July 11, 2019- Valerie Rodriguez v. Dennis T. Sanchez, ESQ., No. A-1-CA-35731

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: ____ _
3 Filing Date: July 11, 2019
4 No. A-1-CA-35731
5 VALERIE RODRIGUEZ, as Parent
6 and Next Friend of BILLY JOE
7 RODARTE, JR., a minor,
8 	Plaintiff-Appellant,
9 v.
10 DENNIS T. SANCHEZ, ESQ.,
11 	Defendant-Appellee.
12 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
13 	Jeff F. McElroy, District Judge
14 Voorhees Law Firm, P.C.
15 	Scott F. Voorhees
16 Santa Fe, NM
17 for Appellant
18 Ader Law Firm, P.C.
19 Timothy J. Ader
20 Albuquerque, NM
21 	Crollett & McDowell, P.A.
22 Robert Crollett
23 	Taos, NM
24 for Appellee
Court of Appeals of New Mexico
Filed 7/11/2019 11:15 AM

1 	OPINION
2 HANISEE, Judge.
3 	{1} 	Plaintiff appeals the district court's order denying her motion to reconsider
4 the district court's dismissal of her case with prejudice under Rule 1-041(E)(l)
5 NMRA for failure to prosecute. Concluding that the district court erred in dismissing
6 Plaintiffs complaint, we reverse.
7 BACKGROUND
8 	{2} 	In July 2012 Plaintiff brought a legal malpractice case against Defendant
9 related to Defendant's representation of Plaintiff in a wrongful death action on behalf
10 	of her minor son in 2005. On June 25, 2015, the district court dismissed Plaintiffs
11 	malpractice case without prejudice for lack of prosecution under Rule 1-041(E)(2).
12 The same day, Plaintiff moved to reinstate her case, and the district court granted the
13 	motion on July 8, 2015. On July 10, 2015, Defendant filed a motion to dismiss
14 Plaintiffs case with prejudice under Rule 1-041 (E)( 1) based on allegations that
15 	Plaintiff had failed to take significant action to bring the action to a conclusion.
16 Plaintiff filed a response to Defendant's motion on July 26, 2015, and the next day
17 filed a request for a scheduling conference hearing. On July 30, 2015, the district
18 	court conducted a hearing on Defendant's motion to dismiss and at the conclusion
19 	of the hearing, denied the motion.

1 {3} 	On September 2, 2015, the district court entered ajoim Rule 1-016(B) NMRA
2 scheduling order that had been agreed to and submitted by the parties. The order set
3 deadlines for 	filing 	lay witness, 	expert witness, and exhibit lists, 	completing
4 discovery, and filing dispositive motions. It also set a pretrial conference date and a
5 date for trial to commence. In accordance with the scheduling order, Plaintiff filed
6 her preliminary witness list and preliminary exhibit list on October 1, 2015. On
7 October 7, 2015, Plaintiff filed an amended notice to take the deposition of one of
8 her expected fact witnesses. And ort October 31, 2015, Plaintiff filed her expert
9 witnesses list, disclosing the expert witness she indicated she may call to testify at
10 trial.
11 	{4} 	On October 9, 2015, Defendant filed a motion to reconsider the district court's
12 denial of his July 10, 2015, motion to dismiss. The district court held a hearing on
13 	Defendant's motion for reconsideration on November 30, 2015. After taking the
14 matter under advisement for several months, the district court granted Defendant's
15 	motion to reconsider and issued an order of dismissal with prejudice on February 11,
16 	2016. In its order, the district court found that "Plaintifftookno significant action to
17 prosecute this matter for a two[-]year period from June 5, 2013 until July 8, 2015."
18 	It further found that while it had entered a Rule 1-016(B) scheduling order on
19 	September 9, 2015, the order "was not entered until . . . significantly after . . .
2

