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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 21-CV-0695
THE CORCORAN GALLERY OF ART AND THE TRUSTEES OF THE CORCORAN GALLERY OF ART, APPELLANTS,
V.
SUSANNE JILL PETTY, APPELLEE.
Appeal from the Superior Court of the District of Columbia (2019-CA-008131-F)
(Hon. Shana Frost Matini, Trial Judge)
(Argued October 20, 2022 Decided March 23, 2023)
Charles A. Patrizia, with whom Stephen B. Kinnaird and David S. Julyan were on the brief, for appellants.
Hannah Wigger, with whom Jim Burgess, Paul Werner, and Calla Simeone, were on the brief, for appellee.
Before DEAHL and ALIKHAN, Associate Judges, and GLICKMAN, Senior Judge. ∗
∗ Judge Glickman was an Associate Judge of the court at the time of argument. He began his service as a Senior Judge on December 21, 2022. 2
DEAHL, Associate Judge: The Constitution’s Full Faith and Credit Clause
generally obliges the District of Columbia courts to give conclusive effect to
judgments issued by other states’ courts. U.S. Const. art IV, § 1. That is not an
inexorable command, however, and we “may inquire into the jurisdictional basis of
the foreign court’s decree.” Underwriters Nat’l Assurance Co. v. N.C. Life &
Accident & Health Ins. Guar. Ass’n, 455 U.S. 691, 705 (1982). Except, that is,
where the jurisdictional issues were themselves “fully and fairly litigated and finally
determined” in the foreign court, in which case we owe those jurisdictional
determinations full faith and credit as well. Id. at 714.
This case presents an interesting twist on those well-established principles. A
California trial court issued a judgment with some reason to doubt, and without any
apparent consideration of, its jurisdiction to do so. The District’s courts have now
been asked to enforce that judgment. If that judgment were standing alone, our
courts would be free to scrutinize whether the California trial court had jurisdiction
to issue its judgment, as appellant, the Corcoran Gallery of Art, now asks us to do.
But the twist is that the Corcoran appealed the California trial court’s judgment to
the California Court of Appeal, where it litigated its jurisdictional challenges, and
the California Court of Appeal squarely rejected them. The issue before us is thus
whether that appellate court decision precludes us from scrutinizing the trial court’s 3
exercise of jurisdiction in the first instance. Put another way, we must decide
whether the full faith and credit analysis encompasses the appellate court’s
affirmance of the trial court’s judgment. The D.C. Superior Court answered in the
affirmative, in the order now on appeal, and concluded that the California Court of
Appeal had conclusively rejected the Corcoran’s jurisdictional challenges. The
Corcoran disagrees, and urges us to reject the Superior Court’s reasoning and to
consider its jurisdictional challenges anew.
We agree with the D.C. Superior Court and conclude that we owe full faith
and credit to the California Court of Appeal’s decision rejecting the Corcoran’s
jurisdictional challenges. Where another state’s appellate court has already
considered a jurisdictional challenge to an underlying judgment, that consideration
effectively inheres in the judgment itself, and we will not second-guess it. Because
the jurisdictional challenges raised in this appeal were already fully and fairly
litigated before the California Court of Appeal, we will not reconsider them now.
We affirm the Superior Court’s judgment. 4
I.
Cy Pres Proceedings
The Corcoran was a private art gallery in Washington, D.C., founded in 1869.
In 1994, the Corcoran entered into an agreement with the Alice C. Tyler Art Trust,
established by a philanthropist of that name. The Trust agreed to gift the Corcoran
a collection of artwork by the artist Suzanne Regan Pascal, plus $1 million to
maintain the collection, with the gift contingent on the Corcoran exhibiting the
collection for at least two months per year and keeping at least one piece of artwork
from the collection on display at all times. The Corcoran complied with those
conditions until 2014.
In 2014, the Corcoran decided to close its gallery after years of financial
struggles. The Corcoran trustees sought a cy pres order from the D.C. Superior Court
to have the Corcoran’s assets redistributed in a way that would align as much as
possible with the intent of its founder. See D.C. Code § 19-1304.13. The Tyler Trust
did not participate in the cy pres proceedings. The Superior Court issued a cy pres
order, under which the National Gallery of Art could take or help redistribute the
Corcoran’s art collection. The agreement provided that “the Corcoran Deed of Trust
and any other applicable instrument [wa]s deemed to be revised to the extent 5
necessary to permit the [Corcoran] Trustees to enter into” their agreement with the
National Gallery.
