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

 2 CHRISTOPHER MANDEVILLE,

 3          Petitioner-Appellant,

 4 v.                                                                                   NO. 32,999

 5 PRESBYTERIAN HEALTHCARE SERVICES,

 6          Defendant-Appellee.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Beatrice J. Brickhouse, District Judge

 9 Henry, Vogel & Ellis
10 James C. Ellis
11 Corrales, NM

12 for Appellant

13   Montgomery & Andrews PA
14   Randy S. Bartell
15   Seth C. McMillan
16   Santa Fe, NM

17 for Appellee


18                                 MEMORANDUM OPINION
 1 GARCIA, Judge.

 2   {1}   Christopher Mandeville (Plaintiff) has appealed from a judgment in the

 3 underlying civil proceedings. We previously issued a notice of proposed summary

 4 disposition in which we proposed to affirm. Plaintiff has filed a memorandum in

 5 opposition, and Presbyterian Healthcare Services (Defendant) has filed a

 6 memorandum in support. After due consideration, we affirm.

 7   {2}   Because the procedural history of this case was previously described and is

 8 essentially undisputed, we will not reiterate at length here. To summarize, in the

 9 course of a prior appeal this Court reversed on grounds that Plaintiff had improperly

10 been permitted to amend his complaint at the eleventh hour to assert a punitive

11 damages claim. On remand the district court vacated the punitive damages award.

12 Plaintiff then filed the instant appeal. In his docketing statement Plaintiff argued that

13 the district court had erred in failing to reopen the proceedings on the merits to permit

14 the question of punitive damages to be tried in a manner which would allow

15 Defendant to present a defense to that claim. [DS 5] However, as we previously

16 observed in the notice of proposed summary disposition, in the course of the first

17 appeal we explicitly declined to require the district court to take that course of action.

18 Instead, we left it to the district court to decide how best to rectify the error by which

19 Defendant had been unfairly surprised and prejudiced. Because the judgment


                                               2
 1 ultimately rendered is consistent with the discretion left to the district court on

 2 remand, as well as the legal principles upon which the mandate was based, we

 3 proposed to reject Plaintiff’s assertion of error.

 4   {3}   In his memorandum in opposition Plaintiff does not take issue with our

 5 analysis. Instead, Plaintiff now seeks to challenge the propriety of an earlier, pretrial

 6 ruling. [MIO 1-3] He asserts that the propriety of that ruling “has not been brought

 7 before this [C]ourt for review until the present appeal,” and as such, the case should

 8 be assigned to the general calendar. [MIO 3] We construe this as a motion to amend

 9 the docketing statement. However, we find no indication that the issue Plaintiff seeks

10 to raise was adequately preserved below. Moreover, at this juncture the only question

11 properly before this Court is whether the proceedings on remand were properly

12 conducted. See Genuine Parts Co. v. Garcia, 1978-NMSC-059, ¶ 9, 92 N.M. 57, 582

13 P.2d 1270 (“Upon review of a second appeal the only issue is whether the [district]

14 court followed the appellate mandate.”). As such, the issue is not viable. We therefore

15 deny the constructive motion to amend. See, e.g., State v. Lara, 1989-NMCA-098, ¶ 5,

16 109 N.M. 294, 784 P.2d 1037 (denying a motion to amend where the issue was both

17 unpreserved and not viable).

18   {4}   Accordingly, for the reasons stated in our notice of proposed summary

19 disposition and above, we affirm.


                                               3
1   {5}   IT IS SO ORDERED.



2
3                             TIMOTHY L. GARCIA, Judge

4 WE CONCUR:



5
6 RODERICK T. KENNEDY, Chief Judge



7
8 LINDA M. VANZI, Judge




                                4
