Petition — Jenkins v. Jenkins

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IN THE

Supreme Comt of the United States

OCTOBER TERM 1983

JANE JENKINS,

Petitioner,

vs.

PHILIP R. JENKINS, SR.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

SARAH M. SINGLETON

Post Office Box 2423

Santa Fe, New Mexico

87504-2423

(505) 988-4469

Attorney for

Petitioner

July 13, 1983

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Court of Appeals

failed to recognize and apply New Mexico

substantive law in its review of the

District Court grant of summary judg-

ment.

2. Whether, under New Mexico law,

the running of the statute of limita-

tions for claims of damages resulting

from the tort of assault and hattery

will bar a claim of damages resulting

from the tort of outrage, if both torts

arise from the same act.

PARTIES

The parties to the proceedings in

the United States Court of Appeals for

the Tenth Circuit are identified in the

caption of this petition.

TABLE OF CONTENTS

QUESTIONS PRESENTED

FOR REVIEW . . . « « © «© «

PARTIES o oa . . . . . . . . .

TABLE OF CASES

AND AUTHORITIES. ..... -

REPORT OF DECISION... .

JURISDICTION . . . «© «© «© © « «

UMEUIEEEP Bs 6 6 6 8 6 6 8 ew

STATEMENT OF THE CASE... .

REASONS FOR ALLOWANCE

i mee Wien 6 te tle ltl ltl wl

I. The Court of Appeals

Departed from the Accepted

and Usual Course of Judi-

cial Proceeding by Not

Recognizing and Applying

New Mexico Substantive Law

In Its Review of a Grant

of Summary Judgment...

CONCLUSION . ...-. + «

APPENDIX A Opinion of the

United States Court

of Appeals for the

Tenth Circuit

APPENDIX B Order Denying Peti-

for Rehearing ,

APPENDIX C Opinion of the

District Court.

ii

APPENDIX D Petitioner's

Original Complaint ela

APPENDIX E Affidavit ot

Brock Morris, M.D. 262

TABLE OF CASES AND AUTHORITIES

CASES Page

Dominquez v. Stone, 97 N.M. zll,

638 P.2a 4235 (Ct. App. 1981) il

Erie Ry. Co. v. Tompkins,

304 U.S. 64 LI9S8) . 2» « © 14

Exnicious v. United States,

303 F.420 €39 Figen Get. 1977) 5

Jensen v. Allen, 63 N.M. 407,

320 Wide Ore CLES? Soe 12

Mantz v. Foilingstad,

84 N.M. 473, 505 P.2d 68

Ct. Ape. L972). 6s 6 ee 1C

New Mexico Electric Service

Co. v. Montanez, 89 N.M,

278, 551 P.2d 634 (1976) >.

AUTHORITIES

& 37ei-6, WM BiAk. BOTS « « « i)

§ 37-1-10, N.M.S.A. 1978. ... 9

28 U.S.C. Rules of the Supreme

Court of the United States,

muse. oY SEeeee 6c «ee + e+ ]4

iii

REPORT OF DECISION

The petitioner, Jane Jenkins,

respectfully prays that a writ of

certiorari issue to review the decision

of the United States Court of Appeals

for the Tenth Circuit in the case of

Jenkins v. Jenkins, an unpublished

Opinion, entered on March 21, 1983.

(Appendix A)

JURISDICTION

The decision sought to be reviewed

was dated and entered on March 21, 1983.

A petition for rehearing was timely

filec on March 29, 1983. The order

denving that petition was entered on

Apri’ id, 1983.

This Court's jurisdiction is

invoked under 28 U.S.C. § 1254(1).

STATUTES

Section 37-1-8, N.M.S.A. 1978.

Actions against sureties on fiduciary

bonds; injuries to persons or

reputation. Actions must be brought

against sureties on official bonds and

on bonds of guardians, conservators,

personal representatives and persons

acting in a fiduciary capacity, within

two years after the liability of the

principal or the person from whom they

are sureties is finally established or

determined by a judgment or decree of

the court, and for an injury to the

person or reputation of any person,

within three years.

Section 37-1-10, N.M.S.A. 1978.

Minors; incapacitated persons. The

times limited for the bringing of

actions by the preceding provisions of

this chapter shall, in favor of minors

and incapacitated persons, be extended

so that they shall have one year from

and after the termination of such

incapacity within which to commence said

actions.

STATEMENT OF THE CASE

This case arises from incidents

involving the petitioner (plaintiff-

-appellant below), Jane Jenkins, a

resident of the state of New Mexico, and

the respondent (defendant-appellee

below), Philip R. Jenkins, Sr., a

resident of the state of Michigan.

