STATE OF NEW MEXICO
COUNTY OF BERNALILLO
IN THE SECOND JUDICIAL DISTRICT COURT
DAVID DERRINGER
Plaintiff,
No. CV-12-1307
consolidated with 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
RESPONSE IN OPPOSITION TO DEFENDANTS DEBBIE HARMS, IRWIN HARMS AND BARRIE CROWE
TO PLAINTIFF’S MOTION FOR REHEARING UNDER RULE NMRA 1-060 ON THE ILLEGAL AND COURT FRAUDULENT SUA SPONTE ORDER BY JUDGE ALAN MALOTT ON MAY 12, 2014 WHILE ALL ISSUES ARE CURRENTLY ON VALID AND
LEGAL APPEAL IN THE NEW MEXICO SUPREME COURT; AND REQUEST FOR SEVERE SANTIONS
UNDER NMRA RULE 1-011 AGAINST ATTORNEY FLOYD WILSON, BARRIE CROWE, DEBBIE HARMS
AND IRWIN HARMS
COMES NOW
the Plaintiff with his motion as stated above. This is simply a “legal matter”
as obvious under the rules and prior case laws of “jurisdictional issues”. It
is both elementary and does not take a
genius to understand that two separate court with different justices cannot
have ongoing jurisdiction of the same case at the same time of the same issues,
as obviously there would be different decisions at different times, disrupting
stare decisis of use of previous cases used to determine the outcome, and there
would then be two different decisions of the same case; then which one would be
held as law? The appellate system under the Rules of Civil Procedure NMRA Rules
12 makes it very clear as does all case laws that when an appeal is taken, the
trial court loses jurisdiction. Martinez
v. Martinez, 101 NM 493, 684 P..2d 1158 (Ct. App. 1984)
Notice of appeal divests trial court of jurisdiction even if technically
defective even with lack of copy of judgment. In this matter, Judge Alan Malott
“lied” to the court record in corruption of same to state in the order to close
the case that Plaintiff David Derringer had not pursued any appeal, which is
provably false in the court record itself, by the filed “Notice of Appeal”;
“Docketing Statement” filed with this trial court, as well as the pleadings
filed with the NM Court of Appeals and now resting with the New Mexico Supreme
Court. Hence, it is provable that indeed David Derringer did appeal and that
such appeal is not concluded with any remand to the trial court to close the
case. Therefore, Judge Malott has no “jurisdiction” to sua sponte close the
case at this time. Wagner Land
& Investment Co. v. Halderman,83 NM 628, 495 P.2d 1075 (1972) Trial court loses
jurisdiction of the case upon filing of the notice of appeal, except for the
purposes of perfecting such appeal, or
of passing upon a motion directed at the judgment pending at the time of filing the notice of
appeal. The trial court cannot even make any order of finding or conclusions,
while and after the appeal has been taken. Davis v. Westland Development
Co., 81 NM 296, 466 P.2d 862
(1970) Upon the filing of the notice of appeal, trial court loses
jurisdiction to make findings or
conclusions.; Mirabal v, McKee, 74 NM 455, 394 P.2d 851 (1964)
Upon the filing of the notice of appeal, trial court loses jurisdiction to make findings or conclusions. In this
case, the Plaintiff was persecuted for exercising his statutory rights under NMSA
38-3-3 to seek “justice to be served” and asked legally for this consolidated
case to be changed to a different venue and different justice; a legal request
mandated to be approved in a mandated hearing of the court. Instead, Judge
Malott denied both the mandated hearing on NMSA 38-3-3 as well as illegally
denied a change of venue for justice to be served, and punished the Plaintiff
for exercising legal statutory rights under NM Statutory law and “sanctioned”
the Plaintiff by unlawfully dismissing the cases under improper motives of
fraud and corruption. No matter; the case was legally dismissed with Order that
was “appealable” and not simply a verbal statement from the court, making the
dismissal properly moved forward by Plaintiff David Derringer by a legal
appeal, with the “blessing” of both trial courts before consolidation with
status as “forma pauperis” meaning that the appeal process was mandated to
proceed in forma pauperis throughout conclusion. Appeal was properly taken by
the Plaintiff since a written appealable order was filed by the trial court. State
ex rel. Reynolds v. McLean, 74 NM 178, 392 P.2d 12 (1964) Decision
without entry of order. No appeal can be taken from announcement of district
court where no order carrying court's
decision into effect was entered.
