                                                               I attest to the accuracy and
                                                                integrity of this document
                                                                  New Mexico Compilation
                                                                Commission, Santa Fe, NM
                                                               '00'04- 14:18:57 2017.06.07

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMCA-044

Filing Date: February 14, 2017

Docket No. 34,845

STATE OF NEW MEXICO
UNINSURED EMPLOYERS’ FUND,

       Petitioner-Appellant,

v.

GREG GALLEGOS, a/k/a GREG McCOOL,
d/b/a MONSTER CONSTRUCTION & ROOFING,

       Respondent-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Victor S. Lopez, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Richard Bustamante, Special Assistant Attorney General
Albuquerque, NM

for Appellant

Greg Gallegos
Albuquerque, NM

Pro Se Appellee

                                       OPINION

HANISEE, Judge.

{1}    The State of New Mexico Uninsured Employers’ Fund (the UEF), administered by
the Workers’ Compensation Administration (WCA), appeals from the district court’s refusal




                                           1
to reinstate the UEF’s twice-dismissed petition for entry of judgment (the 2006 Petition)1
against Respondent Greg Gallegos. The 2006 Petition was brought to enforce a
supplementary compensation order issued by a Workers’ Compensation Judge (WCJ)
requiring that Respondent repay the UEF funds expended on Respondent’s behalf for
benefits owed to his injured employee. Both prior dismissals, the most recent of which was
in 2008 (2008 Dismissal), were occasioned by the UEF’s failure to diligently prosecute the
2006 Petition. We affirm and take this opportunity to clarify applicable law.

BACKGROUND

{2}     In 2004 Respondent’s employee (Worker) was injured on the job and filed a claim
for benefits under the Workers’ Compensation Act (the Act). The WCA determined that
Worker was eligible for benefits but that Respondent did not have workers’ compensation
insurance coverage as required by state law. Mediation was held, of which Respondent was
notified but failed to attend. Afterward, a recommended resolution was submitted to the
WCA by the mediator. In it, the mediator advised that Respondent was in default with
respect to Worker’s claim and recommended that Worker receive retroactive compensation,
as well as continuing medical care. Respondent received the recommended resolution via
certified mail on December 28, 2004, yet lodged no objection to its contents.

{3}     Because Respondent lacked workers’ compensation insurance coverage, the UEF
paid Worker’s medical bills and indemnity payments. On February 18, 2005, the UEF sued
Respondent, seeking reimbursement of all monies paid by the UEF related to Worker’s 2004
claim. Following additional mediation conferences in April and June of 2005, which
Respondent again failed to acknowledge or attend, a second recommended resolution was
issued that specifically recommended that Respondent be required to reimburse the UEF
$16,222.26.

{4}     In November 2005 a WCJ held a hearing, of which Respondent was personally
notified but did not attend. On November 21, 2005, the WCJ issued a supplementary
compensation order finding Respondent in default and ordering Respondent to repay the
UEF $16,222.26 in one lump sum by December 22, 2005, after which (and in the absence
of payment by Respondent) the UEF was authorized to “proceed to the district court for an
enforcement order.”

{5}     As authorized by and based on Respondent’s failure to comply with the WCJ’s order,
the UEF filed the 2006 Petition on June 20, 2006. The 2006 Petition was brought under
NMSA 1978, Section 52-5-10 (1990) and sought “entry of an executable judgment enforcing
the [s]upplementary [c]ompensation [o]rder in the amount of $16,222.26, interest, attorney[]
fees and costs, and . . . any other appropriate sanction[.]” Respondent filed a pro se answer


       1
        Because Respondent failed to file an answer brief or respond to this Court’s ensuing
Order to Show Cause, this case was submitted only on the UEF’s brief in chief.

                                             2
on July 25, 2006, asserting that (1) he “was not notified of hearings . . . and was not able to
contest any part of the case[,]” and (2) “[s]ome facts are questionable[.]”

{6}     On March 13, 2007, the district court, acting sua sponte, dismissed the UEF’s 2006
Petition for lack of prosecution because “no significant action [had] been taken in 180 or
more days in connection with any and all pending claims[.]” The dismissal was without
prejudice and informed the parties that either could move for reinstatement within thirty
days. Fifteen days later, the UEF moved to reinstate the 2006 Petition, maintaining that the
UEF experienced “some difficulty in finding . . . Respondent, but served him in June, 2006,
at home; a copy of the service was sent to the [c]ourt, but apparently [was] lost.” The UEF’s
motion to reinstate reiterated that its action was one “to enforce the judgment of the
[WCA.]” The district court reinstated the 2006 Petition on March 29, 2007.

