N.M. R. Civ. P. Dist. Ct. 1-012
A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense in Subparagraph (6) of this paragraph to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 1-056 NMRA, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 1-056 NMRA. Motions shall be prepared and submitted in the manner required by Rule 1-007.1 NMRA.
N.M. R. Civ. P. Dist. Ct. 1-012
For certain defenses not allowed for injuries to employees, see Section 52-1-8 NMSA 1978. For determining validity of actions of irrigation district, time to answer petitions, see Section 73-11-8 NMSA 1978. Compiler's notes. - Paragraph A is deemed to have superseded 105-423, C.S. 1929, which was substantially the same. It is also deemed to have superseded 105-420, C.S. 1929, with Rule 1-008 NMRA, relating to replies and demurrers to the answer. It is also deemed to have superseded former Trial Court Rule 105-703 a, relating to tolling of the time to plead. Paragraph B is deemed to have superseded 105-409 to 105-415, C.S. 1929, relating to pleas in abatement, demurrers and waiver of defects not apparent on the face of the pleading. It is also deemed to have superseded former Trial Court Rule 105-408, relating to order of defensive pleadings and motions. Paragraph E is deemed to have superseded 105-503 and 105-504, C.S. 1929, which were substantially the same. Paragraph F is deemed to have superseded 105-503 and 105-504, C.S. 1929, which were substantially the same. Paragraph H is deemed to have superseded 105-415, C.S. 1929, which was substantially the same. I. GENERAL CONSIDERATION. Standing is not jurisdictional in mortgage foreclosure cases. - Standing is not a jurisdictional prerequisite in mortgage foreclosure cases in New Mexico. When a statute creates a cause of action and designates who may sue, the issue of standing becomes interwoven with that of subject matter jurisdiction. Standing then becomes a jurisdictional prerequisite to an action. Mortgage foreclosure actions, however, are not created by statute, and therefore the issue of standing in those cases cannot be jurisdictional. As a matter of sound judicial policy, the injury in fact prong of New Mexico's standing analysis, however, requires that the party bringing suit show that he or she is injured or threatened with injury in a direct and concrete way. Deutsche Bank Nat'l Trust Co. v. Johnston, 2016-NMSC-013, aff'g 2014-NMCA-090, 335 P.3d 217. Standing in mortgage foreclosure cases. - The Uniform Commercial Code (UCC) provides that there are three scenarios in which a person is entitled to enforce a negotiable instrument such as a promissory note: when that person is the holder of the instrument, when that person is a nonholder in possession of the instrument who has the rights of a holder, and when that person does not possess the instrument but is still entitled to enforce it subject to the lost-instrument provisions of the UCC. To show a direct and concrete injury, a plaintiff in a mortgage foreclosure action must establish that it falls into one of these statutory categories that would establish both its right to enforce the homeowner's promissory note and its basis for claiming that it suffered a direct injury from the homeowner's alleged default on the note. Although standing is not jurisdictional in mortgage foreclosure actions, standing must be established as of the time of filing suit. Deutsche Bank Nat'l Trust Co. v. Johnston, 2016-NMSC-013, aff'g 2014-NMCA-090, 335 P.3d 217. Where plaintiff in mortgage foreclosure action filed a complaint seeking foreclosure on the home of respondent homeowner and attached to its complaint an unindorsed note, mortgage, and land recording, both naming a third party as the mortgagee, and although plaintiff later provided documentation and testimony showing that a document assigning the mortgage was dated prior to the filing of the complaint but recorded after the complaint was filed, and plaintiff possessed a version of the note indorsed in blank at the time of trial, plaintiff failed to establish that it had standing at the time it filed its complaint, because plaintiff did not produce a note indorsed in blank when it filed suit, and the subsequent production of a blank note did not prove that plaintiff possessed the blank note when it filed suit. A party who only has the mortgage but no note has not suffered any injury given that bare possession of the mortgage does not endow its possessor with any enforceable right absent possession of the note. The district court's determination that plaintiff established standing to foreclose was not supported by substantial evidence. Deutsche Bank Nat'l Trust Co. v. Johnston, 2016-NMSC-013, aff'g 2014-NMCA-090, 335 P.3d 217. Evidence to establish standing to foreclose mortgage. - A lender seeking to establish its right to enforce a note must produce the indorsed note with the complaint for foreclosure; if the lender produces the indorsed note after the filing of the complaint, the indorsement must be dated to show that the indorsement was executed prior to the initiation of the foreclosure suit. Deutsche Bank Nat'l Trust Co. v. Beneficial N.M. Inc., 2014 -NMCA-090, cert. granted, 2014-NMCERT-008. Failure to establish standing to foreclose mortgage. - Where the homeowner refinanced the mortgage on the homeowner's home through a mortgage company; the mortgage company assigned the mortgage and note to the bank; the homeowner defaulted on the loan; the bank filed a complaint for foreclosure together with an unindorsed copy of the homeowner's note made payable to the mortgage company; the complaint alleged that the note and mortgage had been assigned to the bank; the homeowner filed a motion to dismiss because the bank failed to show ownership of the note when it filed the complaint; the bank responded by filing a copy of an assignment of the mortgage which showed that the mortgage company had assigned the mortgage to the bank; the assignment was not recorded in the county records until nine months after the complaint was filed; at trial, the bank produced a note that included a blank undated indorsement; the bank did not introduce any evidence to show when the note was indorsed or when the bank came to possess the note, the bank did not have standing to foreclose the mortgage, because the unindorsed note, the undated indorsed note, and the mortgage were insufficient to establish that the bank was the holder of the note when it filed for foreclosure. Deutsche Bank Nat'l Trust Co. v. Beneficial N.M. Inc., 2014 -NMCA-090, cert. granted, 2014-NMCERT-008. Failure to establish standing to foreclose mortgage. - Where homeowner executed a promissory note to the mortgage lender and signed a mortgage contract with the nominee for the mortgage lender; the nominee of the mortgage lender assigned the mortgage to plaintiff; plaintiff filed a foreclosure action; the complaint asserted that defendant was the owner of the mortgage and the holder of the promissory note; plaintiff attached copies of the mortgage and the mortgage assignment to the complaint; almost two months after the complaint was filed, plaintiff attached a copy of the promissory note to a motion to disqualify counsel; the promissory note was undated and indorsed by stamp, rather than by hand, in blank by the mortgage lender; and there was no evidence to show when or how plaintiff came into possession of the promissory note, plaintiff's failure to establish that it had the right to enforce the promissory note as of the date the complaint for foreclosure was filed constituted a failure to establish standing to bring suit and a jurisdictional defect. Bank of New York Mellon v. Lopes, 2014-NMCA-097. Establishment of res judicata. - A party asserting res judicata or claim preclusion must establish that there was a final judgment in an earlier action, the earlier judgment was on the merits, the parties in the two suits are the same, the cause of action is the same in both suits, and that the claim reasonably could and should have been brought during the earlier proceeding. Potter v. Pierce, 2015-NMSC-002, aff'g 2014-NMCA-002. Same cause of action. - In analyzing the single-cause-of-action element of res judicata, New Mexico has adopted the transactional approach, which considers all issues arising out of a common nucleus of operative facts as a single cause of action; the facts comprising the common nucleus should be identified pragmatically, considering how they are related in time, space, or origin, whether, taken together, they form a convenient trial unit, and whether their treatment as a single unit conforms to the parties' expectations or business understanding or usage. Potter v. Pierce, 2015-NMSC-002, aff'g 2014-NMCA-002. Common nucleus of operative facts in bankruptcy fee proceeding and legal malpractice claim. - Where a bankruptcy fee proceeding and a legal malpractice claim based on the same legal services would have formed a convenient trial unit because the bankruptcy court is required to consider the quality of legal services in determining the appropriate fees, and treatment as a single unit would conform to the parties' expectations because objections to services rendered must be raised in response to fee applications, the petitioner's two claims were rooted in a common nucleus of operative facts and therefore satisfy the cause-of-action element of res judicata. Potter v. Pierce, 2015-NMSC-002, aff'g 2014-NMCA-002. Full and fair opportunity to litigate. - Even if two actions are the same under the transactional test and all other elements are met, res judicata does not bar a subsequent action unless the plaintiff could and should have brought the claim in the former proceeding, and neither the type of proceeding nor the damages sought are determinative, although the type of proceeding may be a factor in determining if the subsequent claim could or should have been litigated earlier. Potter v. Pierce, 2015-NMSC-002, aff'g 2014-NMCA-002. Bankruptcy court proceeding precluded subsequent malpractice claim. - In bankruptcy proceeding, where petitioner was aware of his attorneys' failure to make accurate financial disclosures in his bankruptcy schedules, and where petitioner suffered injury attributable to that failure by exposing him to a denial of the discharge of his debts, and where petitioner was aware of that injury, a subsequent malpractice claim is barred by res judicata because petitioner could and should have brought the malpractice claim in the bankruptcy proceeding. Potter v. Pierce, 2015-NMSC-002, aff'g 2014-NMCA-002. Bankruptcy court ruling precluded state court claim. - Where defendants, who represented plaintiff in a bankruptcy proceeding, withdrew as plaintiff's counsel; after defendants had withdrawn, they filed applications for attorney fees; plaintiff, acting pro se, objected to the fee application and accused defendants of malpractice; at the hearing on the fee application, an attorney, who represented plaintiff on matters other than the bankruptcy, cross-examined one of the defendants about alleged failures regarding defendants' representation of plaintiff; plaintiff did not cross-examine the defendant on any topic, including malpractice; the bankruptcy court allowed some attorney fees and disallowed other fees, but did not make any findings or conclusions regarding plaintiff's malpractice claims; and after plaintiff's bankruptcy was denied, plaintiff filed a malpractice claim against defendants in state court, plaintiff's claim for malpractice in state court was barred by claim preclusion because the bankruptcy court was required to consider the quality of defendants' professional services in order to determine whether the fees requested were appropriate and plaintiff could have brought and pursued plaintiff's malpractice claim in an adversarial proceeding in the bankruptcy court. Potter v. Pierce, 2014-NMCA-002, cert. granted, 2013-NMCERT-011. Claim and issue preclusion did not apply. - Where the minority homeowners prevailed in a recall election of members of the board of directors of the homeowners association; the majority homeowners, which included plaintiffs, filed a declaratory judgment action to declare that the recall election was invalid; the district court determined that the recall election was valid; the minority homeowners sought to recover attorney fees they incurred in the declaratory judgment action from the majority homeowners; the district court ordered the homeowners association to pay the minority homeowners' attorney fees; and the majority homeowners filed a separate action against the homeowners association for indemnification to recover attorney fees they incurred in defending against the minority homeowners' claim for attorney fees in the declaratory judgment action, plaintiffs' claim for indemnification was not barred by claims preclusion because it was not the same claim that was asserted and decided in the declaratory judgment action and it was not barred by issue preclusion because it was not asserted and decided in the declaratory judgment action. Tunis v. Country Club Estates Homeowners Ass'n, Inc., 2014-NMCA-025, cert. denied, 2014-NMCERT-001. In a qui tam action, dismissal of a relator's complaint for failure to state a claim is without prejudice