David Lee Dotson

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
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06/10/06
David Lee Dotson
04-15441
Order Denying [50-1] Objection To Claim Objection filed by Debtor David Lee
Dotson to Claim of Richard Lovato, John Lovato, Robert Gassman and Kenneth
Montiel; Claim Number 11 in the amount of excess of $200,000.00 by David Lee
Dotson .
Received on: 2005-10-12 09:50:25.000
2005-10-12 00:00:00.000
2005-10-12 00:00:00.000
Ellen Snyder
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UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re:
David L. Dotson,
Debtor. No. 13-04-15441 MA
ORDER DENYING DEBTOR’S OBJECTION TO CLAIM NO. 11
THIS MATTER is before the Court on the Objection to Claim No. 11 (the “Objection”) filed
by the Debtor, David L. Dotson (“Dotson”) objecting to the joint claim (the “Proofs of Claim”or
“Claims”) filed by Richard Lovato, John J. Lovato, Robert Gassman and Kenneth A. Montiel
(collectively, the “Claimants”). The Claimants assert that Dotson is liable to them for damages,
including punitive damages, resulting from an assault by Dotson. Richard Lovato claims total damages
in the amount of $100,000.00 of which $80,000.00 is for compensatory damages and $20,000.00 is
for punitive damages. John J. Lovato claims total damages in the amount of $100,000.00 of which
$80,000.00 is for compensatory damages and $20,000.00 is for punitive damages. Robert Gassman
claims total damages in the amount of $55,000.00 of which $40,000.00 is for compensatory damages
and $15,000.00 is for punitive damages. Kenneth Montiel claims total damages in the amount of
$25,000.00 of which $15,000.00 is for compensatory damages and $10,000.00 is for punitive
damages. A hearing on the Objection was held on July 27-28, 2005.
Debtor David L. Dotson (“Dotson”) filed a voluntary petition under Chapter 13 of the
Bankruptcy Code on July 26, 2004. The Proofs of Claim were filed on November 29, 2004 and were
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1 Although the four Claimants files a joint claim, the Court will treat the joint claim as four
Proofs of Claim, and ultimately, the Court will allow or disallow each Proof of Claim separately.
2
amended on December 27, 2004.1
This dispute centers on whether Dotson committed one or more assaults against the Claimants.
Based on the evidence and testimony, the Court finds the following:
In early November 2002, the Claimants were on an annual deer hunting trip with family and
friends in the Lincoln National Forest, near an area known as “Lone Mountain.” Richard Lovato and
John J. Lovato are brothers. Robert Gassman is Richard Lovato’s son-in-law. Kenneth Montiel is a
family friend. Early on the morning of November 8, 2002, the Claimants drove from their camp site in
two jeeps to a deer hunting site on the south side of Lone Mountain. John J. Lovato and Robert
Gassman drove the first jeep and Richard Lovato and Kenneth Montiel followed them in the second
jeep. To reach the south side of Lone Mountain, the Claimants drove through an eighty acre parcel of
land owned by Howard Harkey. After exiting the Harkey property on the west side, the Claimants
proceeded into what they thought was United States Forest Service land on a narrow unpaved road
referred to as the “Loop Road.” On the northeast portion of the Loop Road, Richard Lovato noticed
that they were being followed by a white pickup truck driven by Dotson. Richard Lovato motioned to
the lead jeep to stop, and both jeeps stopped at a location on the northwest section of the Loop Road
(the “first confrontation place”).
After both jeeps and the pickup stopped, Dotson stepped out of his truck, which was parked
about 15 feet behind the second jeep, and approached the jeeps. Richard Lovato, John J. Lovato and
Robert Gassman exited the jeeps leaving their hunting rifles behind. The three Claimants stood beside
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2 The property that Dotson claimed to own was in the form of mining claims owned by
corporations in which Dotson had an interest either as an owner or officer. The Court will simply refer
to the ownership interests claimed by Dotson as “property interests.”
3 Although the Claimants crossed property owned by Howard Harkey to access the Loop
Road, the Claimants testified that they had verbal permission to cross Mr. Harkey’s land.
3
the second jeep on the road facing Dotson’s truck. Kenneth Montiel remained seated in the second
jeep. Dotson asked Richard Lovato for vehicle registration documents and whether he had written
permission to cross private property. Richard Lovato asked Dotson what authority he had to ask for
vehicle registration documents and informed Dotson that they did not need permission to hunt in this
area because they were on Forest Service property and were planning to hunt only on Forest Service
property. Dotson stated that they were trespassing on property owned by him.2 Richard Lovato told
Dotson that he was sure that they were on Forest Service land and that they had not crossed private
property.3 Dotson produced a map that showed the boundaries of property he claimed to own.
Dotson repeatedly asserted that the jeeps had trespassed across a portion of Dotson’s property.
