STATE OF NEW
MEXICO
COUNTY
OF BERNALILLO
IN THE SECOND JUDICIAL DISTRICT COURT
DAVID DERRINGER
Plaintiff, consolidated
No.
CV-12-1307 and No. CV-12-10816
v.
DEBBIE HARMS, IRWIN HARMS, BARRIE CROWE AKA
BARRIE DERRINGER AKA BARRIE BEVERLEY, ALAIN JACKSON,
GERALDINE (JERRY) CROWE, AND
WARREN
CROWE; ALL AS INDIVIDUALS,
Defendants,
PLAINTIFF’S
MOTION FOR RE-INSTATEMENT OF ORIGINAL COMPLAINT OF CV-12-1307 BOTH PARTIES AND
SUBJECT MATTER DUE TO CONSOLIDATION WITH CV-12-10816 FOR JUST CAUSE OF VIOLATIONS
OF LAW UNDERLYING CV-12-1307 UNDER NMRA RULE 1-060, AND MOTION FOR ORDER TO
DISCLOSE BY ALL DEFENDANTS 10 PERSONS IN THE ASSAULT AND BATTERY ISSUES OF BOTH
CASES
COMES
NOW the Plaintiff, with his motion as stated above.
In
the original case CV-12-1307 gross legal error was made by the presiding Judge
Malott, dismissing both several parties and much subject matter regarding the
violations against David Derringer in tort regarding his wife Barrie Derringer
including, but not limited to “loss of consortium”, “alienation of affection”,
interference with a legal marriage contract, and emotional distress regarding
interference with the Derringer marriage by Steve Maestas, Maestas and Ward,
Sun Vista and other parties un-named that included 10 other persons beyond
Debbie and Irwin Harms that participated in assault and battery against David
Derringer and breaking into the Derringer storage personal property. In
atrocious legal error Judge Malott dismissed any party having to do with any
aspect of the Derringer marriage interference,
with judgment that such claims as “loss of consortium” were not torts in
the State of New Mexico.
In the consolidation hearing of May 30, 2013, Plaintiff David Derringer made it
clear to the court that the “loss of consortium” and related subject matter
issues were definitely torts in New Mexico and such a ruling in legal error was
under NMRA Rule 1-060 and “jurisdictional issues” to be resolved so as not to
make the same exact legal error in CV-12-10816 after consolidation. Judge
Malott refused to correct his legal ruling, despite the collateral attack by
the Plaintiff for just cause and after even reading into court record the case
laws that sustained that the previous dismissal of those matters in CV-12-1037
was legally in gross error. Now, after the consolidation process, the legal
error of CV-12-1307 is intertwined with CV-12-10816 whereas in CV-12-10816 the
same issues of including, but not
limited to “loss of consortium”, “alienation of affection”, interference with a
legal marriage contract, and emotional distress regarding interference with the
Derringer marriage are again before this new court judge, and this time the law
cannot be again disregarded and denied against the Plaintiff with attending
deprivations of due process and equal protection, and all matters of this
action must be heard according to law. Since Judge Franchini of the New Mexico
Supreme Court has already made a ruling that “loss of consortium” and
intertwined issues of “alienation of affection” and emotional distress damages
and interference by third parties to a marriage “are torts” in New Mexico, this
new judge is mandated to re-instate the original Complaint of CV-12-1307 for
all issues to be litigated properly with due process and cannot after consolidation
either allow the errant dismissal to stand in this matter for the same issues
in both cases, nor can this court summarily dismiss the issues in CV-12-10816
that were dismissed in legal error in CV-12-1307. Hence the Plaintiff asks this
court to immediately re-instate all of the original Complaint of CV-12-1307
with attending all issues and against all original parties.
