     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
     opinions.   Please also note that this electronic memorandum opinion may contain
     computer-generated errors or other deviations from the official paper version filed by the Court of
     Appeals and does not include the filing date.

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

 2   EDITH ELLESS, Individually and as
 3   PERSONAL REPRESENTATIVE of
 4   the Estate of HAROLD ELLESS, JR.,
 5   and JIMMY ELLESS and MICHAEL
 6   ELLESS, Individually,

 7          Plaintiffs,

 8 v.                                                     No. 31,537

 9 ARTESIA GENERAL HOSPITAL,

10          Defendant/Third-Party Plaintiff-Appellant,

11 v.

12 JOCELYN RAMOSO, M.D.,

13          Third-Party Defendant-Appellee.

14 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
15 Thomas A. Rutledge, District Judge

16   Sandenaw Law Firm, P.C.
17   CaraLyn Banks
18   Thomas A. Sandenaw
19   Las Cruces, NM

20 for Appellant

21 Butt, Thorton & Baehr, P.C.
22 Emily A. Franke
23 W. Ann Maggiore
 1 Albuquerque, NM

 2 for Appellee

 3                             MEMORANDUM OPINION

 4 FRY, Judge.

 5   {1}   Plaintiff Artesia General Hospital (AGH) appeals the district court’s order

 6 granting Defendant Dr. Jocelyn Ramoso’s motion to dismiss AGH’s third-party

 7 complaint for indemnification. AGH argues that the district court erred in concluding

 8 that: (1) its third-party complaint failed to state a claim for indemnification against

 9 Dr. Ramoso; (2) AGH’s amended third-party complaint was barred under the Medical

10 Malpractice Act’s (MMA) statute of repose, NMSA 1978, Section 41-5-13 (1976); (3)

11 the contractual indemnification provision between AGH and Dr. Ramoso prevented

12 AGH from seeking equitable indemnification; and (4) equitable estoppel barred AGH

13 from pursuing indemnification against Dr. Ramoso because of its previous denials of

14 her negligence. We agree with AGH that it sufficiently stated a claim for equitable

15 indemnification and that the amended third-party complaint related back to the

16 original third-party complaint.      We further agree that the issue regarding the

17 contractual indemnification provision is not properly before us and that the record

18 reveals no basis for the district court’s application of equitable estoppel. We therefore

19 reverse.



                                               2
 1 BACKGROUND

 2   {2}   On August 28, 2006, the family of Harold Elless, Jr. (the decedent) filed a

 3 complaint for medical malpractice and wrongful death against Dr. Ramoso and her

 4 employer, AGH. The decedent died on January 7, 2006, while allegedly under the

 5 care of Dr. Ramoso after being admitted to the emergency department at AGH. The

 6 complaint alleged nine distinct acts of negligence committed by Dr. Ramoso and

 7 sought to hold AGH vicariously liable for Dr. Ramoso’s acts and omissions as well

 8 as for the acts or omissions of other AGH employees allegedly involved in the

 9 negligent treatment of Elless. In its answer to the Ellesses’ complaint, AGH denied

10 that Dr. Ramoso or any of its employees were negligent in their treatment of the

11 decedent.

12   {3}   The Ellesses subsequently filed their first amended complaint against AGH,

13 which dismissed Dr. Ramoso as a defendant but continued to allege her nine separate

14 acts of negligence and AGH’s vicarious liability for those acts. AGH, in answer to

15 the Ellesses’ first amended complaint, continued to deny that Dr. Ramoso or any of

16 its employees were negligent.

17   {4}   The Ellesses later sought and were granted leave to file a second amended

18 complaint. The second amended complaint added a claim against AGH for its alleged

19 negligent hiring and retention of Dr. Ramoso but continued to allege specific



                                            3
 1 negligent acts and omissions by Dr. Ramoso. Consistent with its previous answers,

 2 AGH denied that Dr. Ramoso was negligent in her treatment of the decedent.

 3   {5}   On July 31, 2008, AGH filed a third-party complaint for indemnification

 4 against Dr. Ramoso (original complaint). AGH’s original complaint incorporated the

 5 Ellesses’ allegations that Dr. Ramoso established a physician-patient relationship with

 6 the decedent and that she “departed from the standard of care and failed to possess and

 7 apply the knowledge and skill and care ordinarily used by a reasonably qualified

 8 physician.” AGH also referenced the Ellesses’ specific allegations of Dr. Ramoso’s

 9 negligent acts or omissions and their allegations that AGH was vicariously liable for

10 those acts or omissions. Finally, AGH alleged that if it were “found liable for any

11 portion of an award that [the Ellesses] might receive as a result of the separate acts or

12 omissions of . . . Dr. Ramoso, AGH is entitled to indemnification from Dr. Ramoso

13 for those proportions of such an award that may be attributed to Dr. Ramoso’s

14 negligence.”