Because the case was decided on a motion

for summary judgment based on the

running of the statute of limitations,

the facts will be stated in the light

most favorable to petitioner.

Petitioner is the natural daughter

of the respondent. From 1969, when she

was nine years old, until 1972, when she

was 12, respondent repeatedly had

unconsented and illicit sexual contact

with her. These acts resulted in

severe, disabling and permanent psychic

injuries to petitioner, which first

manifested themselves in January, 1980.

Petitioner reached the age of majority

on May 16, 1978. In New Mexico the

majority is reached at 18 years of age.

Petitioner filed suit against

respondent in federal court on September

8, 1981, under 28 U.S.C. § 1331. The

lawsuit stated two claims for personal

injuries against the defendant: one

based on the tort of assault and bat-

tery, and the second based on the tort

of outrage. (Appendix D, p. 23a) In

support of her claim, plaintiff filed

the affidavit of an expert witness in

the field of psychiatry, which stated

that in the witness's opinion, plain-

tiff's psychic injuries were not ascer-

tainable and did not manifest themselves

until January, 1980. (Appendix E)

Defendant filed a motion for

summary judgment based on the running of

the statute of limitations for personal

injuries. Under § 37-1-8, N.M.S.A.

1978, actions for injuries to the person

must be brought within three years. In

§ 37-1-10, N.M.S.A. 1978, the time

limited for the bringing of actions by

minors is extended so that they have one

year from the attainment of majority to

commence the action. Thus, plaintiff's

lawsuit was filed more than three years

after the acts occurred, and more than

one year after she reached majority, but

less than three years after her psychic

injuries first manifested themselves.

The trial court granted the motion

on January 8, 1982. (Appendix C)

Plaintiff filed a second lawsuit based

on the same acts of the defendant

claiming intentional infliction of

emotional distress, invasion of privacy,

and breach of the duty to protect the

health and welfare of a child. Defen-

dant moved for summary judgment on

grounds of res judicata, and the motion

was granted by the trial court.

Plaintiff appealed both decisions

to the Tenth Circuit Court of Appeals

where they were consolidated and

affirmed by that court on March 21,

1982. The opinion held that New Mexico

law does not allow tolling the

limitations period when the victim is

aware of the tort. (Appendix A) The

principal tort is a battery, and the

statute of limitations begins to run

immediately after the occurrence of the

battery. Thus the claims for damages

under the tort of assault and battery

were barred as the limitations period

had run. With respect to the claims

under the tort of outrage, the court

found that the injuries were a

consequence of the original battery and

not a separate cause of action. Thus,

they were also barred.

On March 29, 1983, petitioner filed

a timely petition for rehearing which

was denied on April 14, 1983. (Appendix

B)

REASONS FOR ALLOWANCE OF THE WRIT

I. The Court of Appeals

Departed From the Accepted

And Usual Course of Judicial

Proceeding By Not Recognizing

And Applying New Mexico

Substantive Law In Its Review

Of a Grant Of Summary Judgment.

The issue raised on this appeal is

whether the Court of Appeals correctly

applied the statute of limitations in

affirming the district court's grant of

summary judgment against the petitioner.

Petitioner's suit contained two

causes of action for relief: assault

and battery and the tort of outrage.

(Appendix D, Complaint, p. 23a, § 3)

The district court granted summary judg-

ment on the ground that the limitations

period for petitioner's claims had run.

(Appendix C, District Court Memorandum

Opinion, pp. 17a-18a) The court held

that a cause of action for assault and

battery arose immediately with the oc-

currence of the acts alleged and the

limitations period began to run at once.

In New Mexico, the limitations period

for actions arising out of personal in-

juries is three years. Section 37-1-8,

N.M.S.A. 1978. Minors have an

additional year upon reaching majority

within which to bring an action.

Section 37-1-10, N.M.S.A. 1978. Since

the suit was filed more than three years

after the assault and battery and more

than one year after petitioner reached

majori’ *, it was barred.

With respect to the cause of action

for the tort of outrage, the district

court held that although the petition-

er's psychic injuries first became

physically manifest in January, 1980,

they were "injuries" caused by the

assault and battery. They were conse-

quences of the original tort, and the

limitations period started when the acts

occurred. In effect, petitioner's claim

for damages under the tort of outrage

was never recognized as a separate cause

of action. (Appendix C, p. 18a) The

Court of Appeals affirmed the decision

of the district court, specifically

agreeing that the psychic injuries

claimed were not separable from those

claimed under the tort of assault and

battery. (Appendix A, Opinion of the

Court of Appeals, p. 10a)

This application of the law of New

Mexico by the district court and the

Court of Appeals is in error. The tort

of outrage is recognized in New Mexico

as a cause of action wholly separate

from the tort of assault and battery.