to the government where the government did not intervene. - Where relator brought a qui tam action against defendants, alleging violations of the federal False Claims Act and various states' similar fraud statutes, including the New Mexico Medicaid False Claims Act, NMSA 1978, §§ 27-14-1 to -15, and where the federal district court dismissed relator's complaint for failure to state a claim upon which relief could be granted, and where, prior to the dismissal of relator's claim, the New Mexico Attorney General brought an action against defendants in state court, based on the same facts as in relator's claim, alleging violations of the New Mexico Unfair Practices Act, NMSA 1978, §§ 57-12-1 to -26, the New Mexico Medicaid Fraud Act, NMSA 1978, §§ 30-44-1 to -8, and the New Mexico Fraud Against Taxpayers Act, NMSA 1978, §§ 44-9-1 to -14, the federal district court's dismissal of the qui tam action for failure to state a claim did not bar the state from pursuing different claims arising from similar facts, because a dismissal of a relator's complaint in a qui tam action is without prejudice to the government when the government has not intervened; the non-intervening government should not be bound by the relator's weaknesses in pleading what might be a valid claim. State ex rel. Balderas v. Bristol-Meyers Squibb, 2019-NMCA-016, cert. granted. Change in law does not prevent the application of claims preclusion from barring later claims. - Where plaintiffs' child died in a single car accident in 2004; plaintiffs owned five vehicles, each covered with liability insurance policies issued by defendant; in 2004, plaintiffs sued defendant for denying uninsured motorist coverage under two of the policies; the 2004 case was settled and dismissed with prejudice; plaintiffs did not seek to enforce the other three policies in 2004; in 2011, relying on the retroactive change in law established in Jordan v. Allstate Ins. Co., 2010 -NMSC-051, 149 N.M. 162, 245 P.3d 1214 and Progressive Northwestern Ins. Co. v. Weed Warrior Servs., 2010-NMSC-050, 149 N.M. 157, 245 P.3d 1209, plaintiffs sought coverage under the three policies that they did not seek to enforce in 2004; and the parties and the causes of action were identical in both the 2004 and 2011 suits, the change in law did not limit the preclusive effect of the 2004 suit and plaintiffs were barred by claims preclusion from pursuing their 2011 claims. Pielhau v. State Farm Mut. Auto. Ins. Co., 2013 -NMCA-112, cert. granted, 2013-NMCERT-011. Estoppel by acquiescence. - The doctrine of acquiescence arises where a person who knows that he is entitled to enforce a right neglects to do so for such a length of time that, under the circumstances of the case, the other party may fairly infer that he has waived or abandoned his right. Jones v. Augé, 2015-NMCA-016, cert. denied, 2015-NMCERT-001. Where evidence on a breach of fiduciary duty claim showed that appellant shareholder controlled the shareholder allocation sheets that shareholders used to track their compensation and failed to inform other shareholders of material facts and information relating to business and financial affairs, appellees were not estopped from raising claims when they were unaware of appellant's actions. Jones v. Augé, 2015-NMCA-016, cert. denied, 2015-NMCERT-001. Scope of release. - Where plaintiffs and defendants created three business entities to hold real estate for investment; plaintiffs subsequently decided to withdraw from the businesses; in settling a dispute concerning the business known as Central Market, plaintiffs signed a final agreement and release which discharged all known and unknown claims plaintiffs had against Central Market, defendant David Blanc, and their predecessors and successors in interest; in subsequent litigation involving another of the businesses known as Town Center, defendants claimed that the release included plaintiffs' claims in the Town Center litigation; none of the defendants, except David Blanc were designated by name as released parties; the corporate defendants were not designated as released parties under the language identifying the released parties; no extrinsic evidence demonstrated that the parties to the release intended to release the corporate defendants from liability in the Town Center dispute; there was no evidence that plaintiffs intended to release David Blanc in the Town Center litigation; and the release expressly discharged claims arising out of the management, operation, and ownership of the project known as Central Market, the release was unambiguous and did not discharge any of the defendants from liability in the Town Center dispute. Benz v. Town Ctr. Land, L.L.C., 2013 -NMCA-111. Tribal sovereign immunity divests a state district court of subject matter jurisdiction. - Where plaintiff, a non-profit New Mexico corporation filed a complaint against defendant, a federally recognized Indian tribe organized under the federal Indian Reorganization Act (Pueblo), requesting that the district court declare that the Pueblo cannot restrict plaintiff's use of an easement and right-of-way over land owned by the Pueblo, but used by plaintiff and its predecessors in interest to access its property for many years and has been a public road that vested in the public as a state highway when it was retained by the United States since at least 1935, the district court erred in denying the Pueblo's motion to dismiss, because under federal law, the Pueblo is immune from suit, absent a waiver of its immunity or congressional authorization of the suit, regardless of the nature of the claim giving rise to the dispute, and the Pueblo properly asserted its immunity by Rule 1-012(B)(1) NMRA motion to dismiss. Hamaatsa, Inc. v. Pueblo of San Felipe, 2017-NMSC-007, rev'g 2013-NMCA-094, 310 P.3d 631. Motion to dismiss based on tribal sovereign immunity. - Where a road was owned by the Bureau of Land Management since 1906 and was constructed in 1935 and used by the public since that time; in 2001, the BLM conveyed the property through which the road ran to defendant in fee simple; the BLM reserved an easement along the road for the use as a road by the United States for public purposes; in 2002, the BLM conveyed its interest in the road to defendant; in plaintiff's action to declare the road a state public road, defendant moved to dismiss the complaint for lack of subject matter jurisdiction based on tribal sovereign immunity; and defendant offered no evidence of any property or governance interests in the road or that the road would threaten or affect defendant's sovereignty, the district court did not err in dismissing defendant's motion to dismiss because the allegations of the complaint, including the allegation that the road was a state public road, were presumed to be true for purposes of the motion, and defendant failed to show any factual, legal or rational basis on which to invoke sovereign immunity. Hamaatsa, Inc. v. Pueblo of San Felipe, 2013-NMCA-094, cert. granted, 2013-NMCERT-009. Foreseeability and duty analysis. - Foreseeability is not a factor for courts to consider when determining the existence of a duty, or when deciding to limit or eliminate an existing duty in a particular class of cases. If a court is deciding that a defendant does not have a duty, or that an existing duty should be limited, the court is required to articulate specific policy reasons, unrelated to foreseeability considerations. Foreseeability is a fact-intensive inquiry relevant only to breach of duty and legal cause considerations. Foreseeability cannot be a policy argument because foreseeability is not susceptible to a categorical analysis. When a court considers foreseeability, it is to analyze no-breach-of-duty or no-legal-cause as a matter of law, not whether a duty exists. Rodriguez v. Del Sol Shopping Ctr. Assoc., 2014 -NMSC-014, rev'g 2013-NMCA-020, 297 P.3d 334 and overruling in part Edward C. v. City of Albuquerque, 2010-NMSC-043, 148 N.M. 646, 241 P.3d 1086 and overruling Chavez v. Desert Eagle Distributing Co., 2007-NMCA-018, 141 N.M. 116, 151 P.3d 77. Where a truck crashed through the front glass of a medical center in a shopping mall killing three people and injuring several others; plaintiff alleged that the shopping center negligently contributed to the accident by failing to adequately take measures to prevent vehicles from crashing into businesses in the mall; the Court of Appeals determined that defendants had no duty of care to protect invitees within its buildings from criminally reckless drivers; and to arrive at its no-duty determination, the Court of Appeals focused predominantly on foreseeability considerations and the reasonableness of defendants' conduct, the Court of Appeals should not have considered foreseeability when it determined that defendants had no duty of care to protect plaintiffs from criminally reckless drivers. Rodriguez v. Del Sol Shopping Ctr. Assoc., 2014 -NMSC-014, rev'g 2013-NMCA-020, 297 P.3d 334 and overruling in part Edward C. V. City of Albuquerque, 2010-NMSC-043, 148 N.M. 646, 241 P.3d 1086 and overruling Chavez v. Desert Eagle Distributing Co., 2007-NMCA-018, 141 N.M. 116, 151 P.3d 77. Duty of business owners to protect indoor patrons. - Where the driver of a truck was driving the truck in the parking lot of defendants' shopping mall when the truck's accelerator became stuck, the brakes failed, and the driver had a seizure, causing the driver to lose consciousness; the truck crashed through the glass wall of a medical center in the shopping mall killing or injuring the plaintiffs, who were inside the medical center; and the shopping mall parking lot was in full compliance with applicable state and local building codes, the district court properly granted defendants summary judgment dismissing plaintiffs' claims as a matter of law because the scope of the duty of ordinary care owed by the owner and operators of the shopping mall did not include a duty to prevent injury to patrons, who were inside the buildings of the shopping mall, from runaway vehicles. Rodriguez v. Del Sol Shopping Ctr. Assoc., L.P., 2013-NMCA-020, 297 P.3d 334, rev'd, 2014-NMSC-014. Unintentional injury to third party. - Where plaintiff sued several defendants in strict liability and negligence for damages allegedly resulting from physical injuries to its employees, but where plaintiff suffered neither a physical injury nor property damage, but alleged collateral or resulting harm in the form of increased workers' compensation premiums, an increased ratings modifier, and lost profits resulting from unsuccessful bids on new jobs, the district court's dismissal of the tort action was proper because an action for damages resulting from a tort can only be sustained by the person directly injured thereby, and not by one claiming to have suffered collateral or resulting injuries. Nat'l Roofing, Inc. v. Alstate Steel, Inc., 2016-NMCA-020, cert. denied, 2016-NMCERT-001. Duty and breach analysis in wrongful death action. - In a wrongful death action, where the state department of transportation had a duty to maintain roadways in a safe condition for the benefit of the public, including reasonable inspections of roadways in order to identify and remove dangerous debris, and where department failed to exercise ordinary care in its duty, there were questions of fact as to whether the department had constructive notice of the dangerous debris, whether the department breached a duty to decedent, and whether the department's failure to act was the proximate cause of the accident, making summary judgment improper. Lujan v. N.M. Dep't of Transp., 2015-NMCA-005, cert. denied, 2014-NMCERT-010. Duty analysis in medical malpractice action. - Where police detective, after being examined by healthcare professionals for depression and suicidal thoughts and after being discharged with a follow-up plan for therapy, proceeded to use his service weapon to shoot his wife and kill himself, the Court of Appeals affirmed summary judgment for defendants and declined to impose a duty to order a fitness for duty evaluation on independent healthcare professionals who treat individuals with access to firearms as part of their workplace environment, because it did not fall within one of the three recognized sources of duty for medical professionals to third parties. Brown v. Kellogg, 2015-NMCA-006, cert. denied, 2014-NMCERT-011. Waiver of sovereign immunity for bodily injury or property damage in a Tribal-State Class III Gaming Compact cannot be construed to mean or include emotional injury resulting from the invasion of privacy. Holguin v. Tsay Corporation, 2009-NMCA-056, 146 N.M. 346, 210 P.3d 243. Malicious abuse of process. - It is not necessary for the defendant to have initiated judicial proceedings against the plaintiff in order to state a claim for malicious abuse of process. Durham v. Guest, 2009-NMSC-007, 145 N.M. 694, 204 P.3d 19, overruling in part DeVaney v. Thriftway Marketing Corp., 1998-NMSC-001, 124 N.M. 512, 953 P.2d 277. The elements of the tort of malicious abuse of process are the use of process in a judicial proceeding that would be improper in the regular prosecution or defense of a claim or charge; a primary motive in the use of process to