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Rupp v. Hurley3/5/1999
or failure to prosecute" where a plaintiff does not proceed with reasonable diligence to serve his complaint. 94 N.M. at 742, 616 P.2d at 1127.
{23} Defendants argue from a body of case law examining the nature of motions to dismiss for untimely service, noting that there is a lack of consensus as to how to categorize them (that is, whether they are governed by statutes of limitation or by the rules of civil procedure). See, e.g., Floyd v. United States, 900 F.2d 1045, 1046-47 (7th Cir. 1990); Hoffman v. Benson, 147 F.R.D. 205, 206-07 (W.D. Mo. 1993); Sykes v. Springer, 469 S.E.2d 472, 474 (Ga. Ct. App. 1996). Defendants also correctly note that case law in New Mexico examining the analytical basis of such motions is lacking.
{24} Defendants' arguments might well resonate with us if these issues were present in the case, but we do not believe they are before us. As detailed above, Defendants insisted to the trial court over the course of three hearings that they were proceeding under Rule 1-012(B)(5). Their position here is directly contradictory to their stance in the district court. In addition, the trial court specifically noted it was acting pursuant to Rule 1-012(B)(5). Defendants are, in essence, inviting us to apply a "right-for-any-reason" rationale to affirm.
{25} To be sure, on occasion we will affirm the district court on a rationale different from the one relied on by that court, but only when doing so is fair to the appellant. See State v. Franks, 119 N.M. 174, 177, 889 P.2d 209, 212 (Ct. App. 1994). Only rarely will it be fair to affirm on a ground that was not raised in the lower court. We are not inclined to consider affirming on a right-for-any-reason rationale here, when Defendants insisted below that the sole basis of the favorable ruling was Rule 1-012(B)(5). Moreover, as we understand Defendants' answer brief, they are essentially raising a statute-of-limitations argument. Ordinarily, statute-of-limitations issues are to be decided by the jury and cannot be decided on motion by the court if there are disputed material facts. See Medina v. Fuller, 1999-NMCA-011, 22, N.M. , P.2d . In sum, Defendants argued a Rule 1-012(B)(5) motion and received the benefit of a Rule 1-012(B)(5) ruling. Their motion thus should be subject to the limitations of Rules 1-012(G) and 1-012(H)(1).
2. Was the 1-012(B)(5) Defense Available to Defendants When They Filed Their Original Answer?
{26} As noted, Rule 1-012(G) requires consolidation of certain Rule 1-012 defenses in a defendant's first responsive pleading or motion if the defenses are then available. Defendants argue they were not aware of the original complaint until September 19, 1995, and so did not at first appreciate that service had been delayed so long. Thus, they reason that the defense of improper service was not available to them at the time they filed the answer. Key to Defendants' argument is that in the circumstances of this case service on them of the "amended complaint" was not sufficient to put them on notice of any need to seek and examine the original complaint. We disagree and, thus, hold that their Rule 1-012(B)(5) defense was available within the meaning of the rule.
{27} Generally, a Rule 1-012 (B)(5) defense is available if it can be ascertained by reviewing the court file. Here, Defendants' Rule 1-012(B)(5) defense was available to them in an objective sense when they filed their original answer because all they had to do to "discover" it was examine the court file.
{28} Defendants concede that "receipt of a pleading entitled 'Amended Complaint' would normally lead one to conclude that an earlier complaint had been filed." They argue that th
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