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Rupp v. Hurley3/5/1999
idable. Plaintiff asserted she had to file her complaint in June 1996 because there were some defendants who were qualified health care providers under the Medical Malpractice Act, NMSA 1978, §§ 41-5-1 to 41-5-29 (1976, as amended through 1997), and some who were not. Plaintiff noted that the statute of limitations could not be tolled as to the defendants who were not covered by the Medical Malpractice Act except by the filing of a complaint. See id. § 41-5-22. However, Plaintiff was in a dilemma, according to her counsel, because she could not serve the complaint on those defendants who were qualified health care providers prior to the decision by the Medical Review Commission. After the Medical Review Commission decision, Plaintiff asserted she could not serve the amended complaint earlier because the court clerk refused to issue a new summons until April, when she was ordered to do so.
{13} In addition, Plaintiff's counsel argued that Defendants' motion to dismiss was itself untimely filed "because it wasn't raised in the original answer." At the end of the hearing, the trial court orally granted Defendants' motion, finding that the "Plaintiff has failed to show or to demonstrate the diligence that is required by the Rules of Civil Procedure" and that "Defendants are prejudiced by the Plaintiff's inactivity in failure to make the service that has been the subject of the hearing."
{14} Following the trial court's bench ruling, Plaintiff and Defendants were unable to agree on a form of order. In addition, Plaintiff wished to submit requested findings of fact and Conclusions of law, to which Defendants objected. Prior to the presentment hearing, Plaintiff moved for permission to file a set of requested findings of fact and Conclusions of law. Material to this appeal are her requested Conclusions numbers 4 and 16 in which Plaintiff pointed out that Defendants had failed to raise the issue of delay in serving their original answer and their first two motions to dismiss.
{15} At the presentment hearing Defendants objected to Plaintiff's requested findings of fact and Conclusions of law, asserting that " his was a 12(B)(5) motion for dismissal for failure to timely serve process," and as such findings were not required by the rules of civil procedure. In response, Plaintiff's counsel professed confusion as to the grounds for the dismissal, pointing out that Rule 1-012(B)(5) was not mentioned in the motion itself. Counsel then reminded the trial court that Defendants had not raised the issue of service in their original answer. The trial court sustained the objection to the findings and entered Defendants' form of order.
{16} After entry of the dismissal order, Plaintiff filed two motions seeking post-judgment relief. One was filed as a Rule 1-059 NMRA 1999 motion for new trial; the other was filed pursuant to Rule 1-060(B)(1) NMRA 1999. The brief Plaintiff filed in support of her Rule 1-059 motion highlighted Defendants' failure to include their Rule 1-012(B)(5) objection in their first answer or first two motions to dismiss, and asserted that under Rule 1-012(G) they had waived their right to do so. The brief supporting Plaintiff's Rule 1-060(B)(1) motion essentially argued that Defendants' motion had misled Plaintiff to respond as if it were grounded on a failure to prosecute pursuant to Rule 1-041 NMRA 1999. In their response to the post-trial motions, Defendants reasserted that their motion was made pursuant to Rule 1-012(B)(5). Defendants pointed out they had referred to Rule 1-012(B)(5) in the first hearing held on the motion on August 30, 1996. Defendants also argued they had not waived the defense because they had filed it as soon as they realized it was available;
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