Third Judicial District Court
Dofia Ana County, New Mexico
201 W. Picacho Ave.
Las Cruces, NM 88005
Clerk of the Court 5 /5- Sts-BZqE
Dear Clerk,
I am enclosing A FAX WITH ATTACHMENT. I am mailing a copy to each defendnat and two
(2) copies to the court.
Thank you in advance,
n
HhA)b*oe
Patrick D. Tays, pro se (/
134 Mama Dean Ln.
Arab, AL 35016 (256) 586-1398
Defendants:
C. Lamont (505) 842-1950
500 Marquette NW ste I100
/oFW
Albuquerque, NM 87102
K. Mundy c/o
Stevens and Associates
221 N. Kansas ste 500
El Paso TX7990l (915) 532-4228
conspiracy_lamont_mrmdy
Third Judicial District Court
DoflaAna County, New Mexico
Plaintiff, Patrick D. Tays
v.
Defendants.
Charlotte Lamont, unknown other and
Karen Mundy
No. CV- 2408-2244
PLAINTIFF'S MOTION TO RECONSIDER
1. Under the New Mexico Rules of court, based upon the following and all applicable law, rules
and statutes Plaintiff hereby MOVES for reconsideration by this court of its rulings on April 28,
2009.
2. This court heard no testimony.
3. This court ruled that (paraphrase) "under no set of facts" did plaintiffhave standing to file a
claim.
4. This court further articulated the opinion that claims regarding these parties should be filed in
Otero County (12tr Judicial District).
5. This court found against Plaintiff with prejudice without taking any evidence.
6. This court should reconsider that ruling and grant plaintiffleave to pursue discovery.
7. Plaintiffmade statements that Defendant (Def.) Lamont's statements were nothing more than
her story of past events. As it seems the court placed great emphasis on her (Def. Lamont)
statements the 8. Plaintiffoffers his version of history below.
PLAINTIFF'S BACKGROUND VERSION
9. In 1998 Melvin E. Tays, Sr. (Mr. Tays) died. Mr. Tays was wealthy. Mr. Tays had previously
testified in Federal Court (1Oth dist.) that he was worth something over $5,000,000 (five million
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dollars).
10. Mr. Tays was a well known business and political figure throughout New Mexico and
beyond.
11. On the day of Mr. Tays' funeral the Personal Representative and Def. Lamont held a meeting
of all the beneficiaries of Mr. Tays' estate, various trusts and partnerships. At that meeting Dave
Metler (accountant, book keeper, business manager and handler of the Personal Representative)
made presentations relating to the distributions of the various business entities involved along
with the estate. 12. Dave Metler had been Mr. Tays'book keeper for many years having
complete access to all accounts. As proof and statements by the personal Representative (PR)
later would show, Dave Metler aided the PR in taking $100,000 (one hundred thousand dollars)
from accounts belonging to Mr. Tays the year previous to Mr. Tays' death. The PR made
statements to others that he (PR) was trying to take $1,000,000 (one million dollars) but got
caught. As it turned out, Charles Schwab Brokerage had alerted Mr. Tays to the sudden
withdraw of monies. This caused Mr. Tays to remove signature authority from those accounts.
13. A short time later, during the first hearing judicially approving the PR of Mr. Tays' estate,
Def. Lamont stood in Judge Ritter's court (l2m Judicial District, Otero county) stating that she
would ensure that all matters would be perfiormed in accordance with Mr. Tays'will and the law.
She further assured the court and the gathered beneficiaries that the estate would be closed
within nine (9) months and that distributions would follow thereafter.
14. Without court approval or notice to the Plaintiff(a beneficiary and representative of some of
the entities) a ten (10) year extension was applied for with the lnternal Revenue Service. This
extension was granted due to extensive real estate holdings. All these facts were known to Def.
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Lamont at the time she lied to Judge Ritter in open court.
15. At that time she lied to the beneficiaries twice. Once at the post-burial meeting and again in
court. There were three brothers, a grandchildren's and a great-grandchildren's trust to receive
Mr. Tays forfune along with limited parbrerships and a corporation or two.
16. As of this date ONLY Def. Lamont's client has benefited.t
17. The great-grandchildren have received nothing.
18. The grandchildren's trust which owns property has been unable because of Def. Lamont's
machinations to sell any property- thereby those grandchildren have revived nothing.
19. The two brothers have revived $5,000 each more than 8 years past. They then were sued and
expended that money to deal with ttrat suit.
20. The estate owes the Intemal Revenue Service (IRS) approximately $600,000 (six hundred
thousand dollars) as of this date including penalties and interest. The IRS has been trying to
collect from Plaintiffand recently seized his bank account to pay a portion of outstanding levies
due to the management overseen by Def. Lamont.2
21. There have been five settlement agreements prior to the current one. In each of those five,
Def. Lamont vacated the settlement on her own volition or supposedly on behalf of her client.