1 Defendant filed his original [m]otion to [d]ismiss[.]" It therefore concluded that it
2 "was wrong to have denied the [m]otion to [d]ismiss ... in July."
3 {5} 	Plaintiff moved for reconsideration, noting the discovery she had sent on April
4 3, 2013, the depositions taken on September 26, 2013, and all of the actions she had
5 taken "after the case was reinstated" on July 8, 2015, that "show that [Plaintiff] is
6 ready and able to bring this case to resolution on the merits." Plaintiff also contended
7 that she was in compliance with the Rule 1-016(B) scheduling order, which Plaintiff
8 argued should prevent dismissal of her case. Plaintiff urged the court to consider all
9 	of Plaintiffs activities aimed at bringing her case to final disposition-including
10 those she took in the years following the filing of her complaint and those she took
11 	after Defendant filed his motion to dismiss-and not focus exclusively on the two-
12 year period of inactivity immediately preceding Defendant's motion to dismiss as
13 	Defendant argued the court should do.
14 	{6} 	The district court denied Plaintiffs motion for reconsideration. In its order,
15 	the district court stated that it "will not consider Plaintiffs activities after ...
16 Defendant filed his [m]otion to [d]ismiss ... on July 10, 2015." It further specified
17 that "[i]n deciding whether ... Defendant is entitled to a dismissal with prejudice,
18 the [c]ourt looks solely to the activity that occurred between June 5, 2013 and July
19 	8, 2015[,] 	when the 	[c]ourt entered its 	[o]rder of [r]einstatement." The court
20 concluded, "The case is dismissed based on where the case stood prior to July 8,
3

1 2015. At that time there was no significant activity taken by ... Plaintiff to bring the
2 matter to conclusion." From that order, Plaintiff appeals.
3 DISCUSSION
4 	{7}
5
6
7
8
9
10
11
Rule 1-041(E)(l) provides:
Any party may move to dismiss the action, or any counterclaim, cross-
claim or third-party claim with prejudice if the party asserting the claim
has failed to take any significant action to bring such claim to trial or
other final disposition within two (2) years from the filing of such
action or claim. An action or claim shall not be dismissed if the party
opposing the motion is in compliance with an order entered pursuant
to Rule 1-016 ... or with any written stipulation approved by the court.
12 (Emphasis added.)
13 	{8} 	Plaintiff argues that under the plain language of Rule 1-041 (E)( 1), the district
14 court was without discretion to dismiss her action because she was in compliance
15 	with-the Rule 1-016(B) scheduling order entered by the district court before it
16 decided Defendant's motion to dismiss. Plaintiff specifically relies on our Supreme
17 Court's opinion in Cottonwood Enterprises v. McAlpin (Cottonwood), 1989-NMSC-
18 064, 	109 N.M. 78, 781 	P.2d 1156, which she contends "acknowledged that a
19 scheduling order with trial date acted as a sort of safe harbor from Rule 1-041 (E)
20 	dismissal[.]" Plaintiff additionally advances myriad other arguments on appeal,
21 	including that the district court erred by (1) refusing to consider her activity both in
22 the two years following the filing of her complaint and after Defendant moved to
4

1 dismiss her case, and (2) failing to hold an evidentiary hearing prior to dismissing
2 	her case.
3 {9} 	Defendant argues that Rule 1-041(E)(l) does not preclude the possibility of a
4 dismissal in this case and that the district court properly exercised its discretion in
5 dismissing Plaintiffs case after considering only Plaintiffs activities in the two
6 years immediately preceding the filing of Defendant's motion to dismiss. Defendant
7 specifically contends that because the Rule 1-016(B) scheduling order was requested
8 and entered after Defendant moved for dismissal, this case is distinguishable from
9 	Cottonwood. Defendant alternatively argues that we should affirm the district court's
10 dismissal because the district court lacked subject matter jurisdiction over Plaintiffs
11 	action.
12 {10} 	We 	first 	consider 	whether 	the 	district 	court 	had 	discretion 	to 	dismiss
13 	Plaintiffs case after it entered the Rule 1-016(B) scheduling order and in the absence
14 	of a finding that Plaintiff was not in compliance with that order. Concluding that it
15 	did not and, therefore, that dismissal was improper, we next address Defendant's
16 	arguments-raised 	for the 	first time 	on appeal-that the 	district court lacked
17 jurisdiction over Plaintiffs case in the first instance, necessitating dismissal in any
18 	event.
5

