Michael Morris – In Focus
For years now I have explained over and over again why I see Judge Frank Wilson and local attorney Robert Doughty are cancers on the community. Today I think I can make this so entirely clear that anyone with a pulse will understand what sort of enemies of the people these two are. Recently I became aware of a case traversing the courts that is being run so far from the law that it needs to take precedence over even my actual business. For the moment I will not name the victim of this conspiracy to subvert justice as it would serve no purpose. The issues here, while tangentially related to this attempt to deny any semblance of due process, are not the matters that actually make this case farce and kangaroo.
This case began in Magistrate Court in front of that other great pillar of justice Richard Stokely ending in what the Plaintiff aptly termed a “hung judge”. Stokely’s judgment in the case finds neither for the Plaintiff, nor the Defendant. While this is indicative of Stokely’s relative worth on the bench the devil is in the details. The defendant in the case was a local businessman named Carlos Martinez who purports to engage in the business of heating, air conditioning and roofing. The allegation was that Carlos Martinez solicited the Plaintiff to engage in the installation of heat and air conditioning systems in a new home, took a deposit, performed exceptionally poor work rendering the house a fire trap, having the inspector red tag (reject) the installation for no fewer than 6 major code violations then refusing to make needed corrections or remove the dangerous installation and refund the deposit. Most homeowners would think it a simple matter to deal with such outright fraud in obtaining thousands of dollars for such an awful job. This is the point where the justice ends and the old boy okie doke begins.
Carlos Martinez engaged the services of Bob Doughty to represent him. Here is where the details get buried initially. First we need to understand a few legal concepts. The first of these regards the legal status of a corporation. A corporation is a separate legal entity that can contract and sue or be sued. Its officers and members in the case of an LLC are not the corporation, but rather employees or representatives of the corporation. To the extent provided in the organizational documents of the corporation these individuals have the authority to bind the corporation to contractual terms. At the same time the officers are also individuals just like anyone else. There is indeed a difference between the personal actions of the officers of a corporation and those of the officers in their official capacity. Personal actions are in no way the responsibility of the corporation unless the officer/employee takes the action in the course of his duties. Here is an example that is in the context of this case. Service man X pulls up in his ABC mechanical truck that is the property of ABC Inc. and solicits your business, asks that you pay him and not ABC and does a sloppy job. Is ABC responsible for the contract you made with service man X? The short answer is no if you made your check out to Mr. X.
Another concept that is equally relevant in this case is that the law requires that anyone contracting “mechanical” work, in this case heat and A/C, be licensed by the state. In order to obtain a license the organization, whether it be a sole proprietorship or a corporation, must have in its employ a certificated “Qualifying Party” meaning that this individual is meant to be your technically qualified and responsible party. The Qualifying Party has no authority by virtue of that status or his certificate as a journeyman to either sell work or perform work without a license issued by the state. In the case of a sole proprietor the individual can be both QP and licensee. In fact this is very common. At Joe Z Heating and Air Conditioning Joe is a journeyman and a Qualifying Party and also holds a contractor’s license in the name of Joe Z dba Joe Z Heating and Air Conditioning. A few years down the road Joe decides that he needs to incorporate his business forming Joe Z Heating and Air Conditioning LLC. In order to conduct this regulated business the LLC needs a license. In order to get a license it needs a QP. Since the LLC will need a QP to get a license Joe cancels his dba license which also cancels his attachment as a QP to the dba. Now Joe can be QP for the LLC. Substitute Carlos Martinez for Joe Z and PREMIER HEATING, AIR CONDITIONING AND ROOFING, L.L.C. and previously Carlos Martinez dba PREMIER HEATING, AIR CONDITIONING AND ROOFING and you have the scenario in the instant case.
The final and most basic legal concept we introduce here is what constitutes a valid contract. The parties must have the capacity to enter into the contract. Typically this means that they are 18 or older, but can also be qualified by statutory or regulatory provisions concerning the specific contract. In this case the statutes prohibit this contract unless one holds the appropriate contractor’s license. There must be an offer by the seller, an acceptance by the buyer and consideration (payment) in order for the contract to facially valid.