Mantz v. Follingstad, 84 N.M. 473, 505

P,2d 68 (Ct. App. 1972), a medical

malpractice case, dismissed the plain-

tiffs' claims of assault and battery as

barred by the limitations period.

However, the court allowed the

10

plaintiffs to proceed to attempt to

prove the tort of outrage claim, even

though it arose out of the same acts of

the defendant, implicitly recognizing it

as a separate cause of action.

In a more recent decision,

Dominguez v. Stone, 97 N.M. 211, 638

P.2d 423 (Ct. App. 1981), the court

stated that the tort of outrage can only

be claimed if and when the psychic

injury has occurred. The opinion quoted

approvingly from the Restatement of

Torts, 2d § 46 (1965):

The rule stated in this section

applies only where the emotional

distress has in fact resulted,

and where it is severe. (Empha-

sis supplied.)

97 N.M. at 214, 638 P.2d at 426.

Read together, Mantz and Dominguez

make clear that an action for the tort

of outrage is a separate and independent

action, does not arise when the tortious

ll

acts occur, but arises only when the

psychic injuries manifest themselves.

This conclusion is consistent witF

the well established rule in New Mexico

that the statute of limitations for a

cause of action in tort runs from "the

time of injury not the time of the

negligent act." New Mexico Electric

Service Co. v. Montanez, 89 N.M. 278,

551 P.2d 634 (1976). A wrong without

damage or damage without wrong does not

amount to a cause of action. Jensen v.

Allen, 63 N.M. 407, 320 P.2d 1016

(1958).

In the present case the petitioner

became aware of her emotional and

psychic injuries at some time during

January, 1980. Her claim is supported

by the affidavit of Brock Morris, M.D.,

which stated that:

The first time that Jane knew

or could have known that she

had actually suffered a psychic

injury as a result of the

12

earlier incestuous relation-

ship between herself and her

father would have been January,

1980.

(Appendix E, affidavit of Brock Morris,

M.D., p. 34a)

Further, the trial court accepted

"as true plaintiff's statement that her

psychic injuries first became physically

manifest in January, 1980." Appendix C,

p. 18a) Thus, under the tort of outrage

as recognized in New Mexico, petition-

er's cause of action did not arise until

January, 1980. Her suit, which was

filed on September 8, 1981, was within

three years of the injury and thus

within the applicable limitation period.

Neither the Court of Appeals

opinion nor the district court opinion

ever acknowledge or even mention the

cause of action for the tort of outrage

despite the fact that it was pled in

this case and is recognized as a sepa-

rate cause of action in New Mexico.

13

Both opinions place petitioner's ciaim

for psychic injuries within the cause of

action for assault and battery. The

Court of Appeals curtly dismissed

petitioner's claim as "based on a theorv

of having become nervous." (Appendix A,

p. 10a)

Under Eric hKy. Co. v. Tompkins, 3064

U.S. €4 (1938) the Supreme Ccurt heid

that in the non-feceral area federal

courts should lovally apply state

substantive law. By ignoring the

substantive law in New Mexico on the

tort of outrage, the Court of Appeals

has "far departed trom the accepted and

usual course of judicial proceedings."

28 U.S.C. Rules of the Supreme Court of

the United States, Rule 17 (1980).

Petitioner also argues that the

Court of Appeals did not apply the

appropriate test in reviewing the

decision of the district court granting

14

summary judgment. In Exnicious v.

United States, 563 F.2d 418, 424 (10th

Cir. 1977), the Court of Appeals stated

that in a motion for summary judgment:

The movant must demonstrate

entitlement beyond a reason-

able doubt, and if an infer-

ence can be deduced from the

facts on which the opposing

party might recover, summary

judgment is inappropriate.

Since the district court accepted

the Morris affidavit as true, it was

conclusively established that the

petitioner was not aware of her injuries

before January, 1980. Since a cause of

action for the tort of outrage does not

arise before emotional iniury has

resulted, there was "an inference" which

could he “deduced from the facts" on

which the petitioner could recover.

Therefore, the Court of Appeals was in

crror in affirming the decision of the

district court.

15

CONCLUSION

For the foregoing reasons, this

Court should grant this petition and,

after full briefing and oral argument,

reverse and remand this cause for a new

trial on the issue of damages under the

tort of outrage, upon proper instruc-

tions.