It
can be noted here, the obvious, that the Defendants Warren and Geraldine Crowe,
with their attorney Alicia Santos, have not opposed the legal matter of this
Motion for Reconsideration concerning only “jurisdiction”, because obviously
those Defendants and attorneys know that the Plaintiff is only addressing a
matter of law, and giving notice to the court that the law, case laws and Rules
of Civil Procedure are mandated to be followed regarding “jurisdiction” to keep
two courts from having jurisdiction of the same case at the same time over the
same issues, which is precluded. Obviously, it is known by those Defendants and
attorney, that while the NM Supreme Court has “jurisdiction” over the issues in
appeal, Judge Malott cannot take jurisdiction without remand and cannot sua
sponte close the case, and that this issue is properly brought before the court
as a legal matter that must be resolved, lest disrupt the court record going to
archive prematurely. State v.
Arnold, 51 N.M. 311, 312,183 P.2d 845,845 (N.M. 1947) ("Lack of
jurisdiction at any stage of a proceeding is a controlling consideration to be
resolved before going further."). What is clear here, is that the motive
to close the case is to stop further exposure of the issue of judicial bribery
and corruption, of whom only the court itself and the party indicated in the
bribery and influence of public corruption has an iron in this fire; those
parties being only Judge Malott, Barrie Crowe, and Debbie Harms and Irwin Harms
of underlying NAI Maestas and Ward Corporation, and not Warren and Geraldine
Crowe. Hence, the court wants this matter to be hidden in archive as do parties
associated with the corruption of Defendants and attorney Floyd Wilson that are
involved in that part of the fraud and corruption, and the other Defendants
have no issue with following the Rules of Civil Procedure to have the case
remain open until remanded to a trial court only after all appeals are final. Judge
Malott had already made up his mind without the mandated hearing when Plaintiff
David Derringer had exercised his statutory rights NMSA 38-3-3 to seek
“justice” by a change of venue and thus not only denied the mandated hearing,
but decided in collusion with the attorney Floyd Wilson and Defendants Barrie
Crowe, and Debbie Harms and Irwin Harms of underlying NAI Maestas and Ward
Corporation to illegally “sanction” and punish Plaintiff David Derringer by a
complete dismissal of the cases. Here, simultaneously, the Judge “sua sponte”
decides to hide the case from further view in archive, and the Defendants and
attorney involved in that corrupt matter immediately move forward to both
accelerate and support that illegal decision, but also to further punish the
Plaintiff by illegally seeking “sanctions” for bringing a legal “jurisdictional
matter” before the court, as a further way to stop any exposure while again
illegally persecuting the Plaintiff yet again. The Plaintiff is both right
under “law” and proper to bring this jurisdictional issue before the court; not
at all any “sanctionable act” under NMRA Rule 1-011. Meeker v. Walker
80 N.M. 280, 454 P.2d 762 (1969) “From and after the filing of the notice of
appeal from a judgment, the trial court was without jurisdiction to take any
further step in regard to the motion to alter or amend judgment.” The “sua
sponte” act by the Judge was acting on a plan to hide this matter without
hearing or notice for evaluation by either of the litigating parties, and for
improper motives and purposes. “A reasonable and impartial mind is one which
hears before it condemns, which proceeds on inquiry, and only renders a
decision after hearing all the evidence.” Pacheco,
85 N.M. at 780, 517 P.2d at 1306. “If a judge represents, before a hearing,
that he or she has made definite findings, it is an indication that the judge
is not neutral .” Orquiz,
2003–NMCA–089, ¶ 16, 134 N.M. 157, 74 P.3d 91; see Purpura v. Purpura, 115 N.M. 80, 83, 847 P.2d 314, 317
(Ct.App.1993) (“[A] fair and impartial tribunal requires that the trier of fact
be disinterested and free from any form of bias or predisposition regarding the
outcome of the case.” (internal quotation marks and citation omitted)). W.G. v. Senatore, 18 F.3d 60. What
is happening here, is that it is easily being narrowed down by the actions of
the responsible parties where the corruption lies; and that is the Judge and
the specific Defendants with attorney Floyd Wilson. The “law” is clear and on
the side of the Plaintiff, which is not opposed by the other Defendants and the
attorney not directly involved in the bribery, but even with the concerted
effort by the Judge and some Defendants and attorney cannot confer
“jurisdiction” to close the case while an appeal is pending. “Neither court by exercising its inherent
equitable discretion, nor parties by entering into stipulation, can confer
jurisdiction where none has been authorized.” Terrel v. Duke City Lumber Co., 86 N.M. 405, 524 P.2d 1021
(Ct. App. 1974 aff’d in part reversed in part 88 N.M. 299, 540 p.2d 229 (1975)
“Trial court loses jurisdiction when appeal taken-although this rule applies to
the district courts, the court of appeals correctly entertained this motion as
the trial court could not have considered it, having lost jurisdiction by
reason of the appeal.” The law has been set on this matter long before these
cases and must be enforced with abidance by the justice; the trial court has no
options regarding this matter.