On to the facts of this case. Carlos Martinez presented to the homeowner a proposal detailing the work to be performed, the price and the payment terms on a form with the name of PREMIER HEATING, AIR CONDITIONING AND ROOFING, L.L.C. at the top, but interestingly enough the bid form has his former personal dba license number printed on it. For context the printed license number (30538) became cancelled no later than 2/28/1998 according to state records though the bid was made in 2005. Let’s take a look at the law that requires the license number be printed on all written documents:
NMSA 60-13-19. Division; evidence of possession; penalty.
A. The licensee shall exhibit satisfactory evidence of the possession of a license on demand and shall clearly indicate his contractor's license number on all written bids and when applying for a building permit.
Now why would he have printed the long cancelled dba license number on LLC stationary? Perhaps I can shed a little light on that for you. Instead of having the customer sign on the line indicating acceptance of the bid Carlos Martinez induced the homeowner to make the check to him personally. Carlos Martinez is not the licensee. The LLC is. The face of the contract is devoid of any indication that the homeowner entered into any contract with PREMIER HEATING, AIR CONDITIONING AND ROOFING, L.L.C. The payment of roughly $3200 made by check in the name Carlos Martinez tends to support the allegation by the homeowner that he contracted with Carlos Martinez and not the LLC. But wait. Carlos Martinez himself has no contractor’s license. That was cancelled in 1998. The obvious question is why Carlos Martinez would demand payment in his name personally or even accept it made out to him when the only legal way for him to even bid the job was as the agent of the LLC with the license (61286). After speaking with several local contractors and a local code expert it became obvious that Carlos Martinez was doing nothing more complicated than dodging taxes. When asked in an interrogatory by the Plaintiff who owned the account indicated in the endorsement of the check Carlos Martinez indicated that he did not know who owned the account. Can you say red flag? I don’t know about you, but I have a hard time understanding that Carlos Martinez deposited this $3200 check into an account of which he is unable to name the owner. I think I would be getting a subpoena for that information and asking the court for sanctions.
I think all of my readers get the point, but I will recap it just in case you missed anything.
NMSA 60-13-12. Contractor's license required.
A. No person shall act as a contractor without a license issued by the division classified to cover the type of work to be undertaken.
B. No bid on a contract shall be submitted unless the contractor has a valid license issued by the division to bid and perform the type of work to be undertaken; provided this subsection shall not prohibit a licensed contractor from bidding or contracting work involving the use of two or more trades, crafts or classifications if the performance of the work in the trades, crafts or classifications other than the one in which he is licensed is incidental or supplemental to the performance of the work in the trades, crafts or classifications for which he is licensed; and further provided that work coming under the jurisdiction of the mechanical bureau or the electrical bureau of the division must be performed by a contractor licensed to perform that work.
So if it is indeed established that Carlos Martinez did indeed contract this work personally and he has no license then he is a criminal. At the same time he would be prohibited from making the contract rendering it void in which case he has no defense to offer any more than one could enforce a contract for the sale of a kidney or narcotics. Enter Bob Doughty and his unethical misrepresentations to both the court and the unrepresented party. The case was filed against the party who cashed the check in his own name, Carlos Martinez. Doughty actually filed early papers in magistrate using this language, “Carlos Martinez dba PREMIER HEATING, AIR CONDITIONING AND ROOFING, L.L.C. by and through his attorney Robert Doughty…”, which is, of course, legally impossible. Just prior to trial Doughty made an oral motion to amend the party to just the LLC with Stokely granting the motion without delay. The problem with this is there was no evidence that the LLC was contracted to do anything. As I said earlier Judge Stokely ruled that he neither found for the Plaintiff nor the Defendant. Plaintiff filed a Notice of Appeal to the District Court.
Sorry, but we need some more law here to understand the procedure such an appeal must follow:
NM Constitution Article VI Section 27
[Appeals from probate courts and other inferior courts.]
Appeals shall be allowed in all cases from the final judgments and decisions of the probate courts and other inferior courts to the district courts, and in all such appeals, trial shall be had de novo unless otherwise provided by law.