1 I. 	The District Court Abused its Discretion in Dismissing Plaintiffs Case
2 	Under Rule 1-04l(E)(l)
3 A. 	Standard of Review and Applicable Rules of Interpretation
4 	{11} 	On appeal from a dismissal under Rule 1-041(E)(l), we will reverse a district
5 court's decision to dismiss for inactivity if we determine that the district court abused
6 its discretion. See Cottonwood, 1989-NMSC-064, ,-r 6. "[E]ven when we review for
7 an abuse of discretion, our review of the application of the law to the facts is
8 conducted de novo. Accordingly, we may characterize as an abuse of discretion a
9 discretionary decision that is premised on a misapprehension of the law." Harrison
10 v. Bd. 	of Regents of the Univ. 	of N.M, 2013-NMCA-105, ,-r 14, 311 P.3d 1236
11 	(internal quotation marks and citations omitted). A district court abuses its discretion
12 when it applies an incorrect standard or incorrect substantive law. Aragon v. Brown,
13 	2003-NMCA-126, ,-r 9, 134 N.M. 459, 78 P.3d 913. "We review a district court's
14 answers to questions of law, including those that interpret Rules of Civil Procedure,
15 	de novo." N.M Uninsured Emp 'rs Fund v. Gallegos (Gallegos), 2017-NMCA-044,
16 il 15, 395 P.3d 533.
17 	{12} 	In interpreting procedural rules, "we apply the same canons of construction as
18 	applied to statutes and, therefore, interpret the rules in accordance with their plain
19 meaning." Id. (internal quotation marks and citation omitted). "We first look to the
20 language of the rule[, and i]fthe rule is unambiguous, we give effect to its language
21 	and refrain from further interpretation." Id. (internal quotation marks and citation
6

1 omitted). Additionally, "[w]hen dealing with a statute or rule which has been
2 amended, the amended language must be read within _the context of the previously
3 existing language, and the old and new language, taken as a whole, comprise the
4 intent and purpose of the statute or rule." Vigil v. 	Thriftway Mktg. Corp., 1994-
5 NMCA-009,, 15, 117 N.M. 176, 870 P.2d 138. When the Supreme Court amends
6 its rules, we presume it is aware of this Court's and its own existing interpretations
7 of the rules and that it intends to change or clarify existing law governing procedural
8 practice in state courts. Cf Alarcon v. Albuquerque Pub. Schs. Bd. of Educ., 2018-
9 NMCA-021, , 5, 413 P .3 d 5 07 ("When the Legislature amends a statute, we presume
10 the Legislature is aware of existing law, including opinions of our appellate courts,
11 	and we normally presume it intends to change existing law."), 2018-NMCERT-_,
12 (No. S-1-SC-36811, Jan. 23, 2018).
13 	B. 	Rule 1-041(E)(l)
14 {13} 	Rule l-041(E)(l) provides in pertinent part that "[a]n action or claim shall not
15 	be dismissed if the party opposing the motion is in compliance with an order entered
16 pursuant to Rule 1-016[.]" There is nothing ambiguous about this provision. By its
17 plain language, it prohibits a district court from dismissing a party's action or claim
18 	on an opposing party's motion to dismiss for failure to prosecute if the party
19 opposing dismissal is in compliance with an order entered under Rule 1-016. Rule
7

1 1-041 (E)( 1) says nothing about whether the request for or granting of the scheduling
2 order preceded or followed the filing of the Rule 1-041(E)(l) motion to dismiss.
3 {14} 	The parties'-and the district court's-preoccupation with the timing of the
4 district court's entry of the Rule 1-016(B) scheduling order in this case stems from
5 their reliance on outdated cases from this Court and our Supreme Court that held
6 that the timing of a plaintiffs request for a trial setting had to be considered by the
7 district court and could, in some instances but not all, be dispositive of whether
8 dismissal could be granted. See Cottonwood, 1989-NMSC-064, ,r 8 (holding that
9 because the plaintiff "had filed for and been granted a trial date prior to the district
10 court's grant of the motion to dismiss, [the plaintiff] had been actively pursuing a
11 	final 	determination, 	and therefore the 	district court abused its 	discretion" 	in
12 	dismissing the plaintiffs case); Jones v. Montgomery Ward & Co., 1985-NMSC-
13 	062, ,r,r 12-13, 16, 103 N.M. 45, 702 P.2d 990 (holding that under the facts of that
14 	case-i.e., where significant discovery had occurred, where the plaintiff responded
15 	to the motion to dismiss by submitting "a written request for an immediate jury
16 trial[,]" and where the district court had set a tentative trial date--dismissal was
17 	improper); Martin v. Leonard Motor-El Paso, 1965-NMSC-060, ,r,r 9, 12, 75 N.M.
18 	219,402 P.2d 954 (stating that "it cannot be denied that the [plaintiffs] filing of the
19 motion for a trial setting on the merits amounted to action by the plaintiff to bring
20 the case to its final determination, and that such action came before the defendant
8

