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Apodaca v. AAA Gas Co.3/11/2003
in the immediate hours before and after the interview. Cf. Macias, 110 N.M. at 250, 794 P.2d at 393 (finding videotaped interview taken nine months before trial was not an adequate inquiry into the competency elements within the meaningful time).
Plaintiffs argue that their witnesses-Velasquez, his wife and his sister- testified about his mental state closer in time to the event, and their testimony paints a different picture of Velasquez's mental state. However, as the fact finder on this preliminary question, the trial court was not required to accept any of their testimony to the exclusion of other evidence.
Although we do not ignore the strong pain medication Velasquez was taking during the course of his hospitalization or that he was recovering from a traumatic accident, the question before us is whether it was an abuse of discretion for the trial court to conclude that Velasquez met the "minimum standards" of competency. Based on the foregoing evidence, we find it was reasonable for the trial court to conclude Velasquez had the capacity to observe, recollect, and communicate. Plaintiffs never suggested Velasquez did not appreciate the duty to speak the truth. Any confusion Velasquez might have expressed in his recount of the events to the investigator, as well as his medicated state were issues of fact that went to credibility and not admissibility and were properly before the jury.
IV. Motion to Amend Complaint - Unfair Practices Act
Plaintiffs' fourth issue on appeal is that the trial court erred in denying their motions to amend the complaint. On May 15, 2000, three months after filing the complaint in the first Bernalillo County District Court action, and almost three years after the filing of decedent Salazar's action in Valencia County District Court, Plaintiffs filed a motion to amend their complaint to add a new cause of action that alleged LPGE had violated the UPA. Plaintiffs filed a supplemental motion to amend on May 22, 2000. After hearing arguments on June 6, 2000, the court denied Plaintiffs' motions on the basis of unfair prejudice. The court explained that Plaintiffs should have anticipated the theory earlier on, the facts were not new, and an amendment would delay the trial two years due to the prospect of additional discovery and joining third parties which LPGE would need to defend against the claim. Plaintiffs renewed their motion at the end of trial pursuant to Rule 1-015(B) NMRA 2003 to amend the complaint to conform to the evidence presented at trial by adding the UPA claim, as well as a new intentional misrepresentation claim. This motion also was denied. Meanwhile, Plaintiffs filed a second complaint against LPGE, which alleged both UPA and misrepresentation claims. Apodaca v. LP Gas Equip., Inc., No. CV-2000-6621 (Bernalillo County District Court June 28, 2000).
Plaintiffs protest that the court abused its discretion under Rule 1-015(A) and (B) by denying the amendments. Defendant LPGE counters that the denial was proper because the amendments were: (1) untimely and (2) legally insufficient because the UPA does not provide a remedy for personal injuries. See Viernow v. Euripides Dev. Corp., 157 F.3d 785, 799 (10th Cir. 1998) (noting untimeliness alone is sufficient reason to deny leave to amend); see also State v. Elec. City Supply Co., 74 N.M. 295, 299, 393 P.2d 325, 328 (1964) (stating the court may deny motion to amend when insufficiency or futility of the motion is apparent on its face). We agree that denying the motion as untimely was not an abuse of discretion. We do not decide whether the UPA provides a remedy for personal injury claims.
Rules 1-015(A) and (B)
Under Rule 1-015(A
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