Brignoni v. Del Bozque ( 2024 )

This decision of the New Mexico Court of Appeals was not selected for publication in
the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the
citation of unpublished decisions. Electronic decisions may contain computer-
generated errors or other deviations from the official version filed by the Court of
Appeals.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-40661
SANDRA MARIE BRIGNONI,
Plaintiff-Appellant,
v.
JERONIMO DEL BOZQUE,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
James T. Martin, District Court Judge
Atler Law Firm, P.C.
Timothy J. Atler
Jazmine J. Johnston
Albuquerque, NM
Cardenas Law Firm LLC
Christopher K.P. Cardenas
Las Cruces, NM
for Appellant
Mynatt Springer P.C.
Bradley A. Springer
Robert A. Cabello
Las Cruces, NM
for Appellee
MEMORANDUM OPINION
YOHALEM, Judge.
{1} Plaintiff appeals from the district court’s order granting Defendant’s motion to
dismiss Plaintiff’s complaint. We issued a calendar notice proposing to reverse.
Defendant has filed a memorandum in opposition, and Plaintiff has filed a memorandum
in support, which we have duly considered. Having given due consideration to
Defendant’s arguments, this Court reverses the district court’s order dismissing
Plaintiff’s complaint.
{2} In our calendar notice, we proposed to summarily reverse on the grounds that
Plaintiff had filed her complaint within the statute of limitations under the Wrongful Death
Act (WDA), NMSA 1978, §§ 41-2-1 to -4 (1882, as amended through 2001), and that
even though her case was dismissed for lack of prosecution, Plaintiff timely moved to
have it reinstated such that her case was reactivated “at the same point in the
proceedings where it was dismissed” and that the statute of limitations was not an
issue. [CN 5-6] In his memorandum in opposition, Defendant “concedes the case law is
settled that once a case is reinstated, pursuant to Rule 1-041(E)(2) NMRA, it is
reactivated ‘at the same point in the proceedings where it was dismissed.’” [MIO 1
(quoting Wershaw v. Dimas, 1996-NMCA-118, ¶ 4, 122 N.M. 592, 929 P.2d 984)]. As
such, Defendant acknowledges that “the statute of limitations was no longer at issue in
this matter.” [MIO 1]
{3} Although Defendant concedes the statute of limitations issue, he argues that the
district court’s order dismissing Plaintiff’s complaint is “still correct because any
amendment would be highly prejudicial” and that this Court can affirm a district court
ruling that is right for any reason. [MIO 1] Specifically, Defendant argues that if Plaintiff
is allowed to amend her complaint, he will be “prejudiced by [the] shift in focus of
defense from a loss of consortium claim to a wrongful death claim especially
considering [his] advanced age.” [MIO 4]
{4} We remain unpersuaded, however, that the district court’s order was not
erroneous. Under Rule 1-015(A) NMRA, “[a] party may amend its pleading once as a
matter of course at any time before a responsive pleading is served.” Here, Defendant
did not file a responsive pleading to Plaintiff’s original complaint. Rather, Defendant filed
a motion to dismiss, which our case law instructs is not a responsive pleading. [RP 37-
41] See Moffat v. Branch, 2002-NMCA-067, ¶ 22, 132 N.M. 412, 49 P.3d 673 (stating
that “[m]otions to dismiss . . . are not responsive pleadings for purposes of Rule 1-015”).
Because Defendant did not file a responsive pleading, Plaintiff should have been
allowed to amend her complaint once as a matter of right before entry of the final order.
Accordingly, we conclude that Plaintiff was entitled to amend her complaint as a matter
of right. See Malone v. Swift Fresh Meats Co., 1978-NMSC-007, ¶ 6, 91 N.M. 359, 574
P.2d 283 (stating that because “[the d]efendants had not filed a responsive pleading at
the time [the plaintiff] filed his amended claim,” “[t]here was no necessity for obtaining
the trial court’s order granting leave to file [the] amended claim”); see also Rule 1-
015(A) (stating that “a party may amend its pleading only by leave of court or by written
consent of the adverse party”).
{5} For the reasons stated in our notice of proposed disposition and herein, we
reverse the district court’s order granting Defendant’s motion to dismiss.
{6} IT IS SO ORDERED.
JANE B. YOHALEM, Judge
WE CONCUR:
ZACHARY A. IVES, Judge
KATHERINE A. WRAY, Judge