{7}     On April 24, 2008, after another year had passed, in which the case again languished,
a newly assigned district court judge once more dismissed the 2006 Petition for lack of
prosecution. Again, dismissal was sua sponte, without prejudice, and permitted reinstatement
to be sought within thirty days. This time, the UEF did not move to renew its collection
effort against Respondent in district court.

{8}     On February 9, 2015—nearly seven years later, and following an internal audit that
revealed the UEF had never completed its collection action against Respondent—the UEF
filed a motion to reinstate (the 2015 Motion to Reinstate) the 2006 Petition under Rule 1-
041(E)(2) NMRA. In the motion, the UEF argued that it could demonstrate “good cause for
reinstatement” and asserted that “the UEF is a state government entity which does not have
a statute of limitations period by which it must file a reimbursement-related cause of
action[.]”

{9}      The UEF concurrently sought to amend the 2006 Petition, enumerating thirteen
points that related to the WCA proceedings in 2004 and 2005 and also notifying the district
court that Respondent had changed his name. Amendments to the 2006 Petition did not
affect its primary mission: “entry of an executable judgment against Respondent[.]” Notably,
both 2015 UEF pleadings were filed under the original 2006 docket number.

{10} Respondent filed a pro se answer to the UEF’s 2015 Motion to Reinstate denying
entirely any liability to the UEF. In his answer, Respondent stated: “[(1)] this case was
dismissed in 2005-6[,]” and “[(2) Worker] fabricated with the help of his attorney all the
substance of [this] case, all to establish employment. [Worker] was not an employee.”

{11} The district court held a hearing on April 22, 2015, at which the UEF and Respondent
appeared. That same day, the district court issued an order denying the UEF’s 2015 Motion
to Reinstate based upon the UEF’s “tardiness” and “fail[ure] to comply with Rule 1-
041(E)[.]”

{12}   On May 7, 2015, the UEF filed a motion to reconsider pursuant to Rule 1-059(E)

                                              3
NMRA. In it, the UEF argued that: (1) “ ‘passage of time’ [was] not an appropriate basis on
which to deny reinstatement” and that “ ‘good cause’ is the only relevant factor to apply”;
(2) the district court was obligated to reinstate the UEF’s 2006 Petition because Section 52-
5-10(B) imposes a mandatory requirement that the district court enter a default judgment
against Respondent; and (3) the district court’s refusal to reinstate the 2006 Petition would
“hinder the UEF’s ability to carry forth and enforce the default judgment order of the
WCA[,]” an outcome that would be “contrary to law, an abuse of discretion[,] and leads to
absurd results.” On May 13, 2015, again relying on Rule 1-041(E), or in the alternative the
district court’s “inherent power” to “dismiss a cause of action for failure of a plaintiff or
petitioner to timely prosecute the matter[,]” and additionally because it found that the UEF
had “shown no circumstances under Rule 1-060(B) [NMRA] . . . to justify re-opening[,]” the
district court denied the UEF’s motion to reconsider. The UEF timely appealed.

DISCUSSION

{13} On appeal, the UEF argues that the district court abused its discretion by denying the
UEF’s 2015 Motion to Reinstate the 2006 Petition. First, it asserts that “good cause”
supported reinstatement of the 2006 Petition and that the district court, which denied the
UEF’s motion based on its “tardiness,” failed to apply the correct standard of review.
Second, the UEF relies on the Act’s enforcement provision, Section 52-5-10(B), which
mandates entry of judgment by the district court upon petition by the WCA director, as well
as the absence of an applicable statute of limitations restricting the time within which the
UEF may enforce an order of reimbursement issued by the WCA. We address each of the
UEF’s arguments in turn.

I.     The District Court Did Not Abuse Its Discretion by Denying the UEF’s 2015
       Motion to Reinstate the 2006 Petition

{14} The UEF argues that the district court applied an incorrect standard in denying
reinstatement of the 2006 Petition. According to the UEF, the district court’s reliance on
“tardiness” to deny the UEF’s 2015 Motion to Reinstate was error and contrary to our
precedent. It contends, instead, that “good cause” is the sole applicable determinative
criteria. We disagree.

{15} We review a district court’s answers to questions of law, including those that
interpret Rules of Civil Procedure, de novo. Bankers Trust Co. of Cal., N.S. v. Baca, 2007-
NMCA-019, ¶ 3, 141 N.M. 127, 151 P.3d 88. Regarding procedural rules, “we apply the
same canons of construction as applied to statutes and, therefore, interpret the rules in
accordance with their plain meaning.” Gilmore v. Duderstadt, 1998-NMCA-086, ¶ 44, 125
N.M. 330, 961 P.2d 175. “We first look to the language of the rule.” Frederick v. Sun 1031,
LLC, 2012-NMCA-118, ¶ 17, 293 P.3d 934 (internal quotation marks and citation omitted).
“If the rule is unambiguous, we give effect to its language and refrain from further
interpretation.” Id. (internal quotation marks and citation omitted). We review a district
court’s decision to dismiss a case for inactivity and its denial of a motion to reinstate for an

                                               4
abuse of discretion. See Summit Elec. Supply Co. v. Rhodes & Salmon, P.C., 2010-NMCA-
086, ¶¶ 6, 9, 148 N.M. 590, 241 P.3d 188.