The
Second Judicial District Court has both jurisdiction and venue over both the
parties and subject matters of both suits and cannot make rulings in one case
of a consolidation without making the same rulings in the other case of the
consolidation and such rulings are mandated to be in compliance with law. Since
the rulings in CV-12-1307 when a separate case were in gross legal error, this
judge has both the jurisdiction and duty to correct these legal errors under
NMRA Rule 1-060 “mistake of law” and not to persecute and deny due process to
the Plaintiff over these errors before the consolidated case is through, as
well as this court cannot use errors in law to defeat due process and equal
protection in the consolidated second case CV-12-10816. Accordingly, if the
opposition attempts to mis-use the ruling of the first case in any motion to
dismiss the same issues and claims in the second case, now that the two are
consolidated, the Plaintiff stands before this court with notice of their
deliberate violations of NMRA Rule 1-011 and wherein at that time sua sponte
sanctions in an extreme amount would be necessary from this court.
The “jurisdiction” has been denied
to the Plaintiff over issues in CV-12-1307, and redress against the proper
parties has been denied in CV-12-1307 with actions of the court well outside of
the law. This leaves the Plaintiff of CV-12-1307 without remedy of tort claims
and prosecution of the proper parties; matters that the Plaintiff is forced in
that case to attempt to remedy upon a proper remand after appeal, leaving the
Plaintiff without remedy in that case of many issues. Now, with consolidation,
an appeal of those issues is not forthcoming, and the jurisdictional trial
court has every ability to correct these legal errors before the case
continues, and certainly cannot force upon the Plaintiff these same and further
legal errors to force another appeal of the consolidated matter on future
appeal. Some of these same issues exist in CV-12-10816 and cannot be allowed to
be dismissed as in legal error of CV-12-1307.
In CV-12-1307, “Parties” of Steve
Maestas, and Maestas and Ward and Sun Vista Corporations have been “dismissed”
regarding the legal issues of “loss of consortium”, “alienation of affection”
and “interference with a legal marriage contract” by the court with errant
decisions under law stating that such tort claims do not exist in New Mexico. The Plaintiff
has been denied redress against these parties even though the Plaintiff’s
claims are sustainable under all NM laws. The “subject matter” of “loss of
consortium”, “alienation of affection” and “interference with a marriage
contract” as well as infliction of emotional distress and related “subject
matter” has been denied redress even though entirely supported by the
Plaintiff’s evidence, and under legal “torts” in the State of New Mexico.
Specifically one case law entirely defines that the “loss of consortium” does
exist in New Mexico.
Romero v. Byers,872 P.2d 840,
117 NM 422 rehearing denied. “A claim for loss of spousal consortium exists
under New Mexico law; overruling Rosebery
v. Starkovitch, 73 NM 211, 387 P.2d 321; and Tondre v. Thurmond-Hollis-Thurmond Inc., 03 Nm 292, 706 P.2d
156. Now, with the consolidation of cases, these same tort claims exist against
the Defendants of CV-12-10816 of Geraldine Crowe and Warren Crowe and Alain
Jackson. The New Mexico Supreme Court and multiple case laws entirely support
the Plaintiff’s claims of “loss of consortium”, “emotional injury”, “alienation
of affection” and “interference with a marriage contract” making that former ruling
in legal error by Judge Malott in CV-12-1307 in which he was unwilling to correct,
despite notice that all laws had been violated by his errant legal ruling. Such
case laws to be presented in legal argument are:
Gonzales v. Allstate Ins. Co. 921
P.2d 944, 122 NM 137 1996-NMSC-041 rehearing denied.
Archer v. Roadrunner Trucking Inc.,
930 P.2d 1155, 122 NM 703, 1997-NMSC-003.
Martinez v. Lucero, 1 NM 208, 1 gild
208.
Murray v. Murray, 240P 303, 30 NM 557.
Trujillo v. Board of County Commissioners
of Santa Fe County, 768 F.2d 1186.
Thompson v. Chapman, 600 P.2d
302, 93 NM 356, cert denied 593 P.2d 1078, 92 NM 675
Birchfield v. Birchfield,217 p.
616, 29 NM 19.
In
Murray v. Murray, 30 N.M. 557, 240 P. 303, N.M., September 10, 1925 (NO.