accomplish an illegitimate end; and damages. An improper use of process may be shown by filing a complaint without probable cause or an irregularity or impropriety suggesting extortion, delay, harassment or other conduct formerly actionable under the tort of abuse of process. A use of process is deemed to be irregular or improper if it involves a procedural irregularity or a misuse or procedural devices such as discovery, subpoenas, and attachments, or indicates the wrongful use of proceedings, such as an extortion attempt. Durham v. Guest, 2009-NMSC-007, 145 N.M. 694, 204 P.3d 19, overruling in part DeVaney v. Thriftway Marketing Corp., 1998-NMSC-001, 124 N.M. 512, 953 P.2d 277. Malicious abuse of process in arbitration proceedings. - For purposes of the tort of malicious abuse of process, arbitration proceedings are judicial proceedings, and the improper use of process in an arbitration proceeding to accomplish an illegitimate end may form the basis of a malicious abuse of process claim. Durham v. Guest, 2009-NMSC-007, 145 N.M. 694, 204 P.3d 19, rev'g 2007-NMCA-144, 142 N.M. 817, 171 P.3d 756. The plaintiffs' allegation that the defendant issued a subpoena during an arbitration proceeding for the purpose of extortion is sufficient to state a malicious abuse of process claim when the defendant did not initiate the arbitration proceeding against the plaintiffs. Durham v. Guest, 2009-NMSC-007, 145 N.M. 694, 204 P.3d 19, rev'g 2007-NMCA-144, 142 N.M. 817, 171 P.3d 756, and overruling in part DeVaney v. Thriftway Marketing Corp., 1998-NMSC-001, 124 N.M. 512, 953 P.2d 277. Complaint for malicious abuse of process properly dismissed. - Where respondent, a Taos school board member, brought a malicious abuse of process claim against petitioners, eighteen members of an unincorporated citizens' association who sought to remove respondent from office, the district court properly granted petitioners' motion to dismiss, because although the recall petition was objectively baseless, under the Noerr-Pennington doctrine, those who engage in conduct aimed at influencing the government, including litigation, are shielded from retaliation provided their conduct is not a sham, and respondent's complaint lacked the factual specificity to show that petitioner's subjective motivation was improper and therefore a sham. Cordova v. Cline, 2017-NMSC-020, rev'g 2013-NMCA-083, 308 P.3d 975. Complaint stated a claim for malicious abuse of process. - Where defendants filed a petition with the county clerk to recall plaintiff who was a member and officer of a municipal school board and plaintiff filed suit against defendants for malicious abuse of process, alleging that defendants supported the recall petition by affidavits that were facially incompetent and replete with rumor and innuendo and that referred to events that took place after the affidavits were notarized, that defendants twice continued a hearing before the district court to determine the sufficiency of the recall allegations; that at the sufficiency hearing, defendants dismissed the petition before the district court determined the sufficiency of the petition; that defendants' motives were improper and to avoid accountability for their misdeeds; and that plaintiff suffered damages, plaintiff's complaint stated a claim for malicious abuse of process. Cordova v. Cline, 2013-NMCA-083, cert. granted, 2013-NMCERT-007. Claim of waiver sufficient to defeat a Rule 1-012(B)(6) NMRA motion. - Where the estate of decedent brought suit against the named beneficiary of decedent's savings and investment plan and sought recovery of the proceeds of that plan, where the parties reached a stipulated agreement regarding the proceeds, where defendant subsequently moved to strike the stipulated agreement and to dismiss plaintiffs' action for failure to state a claim on which relief could be granted, and where plaintiffs sued to enforce defendant's waiver of benefits, the district court erred in granting defendant's motion to dismiss on the basis that plaintiffs' claims were preempted by the federal Employee Retirement Income Security Act of 1974 (ERISA), because ERISA's regulations do not expressly prohibit the waiver or restriction of beneficiary designations, and therefore the question of whether defendant waived his right to the investment proceeds remains a viable legal theory and a valid claim against defendant. Taken all facts in plaintiffs' complaint as true, plaintiffs have stated a claim under their waiver theory on which they can proceed. Walsh v. Montes, 2017-NMCA-015. Claim for indemnifiction. - Where the plaintiff alleged that the plaintiff rented a truck to individual lessees who suffered injuries in a rollover accident that was caused by a defective tire that was manufactured by the defendant; the plaintiff settled an action filed by the lessees for personal injuries and obtained a release of all claims from the lessees; but the plaintiff did not allege that the defendant's liability was discharged by the release obtained from the lessees, the plaintiff properly pled a cause of action against the defendant for indemnification. Budget Rent-A-Car Systems, Inc. v. Bridgestone, 2009-NMCA-013, 145 N.M. 623, 203 P.3d 154. Trial evidence can establish the district court's jurisdiction over a defendant following an improperly denied motion to dismiss. Capco Acquiscub, Inc. v. Greka Energy Corp., 2008-NMCA-153, 145 N.M. 328, 198 P.3d 354. Supplemental allegations to support standing. - For purposes of ruling on a motion to dismiss for want of standing, the court may allow the plaintiff to supply particularized allegations of fact by affidavit to support the plaintiff's standing. Protection & Advocacy System v. City of Albuquerque, 2008-NMCA-149, 145 N.M. 156, 195 P.3d 1. Individual standing. - Individuals who alleged that they had been diagnosed with mental illness and other facts to show that they met the criteria for the application to them of a proposed municipal assisted out patient treatment ordinance which provided for the taking of mentally ill persons in to custody who refused to be examined by a physician or who refused to comply with court-ordered treatment and who alleged that the ordinance denied individuals the right to refuse treatment contrary to state law which protected the right of mentally ill persons with capacity to refuse treatment, sufficiently alleged a credible threat of injury stemming from the ordinance and had standing to challenge the ordinance. Protection & Advocacy System v. City of Albuquerque, 2008-NMCA-149, 145 N.M. 156, 195 P.3d 1. Organizational standing. - The protection and advocacy system established by Congress in 42 U.S.C. §§ 10801 to 10851 to protect and advocate the rights of individuals with mental illness whose constituents have standing to sue in their own right also has standing to challenge the proposed adoption of a municipal assisted out patient treatment ordinance which provided for the taking in to custody of mentally ill persons who refused to be examined by a physician or who refused to comply with court-ordered treatment. Protection & Advocacy System v. City of Albuquerque, 2008-NMCA-149, 145 N.M. 156, 195 P.3d 1. Forum-selection contract clauses are properly treated as venue defenses. Ferrell v. Allstate Ins. Co., 2008 -NMSC-042, 144 N.M. 405, rev'g 2007-NMCA-017, 141 N.M. 72, 150 P.3d 1022. Firefighter's rule does not bar plaintiff's claim for intentional infliction of emotional distress. - A firefighter may recover damages if such damages were proximately caused by intentional conduct, or reckless conduct, provided that the harm to the firefighter exceeded the scope of risks inherent in the firefighter's professional duties. Baldonado v. El Paso Natural Gas Co., 2008-NMSC-005, 143 N.M. 373, 176 P.3d 1105. Claim that fees imposed an excise tax. - The trial court erred in dismissing complaint alleging fee structure in animal control ordinance was primarily a revenue matter because the issue of whether license and permit fees were reasonable presented a question of fact requiring the district court to weigh evidence. Rio Grande Kennel Club v. City of Albuquerque, 2008-NMCA-093, 144 N.M. 636, 190 P.3d 1131. Claim that animal control ordinance infringes on interstate commerce. - The trial court erred in dismissing complaint because the issue of whether the mandatory spay and neuter provisions of the city's animal control ordinance would prohibit and eliminate the flow of business commerce as it relates to the sale of well-bred pets presented a question of fact requiring the district court to weigh evidence. Rio Grande Kennel Club v. City of Albuquerque, 2008-NMCA-093, 144 N.M. 636, 190 P.3d 1131. Firefighter's rule. - A firefighter may recover damages if such damages were proximately caused by intentional conduct, or reckless conduct, provided that the harm to the firefighter exceeded the scope of risks inherent in the firefighter's professional duties. Baldonado v. El Paso Natural Gas Co., 2008-NMSC-005, 143 N.M. 288, 176 P.3d 277, rev'g 2008-NMCA-010, 143 N.M. 297, 176 P.3d 266. Failure to plead statutory bar to payment. - Where the defendants did not plead payment as a defense or move to amend their defense and filed a motion for summary judgment on the ground that the plaintiff was statutorily barred from seeking payment from the defendants and where the plaintiff did not object at the time to payment being used as a defense, the court property granted summary judgment on the ground that there was a statutory bar to payment. Alliance Health of Santa Teresa, Inc. v. Natl. Presto Industries, Inc., 2007-NMCA-157, 143 N.M. 133, 173 P.3d 55. Malicious abuse of process based on procedural impropriety. - A malicious abuse of process claim based on procedural impropriety does not depend upon the outcome of the underlying lawsuit and recovery by the plaintiff is not an absolute defense to a malicious abuse of process claim founded on a procedural improprieity. Fleetwood Retail Corp. of N.M. v. Ledoux, 2007-NMSC-047, 142 N.M. 150, 164 P.3d 31. Malicious abuse of process based on probable cause. - A malicious abuse of process claim based on probable cause is not a claim-by-claim inquiry, but is determined as to the lawsuit in its entirety and any recovery by the plaintiff is an absolute defense to a malicious abuse of process claim founded on lack of probable cause. Fleetwood Retail Corp. of N.M. v. Ledoux, 2007-NMSC-047, 142 N.M. 150, 164 P.3d 31. Breach of contract claim dismissed. - The district court did not err when it dismissed plaintiff's breach of contract claim because defendant never entered into the contract from which the breach of contract claim originated. Healthsource, Inc. v. X-Ray Assocs., 2005-NMCA-097, 138 N.M. 70, 116 P.3d 861, cert. denied, 2005-NMCERT-007. Principal objective of rules is to resolve delays due to reliance on technicalities and to streamline generally and simplify procedures so that merits of the case may be decided without expensive preparation for trial on the merits which may not be even necessary. Benson v. Export Equip. Corp., 1945 -NMSC-044, 49 N.M. 356, 164 P.2d 380. Applicability of summary judgment. - The trial court's authority to grant summary judgment under Rule 1-056 NMRA is not limited by a motion to dismiss under this rule when the opposing party had reasonable notice of the issues underlying the summary judgment, together with the opportunity to be heard, and failed to make a specific allegation of prejudice at the appropriate time. Aldridge v. Mims, 1994-NMCA-114, 118 N.M. 661, 884 P.2d 817. Review of summary judgment. - When a party admits, for purposes of a summary judgment motion, the veracity of the allegations in the complaint, a reviewing court should consider the facts pleaded as undisputed and determine if a basis is present to decide the issues as a matter of law. GCM, Inc. v. Kentucky Cent. Life Ins. Co., 1997 -NMSC-052, 124 N.M. 186, 947 P.2d 143. Dismissal is legal, not evidentiary determination. - Petitioners' suggestions that a dismissal was premature and should have awaited a hearing on the facts were without merit, since a dismissal under the rule is a legal, not an evidentiary, determination. Johnson v. Francke, 1987-NMCA-029, 105 N.M. 564, 734 P.2d 804. An indispensable party is one whose interests will necessarily be affected by the judgment so that complete and final justice cannot be done between the parties without affecting those rights. Jemko, Inc. v. Liaghat, 1987-NMCA-069, 106 N.M. 50, 738 P.2d 922. The purpose of a motion to dismiss for failure to state a claim for relief is to test the legal sufficiency of the claim, not the facts that support it, and the possibility of recovery based on a state of facts provable under the claims bars dismissal. Trujillo v. Berry, 1987-NMCA-072, 106 N.M. 86, 738 P.2d 1331. Question reviewed is whether facts state claim. - The question on review of a Paragraph B(6) dismissal is whether the facts as stated in a complaint state a claim for relief. Blea v. City of Espanola, 1994-NMCA-008, 117 N.M. 217, 870 P.2d 755. Review of dismissal for mootness. - Since the district court dismissed the de novo appeal from an administrative ruling on the grounds of mootness, the summary judgment standard of