{16} Rule 1-041(E)(2) provides, in pertinent part, that when an action is dismissed by the
court sua sponte for lack of prosecution,“[w]ithin thirty . . . days after service of the order
of dismissal, any party may move for reinstatement of the case. Upon good cause shown, the
court shall reinstate the case[.]” (Emphasis added.) Our Supreme Court’s application of this
language instructs that the filing of a timely motion to reinstate—one submitted within thirty
days of service of the order of dismissal—is a necessary predicate to a district court’s
examination of the merits of whether to reinstate the case under Rule 1-041(E)(2) for good
cause shown. See, e.g., Meiboom v. Watson, 2000-NMSC-004, ¶ 19, 128 N.M. 536, 994 P.2d
1154 (comparing Rule 1-041(E)(2) and Rule 1-060(B)(6) and explaining that “[a] party
seeking reinstatement under Rule 1-041(E)(2) has thirty days to file a motion[,]” whereas
Rule 1-060(B)(6) “has no specific time limitation and instead requires only that the motion
be filed within a ‘reasonable time’ ”). Consequently, motions to reinstate made outside of
Rule 1-041(E)(2)’s thirty-day window are not within the purview of Rule 1-041(E)(2) and
must, therefore, rely on an alternative mechanism of procedure such as Rule 1-060(B).2

{17} In arguing that “tardiness” on its part is an invalid consideration and that “good
cause” is the only barometer by which a district court need resolve such motions to reinstate,
the UEF writes out the threshold thirty-day requirement contained within Rule 1-041(E)(2).
It effectively invites us to misconstrue Rule 1-041(E)(2) to permit reinstatement of a case
dismissed for lack of prosecution “[w]ithin thirty . . . days” or for “good cause shown[.]” But
that is not what the rule says. Rather, its plainly articulated requirements of both a timely
motion to reinstate and a showing of good cause regarding the period of inactivity are
judicially promulgated mandates by which we must abide. See Frederick, 2012-NMCA-118,
¶ 17 (explaining that “[i]f the rule is unambiguous, we give effect to its language and refrain
from further interpretation” (internal quotation marks and citation omitted)). As Meiboom
recognizes, to garner a “good cause” analysis under the rule, a party must pre-conditionally
file its timely motion to reinstate. 2000-NMSC-004, ¶ 19 (discussing Wershaw v. Dimas,
1996-NMCA-118, 122 N.M. 592, 929 P.2d 984, a Rule 1-041(E)(2) case, and emphasizing
that it was “relevant that Wershaw involved a motion timely filed within the thirty-day
limit”). Failure to comply with the thirty-day filing deadline may result in the district court
losing jurisdiction over the matter altogether. See Meiboom, 2000-NMSC-004, ¶ 16 n.1


       2
         In some cases, district courts have discretion to extend time limits contained in the
Rules of Civil Procedure even after the time limit has expired. See Rule 1-006(B)(1)(b)
NMRA (“When an act may or must be done within a specified time, the court may . . .
extend the time on motion made after the time . . . has expired if the party failed to act
because of excusable neglect.”); see also H-B-S P’ship v. Aircoa Hospitality Servs., Inc.,
2008-NMCA-013, ¶ 20, 143 N.M. 404, 176 P.3d 1136 (explaining that “Rule 1-006(B) gives
the district court the discretion to extend the time for a party to act under the Rules of Civil
Procedure”). In this case, no such extension was sought by the UEF.

                                               5
(explaining that “if the statute of limitations had expired and the moving party filed outside
the thirty-day time limit, relief under Rule 1-041(E)(2) would be denied and the district court
would lack jurisdiction to reinstate the case”). Rule 1-041(E)(2) provides no mechanism by
which a stand-alone “good cause” analysis may justify reinstatement beyond expiration of
the thirty-day reinstatement window. See Summit Elec. Supply Co., 2010-NMCA-086, ¶ 7
(explaining that when a district court “dismisses a case on its own motion following a 180-
day period of inactivity[,]” reinstatement should be granted if “good cause is shown for the
[180-day period of] inactivity”). A party may move by right to reinstate within thirty days
of dismissal. But whether the motion will be granted depends on the existence of the moving
party’s good cause justification for failing to prosecute its cause of action during the 180
days preceding dismissal. See id.; Rule 1-041(E)(2).