Respectfully submitted,

SARAH M. SINGLETON

Post Office Box 2423

Santa Fe, New Mexico

87504-2423

(505) 988-4469

Attorney for Petitioner

June 13, 1983.

16

APPENDIX A

NOT FOR ROUTINE PUBLICATION

FILED United States Court of Appeals

Tenth Circuit, March 21, 1983

Howard K. Phillips, Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JANE JENKINS,

Plaintiff-Appellant

Vv. Nos. 82-1101

and 82-1403

PHILIP R. JENKINS, SR.,

Defendant-Appellee.

Appeal from the United States

District Court

For the District of New Mexico

(D.C. Nos. Civ. 81-0746-HB and

Civ. 82-078-JB)

Submitted on the briefs.

la

David H. Pearlman, Albuquerque,

Mexico, for appellant.

Philip Jenkins, Sr., appellee,

appeared pro se.

Before DOYLE, MCKAY and LOGAN,

Circuit Judges.

DOYLE, Circuit Judge.

2a

After examining the briefs and the

appellate record, this three-judge panel

has determined unanimously that oral

argument would not be of material assis-

tance in the determination of this

appeal. See Fed.R.App.P. 34(a); Tenth”

Circuit R. 10(e). The cause is there-

fore ordered submitted without oral

argument.

There are two distinct suits and

they result in two appeals, both of

which are presented here. The actions

were in the United States District Court

for the District of New Mexico on the

basis of diversity of citizenship. The

causes were disposed of on summary judg-

ment grounds and this is the main issue

before us.

The plaintiff is approximately 23

years of age. She brought an action in

the United States District Court in

which she alleged that between 1969 and

3a

1972 when she was growing up, the defen-

dant, her father, involved her in uncon-

sented and illicit incestous contact

with her.

She reached the age of majority in

May 1978. In New Mexico the majority is

reached at 18 years of age. The first

complaint states a cause of action for

assault and battery and intentional

infliction of emotional distress or the

tort of outrage. The case now in ques-

tion is one which was presented to Chief

Judge Bratton. On January 8, 1982 Judge

Bratton entered an order dismissing the

complaint on the ground that it was

barred by the applicable statute of

limitations § 37-1-8, N.M.S.A. 1978.

Subsequently the plaintiff filed

another action which contained substan-

tially the same allegations which were

in the suit which was disposed of by

Judge Bratton. The defendant, appearing

4a

pro se, again moved for summary judg-

ment. This time Judge Burciaga heard

the case and he also granted the motion

for summary judgment on the ground that

the action was barred by the doctrine of

res judicata; in other words there had

been another action and an adverse

judgment which finally disposed of the

case. In effect it was ruled impossible

to try out some other judge.

The first complaint alleged that

the damages suffered by the plaintiff

proximately resulting from the conduct

of the defendant, did not manifest

themselves at the time of the action.

The allegation is that the plaintiff did

not become aware of the damages or in-

jury prior to January 1980, less than

three years before the commencement of

the cause of action.

Thus the plaintiff alleges that

since she did not become fully aware of

5a

the damages that she had suffered until

the date that she mentions the statute

of limitations cannot run until the date

in 1980.

The defendant relies on the New

Mexico statute of limitations. Chief

Judge Howard Bratton dismissed the

complaint on the ground that the statute

of limitations had run. The ruling was

made in the course of granting a motion

for summary judgment. Seemingly all of

the necessary facts were presented.

Judge Bratton in his opinion stated that

the plaintiff had alleged that from 1969

to 1972 her father subjected her and in-

volved her in unconsented incestous con-

tact which gave rise to a cause of

action for assault and battery and to

the tort of outrage.

Plaintiff reached the age of

majority on May 16, 1978 and it is

undisputed that since the three year

6a

statute of limitations in New Mexico for

injuries to the person ran while she was

a minor, that thereafter, under the

terms of the statute, she has one year

from when she reaches majority within

which to bring the action. N.M.S.A.

§ 37-1-8. See Slade v. Slade, 81 N.M.

462, 468 P.2d 627, 631 (1970). Ordin-

arily the statute bars an action in

three years. In the case of a minor,

although it runs from the time of the

injury, a year of grace is given toa

minor for one year after the child

reaches 18. § 37-1-8, N.M.S.A. If the

injury is hidden, the statute does not

run until the injury is brought to the

attention of the person injured.