review by which the movant must show there is no issue of material fact and the movant is entitled to judgment as a matter of law was inappropriate. The summary judgment standard is required only when the motion amounts to one on which the merits of the case will be decided, such as a motion to dismiss for failure to state a claim upon which relief can be granted or a motion for judgment on the pleadings, not when a claim is moot because of an event which occurs separate from the merits of the case. The standard of review for mootness is one of substantial evidence in support of the district court's finding. United Nuclear Corp. v. State ex rel. Martinez, 1994-NMCA-031, 117 N.M. 232, 870 P.2d 1390. Review of municipal board's determination. - Absent a statute providing otherwise, municipal personnel board's determinations are reviewable at the district court level only by writ of certiorari for arbitrariness, capriciousness, fraud, or lack of substantial evidence. Zamora v. Village of Ruidoso Downs, 1995-NMSC-072, 120 N.M. 778, 907 P.2d 182. Doctrine of priority jurisdiction. - Where two suits between the same parties over the same controversy are brought in courts of concurrent jurisdiction, the court that first acquires jurisdiction retains jurisdiction over the whole controversy to the exclusion or abatement of the second suit. Priority jurisdiction serves the same purpose as res judicata, but operates where there is not a final judgment and instead there is a pending case. Cruz v. FTS Constr., Inc., 2006-NMCA-109, 140 N.M. 284, 142 P.3d 365, cert. granted, 2006-NMCERT-008. II. WHEN PRESENTED. Failure to timely assert public-figure defense to defamation. - Where plaintiff was a crop protection company that blended, stored, and distributed fertilizers and other nutrients to local farmers; defendant, who resided across the street from plaintiff's facility, made statements and presentations in the media, to the legislature, and at community meetings about plaintiff and attempted to interfere with plaintiff's attempts to communicate with the public to educate the community about plaintiff's operations; plaintiff sued defendant for defamation; in a pretrial order defendant agreed to the private-person standard of proof of defamation; and at the close of evidence, defendant requested the court to instruct the jury on a public-figure standard of defamation, defendant's failure to plead the public-figure defense at any time before entry of the pretrial order and not until the case was ready to submit to the jury constituted a clear and compelling waiver of the right to assert the defense. Helena Chem. Co. v. Uribe, 2013-NMCA-017, 293 P.3d 888, cert. denied, 2012-NMCERT-012. Res judicata. - A defendant must act expeditiously to object to claim-splitting and may not simply rely on a generally stated res judicata defense in the answer to the complaint for protection against assertions of waiver and acquiescence. Concerned Residents of S.F. North, Inc., v. Santa Fe Estates, Inc., 2008-NMCA-042, 143 N.M.811, 182 P.3d 794. Motion to dismiss tests legal sufficiency of complaint. - The motion to dismiss, which takes the allegations of the complaint to be true, questions the legal sufficiency of the complaint and is not properly used to attack the complaint upon grounds of indefiniteness and uncertainty. Carroll v. Bunt, 1946-NMSC-021, 50 N.M. 127, 172 P.2d 116. Determination that complaint is legally sufficient not required. - While a determination that a proposed complaint in intervention is legally sufficient - so as to withstand a motion to dismiss for failure to state a claim - is not required before the trial court may grant an application to intervene, it is certainly permissible for the court to scrutinize the proffered complaint to see whether it states a cause of action. Solon ex rel. Ponce v. WEK Drilling Co., 1992-NMSC-023, 113 N.M. 566, 829 P.2d 645. Failure to comply with Paragraph A disallows filing of counterclaim. - Where defendant did not comply with Subdivision (a) (see now Paragraph A) nor seek leave of court to set up the counterclaim by amendment due to an oversight, inadvertence or excusable neglect, the trial court properly disallowed the filing of the counterclaim. Echols v. N.C. Ribble Co., 1973-NMCA-038, 85 N.M. 240, 511 P.2d 566, cert. denied, 85 N.M. 229, 511 P.2d 555. Affirmative allegations in answer may not require reply. - Where cross-complainant alleged that a certain release of claims against an insolvent's estate was made only on one condition, while cross-defendant charged that the release was made on the same and another condition, such allegations presented a complete issue, and no reply was necessary. Affirmative allegations in an answer are not necessarily new matter requiring a replication. Lohman v. Reymond, 1913-NMSC-069, 18 N.M. 225, 137 P. 375 (decided under former law). Default judgment unavailable when party fails to reply. - In city's suit to recover license tax from hotel operator whose answer asserted illegality of tax and payment, to which there was no reply, defendant, waiving all defenses except payment, was not entitled to judgment by default for failure to reply to new matter in answer, without proof of payment, the question of payment having been put in issue by the answer. City of Raton v. Seaberg, 1937-NMSC-041,41 N.M. 459, 70 P.2d 906 (decided under former law). Order sustaining motion to dismiss not final judgment. - An order which sustains motion to dismiss, though excepted to, is not a final judgment and therefore is not res judicata. Carroll v. Bunt, 1946-NMSC-021, 50 N.M. 127, 172 P.2d 116. III. HOW PRESENTED. The defense of lack of personal jurisdiction is not waived by asserting it with other defenses in an answer or motion. Capco Acquiscub, Inc. v. Greka Energy Corp., 2008-NMCA-153, 145 N.M. 328, 198 P.3d 354. Rules of preservation apply. - In reviewing a dismissal under Paragraph B(6) of this rule for failure to state a claim, the normal rules of preservation apply. Therefore, it must appear that plaintiffs presented an argument below and invoked a ruling of the district court on the matter. Liberty Mut. Ins. Co. v. Salgado, 2005-NMCA-144, 138 N.M. 685, 125 P.3d 664. Paragraph B supersedes 105-412, 1929 Comp. - Section 105-412, C.S. 1929, and authorities based thereon are superseded by Subdivision (b) (see now Paragraph B) so that the authority no longer controls. Ritter v. Albuquerque Gas & Elec. Co., 1943-NMSC-035, 47 N.M. 329, 142 P.2d 919. Motion is not a responsive pleading under Subdivision (b) (see now Paragraph B). Apodaca v. Unknown Heirs of Tome Land Grant, 1982-NMSC-100, 98 N.M. 620, 651 P.2d 1264. Paragraph B(1) motion sufficient notice to court of meritorious defense. - Though a valid arbitration defense does not divest the court of jurisdiction, and is not properly raised by a Subdivision (b)(1) (see now Paragraph B(1)) motion, such a motion was sufficient to put the court on notice that a meritorious defense existed. Dean Witter Reynolds, Inc. v. Roven, 1980-NMSC-029, 94 N.M. 273, 609 P.2d 720. Assertion of failure to state claim made by motion or defense. - An assertion of failure to state a claim upon which relief can be granted can be made either by motion or by affirmative defense. Schwartzman v. Schwartzman Packing Co., 1983-NMSC-010, 99 N.M. 436, 659 P.2d 888. Purpose of motion under Subdivision (b)(6) (see now Paragraph B(6)) is to test the formal sufficiency of the statement of the claim for relief, i.e., to test the law of the claim, not the facts that support it. McCasland v. Prather, 1978-NMCA-098, 92 N.M. 192, 585 P.2d 336; Trujillo v. Puro, 1984-NMCA-050, 101 N.M. 408, 683 P.2d 963; Rubio ex rel. Rubio v. Carlsbad Mun. Sch. Dist., 1987 -NMCA-127, 106 N.M. 446, 744 P.2d 919; Eturriaga v. Valdez, 1989-NMSC-080, 109 N.M. 205, 784 P.2d 24. Failure to state a claim. - A Rule 1-012 (B(6) motion is only proper when it appears that plaintiff can neither recover nor obtain relief under any state of facts provable under the claim. Estate of Boyd v. United States, 2015-NMCA-018, cert. denied, 2015-NMCERT-001. Where plaintiff's claim to an existing water right was based not on his own diversion of water, but on the water rights and irrigation work from his predecessor in interest who diverted irrigation water over one hundred years prior to the existing cause of action, plaintiff failed to state a claim that he had an existing water right by failing to show that he had actually diverted the water and applied it to beneficial use. Estate of Boyd v. United States, 2015-NMCA-018, cert. denied, 2015-NMCERT-001. Dismissal of claim was proper where asserted claim was legally deficient. - Where doctor sued employer, the Board of Regents of the University of New Mexico and the University of New Mexico Health Sciences Center, for violation of the New Mexico Whistleblower Protection Act (WPA), 10-16C-1 NMSA 1978 et seq., on the ground that employer terminated doctor's employment in retaliation for a previously filed lawsuit, the district court did not err in dismissing doctor's case for failure to state a claim pursuant to 1-012(B)(6) NMRA, where plaintiff alleged only the act of retaliation, that is, the termination of his employment, but failed to allege that defendants retaliated against him because he communicated about "an unlawful or improper act," as that term is defined in the WPA. Wills v. Bd. of Regents of the Univ. of N.M., 2015-NMCA-105, cert. denied, 2015-NMCERT-009. Dismissal of claim improper where pleaded facts are sufficient to state a claim. - Dismissal under Rule 1-012(B)(6) NMRA is appropriate only if the plaintiff is unable to recover under any theory of the facts alleged in the complaint. Wild Horse Observers Ass'n, Inc. v. N.M. Livestock Bd., 2016-NMCA-001, cert. denied, 2015-NMCERT-010. Where the Wild Horse Observers Association (Association) filed a complaint for declaratory relief, claiming that the New Mexico Livestock Board unlawfully treated a group of undomesticated, unowned, free-roaming horses in Placitas, New Mexico as "livestock" and "estray" rather than as "wild horses" under the Livestock Code, §§ 77-2-1 to -18-6 NMSA 1978, the district court's dismissal for failure to state a claim was improper where the Association averred that the Placitas horses are not domesticated, that they are not owned and never have been owned, that the horses are unbranded, unclaimed, and free-roaming, that the Livestock Board has captured and auctioned at least twenty-five horses and that the auctioned horses were taken from public land, and that the horses have not been tested to confirm whether they are Spanish colonial horses, as required by § 77-18-5(B) NMSA 1978. These facts, taken as true, adequately state a claim that the Placitas horses fit the criteria of "wild horses" under § 77-18-5, and that the Livestock Board unlawfully failed to test and relocate the wild horses it captured. Wild Horse Observers Ass'n, Inc. v. N.M. Livestock Bd., 2016-NMCA-001, cert. denied, 2015-NMCERT-010. Personnel board's administrative decision. - Unless otherwise provided by statute, the correct procedure to appeal a personnel board's administrative decision is to petition the district court for a writ of certiorari. Zamora v. Village of Ruidoso Downs, 1995-NMSC-072, 120 N.M. 778, 907 P.2d 182. Motion to dismiss tests the legal sufficiency of the complaint. Three Rivers Land Co. v. Maddoux, 1982-NMSC-111, 98 N.M. 690, 652 P.2d 240, overruled on other grounds, Universal Life Church v. Coxon, 1986-NMSC-086, 105 N.M. 57, 728 P.2d 467. A motion to dismiss under Subparagraph B(6) tests the legal sufficiency of the complaint, not the facts that support it. Thompson v. Montgomery & Andrews, 1991-NMCA-086, 112 N.M. 463, 816 P.2d 532. Affirmative defense of res judicata may properly be raised in a motion to dismiss. Universal Life Church v. Coxon, 1986-NMSC-086, 105 N.M. 57, 728 P.2d 467, cert. denied, 482 U.S. 905, 107 S. Ct. 2482, 96 L. Ed. 2d 374 (1987) (overruling Three Rivers Land Co. v. Maddoux, 1982-NMSC-111, 98 N.M. 690, 652 P.2d 240). Sovereign immunity defense incidental to motion. - The defense of sovereign immunity may properly be raised incident to a motion to dismiss for failure to state a claim upon which relief can be granted. Hern v. Crist, 1987-NMCA-019, 105 N.M. 645, 735 P.2d 1151. Raising statute of limitations defense in motion to dismiss. - The defense of the statute of limitations may be raised by a motion to dismiss where it is clearly apparent on the face of the pleading that the action is barred. Apodaca v. Unknown Heirs of Tome Land Grant, 1982-NMSC-100, 98 N.M. 620, 651 P.2d 1264. Motion to dismiss is inappropriate pleading with which to raise election of remedies, as a motion to dismiss tests the legal sufficiency of the complaint. Three Rivers Land Co. v. Maddoux, 1982-NMSC-111, 98 N.M. 690, 652 P.2d 240, overruled on other grounds, Universal Life Church v. Coxon, 1986-NMSC-086, 105 N.M. 57, 728 P.2d 467. Dismissal motion appropriate in libel action where published material privileged or protected. - In actions for alleged libel or defamation, motions to dismiss for failure to state a claim under Subdivision (b)(6) (see now Paragraph B(6)) and summary judgment have been recognized as