{18} The UEF’s reliance on cases3 in which good-cause reinstatement was permitted on
motions filed beyond the thirty-day limit is misplaced. This Court has not, as the UEF
contends, “reversed trial courts’ denials of motions to reinstate regardless of the passage of
time[.]” While this Court reversed the district court’s denial of the plaintiff’s motion to
reinstate in Vigil v. Thriftway Marketing Corp. despite the fact that the plaintiff’s motion was
made three months after dismissal, we did so because the WCA, which had jurisdiction over
the case and had issued the dismissal, “had failed to send copies of the dismissal order to the
parties.” 1994-NMCA-009, ¶¶ 5, 20, 117 N.M. 176, 870 P.2d 138. We explained that “the
fact that the order of dismissal was not mailed to [the plaintiff] until August means that [the
plaintiff] had until September to file his motion to reinstate the case.” Id. ¶ 13. The plaintiff
indeed moved to reinstate within thirty days of receiving his copy of the dismissal, as
required by Rule 1-041(E)(2). Vigil, 1994-NMCA-009, ¶ 6. Although this Court spoke to a
district court’s need to balance case flow and efficiency alongside the goal of deciding cases
on their merits, id. ¶ 17, Vigil does not stand for the proposition that the passage of time is
an inappropriate consideration in denying reinstatement as the UEF urges. And here, the
UEF claims no absence of notice of the 2008 dismissal order.

{19} Summit Elec. Supply Co. is equally distinguishable. There, the district court’s order
“closing” the plaintiffs’ case provided that “[n]o reopen fee shall be required if the movant
seeks reinstatement within sixty days after termination of the bankruptcy stay.” 2010-
NMCA-086, ¶¶ 3, 7 (internal quotation marks omitted). The plaintiffs complied with the
deadline set by the district court and moved to reinstate just nine days after the bankruptcy
proceedings concluded. Id. ¶¶ 4, 8. The district court denied the plaintiffs’ Rule 1-041(E)(2)




        3
         We only address the formal opinions the UEF relies on because unpublished
memorandum opinions are not controlling authority, and we need not distinguish non-
precedential cases. See State v. Gonzales, 1990-NMCA-040, ¶ 48, 110 N.M. 218, 794 P.2d
361, aff’d by Gonzales v. State, 1991-NMSC-015, 111 N.M. 363, 805 P.2d 630.

                                               6
motion to reinstate,4 and we reversed. Summit Elec. Supply Co., 2010-NMCA-086, ¶¶ 8-9,
16. Part of our determination that the plaintiffs had demonstrated good cause for
reinstatement rested on the fact that they had so moved “within nine days of conclusion of
the bankruptcy proceedings[,]” which we held satisfied the “ready, willing, and able” prong
of the good-cause standard. Id. ¶ 8. The UEF’s claim that “Summit is especially instructive
in showing that passage of time is never a consideration in reviewing a motion to reinstate
and absolutely never a basis on which to deny a motion to reinstate” mischaracterizes that
case.

{20} The next case the UEF misconstrues is Kinder Morgan CO2 Co. v. New Mexico
Taxation & Revenue Dep’t, 2009-NMCA-019, 145 N.M. 579, 203 P.3d 110. There, this
Court affirmed the district court’s decision to vacate its Rule 1-041(E)(2) dismissal and
reinstate a case under Rule 1-060(B)(1)5 based on excusable neglect. Kinder Morgan CO2
Co., 2009-NMCA-019, ¶¶ 8, 48. We explained that the plaintiff’s counsel “received notice
of [the] thirty-day Rule 1-041(E)(2) deadline but failed to enter a reminder in the firm’s
calendaring system. Having missed the deadline for reinstatement, [the plaintiff] filed a Rule
1-060(B)(1) motion for relief[,]” approximately two months after the dismissal. Kinder
Morgan CO2 Co., 2009-NMCA-019, ¶ 7. If anything, Kinder Morgan CO2 Co. reinforces our
understanding of Rule 1-041(E)(2)’s thirty-day limit for filing a motion to reconsider and
does nothing to further the UEF’s argument that the district court erred by denying its 2015
Motion to Reinstate based on tardiness.

{21} In denying the UEF’s 2015 Motion to Reinstate, the district court calculated that
“2,555 days (six years)” had passed since issuance of the 2008 dismissal order. The district
court found that the UEF “did not file a motion to reinstate within 180 [sic] days [as]
mandated by Rule 1-041 following entry of the [c]ourt’s April 24, 2008 [dismissal order].”
Thus the district court concluded that “[a]s a result of [the UEF’s] tardiness, the . . . motion
failed to comply with Rule 1-041(E), and is therefore not well-taken.”


