STATE OF NEW HAMPSHIRE
ROCKINGHAM COUNTY PROBATE COURT
DOCKET NUMBER 2002-1250
DENNIS C. KING
PLAINTIFF
v.
JOHN M. KING, INDIVIDUALLY
JOHN M. KING, TRUSTEE OF THE LINN KING FAMILY TRUST
JOHN M. KING, TRUSTEE OF THE MARY LITTLE FAMILY TRUST
MOTION TO DISMISS
The Defendant, John M. King, representing himself individually and as trustee requests that this Honorable Court DISMISS all matters related to Docket Number 2002-1250 for failure to state a claim for which relief may be granted. In support of this motion the Defendant states as follows:
1. Included by reference are any and all past pleadings filed with the Honorable Rockingham County Probate and New Hampshire Supreme Courts for 2002-1250.
2. The Probate Court lacks jurisdiction over matters alleged in the Complaint assigned docket number 1250. This Complaint consists of broad litigation issues previously resolved WITH PREJUDICE (Exhibit 1, Exhibit 2)[1] between the above parties in the Middlesex County Probate Court in Cambridge Massachusetts in January of 1992. It is a well settled doctrine that jurisdiction joined with continued litigation of previous resolved matters is bared and necessarily precluded under the doctrine of res judicata
3. Arguendo, even though attorney for the Defendant submitted to the jurisdiction of this Honorable Court[2], it of no effect. Quoting from 23 Hosftra L. Rev 1, *36
Parties to a proceeding cannot stipulate the existence of jurisdiction. [FN85] They cannot, intentionally or not, waive jurisdictional objections. [FN86] Any party, including the party who claimed jurisdiction in the first place, [FN87] can challenge a court's jurisdiction at any time. [FN88] Courts are obligated to raise
jurisdictional questions sua sponte, even if the parties have not raised them. [FN89] Even if they only notice those questions late into the proceeding, they must raise them and resolve them before they may continue. [FN90] (emphasis supplied)
4. Given that the State of Maine has in rem jurisdiction of the Eliot Maine property owned by the Linn King Family Trust, the Honorable New Hampshire Probate Court has no such jurisdiction. Further, in re: Petters v. Petters, 560 So. 2d 722 (Miss. 1990), jurisdiction precedes adjudication. Before a court may say anything worth listening to regarding the (de)merits of a party's claim, that court must have authority to speak. That court has such authority only when the claim is one within the court's subject matter jurisdiction and after the court has acquired personal jurisdiction of the parties. If the court is without jurisdiction-- subject matter or personal--no one is bound by anything the court may say regarding the (de)merits of the case (emphasis supplied); quoting from 23 Hosftra L. Rev 1, [FN73]
5. The initial appeal taken to the New Hampshire Supreme Court for Docket 2002-1250 was DENIED. Arguendo, this Honorable Court had no choice but to deny this appeal as the Probate Court lacked the jurisdictional authority to bind the Defendant to a disputed Motion to Compel under appeal. It was not a decision on the merits as the Probate Court has previously stated. It was not dismissed; as, a dismissal at that point would have been an imputed affirmation of Probate jurisdiction. Rather it was an acknowledgment on the part of the Supreme Court that it also had no jurisdiction. To dismiss or accept and hear this initial appeal would have been an acknowledgment that both Probate and New Hampshire Supreme Courts had jurisdiction in the matter,
WHEREFORE all the aforementioned statements contained in this Motion to Dismiss, the Defendant requests that this Honorable Probate Court:
A. Dismiss nuc pro tunc any and all matters related to Probate Docket 2002-1250 forthwith based on lack of subject matter jurisdiction for which relief may be granted.
B. Grant any other relief that is just and mete.
Subscribed to under the penalties and pain of perjury
Dated this 9h day of July, 2009
Respectfully submitted,
John M. King
170 Shore Road, POB 129
East Boothbay, Maine 04544-0129
(207) 633-5381
1
[1] Extra original certified copies of Exhibits 1 & 2 have been ordered , The copies herein submitted are Offers of Proof supporting the scope within the With Prejudice dismissal of the matters again brought before this Court in the Docket 2002-1250 Complaint. Once received, the original certified copies will be presented to this Honorable Court for proof and also as a matter of record via Supplemental Memorandum.
[2] Jurisdiction was initially decided in an in camera chambers meeting between the Probate Judge, Plaintiff’s Attorney and Attorney for the Defendant. Jurisdictional dialogue for the record was essentially sealed from the record.