motion to reconsider by Joedoaks

VIEWS: 159 PAGES: 10

More Info
									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,
Patrick D. Tays, pro   se     (/
134 Mama Dean Ln.
Arab, AL  35016             (256) 586-1398


C. Lamont (505) 842-1950
500 Marquette NW ste I100
Albuquerque, NM 87102

K. Mundy c/o
Stevens and Associates
221 N. Kansas ste 500
El Paso TX7990l      (915) 532-4228

Third Judicial District Court
DoflaAna County, New Mexico
Plaintiff, Patrick D. Tays
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,


2. This court heard no testimony.

3. This court ruled that (paraphrase) "under no set of facts" did plaintiffhave standing to   file   a


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.


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

                                                                         Reconsider mtrndy/lamont

10. Mr. Tays was a    well known business and political figure throughout New Mexico and


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.

                                                                            Reconsider mundyllamont
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

                                                                                   Reconsider mundy/lamont
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-


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

                                                                            Reconsider mundyi lamont
system of checks and balances inherent within the American and New Mexico forms                       of



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

                                                                                    Reconsider mundv/lamont
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'


           {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,
          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, $

 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.

                                                                                        Reconsider mundy/lamont
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.


        { 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

THEEFORE PlaintiffMOVES that this court VACAIE its previous rulings and allow discovery
to proceed to trial.

                                                                                     Reconsider mundy/lamont
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


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

                                                                    Reconsider mundy/lamont
                                               Department of the Treasury - Internal Revonue $ervice
Ioru 66i {fXc)                                                                                'llcn
tRsv. Frbalary 20O4)                                   Notlce af Federal T
Arga:                                                           $erial Number
Lien Unit PhonE:(800) 913-6050                             . 3667?1607
 Ar prwldsd bf glon 6t21,'6722; rnd 632I of rhr lnlGmal Rr*ctuc
 Codc, uG gt^fMng e notke thrt texcr (lncludlng htcrret and penaltb)
 hil'3 btcn di.cs.d efnin$ tbc follfitlgnanied tarFftcr. Wc hrve nadc
 a d:nad for prpnut of dfu lhblllty, bst h r.rmehr unpald- Thertfore,
 thsc b a Em h fryor of the Unlnd $t*irs ol ill Flopirty etrd lthtr to
 profdt bdonfbs to thlt t tP.rcr for thr arcunt of th.* Fxst, and
 addltlonel pG[NItIq' krtrrcctr.and costl that nay atcnrc'

Resldencs                 PO BOX 20759
                          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).

                                                                                                                        Unpdd Felrncc
 l(hd of Tax                                                                                                            of Assssmrnt

      706              06/Lo/Le98            Hrx-Nx-5809V               6/.25laoar           07   /2s   l?AtL                   43922t,28

                                EOUNITY CIJERK
                            .   OfERCI    COUI{IY                                                          Totel               43922L.28
               /'               AI,AI'IOGOR.DO, NM 88401

                                                                  DEbT\TER, CO
 This notlco wae piepaed and signed at                                                                                                 ,0n thi3,

                                                                             DnIE,9/it/87 a€€ TIll€:t:!3:!p fltl,!*sTr*l2qf/7g,&3a Cl*.   .3*)
               23rcl            of May
 tre                      day                          ,   Z$OT        0TEn0 couNTY,Rosyil mLl{Eg    c0tslw cLEnK ps I 0F t

                                                                               l'$?Errir' oFFrc€R                               26- 08-411-5
  for      BI|RON                                                               i90?) 4s6-0304
          (llglEt   Ceillloaro of otftcor aufiorized by lsw to trko lcknowlcdgment ls not'ss.6nti6l to fie vrlldily of libtics ol F€doral T.x llgn
          Rev, Ruf,71-46e. 1571 - Z C.B.4OSl                                                                         rorm 66t(Y)(c) {Rev. 2-2004}
                                                          hn | . |(rpt Fy frcordH Ofibr                                            cAT. NO 80026X

                                                                                          107- i-1it-6>53                                            6'-t1*t

To top