Richard Lovato showed Dotson a map in his possession showing the boundaries of Forest Service
property. The Claimants maintained that they were not trespassing and that they were going to continue
their hunt. A heated argument ensued in which Dotson demanded that the Claimants leave the site and
come with him to the sheriff’s office. The Claimants refused to leave, stating they did not intend to go
anywhere with Dotson and that they intended to continue their hunt. Dotson testified that after the
argument, he left the area and contacted the sheriff’s office.
According to the Claimants’ testimony, after the argument, Dotson turned around, quickly
walked to the passenger side of his truck and grabbed a rifle while yelling that the Claimants were
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“going down” and that they were “going to jail.” Dotson fired two quick successive shots at a forty-five
degree angle above the Claimants heads, and then swung the rifle down facing the ground. The
Claimants testified that the shots shocked and frightened them causing them to fear for their lives and
that they also feared being shot when Dotson brought the rifle down at an angle in front of them.
Richard Lovato then carefully stepped toward Dotson telling him to put the gun away. Dotson
continued to demand that the Claimants come with him to the sheriff’s office, and the Claimants stated
their refusal again. A few moments later, the Claimants slowly returned to their vehicles and continued
west on the Loop Road.
After proceeding about one-half mile west on the Loop Road, the Claimants testified that they
arrived at a flat area and parked their jeeps next to each other off of the road. Dotson followed the
Claimants to this place (the “second confrontation place”). The Claimants testified that Dotson stopped
the truck and spoke loudly on a cellular phone saying that he would “block them in” and that a four
wheel drive vehicle was necessary to get up to the site. The Claimants learned later that Dotson was
speaking to the Lincoln County sheriff’s office. Dotson then drove in a westward direction past the
jeeps and out of sight behind a stand of trees. A short time later, the Claimants heard three more shots
not far from the second confrontation place. The Claimants ducked in fear that they were being fired at
again or that Dotson was either trying to scare away deer or scare them off the site. After a short time,
the Claimants split into two groups to hunt: one twosome went toward the west, and the other went up
the mountain to the north. At trial, Dotson denied firing any shots either at the first or second
confrontation place, and also denied that a second confrontation even occurred.
Sometime later, Dotson drove to the second confrontation place in the white pickup
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4 Although the parties disagree on what type of gun Dotson had in his truck that day, the
Claimants testified that the two shots in quick succession must have come from a semi-automatic rifle.
Dotson presented the vintage 303 caliber rifle testifying that it was the one he had with him that day.
However, Dotson did not explain whether it was possible for this gun to have fired the successive shots
apparently assuming the Court would draw that conclusion. The Claimants offered the deputy’s
testimony that he saw a 30/06 caliber rifle in the truck, but neither side explained whether this rifle could
have fired two successive shots in the manner described by the Claimants.
5
accompanied by Lincoln County sheriff’s deputy Robert Shepherd. The deputy testified that while
Dotson and he were driving to the Loop Road, Dotson complained that the Claimants had fired their
guns at him. However, Dotson had not complained of a shooting in his earlier call to the dispatcher at
the sheriff’s office. The deputy testified that he saw a 30/06 caliber rifle in the front seat of Dotson’s
pickup. At the hearing, however, Dotson offered as an exhibit a vintage World War II 303 caliber rifle
and testified that this was the gun that he had in the front seat of his pickup.4
After Dotson parked at the second confrontation place, the deputy got out of Dotson’s truck
and waited for the Claimants to walk down from their hunting positions to the parked jeeps where the
deputy checked hunting licenses and vehicle registration. After speaking to the Claimants, the deputy
decided that the Claimants and Dotson should be escorted from the property and ordered the
Claimants to follow Dotson’s truck out of the area. The truck and both jeeps started back in the
direction of the first confrontation place on the Loop Road. On the way, one of the jeeps had
mechanical trouble and stopped. After determining that the jeep could be fixed and then could catch up
with the other jeep, the truck and the other jeep continued to the first confrontation place and stopped.
Dotson explained to the deputy that this place was located on a mining claim that he owned. The truck
and jeep then proceeded south to exit the area through a portion of Harkey’s property. The sheriff’s
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5 In a criminal proceeding, the state must prove that the accused committed the offense beyond
a reasonable doubt. State v. Slade, 78 N.M. 581, 434 P.2d 700, 702 (N.M.App. 1967)(“ It is
axiomatic that the burden rests upon the state to prove each and every essential element of the offense
charged beyond a reasonable doubt.”).
6
office requested written statements from the Claimants and from Dotson. The Claimants submitted one
statement to the sheriff’s office signed by all Claimants. Claimants Ex. 103. Dotson also submitted a
written statement. Claimant’s Ex. 1.