Peralta v. Martinez, 90 N.M. 391, 564

P.2d 194 (Ct.App. 1977), cert. denied,

567 P.2d 485. The plaintiff contends

that the limitation period did not begin

to run until some injury from the

7a

incestous contact manifested itself in @

physically objective manner and was as-

certainable,

Plaintiff relies entirely on

Peralta. However, Peralta was a medical

malpractice case in which the defendant,

a surgeon, left a cottonoid in the

plaintiff's body during surgery on

February 15, 1971. This cottonoid was

discovered during surgery which was

performed on April 17, 1973 and the suit

was filed January 8, 1976. The court

held that the Jimitation period starts

to run from the time the injury mani-

fested itself in a physically objective

manner and thus was ascertainable. But

in Peralta the injury was not apparent.

It could not be known by the injured

person. A person cannot be compelled tc

start a lawsuit involving an injury

about which he has no knowledge. Here

the plaintiff-appellant was aware of the

gruesome acts when they were perpe-

trated.

Plaintiff maintains that she was

not aware of the consequences of the

defendant's activity until just prior to

the filina of this lawsuit. However the

New Mexico law does not go this far, It

does not allow tolling the tort when the

victim is aware of it. There the prin-

cipal tort is a battery which has been

committed and the tolling does not con-

tinue until she realizes some subjective

consequences,

This case is different from

Peralta. In that case there was a hid-

den infliction of injury. The plaintiff

there had no chance to discover the

malpractice. Here the defendants acts

occurred in the late 1960s. Also all of

the injuries are caused by the unlawful

touching which is called an assault and

battery. The psychiatric consequences

9a

of the experiences are not separate and

apart from the heinous acts which were

perpetrated when plaintiff was a child.

They are part of the original tort. The

plaintiff was fully aware of the acts

which she charges against her father.

The statute of limitations started when

those heinous acts occurred. However,

the law gave the plaintiff appellant a

year following her reaching ma ority to

bring the action. She does not receive

more time based on the theory of having

become nervous at a time beyond the

frame which is mentioned.

The trial court ruled that at the

time the statute started to run and at

the time she reached her majority the

statute of limitations had run. We

agree with this ruling.

We also affirm the judgment of

Judge Burciaga dismissing plaintiff's

second complaint based on res judicata.

l0a

The judgment of the district court

should be and is hereby affirmed.

lla

APPENDIX B

MARCH TERM - April 14, 1983

Before Honorable William E. Doyle,

Honorable Monroe G. McKav, and Honorable

James K. Logan, Circuit Judges

JANE JENKINS,

Plaintiff-Appellant,

vs. Nos. 82-1101

82-1403

PHILIP R. JENKINS, SR.,

Defendant-Appellee.

This matter comes on for considera-

tion of appellant's petition for re-

hearing filed in the captioned cause.

Upon consideration whereof, the

petition for rehearing is denied.

HOWARD K. PHILLIPS

Clerk

l2a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

JANE JENKINS,

Plaintiff,

vs. CIV. NO. 81-746 HB

PHILIP R. JENKINS, SR.,

Defendant.

MEMORANDUM OPINION

This matter comes before the Court

upon defendant's motion for summary

judgment on the ground that plaintiff's

cause of action is barred by the

applicable statute of limitations, §

37-1-8, N.M. Stat. Ann. (1978). The

Court has reviewed the memoranda of the

parties, the entire record and the

authorities. Accepting all of the facts

alleged in the Complaint and affidavit

submitted by plaintiff as true, the

13a

Court regretfully concludes that

defendant's motion is well taken and

summary judgment should be granted.

Plaintiff alleges that from

1969-1972 the defendant, her father,

subjected her to involuntary, uncon-

sented and incestuous contact, giving

rise to a cause of action for assault,

battery and the tort of outrage.

Plaintiff reached the age of majority

on May 16, 1978 and it is undisputed

that the three year statute of limita-

tion in New Mexico for injuries to the

person was tolled until that date. This

suit was not filed, however, until

September 2, 1981, more than three years

from the time plaintiff came of age.

Citing Peralta v. Martinez, 90 N.M.

391, 564 P.2d 194 (Ct. App. 1977),

plaintiff contends that the limitation

period did not begin to run until some

injury from the incestuous contact

l4a

"manifested itself in a physically

objective manner and was ascertainable."

90 N.M. at 394. Plaintiff maintains,

tehrefore, that she first became

chargeable with knowledge of her psychic

injuries in January, 1980 when she began

acting out depression and resultant

thought disorder in a dramatic way. An

affidavit submitted by Dr. Brock A.

Morris, a psychiatrist who has been

treating plaintiff since April, 1980,

supports this factual allegation.

Plaintiff relies entirely on

Peralta, supra, a medical malpractice

case in which the defendant physicial

had left a cottonoid in plaintiff's body

during surgery on February 15, 1971.