       4
       The district court also granted the defendant’s motion to dismiss with prejudice
under Rule 1-041(E)(1), which we also held to be reversible error. Summit Elec. Supply Co.,
2010-NMCA-086, ¶¶ 10-14.
       5
         Rule 1-060(B) provides a mechanism for seeking relief from a judgment or order in
six categories of cases: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence; (3) fraud, misrepresentation, or other misconduct of an adverse party;
(4) voided judgments; (5) where a prior judgment has been satisfied, released, discharged,
or reversed or otherwise vacated; and (6) for “any other reason justifying relief from the
operation of the judgment[.]” There are different time limits and standards that apply
depending on which of the six reasons is relied upon for seeking the reopening or
reconsideration of a judgment or order. See Rule 1-060(B)(6). As explained in Subsection
(B)(6), a motion made under Rule 1-060(B)(1), as in Kinder Morgan CO2 Co., must be made
within one year after the judgment, order, or proceeding was entered or taken.

                                               7
{22} Without ever addressing the thirty-day limit contained in the rule itself, the UEF
harps on the fact that the district court mistakenly stated that the time for moving to reinstate
was 180 days rather than thirty days. We agree with the UEF that the district court referred
to the wrong time frame and should have found that the UEF had failed to reinstate within
thirty, rather than 180, days per the rule. See Rule 1-041(E)(2). The district court appears to
have conflated the 180-day period referred to in Rule 1-041(E)(2), which, as the UEF
describes it, is “simply the ‘triggering’ mechanism for the court to . . . dismiss without
prejudice on its own accord[,]” with the thirty-day period within which reinstatement may
be sought following dismissal. However, the UEF fails to explain how the district court’s
inadvertent mistake, as we see it, either means that the district court applied the wrong
standard or that the error somehow transformed its decision into an abuse of discretion, as
the UEF argues. The district court simply stated the wrong time limit within which a party
must exercise its right to move to reinstate. Our analysis and the result would be no different
had the district court properly stated that the UEF did not file its motion within thirty days
of dismissal.

{23} Under the circumstances of this case, there is no basis upon which we can conclude
that the district court abused its discretion by denying the UEF’s 2015 Motion to Reinstate
the 2006 Petition that had been dismissed nearly seven years earlier.

II.     The District Court’s Denial of the UEF’s 2015 Motion to Reinstate Its 2006
        Petition Was Not Contrary to Law and Does Not Preclude the Possibility of a
        New Petition Under Section 52-5-10(B)

{24} Having established that the district court acted within its discretion when it denied
the UEF’s Rule 1-041(E)(2) motion, we next address the UEF’s contention that the district
court misapplied Section 52-5-10(B), which, the UEF argues, compelled reinstatement of
the 2006 Petition.

A.      Section 52-5-10(B) Did Not Compel the District Court to Grant the UEF’s Rule
        1-041(E)(2) Motion to Reinstate Its 2006 Petition

{25} The UEF argues that the district court’s denials must be analyzed “within the context
of Section 52-5-10 of the Act” and that the district court erred when it “failed to follow the
mandatory directives” of that statute. We disagree.

{26} We review issues of law, including statutory interpretation, de novo. Trinosky v.
Johnstone, 2011-NMCA-045, ¶ 11, 149 N.M. 605, 252 P.3d 829. “In construing a statute,
our charge is to determine and give effect to the Legislature’s intent.” Id. (internal quotation
marks and citation omitted). We begin by examining “the plain language of the statute,
giving the words their ordinary meaning[.]” N.M. Indus. Energy Consumers v. N.M. Pub.
Reg. Comm’n, 2007-NMSC-053, ¶ 20, 142 N.M. 533, 168 P.3d 105. “When a statute
contains language which is clear and unambiguous, we must give effect to that language and
refrain from further statutory interpretation.” Trinosky, 2011-NMCA-045, ¶ 11 (alteration,

                                               8
internal quotation marks, and citation omitted). “[E]ven when we review for an abuse of
discretion, our review of the application of the law to the facts is conducted de novo.
Accordingly, we may characterize as an abuse of discretion a discretionary decision that is
premised on a misapprehension of the law.” Harrison v. Bd. of Regents of the Univ. of N.M.,
2013-NMCA-105, ¶ 14, 311 P.3d 1236 (internal quotation marks and citations omitted).

