Hervol v. Cobos ( 2011 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
2 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
3 also note that this electronic memorandum opinion may contain computer-generated errors or other
4 deviations from the official paper version filed by the Court of Appeals and does not include the
5 filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 NICK HERVOL,
8 Plaintiff-Appellant,
9 v. NO. 31,309
10 RAYMOND COBOS, individually and as
11 Sheriff of Luna County, New Mexico, JOHN
12 SUTHERLAND, County Manager of Luna
13 County, New Mexico, and the BOARD OF
14 COMMISSIONERS of Luna County, New
15 Mexico,
16 Defendants-Appellees.
17 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
18 Johns. C. Robinson, District Judge
19 Santiago E. Juarez
20 Albuquerque, NM
21 for Appellant
22 Law Office of Jonlyn M. Martinez, LLC
23 Jonlyn Martinez
24 Albuquerque, NM
25 for Appellees
2
1 MEMORANDUM OPINION
2 BUSTAMANTE, Judge.
3 Appellant Nick Hervol appeals the district court’s order denying his motion for
4 reconsideration and motion to amend the complaint. This Court filed a notice of
5 proposed summary disposition proposing to affirm the district court. Appellant filed
6 a response in opposition to proposed summary affirmance, and Appellees filed a
7 motion in support, which we have given due consideration. Unpersuaded by
8 Appellant’s memorandum, we affirm the district court.
9 We clarify that based on the timing of the district court’s grant of Appellees’
10 motion to dismiss on January 18, 2011 [RP 47], and Appellant’s filing of his motion
11 for reconsideration and motion to amend the complaint on January 27 and 28, 2011
12 [RP 50 & 58], respectively, the district court was only required to reconsider its order
13 granting dismissal based on the original complaint. Upon denial of the motion to
14 reconsider, the district court was not required to consider whether Appellant should
15 be permitted to amend his complaint, as principles of finality and preclusion had
16 terminated Appellant’s right to amend. See Moffat v. Branch, 2002-NMCA-067, ¶¶
17 22-25, 132 N.M. 412, 49 P.3d 673. To the extent that our notice of proposed
18 summary disposition suggested that this Court must apply an abuse of discretion
19 standard to denial of a motion to amend the complaint, where the district court has
20 already granted a motion to dismiss and denies a motion to reconsider dismissal, we
21 clarify that the abuse of discretion standard is not applicable.
3
1 With the above clarification, we affirm the district court for the reasons stated
2 in our notice of proposed summary disposition.
3 IT IS SO ORDERED.
4
5 MICHAEL D. BUSTAMANTE, Judge
6 WE CONCUR:
7
8 LINDA M. VANZI, Judge
9
10 J. MILES HANISEE, Judge
4