Romero v. Bachicha

• Decision Date: 28 June 2001
• Docket Number: No. 21,351.,21,351.
• Citation: 28 P.3d 1151,130 N.M. 610
• Parties: Joe ROMERO, as Personal Representative of the Estate of John Herrera, Plaintiff-Appellant, v. Paul BACHICHA, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

28 P.3d 1151

130 N.M. 610

Joe ROMERO, as Personal Representative of the Estate of John Herrera, Plaintiff-Appellant, v. Paul BACHICHA, Defendant-Appellee.

No. 21,351.

Court of Appeals of New Mexico.

June 28, 2001.

Kevin Martinez, Walter K. Martinez Law Office, Albuquerque, NM, and Anthony Apodaca, Apodaca Law Firm, Los Lunas, NM, for Appellant.

Thomas R. Mack, Miller, Stratvert & Torgerson, P.A., Albuquerque, NM, for Appellee.

OPINION

PICKARD, Judge.

{1} This case involves the statute of limitations, exercising due diligence in service, and amending complaints to correct party names. Eight days before the statute of limitations ran, Plaintiff filed a complaint for personal injuries. In his complaint, Plaintiff identified Defendant by the wrong first name. As a result, the process server refused to serve the complaint. Nonetheless, Plaintiff waited nearly eleven months to amend the complaint and did not serve Defendant with the corrected complaint until more than a year after the original complaint was filed. Defendant filed a motion to dismiss. The trial court granted the motion after finding that Plaintiff had failed to meet the notice requirements of Rule 1-015(C) NMRA 2001, which allows the amendment of a complaint to relate back to the date the original complaint was filed if certain conditions are met. Plaintiff appeals, alleging a variety of reasons why the trial court erred in dismissing the complaint. We answer the variety of issues individually, but also hold that the time for commencing an action under Rule 1-015(C) is the same as for service of process under Rule 1-004(F) NMRA 2001. Because Plaintiff failed to exercise due diligence in serving Defendant, we affirm.

BACKGROUND

{2} On October 28, 1995, Defendant Paul Bachicha was involved in an automobile accident with John Herrera (the decedent). The decedent died unexpectedly a year later, following surgery related to the accident.

{3} On October 20, 1998, eight days before the statute of limitations expired, Plaintiff Joe Romero filed a complaint for personal injuries on behalf of the decedent's estate. The complaint incorrectly identified Frank Bachicha, rather than Paul Bachicha, as the defendant. This confusion apparently arose because both Frank Bachicha and Paul Bachicha are attorneys practicing in Santa Fe County. Plaintiff mailed the complaint to a process server in January 1999, with a letter acknowledging that the complaint erroneously named Frank Bachicha as the defendant, but asking that the complaint nonetheless be served on Paul Bachicha, with a return indicating that Paul, not Frank, had been served. The process server refused to serve the complaint due to the error.

{4} In July 1999, the district court sua sponte entered an order dismissing Plaintiff's complaint for lack of prosecution. Plaintiff responded to the order by filing a motion to reinstate the action, alleging that Plaintiff had been unable to obtain service of process on the defendant. After the court reinstated Plaintiff's action, Plaintiff filed an amended complaint, which properly named Paul Bachicha as the defendant. Paul Bachicha was served with the amended complaint on November 3, 1999, over a year after the original complaint was filed.

{5} Paul Bachicha (hereinafter Defendant) filed a motion to dismiss for failure to comply with the statute of limitations, insufficiency of process, insufficiency of service of process, lack of prosecution, and laches. In his first memorandum in support of the motion to dismiss, Defendant argued that service of process was untimely under Rule 1-004(F), which requires that service of a summons and complaint be made with reasonable diligence. Defendant's argument was based in part on his failure to realize that the original complaint named a different person as the defendant, his failure to ascertain that the amended complaint corrected his first name, and his belief that Plaintiff had filed the amended complaint merely to secure a new summons. After Plaintiff pointed out that the amended complaint did differ from the original complaint, Defendant filed a second memorandum in which he argued that the correction of his first name was a change of party under Rule 1-015(C) and that Plaintiff had failed to notify him of the institution of the lawsuit within the period for commencing the action. See Rule 1-015(C).