The Claimants testified that they cut their hunting trip short and returned home that day. The
Claimants are all avid hunters. Richard Lovato, Robert Gassman, and John J. Lovato testified that even
though they have hunted every year since childhood, they have not been hunting since this incident
because they fear retaliation by Dotson. Each Claimant testified that they were emotionally affected by
these incidents, including the ongoing fear of reprisal. Richard Lovato testified that he will never go
back to this hunting area, even though he has hunted there almost every year for the past 20 years.
John J. Lovato testified that he fears for himself and his family’s safety and is anxious every time a white
truck drives by his house. Robert Gassman testified that he fears for his life and for the other
Claimants’ lives and has wondered since the incidents what would have happened if his wife, who had
stayed in camp that day, had been with them. He compared the shocking effect of the incidents to
being in a car wreck. Kenneth Montiel testified that since the incident he has carried a gun in this truck
for protection. Kenneth Montiel, stated that he never wants to hunt again and will not take his children
hunting because he is afraid that a similar incident will occur.
Criminal charges were filed against Dotson and a trial was held in 2004. The jury found
Dotson not guilty of aggravated assault with a firearm.5
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6 A battery under New Mexico law is an unlawful, harmful, intentional, or offensive touching of
another. Chavez v. Thomas & Betts Corp., 396 F.l3d 1088, 1100 (10th Cir. 2005).
7
Discussion
When a proof of claim is filed in accordance with the Bankruptcy Rules, it constitutes prima
facie evidence of the validity of the claim and amount owed. Rule 3001(f), Fed. R. Bankr. P.
However, upon objection to the proof of claim, the burden shifts to the claimant to prove the validity of
the claim. Lundell v. Anchor Const. Specialists, Inc., 223 F. 3d 1035, 1039 (9th Cir. 2000).
Notwithstanding the well-established burden-shifting scheme outlined above, ultimately “state law
governs the substance of claims.” Raleigh v. Illinois Department of Revenue, 530 U.S. 15, 20, 120
S.Ct. 1951, 147 L.Ed.2d 13 (2000). In In re Ogden, 314 F.3d 1190, 1200 (10th Cir. 2002), the
Tenth Circuit Court of Appeals stated,
[w]hile federal law determines when [a] claim arises for bankruptcy purposes, non-bankruptcy
substantive law usually determines the existence of a claim. See Raleigh v. Illinois Dept. of
Revenue, 530 U.S. 15, 20, 120 S.Ct. 1951, 147 L.Ed.2d 13 (2000) ("The 'basic federal rule'
in bankruptcy is that state law governs the substance of claims, . . . Congress having generally
left the determination of property rights in the assets of a bankrupt's estate to state law")(citation
omitted).
Under New Mexico law, the Claimants must show by a preponderance of the evidence that they were
the victims of one or more assaults by showing that Dotson acted in such a manner as to cause them to
reasonably believe that they were in danger of receiving an immediate battery. Baca v. Velez, 114
N.M.13,15, 833 P.2d 1194, 1196 (N.M.App. 1992)(stating definition of assault and burden of proof
for civil assault claim).6 A court may award compensatory and punitive damages for assault. Downs
v. Garay, 106 N.M. 321, 324, 742 P.2d 533, 536 (N.M. App. 1987).
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The Claimants argue that they are entitled to compensatory and punitive damages for assault;
however, each Claimant testified that he incurred no out-of-pocket expenses as a result of this
experience. The Claimants also ask for punitive damages to punish Dotson and to deter him from
further threatening and dangerous behavior. In his Objection Dotson asserts that the Claims should be
disallowed because the damages claimed were not caused by “any conduct of the Debtor.” Dotson
also argues that the damages claimed were exaggerated.
After careful review of all of the evidence and the conflicting testimony, the Court concludes
that the Claimants have presented the more credible version of the events of that day and, therefore,
have proven by a preponderance of evidence that Dotson assaulted them by threatening them with a
rifle and by firing a rifle above their heads.
In his defense, Dotson argues that he was justified in using force to remove the Claimants who
were criminally trespassing on his property and refusing to leave. However, even if Claimants were
trespassing on Dotson’s property, a landowner is only allowed to use the force that is reasonably
necessary to remove trespassers. See Brown v. Martinez, 68 N.M. 271, 280, 361 P.2d 152, 159
(1961)(finding that landowner who shot and wounded a teenager stealing watermelons from his garden
was liable for injuries); see also Jaramillo v. Smith, 91 N.M. 378, 380, 574 P.2d 597, 599
(1978)(stating that businessman has right to eject patron who unlawfully remained on premises but only
with reasonable force). Dotson did not use reasonable force by threatening Claimants and by firing a
rifle over the Claimants’ heads in order to force them to leave the area. The Claimants were unarmed
and were not physically threatening Dotson. The Claimants simply refused to leave.
