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Rodriguez v. Sanchez

Court of Appeals of New Mexico

July 11, 2019

VALERIE RODRIGUEZ, as Parent and Next Friend of BILLY JOE ROD ARTE, JR., a minor, Plaintiff-Appellant,
v.
DENNIS T. SANCHEZ, ESQ., Defendant-Appellee.

          APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY Jeff F. McElroy, District Judge

          Voorhees Law Firm, P.C. Scott F. Voorhees Santa Fe, NM for Appellant

          Atler Law Firm, P.C. Timothy J. Atler Albuquerque, NM Crollett & McDowell, P.A. Robert Crollett Taos, NM for Appellee

          OPINION

          J. MILES HANISEE, JUDGE.

         {¶1} Plaintiff appeals the district court's order denying her motion to reconsider the district court's dismissal of her case with prejudice under Rule 1-041(E)(1) NMRA for failure to prosecute. Concluding that the district court erred in dismissing Plaintiffs complaint, we reverse.

         BACKGROUND

         {¶2} In July 2012 Plaintiff brought a legal malpractice case against Defendant related to Defendant's representation of Plaintiff in a wrongful death action on behalf of her minor son in 2005. On June 25, 2015, the district court dismissed Plaintiffs malpractice case without prejudice for lack of prosecution under Rule 1-041(E)(2). The same day, Plaintiff moved to reinstate her case, and the district court granted the motion on July 8, 2015. On July 10, 2015, Defendant filed a motion to dismiss Plaintiffs case with prejudice under Rule 1-041(E)(1) based on allegations that Plaintiff had failed to take significant action to bring the action to a conclusion. Plaintiff filed a response to Defendant's motion on July 26, 2015, and the next day filed a request for a scheduling conference hearing. On July 30, 2015, the district court conducted a hearing on Defendant's motion to dismiss and at the conclusion of the hearing, denied the motion.

         {¶3} On September 2, 2015, the district court entered a joint Rule 1 -016(B) NMRA scheduling order that had been agreed to and submitted by the parties. The order set deadlines for filing lay witness, expert witness, and exhibit lists, completing discovery, and filing dispositive motions. It also set a pretrial conference date and a date for trial to commence. In accordance with the scheduling order, Plaintiff filed her preliminary witness list and preliminary exhibit list on October 1, 2015. On October 7, 2015, Plaintiff filed an amended notice to take the deposition of one of her expected fact witnesses. And on October 31, 2015, Plaintiff filed her expert witnesses list, disclosing the expert witness she indicated she may call to testify at trial.

         {¶4} On October 9, 2015, Defendant filed a motion to reconsider the district court's denial of his July 10, 2015, motion to dismiss. The district court held a hearing on Defendant's motion for reconsideration on November 30, 2015. After taking the matter under advisement for several months, the district court granted Defendant's motion to reconsider and issued an order of dismissal with prejudice on February 11, 2016. In its order, the district court found that "Plaintiff took no significant action to prosecute this matter for a two[-]year period from June 5, 2013 until July 8, 2015." It further found that while it had entered a Rule 1-016(B) scheduling order on September 9, 2015, the order "was not entered until .. . significantly after . ..Defendant filed his original [m]otion to [d]ismiss[.]" It therefore concluded that it "was wrong to have denied the [m]otion to [d]ismiss ... in July."

         {¶5} Plaintiff moved for reconsideration, noting the discovery she had sent on April 3, 2013, the depositions taken on September 26, 2013, and all of the actions she had taken "after the case was reinstated" on July 8, 2015, that "show that [Plaintiff] is ready and able to bring this case to resolution on the merits." Plaintiff also contended i that she was in compliance with the Rule 1-016(B) scheduling order, which Plaintiff argued should prevent dismissal of her case. Plaintiff urged the court to consider all of Plaintiffs activities aimed at bringing her case to final disposition-including those she took in the years following the filing of her complaint and those she took after Defendant filed his motion to dismiss-and not focus exclusively on the two-year period of inactivity immediately preceding Defendant's motion to dismiss as Defendant argued the court should do.

         {¶6} The district court denied Plaintiffs motion for reconsideration. In its order, the district court stated that it "will not consider Plaintiffs activities after ... Defendant filed his [m]otion to [d]ismiss ... on July 10, 2015." It further specified that "[i]n deciding whether .. . Defendant is entitled to a dismissal with prejudice, the [c]ourt looks solely to the activity that occurred between June 5, 2013 and July 8, 2015[, ] when the [c]ourt entered its [o]rder of [Reinstatement." The court concluded, "The case is dismissed based on where the case stood prior to July 8, 2015. At that time there was no significant activity taken by... Plaintiff to bring the matter to conclusion." From that order, Plaintiff appeals.

         DISCUSSION

         {¶7} Rule 1-041(E)(1) 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.

(Emphasis added.)

         {¶8} Plaintiff argues that under the plain language of Rule 1 -041 (E)(1), the district court was without discretion to dismiss her action because she was in compliance with the Rule 1-016(B) scheduling order entered by the district court before it decided Defendant's motion to dismiss. Plaintiff specifically relies on our Supreme Court's opinion in Cottonwood Enterprises v. McAlpin (Cottonwood),1989-NMSC- 064, 109 N.M. 78, 781 P.2d 1156, which she contends "acknowledged that a scheduling order with trial date acted as a sort of safe harbor from Rule 1-041(E) dismissal[.]" Plaintiff additionally advances myriad other arguments on appeal, including that the district court erred by (1) refusing to consider her activity ...


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