2915) ...alienation of the affections of a spouse is the loss of consortium...“Consortium” is the conjugal
fellowship as husband and wife, and the right of each to the company,
co-operation, affection and aid of the other in every conjugal relation. ‘The
loss of the society, companionship, fellowship, comfort, conjugal affections and
support of the husband, when caused by any third person maliciously invading
the hallowed precincts of the home, and without justification severing the ties
which bind the husband and wife together, from which a separation flows, is tortious, and the person who
does so may be required to respond in damages. In this stare decisis case law,
where a judgment in favor of a wife whose husband's affections had been
intentionally alienated was affirmed. Dean Prosser and the writers of law review
articles have exposed the rule which in our enlightened era has preserved a
right in a husband to recover for loss of consortium with his wife because of
negligence. See Prosser on Torts (2nd
Ed.) § 104; 22 Mich.L.R. 1; 26 Harv.L.R. 74; 29 Ill.L.R. 460; 30 Colum.L.R.
651; 35 Ky.L.R. 220; 9 Ind.L.J. 182; 5 Cornell L.Q. 171; 39 Mich.L.R. 820; 39
Cornell L.Q. 761; 23 Cincinnati
L.R. 108; 4 St.Louis U.L.J. 424. In Soto v.
Vandeventer, 56 N.M. 483, 245 P.2d 826, 35 A.L.R.2d 1190. Since the nature of
the recovery becomes material, we would call attention to the following, quoted
in Soto v. Vandeventer, 73
N.M. 211, 217, 387 P.2d 321, 325. In Funiak, Principles of Community Property,
82: The courts which declare that the injury to one spouse gives the other
spouse a right of action for loss of consortium and that the right of action is
an individual property right belonging to the latter spouse. Hitaffer v. Argonne
Co. 73 N.M. 211, 218, 387 P.2d 321, 326 It has been the law that the
husband can recover for the loss of ‘consortium,’. It has also been the law
that both husband or wife can recover for intentional interference of a
marriage contract. If the loss of consortium is protected against willful
interference it ‘must be predicated on a legally protected interest.’ And if it
is ‘legally protected’ it must equally be protected against negligent
interference. To distinguish is ‘neither legal nor logical.’ But the law, of
course, often distinguishes between willful and negligent interference as in
the cases of emotional distress. An interest is protected in so far as it
serves a social purpose to protect it. When the act is willful the law may
award damages for penal purposes. But more basically the law quite properly
recognizes that a willful assault on the personality inflicts a far more
serious blow. It is almost unthinkable that a court should reduce consortium to
the bare element of the opportunity for sexual intercourse and pretend to see
no basic difference of offense to the wife's interest between the incidental
loss of that opportunity and the deliberate destruction of the whole marital
relationship. The husband was entitled to his wife's service and this included
the sentimental elements of her person and presence. Murray v. Murray 240 P. 303, 304 An action by a
married woman against the parents of plaintiff's husband for alienation of her
husband's affections will lie, even though plaintiff's husband has not
completely and in a literal sense abandoned her. In action by wife against
husband's parents for alienating his affections, presumption that advice of
parent to child is made in good faith is overcome, where interference between
husband and wife without reason or excuse is shown.
In an action by the wife for alienation of her husband's
affections, statements of her husband would not be competent evidence of
affirmative hostile actions on the part of the defendants, but, so far as such
statements tend to show the condition of her husband's mind and feelings toward
the plaintiff at the time, and the effect of the conduct of the defendants upon
the affections of her husband for her, they are competent for this limited
purpose. In view of Code 1915, §§ 2165, 2167, 2168, and 2174, relating to
rights of one spouse to testify in trial in which other is concerned, letters
written to wife by husband, showing deep affection, were admissible to rebut
claim of his parents, sued by her for alienating his affections, that no
affections existed between them; such communications not violating rule as to
privileged communications. The Plaintiff brought an action for damages against Defendants
for the alienation of the affections of Plaintiff's husband, and recovered a
verdict and judgment. In this matter, not only does David Derringer have
witnesses to the perfect and harmonious conjugal relationship of Barrie and
David Derringer while married, but also Sprint text messaging and cards, emails
and other “documents” to prove the love and sincerity of the marriage before
interference won in cult control and power of parents after a disaster of a
home fire and pets burned that destroyed the will and sanity of Barrie
Derringer, making her susceptible to any outside influence of all Defendants. Birchfield v. Birchfield, 29 N.