REQUEST FOR SEVERE SANTIONS UNDER NMRA
RULE 1-011 AGAINST ATTORNEY FLOYD WILSON, BARRIE CROWE, DEBBIE HARMS AND IRWIN HARMS
Attorney Floyd Wilson, Barrie Crowe,
Debbie Harms And Irwin Harms know that the Plaintiff David Derringer simply
brought up the necessary legal jurisdictional matter to keep two courts from
entertaining the same case at the same time, all of which is entirely supported
by the laws presented by the Plaintiff, and thus is asinine to “oppose” when
the attorney should also be supporting the “law” and the Rules of Civil
Procedure; proper and timely brought under NMRA Rule 1-060. Schutts v. Bentley Nevada Corp.,
966 F. Supp 1549 “D. Nev. 1997 Lawyer’s duty is to act in accordance with rules
of substantive law and rules of Civil Procedure.” Attorney Floyd Wilson knows
that it is premature to close this case and is aware that issues of this case
are on appeal with the NM Supreme Court. He is dutifully bound to inform his
clients of this legal matter of “jurisdiction of a trial court pending appeal”.
Deadwyler v. Volkswagenof America Inc.,
134 FRD 128 affirmed 966 F.2d 1443 cert. denied 113 Supreme Court 415, 506 US
956, 121 Led.2d 339 “WDNC 1991 Absolute obligation to communicate, effectively
and accurately, is a duty which lawyer owes to his adversaries and court, as
well as to his client.” Clearly, here, the attorney Floyd Wilson and his
clients agree to both defy the law and Rules of Civil Procedure to keep further
exposure of this matter from any public eye, in motives of deceit, improper
procedure, increase in the costs of the litigation, and to have “improper
purposes” in a pleading meant to disrupt and not conform to law, instead of support
of law, even if that pleading should be opposed to the judge’s sua sponte
erroneous decision. Instead, in collusion with the known illegal decision
without jurisdiction to hide and conceal the case in archive by prematurely
dismissing the case, the particular Defendants and attorney Floyd Wilson intend
to mis-use the courts once again to punish and persecute the Plaintiff in
“fraud”; very actions that mandate “sanctions” against both the attorney and
each of his clients for such “malicious prosecution”. Attorney Floyd Wilson
knows that he is effectively collaborating with the Judge in a decision that is
in legal error, and made to prejudice the Plaintiff, and then seeks “sanctions”
as a way to shut up the Plaintiff as well as punish the Plaintiff for noticing
the court of a legal matter that the court has to address under law. Application of Mosher,
830 F. Supp. 403 reversed 25 F.3d 397 “WD Mich. 1993 Attorney cannot violate
Rules of Professional Conduct and then attempt to avoid consequences of his
violation by claiming ignorance.” (Reference R.of Prof. Conduct 16-304(C)) In
this matter, “sanctions” cannot be awarded against the Plaintiff, but are
mandated to be severely assessed against the select Defendants and their
particular attorney. Hamer v. Career
College Ass’n, 978 F.2d 758 “CA9 (Cal.)
1992 Rule 11 sanctions should be based upon attorney’s signed “pleading,
motion, or other paper” F. R. Civ. P. Rule 11, 28 USCA. Obviously, the acts by
Judge Malott and conspiracy to facilitate by the Defendants Barrie Crowe,
Debbie Harms and Irwin Harms with attorney Floyd Wilson constitute “obstruction
of justice” trying to hide issues that are fraud and corruption in cahoots with
each other. US v. Kanchanalak,
37 F. Supp.2d 1 “Statute defining “corruptly”, as “acting with an improper
purpose, personally influencing another, including making a false, misleading
statement, or withholding, concealing, altering, or destroying a document or
other information.”. The burden is on Judge Malott to prove that there is no ongoing
appeal, which is ludicrous as he is noticed constantly by the higher courts as
to the constant disposition of these cases, which at this time there has yet
been no ruling on the matter of the illegal denial of forma pauperis by the NM
Court of Appeals trying to deny due process and block David Derringer’s appeal in
conspiracy to stop “forma pauperis” as a sabotage vehicle to stop further
exposure of the underlying corruption; one judge protecting another judge
regardless of the law involved. Simply put, the attorney Floyd Wilson and his
particular clients should stay clear of this legal jurisdictional issue; but
they have a stake in the outcome, so disregard law to push forward unlawfully;
which mandates “sanctions” under Rule 1-011.