1 elected to invoke his right to dismissal[,]" and, therefore, reversing the· district
2 court's dismissal of the plaintiffs complaint); Stoll v. Dow, 1986-NMCA-134, ,, 4-
3 5, 8-9, 12, 105 N.M. 316, 731 P.2d 1360 (rejecting the plaintiffs contention that his
4 motion requesting a trial setting-made but never granted more than ten years prior
5 to the defendant's motion to dismiss-"indefinitely tolled the [three-year] time
6 period" for bringing his case to final disposition, and stating that "the fact that [the]
7 plaintiff had filed a request for trial setting ... in 1973 is no obstacle to the granting
8 of a [Rule 1-04l(E)] motion to dismiss in 1984"); Sewell v. Wilson, 1982-NMCA-
9 017, ,, 6, 36, 97 N.M. 523, 641 P.2d 1070 (noting that the plaintiff in that case
10 "moved for a trial setting" after the defendants filed their motion to dismiss but more
11 	than one year before the district court granted the motion, and holding that the
12 plaintiffs request for a trial setting should "be considered in determining the
13 	propriety of the dismissal"). But those cases all predate our Supreme Court's 1990
14 	amendment of Rule 1-041 (E), an amendment that added the express prohibition
15 	against dismissing an action where the party is in compliance with a scheduling
16 order, something that neither the parties nor the district court acknowledged or
17 addressed. We explain.
18 The Pre-1990 Rule
19 {15} 	Under Rule l-041(e)(l) Niv1RA (Supp. 1979) (referred to as the "former rule")
20 (current version at Rule 1-041 (E)( 1)), a party could seek to have an action dismissed
9

1 with prejudice if it was "made to appear to the court that the plaintiff therein or any
2 defendant filing a cross-complaint therein has failed to take any action to bring such
3 action ... to its final determination for a period of at least three years[.]" Rule 1-
4 041(e)(l) (Supp. 1979). The former rule provided an exception for cases where "a
5 written stipulation signed by all parties to said action ... has been filed suspending
6 or postponing final action therein beyond three years[.]" Id. It did not expressly
7 prohibit dismissal where a party had either requested or been granted a trial setting
8 or was in compliance with a scheduling order.
9 	{16} 	In Martin, our Supreme Court declared with respect to the former rule, "[the
10 Court] make[s] no attempt to fix a standard of what action is sufficient to satisfy the
11 	requirement of the rule, for each case must be determined upon its own particular
12 	facts and circumstances." 1965-NMSC-060, ,-r 7. Thus, courts deciding cases under
13 	the former rule had to determine on a case-by-case basis whether a plaintiffs
14 activities-including his or her request for a ·trial setting-constituted sufficient
15 	action to bring the case to a final determination, thereby allowing the plaintiff to
16 avoid dismissal. District courts were instructed to consider: "( 1) all written and oral
17 communications between the court and counsel; (2) actual hearings by the court on
18 	motions; (3) negotiations and other actions between counsel looking toward the early
19 	conclusion of the case; (4) all discovery proceedings; and ( 5) any other matters
10

1 which arise and the actions taken by counsel inconcluding litigation." Jones, 1985-
2 NMSC-062, 110.
3 {17} 	Beginning with Martin and ending with Cottonwood, numerous cases raised
4 the question of what effect a plaintiffs request for trial setting should have on a
5 district court's dismissal determination. In nearly every case where the plaintiff had
6 moved for a trial setting either before or shortly after a motion to dismiss was filed,
7 this Court and our Supreme Court reversed the district court's dismissal of the action.
8 Cottonwood, 	1989-NMSC-064, 18; Jones, 	1985-NMSC-062, 11 13, 16; Martin,
9 	1965-NMSC-060, 114, 9; Sewell, 	1982-NMCA-017, 116, 36-37. But see Stoll,
10 	1986-NMCA-134, 118-9 (affirming the district court's dismissal in 1984 when the
11 	plaintiff had moved for a trial setting in 1973). In those cases, the plaintiffs
12 willingness to set a trial date was considered-either on its own or coupled with
13 	other activities-a sufficient indication that the plaintiff was ready and able to bring
14 his or her case to a final determination on the merits, which New Mexico prefers.
15 	See also State ex rel. Reynolds v. Molybdenum Corp. ofAm., 1972-NMSC-027, 17,
16 	83 N.M. 690,496 P.2d 1086 (expressing concern that the then-extant application of
17 the former rule disregarded our Supreme Court's "often stated concerns for the rights
18 	of litigants to have their day in court and their cases decided on the merits and not
19 on trivial technicalities" (internal quotation marks and citation omitted)). Compare
20 	Cottonwood, 	1989-NMSC-064, 	117-8 	(explaining 	that 	it was 	unnecessary to
11