M. 19, 217 P. 616. In a case like this, where the interference is shown, and no
reason or excuse for the same can be deduced from the circumstances, there is
nothing to which it can be attributed except malice of the parents. 13 R. C. L.
“Husband and Wife,” § 525; Weber v. Weber, 116 Minn. 494, 134 N. W. 124; Cornelius v.
Cornelius, 233 Mo. 1, 135 S. W. 65.
The Plaintiff can decisively show in CV-12-1307 and CV-12-10816
that there has been willful, deceitful and malicious interference with the
Derringer marriage by the original Defendants in CV-12-1307 and all Defendants
in CV-12-10816. Clearly, if the Judge erred in law in dismissing all claims and
parties revolving around the loss of consortium and interference with a
marriage contract in CV-12-1307, the consolidation of the case CV-12-10816
would entail the legally errant dismissal of the same actions of tort in the
other case, leaving again the Plaintiff with no redress, despite the law
sustaining the facts for recovery, simply due to a judge not in compliance with
all law. This would leave again the Plaintiff in CV-12-10816 without redress
until an appeal and remand for prosecution and recovery. Without any legal
doubt, the “dismissed” Defendants of CV-12-1307 need to be re-instated and
prosecuted for the tort acts dismissed in legal error, and all Defendants of
CV-12-10816 need to be sustained and held accountable in actions of all torts
related to the dissolution of the Derringer marriage due to “interference” by
third parties not of the Marriage contract. With the case separate, the judge
of CV-12-10816 was not bound by the errant decisions of the judge of CV-12-1307
regarding the marital interference issues, but now that the cases are
consolidated under now a new judge, it is the duty of the new judge to comply
with law as Canon demands and overturn the errant ruling of CV-12-1307 and move
forward with evidence and law that will sustain all of the Plaintiff’s claims
over these matters in “due process and equal protection” With the laws and the
New Mexico Supreme Court rulings on the side of David Derringer, the rulings of
Judge Malott have to be reversed to prevent any further deprivation of rights
against the Plaintiff. Additionally, the judge in CV-12-1307 had the power to
reconsider his own order, and refused to do so. This judge has to rule in
compliance with law in past rulings that are not in compliance with the New
Mexico Supreme Court rulings on torts of loss of consortium and other issues of
the two suits regarding the interference with the Derringer marriage. US v. Colombo, 616 F.
Supp. 780 reversed 777 F.2d 96 “EDNY 1985 Judicial officer, whether magistrate
or judge, has inherent power to reconsider his own order.”; In re KAR Development Associates,
LP 180 BR 629 stay denied 182 BR 870 “One district judge is not bound by decision of another district judge
sitting in same district.”
Clearly, in CV-12-1307 the errant legal dismissal is prejudicial
to the Plaintiff in not only that case but would be an additional burden and
prejudice in CV-12-10816 as now the two are consolidated. Reichelt v. US Army Corp of Engineers,
923 F. Supp. 1090 “ for error to be “prejudicial”, it must affect substantial
rights of aggrieved party.” The error of dismissal in CV-12-1307 goes against
the higher courts previous rulings on the matters at hand.
This matter has already been decided in the New Mexico Supreme
Court by the Opinion of Supreme Judge Franchini, which in part states: This is
a consolidated appeal arising from our grant of certiorari (No. 20,441), and
acceptance of a related question certified from the Court of Appeals (No.
20,640), in the case of Romero v.