15   {6}   Meanwhile, AGH also began attempting to settle the underlying lawsuit with

16 the Ellesses. The parties reached a confidential settlement on the Ellesses’ claims, and

17 the underlying lawsuit was dismissed on December 16, 2008. AGH had notified Dr.

18 Ramoso of the “tentatively” scheduled date for the formal mediation. However, the




                                               4
 1 record does not reflect that Dr. Ramoso or her professional liability carrier participated

 2 in the settlement attempts.

 3   {7}   Following settlement, AGH filed an unopposed motion for leave to amend its

 4 original complaint. AGH sought, among other things, to amend the original complaint

 5 to reflect the dismissal of the underlying lawsuit. AGH also removed its denials of Dr.

 6 Ramoso’s and its own negligence that were included in the original complaint. The

 7 district court granted AGH’s motion, and AGH filed the amended third-party

 8 complaint for indemnification (amended complaint) on May 18, 2009, three years and

 9 four months after the decedent’s death.

10   {8}   On January 26, 2010, Dr. Ramoso filed her first motion to dismiss the amended

11 complaint. Dr. Ramoso argued that the amended complaint was, in fact, a “new”

12 complaint that “converted [AGH’s] indemnification cause of action into a medical

13 negligence one.” Therefore, Dr. Ramoso argued that the amended complaint was

14 subject to the MMA’s three-year statute of repose and should be barred as untimely.

15 See § 41-5-13. The district court concluded that the amended complaint related back

16 to the filing of the original complaint and denied the motion to dismiss.

17   {9}   Dr. Ramoso then filed a motion for summary judgment arguing that the

18 indemnity provision in Dr. Ramoso’s employment contract prevented AGH from

19 pursuing common law indemnification claims against Dr. Ramoso. Dr. Ramoso



                                               5
 1 contended that the contractual indemnity provision set out the parties’ full

 2 understanding of Dr. Ramoso’s indemnity liability and that AGH’s equitable

 3 indemnification theories should not be used to circumvent the specific agreement of

 4 the parties. The district court found that there were genuine issues of material fact and

 5 denied Dr. Ramoso’s motion for summary judgment.

 6   {10}   Following the district court’s denial of summary judgment, this Court decided

 7 Christus St. Vincent Reg’l Med. Ctr. v. Duarte-Afara, which held that claims for

 8 equitable indemnification between a hospital/employer and a doctor/employee are

 9 “malpractice claim[s]” and subject to the MMA’s statute of repose. 2011-NMCA-

10 112, ¶ 15, 267 P.3d 70 (internal quotation marks omitted), cert. quashed, 2012-

11 NMCERT-005, 294 P.3d 447. Soon thereafter, Dr. Ramoso filed a second motion to

12 dismiss on the same basis as her first motion to dismiss, this time with the added

13 authority of Christus St. Vincent, and she further argued that the amended complaint

14 failed to allege medical negligence by Dr. Ramoso. The district court granted Dr.

15 Ramoso’s second motion to dismiss, from which AGH now appeals.

16 DISCUSSION

17 Standard of Review

18   {11}   This appeal arises from an order dismissing a complaint for failure to state a

19 claim upon which relief may be granted. Therefore, we apply the following standard:



                                               6
 1          A motion to dismiss pursuant to Rule 1-012(B)(6) NMRA . . . tests the
 2          legal sufficiency of the complaint. In reviewing an order granting a
 3          motion to dismiss, we accept as true all facts properly pleaded. A
 4          complaint is subject to dismissal under Rule 1-012(B)(6) only if under
 5          no state of facts provable thereunder would a plaintiff be entitled to
 6          relief. . . . Under this standard of review only the law applicable to such
 7          claim is tested, not the facts which support it.

 8 Hovet v. Lujan, 2003-NMCA-061, ¶ 8, 133 N.M. 611, 66 P.3d 980 (alterations,

 9 internal quotation marks, and citation omitted).