appropriate modes of obtaining dismissal of suits, where the published material is held as a matter of law to be privileged or constitutionally protected. Marchiondo v. New Mexico State Tribune Co., 1981-NMCA-156, 98 N.M. 282, 648 P.2d 321. Plaintiff failed to state a claim for defamation where published material was opinion and thus protected speech. - Where plaintiff, a paid civilian employee and an unpaid reserve police officer of the Albuquerque Police Department, brought defamation and false light invasion of privacy claims against publishing company and reporter concerning a number of statements contained within articles written by the reporter and published in the Albuquerque Journal, the district court did not err in finding as a matter of law that plaintiff failed to state a claim for defamation or false light invasion of privacy based on defendants' published use of the term "wannabe cop", because considering the context of the publications as a whole and defendants' disclosure of the undisputed facts on which its conclusion was based, such as the fact that state law does not allow reserve officers to make arrests but that court records indicated that plaintiff had made numerous arrests during his many years as a reserve officer, defendants' labeling of plaintiff as a "wannabe cop" was pure opinion and thus protected by the First Amendment. Young v. Wilham, 2017-NMCA-087, cert. denied. Jurisdiction of subject matter cannot be conferred by consent, much less can it be waived. Zarges v. Zarges, 1968-NMSC-151, 79 N.M. 494, 445 P.2d 97. Burden of establishing jurisdiction. - A party asserting jurisdiction has the burden of establishing jurisdiction when faced with a timely motion to dismiss under Paragraph B(2) of this rule. Campos Enters., Inc. v. Edwin K. Williams & Co., 1998-NMCA-131, 125 N.M. 691, 964 P.2d 855, cert. denied, 126 N.M. 107, 967 P.2d 447. Jurisdictional challenge requires supporting evidence. - An unverified motion to dismiss on jurisdictional grounds, not supported by affidavits or other sworn testimony, is not a sufficient challenge to plaintiff's allegations of jurisdictional facts. Aetna Cas. & Sur. Co. v. Bendix Control Div., 1984-NMCA-029, 101 N.M. 235, 680 P.2d 616. Where jurisdictional allegations are properly and adequately traversed and challenged, plaintiff has burden to prove them at the hearing on a motion to dismiss. State ex rel. Anaya v. Columbia Research Corp., 1978-NMSC-073, 92 N.M. 104, 583 P.2d 468. For purposes of motion to dismiss, material allegations of complaint are admitted. Buhler v. Marrujo, 1974-NMCA-062, 86 N.M. 399, 524 P.2d 1015. Inferences drawn from allegations not admitted. - Pursuant to a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, only the allegations of the complaint are to be considered, and those allegations that are correctly pleaded are to be viewed as admitted where legal conclusions or inferences that may be drawn from the allegations by the pleader are not admitted. McNutt v. New Mexico State Tribune Co., 1975-NMCA-085, 88 N.M. 162, 538 P.2d 804, cert. denied, 88 N.M. 318, 540 P.2d 248. Pleading must state "cause of action". - With all of the rules of liberality prevailing in favor of a pleader, the pleading must state a "cause of action" in the sense that it must show "that the pleader is entitled to relief," and therefore, it is not enough to indicate merely that the plaintiff has a grievance, but sufficient detail must be given so that the defendant and the court can obtain a fair idea of what the plaintiff is complaining and can see that there is some legal basis for recovery. Kisella v. Dunn, 1954-NMSC-099,58 N.M. 695, 275 P.2d 181. Properly-pled indemnification claim. - A property-pled indemnification claim must allege that the indemnitee caused some harm and is liable for claims made against the indemnitor. Frederick v. Sun 1031, LLC, 2012-NMCA-118, 293 P.3d 934. Improperly-pled indemnification claim. - Where defendants offered investment packages to the public that consisted of interests in real property; plaintiff invested in three properties; defendants created the third parties to act as the seller of the real property; plaintiff sued defendants for violations of the New Mexico Securities Act of 1986, Section 58-13B-1 NMSA 1978 et seq. [repealed]; and defendants filed complaints against the third parties for indemnity on the ground that the third parties sold the real property interests that comprised the alleged securities that plaintiff bought, the third party complaint did not state an adequate claim for proportional or traditional indemnification because it did not allege that the third parties were wholly or partially liable to plaintiff for the violations of the Securities Act that plaintiff alleged in the complaint. Frederick v. Sun 1031, LLC, 2012-NMCA-118, 293 P.3d 934. Objection to pleadings valid only when failure to allege material matter. - An objection to a complaint, or a cross-complaint, that it does not state facts sufficient to constitute a cause of action is good only when there is a total failure to allege some matter which is essential to the relief sought, and is not good when the allegations are simply incomplete, indefinite or statements of conclusions of law or fact. Pillsbury v. Blumenthal, 1954-NMSC-066, 58 N.M. 422, 272 P.2d 326; Michelet v. Cole, 1915-NMSC-044, 20 N.M. 357, 149 P. 310. Sufficiency of objection. - Demurrers (now motions to dismiss) on the ground that the answer did not state facts sufficient to constitute any defense were sufficient. State ex rel. Walker v. Hinkle, 1933-NMSC-032, 37 N.M. 444, 24 P.2d 286; General Motor Acceptance Corp. v. Ballard, 1932-NMSC-078, 37 N.M. 61, 17 P.2d 946; Worthington v. Tipton, 1918-NMSC-066, 24 N.M. 89, 172 P. 1048; Evants v. Taylor, 1913-NMSC-088, 18 N.M. 371, 137 P. 583 (decided under former law). Motion to dismiss for failure to state claim is granted infrequently. Las Luminarias of N.M. Council of Blind v. Isengard, 1978-NMCA-117, 92 N.M. 297, 587 P.2d 444. Only when there is total failure to allege matter essential to relief sought should a motion to dismiss for failure to state a claim be granted. Las Luminarias of N.M. Council of Blind v. Isengard, 1978-NMCA-117, 92 N.M. 297, 587 P.2d 444. Dismissal appropriate in breach of contract claim where there is no allegation of injury or remedy. - Absent an alleged injury and remedy, liability cannot be imposed in breach of contract claim. State ex rel. King v. Behavioral Home Care, Inc., 2015-NMCA-035, cert. granted, 2014-NMCERT-008. Where state alleged that Medicaid provider breached its provider participation agreement, but failed to allege common law contract remedies or damages, and where it incurred no identified harm to patients and enjoyed the benefit of the Medicaid provider's services, liability for breach of contract could not be imposed; district court did not err in dismissing the state's breach of contract cause of action. State ex rel. King v. Behavioral Home Care, Inc., 2015-NMCA-035, cert. granted, 2014-NMCERT-008. Plaintiff unable to prove facts meriting relief on claim. - A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. McCasland v. Prather, 1978-NMCA-098, 92 N.M. 192, 585 P.2d 336. Failure to state cause of action has no jurisdictional effect. - The failure of a complaint to state a cause of action does not interfere with or detract from the court's subject-matter jurisdiction. Such a failure has no jurisdictional effect. Sundance Mechanical & Util. Corp. v. Atlas, 1990-NMSC-031, 109 N.M. 683, 789 P.2d 1250. Subcontractor's failure to state a claim upon which relief could be granted by alleging in his crossclaim that he was duly licensed as a contractor did not deprive the district court of jurisdiction to enter a default judgment on the crossclaim. Sundance Mechanical & Util. Corp. v. Atlas, 1990-NMSC-031, 109 N.M. 683, 789 P.2d 1250. Standard for granting of motion to dismiss. - A motion to dismiss is properly granted only when it appears that plaintiff cannot recover under any state of facts provable under the claim. McCormick v. United Nuclear Corp., 1974-NMCA-151, 87 N.M. 274, 532 P.2d 203; Delgado v. Costello, 1978-NMCA-058, 91 N.M. 732, 580 P.2d 500; Eldridge v. Sandoval Cnty., 1978-NMCA-088, 92 N.M. 152, 584 P.2d 199. The motion is properly granted only when it appears that plaintiff cannot recover under any state of facts provable under the claim made by plaintiff. Villegas v. American Smelting & Ref. Co., 1976-NMCA-068, 89 N.M. 387, 552 P.2d 1235. Motion to dismiss under Subdivision (b)(6) (see now Paragraph B(6)) is properly granted only when it appears that the plaintiff is not entitled to relief under any state of facts provable under the claim. Buhler v. Marrujo, 1974-NMCA-062, 86 N.M. 399, 524 P.2d 1015; Church v. Church, 1981-NMCA-073, 96 N.M. 388, 630 P.2d 1243; State ex rel. Risk Mgt. Div. of Dep't of Fin. & Admin. v. Gathman-Matotan Architects & Planners, Inc., 1982-NMCA-130, 98 N.M. 790, 653 P.2d 166. A motion to dismiss under Subdivision (b)(6) (see now Paragraph B(6)) is properly granted only when it appears that plaintiff cannot recover or be entitled to relief under any state of facts provable under the claim. C & H Constr. & Paving, Inc. v. Foundation Reserve Ins. Co., 1973 -NMSC-076, 85 N.M. 374, 512 P.2d 947; Las Luminarias of N.M. Council of Blind v. Isengard, 1978-NMCA-117, 92 N.M. 297, 587 P.2d 444; Burke v. Permian Ford-Lincoln-Mercury, 1981-NMSC-001, 95 N.M. 314, 621 P.2d 1119; Emery v. University of N.M. Med. Center, 1981-NMCA-059, 96 N.M. 144, 628 P.2d 1140; Environmental Imp. Div. v. Aguayo, 1983-NMSC-027, 99 N.M. 497, 660 P.2d 587. When the dismissal of a suit is for failure to state a claim upon which relief can be granted, the issue is whether the plaintiff would be entitled to recover under any state of facts provable under the claim that is made. Tapia v. McKenzie, 1971-NMCA-128, 83 N.M. 116, 489 P.2d 181. The motion to dismiss a complaint should be granted only if it appears that upon no facts provable under the complaint could plaintiff recover or be entitled to relief. Hall v. Budagher, 1966-NMSC-152, 76 N.M. 591, 417 P.2d 71, overruled on other grounds, Lopez v. Maez, 1982-NMSC-103, 98 N.M. 625, 651 P.2d 1269. A motion to dismiss a complaint is properly granted only when it appears that under no state of facts provable under the claim could plaintiff recover or be entitled to relief. Gonzales v. Gackle Drilling Co., 1962-NMSC-063, 70 N.M. 131, 371 P.2d 605. A complaint will not be dismissed on motion therefor unless it appears that under no state of facts provable under the claim could plaintiff recover or be entitled to relief. Chavez v. Sedillo, 1955-NMSC-039, 59 N.M. 357, 284 P.2d 1026. The motion to dismiss is properly allowed only where it appears that under no provable state of the facts would the plaintiff be entitled to recovery or relief, the motion being grounded upon the assertion that the complaint fails to state a claim on which relief could be given. Ritter v. Albuquerque Gas & Elec. Co., 1943-NMSC-035, 47 N.M. 329, 142 P.2d 919. Standard of review for Subparagraph B(6) motion. - Because the trial court considered matters outside the pleadings, an action to dismiss for failure to state a claim upon which relief can be granted had to be treated as a motion for summary judgment. The applicable standard of review, therefore, was that for summary judgment, and not the Subparagraph B(6) standard of accepting all well-pleaded facts as true and determining whether a claim has been stated upon which relief can be granted based solely on the pleadings. V.P. Clarence Co. v. Colgate, 1993-NMSC-022, 115 N.M. 471, 853 P.2d 722. Motion tests legal sufficiency of complaint. - A motion to dismiss a complaint for failure to state a claim upon which relief can be granted merely tests the legal sufficiency of the complaint. McNutt v. New Mexico State Tribune Co., 1975-NMCA-085, 88 N.M. 162, 538 P.2d 804, cert. denied, 88 N.M. 318, 540 P.2d 248. The purpose of a motion under Subdivision (b)(6) (see now Paragraph B(6)) is to test the formal sufficiency of the statement of the claim, that is, to test the law of the claim, not the facts that support it. Gonzales v. United States Fid. & Guar. Co., 1983-NMCA-016, 99 N.M. 432, 659 P.2d 318. Motion for failure to state claim admits well-pleaded facts. - A motion to dismiss for failure to state a claim upon which relief can be granted admits well pleaded facts. Stryker v. Barbers Super Mkts., Inc., 1969-NMCA-119, 81 N.M. 44, 462 P.2d 629. Accept as true all facts well pleaded. - The trial court having granted a motion to dismiss for failure to state a claim upon which relief can be granted, the applicable rule to be followed is to accept as true all facts well pleaded and question only whether the plaintiff might prevail under any state of facts provable under the claim. Gomez v. Board of Educ., 1973-NMSC-116, 85 N.M. 708, 516 P.2d 679; Garcia v. Rodey, Dickason, Sloan, Akin & Robb, 1988-NMSC-014, 106 N.M. 757, 750 P.2d 118. In considering a motion to dismiss for failure to state a claim for which relief can be granted, all facts well pleaded must be accepted as true, and the motion may be granted only when it appears the plaintiff cannot be entitled to