The cottonoid was discovered during

surgery performed on April 17, 1983 and

Suit was filed January 8, 1976. /

Emphasizing that it is the occurrence of

the injury and not the wrongful act

l5a

which starts the running of the statute,

the court held that "the limitation

period begins to run from the time the

injury manifests itself in a physically

objective manner and is ascertainable."

In Peralta, therefore, the comolaint was

timely filed.

In the course of its opinion, the

Peralta court noted that the plaintiff

had alleged that his injuries from the

cottonoid were "inherently unknowable."

90 N.M. at 394. The concurring judge

focused on the fact that the plaintiff

was blamelessly ignorant, concluding

that "to require a man to seek a remedy

before he knows of his rights is

palpably injust." 90 N.M. at 397.

While superfically the language of

Peralta cited by the plaintiff seems to

support her argument, the case at hand

is so factually disparate that Peralta

l6éa

does not provide the precedent plaintiff

requires to sustain her position.

It is hornbook law that the

establishment of a technical cause of

action for assault or battery entitles a

plaintiff to an award of nominal damages

even if the unconsented contact was

entirely harmless. The wrongful act

itself constitutes the requisite injury.

W. Prosser, Law of Torts, pp. 35-38 (4th

ed., 1971). That New Mexico law adheres

to this position is demonstrated in

Gerety v. Demers, 92 N.M. 396, 589 P.2d

180 (1978); "... the tort of battery is

the wrongful touching of the patient's

body which by itself gives the patient a

claim for substantial damages ....

the law does not require the patient to

be physically damaged by the

intervention. Even if his health is

significantly improved, the doctor is

Still liable." The “wrongful act" here

l7a

occurred at the time of the alleged

assault and battery; consequently, this

was also the time plaintiff first

suffered injury from the wrongful act.

The Peralta decision was predicated

on the fact that a person who suffers

injury at the hands of a negligent

physician is usually "blamelessly

ignorant" that they have a maintainable

cause of action. The injury is

"inherently unknowable" because it often

does not give rise to any “recognizable

harm" until well after the limitation

period has expired. Although accepting

as true plaintiff's statement that her

psychic injuries first became physically

manifest in January, 1980, the Court

cannot agree that her injuries were

inherently unknowable in May, 1978.

This is especially true when the mere

establishment of the tort of assault and

battery demonstrates that plaintiff

18a

suffered injury even absent any evidence

of psychic damage.

Rather than Peralta, plaintiff's

Situation is more akin to the case of

Jaramillo v. Hood, 93 N.M. 433, 601 P.2d

66 (1979), where the plaintiff sued an

attorney for the negligent drafting of a

will. The plaintiff therein argued that

her cause of action did not arise until

the will was denied probate because her

harm or damage was not ascertainable

before that time. But plaintiff had

engaged several different attorneys in

succession in regard to the probate of

the will and the Court held that she was

in a position to ascertain or discover

the harm to her each time she changed

attorneys. Plaintiff in the case at

hand was in a position to ascertain or

discover her injuries from defendant's

alleged conduct when she reached the

legal age of majority.

19a

The Court, therefore, concludes

that the plaintiff suffered a reasonably

recognizable injury in May, 1978 when

she came of majority. The limitation

period began to run at that time and had

expired by the time the Complaint was

filed in September, 1981. An order

granting defendant's motion and

dismissing this action will be filed in

accordance with this opinion.

s/ Howard Bratton

Chief Judge

20a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

JANE JENKINS,

Plaintiff,

vs. CIV. NO. 81-746 HB

PHILIP R. JENKINS, SR.,

Defendant.

COMPLAINT

Plaintiff states:

COMMON ALLEGATIONS

A. Plaintiff is a citizen of of

(sic) the State of New Mexico.

Plaintiff has reason to and therefore

Goes believe and allege that Defendant

is a citizen of the State of Michigan.

B. The amount in controversy

herein exceeds the sum of Ten Thousand

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Dollars ($10,000.00), exclusive of costs

and interest.

C. This is a tort claim for

damages, the direct and proximate result

of the acts of Defendant, which damages

occurred to Plaintiff in the State of

New Mexico.

B. This Court has jurisdiction

pursuant to 28 U.S.C. Code §1331. Venue

is properly laid in the District of New

Mexico as it is the residence of all of

the Plaintiffs. Service of process can

be obtained over to the Defendant by

reason of the New Mexico Long Arm

Statute, commission of a tortious act

within this State.

FIRST CAUSE OF ACTION

Plaintiff further states:

1. Plaintiff is the natural

daughter of Defendant.

2. Beginning in 1969 an continuing

off and on until 1972, Defendant had

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involuntary, unconsented, illict and

incestuous contact with the Plaintiff.