10 The District Court Did Not Reverse Its Previous Denial of Summary Judgment

11   {12}   We agree with AGH that the issue regarding the contractual indemnity

12 provision, which was raised in Dr. Ramoso’s denied motion for summary judgment,

13 is not properly before us. Having reviewed the record, we understand that AGH felt

14 compelled to raise this issue in its appeal because the district court included in its

15 order granting Dr. Ramoso’s second motion to dismiss certain findings of fact and

16 conclusions of law regarding this issue. Nevertheless, we conclude that these findings

17 of fact and conclusions of law were not an appropriate means by which the district

18 court could have effectively reversed its previous denial of Dr. Ramoso’s motion for

19 summary judgment, especially because the district court gave no indication that it

20 intended to do so.

21   {13}   As noted above, the district court initially concluded that there were genuine

22 issues of material fact as to whether the contractual indemnity provision limited



                                                7
 1 AGH’s right to indemnity from Dr. Ramoso to the specific circumstances listed in the

 2 indemnity provision. The district court denied summary judgment on this basis.

 3 Following this denial, Dr. Ramoso did not attempt to revive her argument on this issue

 4 either in her second motion to dismiss or at the hearing on her second motion to

 5 dismiss. However, at the conclusion of the hearing on Dr. Ramoso’s second motion

 6 to dismiss, the district court asked the parties to submit proposed findings of fact and

 7 conclusions of law. This was an unusual request, given that a motion to dismiss tests

 8 the sufficiency of a claim rather than the facts supporting a claim. See Hovet, 2003-

 9 NMCA-061, ¶ 8. Dr. Ramoso, in addition to proposing factual findings consistent

10 with her second motion to dismiss, submitted proposed findings of fact and

11 conclusions of law relevant to her previously denied motion for summary judgment.

12 The district court adopted these findings, including a factual finding that the

13 circumstances listed in the contractual indemnity provision granting a right to

14 indemnity were not present under the facts of this case and a conclusion of law that

15 “[c]ontractual claims for indemnification control over common law claims for

16 indemnification.”

17   {14}   We have emphasized before that findings of fact and conclusions of law are

18 improper when granting summary judgment “because the basic premise underlying

19 an award of summary judgment is the absence of any genuine issues of material fact.”



                                              8
 1 Durham v. Sw. Developers Joint Venture, 2000-NMCA-010, ¶ 45, 128 N.M. 648, 996

 2 P.2d 911; see Cordova v. State Taxation & Revenue, Prop. Tax Div., 2005-NMCA-

 3 009, ¶ 37 n.4, 136 N.M. 713, 104 P.3d 1104 (“We once again emphasize that it is not

 4 necessary, nor is it even proper, for orders granting summary judgment to include

 5 findings of fact because such findings are inconsistent with the very premise of a

 6 motion for summary judgment.”). This similarly holds true in the context of a motion

 7 to dismiss for failure to state a claim for relief. “The purpose of a motion to dismiss

 8 for failure to state a claim for relief is to test the legal sufficiency of the claim, not the

 9 facts that support it.” Trujillo v. Berry, 106 N.M. 86, 87, 738 P.2d 1331, 1332 (Ct.

10 App. 1987).

11   {15}   In this case, Dr. Ramoso did not file a motion for reconsideration following

12 denial of her summary judgment motion, nor did she attempt to re-argue the issue in

13 the context of her second motion to dismiss. Consequently, AGH had no notice that

14 Dr. Ramoso was attempting to revive the issue. Furthermore, the district court gave

15 no indication that it was reconsidering its previous ruling on Dr. Ramoso’s motion for

16 summary judgment. Under these circumstances, we will not construe the district

17 court’s ruling on the second motion to dismiss as also reversing its previous denial of

18 summary judgment based only on the inclusion of unnecessary and improper findings

19 of fact and conclusions of law. Therefore, we disregard the district court’s findings



                                                 9
 1 of fact and conclusions law and proceed to consider only whether the district court

 2 properly granted Dr. Ramoso’s second motion to dismiss on the basis of failure to

 3 state a claim under Rule 1-012(B)(6).

 4 The District Court Erred in Granting Dr. Ramoso’s Second Motion to Dismiss

 5   {16}   AGH assigns two errors to the district court’s ruling. First, AGH argues that

 6 the district court erred in concluding that the amended complaint failed to state a claim

 7 because it did not make explicit allegations of medical negligence by Dr. Ramoso.