relief under any state of facts provable under the claim. Runyan v. Jaramillo, 1977-NMSC-061, 90 N.M. 629, 567 P.2d 478; Candelaria v. Robinson, 1980-NMCA-003, 93 N.M. 786, 606 P.2d 196; State ex rel. Risk Mgt. Div. of Dep't of Fin. & Admin. v. Gathman-Matotan Architects & Planners, Inc., 1982-NMCA-130, 98 N.M. 790, 653 P.2d 166. The applicable rule in granting a motion to dismiss on the pleadings is to accept for purposes of the motion to dismiss as true all facts well pleaded and question only whether plaintiff might prevail under any state of facts provable under the claim. Groendyke Transp., Inc. v. New Mexico SCC, 1973-NMSC-112, 85 N.M. 718, 516 P.2d 689. In considering whether a complaint states a claim upon which relief can be granted, courts accept as true all facts well pleaded. Ramsey v. Zeigner, 1968-NMSC-145, 79 N.M. 457, 444 P.2d 968; Hall v. Budagher, 1966-NMSC-152, 76 N.M. 591, 417 P.2d 71, overruled on other grounds, Lopez v. Maez, 1982-NMSC-103, 98 N.M. 625, 651 P.2d 1269. In considering whether a complaint states a cause of action, the court must accept as true all facts well pleaded. Jones v. International Union of Operating Engr's Local 876, 1963-NMSC-118, 72 N.M. 322, 383 P.2d 571; McCasland v. Prather, 1978-NMCA-098, 92 N.M. 192, 585 P.2d 336; Las Luminarias of N.M. Council of Blind v. Isengard, 1978-NMCA-117, 92 N.M. 297, 587 P.2d 444. When considering a motion to dismiss under Subdivision (b)(6) (see now Paragraph B(6)), the well pleaded facts alleged in the complaint are taken as true. The motion should not be granted unless the court determines that the plaintiffs cannot obtain relief under any state of facts provable under the alleged claims. State ex rel. Risk Mgt. Div. of Dep't of Fin. & Admin. v. Gathman-Matotan Architects & Planners, Inc., 1982-NMCA-130, 98 N.M. 790, 653 P.2d 166. A motion to dismiss under Paragraph B(6) is properly granted only when it appears that plaintiff cannot recover or be entitled to relief under any state of facts provable under the claim. In ruling upon a motion to dismiss for failure to state a claim upon which relief may be granted, all facts which are well pled are assumed true, and the complaint must be construed in a light most favorable to the party opposing the motion and with all doubts resolved in favor of the sufficiency of the complaint. Shea v. H.S. Pickrell Co., 1987-NMCA-149, 106 N.M. 683, 748 P.2d 980. For purposes of a motion to dismiss under Subdivision B(6), all well-pleaded facts in the complaint are taken as true. Fasulo v. State Farm Mut. Auto. Ins. Co., 1989 -NMSC-060, 108 N.M. 807, 780 P.2d 633. The supreme court, in reviewing the dismissal of a complaint for failure to state a claim upon which relief may be granted, accepts as true all facts well pleaded and questions only whether the plaintiff might prevail under any state of facts provable under the claim. California First Bank v. State, Dep't of ABC, 1990-NMSC-106, 111 N.M. 64, 801 P.2d 646. Facts well pleaded treated as facts upon which case rests. - Where a complaint is challenged on the ground that it fails to state a claim upon which relief can be granted, facts well pleaded are to be treated as the facts upon which the case rests. Balizer v. Shaver, 1971-NMCA-010, 82 N.M. 347, 481 P.2d 709. Complaint construed in favor of opposition before motion denied. - In denying a motion to dismiss the complaint for failure to state a claim upon which relief can be granted, the complaint must be construed in a light most favorable to opposing party and with all doubts resolved in favor of its sufficiency. Pillsbury v. Blumenthal, 1954-NMSC-066, 58 N.M. 422, 272 P.2d 326. Denial of motion not adjudication on merits. - The denial by the trial court of the defendants' motion to dismiss does not constitute an adjudication on the merits and does not operate as res judicata so as to restrict the trial court's consideration of the subsequent motions for summary judgment. McNutt v. New Mexico State Tribune Co., 1975-NMCA-085, 88 N.M. 162, 538 P.2d 804, cert. denied, 88 N.M. 318, 540 P.2d 248. Dismissal of contract claim under Subdivision (b)(6) (see now Paragraph B(6)) is legal, not evidentiary, determination. Vigil v. Arzola, 1984-NMSC-090, 101 N.M. 687, 687 P.2d 1038. Motion improper where complaint sought to void judgment in another suit. - Defendants' motion to dismiss plaintiffs' complaint should not have been granted where the complaint sought not only to have the judgment in another suit declared void, but sought other relief, including the equitable relief which was granted. The complaint should not have been dismissed for failure to state a claim upon which relief could be granted. Apodaca v. Town of Tome Land Grant, 1971-NMSC-084, 83 N.M. 55, 488 P.2d 105. Where party is not named. - Defendants' motion to dismiss plaintiffs' complaint should not have been granted where at least one of the named plaintiffs in the suit in question was not named as a party in another suit. Apodaca v. Town of Tome Land Grant, 1971-NMSC-084, 83 N.M. 55, 488 P.2d 105. Error to dismiss where defendant's motion admits all material allegations. - Defendant's motion to dismiss admitted all well pleaded material allegations. Defendant's admissions established liability for the death of plaintiff's husband and sufficiently established plaintiff's right to compensation. The trial court erred in dismissing the petition for failure to state a claim upon which relief could be granted. Villegas v. American Smelting & Ref. Co., 1976-NMCA-068, 89 N.M. 387, 552 P.2d 1235. Error to dismiss where provable fact exists. - A motion to dismiss is properly granted only when it appears that plaintiff cannot recover under any state of facts provable under the claim. That decedent was last injuriously exposed to the hazards of employment resultant in cancer while employed by the first of two companies operating a uranium mine was a fact provable under plaintiff's claim and the judgment dismissing the complaint against first company was reversed. McCormick v. United Nuclear Corp., 1974-NMCA-151, 87 N.M. 274, 532 P.2d 203. Motion improperly granted in Workers' Compensation Delgado claim. - Where worker's allegations were that employer was notified that the specific equipment worker was required to use was dangerous and had nearly caused serious injuries to several employees, that employer required worker to use the equipment in spite of this knowledge and over worker's objections, and as a result, worker was severely injured using the equipment, worker alleged facts sufficient to put the defendant on notice of his claims and to survive a pre-trial dispositive motion, and therefore worker satisfied the requirements of a claim under Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272. Richey v. Hammond Conservancy Dist., 2015-NMCA-043. Improperly granted against conversion claim. - The trial court erred in granting a dismissal motion where defendant's counterclaim alleged sufficient facts to state a claim for conversion. AAA Auto Sales & Rental, Inc. v. Security Fed. Sav. & Loan Ass'n, 1992-NMCA-130, 114 N.M. 761, 845 P.2d 855. Claim of conversion was not preempted under the federal Copyright Act. - Where plaintiff, who was an optometrist, stopped working at defendant's place of business; defendant, without authorization by plaintiff, copied plaintiff's patient files; and plaintiff sued defendant for conversion, the federal Copyright Act, 17 U.S.C. §§ 301(a) (1998), did not preempt plaintiff's state law claim for conversion because plaintiff's patient files were fact-based compilations of patient information that lacked originality and did not fall within the general scope of copyright protection and because the elements of plaintiff's conversion claim were concerned with dominion and interference with ownership rights in tangible property and were not equivalent to the elements of copyright infringement. Muncey v. Eyeglass World, LLC, 2012-NMCA-120, 289 P.3d 1255, cert. denied, 2012-NMCERT-011. Claim of negligence for selling firearm and accessory prohibited by federal Protection of Lawful Commerce in Arms Act. - Trial court erred in denying motion to dismiss for failure to state a claim upon which relief can be granted where federal Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§ 7901-03 (2012), required that a qualified civil liability action be dismissed when the claimed harm was caused solely by the criminal or unlawful misuse of firearm products. Sambrano v. Savage Arms, Inc., 2014-NMCA-113. Where intruder entered home of victim, took possession of rifle with a lock, broke the lock and subsequently killed the victim, the Court of Appeals held that the federal Protection of Lawful Commerce in Arms Act, 15 U.S.C. §§ 7901-03 (2012), insulated a firearm manufacturer from suit when harm was caused solely by the criminal or unlawful misuse of firearm products when the firearm product functioned as designed and intended. Sambrano v. Savage Arms, Inc., 2014-NMCA-113. Claim of negligence not preempted by Federal Aviation Administration Authorization Act. - Where plaintiffs, owners of an airplane, sued defendant towing company on claims for negligence, breach of implied contract and breach of the implied covenant of good faith and fair dealing after the airplane caught fire and was completely destroyed while being towed by defendant, the district court erred in granting defendant?s motion to dismiss on the ground that the Federal Aviation Administration Authorization Act (FAAAA), 49 U.S.C. §§ 14501 (2012), preempted plaintiffs? claims, because the FAAAA, which prohibits state laws related to price, route, or service of any motor carrier, does not preempt state laws affecting carrier prices, routes, and services in only a tenuous, remote, or peripheral manner, and although plaintiffs? negligence claim relates to the transportation of property, the relationship between plaintiffs? negligence action to a motor carrier?s prices, routes, and services are too tenuous to be preempted by the FAAA. Schmidt v. Tavenner?s Towing & Recovery, 2019-NMCA-050. Arbitration was not available as a defense. - Where defendants offered investment packages to the public that consisted of interests in real property; plaintiff invested in three properties; defendants created the third parties to act as the seller of the real property; the purchase agreements contained arbitration clauses; plaintiff sued defendants for violations of the New Mexico Securities Act of 1986, Section 58-13B-1 NMSA 1978 et seq. [repealed]; plaintiff did not assert any claims against the third parties or allege any interdependent or concerted misconduct between defendants and the third parties; defendants filed complaints against the third parties for indemnity on the ground that the third parties sold the real property interests that comprised the alleged securities that plaintiff bought; defendants asserted the affirmative defense that plaintiff's claims were subject to the arbitration clauses in the purchase agreements; and the third parties filed a motion to compel arbitration on all disputes, defendants did not have an independent right to compel arbitration because the alleged violations of the Securities Act did not hinge on the terms of the purchase agreements and the third parties could not assert the arbitration defense because it could not be independently asserted by defendants. Frederick v. Sun 1031, LLC, 2012-NMCA-118, 293 P.3d 934. Subsequent motion to dismiss nullity where original rendered functus officio. - The trial court's order of January 31, 1974, dismissing the complaint as to certain of the plaintiffs was a nullity since the prior motion to dismiss of July 11, 1972, was rendered functus officio by the court's order denying it on November 6, 1972. McNutt v. New Mexico State Tribune Co., 1975-NMCA-085, 88 N.M. 162, 538 P.2d 804, cert. denied, 88 N.M. 318, 540 P.2d 248. Possibility of recovery bars dismissal. - As there are circumstances where a failure to read a contract, before signing it, does not bar recovery for fraud, therefore, under facts provable under the claim, plaintiff might recover even though he failed to read the contract, and the trial court erred in dismissing on this ground. Pattison v. Ford, 1971-NMCA-070, 82 N.M. 605, 485 P.2d 361. Motion to dismiss available where only questions of law present. - Where the pleadings (as well as documentary evidence) indicated that the employer of an injured minor employee qualified under Workmen's Compensation Act and that the injured employee who had not given notice of election not to come under the act had received compensation, the case could be dismissed on motion since only questions of law were presented. Benson v. Export Equip. Corp., 1945 -NMSC-044, 49 N.M. 356, 164 P.2d 380. Allegations of dismissed complaint taken as true for appeal purposes. - Where a trial court grants a motion to dismiss for failure to state a claim, the allegations of the complaint must be taken as true for the purposes of an appeal. Bottijliso v. Hutchison Fruit Co., 1981-NMCA-101, 96 N.M. 789, 635 P.2d 992, overruled on other grounds, Michaels v. Anglo Am. Auto Auctions, Inc., 1994-NMSC-015, 117 N.M. 91, 869 P.2d 279 (1994). In order to survive motion to dismiss tort claim