Under the agreement, the National Gallery could choose whether to
accession—meaning, take into its collection—each piece of art from the Corcoran
collection. If it chose not to accession a piece, the National Gallery would work with
the Corcoran trustees to identify museums or institutions within the District—or, as
a last resort, outside the District—that could take the works. The agreement also
provided that no artwork covered by the order could be removed from the District
without permission of the Attorney General of the District of Columbia. The
National Gallery decided not to accession the Pascal collection. While the Corcoran
and National Gallery were deciding how to distribute it, the Pascal collection was
kept in storage.
California Probate Court
In 2018, Susanne Jill Petty, as trustee of the Alice C. Tyler trust, sued the
Corcoran in the probate division of the California Superior Court for failing to abide
by the terms of its agreement with the trust. She filed a petition seeking the return
of the Pascal collection and the $1 million cash gift. The court held an initial hearing
at which an attorney for the Corcoran appeared and Petty asked for an extension of 6
time to properly serve her petition on the Corcoran. The Corcoran did not object to
the extension, and it indicated that it wanted the additional time to file its objections
in any event. A few weeks later, and five days before the next hearing was scheduled
to take place, the probate court added a note to the case’s “probate notes”—notes
about the case that the parties can view on the court’s website—pointing out
deficiencies in Petty’s service of the petition. See L.A. Cnty. Super. Ct. R. 4.4. The
probate court’s local rules state that any outstanding matters in the probate notes
must be cleared two court days before a hearing. L.A. Cnty. Super. Ct. R. 4.4(b).
The local rules also give the probate court discretion as to whether to waive its rules
in any given case. L.A. Cnty. Super. Ct. R. 4.2.
Petty responded to the note just one court day before the hearing, stating that,
even if she had not timely served process on the Corcoran, it had actual notice of the
hearing because its attorney had been present when the hearing was scheduled. At
the hearing three days later (there was an intervening weekend), no representative
for the Corcoran appeared. The probate court indicated that it would enter a default
judgment against the Corcoran, stating: “With no appearance by [the Corcoran], and
I’m finding that notice is proper, and I’m clearing the notes in total on this matter.
The court is going to grant the petition as requested.” The probate court ordered the 7
Corcoran to return the Pascal collection and the $1 million cash gift to the Tyler
trust. Petty was later awarded costs of $1,365.94 and attorneys’ fees of $58,353.62.
The Corcoran filed a motion for reconsideration, claiming both that the
probate court lacked jurisdiction to issue the order and that its order conflicted with
the D.C. Superior Court’s cy pres order. The Corcoran argued that it had “never
submitted to [the probate c]ourt’s jurisdiction” and had not been timely served with
process. It also argued that Petty had not timely responded to the probate notes. On
the merits, the Corcoran argued that it could not comply with the probate court’s
order to move the collection to California without violating the cy pres order,
because, under the Corcoran’s agreement with the National Gallery, the collection
could not be removed from the District of Columbia without the permission of the
Attorney General.
Several days later, with no indication that it saw the motion for
reconsideration, the probate court entered judgment, ordering the Corcoran to return
the artwork and cash gift. After the probate court entered judgment, Petty filed an
opposition to the Corcoran’s motion for reconsideration. She argued that, now that
the probate court had entered judgment, it was no longer able to reconsider its order.
The Corcoran filed a reply, insisting that the probate court had erred in entering 8
judgment without considering its motion. The probate court never ruled on the
Corcoran’s motion.
California Court of Appeal
The Corcoran appealed to the California Court of Appeal, which affirmed the
probate court’s judgment in a comprehensive unpublished opinion. See Petty v.
Corcoran Gallery of Art, No. B293796, 2020 WL 4877542, at *1 (Cal. Ct. App.