{27} Section 52-5-10 establishes the process by which a prevailing party may enforce a
workers’ compensation order—either for compensation owed directly to a worker or
reimbursement of compensation paid by the UEF—when the employer is determined to have
defaulted. To enforce the administrative judgment, the aggrieved party that has attained a
workers’ compensation order may petition the district court for an entry of judgment. See §
52-5-10(B); see also § 52-5-10(C) (“Proceedings to enforce a compensation order or
decision shall not be instituted other than as provided by the [Act.]”). Section 52-5-10(B)
directs that the district court “shall enter judgment against the person in default[.]” It also
prohibits the district court from imposing filing fees and reviewing or supplementing the
WCJ’s findings and conclusions, except to impose sanctions. Id.

{28} By combining the statute’s mandatory and prohibitory language, it is clear to us that
the Legislature intended to largely relegate the district court to an administrative role when
applying Section 52-5-10(B). Thus, we do not disagree with the UEF that “when presented
with a petition for entry of a default judgment[,]” the district court is limited to (1) accepting
the WCJ’s supplementary compensation order as valid, and (2) entering judgment against
the person in default.6 See § 52-5-10(B). However, it is also clear from the plain language
of Section 52-5-10(B) that an existing petition for entry of judgment by the WCA director
is a necessary precondition without which the district court is not under Section 52-5-10(B)’s
mandatory directive to enter judgment. The question, then, is whether the UEF met this
necessary pre-condition and whether such a petition was properly before the district court
when it considered the 2015 Motion to Reinstate. If not, our inquiry ends because the
statute’s mandatory directive in this regard would not have been followed.

{29} As this Court has explained, “[w]hen a case is dismissed without prejudice for failure
to prosecute, the dismissal operates to leave the parties as if no action has been brought at
all.” Foster v. Sun Healthcare Grp., Inc., 2012-NMCA-072, ¶ 25, 284 P.3d 389. In order to
bring a dismissed action back before the district court, a party must first do one of two
things. One option is to revive the prior action pursuant to an applicable rule, such as Rule
1-041(E)(2), see Bankers Trust Co. of Cal. v. Baca, 2007-NMCA-019, ¶ 6 (explaining that
“[a]n action that is dismissed without prejudice under Rule 1-041(E)(2) cannot proceed




        6
         We note that while the UEF argues that the district court is limited to these two
actions, it apparently has never challenged the district court’s ability to dismiss sua sponte
under Rule 1-041(E)(2), either in this case or in others.

                                                9
except by leave of the court granted for good cause shown on a motion for reinstatement”7),
or Rule 1-060(B), see Kinder Morgan CO2 Co., 2009-NMCA-019, ¶ 7 (illustrating that,
under certain circumstances, Rule 1-060(B)(1) may provide an alternative path to
reinstatement where a party has failed to timely file a Rule 1-041(E)(2) motion to reinstate).
See also Meiboom, 2000-NMSC-004, ¶¶ 13, 19 (noting that Rule 1-060(B)(6) provides
courts with “equitable powers to grant relief from final judgment” and “requires only that
the motion be filed within a ‘reasonable time’ ”). Alternatively, a party may file a new cause
of action if the statute of limitations has not run. See Bankers Trust Co. of Cal., 2007-
NMCA-019, ¶ 8 (explaining that a party whose cause of action is dismissed for failure to
prosecute is not precluded from “instituting a second action with a new complaint, as long
as the applicable statute of limitations has not run”).

{30} Here, when the 2006 Petition was dismissed for failure to prosecute in 2008, it left
the UEF as if no petition had ever been filed. See Foster, 2012-NMCA-072, ¶ 25. When the
UEF filed the 2015 Motion to Reinstate and an amended petition under the 2006 Petition’s
docket number, this did not combine to revive the 2006 Petition. To the contrary, in the
absence of an order reinstating the 2006 Petition or the submission of an altogether new
petition by the UEF, no petition was pending before the district court to which Section 52-5-
10(B) applied. See Bankers Trust Co. of Cal., 2007-NMCA-019, ¶¶ 6, 8. For the reasons
already discussed, that effort was properly determined to be unsuccessful by the district
court. And once the district court rightly denied the 2015 Motion to Reinstate by application
of Rule 1-041(E)(2), the piggybacked amended petition was in essence rendered a nullity on
which the district court could not act.