1 consider whether the plaintiffs various actions "constituted adequate activity" to
2 avoid dismissal under Rule 1-04l(E) because the.fact that the plaintiff had filed for
3 and been granted a trial date was dispositive), with Jones, 1985-NMSC-062, ,, 12-
4 13, 16 (considering the totality of facts and circumstances, including the plaintiffs
5 activities 	throughout 	litigation, 	in 	determining 	the 	propriety 	of 	dismissal).
6 Nevertheless, 	because 	"[w]hat constitutes 	activity bringing 	a case to 	a 	final
7 determination must be decided considering the facts 	of each case[,]" the rule
8 remained that "the filing for a trial date does not per se mandate that the [Rule] 1-
9 041[(E)] motion must be denied." Cottonwood, 1989-NMSC-064,, 10 (emphasis
10 	added). However, in Cottonwood, our Supreme Court concluded that the policy
11 	underlying· Rule 	1-041 (E)-"to 	expedite 	the 	prosecution 	of litigation 	in 	our
12 	courts"-was "achieved through the granting of a trial setting." Cottonwood, 1989-
13 	NMSC-064,, 11 (emphasis added). Cottonwood, thus, prior to the 1990 amendment,
14 effectively established a per se mandate against granting a Rule 1-041 (E) motion to
15 	dismiss after the district court has granted a trial setting.
16 The 1990 Amendment
17 	{18} 	Our Supreme Court's 1990 amendment of Rule 1-041(E), which took effect
18 	shortly after Cottonwood was decided, codified the newly announced common law
19 rule. The 1990 amendment, in addition to reducing the presumptive time for bringing
20 an action or claim to final disposition from three years to two, added that "[a]n action
12

1 or claim shall not be dismissed if the party opposing the motion is in compliance
2 with an order entered pursuant to Rule 1-016 or with any written stipulation
3 approved by the court." Compare Rule 1-041(E)(l) NMRA (1990), with Rule 1-
,
4 041 (e)( 1) (Supp. 1979). Considered in light of the foregoing discussion, the Supreme
5 Court's addition of this provision can be understood as establishing at least one per
6 se "standard of what action is sufficient" to avoid dismissal under the rule. Martin,
7 1965-NMSC-060, ,r 7. Thus, following the 1990 amendment, the rule is that if the
8 district court has entered an order under Rule 1-016, and if the party against whom
9 dismissal is sought is in compliance with that order as of the time the district court
10 rules on the motion to dismiss, dismissal may not be had. See Jones, 1985-NMSC-
11 	062, ,r 15 (noting that it was "examining the status" of the litigation in that case at
12 the time the defendant's motion to dismiss was considered, not filed).
· 13 	{19} 	For our purposes, it is also important to note that the 1990 amendment not
14 only changed, but also expanded upon the former rule. Where the former rule
15 	provided only for dismissal of an action with prejudice upon the motion of a party,
16 the 1990 amendment added a provision allowing district courts to dismiss an action
17 without prejudice either sua sponte or upon the motion of a party. Rule 1-04l(E)(2)
18 	(1990). Rule 1-041(E)(2), initially employed by the district court in this case, was
19 "intended to provide a standardized procedure for trial courts to evaluate the
20 intentions of [the] parties and their counsel and to rid their dockets of cases that
13