Aug. 20, 2020). The Court of Appeal held that the Corcoran’s motion for
reconsideration was improper because the Corcoran had raised no new facts,
circumstances, or law that could provide a basis for the probate court to reconsider
its decision. Id. at *8-9. Even if the motion were considered, the court held, it lacked
merit. First, the court rejected the Corcoran’s argument that the probate court lacked
jurisdiction over it. Id. at *9. Under California law, a party who makes a “general
appearance” in court has “relinquished all objections based on lack of personal
jurisdiction or defective process or service of process.” Id. at *11 (quoting In re
Marriage of Obrecht, 199 Cal. Rptr. 3d 438, 443 (Cal. Ct. App. 2016)). A party
makes a general appearance when it “takes part in the action or in some manner
recognizes the authority of the court to proceed.” Obrecht, 199 Cal. Rptr. 3d at 443
(citation omitted). This includes making an appearance for anything other than “the 9
sole purpose of objecting to the court’s jurisdiction.” Petty, 2020 WL 4877542, at
*10 (emphasis added) (quoting Obrecht, 199 Cal. Rptr. 3d at 444). The Corcoran
made merits arguments in its motion for reconsideration and so, the Court of Appeal
held, it made a general appearance in the probate court, waiving any objection to
that court’s exercise of personal jurisdiction or to Petty’s service of process. Id. at
*11. In addition, the court held that the probate court had properly exercised its
discretion in waiving the rule requiring timely clearance of the probate notes. Id. at
*12-13.
And even if the Corcoran had properly raised its merits argument, the Court
of Appeal held, the probate court’s judgment did not conflict with the cy pres order.
Id. at *13-14. In its view, the Corcoran had failed to show that its agreement with
the Tyler Trust was an “applicable instrument” that needed modification so that the
Corcoran could enter into its agreement with the National Gallery. To the contrary,
the “Corcoran transferred the art works to the National Gallery for accession or
distribution,” and did so “without implicating the [Tyler Trust] agreement.” Id. at
*14. Moreover, the Court of Appeal observed that the opinion accompanying the cy
pres order had explicitly stated that “any existing donor restrictions that [we]re
applicable to the particular assets [held by the Corcoran] w[ould] remain in place.”
Id. The Tyler Trust agreement provided one such restriction. Therefore, the Court 10
of Appeal held, the cy pres order did not preclude the Corcoran from sending the
Pascal collection to California, as directed by the probate court. Id. Following this
appeal, Petty was awarded an additional $1,163.80 in costs and $140,999.50 in
attorneys’ fees.
D.C. Superior Court
While the Corcoran’s appeal was pending in the California Court of Appeal,
Petty filed a request to enforce the probate court’s judgment in the District of
Columbia—where the Corcoran’s assets, including the Pascal collection, were
located—so that she could enforce it here. See Super. Ct. Civ. R. 62-III(a). The
Corcoran responded by filing a motion for relief from enforcement of a foreign
judgment, arguing that the Superior Court should not enforce the California
judgment for the same reasons it had advanced before the California Court of
Appeal: the probate court lacked jurisdiction over it and enforcing the probate order
would violate the cy pres order.
The court denied the Corcoran’s motion. The court found that, putting aside
whether or not the Corcoran had made a general appearance before the California
probate court, it had submitted to the jurisdiction of the California Court of Appeal
and so “the California decisions are entitled to full faith and credit.” While that alone 11
was sufficient to decide the case, the court also explained, “in the interest of
thoroughness,” that it agreed with the California Court of Appeal that the cy pres
order did not cover the Pascal collection and so did not preclude compliance with
the probate court’s order. The court therefore denied the Corcoran’s motion for
relief. The Corcoran now appeals to this court.
II.
On appeal, the Corcoran reasserts the same jurisdictional argument it made
before the California Court of Appeal and the D.C. Superior Court: that the probate
court’s order should not be enforced because that court lacked jurisdiction over the
Corcoran. 1 Underlying that argument—and necessary for the Corcoran to prevail—
is the premise that we are free to reconsider that question despite the fact that the
1 The Corcoran also argues that the California courts themselves violated their full faith and credit obligations by issuing and upholding a judgment that—in the Corcoran’s view—conflicted with the D.C. Superior Court’s cy pres order. We reject this argument. The Full Faith and Credit Clause is implicated only when an issue has already been “fully and fairly litigated and finally decided,” as the Corcoran notes numerous times. Durfee v. Duke, 375 U.S. 106, 111 (1963). The Corcoran does not point to any D.C. case in which it has litigated—or in which a court has decided—whether the cy pres order covers the Pascal collection. Neither the cy pres order itself, nor the attached memorandum, make any mention of the Pascal collection. The California courts were therefore the first to address this issue; there was no prior decision to which they could have given full faith and credit. 12
California Court of Appeal has already answered it. The Corcoran argues that we
have an obligation to consider anew the probate court’s jurisdiction because “a court
asked to enforce a default judgment must entertain an attack on the jurisdiction of
the court that issued the judgment.” Jerez v. Republic of Cuba, 775 F.3d 419, 422
(D.C. Cir. 2014). The California Court of Appeal’s rejection of its jurisdictional
challenges does not affect our obligation to consider them, in the Corcoran’s view,
as it asserts that we only give full faith and credit to the court that entered the
judgment: here, the California probate court. We disagree.
