subpoenaing the first attorney

[hesthedevil]

What is the name of your state (only U.S. law)? Kentucky

In a case vs my ex (unmarried), our attorneys agreed along with the Judge to handle all issues of our breakup, including custody/child support and property issues to avoid having to file separate lawsuits over the property.

My ex is now on his third attorney, who is arguing the Judge did not have subject matter jurisdiction to rule on the property issues.

The Judge suggested that we subpoena attorney #1 to testify that all parties agreed to rule on all issues in family court.

My attorney states that attorney #1 will not testify, as my ex could file malpractice against him.

An attorney friend of mine says it was not malpractice, but a strategical decision. Could he be sued by my ex for malpractice?

Should I demand that my attorney subpoena attorney #1?

What do you guys think?

[tranquility]

Since we don't know the purpose or the communications between the attorney and his client of the strategery, it is impossible to know if there was malpractice. There is nothing inherently wrong with advice to bring all issues together into one case. It can save litigation costs or the party thinks the court will be receptive to their arguments. However, it could also be an error. There is no way to know.

I find it hard to believe an agreement waiving subject matter jurisdiction does not have to either be in writing or otherwise be in the official record of the court, but don't know for sure.

[Ohiogal]

258 S.W.3d 422
HISLE v. LEXINGTON-FAYETTE URBAN COUNTY

The courts have recognized three separate categories of "jurisdiction": (1) personal jurisdiction involving authority over specific persons; (2) subject matter jurisdiction involving authority over the nature of a case and the general type of controversy; and (3) jurisdiction over a particular case involving authority to decide a specific case. See, e.g., Nordike, 231 S.W.3d at 737-38; Milby, 952 S.W.2d at 205; Clements v. Harris, 89 S.W.3d 403, 406 (Ky.2002)(Keller, J., dissenting); 20 Am.Jur.2d Courts § 54 (1995). Subject matter jurisdiction and particular case jurisdiction are related, but they are different in that the former concerns a more broad, general class; whereas, particular case jurisdiction focuses on a more limited or narrow fact-specific situation. See, e.g., Duncan v. O'Nan, 451 S.W.2d 626, 631 (Ky.1970)(stating that subject matter jurisdiction refers to a court's authority over "this kind of case" as opposed to "this case"); Commonwealth v. Griffin, 942 S.W.2d 289, 291 (Ky.1997)(stating subject matter jurisdiction refers to a class of cases as opposed to particular case jurisdiction which refers to a court's authority over a specific case); Gordon v. NKC Hospitals, Inc., 887 S.W.2d 360, 362 (Ky.1994); Privett v. Clendenin, 52 S.W.3d 530, 532 (Ky.2001).(fn5)

Subject matter jurisdiction concerns the very nature of the court's creation under constitutional provisions. See, e.g., 21 C.J.S. Courts § 85 (2007)(noting courts have recognized subject matter jurisdiction in cases involving a specific monetary amount in controversy, certain territorial limits, certain limited remedies, and specific appellate authority). Particular case jurisdiction is a subset of subject matter jurisdiction in that "a court that lacks subject-matter jurisdiction over an action will also always lack particular-case jurisdiction, [but] a court can have proper subject-matter jurisdiction over an action, but nonetheless lack particular case jurisdiction[.]" Clements, 89 S.W.3d at 406 (Keller, J., dissenting).
Subject matter jurisdiction does not exist "where the court has not been given any power to do anything at all in such a case, as where a tribunal vested with civil competence attempts to convict a citizen of a crime." Milby, 952 S.W.2d at 205 (quoting Duncan v. O'Nan, 451 S.W.2d 626, 631 (Ky.1970)). "Once a court has acquired subject matter and personal jurisdiction, challenges to its subsequent rulings and judgment are questions incident to the exercise of jurisdiction rather than to the existence of jurisdiction." Buckalew v. Buckalew, 754 N.E.2d 896, 898 (Ind.2001)(emphasis in original). See also Maryland Bd. of Nursing v. Nechay, 347 Md. 396, 406, 701 A.2d 405, 410 (1997)(stating "[o]nce a court acquires fundamental jurisdiction of a case, any judgment that it renders in that case `is not invalidated because of an [alleged] improper exercise of that jurisdiction.'").