1 should not be carried as active cases." Vigil, 1994-NMCA-009, 115. Under Rule 1-
2 	041 (E)(2) an action or claim may be dismissed without prejudice "if the party filing
3 the action or asserting the claim has 	failed to take any significant action in
4 connection with the action or claim within the previous one hundred and eighty (180)
5 days." However, if the district court has entered a pretrial scheduling order in
6 accordance with Rule 	1-016, a case is not subject to dismissal under Rule 1-
7 041(£)(2). Id. Notably, if an action or claim is dismissed under Rule 1-041(£)(2),
8 "any party may move for reinstatement of the case" within thirty days, and "[u]pon
9 good cause shown, the court shall reinstate the case and shall enter a pretrial
10 scheduling order pursuant to Rule 1-016[.]" Rule .1-041 (E)(2) (emphasis added).
11 	{20} 	Understood together, 	Subsection 	(E)(l) 	and 	Subsection 	(E)(2) 	create 	a
12 complementary system for ensuring that cases do not languish on either counsel's
13 	desk or court dockets and that the prosecution of actions is expedited to ensure the
14 overarching goal of providing litigants with their day in court, i.e., for achieving
15 	Rule 	1-041 (E)' s underlying purpose. 	That the 	1990 amendment coupled both
16 provisions 	of Rule 	1-041 (E) with Rule 	1-016, a rule similarly geared toward
17 managing and expediting civil litigation to a final disposition, was no accident. Nor
18 	is it something that parties and district courts may disregard.
14

1 C. 	The District Court Misapprehended Rule 1-041(E)(l) and (2)
2 	{21} 	As previously noted, the district court dismissed Plaintiffs case without
3 prejudice under Rule 1-041(£)(2) on June 25, 2015. That same day, Plaintiff filed a
4 motion to reinstate her case in which she identified as grounds for the motion that
5 she "is continuing to attempt to locate witnesses and assets of [D]efendant." Before
6 the time for Defendant to file a response ended, the district court granted Plaintiffs
7 motion. 1 Defendant did not seek reconsideration of the district court's reinstatement
8 or otherwise challenge the reinstatement, e.g., by contending that Plaintiff had failed
9 to show good cause for reinstatement. Instead, Defendant effectively conceded the
10 propriety 	of the reinstatement and elected, alternatively, to seek dismissal 	of
11 	Plaintiffs reinstated complaint under Rule 1-041 (E)(l ).
12 {22} 	Under Rule 	1-04l(E)(2), then, 	the 	district 	court, 	having 	reinstated the
13 	complaint, was required to "enter a pretrial scheduling order pursuant to Rule 1-
14 016." Rule 1-041(£)(2). Initially, it did not. However, after denying Defendant's
15 	ensuing motion to dismiss under Rule 1-041 (E)(l ), and upon the parties', submission
16 	of a joint Rule 1-016(B) scheduling order, the district court entered the required
1 Plaintiff filed her motion to reinstate on June 25, 2015. Under Rule 	1-
007.l(D) NMRA, Defendant had fifteen days, or until July 10, 2015, to respond. See
id. (providing, generally, fifteen days to respond to a motion and that "[i]f a party
fails to file a response within the prescribed time period the court may rule with or
without a hearing"). The district court granted Plaintiffs motion to reinstate on July
8, 2015.
15

1 pretrial scheduling order. From that point forward, under both Rule 1-04l(E)(l) arid
2 (E)(2), the district court was without discretion to dismiss Plaintiffs complaint
3 unless it first found that Plaintiff was not in compliance with the scheduling order.
4 Id.
5 	{23} 	By granting Plaintiffs motion to reinstate and thereafter entering a scheduling
6 order contemplated by the rule, the district court-in its discretion-effectively
7 curtailed its discretion. Despite later expressing its belief that it "should not have
8 reinstated the case on June 25, 2015[,]"2 the district court could not un-ring that bell,
9 particularly not when Defendant had not challenged the reinstatement in any way.
10 The district court's entry of the Rule 1-016(B) scheduling order and Plaintiffs
11 	demonstrated compliance therewith achieved the purpose of expediting Plaintiffs
2The district court believed that it should not have reinstated the case "as there
was no significant activity taken by Plaintiff to bring the case to a conclusion as
reflected in the [c]ourt file and docket." But that is not the standard for reinstating a
case. The standard for reinstating a case under Rule 1-041 (E)(2) is "good cause
shown," and the movant's ability to establish "good cause" is not limited to what is
included within the court's file and docket. 	See 	Vigil, 	1994-NMCA-009, 118
(providing that under Rule 1-041(E)(2)'s "good cause" standard, "a trial judge
should reinstate a claim previously dismissed sua sponte if a party can demonstrate
to the court that he is ready, willing, and able to proceed with the prosecution of his
claim and that the delay in the prosecution is not wholly without justification"
(internal quotation marks and citation omitted)).
16

