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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 JANICE LADNIER and
 3 ANGELA MELTON,

 4          Plaintiffs/Counterdefendants,

 5 v.                                                                    No. 32,691

 6 JOSEPH HAMILTON and
 7 KERRY HAMILTON,

 8          Defendants/Counterclaimants,

 9 and

10 ROBERT RICHARDS,

11          Intervenor-Plaintiff/Counterdefendant/Appellant,

12 v.

13 JOSEPH HAMILTON and
14 KERRY HAMILTON,

15          Intervenor-Defendants/Counterclaimants,

16 and

17 JONES, SNEAD, WERTHEIM & CLIFFORD, P.A.,
18 f/k/a JONES, SNEAD, WERTHEIM & WENTWORTH, P.A.;
19 SAMUEL C. WOLF; AND LEON R. HUNT, IV,
 1         Intervenor-Defendants/Appellees.


 2 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
 3 Raymond Z. Ortiz, District Judge

 4 Robert Richards
 5 Santa Fe, NM

 6 Pro se Appellant

 7   Jones, Snead, Wertheim & Clifford, P.A.
 8   Jerry Todd Wertheim
 9   Jerry V. Wertheim
10   Santa Fe, NM

11 Jack Brant
12 Jeannie Hunt
13 Albuquerque, NM

14 for Appellees


15                             MEMORANDUM OPINION

16 BUSTAMANTE, Judge.

17   {1}   Appellant Robert Richards appeals the district court’s order granting the motion

18 to dismiss, filed by Jones, Snead, Wertheim & Clifford, P.A., f/k/a Jones, Snead,

19 Wertheim & Wentworth, P.A. (Jones Firm)[RP Vol.IV/839]; Samuel C. Wolf (Wolf);

20 and Leon Hunt, IV (Hunt), for failure to state a claim upon which relief can be

21 granted. [RP Vol.VI/1312, 1314, 1286] In our notice of proposed summary



                                               2
 1 disposition, we proposed to reverse and remand. The Jones Firm, Wolf, and Hunt have

 2 filed a memorandum in opposition and Richards has filed a memorandum in support

 3 of the proposed disposition, both of which this Court has duly considered. Because we

 4 do not find the Jones Firm, Wolf, and Hunt’s arguments persuasive, we reverse and

 5 remand.

 6   {2}   While we acknowledge the Jones Firm, Wolf, and Hunt’s argument that the

 7 issues pertaining to the underlying litigation are complex [MIO 2], the dispositive

 8 issue before this Court is relatively straightforward. We must determine whether

 9 Richards was entitled to amend his complaint as a matter of course, pursuant to Rule

10 1-015(A) NMRA. Based on our review of the docketing statement, record,

11 memorandum in opposition, and memorandum in support, the critical facts for

12 purposes of this appeal are not in dispute. When the facts are not disputed, a case may

13 appropriately be decided on the summary calendar. See Taylor v. Van Winkle’s IGA

14 Farmer’s Market, 1996-NMCA-111, ¶ 1, 122 N.M. 486, 927 P.2d 41.

15   {3}   On December 19, 2012, the district court held a hearing and orally granted the

16 Jones Firm, Wolf, and Hunt’s motion to dismiss for failure to state a claim upon which

17 relief can be granted. [RP Vol.III/515, 554, 620; RP Vol.VI/1286; MIO 3; MIS 2-3]

18 After the district court’s ruling, Richards orally moved to amend his complaint and the

19 district court denied his request. [RP Vol.V/1116; MIO 3; MIS 3]



                                              3
 1   {4}   Prior to the entry of the written order, Richards filed a motion for

 2 reconsideration of the district court’s order dismissing his claims against the Jones

 3 Firm, Wolf, and Hunt and denying his oral motion to amend his complaint. [RP

 4 Vol.V/1116; MIS 3] The Jones Firm, Wolf, and Hunt filed a response to Richards’

 5 motion for reconsideration on January 10, 2013 [RP Vol.VI/1188], and Richards filed

 6 a reply brief with a proposed amended complaint on January 14, 2013. [RP

 7 Vol.VI/1238, 1246; MIO 3; MIS 3] The district court filed its written order granting

 8 the Jones Firm, Wolf, and Hunt’s motion to dismiss with prejudice and denying

 9 Richards’ oral motion for leave to amend his complaint on February 1, 2013. [RP

10 Vol.VI/1286-87; MIS 2, 3]

11   {5}   The dispositive issue on appeal is whether Richards was entitled to amend his

12 complaint after the district court made an oral ruling dismissing his complaint, but

13 before entry of the final order because the Jones Firm, Wolf, and Hunt had not filed

14 an answer to his original complaint. The Jones Firm, Wolf, and Hunt assert that,

15 because Richards had not filed an amended complaint or requested leave to amend his

16 complaint before the district court made its oral ruling dismissing Richards’ complaint

17 on December 19, 2012, the district court had discretion to deny Richards’ oral motion

18 to amend his complaint. [MIO 3-6]




                                              4
 1   {6}   The Jones Firm, Wolf, and Hunt assert that (1) Hamilton v. Hughes, 1958-

 2 NMSC-029, 64 N.M. 1, 322 P.2d 335 is controlling, as opposed to Moffat v. Branch,

 3 2002-NMCA-067, 132 N.M. 412, 49 P.3d 673 [MIO 4-8], and (2) the district court’s

 4 ruling was not just based on the timeliness of Richards’ motion, but also on its futility.

