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Rupp v. Hurley3/5/1999
nse[ ]," id. at 661-63, such as the failure to raise insufficiency of service of process in a timely manner. See Oppel v. Empire Mut. Ins. Co., 92 F.R.D. 494, 497 (S.D.N.Y. 1981).
{42} We hold that Defendants failed to state a legal defense by failing to raise insufficiency of service of process in accordance with the procedures of Rules 1-012(G) and 1-012(H)(1). By alerting the trial court to Defendants' failure before a trial on the merits, Plaintiff validly asserted her defense to Defendants' "insufficient defense." Stated otherwise, she did not waive her waiver argument. Plaintiff might perhaps have been more explicit or more timely in raising her defense, but we agree with the Advisory Committee that "an objection of failure to state a legal defense to a claim" is a "substantial defense." As such, we believe it would be inappropriate for us to impose conditions, not contained in the rule, upon the raising of the defense.
{43} Our holding here is consistent with what we recently held in Robinson-Vargo v. Funyak, 1997-NMCA-095, 123 N.M. 822, 945 P.2d 1040. The issue there was whether the plaintiff could assert for the first time on appeal that the defendant waived his challenge to personal jurisdiction by failing to consolidate it with a motion to dismiss for lack of proper venue. Id. 9. Under Rule 1-012(H)(1), a challenge to personal jurisdiction is waived if not consolidated in a pre-answer motion with the other Rule 1-012(B) defenses listed in Rule 1-012(G), or if not included in a responsive pleading. Relying on the plain language of Rule 1-012(H)(2) we held that the plaintiff lost her waiver defense by not raising it until appeal.
CONCLUSION
{44} We conclude that, because Defendants filed their "Motion to Dismiss for Failure to Serve Process in a Timely Manner" after they filed their answer and after they filed another Rule 1-012 motion to dismiss, the motion was filed too late under Rules 1-012(G) and 1-012(H). We believe that it would be inappropriate to affirm the judgment below on a ground other than the Rule 1-012(B)(5) ground urged by Defendants in the district court. Finally, Plaintiff did not lose her waiver argument. Thus, it was improper for the trial court to dismiss. We therefore reverse and remand with instructions that the trial court reinstate Plaintiff's suit.
{45} IT IS SO ORDERED.
MICHAEL D. BUSTAMANTE, Judge
WE CONCUR:
HARRIS L HARTZ, Judge, specially Concurring JAMES J. WECHSLER, Judge
HARTZ, Judge (specially Concurring).
{46} I join all of Judge Bustamante's opinion except for the deference it accords to Defendants' reliance on Rule 1-015(B). Defendants' problem here is the untimeliness of their motion to dismiss. Rule 1-015(B) does not address such a problem.
{47} The first sentence of Rule 1-015(B) states: "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." (Emphasis added.) As I understand this Rule, it does not apply when an issue has been raised by the pleadings. Here, Defendants had filed a motion, albeit an untimely one, raising the issue of inadequate service. Rule 1-015(B) says nothing about treating a pleading that was actually filed as having been filed earlier than it was.
{48} Moreover, even if Defendants had never filed a pleading seeking dismissal for insufficient service of process, Rule 1-015(B) could not save them. Under Rule 1-015(B) a pleading will be deemed to have been filed, but it will not necessarily be deemed to have been timely filed. Presumably, the Rule would trea
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