{6} At the hearing on Defendant's motion, Plaintiff argued that the correction of a misnomer is not a change of party within the meaning of Rule 1-015(C). If this were true, the amended complaint would relate back to the original because, with the exception of an amendment changing parties, Rule 1-015(C) allows an amended complaint to relate back "[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading." In addition, Plaintiff argued that the one-year delay in service of process was not a per se lack of due diligence under Rule 1-004(F) and was insufficient to justify a dismissal of the complaint with prejudice.

{7} The trial court concluded that the standards for measuring the timeliness of service or notice under Rules 1-004(F) and 1-015(C) were different. The court understood our opinion in Prieto v. Home Education Livelihood Program, 94 N.M. 738, 616 P.2d 1123 (Ct.App.1980), to require a finding of "intentional delay, willful delay, or laches" prior to concluding that a party has failed to exercise due diligence in serving a complaint under Rule 1-004(F). On the other hand, the court understood our opinion in Fernandez v. Char-Li-Jon, Inc., 119 N.M. 25, 27, 888 P.2d 471, 473 (Ct.App.1994), to hold that the time for commencing an action under Rule 1-015(C) is the statute of limitations period. The court indicated its preference for treating the standards as the same. However, the court further noted that although Defendant had failed to prove that Plaintiff intentionally delayed service, the court felt compelled to grant Defendant's motion because Plaintiff failed to establish that Defendant had notice of the institution of the lawsuit within the statute of limitations period.

{8} Plaintiff appealed. On appeal, Plaintiff argues that (1) the mere correction of a misnomer in a complaint is a not a "change of party" within the meaning of Rule 1-015(C), and therefore Plaintiff was not required to satisfy the requirements of Rule 1-015(C)(1) and (2); (2) even if correction of a misnomer is a "change of party," Plaintiff satisfied the requirements of notice within the period provided by law for commencing the action; and (3) if correction of a misnomer does not implicate the requirements of Rule 1-015(C)(1) and (2), the trial court found that the delay in service of process did not warrant dismissal and this finding is binding on appeal, or, in the alternative, was not an abuse of discretion.

DISCUSSION

{9} Rule 1-015(C) reads:

C. Relation back of amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment:

(1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and

(2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

{10} The parties agree that, with the exception of Defendant's first name, the amended complaint is identical to the original. As such, the first requirement of Rule 1-015(C), namely that the amended claim arise out of the same occurrence, was met in this case. The focus of the parties' dispute is the second part of Rule 1-015(C). Plaintiff argues that the correction of a typographical error or misnomer is not a change of party and therefore the second part of Rule 1-015(C) simply does not apply in this case. Plaintiff further argues that, even if Rule 1-015(C)(1) and (2) do apply, Plaintiff had notice of the action "within the period provided by law for commencing the action." Defendant counters that this period expires with the statute of limitations under the Fernandez opinion and that Plaintiff failed to prove notice within this period. Finally, Plaintiff contends that, even if the amended complaint was not timely served, Defendant had notice of the action prior to the running of the statute of limitations. We will address each argument in turn.

Correction of the Misnomer

{11} Because Plaintiff knew Paul Bachicha's identity from the beginning of the action, and because he amended the complaint merely to change the defendant's first name from Frank to Paul, Plaintiff argues that the notice requirements of Rule 1-015(C)(1) and (2) do not apply. Plaintiff contends that the correction of a typographical error does not constitute a change in a party within the meaning of Rule 1-015(C). Under other circumstances, we might agree with Plaintiff. However, we conclude that, because Plaintiff failed to serve Defendant prior to amending the complaint, the amended complaint changed the party against whom the action was brought and Plaintiff bore the burden of demonstrating compliance with the notice requirements of Rule 1-015(C)(1) and (2).

{12} Rule 1-015(C) clearly encompasses the amendment of pleadings to correct misnomers. See Ingram v. Kumar, 585 F.2d 566, 570-71 (2nd Cir.1978); 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1498 (2d ed.1990). The advisory committee notes following the 1966 amendment of Federal Rule of Civil Procedure 15(...