De novo is Latin for “anew” or “afresh”. In legal terms this means a new trial by a new tribunal, a “do-over”, if you will.
NMSA 35-13-2. Appeals; district court proceedings; docket fees; judgment.
A. Appeals from the magistrate courts shall be tried de novo in the district court.
By now we should be clear that the appeal in this case is new and not to be affected or bound by any decisions of the Magistrate Court. In STATE V. FOSTER, 2003-NMCA-099, 134 N.M. 224, 75 P.3d 824 the Court of Appeals paraphrasing the opinion of apparently itself in State v. Trujillo, 1999-NMCA-003, 126 N.M. 603, 973 P.2d 855 put it this way for clarity, ” In a de novo appeal, in contrast to appeals on the record, a district court conducts a new trial as if the trial in the lower court had not occurred.” In essence the case should have gone forward on the original complaint which named Carlos Martinez dba PREMIER HEATING, AIR CONDITIONING AND ROOFING personally and not PREMIER HEATING, AIR CONDITIONING AND ROOFING, L.L.C. Instead the Magistrate Court sent the case over titled in the name of the LLC which was the result of an order by the Magistrate rather than an original or amended complaint made by the Plaintiff. The District Court Clerk entered this title and these parties even though the complaint in the case clearly shows the parties to include only Carlos Martinez dba PREMIER HEATING, AIR CONDITIONING AND ROOFING and the Plaintiff.
What has occurred in this case is an entire denial of due process by Judge Frank Wilson against the Plaintiff by making him prosecute this case against a corporation that is not even a party to the case over the repeated objections of the Plaintiff ordering monetary sanctions be paid to this entity not a party to the case and threatening even more as of yesterday. What kind of justice is that? It is the kind you get when you combine a corrupt judge with an unethical attorney like Bob Doughty. Wilson has never entertained a motion to substitute the LLC for the person of Carlos Martinez. Had Wilson not conspired with Doughty to sidestep the legal process of determining the Real Party in Interest an evidentiary hearing would have been required to determine the parties to the contract which would have likely resulted in evidence of Carlos Martinez engaging in the criminal activity of contracting without a license, rendering the contract void and leading to summary judgment in favor of the Plaintiff.
All that is really left to answer is why did Wilson conspire with Doughty to do this heinous attack on justice? That is more of a matter for a prosecutor to figure out. The facts and the record of the court speak for themselves. The named defendant has been able to shift the case onto another party without even making a motion. Wilson has ordered sanctions in favor of the LLC which is not a party to the case and taken away the exceptionally viable right of the Plaintiff to challenge the basic validity of the contract upon which the case is founded. You figure out why Frank Wilson conspired with Bob Doughty to keep Carlos Martinez from facing the possibility of criminal charges protecting a fraud artist whose work the mechanical inspector found to be extremely dangerous.
The question now is what to do about this. The first move I would think would be to file immediately a Motion for Disqualification asking the judge to acknowledge that his insistence that Plaintiff prosecute his action against an entity that has not by order, pleading or amendment become a party to the case thereby exhibiting an extreme bias against Plaintiff. At the same time Judge Wilson has ordered the payment of money by the Plaintiff to the LLC who is not even a party to the case and issued orders compelling discovery by Plaintiff to be delivered under threat of sanction to the LLC which is not a party to the action. Additionally, bias against the Plaintiff has been manifest by simply making disappear the actual Defendant named in the suit without passing an order, requiring a motion or holding a hearing to substitute the party. In the event that Judge Wilson refuses to acknowledge his manifest bias I would think a Writ of Superintending Control to the New Mexico Supreme Court asking it to remove the judge from the case and a motion for a stay of the proceedings until such writ is ruled upon would be appropriate.
Finally there is a logical question here that is very significant. Since the LLC is not named in the pleadings, no motion has been filed asking for a substitution of the LLC for Carlos Martinez and no amendment has been offered by the Plaintiff regarding such a substitution of parties where is it Frank Wilson even ever heard of the LLC in this case? Judges like this deserve prison for their corruption. I mean who other than Bob Doughty in this case would have access to Judge Wilson to bring him into this game against this pro se plaintiff?