1 litigation to a final determination such that the district court's dismissal of Plaintiffs
2 case on February 11, 2016, was improper. 3
3 II. 	The 	District 	Court 	Had 	Jurisdiction 	Over 	Plaintiffs 	Complaint
4 	Throughout the Proceedings
5 {24} 	Defendant argues that we should affirm the district court's dismissal because
6 Plaintiffs case was either (1) time-barred at the outset, which Defendant contends
7 deprived the district court of jurisdiction to hear the case; or (2) deemed to be time-
8 barred following the district court's dismissal without prejudice, thereby depriving
9 the district court of jurisdiction to reinstate Plaintiffs complaint. We disagree and
10 briefly explain why.
11 	A.
12
13 	{25}
Defendant's Statute of Limitations Argument is Not Preserved for This
Appeal
Although Defendant raised the statute of limitations as an affirmative defense
14 	in his answer to Plaintiffs complaint, he admits that the parties did not litigate the
15 	issue in the district court and never invoked a ruling from that court on the matter.
16 On appeal, the parties raise factual arguments regarding the date Plaintiffs cause of
17 action accrued based on the discovery rule. "As a general rule, issues as to whether
18 	a claim has been timely filed or whether good cause exists for delay in filing an
19 action are questions of fact, and such issues only become issues of law when the
3 Because our conclusion on this issue is dispositive, we do not address
Plaintiffs other arguments regarding the district court's failure to consider all of the
evidence before it and to hold an evidentiary hearing.
17

1 facts are undisputed." Yurcic v. City of Gallup, 2013-NMCA-039, , 	10, 298 P.3d
2 500 (internal quotation marks and citation omitted). "On appeal, this Court will not
3 assume the role of the trial court and delve into such a fact-dependent inquiry[.]"
4 Pinnell v. Bd. of Cty. Comm 'rs of Santa Fe Cty., 1999-NMCA-074,, 14, 127 N.M.
5 452, 982 P.2d 503.
6 {26} 	Moreover, we disagree with Defendant that the statute 	of limitations is
7 jurisdictional in this case. As our Supreme Court noted, "defenses based on statutes
8 of limitation typically are waived if not raised in the pleadings, [but] our cases have
9 indicated that time limitations contained in statutes which establish a 'condition
10 precedent to the right to maintain the action' are jurisdictional and not subject to
11 	waiver." Wilson v. Denver, 1998-NMSC-016, , 	9, 125 N.M. 308, 961 P.2d 153
12 (internal quotation marks and citation omitted). The cases cited by Defendant are all
13 	cases like Wilson in which a statute establishes a time limitation as a condition
14 precedent to maintain an action. See, e.g., Citizens for Los Alamos, Inc. v. Inc. Cty.
15 	of Los Alamos, 1986-NMSC-063,, 6, 104 N.M. 571, 725 P.2d 250 (discussing the
16 thirty-day time limitation for appeals from a decision of the zoning authority set forth
17 in NMSA 1978, Section 3-21-l(A) (2008)); In re Estate of Mayfield, 1989-NMSC-
18 	016, 108 N.M. 246, 771 P.2d 179 (discussing time limitation set forth in the probate
19 code for bringing a claim against an estate). A cause of action for legal malpractice,
20 however, is subject only to the general four-year limitations period provided in
18

1 NMSA 1978, Section 37-1-4 (1880), and Defendant cites no authority for the
2 proposition 	that 	our 	general 	limitations 	statutes 	are 	similarly 	jurisdictional.
3 Defendant has thus failed to establish that we can review the matter on the merits for
4 the 	first time 	on appeal, pursuant to Rule 	12-321(B)(l) NMRA (stating that
5 "[ s]ubject matter jurisdiction ... may be raised at any time"), or that there is any
6 basis to affirm the district court as "right for any reason" on appeal.
7 B. 	The District Court Had Jurisdiction to Reinstate Plaintiffs Case
8 	{27} 	Defendant next argues that Plaintiffs complaint should be deemed to be time-
9 barred based on Plaintiffs failure to prosecute her case and that the district court
10 was, therefore, without jurisdiction to reinstate her case. Defendant contends that
11 	when the district court first dismissed Plaintiffs case without prejudice for failure to
12 prosecute on June 25, 2015, the dismissal operated as a dismissal with prejudice
13 	because by then, the statute of limitations had run. Defendant relies on our Supreme
14 Court's decision in King v. Lujan, 1982-NMSC-063, 98 N.M. 179, 646 P.3d 1243,
15 	to support his contentions. Defendant's reliance is misplaced.
16 	{28} 	In King, our Supreme Court held that "a dismissal without prejudice operates
17 to leave the parties as if no action had been brought at all." Id. ,r 7. Under the version
18 	of Rule 1-041 that existed at the time, if a case was dismissed for failure to prosecute,
19 the plaintiff had to file a new complaint in order to revive his or her claims. See
20 	Wershaw v. Dimas, 1996-NMCA-118, ,r 4, 122 N.M. 592, 929 P.2d 984. Therefore,
19