Byers; and our acceptance of two questions certified to us from the
United States District Court, District of New Mexico, in Sears v. Nissan (No. 20,794). In Romero, we consider whether New Mexico should recognize a claim for loss
of spousal consortium. We hold that the time has come for New Mexico to recognize that claim. On
certiorari in No. 20,441, we reverse the Court of Appeals' holding that the
surviving spouse could not recover damages for loss of consortium in her own
right. With regard to the related question certified from the Court of Appeals,
the trial court, in ruling on a motion in limine, found that loss of consortium
damages may not be awarded for spousal loss of consortium under the New Mexico
Wrongful Death Act, NMSA 1978, Sections 41-2-1 to 2-4 (Repl.Pamp.1989) (
“Act”). We affirm the trial court's grant of the motion in limine. The loss of
consortium claim is a separate cause of action to be brought by the spouse. In
the first question from Sears, we consider two issues: First, whether the Act
and Uniform Jury Instruction SCRA 1986, 13-1830 (Repl.Pamp.1991) permit the
award of damages for the non-pecuniary value of the decedent's life itself. The
other issue is whether expert testimony by an economist is admissible to
establish such a value. We hold that the value of life itself is compensable
under our Act. Whether or not expert testimony is admitted for the purpose of
proving this value is a matter best left to the rules of evidence of the
applicable court. The second question in Sears, regarding the loss to minor
children from the wrongful death of a parent, also raises two issues: what is
the proper measure of damages, and whether a claim for such recovery is
possible under the present New Mexico
law on loss of consortium. In response to the first issue, we hold that loss of
guidance and counseling by a minor child is a pecuniary injury under the Act. A
jury is free to consider the “loss to the beneficiaries of expected benefits
that have a monetary value” in awarding fair and just damages. The jury may
also consider guidance and counseling as part of the “monetary worth of the
life of the deceased.” As to the second issue, SCRA 13-1830 does not bar
recovery.
The Romero case arises out of an auto collision causing injuries
subsequently resulting in the death of Eloy Romero. The complaint included a
count in which the spouse, Mrs. Romero, personally sought damages for loss of
consortium and household services. The trial court dismissed that count, and
the Court of Appeals summarily affirmed. We granted certiorari for the purpose
of answering the question of whether a claim should be recognized for loss of
spousal consortium.
Loss of
Consortium
In the last three decades, this Court has had two occasions to
consider whether to rule in loss of consortium. In 1963, we ruled that wives
have no common-law claim to consortium. Roseberry
v. Starkovitch, 73 N.M. 211, 387 P.2d 321 (1963). Twenty-two years
later, relying on Roseberry, we held that neither spouse may have a claim for
loss of consortium as a result of the negligent injury of a spouse. Tondre v. Thurmond-Hollis-Thurmond, Inc.,
103 N.M. 292, 293, 706 P.2d 156, 157 (1985). In Roseberry, the Court noted five justifications for not
recognizing the common-law cause of action. Those justifications no longer bear
the same validity today. Since that time, there has been an evolution of the
law across the country. New Mexico
is now the only state whose common law bars actions for spousal consortium. A
well written and researched amicus brief by the New Mexico Trial Lawyers
Association documents, in its Appendix A, that New Mexico is the only state
whose common law bars actions for spousal consortium and that every
jurisdiction cited by our Court in Roseberry
as denying a wife's right of consortium has reversed its position. Black's Law
Dictionary 309 (6th ed. 1990) cites in its definition of “consortium”:
“Conjugal fellowship of husband and wife, and the right of each to the company,
society, co-operation, affection, and aid of the other in every conjugal
relation.” Black's goes on to state that “[l]oss of ‘consortium’ consists of
several elements, encompassing not only material services but such intangibles
as society, guidance, companionship, and sexual relations.” Viewed from the perspective of this and other
courts' more recent cases analyzing the nature of non-physical harms,
consortium no longer suffers from lack of clarity. Loss of consortium is simply
the emotional distress suffered by one spouse who loses the normal company of
his or her mate. There is now a basis for incorporating the claim for
negligently caused loss of spousal consortium into the fabric of New Mexico common law.
The core issue is one of duty, that a negligent actor owe a duty not only to
the spouse whom the actor physically injures, but also to the other spouse who
thereby suffers the loss of consortium and the accompanying emotional distress.