22-Def. Lamont vacated one settlement agreement causing the Plaintiffto suffer the costs of bad
checks into his account and lose of travel deposits. Additionally, she claimed to have called
Judge Woods of the Third Judicial District at the behest of the Plaintiffto arange for him to be a
mediator. She informed the Plaintiffthat Judge Woods calendar was full for the agreed time.
Plaintiffcalled Judge woods clerk and learned such was not the case.
I Plaintiffand Melvin Tays Jr received $5,000 from the estate more than 8 years past. They then were sued by the
PR and expended that money defending themselves.
2 See attached forcopy oforiginal levy
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23.a) TWo settlements involving money with one involving real estate have occurred. In each
the PR received extra money ($75,000 total) to pay property taxes and settlement expenses only.
The PR has not paid property taxes. Def. Lamont oversaw both of these and has as much
responsibility as the PR.
23.b) The Plaintiffhas paid property taxes. Otherwise the real estate would have gone to the
state. Dave Metler lied on the witness stand in Judge Ritter's court relating to property taxes.
Def. Lamont knew it at the time.
24.The essence of those sefflements was very little property or money when compared to the
present settlement. It takes no stretch of the imagination to deduce why the other settlements
were void AFTER her client received his share.
25. With the present settlement, Def. Lamont stands to gain a large amount of real estate as
recompense for pursuing legal action as her client has long been strained for money. There is
every reason to believe she acts for herself as well as for her client.
26.Def. Lamont was tasked by Judge Ritter to find an "acceptable" appraiser. The one Judge
Ritter recommended Def. Lamont later said was unavailable. Plaintiffchecked with that
appraiser and discovered that statement from her was false.
27.In the present action before this court Def. Lamont purposefully chose an appraiser with
business ties to her client. This by itself is reason enough to find against her. There is no o'arms-
length."
28. Def. Mundy articulated the "chilling effect" of court appointed assistants being open to suit
while claiming some type of ipso facto judicial shield for those persons. This is govemmental
immunity by another name. To allow for this in an unchallenged manner obviates the entire
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system of checks and balances inherent within the American and New Mexico forms of
govemment.
PLAINTIFF'S REQUEST AND DEMAND FOR RECONSIDERATION
29. This court ened in dismissing the complaint as factual issues still remain. Some of those
issues are:
a) did Def. Lamont and Def. Mundy discuss aspects of the appriasal?
b) why was the plaintiffomiued from those discussions?
c) what are the terms of Def. mundy's employment?
d) why did Def. lamont ignore Judge Ritter's instruction regarding access to the appriaser?
e) why did Def. mundy refuse to communicate with the Plaintifl
0 why did def. Mundy submit an offer for employment that only addressed a portion of the real
estate involved?
g) what role will or does Dave Metler play in Def. Mundy's appraisal?
30. There are other questions, the above is only illustrative of the open issues not addressed by
the court. As in Spencer v. Health Force, Inc.,I07 P.3d 504, 137 N.M. 64 (N.M. 0113112005)
and it's progeny, summary judgment is proper only if no genuine issue of fact is left unresolved,
Rehders v. Allstate Ins. Co,,2006-NMCA-058, 139 N.M. 536, 135 P.3d237.
1121 Summary judgment is proper only when there are no genuine issues of material fact and the
movant is entitled to judgment as a mafter of law. Rule l-056 NMRA. The movant has the initial burden
to show that there is no genuine issue as to a material fact and that judgment in its favor is therefore
appropriate. Spencer v. Health Force, Inc.,2005-NMSC-002, tT7, 137 N.M. 64,lA7 P.3d 504. The burden
then shifts to the opponent to show at least a reasonable doubt as to the existence ofa genuine issue offact.
Id. We view the facts in a light most favorable to the party opposing summary judgment, and draw all
reasonable inferences in favor of a trial on the merits. Id. Where the material facts are undisputed, leaving
only legal questions, our review of the district court order granting summary judgment is de novo. Ocana
v. Am. Furniture Co., 2004-NMSC-018, I12, 135 N.M. 539, 9l P.3d 58; Barncastle v. Am. Nat'l Prop. &
Casualty Cos., 2000-NMCA-095, !l 5, 129 N.M. 672, ll P.3d 1234.
31. Does Def. Lamont owe a dutv to Plaintifl
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32. This is a question of law that should be answered after a jury has determined the facts.
33. The jury should hear all the facts leading up to thew present matters and then adjudge as it
(the jury) sees fit.
34. While in many instances duty is a question of law, in some instances it (duty to othets) is a
question of fact best left to a jury.
35. Foreseeability is best left to a jury in the situation like the present case.
36. Proximate cause can best be determined by a jury.
37, Negligence, as in the present case, can be decided by the judge but also is a matter within the
jury's domain when reasonable minds could (permissive) disagree Oveclra v. Burlington
Northern Santa Fe Railwoy Co.,194 P.3d 728, 145 N.M. 113, 2008 -NMCA- 140 (N.M'App'
a7t09l2a0v.
