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Rupp v. Hurley3/5/1999
ons by the trial court indicate it was not imposing a sanction in the punitive sense of the word. We have already noted that the trial Judge, in ruling on Plaintiff's post-trial motions, specifically stated he was ruling pursuant to Rule 1-012(B)(5). In addition, when Defendants asked the trial court to award attorney's fees as a sanction for seeking reconsideration of the order of dismissal, they were rebuffed.
{33} There are no findings of fact of any kind supporting even consideration, much less application, of a sanction. We cannot affirm on this ground when the evidence was contested, the trial court entered no findings or Conclusions on the matter, and the determination of the appropriate sanction is a matter within the discretion of the trial court. See Franks, 119 N.M. at 177, 889 P.2d at 212.
4. Did Plaintiff Lose Her Waiver Argument By Raising Too Late?
{34} Finally, relying on Rule 1-015(B), Defendants assert Plaintiff waived her Rule 1-012(H) argument because she raised it too late. Rule 1-015(B) provides in pertinent part that ' hen issues not raised by the pleadings are tried by express or implied consent . . . they shall be treated in all respects as if they had been raised in the pleadings." Defendants construct their Rule 1-015(B), trial-by-consent theory by reminding us that: (1) Plaintiff responded to the motion to dismiss by addressing its factual merits, arguing strenuously that there had been no undue delay in service on her part and that a good part of the delay should be attributed to Defendants; (2) Plaintiff requested an evidentiary hearing on the motion; (3) Plaintiff's two written responses to the motion did not mention her waiver arguments; and (4) Plaintiff first mentioned Rule 1-012(H) waiver at the December 20, 1996, hearing, after evidence had been received. Defendants' position is that Rule 1-015(B) can be applied to cure any defect caused by late assertion of their Rule 1-012(B)(5) defense. We disagree.
{35} Defendants' reliance on Rule 1-015(B) in this context is quite novel in modern Rule 1-012 jurisprudence. There is little case law on the relationship between the trial-by-consent concept of Rule 1-015(B) and the waiver provisions of Rules 1-012(G) and 1-012(H). Defendants have not cited, nor have we found, a single case decided after the 1966 federal amendment to Rule 12 which holds specifically that Rule 1-015(B) can or should be applied to override the waiver provisions of Rule 1-012. On the contrary, we have located cases which hold that a party cannot lose the right to assert that Rules 1-012(G) and 1-012(H) preclude a defense of the opposing party even when the party relying on Rules 1-012(G) and 1-012(H) failed to raise the point in trial court. See Pila v. G.R. Leasing & Rental Corp., 551 F.2d 941, 943 (1st Cir. 1977); Myers v. American Dental Ass'n, 695 F.2d 716, 721 (3rd Cir. 1982).
{36} The one case Defendants rely upon which does address the issue does so only in dictum and was decided before the 1966 amendments. See Lomartira v. American Auto. Ins. Co., 245 F. Supp. 124, 128-29 (D. Conn. 1965), aff'd 371 F.2d 550 (2d Cir. 1967). It is therefore not helpful because of the significant differences between the present rule and the pre-1966 Rule 1-012(H). The rest of Defendants' authority is more general in its focus, dealing with the application of Rule 1-015(B) to unpled defenses and pretrial motions, involving Rules 1-012(G) and 1-012(H). See, e.g., Bernsen v. Big Bend Elec. Coop., Inc., 842 P.2d 1047, 1051 (Wash. Ct. App. 1993); Loftus v. Romsa Constr., Inc., 913 P.2d 856, 860-61 (Wyo. 1996).
{37} We have located one post-amendment case that addresses some of the conceptua
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