In New Mexico,
negligence encompasses the concepts of foreseeability of harm to the person
injured and of a duty of care toward that person .... Duty and foreseeability
have been closely integrated concepts in tort law since the court in [ Palsgraf
] stated the issue of foreseeability in terms of duty. If it is found that a
plaintiff, and injury to that plaintiff, were foreseeable, then a duty is owed
to that plaintiff by the defendant. In determining duty, it must be determined
that the injured party was a foreseeable plaintiff-that he was within the zone
of danger created by [the tortfeasor's] actions. ... A duty to an individual is
closely intertwined with the foreseeability of injury to that individual
resulting from an activity conducted with less than reasonable care by the
alleged tort-feasor. New Mexico
common law imposes a duty upon the Defendant toward the other spouse, who is
thus entitled to damages for emotional distress resulting from loss of spousal
consortium. The consortium right is for the emotional distress that a spouse
suffers because of the loss of the spouse's society. Just as a spouse's pain
and suffering is separate property, Russell
v. Russell, 106 N.M. 133, 136, 740 P.2d 127, 130 (Ct.App.1987), so too
recovery by a spouse for emotional suffering due to loss of consortium is
separate property. Whittlesey v.
Miller, 572 S.W.2d 665, 669 (Tex.1978). Solon v. WEK Drilling Co., 113 N.M.
566, 829 P.2d 645 (1992). Ordinary care and proximate cause are still required;
the presence of ordinary care or the absence of a causal relationship between
negligence and harm done, will relieve potential defendants from liability. The
evolution of the law in our country, and particularly in New Mexico, dictates
that this Court instruct the trial court to reinstate common law claim for loss
of consortium. In Federal District Court, Sears v. Nissan, we
consider whenever the death of a person is caused by the- wrongful act, neglect
or default of another...then...the person... who would have been liable, if
death had not ensued, shall be liable to an action for damages, notwithstanding
the death of the person injured. Every such action as mentioned in Section
41-2-1 NMSA 1978 shall be brought by and in the name or names of the personal
representative or representatives of such deceased person, and the jury in
every such action may give such damages, compensatory and exemplary, as they
deem fair and just, taking into consideration the pecuniary injury or injuries
resulting from such death to the surviving party or parties entitled to the
judgment. The final issue to be decided is the application of these new common
law rules. Having considered the manner in which this Court has applied other
important changes in the common law, we are following the doctrine of
application stated in Scott v. Rizzo, 96 N.M. 682, 690, 634 P.2d 1234, 1242
(1981) (as applied to comparative negligence). Therefore, the holdings herein
adopted are applicable to the instant case and all cases filed hereafter.
Further, in those appropriate cases in which trial commences after the date on
which this opinion becomes final, including those which may be remanded for
retrial for whatever reason, the holdings in this case shall be applicable.
And, finally, the new holdings shall be applicable to any case presently
pending in the appellate courts in which the issue is preserved.
Conclusion
We reverse and recognize a claim for loss of spousal consortium.
IT IS SO ORDERED.
This action affirms that the torts of CV-12-1307 and the parties
to which those torts were Complained were “dismissed” in legal error, and the
same actions cannot be allowed to happen yet again in CV-12-10816, now that the
two cases are consolidated with the same claims against different parties in
the second case CV-12-10816. Parsons
v. Keil, 106 NM 91, 739 P.2d 505 (1987) “Court’s discretion to vacate
order when justice will better be served by doing so.”; English v. English, 118 NM 170, 879 P.2d 802 (Ct. App. 1994)
Court can change order. ; Desjardin
v. Albuquerque National Bank, 93
NM 89, 596 P.2d 858 (1979)
“Court has full control of its order for correction that are deemed proper
under the circumstances.”