Article IV, section 1 of the Constitution provides that “Full Faith and Credit
shall be given in each State to the . . . judicial Proceedings of every other State.” The
California Court of Appeal’s decision is unquestionably part of California’s judicial
proceedings in this matter, and we cannot ignore it in carrying out our obligations to
give full faith and credit to those proceedings. The California Court of Appeal
considered the jurisdictional challenge to the probate court’s order that the Corcoran
now raises before us, and it held that the probate court had properly exercised
jurisdiction over the Corcoran. See Petty, 2020 WL 4877542, at *9-14. Our
obligations under the Full Faith and Credit Clause preclude us from second-guessing
that determination, for reasons expanded upon below. 13
A.
The District’s courts are required to give full faith and credit to the “judicial
Proceedings” of other states. U.S. Const. art. IV, § 1; see J.J. v. B.A., 68 A.3d 721,
726 (D.C. 2013) (“Although the District of Columbia is not a state, the Full Faith
and Credit Clause is also applicable to the District.”). As the Supreme Court has
explained:
The constitutional command of full faith and credit, as implemented by Congress, requires that “judicial proceedings . . . shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken.” Full faith and credit thus generally requires every State to give to a judgment at least the res judicata effect which the judgment would be accorded in the State which rendered it.
Durfee v. Duke, 375 U.S. 106, 109 (1963) (quoting 28 U.S.C. § 1738). “For claim
and issue preclusion (res judicata) purposes, in other words, the judgment of the
rendering State gains nationwide force.” Baker ex rel. Thomas v. Gen. Motors
Corp., 522 U.S. 222, 233 (1998) (footnote omitted).
But decisions of other states’ courts are owed full faith and credit “only if the
court in the first State had power to pass on the merits—had jurisdiction, that is, to
render the judgment.” Durfee, 375 U.S. at 110. If the rendering court finds that it 14
did have jurisdiction to enter the judgment, then that determination is itself entitled
to full faith and credit. Id. at 111 (“[A] judgment is entitled to full faith and credit—
even as to questions of jurisdiction.”); Ins. Corp. of Ir. v. Compagnie des Bauxites
de Guinee, 456 U.S. 694, 702 n.9 (1982) (same). In Durfee v. Duke, the Supreme
Court cited a number of cases in which “the claim was made that a court, when asked
to enforce the judgment of another forum, was free to retry the question of that
forum’s jurisdiction over the subject matter.” 375 U.S. at 112. In each case, the
Supreme Court had rejected the argument, holding “that since the question of
subject-matter jurisdiction had been fully litigated in the original forum, the issue
could not be retried in a subsequent action between the parties.” Id.
The crux of this case comes down to whether the question of the probate
court’s jurisdiction has already been “fully litigated in the original forum,” such that
it cannot be relitigated before us now. Id. The Corcoran answers that question in
the negative, arguing that our court and the Supreme Court have said that full faith
and credit is owed only where issues “have been fully and fairly litigated and finally
decided in the court which rendered the original judgment.” Wilburn v. Wilburn,
210 A.2d 832, 834 (D.C. 1965) (emphasis added) (quoting Durfee, 375 U.S. at 111).
In other words, the Corcoran argues, the only relevant decision maker that we need 15
to pay attention to is the probate court itself. We find that to be an overly constrained
view of our obligations under the Full Faith and Credit Clause.