 5 [MIO 6-7]

 6   {7}   As explained in our notice, Rule 1-015(A) provides that “[a] party may amend

 7 his pleading once as a matter of course at any time before a responsive pleading is

 8 served.” In this case, the Jones Firm, Wolf, and Hunt filed a motion to dismiss instead

 9 of filing an answer to Richards’ complaint. Therefore, Richards “should have been

10 allowed to amend as a matter of course because a motion to dismiss is not a responsive

11 pleading” within Rule 1-015(A). Buhler v. Marrujo, 1974-NMCA-062, ¶ 21, 86 N.M.

12 399, 524 P.2d 1015, overruled on other grounds by Three Rivers Land Co. v.

13 Maddoux, 1982-NMSC-111, 98 N.M. 690, 652 P.2d 240. “It is the entry of judgment

14 or of the final order which terminates the right [to amend], not . . . the oral granting

15 of the motion to dismiss.” Malone v. Swift Fresh Meats Co., 1978-NMSC-007, ¶ 7,

16 91 N.M. 359, 574 P.2d 283; see also Moffat, 2002-NMCA-067, ¶¶ 20-28 (allowing

17 the plaintiff to amend his original complaint, as a matter of right pursuant to Rule 1-

18 015(A), after the district court had held a hearing and expressed its intent to grant the

19 defendants’ motions to dismiss).



                                               5
 1   {8}   Contrary to the Jones Firm, Wolf, and Hunt’s assertion, this case is

 2 distinguishable from Hamilton, and Moffat controls. The issue in Hamilton, 1958-

 3 NMSC-029, was whether the plaintiff could file an amended complaint after receiving

 4 an adverse ruling on a summary judgment motion. See id. ¶¶ 5, 7, 9. Immediately after

 5 granting the defendant’s motion for summary judgment, the plaintiff orally requested

 6 permission to file an amended complaint, which was denied. Id. ¶ 5. The Supreme

 7 Court affirmed the district court’s decision. Id. ¶ 10. Rule 1-056(C)NMRA provides

 8 that a motion for summary judgment shall be granted if the motion demonstrates that

 9 “there is no genuine issue as to any material fact and that the moving party is entitled

10 to a judgment as a matter of law.” Even if the plaintiff was allowed to amend his

11 complaint, that would not change the fact that there were no genuine issues of material

12 fact and that the defendant was entitled to a judgment as a matter of law.

13   {9}   Unlike Hamilton, the issue in this case was whether Richards was entitled to

14 amend his complaint after an oral ruling granting the Jones Firm, Wolf, and Hunt’s

15 motion to dismiss for failure to state a claim upon which relief can be granted,

16 pursuant to Rule 1-012(B)(6) NMRA. [RP Vol.VI/1312-13] A similar issue was raised

17 in Moffat, 2002-NMCA-067,¶¶ 7-8. In that case, the district court issued a letter

18 decision granting the defendants’ motions to dismiss for failure to state a claim upon

19 which relief can be granted. Id. ¶ 7. Subsequent to the letter decision, but before entry



                                               6
 1 of the final order, the plaintiff filed a motion to amend along with a proposed amended

 2 complaint. Id. ¶¶ 7-8. During a presentment hearing with respect to the entry of the

 3 order of dismissal, the district court considered arguments regarding the motion to

 4 amend and denied the motion. Id. ¶ 8. On appeal, this Court determined that the

 5 plaintiff should have been allowed to amend his complaint once as a matter of right

 6 before entry of the final order, pursuant to Rule 1-015(A), because the defendants had

 7 not filed a responsive pleading. Id. ¶ 2. Consistent with Moffat, we conclude that

 8 Richards was entitled to amend his complaint once as a matter of right before entry

 9 of the final order because the Jones Firm, Wolf, and Hunt had not filed a responsive

10 pleading.

11   {10}   The Jones Firm, Wolf, and Hunt argue that the district court denied Richards’

12 motion to amend because the district court had already granted their motion to dismiss

13 and because the district court determined that Richards’ amendment would be futile.

14 [DS MIO 6-7] As we explained in our notice, a futility determination is relevant in

15 circumstances in which the district court has discretion whether or not to grant a

16 motion to amend. See generally Rule 1-015(A). In this case, Richards was entitled to

17 amend his complaint as a matter of right; therefore, the district court did not have

18 discretion.




                                              7
1   {11}   Accordingly, for the reasons stated in this Opinion and in our notice of

2 proposed summary disposition, we reverse and remand.

3   {12}   IT IS SO ORDERED.



4
5                                       MICHAEL D. BUSTAMANTE, Judge

6 WE CONCUR:


7
8 M. MONICA ZAMORA, Judge


 9
10 J. MILES HANISEE, Judge




                                           8