l 	King held that "[w]here the period of limitations has run, a dismissal without
2 prejudice is tantamount to a dismissal with prejudice." 	1982-NMSC-063, 19.
3 However, Rule 1-041 was later amended to "allow for the reinstatement of a case
4 that has been dismissed without prejudice for lack of prosecution upon a showing of
5 good cause." Wershaw, 1996-NMCA-118, 14 (emphasis added). As this Court held
6 in 	Wershaw, 	"[b]ecause a new complaint is not filed and the case is simply
7 reactivated, there is no problem with the running of the statute of limitations." Id.
8 Our Supreme Court has since directly considered Wershaw's holding and declined
9 to disturb it. Meiboom v. Watson, 2000-NMSC-004, 116, 128 N.M. 536, 994 P.2d
10 	1154. Moreover, we have also considered the matter and have explained, "under
11 	Rule 1-041 (E)(2), a reinstatement reactivates the case at the same point in the
12 proceedings where it was dismissed, and the plaintiff need not be concerned about
13 	the statute of limitations." Bankers Tr. Co. of Cal., NS. v. Baca, 2007-NMCA-019,
14 17, 141 N.M. 127, 151 P.3d 88 (internal quotation marks and citation omitted).
15 	{29} 	Defendant acknowledges 	Wershaw and Meiboom but argues that "King's
16 holding applies unless a plaintiff timely files a motion showing good cause to
17 reinstate[,] pursuant to the holding in Wershaw." Defendant concedes that Plaintiffs
18 motion to reinstate was timely but argues that Plaintiff failed to establish good cause
19 to reinstate her case. According to Defendant, Plaintiffs motion to reinstate "merely
20 asserted, without explanation, that she was 'continuing to attempt to locate witnesses
20

1 and assets of [D]efendant,' and it failed to address whether the previous delay was
2 justified." Defendant contends that this was insufficient to satisfy the "good cause"
3 standard for reinstating a case articulated in Vigil., 	1994-NMCA-009, 116 ("To
4 show 'good cause,' the party filing the motion to defer dismissal must demonstrate
5 to the court that he is ready, willing, and able to proceed with the prosecution of his
6 claim and that the delay in prosecution is not wholly without justification." (internal
7 quotation marks and citation omitted)). 	As 	such, Defendant reasons, Plaintiff
8 "should not be entitled to the benefit of Wershaw's holding."
9 	{30} 	The threshold and dispositive problem with Defendant's argument is that he
10 	failed to raise it in the dist~ict court, meaning this argument is unpreserved for our
11 	review. See Rule 12-321(A) ("To preserve an issue for review, it must appear that a
12 ruling or decision by the trial court was fairly invoked."). As noted previously,
13 	Defendant neither argued to the district court that Plaintiff had failed to show good
14 cause nor challenged the district court's reinstatement of Plaintiffs complaint.
15 	Under these 	circumstances, 	we 	decline 	to 	consider Defendant's 	unpreserved
16 argument that Plaintiff failed to demonstrate good cause any further. See Consol.
17 Freightways, Inc. 	v. Subsequent Injury Fund, 1990-NMCA-058, 112, 110 N.M.
18 	201, 793 P.2d 1354 ("Where the record does not indicate that a contention was
19 presented below, it will not be considered on appeal unless it is jurisdictional in
20 nature."). The district court had jurisdiction to reinstate Plaintiffs case following its
21

1 dismissal without prejudice despite the running of the statute of limitations. See
2 	Wershaw, 1996-NMCA-118, 14.
3 	CONCLUSION
4 	{31} 	For the foregoing reasons, we reverse the district court's order dismissing
5 Plaintiffs complaint with prejudice and remand for further proceedings consistent
6 with this opinion.
7 	{32} 	IT IS SO ORDERED.
8
9
10 WE CONCUR:
11 	~f)~
12 MEGAN P. DUFF'Y,Jge
J. MILES HANISEE, Judge
CHSLER, Judge Pro Tempore
22