RULE 11 STANDARDS NMRA 0-11
provides: The signature of (a)...
party constitutes a certificate by the signer that the signer has read the
pleading, motion or other paper: that to the best of the signer’s knowledge,
information and belief there is good ground to support it; and that it is not
interposed for delay....For a willful violation of this rule (a)...party may be
subjected to appropriate disciplinary or other action. In adopting an abuse of discretion standard
for the review of an award of sanctions, the Supreme Court stated: “A court may exercise its discretion and
impose sanctions for a willful violation of the rule when it finds, for
example, that a pleading or other paper signed by an attorney is not well
grounded in fact, is not warranted by existing law or a reasonable argument for
its extension, or is interposed for an improper purpose.” The primary goal of Rule 11 is to deter
baseless filings in district court...Although the rule should be read in light
of concerns that it will spawn satellite litigation and chill vigorous
advocacy, an interpretation must give effect to the rules’s central purpose of
deterrence. Id.; see also White v.
General Motors Corp. 908 P.2d 675, 683 (10th Cir.
1990) (sanctions are intended to deter future litigation abuse, punish present
litigations abuse, compensate victims of litigation abuse, and streamline court
dockets and facilitate case management); Invest
Fin. Group. Inc. v. Chem-Nuclear Sys., Inc., 815 P.2d 391, 404 (6th
Cir.), cert. denied, 484 U.S.
927, 108 S. Ct. 291, 98 L.Ed.2d 251 (1987). In this matter, the attorney and
his clients know that their opposition is “against” law and has no support of
law of legal jurisdiction of a trial court having no ability to move until the
appeal is final, so purposes are both improper and “fraudulent” to oppose law
and then ask for “sanctions” against the litigant attempting to support the law.
The court has no ability legally to “sanction” David Derringer for bringing the
law of jurisdiction to the table, as it can be easily seen that the
“opposition” to law is to harass the Plaintiff and seek the judge to make
further unjust decisions to persecute the Plaintiff for lawful litigation under
appropriate Rules. Fed. R. Civ. P. Rule
11(b): Representations to Court. “By presenting to the court (whether by
signing, filing, submitting, or later advocating) a pleading, written motion,
or other paper, an attorney or unrepresented party is certifying that to the
best of the person’s knowledge, information and belief, formed after an inquiry
reasonable under the circumstances, (1) it is not being presented for any
improper purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation.” United
Nuclear Corp. V. General Atomic Co. 96
N.M. 155, 629 P.2d 231 (1980) “ In imposing stringent sanctions, court are free
to consider the general deterrent effect their orders may have on the instant
case and on other litigation.” ; Invst
Fin Group. Inc. v. Chem-Nuclear Sys., Inc. 815 P.2d, 391, 404 (6th
Cir.), cert. denied, 484 U.S. 927, 108 S. Ct. 291, 98 L.Ed.2d 251 (1987)
goals of Rule 11 are deterrence and punishment of offenders and compensation of
their opponents for expenditure of time and resources responding to ill-founded
pleadings and other papers. Rivera v.
Brazos Lodge Corp. 111
N.M. at 959 (1991). Rivera v. Brazos
Lodge Corp. 111 N.M. at
959.(goals of Rule 11 are deterrence and punishment of offenders and
compensation of their opponents for expenditure of time and resources
responding to ill-founded pleading and other papers). “The primary purpose of Rule 1-011 NMRA 2000
is to deter baseless filings in the district court by testing the conduct of
counsel”. Rivera v. Brazos Lodge Corp.