under Paragraph B(6) of this rule, a plaintiff must allege all three elements: wilful conduct in the employer's conduct, the employer's state of mind, and a casual connection between the employer's intent and the injury. Morales v. Reynolds, 2004-NMCA-098, 136 N.M. 280, 97 P.3d 612, cert. denied, 2004-NMCERT-008. Paragraph B inapplicable to Workmen's Compensation Act. - The supreme court held that Subdivision (b) (see now Paragraph B) was inconsistent with the express provisions of the Workmen's Compensation Act, and that so far as pleadings are concerned, the Workmen's Compensation Act is complete in itself and the provisions thereof have not been modified by the rules. Henriquez v. Schall, 1961-NMSC-008, 68 N.M. 86, 358 P.2d 1001. Since the Workmen's Compensation Act is complete in itself its provisions have not been modified with respect to the pleadings by the Rules of Procedure promulgated by the supreme court. Guthrie v. Threlkeld Co., 1948-NMSC-017, 52 N.M. 93, 102 P.2d 307. Motion to dismiss proper when Workmen's Compensation Act not involved. - When plaintiff's claim shows on its face that defendant was not at time of the accident engaged in extra-hazardous occupation so as to bring it under Workmen's Compensation Act, motion to dismiss is proper. Hernandez v. Border Truck Line, 1946-NMSC-002, 49 N.M. 396, 165 P.2d 120. Motion to dismiss for sovereign immunity proper. - The plaintiff's naming of the Pueblo of Acoma as the defendant, together with the long recognized policy of judicial notice of Pueblo Indian tribes, established the factual basis for the Pueblo's motion to dismiss on the grounds of sovereign immunity. No sworn testimony was necessary to establish that the defendant was indeed a Pueblo Indian tribe. Padilla v. Pueblo of Acoma, 1988-NMSC-034, 107 N.M. 174, 754 P.2d 845, cert. denied, 490 U.S. 1028, 109 S. Ct. 1767, 104 L. Ed. 2d 202 (1989). Objections to complaint raised throughout proceedings. - The objection that the complaint fails to state a cause of action may be raised at any stage of the proceedings, even for the first time in the supreme court. Jernigan v. Clark & Day Exploration Co., 1959-NMSC-033, 65 N.M. 355, 337 P.2d 614. Under Code 1915, §4114 (105-415, C.S. 1929), an objection that the complaint fails to state facts sufficient to constitute a cause of action can be raised at any time. Jamison v. McMillen, 1920-NMSC-048, 26 N.M. 231, 190 P. 726 (decided under former law). Including jurisdictional questions. - Failure of complaint to show any interest in plaintiff entitling him to relief is a failure to state facts sufficient to constitute a cause of action, a jurisdictional question which may be raised at any time. Asplund v. Hannett, 1926-NMSC-040, 31 N.M. 641, 249 P. 1074 (decided under former law). If defendant fails to object to the complaint and litigates the material facts omitted therefrom, he cannot after judgment raise the question of the insufficiency of the complaint, and on appeal the complaint would be amended to conform to the facts proven. Jamison v. McMillen, 1920-NMSC-048, 26 N.M. 231, 190 P. 726 (decided under former law). Possibility that complaint if amended would afford relief will not aid plaintiff. - If the plaintiff elects to stand upon a complaint, as drawn, unless it states a cause of action so viewed, the possibility that it might have been amended to state a claim upon which relief could be granted will not aid the plaintiff. Martinez v. Cook, 1952-NMSC-034, 56 N.M. 343, 244 P.2d 134; Eyring v. Board of Regents, 1954-NMSC-123, 59 N.M. 3, 277 P.2d 550. Waiving objection by answering on merits abandons motion. - Defect appearing on face of complaint was a ground of demurrer (now motion to dismiss) under Code 1915, §4110, 105-411, C.S. 1929. Defendants abandoned their demurrer (motion) by answering on the merits after their demurrer (motion) was overruled. Defendants, having waived the objection, could not take advantage of it upon trial by objecting to admission of evidence. To have made the objection available, defendants should have stood upon their demurrer (motion). Territory ex rel. Baca v. Baca, 1913-NMSC-044, 18 N.M. 63, 134 P. 212 (decided under former law). Effect of affirmative action joined with jurisdictional defense. - Subdivision (b) (see now Paragraph B) provides that a jurisdictional defense is not waived by being joined with other defenses and objections. It does not refer to an affirmative action being joined with a jurisdictional defense. Where defendants' third-party complaint was a permissive pleading, such action invoked the jurisdiction of the district court over the defendants personally, and therefore waived the defense of jurisdiction over the person of each defendant. Williams v. Arcoa Int'l, Inc., 1974-NMCA-037, 86 N.M. 288, 523 P.2d 23, cert. denied, 86 N.M. 281, 523 P.2d 16. Claim of no jurisdiction over person not waived when joined with other defenses. Williams v. Arcoa Int'l, Inc., 1974-NMCA-037, 86 N.M. 288, 523 P.2d 23, cert. denied, 86 N.M. 281, 523 P.2d 16. A challenge to venue cannot be raised after filing an answer to the complaint; therefore, the defendant's venue argument failed. Manouchehri v. Heim, 1997-NMCA-052, 123 N.M. 439, 941 P.2d 978. Denial in answer of sufficient information does not constitute negative averment. - The denial in an answer of sufficient information on which to base a conclusion is not a specific negative averment which places in issue the capacity of a plaintiff to sue in its capacity as a corporation. A denial in an answer of information or knowledge sufficient to form a belief as to the truth of an allegation of plaintiff's corporate existence does not put such allegation in issue. Consolidated Placers, Inc. v. Grant, 1944-NMSC-040, 48 N.M. 340, 151 P.2d 48. Default judgment brought where propriety of motion unresolved. - In an action in attachment where defendant appears and moves to quash a writ, but does not plead to the complaint, a judgment by default on the case in chief may be properly entered against him, although the motion to quash the writ is still undetermined. First Nat'l Bank v. George, 1920-NMSC-025, 26 N.M. 46, 189 P. 240. See also Enfield v. Stewart, 1918-NMSC-100, 24 N.M. 472, 174 P. 428 (decided under former law). Motion to set aside default constituted motion to dismiss. - The trial court's dismissal of a forfeiture petition without requiring the respondent to answer was not error since the respondent's motion to set aside the default judgment and for return of the property constituted a motion to dismiss and no answer was required. Forfeiture of Fourteen Thousand Six Hundred Thirty Nine Dollars ($14,639) in United States Currency v. Martinez, 1995-NMCA-088, 120 N.M. 408, 902 P.2d 563. Motion treated as summary judgment although mislabeled. - A motion will be treated as one for summary judgment when certain criteria are met even though the motion is called one for failure to state a claim upon which relief can be granted. Shriners Hosps. for Crippled Children v. Kirby Cattle Co., 1976-NMSC-013, 89 N.M. 169, 548 P.2d 449. When motion to dismiss treated as summary judgment. - When matters outside the pleadings are presented to and not excluded by the court, a motion to dismiss is treated as one for summary judgment. Gonzales v. Gackle Drilling Co., 1962-NMSC-063, 70 N.M. 131, 371 P.2d 605. Where matters outside the pleadings are considered on a motion to dismiss for failure to state a claim, the motion becomes one for summary judgment. Knippel v. Northern Communications, Inc., 1982-NMCA-009, 97 N.M. 401, 640 P.2d 507. Where the trial court granted defendant's motion to dismiss for failure to state a claim upon which relief could be granted because the court had considered matters presented therein in a prior action, the disposition would be treated as a summary judgment as provided for in Paragraph C. Citizens Bank v. Teel, 1987-NMSC-087, 106 N.M. 290, 742 P.2d 502. When a Paragraph B(6) motion to dismiss, upon the presentation of matters outside the pleadings, is treated as a motion for summary judgment, the standard of review is whether there exists a genuine issue of material fact, instead of accepting all well-pleaded facts as true and ascertaining whether the plaintiff is entitled to relief on the pleadings. Graff v. Glennen, 1988-NMSC-005, 106 N.M. 668, 748 P.2d 511. Defendant's motion to dismiss for failure to state a claim upon which relief can be granted was correctly treated as a motion for summary judgment, even though no answer to the amended complaint was filed, where matters outside the pleadings were presented to the trial court and both parties had adequate notice to present all pertinent material at the hearing. Peck v. Title USA Ins. Corp., 1988 -NMSC-095, 108 N.M. 30, 766 P.2d 290. The general rule is that where matters outside of the pleadings are considered, a motion to dismiss is treated as a motion for summary judgment. DiMatteo v. County of Doña Ana ex rel. Bd. of Cnty. Comm'rs, 1989-NMCA-108, 109 N.M. 374, 785 P.2d 285. Conversion of motion to dismiss to one for summary judgment. - When a Rule 1-012B NMRA motion to dismiss is converted into a summary judgment motion and the movant has satisfied its burden under Rule 1-056 NMRA, establishing a prima facie case for summary judgment, the opposing party must come forward and show the existence of a genuine issue of material fact rendering summary judgment inappropriate. Hern v. Crist, 1987-NMCA-019, 105 N.M. 645, 735 P.2d 1151. IV. MOTION FOR JUDGMENT ON THE PLEADINGS. The district court is not required to consider the merits of plaintiff's allegations when deciding a motion to dismiss. - The federal dismissal standard under Federal Rule of Civil Procedure 12(b)(6) is not applicable to the notice-pleading requirement of Rule 1-012(B)(6) NMRA. In considering a motion to dismiss, the district court tests the legal sufficiency of the complaint, not the factual allegations of the complaint, which, for purposes of ruling on the motion, the court must accept as true. Madrid v. Village of Chama, 2012-NMCA-071, 283 P.3d 871, cert. denied, 2012-NMCERT-006. Plaintiff's factual allegations satisfied the notice requirement of the rule. - Where plaintiff's employment with the municipality was terminated; plaintiff sued the municipality for breach of an implied employment contract; plaintiff's complaint alleged that the municipal ordinance and other documents, which set forth the reasons for just cause termination, established an implied contract, that the municipality breached the implied contract by failing to warn employees of the offenses that could result in disciplinary action, failing to conduct an impartial investigation, and failing to conduct pre-termination and post-termination hearings in accordance with the ordinance, that the municipality issued a termination letter after the deadline set in the ordinance, and that the mayor was allowed to attend the post-termination hearing; and that municipality breached the covenant of good faith and fair dealing contained in the implied contract, plaintiff's complaint stated a claim for breach of implied contract and breach of covenant of good faith and fair dealing upon which relief could be granted, because the complaint set forth factual allegations of the incidents giving rise to plaintiff's claims and gave the municipality adequate notice of the legal claims asserted against it. Madrid v. Village of Chama, 2012-NMCA-071, 283 P.3d 871, cert. denied, 2012-NMCERT-006. Waiver of sovereign immunity. - Where decedent was employed in the gift shop of a tribal casino; the manager of the gift shop, decedent and another employee consumed a quart of rum at work; at the end of decedent's shift, decedent clocked out and returned to the gift shop to talk to the manager about a promotion; and decedent left the casino and was killed in an automobile accident, to the extent that decedent was not within the scope of employment for purposes of the Workers' Compensation Act, plaintiffs' wrongful death claim on behalf of decedent, who was a person lawfully on the premises with the permission of the casino, was well pleaded as a claim that fell under the waiver of tribal sovereign immunity provision of the Indian Gaming Compact and dismissal of the wrongful death claim was not proper. Guzman v. Laguna Development Corp., 2009-NMCA-116, 147 N.M. 244, 219 P.3d 12. Judicial immunity. - Where plaintiff was the subject of an abuse and neglect proceeding that resulted in plaintiff's placement with adoptive parents; plaintiff's adoptive mother relinquished custody of plaintiff to the Children, Youth and Families Department which filed a petition for court-ordered family services on plaintiff's behalf; the court appointed an attorney to represent plaintiff during the proceeding pursuant to a youth-attorney contract; the district court permitted the attorney to withdraw as plaintiff's counsel; the matter was dismissed because plaintiff reached the age of eighteen; and plaintiff alleged that the Administrative Office of the Courts, the Twelfth Judicial District Court, state employees and the Department breached the youth-attorney contract and violated plaintiff's constitutional rights by failing to arrange for competent counsel for plaintiff, oversee