This had already placed an extreme burden upon the Plaintiff in
CV-12-1307 to appeal the unjust and illegal decisions of dismissal of parties
and subject matter appurtenant to the destruction of the Derringer marriage,
and there should not be a further miscarriage of justice to do the same yet
again in CV-12-10816 with now the consolidation of the cases. The marriage
institution of the foundation of the society of the United States is supported
by the State of New Mexico and allowance of third parties to both destroy the
marriage legal contract and injure the spouses by loss of consortium,
alienation of affection and interference of the marriage defies the very
sanctity of the marriage institution, as was done in error in CV-12-1307. Matter
of Lord’s Estate, 602 P.2d 1030, 93 NM 543 “It is policy of state to
foster and protect marriage institution.” ; Lozoya v. Sanchez, 66 P.3d 948, 133 NM 579, 2003-NMSC-009
“claimants must prove familial relationship with the victim in order to recover
for loss of consortium.” In actions involving destruction of a marriage and the
threat to the very institution of marriage, the public is interested and the
State of New Mexico
is a party as so stated in NMSA
40-1-10. In re Bivians Estate,
652 P.2d 744, 98 NM 722 , cert quashed 652 p.2d 1213, 98 NM 762.
The now consolidation of the Cases
CV-12-1307 and CV-12-10816 now enables a new judge to ensure compliance with
law in all matters, without wasting the resources of the judicial system in the
future to appeal issues that have already been decided in higher courts and yet
illegally ruled upon by a trial court judge in legal error. Such a correction
under “legal mistakes” under NMRA Rule 1-060 would enable the Plaintiff to
achieve justice and save undue stress and complexity to the judicial system in
future needed redress. Undeniably, the “dismissed persons and parties” in
CV-12-1307 need to be brought properly before the court under NMRA Rule 1-019 for proper prosecution and
redress, just as the parties in CV-12-10816 are prosecuted for justice to be
served. So, unless the consolidation properly re-instated the tort claims and
parties to be prosecuted in CV-12-1307 regarding the torts appurtenant to the
marriage of the Derringers as is legally proper, and then certainly did not
dismiss the torts of same in the latest case of CV-12-10816 this court could
properly move forward with the due process afforded David Derringer under his
Constitutional rights. Franco v.
Federal Bldg. Services Inc. , 98 NM 333, 648 P.2d 791 (1982) “court
should be liberal in defense as good.” ; Martin
v. Leonard Motor El Paso, 75 NM 219, 402 P.2d 954 (1965) “the court
should grant relief for good cause shown.” The Plaintiff can prove and sustain
and intimate and familial relationship with the Plaintiff’s wife of the bosses,
parents and others involved in the loss of consortium and alienation of
affection, and this action on the parts of third party individuals was not a
casual relationship, but a cult control by bosses, and parental control
targeted against the husband David Derringer and against the continuation of
the Derringer marriage. The Plaintiff is allowed a collateral attack on the
errant dismissal of the tort actions and parties involved in the marital
interference of CV-12-1307 now even more as the decision has been made to consolidate
the case CV-12-10816 where the similar torts are affected. Barela v. Lopez, 76 NM 632, 417 P.2d 441 (1966) “collateral
attack on judgement is allowed.” Clearly, as the two case are considered now to
be consolidated, now is the time in urgency that the errant actions of CV-12-1307
dismissal of the loss of consortium, alienation of affection, emotional
distress, and interference with a marital contract are in legal error and must
be reconsidered, and the parties dismissed by again brought properly before the
court, or at the least under Rule 1-060 “legal error”, and to not disregard these issues to allow
further due process violations of frivolent motions by the Defendant that may
try to use the legal error of one suit to defeat the second before the new
justice is fully aware of their conspiracy and corruption, of which by prudence
would save judicial economy and not force the Plaintiff to appeal the errant
decisions of CV-12-1307 then being again perpetrated in CV-12-10816. Barnes v. Shoemaker, 117 NM 59,
868 P.2d 1284 (Ct. App. 1993) “Grounds for vacating judgment: 1. grounds for
vacating 2. existence of meritorious defense or cause of action. Wherefore, the
Plaintiff requests immediate reversal of the dismissal of issues and parties of
CV-12-1307 and to reinstate the original Complaint of CV-12-1307 to be
intertwined properly in the consolidation with CV-12-10816.