3. That such acts on the part of

Defendant, constituted the tort of

assault and battery and, additionally,

the tort of outrage.

4. That the aforesaid tortious

acts were committed upon plaintiff while

she was still a minor, she not having

attained the age of majority until May

16, 1978.

5. That as a direct and proximate

consequence of the aforesaid tortious

conduct on the part of Defendant,

Plaintiff has suffered severe, disabling

and permanent injuries of an actual and

general nature and will into the future

continue to suffer severe and disabling

injuries of an actual and general

nature, both mental and physical, ina

sum which cannot be precisely determined

at the present time but will in all

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probability exceed, at the minimum, the

sum of Two Hundred Fifty Thousand

Dollars ($250,000.00).

6. That, additionally, the conduct

on the part of the Defendant is so

offensive to the norms of societv as to

constitute grounds for an award of

punitive damages in a sum determined by

the jury to be adequate in the premises

but in no event to be less than at least

Plaintiff's actual and general damages

to date, or the sum of Two Hundred Fifty

Thousand Dollars ($250,000.00).

7. That the damages suffered by

Plaintiff proximately resulting from the

conduct of Defendant, as aforesaid, did

not manifest themselves for the first

time, nor is Plaintiff chargeable with

knowledge of such damages, prior to

January 1980, less than three (3) years

prior to the commencement of the within

cause of action.

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WHEREFORE, Plaintiff demands

Judgment from and against Defendant for

actual and general damages, of a

compensatory nature, in at least the sum

of Two Hundred Fifty Thousand Dollars

($250,000.00), for punitive damages, in

at least the additional sum cf Two

hundred Fifty Thousand Dollars

($250,900.00), and for her costs herein.

PEARLMAN & DIAMOND, P.A,

By:/s/ David H. Pearlman

DAVID H. PEARLMAN

Attorneys for Plaintiff

400 American Bank of

Commerce

200 Lomas Roulevard, N.W.

Albuquerque, New Mexico

87102

Telephone: (505) 266-8737

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APPENDIX EF

FILED United States District Court

Albuquerque, New Mexico

December 14, 1981

Jesse Casaus, Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

JANE JENKINS,

Plaintiff,

vs. No. CIV 81-0746 HB

PHILIP P. JENKINS, SR.,

Defendant.

SS ae ee ee He

STATE OF TEXAS )

COUNTY OF EL PASO )

I, BROCK A. MORRIS, M.D., being

first duly sworn upon my oath depose and

state as follows:

1. My name is BROCK A. MORRIS and

I am a physician in private practice at

1250 East Cliff, Suite 3C, El Paso,

Texas 79902, specializing in psychiatry.

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2. That I received a BS Degree in

Marine Biology from Texas A&M University

in 1970. That I then completed Inverte-

grate Ecology work on a Ph.D. at Texas

A&M University during the years 1970 to

1972. I received my M.D. Degree from

the Medical School at the University of

Texas Medical Branch, Galveston, Texas,

in 1975. I then completed a Residency

in the speciality of Psychiatry also at

the University of Texas Medical Branch

at Galveston, Texas during the period

1975-1978,

3. Iwas Chief Resident in the

speciality of Psychiatry at the Univer-

sity of Texas Medical Branch at

Galveston during the period 1977-1978.

During the 1978, I was also Medical

Director of the Child Guidance Center,

El Paso, Texas as well as Assistant

Medical Director of the El Paso Depart-

ment of Mental Health and Mental

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Retardation. From 1978 until] the

present, I have served as Medical

Director for the Jewish Family ane

Childrens' Services of El Paso, Texas.

From 1980 through the present, I have

been President of the Fl Paso Clinical

Consultants, Inc., in Fl Paso, Texas.

Also, from 1980 through the present I

have been Medical Director, Sun Valley

Hospital, Adult Unit, El Paso, Texas.

4. From 1976 to 1978, I served on

the Council on International Affairs of

the American Psychiatric Association.

5. While at the University of

Texas Medical Branch at Galveston,

Texas, my teaching responsibilities were

primarily concerned with teaching Junior

and Senior Medical Students. I was also

concerned with the responsibility for

liaison education of nurses, aides, and

other paraprofessionals, both informally

and formally. This was all in the

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specialty of Psychiatry.

6. The scholastic honors that I

have enjoyed during my academic career,

consist of the following: I was a Cum

Laude graduate of Texas A&M University

in 1970; I was a member of the Phi Kappa

Phi Honor Society for the Sciences

during the year 1969; I received Honor-

able Mention Status with the National

Science Foundation for Research in the

year 1971; I was awarded the W. J.