Particular case jurisdiction generally involves more specific so-called "jurisdictional facts." A "jurisdictional fact" has been defined as "[a] fact that must exist for a court to properly exercise its jurisdiction over a case, party, or thing." BLACK'S LAW DICTIONARY 857 (7th ed.1999). This definition is somewhat circular and not particularly helpful. Some courts have linked jurisdictional facts to factual prerequisites established by statute or rule that are treated as affirmative defenses such as limitations periods or failure to state a claim, although clearly not all affirmative defenses should be treated as involving jurisdictional authority. See, e.g., Nordike, 231 S.W.3d at 738 (referring to concepts such as failure to state a claim and limitations periods as jurisdictional fact issues while acknowledging courts discuss these issues "in terms of their jurisdictional effect, although without specific reference to particular-case jurisdiction"); Clements, supra (involving 180-day residency requirement for dissolution decree); Gordon v. NKC Hospitals, Inc., 887 S.W.2d 360 (Ky.1994)(involving exclusive remedy for workplace injuries under workers compensation statutes said to be an affirmative defense); Alliant Energy-Interstate Power & Light Co. v. Duckett, 732 N.W.2d 869 (Iowa 2007)(stating exhaustion of administrative remedies requirement goes to particular case authority rather than subject matter jurisdiction); Schrier v. State, 573 N.W.2d 242, 244-45 (Iowa 1997)(stating that a court may lack authority to hear a particular case where a party fails to follow the statutory procedures for invoking the court's authority).

The appellants argue that the circuit court ostensibly relied on KRS 381.136 in issuing its judgments in 1966, but since that statute did not apply under the facts of the original petition, the court lacked jurisdiction to enter a valid, binding judgment. They maintain that because the circuit court had no authority to partition the realty under KRS 381.136, they are entitled to fee simple title ownership of the property according to the terms of their grandparents' wills. The appellants' argument, however, consists of an erroneous commingling of the principles and characteristics of subject matter and particular case "jurisdiction."(fn6)

It is well-established that a judgment entered by a court without subject matter jurisdiction is void. See Covington Trust Co. of Covington v. Owens, 278 Ky. 695, 129 S.W.2d 186, 190 (1939); Wagner v. Peoples Bldg. & Loan Ass'n, 292 Ky. 691, 167 S.W.2d 825, 826 (1943); Commonwealth Health Corp. v. Croslin, 920 S.W.2d 46, 48 (Ky.1996); 20 Am.Jur.2d Courts § 65 at 380. In addition, since subject matter jurisdiction concerns the very nature and origins of a court's power "`to do anything at all[,]'" it "`cannot be born of waiver, consent or estoppel[,]'" and may be raised at any time. Nordike, 231 S.W.3d at 738 (quoting Duncan v. O'Nan, 451 S.W.2d 626, 631 (Ky.1970)). See also Privett v. Clendenin, 52 S.W.3d at 531; Goff v. Goff, 172 S.W.3d 352, 358 (Ky.2005); State v. Mandicino, 509 N.W.2d at 483 (stating parties cannot confer subject matter jurisdiction on a court where it has not first been created by the constitution or enabling legislation).

Subpoenaing the attorney doesn't necessarily mean ANYTHING will be done. He cannot waive attorney client confidentiality. And would be smart not to say anything.

[tranquility]

I agree true subject matter jurisdiction cannot be waived. However, parties can stipulate to drop or deal with outside matters beyond the power of the court in litigation.

[hesthedevil]

Paragraph 2 in the post by Ohiogal makes me think my ex already subjected himself to the jurisdiction of the family court when he started making his half of the court-ordered house payments, we went to mediation and I gave some things over based on the court's orders, and my ex took stuff out of the house based on mediation and the judge's timeframe. However, the last paragraph makes me think he can raise the SMJ issue at any time. Which is more correct?

Also, my ex's attorney argues the court has no subject matter jurisdiction over my ex paying his half of the house payment, yet he has a motion for me to return our jointly owned van. Isn't this picking and choosing items over which they'd like the judge to exercise jurisdiction?

[latigo]

What do I think?

The first thing I think is that you’ve have been taken for an expensive ride around the block BY YOUR OWN ATTORNEY!

Secondly, that this so-called judge should find a different line of work where a shopping cart rather than a black robe might be more useful.

There is hardly a more fundamental principal in American jurisprudence than what the others have pointed out to you.

When a court of law lacks jurisdiction over the subject matter of an asserted cause of action, that is it. Consent or no consent, boot strapping, theorizing, rationalizing, subpoenas or not. It is finished. KAPUT!