Citizens Bank v. C & H Construction & Paving Co.

HERNANDEZ, Judge

(dissenting).

I respectfully dissent.

I believe that the plaintiff’s first point has merit. Rule 9(b) is very specific “the circumstances constituting fraud . shall be stated with particularity.” The purpose of this rule, of course, is to prevent surprise. As Judge Medina pointed out in Clark v. Pennsylvania Railroad Co., 328 F.2d 591 (2d Cir. 1964), “. . . [0]ne of the great Twentieth Century contributions to the improvement of judicial administration and the furtherance of effective, timely justice . . . is to do away with the old sporting theory of justice and substitute a more enlightened policy of putting the cards on the table, so to speak, and keeping surprise tactics down to a minimum.” The Davises’ had ample opportunity to amend their pleadings and elected not to, so they must abide the consequence.

In my opinion there was an abuse of discretion on the part of the trial court in granting the Davises’ motion to amend their pleadings more than a month after trial. As was stated in McLean v. Paddock, 78 N.M. 234, 430 P.2d 392 (1967) : “This is not a situation where evidence on the issue was received without objection and the question thus treated as if it had been raised by the pleadings . . . The record before us is replete with objections. .” “The admonition of Rule 15 to permit amendment freely does not permit amendment in every case regardless of a party’s diligence.” State v. Electric City Supply Company, 74 N.M. 295, 393 P.2d 325 (1964). Nonetheless, even after being granted permission to amend their pleadings the Davises did not do so. Consequently, their pleadings on appeal must be considered sans amendment. See Campbell v. Hollywood Race Ass’n., 54 N.M. 260, 221 P.2d 558 (1950).

I am also of the opinion that plaintiff’s second point is well taken. As was pointed out in plaintiff’s brief-in-chief: “He [James Davis] could not have relied upon the alleged misrepresentations, because he did not even know of them until after this lawsuit was filed.” Alice J. Davis did not testify and there is no evidence that she knew or relied upon the plaintiff’s representations.

I believe that the appeal of Fidelity National Bank should be denied. However, I do believe that their appeal was timely filed.