Kirby Cattle Co. v. Shriners Hospitals for Crippled Children , 88 N.M. 605 ( 1975 )

HERNANDEZ, Judge

(dissenting).

I respectfully dissent.

Defendants filed a motion to dismiss for failure to state a claim upon which relief may be granted, pursuant to Rule 12(b)(6) of the New Mexico Rules of Civil Procedure, [§ 21-1-1(12), N.M.S.A.1953 (Repl. Vol. 4)]. The court granted defendants’ motion on February 14, 1974, but the judgment was not entered pending further discovery at plaintiff’s request. The judgment was finally entered on February 3, 1975, as a summary judgment pursuant to Rule 56(b), New Mexico Rules of Civil Procedure, supra.

Rule 12(b)(6), New Mexico Rules of Civil Procedure, supra, states clearly and in unequivocal terms that:

“. . . If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” [Emphasis Mine.]

Matters outside the pleadings were presented to the trial court. No separate motion for summary judgment under Rule 56, New Mexico Rules of Civil Procedure, supra, need be made.' The rules establishing the conditions under which summary judgment will be granted are well established in New Mexico. See Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972). In my opinion the trial court properly granted the Shriners summary judgment.

It is also my opinion that the trial court did not err in granting a motion for protective orders, or for refusing a motion for further discovery. These matters, the trial court properly concluded, fell outside the parameters of the allegations in plaintiff’s complaint and were, accordingly, irrelevant. Extensive discovery had been permitted plaintiff during the year this suit was litigated. The trial court did not abuse its discretion by finding further discovery of a third party’s possible interest irrelevant.

Finally, the court’s refusal to grant plaintiff’s motion to amend its complaint was entirely within the discretion of the trial court.