111 N.M. 670, 674, 808 P.2d 955,
959 (1991). “An objective of Rule 1-011 is to promote good faith and honesty in
pleading.” Rivera v. Brazos Lodge
Corp. 111 N.M. 670, 674,
808 P.2d 955, 959 (1991). “A violation depends on what the attorney or litigant
knew and believed at the relevant time, and involves the question of whether
the litigant or attorney was aware that a particular pleading should not have
been brought.” Rivera v. Brazos Lodge
Corp. 111 N.M. 670, 674,
808 P.2d 955, 959 (1991). Attorney Floyd Wilson deliberately misleads the court
that there is no legal issue here, when in fact the issue of “jurisdiction” if
a controlling legal issue of law. The “misrepresentation” is not inadvertent
error, but for ulterior motives and improper purposes, making the attorney as
liable for sanctions and his clients. Rivera
v. Brazos Lodge Corp., 111 N.M. 670, 808 P.2d 955 (1991)
Sanctions should be entered against an attorney rather than a party for
violation of the “good ground” requirement of this rule only when a pleading or
other paper is unsupported by existing law rather than unsupported by facts.; New York State National Org. for Women
v. Terry, 732 F Supp. 388 “SDNY 1990 Attorneys do not possess immunity
from sanctions for their conduct in judicial proceedings so as to preclude
imposition of Rule 11 sanctions pursuant to rules enabling act. Fed. Rules of
Civil Procedure 11, 28 USCA, 28 USCA 2072."
CONCLUSION
“Sanctions” cannot be requested by
the Defendants and Attorney Floyd Wilson for bringing law and the Rules of
Civil Procedure before a court, when the law supports entirely the Motion to
keep judicial errors to a minimum by the Plaintiff, as well as the “opposition”
to law is in error by the Attorney and his clients. Clearly this “opposition”
was not meant to preserve law and enforce the Rules of Civil Procedure but for
ulterior motives that only the Judge and these select Defendants and attorney
support in fraud and corruption. Hence, legally the court cannot punish the
Plaintiff for raising a jurisdictional issue, but is mandated to “sanction” the
Attorney Floyd Wilson and Defendants Barrie Crowe, Debbie Harms and Irwin Harms
in deceit of the court, and improper motives of “obstruction of justice”,
public corruption, and to taint the court record. Defendants asking for
“sanctions” are meant only to harass the Plaintiff and have no purpose to
enforce the law. Sanctions against Attorney Floyd Wilson and Defendants Barrie
Crowe, Debbie Harms and Irwin Harms are appropriate entirely to stop the
instant violations of law and to deter those similarly situated from mis-using
the courts in malicious prosecution in the future. Altenhaus v. Louison,
342 Mass. 773, 172 NE.2d 230. It
is essential that two elements are present, (1) the existence of an ulterior
motive; and (2) an act in the use of process other than such as would be proper
in the regular prosecution of the charge. The ulterior motive here is to hide
judicial bribery. “Ulterior motive is sufficient” to show and gain damages for
abuse of process. Brown v. Robertson, 120 Ind.
App. 434, 92 NE.2d 856; Earl v. Winne, 34 NJ Superior court 605,
112 A.2d 791. This case justifies an action for malicious prosecution “AND” an
action for abuse of process, the two actions distinguished by the “facts”. The
abuse of process in this matter will hold even though the process has been validly
issued, and regardless of whether there was probable cause for its issuance, or
whether any prior proceeding has terminated in favor of the Plaintiff. Ash
v. Cohn, 119 NML 54, 194A 174. The select Defendants asking in fraud
for the court to punish by sanctions the Plaintiff for obeying laws already
established in a “perversion of the court process”. Wright v. Harris,
160 NC 542, 76 SE 489.
Plaintiff David Derringer requests
of this court to sanction under the guidelines of NMRA Rule 1-011 attorney Floyd
Wilson and Barrie Crowe, Debbie Harms and Irwin Harms each collectively and
separately for an amount of $18,000.00 each for mis-use of the courts to
violate law and to support public corruption, and their attempt to persecute
and punish the Plaintiff for bringing a legal question before the court
involving “jurisdiction” of a trial court while an appeal is pending. Lowe
v. Bloom, 112 NM 203, 813 P.2d 480 (1991); In Rivera v.Brazos Lodge Corp., 111 N.M. 670, (1991), the trial
court awarded sanctions in excess of $18,000.00 because of the violations of
Rule 11.
Respectfully submitted by:
_______________________________________
David Derringer Pro-Se, Box 7431,
Albuquerque, New Mexico 87194
CERTIFICATE OF
SERVICE June 20, 2014
I herby certify that I hand filed
this pleading to:
Second Judicial District Court
400 Lomas NW
Albuquerque,
New Mexico 87102
I herby further certify that I
served the following Defendants by way of their counsel;
Defendant Jackson
at:
423 6th
St. NW. Albuquerque,
New Mexico 87102
Attorney Floyd Wilson for Barrie
Crowe, Debbie and Irwin Harms Defendants at:
Floyd Wilson
12480 Hwy. 14 North. Ste.
105
Cedar Crest,
NM 87008
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
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