{31} The UEF’s argument that Section 52-5-10(B) mandated reinstatement of the 2006
Petition under Rule 1-041(E)(2) fails because it puts the cart before the horse. The UEF itself
acknowledged the pre-condition of a valid petition when it argued at the hearing on the 2015
Motion to Reinstate that it was “ready, willing, and able to proceed to make collection
efforts. We just need the prerequisite of, one, this case being reinstated . . . and then, two,
an entry of a default judgment.” But there is nothing in Section 52-5-10(B) that compels or
permits the district court to ignore applicable Rules of Civil Procedure, and the UEF’s
suggestion that Section 52-5-10(B) trumps Rule 1-041(E)(2), requiring the district court to
grant the UEF’s 2015 Motion to Reinstate, is incorrect. See, e.g., Maples v. State, 1990-
NMSC-042, ¶¶ 8-10, 110 N.M. 34, 791 P.2d 788 (resolving a conflict between Rule 12-601
NMRA and NMSA 1978, Section 52-5-8(A) (1989), related to the time limit for appealing
a workers’ compensation decision and explaining that when vested with jurisdiction, “it is
inherently within the power of the court to set its own [applicable] time limitations” and
holding that the rule prevailed over the statute); State ex rel. Bliss v. Greenwood, 1957-
NMSC-071, ¶ 19, 63 N.M. 156, 315 P.2d 223 (explaining that a “statutory regulation must
preserve to the court sufficient power to protect itself from indignities and to enable it


       7
        As discussed above, such a motion for reinstatement must be timely filed in order
to proceed to a good-cause analysis.

                                              10
effectively to administer its judicial functions”).

{32} Because Section 52-5-10(B) does not create a categorical right to an entry of
judgment but rather gives the WCA the right to petition for an entry of judgment, see § 52-5-
10(B) (providing that the WCA director “may . . . petition” the district court (emphasis
added)), its mandate to the district court remains dormant unless and until that right is
exercised in a manner that comports with requirements of civil procedure. Here, the UEF
opted to employ, it turns out erroneously, Rule 1-041(E)(2) to seek resuscitation of its long-
dismissed 2006 Petition. Given that failure of the 2015 Motion to Reinstate meant that no
pending petition existed on which the district court could act, it did not err in not following
Section 52-5-10(B)’s mandatory directives.

B.      There Is Nothing to Prevent the UEF From Filing a New Petition for Entry of
        Judgment With the District Court

{33} The UEF argues that the district court’s refusal to reinstate its 2006 Petition will
“enable and empower [Respondent] to escape entirely his statutorily required and judicially
ordered obligation to reimburse [the] UEF.” This, the UEF urges, “is a decision contrary to
law which will lead to absurd results if allowed to stand.” We agree with the UEF that it
would be an absurd result and contrary to law—specifically Section 52-5-10(B)—if the
district court’s decision resulted in the UEF being barred from pursuing reimbursement from
Respondent in accordance with the supplementary compensation order. However, we
disagree with the UEF’s stated belief that it lacks an alternative remedy to pursue
enforcement of the supplementary compensation order.

{34} Only three things could bar the UEF from filing a new petition for an entry of
judgment and seeking to enforce its right to reimbursement: (1) a statute of limitations, (2)
a provision within Section 52-5-10(B) limiting the time in which such a petition could be
brought, or (3) a prior dismissal with prejudice, which would have functioned as an
adjudication on the merits and have res judicata effect.

{35} Regarding the first, the UEF correctly states that it—as a state entity—is not subject
to a statute of limitations for bringing an action to enforce the supplementary compensation
order. Our Supreme Court explained in Directors of Insane Asylum of New Mexico v. Boyd,
1932-NMSC-053, ¶ 10, 37 N.M. 36, 17 P.2d 358, that “[s]tatutes of limitation ordinarily do
not run against the state.” In reaching this conclusion, the Boyd Court reasoned that the loss
of a claim by the state “would fall on all of the people of the state” and held that the state’s
asylum—“an agency of the state”—could seek reimbursement of funds it expended for the
care of one of its “nonindigent patients.” Id. ¶¶ 7, 10-11. Our Supreme Court has also made
clear that “the general rule [is] that statutes of limitations do not run against the state unless
the statute expressly includes the state or does so by clear implications[.]” Bd. of Educ. v.
Standhardt, 1969-NMSC-118, ¶ 27, 80 N.M. 543, 458 P.2d 795. Here, there is no statute of
limitations that expressly includes state entities such as the UEF or does so by clear
implication.

                                               11
{36} Next, Section 52-5-10(B) imposes no time limit within which the UEF must petition
the district court for an entry of judgment. It simply provides that, after a supplementary
compensation order has been made by a WCJ, the WCA “director may . . . petition [the]
district court solely for the purposes of entry of judgment upon the supplementary
compensation order[.]” Id. (emphasis added). The supplementary compensation order in this
case, which provides that if reimbursement was not “paid . . . by December 22, 2005 . . .[,]
the UEF may proceed to the district court for an enforcement order[,]” reinforces the open-
ended nature of the WCA’s ability to petition the district court. The UEF brings to our
attention a list of examples of other recent actions the UEF has brought in district court to
have judgment entered against non-compliant employers. One of those examples—NMUEF
v. Foster, D-202-CV-2013-06385 (N.M. 2nd Jud. D., July 7, 2014) (order of default
judgment)—illustrates this point. In that case, the supplementary compensation order was
filed on August 27, 2008, and the WCA did not petition the district court for entry of
judgment until August 6, 2013, nearly five years later. The district court, after dismissing the
case for lack of prosecution and then reinstating it on the UEF’s motion to reinstate, filed an
order of default judgment in 2014. Thus, the UEF’s five-year delay in petitioning the district
court for an entry of judgment did not affect its right under Section 52-5-10 to file its
petition.