Additionally, Dotson argues that the assault was justified because he was acting in self- defense.
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7 One of the Claimants testified that he lost the money that he invested in the hunting trip;
however, no evidence of the amount lost was offered.
9
See Faubion v. Tucker, 58 N.M. 303, 306, 270 P.2d 713, 715 (1954)(stating that to “justify an
assault and battery on the ground of self-defense, the person assaulted must have done some overt act
or made a hostile demonstration of a character to give the assailant reasonable ground to suppose
himself in imminent danger.”). The Claimants were unarmed, having left their hunting rifles in the jeeps,
when they met Dotson at the first confrontation place. They’re stated intention during both
confrontations was to hunt deer on property that they believed was Forest Service property. The only
overt action on the part of the Claimants was their refusal to leave, which Dotson could have remedied
through the use of law enforcement, not a rifle. The Court, therefore, concludes that Dotson assaulted
the Claimants without justification.
The Claimants ask for compensatory damages; however, they presented no evidence upon
which to base an award of compensatory damages having failed to show measurable out-of-pocket
expenses as a result of the assault.7 The Claimants have established a cause of action for assault;
therefore, under New Mexico law the Court may award nominal damages. See Sanchez v. Clayton,
117 N.M. 761, 768, 877 P.2d 567, 573 (1994)(describing availability of nominal damages awarded
for intentional torts as “a trivial sum of money awarded to a litigant who has established a cause of
action but has not established that he is entitled to compensatory damages.”)(citation omitted).
Because the Claimants established a claim for assault but failed to present evidence of actual
compensatory damages, the Court will award each Claimant nominal damages of $10.00.
Claimants also request an award of punitive damages to punish Dotson, to deter further
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threatening actions by Dotson and to serve as an example to others who might engage in such
dangerous and irresponsible behavior. Under New Mexico law the Court may award punitive
damages as punishment or as a deterrent even when the Court does not award compensatory damages.
See Sanchez, 877 P.2d at 572 (stating that New Mexico courts that award nominal damages may also
award punitive damages). In New Mexico punitive damages may be awarded when the conduct of the
tortfeasor is maliciously intentional, oppressive, or committed recklessly or with a wanton disregard of
plaintiff’s rights. Northrip v. Conner, 107 N.M. 139, 142, 754 P.2d 516, 519 (1988). Wielding a
loaded rifle and discharging it above a person’s head at close range is maliciously intentional and
oppressive behavior and warrants an award of punitive damages. See id. (finding that shooting rifle
between plaintiff’s feet and throwing a rock at plaintiff warranted punitive damages). Punitive damages
against Dotson are also appropriate to deter others from engaging in similar outrageous and
irresponsible behavior. Madrid v. Marquez, 131 N.M. 132, 134, 33 P.3d 683, 685 (N.M. App.
2001)(stating in case involving claim in equity that punitive damages may be awarded to deter “clearly
unacceptable behavior.”). In view of the serious and dangerous nature of this assault, the Court
concludes that an award of punitive damages is warranted. Thus, the Court finds that Claimants
Richard Lovato, John J. Lovato and Robert Gassman who left the relative safety of their jeeps and
stood in front of Dotson at the time he fired his rifle into the air over their heads are each entitled to an
award of punitive damages in the amount of $3,000.00. Claimant Kenneth Montiel, who was sitting in
a somewhat more protected position in the second jeep at the time rifle was fired, is entitled to an
award of punitive damages in the amount of $1,500.00.
WHEREFORE IT IS HEREBY ORDERED that Dotson’s Objection to Claim No. 11 is
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denied.
IT IS FURTHER ORDERED that the Claim is hereby allowed as follows:
Richard Lovato has an allowed unsecured claim of $10.00 in nominal damages plus $3,000.00
in punitive damages;
John J. Lovato has an allowed unsecured claim of $10.00 in nominal damages plus $3,000.00
in punitive damages;
Robert Gassman has an allowed unsecured claim of $10.00 in nominal damages plus
$3,000.00 in punitive damages; and
Kenneth Montiel has an allowed unsecured claim of $10.00 in nominal damages plus
$1,500.00 in punitive damages.
MARK B. McFEELEY
UNITED STATES BANKRUPTCY JUDGE
I certify that on the date shown on the attached document verification, a true and correct copy of
the foregoing was either electronically transmitted, faxed, delivered or mailed to the listed counsel
and/or parties.
Pedro G. Rael
Attorney for Claimants
P.O. Box 460
Los Lunas, NM 87031
Lee Deschamps
Attorney for Debtor
PO Box 37
Socorro, NM 87801 -37
Gary B. Ottinger
Attorney for Debtor
PO Box 1782
Albuquerque, NM 87103 -1782
Ellen C. Snyder
Law Clerk
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