As an initial matter, the cases the Corcoran cites simply do not address the
nuance we confront today, where an appellate court in the originating jurisdiction
already resolved a challenge to the underlying judgment. And “[t]he rule of stare
decisis is never properly invoked unless in the decision put forward as precedent the
judicial mind has been applied to and passed upon the precise question.” Murphy v.
McCloud, 650 A.2d 202, 205 (D.C. 1994) (citation omitted). We will not strip
proclamations about judgment-issuing courts from their context and apply them to
this new scenario where they are entirely inapt. The same is true of the statement
that “a court asked to enforce a default judgment must entertain an attack on the
jurisdiction of the court that issued the judgment”—that statement was made in a
context in which no court had resolved the jurisdictional question. See Jerez, 775
F.3d at 422. Suffice it to say that we have never suggested that we may ignore the
authoritative rulings of other states’ appellate courts when they have already
resolved a challenge to an underlying judgment, and we are not aware of any other
court that has done so either (the Corcoran points to none). 2 And the one case we
A superficially similar—but ultimately very different—issue was presented 2
in Ahmad Hamad Al Gosaibi & Bros. v. Standard Chartered Bank, 98 A.3d 998 16
have found that directly addressed whether to give full faith and credit to an appellate
decision agreed that this was appropriate because both “the [] trial court judgment
confirming the award and the intermediate appellate decision affirming that
judgment are ‘judicial proceedings’ within the meaning of the Full Faith and Credit
Clause.” N. Ind. Commuter Transp. Dist. v. Chicago SouthShore & S. Bend R.R.,
685 N.E.2d 680, 686 (Ind. 1997) (emphasis added).
Indeed, the Supreme Court has implied that decisions of other states’ appellate
courts should play a role in the full faith and credit analysis. In Durfee, the Supreme
Court considered a suit for quiet title that had first been brought in Nebraska and
then, by the losing party, in federal court in Missouri. 375 U.S. at 108. The parties
(D.C. 2014). At issue in that case was a foreign judgment issued in Bahrain—we do not owe full faith and credit to foreign judgments—though that Bahraini judgment had been recognized and given effect in the New York courts as a “matter of comity.” Id. at 1007. The Pennsylvania courts, in turn, decided that they owed New York’s judgment full faith and credit. Id. at 1002-04. We disagreed and did not give effect to the New York judgment, concluding that a judgment that “need not be based on the rendering court’s personal jurisdiction over the parties” was not the “kind of judgment” to which we owe full faith and credit (even if Pennsylvania thought it was). Id. at 1006-07. In other words, New York’s decision to give effect to a Bahraini judgment as a matter of comity was not the type of judgment to which we owed full faith and credit. Here, on the other hand, no one disputes that the probate court’s judgment is the kind of judgment that we owe full faith and credit to. The dispute is purely over whether the Corcoran can relitigate the jurisdictional issue after an appellate court resolved it—something that did not come up in Ahmad Hamad. 17
had fully litigated a jurisdictional issue in the Nebraska trial court, which determined
that it had jurisdiction, and the Nebraska supreme court upheld that determination.
Id. The Durfee Court concluded that the federal court in Missouri had “the duty to
inquire into the jurisdiction of the Nebraska courts” and that “the jurisdictional
issues had been . . . finally determined in the Nebraska courts.” Id. at 116 (emphases
added). In other words, the Court appeared to consider the Nebraska court system
as a whole, not just the Nebraska trial court. Supporting this approach, the Supreme
Court has elsewhere noted in passing that the “Full Faith and Credit Clause and its
implementing statute speak not of ‘judgments’ but of ‘judicial proceedings’ without
limitation.” Baker, 522 U.S. at 235 (quoting Barber v. Barber, 323 U.S. 77, 87
(1944) (Jackson, J., concurring)).
Considering appellate decisions as part of the judicial proceedings to which
we owe full faith and credit makes sense. Our obligations under the full faith and
credit clause are articulated in terms of a judgment’s preclusive effect in its
originating state. See Durfee, 375 U.S. at 109 (“Full faith and credit [] generally
requires every State to give to a judgment at least the res judicata effect which the
judgment would be accorded in the State which rendered it.”). And a judgment’s
preclusive effect is inherently tied up with the resolution of an appeal from that
judgment. If the judgment is reversed, it no longer has preclusive effect. See 18A 18
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
Jurisdiction § 4427 (3d ed., 2022) (“Should the judgment be vacated by the trial
court or reversed on appeal, [] res judicata falls with the judgment.”). If it is
affirmed, only the parts of the judgment affirmed on appeal are entitled to preclusive
effect; anything the appellate court considered but did not decide is not preclusive.