MOTION FOR ORDER
MANDATING DISCLOSURE OF 10 PERSONS INVOLVED IN THE ASSAULT AND BATTERY AGAINST
DAVID DERRINGER ON FEBRUARY 4, 2102; KNOWN TO ALL PARTIES AND WITHOUT THEIR
CUSTODY AND CONTROL
An extreme matter of “obstruction” in both cases is the nature of
the 2 of 12 Defendants named in CV-12-1307 of Debbie and Irwin Harms, who with
the other 10 persons did assault and battery against David Derringer not
answering with identities of these other 10 persons in the Discovery of
CV-12-1307. Although the two Defendants Harms of CV-12-1307 claimed not to know
the names of these other persons functioning in criminal acts against David
Derringer including conversion, they had every ability and opportunity to
obtain this information from their own “employee”, Barrie Derringer under the
rules of Discovery that cover “custody and control” of information. Despite
that, the Harms “refuse” to disclose the identities of the other persons, and
to date in CV-12-10816, Barrie Derringer Defendant is both “protecting and in
fraud defying” the new Discovery in CV-12-10816 to identify those other 10
persons so as to keep them from prosecution as proper parties before the court
under NMSA Rule 1-019. Since it was in fact Barrie Derringer that either hired,
coerced, recruited or other to have these persons help her on February 4, 2012
and indeed knows their names, employers, identities and other information or
could find this out, and since Barrie Derringer is an “employee” of the two
Defendants of Debbie and Irwin Harms, it is “obstruction of justice” and
blatant corruption that all Defendant insure that David Derringer does not find
out the identities of these individuals for proper prosecution, and Order
should immediately issue so that they are issued summons to be properly before
this court as “necessary and indispensable parties” that must be prosecuted for
justice to be done. Barrie Derringer aka Barrie Crowe is entirely under the
jurisdiction of this court for an Order to disclose this information as are
Debbie and Irwin Harms, even if the Harms have to gain this information from
their own employee Barrie Derringer as “accessible” information easily obtained
in this matter by the Defendants Harms ability to ask and require such
information from their own employee Barrie Derringer aka Barrie Crowe. Although
the Plaintiff had required this information in CV-12-1307 under proper
discovery, the Defendants Harms refuse to gain that information from their
employee and claim no knowledge of the identity of the other 10 persons. That
previous court in again legal error had sustained their defiance and protection
of the other parties, blocking the Plaintiff from proper prosecution and legal
redress. This had left in CV-12-1307 with the criminals winning the “no rat out
your friend” contest which left the Plaintiff with no proper ability for making
those person accountable for assault and battery and conversion. With the
penchant of CV-12-1307 not to address that issue and the same issue in
CV-12-10816 seeking thus from Defendant Barrie Derringer directly the names and
identities of the other 10 persons of the assault and battery, and with the
already defiant protection and refusal of discovery of Barrie Derringer in
CV-12-10816, the actions of “consolidation” enables this court to immediately
Order the disclosure of those persons for justice to be served in a timely
manner for summons to be served and discovery of these persons gained well
before any trial on the merits. Rule 19 requires to have all proper parties
before the court, as the Plaintiff seeks in both cases and has been obstructed by the Defendants protecting
their “friends”. Therefore the Plaintiff requests of this court to Order
instant accountability of all Defendants to identify completely all other ten
persons involved in the assault and battery and conversion against David
Derringer of which one woman “claimed to be a best friend of Barrie
Derringer”.
Respectfully
submitted by: ______________________________________
David
Derringer Pro-Se, Box 7431, Albuquerque,
New Mexico 87194
CERTIFICATE
OF SERVICE May 31, 2013
I hereby certify that I hand delivered a copy of this
pleading for filing to:
Second
Judicial District Court
400
Lomas NW
Albuquerque, New
Mexico 87102
I hereby certify that I mailed a copy of this pleading to
Defendant Jackson at:
423 6th St.
NW. Albuquerque, New Mexico 87102
And
to the attorney Floyd Wilson for Defendant Barrie Crowe:
Floyd Wilson
12480 Hwy. 14 North. Ste. 105
Cedar Crest, NM 87008
And to the attorney for
Geraldine and Warren Crowe:
Alicia
Santos of O’Brien & Padilla P.C.
6000 Indian School Road NE Suite 200
Albuquerque, New
Mexico 87110