 8 Second, AGH argues that the district court erred in concluding that its amended

 9 complaint for indemnification was barred by the MMA’s statute of repose. See § 41-

10 5-13 (“No claim for malpractice arising out of an act of malpractice . . . may be

11 brought against a health care provider unless filed within three years after the date that

12 the act of malpractice occurred[.]”). We address each of these contentions in turn.

13   {17}   In Christus St. Vincent, this Court considered whether claims for equitable

14 indemnification fall within the MMA’s broad definition of “malpractice claim[s].”

15 2011-NMCA-112, ¶¶ 13-15. In examining the nature of equitable indemnification,

16 this Court reiterated that to state such a claim the plaintiff “must allege that the

17 defendant [or indemnitor] caused some direct harm to a third party and that the

18 plaintiff or [indemnitee] discharged the resulting liability from this harm.” Id. ¶ 14

19 (alterations in original) (internal quotation marks and citation omitted). In other



                                               10
 1 words, the “indemnitor must be at least partly liable to the original plaintiff for his or

 2 her injuries.” Id. (internal quotation marks and citation omitted) A claim for

 3 equitable indemnification and a claim of malpractice may overlap when the

 4 “gravamen of the third-party action is predicated upon the allegation of professional

 5 negligence by a practicing physician.” Christus St. Vincent, 2011-NMCA-112, ¶ 15

 6 (internal quotation marks and citation omitted).

 7   {18}   AGH’s amended complaint incorporated the Ellesses’ allegations in the

 8 underlying lawsuit regarding Dr. Ramoso’s specific and separate acts or omissions

 9 that constituted alleged departures from the standard of care. It further incorporated

10 the Ellesses’ allegations that AGH was vicariously liable for Dr. Ramoso’s acts or

11 omissions. Finally, for each count of indemnification, AGH alleged that, to the extent

12 that it was found liable for the decedent’s injuries, it was entitled to indemnification

13 from Dr. Ramoso. Based upon these allegations, we conclude that AGH stated a

14 claim for equitable indemnification against Dr. Ramoso. The amended complaint

15 sufficiently provided notice of the acts or omissions of Dr. Ramoso that allegedly

16 caused direct harm to the decedent, and it provided the basis for AGH’s potential

17 obligation to discharge the resulting liability from this harm. See Christus St. Vincent,

18 2011-NMCA-112, ¶ 14.




                                               11
 1   {19}   To the extent that Dr. Ramoso argues that AGH’s failure to explicitly admit Dr.

 2 Ramoso’s negligence is fatal, we disagree. The amended complaint, like the original

 3 complaint, repeatedly referred to Dr. Ramoso’s alleged acts and omissions in treating

 4 the decedent as “purported negligence.” Under our liberal notice pleading standard,

 5 regardless of whether the allegations of negligence were characterized as purported

 6 or actual, they were sufficient to apprise Dr. Ramoso of the basis of AGH’s claims.

 7 General allegations are sufficient “as long as they show that the party is entitled to

 8 relief and the averments are set forth with sufficient detail so that the parties and the

 9 court will have a fair idea of the action about which the party is complaining and can

10 see the basis for relief.” Schmitz v. Smentowski, 109 N.M. 386, 389-90, 785 P.2d 726,

11 729-730 (1990). Furthermore, given this Court’s ruling in Christus St. Vincent,

12 hospitals seeking indemnification from a negligent doctor will be required, in some

13 instances, to file their indemnification claim while the underlying lawsuit is pending

14 or risk having their indemnification claim barred by the statute of repose. See

15 Christus St. Vincent, 2011-NMCA-112, ¶ 15. Were we to adopt Dr. Ramoso’s

16 argument, a hospital would be required to decide between foregoing its

17 indemnification claim or admitting its employee’s negligence during the pendency of

18 the underlying lawsuit. That would be an unjust burden, and we accordingly reject Dr.




                                              12
 1 Ramoso’s invitation to impose it upon AGH in this case. See Rule 1-008(F) NMRA

 2 (“All pleadings shall be so construed as to do substantial justice.”).