See Samara v. Matar, 419 P.3d 924, 929-31 (Cal. 2018) (citing the Restatements
First and Second of Judgments and collecting cases); see also Wright & Miller,
supra, at § 4421 (“The federal decisions agree with the Restatement view that once
an appellate court has affirmed on one ground and passed over another, preclusion
does not attach to the ground omitted from its decision.”). That means it is
impossible to consider the preclusive effect of a judgment without considering
whether, and the grounds on which, it was affirmed on appeal. Here, those grounds
include an affirmance of the probate court’s jurisdiction.3
3 Ignoring the Court of Appeal’s decision would be especially anomalous here, where the question the Corcoran asks us to resolve de novo is a question of California law. The California Court of Appeal is an expert in California law. We are not. When attempting to resolve a question governed by the law of another state, we “look to the decisions of that state.” Young v. State Farm Mut. Auto. Ins. Co., 213 A.2d 890, 892 (D.C. 1965). So, if we were to decide de novo whether the probate court had jurisdiction under California law, we would look to cases decided by California courts—including the very Court of Appeal decision in this case. 19
This conclusion also aligns with the purpose of the Full Faith and Credit
Clause. That Clause was intended to avoid the “risk,” inherent in our federal system,
“that two or more States will exercise their power over the same case or controversy,
with the uncertainty, confusion, and delay that necessarily accompany relitigation of
the same issue.” Underwriters Nat. Assur. Co., 455 U.S. at 705. Those risks are not
confined to disputes among courts of first instance. Giving full faith and credit to a
judgment, without considering an appellate decision affirming that judgment, would
result in intractable inconsistencies of the type the Full Faith and Credit Clause
sought to avoid. Imagine if the Corcoran had assets in, or had disbursed works
within the Pascal collection across, all fifty states. Under its view, the courts in each
state would be left to determine for themselves whether the California probate court
properly exercised jurisdiction, and there would be no final arbiter over that
question. That would result in a highly ineffective spate of relitigation and
potentially inconsistent interpretations of the same order in the exact manner the Full
Faith and Credit Clause was meant to protect against. Not including the California
Court of Appeal’s jurisdictional determination in the full faith and credit analysis
would thus likely “result[] in two state courts reaching mutually inconsistent
judgments on the same issue,” which is “precisely the situation the Full Faith and
Credit Clause was designed to prevent.” Id. at 715. 20
Ultimately, this case boils down to whether the Corcoran should have another
opportunity to litigate a claim it has already lost. The options open to a defendant
like the Corcoran were clearly laid out by then-Judge Ginsburg in a D.C. Circuit
case:
A defendant who knows of an action but believes the court lacks jurisdiction over his person or over the subject matter generally has an election. He may appear, raise the jurisdictional objection, and ultimately pursue it on direct appeal. If he so elects, he may not renew the jurisdictional objection in a collateral attack. Should he proceed this way, he may . . . press on direct review the jurisdictional objection, along with objections on the merits.
Alternatively, the defendant may refrain from appearing, thereby exposing himself to the risk of a default judgment. When enforcement of the default judgment is attempted, however, he may assert his jurisdictional objection. If he prevails on the objection, the default judgment will be vacated.
Practical Concepts, Inc. v. Republic of Bolivia, 811 F.2d 1543, 1547 (D.C. Cir.
1987) (emphasis added, citations omitted); see also Jerez, 775 A.3d at 422. In other
words, a defendant can either litigate his jurisdictional objection in the original
forum—including in the trial court and through any appeals—or in the forum in
which the judgment is to be enforced. It is one or the other, not both.
The Corcoran picked the first route, was unsuccessful, and now tries to go
down the second route. It may not do so. The Corcoran was “always free to ignore 21
the [California] judicial proceedings, risk a default judgment, and then challenge that
judgment on jurisdictional grounds in a collateral proceeding”—i.e., in the District.
