed res judicata because she “answered [the] original petition for custody and child support, she filed a counterclaim, the case proceeded to trial, and the chancery court entered a final judgment.” Id. at 1036 (¶18). The mother in this case took none of these procedural steps taken by the mother in the prior litigation.

¶46. Even if the mother’s claim was barred under the doctrine of res judicata, the law recognizes three exceptions to allow a party to litigate the issue of subject matter jurisdiction after a judgment has been rendered:

(1) The subject matter of the action was so plainly beyond the court’s jurisdiction that its entertaining the action was a manifest abuse of authority; or

(2) Allowing the judgment to stand would substantially infringe the authority of another tribunal or agency of government; or

(3) The judgment was rendered by a court lacking capability to make an adequately informed determination of a question concerning its own jurisdiction and as a matter of procedural fairness the party seeking to avoid the judgment should have opportunity belatedly to attack the court’s subject matter jurisdiction.

Restatement (Second) of Judgments § 12 (1982).

¶47. In the present case, the subject matter was so plainly beyond Mississippi’s jurisdiction that it was an abuse of authority for the chancery court to hear the case. The only connections between the child and Mississippi are that he was born in Mississippi and his “adoptive” father currently resides in Mississippi. Both points fail to secure jurisdiction: the child has lived in Louisiana since shortly after his birth, and because the validity of the “adoption” has been brought into question, we cannot assume jurisdiction based on this fact.

¶48. For Mississippi to assert jurisdiction over this case would be to usurp jurisdiction from Louisiana, infringing upon the State’s authority to govern its own citizens. The child in question was born to a Louisiana resident, was allegedly “adopted” in Louisiana, and domiciled in Louisiana at all times following the “adoption.”

¶49. Further, the Abercrombies’ actions of defrauding and concealing facts from the chancery court deprived the court of the ability to properly make an adequate and informed decision regarding whether it had jurisdiction to hear the case. With the truth concerning the alleged adoption now unearthed, it is clear that our State does not and could not have jurisdiction over the matter.

¶50. Our courts do have continuing jurisdiction over the misrepresentations the parties made in this case because they were submitted to our courts and made within our State. See M.R.C.P. 11. It is a felony to “willfully and corruptly swear, testify, or affirm falsely to any material matter . . . in any court of law or equity . . . .” Miss. Code Ann. § 97-9-59 (Rev. 2014) (emphasis added); see also Miss. Code Ann. § 97-9-61 (Rev. 2014) (penalty of perjury in a non-felony trial not to exceed ten years). While this case should be dismissed for lack of jurisdiction, that does not mean the repeated fraud on our court system should go without penalty.

¶51. For these reasons I must respectfully dissent.

An End to Game-Playing

July 24, 2017 § 2 Comments

In 2007, Annie and Frederick Griffin got into a dispute with the mortgage carrier, ABN, over modified terms, and stopped paying. They then sued in federal court alleging fraud and violation of other federal laws on debt collection. ABN filed a motion to compel arbitration, but the matter returned to federal court in 2010 after the arbitrator no longer handled consumer cases. The Griffins filed a motion to declare the arbitration agreement unenforceable, and in response ABN withdrew the arbitration request, no doubt to move the case along. The court granted ABN’s motion.

The Griffins then filed an objection to the ruling, even though they had a pending motion to rule the arbitration agreement unenforceable. They filed the motion pro se, because their attorney withdrew, citing the Griffins’ proclivity for not following his advice. Finally, in February, 2012, the district court entered a sua sponte order dismissing the case for failure to prosecute, concluding that “[i]t appears to this court that the plaintiffs view this lawsuit not as something to be actually litigated, but, rather, as something to be kept alive indefinitely, even at the cost of taking a position that is fundamentally inconsistent with the one they have taken for years in this case.”

In January, 2014, the Griffins filed another complaint in chancery court raising the same legal claims and issues as in the federal suit, and based on the same set of facts. There ensued a removal to and remand from federal court, a recusal, and finally a dismissal in chancery on the ground of res judicata. The Griffins appealed pro se.

In the case of Griffin v. ABN, et al., handed down May 16, 2017, the COA affirmed. Judge Greenlee wrote for the court:

¶7. “The appropriateness of application of the doctrine of res judicata is a question of law” and will therefore be reviewed de novo. Swaney v. Swaney, 962 So. 2d 105, 108 (¶11) (Miss. Ct. App. 2007).

¶8. We agree with the chancellor that Griffin II [the chancery matter filed after the federal court dismissal] is properly barred under the doctrine of res judicata. The doctrine of res judicata has four identities: (1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made. Harrison v. Chandler-Sampson Ins., 891 So. 2d 224, 232 (¶24) (Miss. 2005).

¶9. All four identities are met in the case at hand. The factual allegations in the complaint of Griffin II were copied almost verbatim from the complaint of Griffin I, and with the exception of dropping a couple of claims (the FDCPA and TILA claims), the complaint reasserts the same claims of fraud. All parties present in Griffin I were also present in Griffin II.

¶10. In addition to those four identities, to qualify as res judicata the prior judgment must have been a final judgment on the merits. Anderson v. LaVere, 895 So. 2d 828, 833 (¶10) (Miss. 2004). Under both Mississippi and Federal Rule of Civil Procedure 41(b), dismissal for failure to prosecute operates as a final judgment and dismissal is with prejudice. An exception is found in Mississippi Rule of Civil Procedure 41(d), which provides that where dismissal is made by the clerk following twelve months of docket inactivity, that dismissal is without prejudice. See Strickland v. Estate of Broome, 179 So. 3d 1088, 1094 (¶18) (Miss. 2015). But the case at hand does not fall under Rule 41(d), but rather falls under Rule 41(b). Prior to dismissal, the Griffins were put on notice by the district judge that the case would be dismissed for failure to prosecute if the litigation did not move forward in a meaningful way. The Griffins responded by shifting their legal position in order to avoid trying the merits of the case. The district court’s dismissal of the action was not only appropriate for failure to prosecute, but was also consistent with the Griffins’ new argument that the case should not be tried in court at all but rather arbitrated.

The court went on to address and reject some other issues raised by the Griffins.

Some takeaways:

  • Res judicata is all about identity of issues, facts, and parties. It matters not that the original, dismissed proceeding was in another state or federal court.
  • Res judicata requires a final judgment on the merits in the dismissed action, and the COA found here that the federal court’s dismissal order was a final judgment on the merits per R41(b), and not a dismissal per R41(d).
  • Shifting your legal position is a pretty effective way to frustrate your judge. My term for it is game-playing. Courts are for serious business, not for toying with others, delaying, pettifogging, and caviling. That’s the kind of conduct that will get your case thrown out of court. The Griffins’ lawyer was wise to withdraw before he became identified with their tactics and his own credibility with the court took a hit.

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