 3   {20}   For similar reasons, we also hold that the district court erred in concluding that

 4 AGH’s amended complaint was barred by the MMA’s statute of repose. See § 41-5-

 5 13. AGH’s original complaint, undisputedly filed within the three-year statute of

 6 repose, included qualifying language denying that Dr. Ramoso was negligent. After

 7 AGH settled the underlying case, AGH’s unopposed motion to amend the original

 8 complaint was granted by the district court. Because the amended complaint removed

 9 AGH’s denials of Dr. Ramoso’s negligence and sought indemnification for the

10 settlement amounts paid by AGH, Dr. Ramoso argued that the amended complaint

11 was effectively transformed into a “new” complaint. Therefore, Dr. Ramoso argued

12 that the amended complaint should be barred since it was filed after the statute of

13 repose deadline expired. See Christus St. Vincent, 2011-NMCA-112, ¶¶ 13-15

14 (holding that hospital’s equitable indemnification claims against a doctor arising out

15 of alleged acts of professional negligence were “malpractice claim[s]” for the

16 purposes of MMA and subject to the MMA’s three year statute of repose).

17   {21}   Dr. Ramoso’s attempts to characterize the amended complaint as a “new”

18 complaint are unpersuasive. In denying Dr. Ramoso’s first motion to dismiss on this

19 basis, the district court originally, and correctly, concluded that the amended



                                                13
 1 complaint related back to the original complaint. Under Rule 1-015(C) NMRA, an

 2 amendment to a pleading may relate back to the original filing date when “the claim

 3 . . . asserted in the amended pleading arose out of the conduct, transaction[,] or

 4 occurrence set forth or attempted to be set forth in the original pleading.” The basis

 5 of AGH’s amendments reflected the underlying settlement but still arose out of the

 6 same facts forming the basis of the original complaint. Furthermore, even if we were

 7 to agree with Dr. Ramoso that the amended complaint stated a new claim or cause of

 8 action, we would still conclude that the amended complaint related back to the

 9 original filing date. “A new cause of action may be alleged in an amended complaint,

10 provided [that] it is founded on facts not wholly foreign to the facts originally

11 pleaded.” Newbold v. Florance, 54 N.M. 296, 299, 222 P.2d 1085, 1087 (1950).

12 Therefore, because the original complaint was timely filed, we hold that the amended

13 complaint was not barred by the MMA’s statute of repose.

14 Equitable Estoppel Does Not Apply to AGH’s Amended Complaint

15   {22}   Dr. Ramoso only peripherally mentioned the doctrine of equitable estoppel in

16 her second motion to dismiss, and she completely failed to mention the doctrine at the

17 hearing on her second motion to dismiss. Nevertheless, the district court adopted

18 findings that the doctrine of equitable estoppel bars AGH’s claims for indemnification

19 against Dr. Ramoso. For that reason alone we express the same reservation regarding



                                             14
 1 this issue on appeal as we did for those findings of fact and conclusions of law

 2 adopted by the district court relevant to the summary judgment issue discussed above.



 3   {23}   However, we also note that application of equitable estoppel requires more than

 4 a party simply taking an inconsistent position. See Vill. of Angel Fire v. Bd. of Cnty.

 5 Comm’rs of Colfax Cnty., 2010-NMCA-038, ¶ 21, 148 N.M. 804, 242 P.3d 371

 6 (listing six elements of an equitable estoppel claim). Among the myriad of factors that

 7 a district court is to consider, we have emphasized that there must be some showing

 8 of a material and detrimental change in position by the party invoking equitable

 9 estoppel. Envtl. Control, Inc. v. City of Santa Fe, 2002-NMCA-003,¶ 23, 131 N.M.

10 450, 38 P.3d 891 (“[T]he party claiming estoppel must assert that in reliance on the

11 conduct of the party to be estopped, it was induced to take or for[e]go a position to its

12 prejudice or detriment.”). Because Dr. Ramoso failed to make this showing, we hold

13 that the district court erred in concluding that the doctrine of equitable estoppel barred

14 AGH’s claims for indemnification.

15 CONCLUSION

16   {24}   For the foregoing reasons, we reverse the district court’s order granting Dr.

17 Ramoso’s motion to dismiss.




                                               15
1   {25}   IT IS SO ORDERED.



2
3                              CYNTHIA A. FRY, Judge

4 WE CONCUR:



5
6 TIMOTHY L. GARCIA, Judge


7
8 M. MONICA ZAMORA, Judge




                                16