{37} Lastly, given that the district court’s dismissal was without prejudice, the UEF is not
barred by res judicata from refiling its claim against Respondent. We surmise that the UEF’s
mistaken perception that the district court’s refusal to reinstate its case acts as a bar to any
remedy by the UEF may stem from its misconception about whether its claim was dismissed
with or without prejudice. The UEF states that the district court’s orders denying its 2015
Motion to Reinstate and its motion to reconsider “fail to specify whether the dismissal is
with or without prejudice.” However, we note that the district court’s orders from which the
UEF is appealing simply denied the UEF’s motions, and its order denying the 2015 Motion
to Reinstate specifically ordered that “the present complaint shall . . . remain DISMISSED.”
We understand and conclude the district court intended this to refer to the district court’s
2008 dismissal order, which was clearly a dismissal “without prejudice.”

{38} We note as well that Rule 1-041(E)(2) itself limits a district court to dismissing
without prejudice. See id. (“[T]he court on its own motion . . . may dismiss without
prejudice[.]” (emphasis added.)) Our Supreme Court has explained that dismissal under Rule
1-041(E) “[does] not destroy [a] plaintiff’s rights but only [takes] from him a remedy.”
Briesmeister v. Medina, 1966-NMSC-157, ¶ 5, 76 N.M. 606, 417 P.2d 208; see also Smith
v. Walcott, 1973-NMSC-074, ¶ 15, 85 N.M. 351, 512 P.2d 679 (“[A]n order of dismissal
entered sua sponte by the trial court [does] not constitute an adjudication upon the merits.
Hence, the doctrine of res judicata is not applicable[.]”); Foster, 2012-NMCA-072, ¶ 25
(“When a case is dismissed without prejudice for failure to prosecute, the dismissal operates
to leave the parties as if no action has been brought at all. After a case is so dismissed, a
plaintiff may file a new action . . . and the first suit has no bearing on the later action.”
(citation omitted)).


                                              12
{39} Because there is neither an applicable statute of limitations nor a time limit contained
in Section 52-5-10(B), and because dismissal of the UEF’s 2006 Petition was without
prejudice, we conclude that there is nothing to prevent the UEF from filing a new petition
for entry of judgment against Respondent. Our conclusion is in accord with the underlying
purpose of the Act. This Court explained in Mieras v. Dyncorp, “[t]he general objective
underlying the enactment of workers’ compensation legislation is to ensure that the industry
carry the burden of compensating injuries suffered by workers in the course of employment.”
1996-NMCA-095, ¶ 30, 122 N.M. 401, 925 P.2d 518 (internal quotation marks and citation
omitted). Additionally, “[worker]’s compensation benefits were enacted to prevent . . .
[workers] from becoming dependent upon the public welfare.” Wylie Corp. v. Mowrer, 1986-
NMSC-075, ¶ 5, 104 N.M. 751, 726 P.2d 1381; see also Boyd, 1932-NMSC-053, ¶ 10
(holding that a statute of limitations could not be enforced against a state agency because the
cost of the lost claim “would fall on all of the people of the state”).

CONCLUSION

{40} We hold that the district court did not abuse its discretion in denying the UEF’s 2015
Motion to Reinstate its 2006 Petition. While the UEF’s renewed commitment to its statutory
obligation to seek reimbursement from non-compliant employers is laudable, see NMSA
1978, § 52-1-9.1(G) (2004), we cannot overlook or excuse the UEF’s historically
lackadaisical approach in this case and its reluctance to acknowledge the rule that “[t]he duty
rests upon the claimant at every stage of the proceeding to use diligence to expedite [its]
case.” Pettine v. Rogers, 1958-NMSC-025, ¶ 6, 63 N.M. 457, 321 P.2d 638. Our ruling today
requires adherence to our Rules of Civil Procedure, which are not advisory, but in a manner
also consistent with the Legislature’s mandate to the UEF and the district court to hold non-
compliant employers accountable.

{41}   We affirm.

{42}   IT IS SO ORDERED.

                                               ____________________________________
                                               J. MILES HANISEE, Judge

WE CONCUR:

____________________________________
JONATHAN B. SUTIN, Judge


____________________________________
STEPHEN G. FRENCH, Judge



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