{28} While negligence and causal connection are normally questions to be presented to the jury' where
reasonable minds cannot differ, the issues are appropriately resolved by the judge' Calkins v. Cox Estates,
ilON.M.59,65n.6,792P.2d36,42n.6(1990)("Acourtmaydecidequestionsofnegligenceand
proximate cause, if no facts are presented that could allow a reasonable jury to find proximate
iause[.]"); Spencer v. Health Force, Inc.,2005-NMSC-002, 1[ 23,137 N.M. 64, 107 P.3d 504.
{29} In Lessard, however, we held that the question of nexus between the plaintiffand the employer was
one'"of proximate cause and not foreseeability in the context of duty." Lessar4 2007-NMCA-122,[38.
Withoufdeparting from that holding, we evaluate the causal relationship between BNSF s employrnent of
Long and Ovecka's death. A salient question is whether the employment of the tortfeasor created the
sirua*tion where the third person was harmed. Spencer, 2005-NMSC-002, u 22. It must be the negligent
hiring or retention of an employee that becomes the "efficient cause" that sets in motion the circumstances
leading to the injury. Gaines v. Monsanto Co., 655 S.W2d 568, 571 (Mo. Ct. App. 1983). The causal
connection must include negligence in "selecting or controlling an actor, the actor's employment or work,
and the harm suffered by the third party." Restatement (Third) ofAgency $ 7.05 crnt. c, illus. 5 (2006);
Lessard, 2007-NMCA-122,.fi 38. BNSF must have employed Long in a position that would foreseeably
creat€ a faceable risk of hann to others because of Long's hiring by BNSF Spencer, 2005-NMSC-002, $
10.
38. As in the present case, Def. Lamont was acting on Plaintiffs behalf whether she was his
arrorney or someone else's attorney as she had accepted judge Ritter's charge relating to
contracting with an appraiser.
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39. Def. Mundy likewise does not escape scrutiny by clairning to be some type of ipso facto
judicial offficer. Had this been true then Def. Mundy would have responded to Plaintiffrather
than having Def. Lamont shield Def. Mundy from Plaintiffs inquireies.
40. Both Defendants owed duties to Plaintiff. Salas v. Mountain States Mutual Casualty Co.,
2oo9 -NMSC- 00s (N.M. 0210412009)
{ I 3 } "Whether express or not, every contract imposes upon the parties a duty of good faith and fair dealing
in its performance and enforcement. Broadly stated the covenant requires that neither party do anything
which will deprive the other of the benefits of the agreement." Watson Truck & Supply Co. v. Males, I I I
N.M. 57, 60, 801 P.2d639,642 (1990) (internal quotation marks and citations omitted).
41.Def. Lamont's contact with Def. Mundy was not an advesarial proceeding. Advesarial
proceedings in this matter had ended with Judge Ritter's express orders relating to hiring an
appraiser. Durham v. Guest,l71 P.3d 756,142 N.M. 817, 2007 -NMC A- 144 (N.M.App.
0813U2007)
{ 16 } The district court dismissed the claim of aiding and abetting a breach of fiduciary duty on grounds
that an adversarial proceeding was clearly anticipated at the time Defendant was hired by Allsbte. The
court relied on Garcia, 106 N.M. at76l,750P.zdat 122, which holds that "[a]n attorney has no duty . . . to
protect the interests ofa non-client adverse party for the obvious reasons that the adverse party is not the
intended beneficiary ofthe attorney's services and that the attorney's undivided loyalty belongs to the
client." Plaintiffs admit the essential fact on which the district court relied --
42. Prior to deciding breach by an attorney the court must consider the underlying facts. Bassett
v. Sheehan, Sheehan & Stelzner PA.,l84P3d 1072,144 N.M. 178, 2008 -NMCA- 072
(N.M.App. 041 r7 12008) .
{ l1} In determining whether an attorney has breached a duty, this Court has considered the facts of the
underlying dispute in order to determine whether an attorney's failure to act could have been negligent. In
Selby v. Roggow, 1999-NMCA-044,126 N.M. 766, 975P.zd379
43. This court considered nothing more than pleadings and arguments. No facts, per se, wsre
considered.
THEEFORE PlaintiffMOVES that this court VACAIE its previous rulings and allow discovery
to proceed to trial.
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On the below date I mailed a copy of these papers to the below addresses. This mailing was by
accomplished by placing an envelope with postage in a U.S. Government receptacle designed to
take class Fgfi$er I faced a copy to the court.
134 Mama Dean Ln.
Arab, AL 35016 (2s6) s86-r398
Defendants:
C. Lamont (505) 842-1950
500 Marquette NW ste 1100
Albuquerque, NM 87102
K. Mundy c/o
Stevens and Associates
221 N. Kansas ste 500
ElPasoTx79gol (915't5324228
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Department of the Treasury - Internal Revonue $ervice
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AtauQuERQUE, NM 87L54-0759
$'lPOnfAilT REIEAI$E INfOR}ilATKllll For cach Eesogsment llsted bslow,
unbss notice oi the llen id refllcd by the dsto given In column {e}, thls notice ehall.
on th€ dsy following ssch date, opstato as a certificate of releaee og defined
in IRC O326la).
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EOUNITY CIJERK
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DEbT\TER, CO
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