# Petition — Jenkins v. Jenkins

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0065%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 848

## Text

nn on EB
G2 3° @ hn
83 ju Bev

- ac
No. r STEV AS:

ereyAND

+ =—

oe
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

2la

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

22a

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

23a

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.

24a

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

25a

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.

26a

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

27a

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

28a

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

29a

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

30a

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

3la

(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

32a

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

33a

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

34a

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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0065%3A1. Public record. Not legal advice.