Ins. Corp. of Ireland, 456 U.S. at 706. Instead, it chose to challenge the probate
court judgment in California: filing first a motion for reconsideration in the probate
court and then an appeal to the California Court of Appeal. By choosing to litigate
its jurisdictional objection in California, the Corcoran chose its forum. It “may not
renew the jurisdictional objection in a collateral attack” here in the District.
Practical Concepts, 811 F.2d at 1547. 4
In sum, when the Corcoran submitted its challenges to the probate court’s
order to the California Court of Appeal, it chose its forum for resolving those
challenges. It does not get another bite at the apple here.
4 The Corcoran also seeks a second bite at the apple when it argues that any finding that the probate court had jurisdiction over it would violate constitutional due process because it did not consent to that court’s jurisdiction. We are skeptical of this argument. “A variety of legal arrangements have been taken to represent express or implied consent to the personal jurisdiction of the court,” including “submit[ting] to the jurisdiction of the court by appearance”—which the California Court of Appeal held happened here. Ins. Corp. of Ireland, 456 U.S. at 703. “[T]he mere use of procedural rules [to determine jurisdiction] does not in itself violate the defendant’s due process rights.” Id. at 707. In any case, we need not decide the question because the Corcoran already had the opportunity to make its due process argument in the California Court of Appeal and “there is involved in [the Due Process Clause] no right to litigate the same question twice.” Baldwin v. Iowa State Traveling Men’s Ass’n, 283 U.S. 522, 524 (1931). 22
B.
There is one potential outstanding issue, which is whether the challenges the
Corcoran now raises were in fact fully and fairly litigated in the California Court of
Appeal. Though “a state court’s final judgment determining its own jurisdiction
ordinarily qualifies for full faith and credit,” it may not in those cases where the
jurisdictional issue was not “fully and fairly litigated.” Marshall v. Marshall, 547
U.S. 293, 314 (2006) (citing Durfee, 375 U.S. at 111). While we make clear today
that the Full Faith and Credit Clause extends to decisions of other states’ appellate
courts when they resolve a challenge to an underlying judgment, those appellate
decisions may also be challenged on the basis that the issues they resolved were not
fully and fairly litigated—as in any other full faith and credit challenge.
The Corcoran did not raise that type of challenge to the California Court of
Appeal’s decision in its briefing before us, but it seemed to present one for the first
time at oral argument. We are not obliged to address its late-breaking contention.
See Woodard v. United States, 738 A.2d 254, 259 n.10 (D.C. 1999) (refusing to
consider point raised for the first time at oral argument); RDP Dev. Corp. v.
Schwartz, 657 A.2d 301, 304 n.3 (D.C. 1995) (same). Nonetheless, we exercise our
discretion to do so, and conclude that it lacks merit. 23
At oral argument, the Corcoran argued that the record does not reflect whether
it had been given the opportunity to fully and fairly litigate its case in the California
Court of Appeal because there is no record of any briefing in that court before us
here. We disagree and conclude that there is abundant evidence that the issues were
fully and fairly litigated in the California Court of Appeal. First, recall that the
Corcoran brought the appeal in California, so if it did not fully brief its jurisdictional
challenges, that is a failure we would hold against it, not the Court of Appeal.
Second, the briefs before the California Court of Appeal are publicly available court
filings that we can take judicial notice of, and will do so here. See In re Marshall,
549 A.2d 311, 313 (D.C. 1988) (citing Coleman v. Burnett, 477 F.2d 1187, 1198
(D.C. Cir. 1973)) (acknowledging this court’s “power to judicially notice
proceedings in related cases”). The briefs before the California Court of Appeal,
unsurprisingly, comprehensively articulated the Corcoran’s jurisdictional
arguments. See, e.g., Brief for Appellant at 20-32, Petty v. Corcoran Gallery of Art,
2019 WL 956458 (Cal. Ct. App. Feb. 25, 2019). Third, the California Court of
Appeal’s opinion states in its jurisdictional analysis that it is responding to
arguments made by the Corcoran and it even explicitly references briefing submitted
to it by the parties. See Petty, 2020 WL 4877542, at *1, *11 n.15. 24
There is thus no cause to doubt that the Corcoran fully and fairly litigated its
jurisdictional arguments before the California Court of Appeal, and the D.C.
Superior Court was correct to give full faith and credit to that court’s decision, which
already resolved the issues the Corcoran seeks to relitigate before us.
III.
We affirm.
So ordered.