Hildebrandt Scholarship in 1973 at the

University of Texas Medical Branch at

Galveston; I was the first recipient, in

1975, of the Hamilton Ford Award for ex-

cellence in the study of Psychiatry

during my residence training in Psy-

chiatry at the University of Texas

Medical Branch in Galveston; I was

President of Phi Rho Sigma Medical

Fraternity during the year 1974; and I

received the Upjohn Achievement Award in

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1976 while at University of Texas

Medical Branch at Galveston.

7. I ama member of the Texas

Medical Association, the Titus Harris

Clinic Society, and have been an elected

member of the American Psychiatric Asso-

ciation since 1976.

8. My first contact with JANE

JENKINS was on April 14, 1980 on a hos-

pital consultation at Providence hospi-

tal in El Paso, Texas. The diagnosis at

that time was temporal lobe seizure dis-

order; chronic organic brain syndrome,

and psychotic depressive reaction.

Treatment generally consisted of inten-

sive individual insight-directed suppor-

tive psychotherapy. Follow-up visits

with JANE in Providence Memorial Hospi-

tal in El Paso were conducted by me and

treatment rendered on the following

dates: April 15, 1980, April 16, 1980,

April 17, 1980, April 18, 1980, April

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19, 1980, April 20, 1980, April 21,

1980, April 22, 1980, April 23, 1980,

April 24, 1980, April 25, 1980, April

26, 1980, April 28, 1980, April 29,

1980, April 30, 1980, May 1, 1980, May

2, 1980, May 3, 1980, May 4, 1980, May

5, 1980, May 6, 1980, May 7, 1980, May

8, 1980, May 9, 1980. On May 9, 1980 I

discharged JANE from the hospital. How-

ever, on June 2, 1980 she was again ad-

mitted to Vista Heights Hospital where I

visited her. From June 2, 1980 through

October 10, 1980, when she was dis-

charged, she remained admitted to Vista

Heights Hospital in El Paso with the

specific exception of two (2) week-ends,

one in September, 1980 and one in

August, 1980 when she was permitted to

go home, to be readmitted the following

weekday. During that period of time, I

saw and treated her at Vista Heights

Hospital or a daily basis for the three

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(3) conditions that I have set forth in

my diagnoses above.

9. JANE has remained in nv care

for treatment for the specific diaa-

noses above and I have not released her

at this time.

10. Based upon the history that I

have obtained from JANE during the time

that I have been treating Fer, it is my

professional opinion that there was ac-

tually very little in the way of a posi-

tive or manifest psychiatric history

which could be recognized by either JANE

or other members of society and would

show itself by aberrant behavior. In-

stead, JANE was very much the opposite;

that is, a very compliant and quite com-

pulsive young woman who rarely came into

conflict with society. From the onset

of my treatment, it was evident that

JANE had a significant depression and

resultant thought disorder that

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resulted from years of suppression of

feelings with regard to the incestuous

relationship that she had had with her

father. In addition to this, she has a

temporal lobe seizure disorder that is

actually a physical illness that is not

the result of development problems or

any significant event in her past.

11. JANE's behavior bv which she

acted out her depression in a dramatic

way and that first became evident to her

began in January 1980 and is casually

connected to what occurred vears before

between her father and herself. Since

January 1980, JANE began to go through

essentially a vear and a half of ex-

tremely dangerous acting out behavior

that involved not only herself but other

people. It was through my work as her

Peychiatrist and that of the other pro-

fessions I called upon for assistance,

including Psychologists, in uncovering

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the illicit aspects of the relationship

her father had with her, "unlocked

Pandora's box". She became for the

first time destructive and very diffi-

cult to work with. Fortunately, how-

ever, we have seen progress with her in

working through these issues and in her

improvement.

12. I repeat that, in my profes-

sional opinion, the first time that JANE

knew or could have known that she had

actually suffered a psychic injury as a

result of the earlier incestuous rela-

tionship between herself and her father

would have been January 1980 when the

long suppressed results of the depres-

sion and resultant thought disorder

casually connected to that incestuous

relationship with her father first began

to be acted out by her in a dramatic

manner. Thus, January 1980, would be

the first time that JANE's psychic

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injury would have manifested itself to

her in a physically objective manner and

was ascertainable.

BROCK A. MORRIS, M.D.

SUBSCRIBED AND SWORN to before me

this llth day of December, 1981, by

BROCK A. MORRIS, M.D.

Deborah B. Gutierrez

Notary Public

State of Texas

Certified in El Paso

County

July 8, 1983

My Commission Expires:

(SEAL)