the attorney's performance, and ensure that substitute counsel was provided after the attorney was allowed to withdraw, the defendants were entitled to judicial immunity because the acts alleged by plaintiff were judicial functions. Hunnicutt v. Sewell, 2009-NMCA-121, 147 N.M. 272, 219 P.3d 529. Motion to dismiss treated as motion for summary judgment. Emery v. University of N.M. Med. Ctr., 1981 -NMCA-059, 96 N.M. 144, 628 P.2d 1140; Hollars v. Southern Pac. Transp. Co., 1989 -NMCA-105, 110 N.M. 103, 792 P.2d 1146. Where summary judgment motion serves same function as Paragraph C motion. - Where a motion for summary judgment is made solely on the pleadings without supporting affidavits, it serves the same function as a motion for judgment on the pleadings. Matkins v. Zero Refrigerated Lines, 1979-NMCA-095, 93 N.M. 511, 602 P.2d 195. Burden of proof where jurisdiction challenged. - Once the question of jurisdiction is properly raised under Paragraph B(2) of this rule, the burden of supporting the jurisdictional allegations shifts to the party asserting jurisdiction, although, if there is no evidentiary hearing, the burden on that party is somewhat lessened in that the trial court will consider the affidavits in the light most favorable to that party. Tercero v. Roman Catholic Diocese, 1999-NMCA-052, 127 N.M. 294, 980 P.2d 77, rev'd on other grounds, 2002-NMSC-018, 132 N.M. 312, 48 P.3d 50. Where court considers matters outside pleading, summary judgment appropriate. - Where both parties filed a motion for judgment in accordance with this rule and trial court considered a copy of a grant of a right-of-way easement, and certain answers made by appellant to interrogatories, motion was considered as being one for summary judgment under Rule 56 (see now Rule 1-056 NMRA). Wheeler v. Board of Cnty. Comm'rs, 1964-NMSC-081, 74 N.M. 165, 391 P.2d 664. When matters outside the pleadings are considered on a motion to dismiss, the motion will be treated as one for summary judgment. Transamerica Ins. Co. v. Sydow, 1981-NMCA-121, 97 N.M. 51, 636 P.2d 322. Error not to permit adverse party opportunity to present material. - To treat a motion to dismiss as a motion for summary judgment without permitting the adverse party a reasonable opportunity to present pertinent material is error. Santistevan v. Centinel Bank, 1980-NMCA-161, 96 N.M. 734, 634 P.2d 1286, aff'd in part, rev'd on other grounds, 1981-NMSC-092, 96 N.M. 730, 634 P.2d 1282. Summary judgment appropriate motion to dismiss divorce action. - Where the court considered the proceedings in a prior divorce action between defendant and her former husband in addition to the pleadings of the present action, case was dismissed under Rule 56 (see now Rule 1-056 NMRA), not this rule. Richardson Ford Sales v. Cummins, 1964-NMSC-128, 74 N.M. 271, 393 P.2d 11. Scope of indemnity. - Where lease covered restaurant portion only of lessor's property and required lessee to indemnify lessor from claims arising from lessee's operation of the restaurant, but did not exclude coverage for lessor's own negligence, the indemnification was broad enough to permit lessor to state a claim against the lessee for indemnification from the claim of a restaurant customer who was injured in lessor's parking lot. Krieger v. Wilson Corp., 2006-NMCA-034, 139 N.M. 274, 131 P.3d 661, cert. granted, 2006-NMCERT-003. Scope of insurance coverage. - Where lease covered restaurant portion only of lessor's property and required lessee to indemnify lessor from claims arising from lessee's operation of the restaurant and where lessee's insurance policy, which did not name lessor as an insured, provided coverage for liabilities that lessee assumed under the lease, lessee's obligation to indemnify lessor was broad enough to permit lessor to state a claim against the lessee's insuror for indemnification against the claim of a restaurant customer who was injured in the lessor's parking lot. Krieger v. Wilson Corp., 2006-NMCA-034, 139 N.M. 274, 131 P.3d 661, cert. granted, 2006-NMCERT-003. Church autonomy doctrine. - A claim of constitutional immunity based on the church autonomy doctrine should be treated in the first instance as a motion to dismiss for failure to state a cause of action under Rule 1-012(B)(6) NMRA, rather than as a motion for summary judgment under Rule 1-056 NMRA, because the court does in fact have jurisdiction to consider the constitutional claim. Celnik v. Congregation B'Nai Israel, 2006-NMCA-039, 139 N.M. 252, 131 P.3d 102. Breach of implied contract in private procurement process. - A disappointed bidder is not barred as a matter of law from bringing a claim based on an implied-in-fact contract in the context of the private procurement process because an implied-in-fact contract may arise in the private procurement process if a solicitor of bids makes specific representations regarding the processes by which it will select a bid and a bidder reasonably relies on those representations in deciding to bid. Orion Technical Res., LLC v. Los Alamos Nat'l Sec., LLC, 2012-NMCA-097, 287 P.3d 967. Where defendant issued a request for proposals for a subcontract to provide vendor management and staff augmentation services; and plaintiff alleged that defendant had an implied-in-fact contract with plaintiff that arose out of the RFP process when defendant assured bidders that the solicitation process would be fair, competitive, and negotiated, that plaintiff relied on the implied-in-fact contract when it submitted a bid, and that defendant breached the implied-in-fact contract when defendant deviated from the selection process and criteria set out in its RFP and source selection plan by engaging in discussions with one bidder and awarding the contract to a bidder that did not meet the requirements of the RFP and by failing to follow established customs and norms of procurement and acquisitions practices that provide for a full, open, and competitive process, plaintiff's claim for breach of implied-in-fact contract was not barred as a matter of law. Orion Technical Res., LLC v. Los Alamos Nat'l Sec., LLC, 2012-NMCA-097, 287 P.3d 967. Damages for breach of implied contract in private procurement process. - A disappointed bidder in a private procurement process may pursue a claim for expectation damages as well as reliance damages. Orion Technical Res., LLC v. Los Alamos Nat'l Sec., LLC, 2012-NMCA-097, 287 P.3d 967. V. MOTION FOR MORE DEFINITE STATEMENT. Paragraph E offers greater particularity. - Subdivision (e) (see now Paragraph E) offers to the party who desires greater particularity before answering whatever aid is needed. Ritter v. Albuquerque Gas & Elec. Co., 1943-NMSC-035, 47 N.M. 329, 142 P.2d 919. Supplying definite statement voluntarily does not limit its effect. Kisella v. Dunn, 1954-NMSC-099, 58 N.M. 695, 275 P.2d 181. Motion in order where allegations verbose, etc. and procedural rule disregarded. - Where complaints disclose flagrant disregard of Rule 10(b) (see now Rule 1-010 NMRA) and it also appears that many of the allegations contain verbose, redundant and immaterial allegations which makes framing of a responsive pleading exceedingly difficult, a more definite statement of the claims is in order under Subdivision (e) (see now Paragraph E). Peoples v. Peoples, 1963-NMSC-067, 72 N.M. 64, 380 P.2d 513. Motion denied where defendants fully informed of cause of action. - Where a bank statement itemizing all credits and debits from the time an account was opened until it was closed is attached to a complaint of a bank against joint depositors to recover moneys from an overdraft, defendants were fully informed of the basis, nature and purpose of plaintiff's cause of action and the denial of a motion for more definite statement was proper. Bank of N.M. v. Pinion, 1953-NMSC-058, 57 N.M. 428, 259 P.2d 791. Intermingling of counts should be raised by motion to make more definite and certain. Valdez v. Azar Bros., 1928-NMSC-007, 33 N.M. 230, 264 P. 962. VI. MOTION TO STRIKE. Generally. - Complaints that are replete with redundant, immaterial, impertinent and scandalous matter are properly stricken under Subdivision (f) (see now Paragraph F). Peoples v. Peoples, 1963-NMSC-067, 72 N.M. 64, 380 P.2d 513. Amended answer. - District court did not err when it did not accept portions of an amended answer to an amended complaint which changed responses to identical allegations in the original complaint and the district court did not abuse its discretion in striking such portions. Gonzales v. Lopez, 2002-NMCA-086, 132 N.M. 558, 52 P.3d 418. Entire complaint not stricken. - Generally, the entire complaint will not be stricken under Subdivision (f) (see now Paragraph F). Only those matters improperly pleaded, or which have no bearing on the lawsuit, should be stricken. Peoples v. Peoples, 1963-NMSC-067, 72 N.M. 64, 380 P.2d 513; DiMatteo v. County of Doña Ana ex rel. Bd. of Cnty. Comm'rs, 1989-NMCA-108, 109 N.M. 374, 785 P.2d 285. If movant knows of specific matters, then motion unnecessary. - It is not error to overrule a motion to make more definite and certain, if the matters sought to be made more specific are within the knowledge of the movant. Sherman v. Hicks, 1908-NMSC-019, 14 N.M. 439, 94 P. 959 (decided under former law). When court errs in striking defense. - The trial court erred in striking the defense that a settlement between the parties to an accident, without an express reservation of rights against the party executing the release, operates as an accord and satisfaction of all claims arising out of the accident and bars either party from later suing the other (or the employer of the other under a respondeat superior theory). Harrison v. Lucero, 1974-NMCA-085, 86 N.M. 581, 525 P.2d 941. No review of court's refusal to strike if movant not prejudiced. - The court's refusal to strike out portions of a complaint as redundant or as legal conclusions will not be reviewed, where not prejudicial to the substantial rights of the moving party. Smith v. Hicks, 1908-NMSC-029, 14 N.M. 560, 98 P. 138 (decided under former law). VII. WAIVER OR PRESERVATION OF CERTAIN DEFENSES. Waiver of defense of lack of jurisdiction by conduct. - Where the defendant's conduct, which included the filing of a motion for summary judgment and a motion to dismiss and participation in certain aspects of the pretrial process, was defensive in nature and did not entail a request for affirmative relief from the trial court, the defendant did not waive the defendant's defense of lack of personal jurisdiction. Capco Acquiscub, Inc. v. Greka Energy Corp., 2008-NMCA-153, 145 N.M. 328, 198 P.3d 354. Courts generally hold that failure to plead affirmative defense results in waiver of that defense and that it is excluded as an issue. United Nuclear Corp. v. General Atomic Co., 1979-NMSC-036, 93 N.M. 105, 597 P.2d 290, cert. denied, 444 U.S. 911, 100 S. Ct. 222, 62 L. Ed. 2d 145 (1979). Although the summons served upon a father in a termination of parental rights action did not meet the requirements of Paragraph C, there was no showing that the father was prejudiced by the various errors in the notice. Ronald A. v. State ex rel. Human Servs. Dep't, 1990-NMSC-071, 110 N.M. 454, 794 P.2d 371. Question of improper joinder waived unless raised before or by answer. - Where objection to the joinder of an unrelated claim by third-party complaint is not made until the conclusion of plaintiff's case, the question of improper joinder is waived unless the question is waived unless the question is raised by motion before answer or by the answer itself, and such objection comes too late if made after trial has commenced on the merits. Hancock v. Berger, 1967-NMSC-007, 77 N.M. 321, 422 P.2d 359. Failure to plead defense of statute of limitations amounts to a waiver under Subdivision (h) (see now Paragraph H) and it is error for the trial court to consider the same as long as the pleadings have not been amended. Electric Supply Co. v. United States Fid. & Guar. Co., 1969-NMSC-003, 79 N.M. 722, 449 P.2d 324. Failure to plead arbitration clause as a defense considered waiver of the party's rights arising under such clause. United Nuclear Corp. v. General Atomic Co., 1979-NMSC-036, 93 N.M. 105, 597 P.2d 290, cert. denied, 444 U.S. 911, 100 S. Ct. 222, 62 L. Ed. 2d 145 (1979). Failure to raise defense of insufficiency of service of process. - Defendants failed to state a legal defense by failing to raise insufficiency of service of process in accordance with the procedures of Paragraphs G and H(1), and by alerting the trial court to defendants' failure before a trial on the merits, plaintiff validly asserted her defense to defendants' "insufficient defense," i.e., she did not waive her waiver argument. Rupp v. Hurley, 1999-NMCA-057, 127 N.M. 222, 979 P.2d 733. Amendment of pleadings to include defense discretionary. - While it is true that under Rule 8(c) (see now Rule 1-008 NMRA) a party should set forth affirmatively the defense of the statute of limitations, and generally this defense is waived if it is not asserted in a responsive pleading under Subdivision (h) (see now Paragraph H), trial courts may allow the pleadings to be amended to set up this defense. Chavez v. Kitsch, 1962-NMSC-122, 70 N.M. 439, 374 P.2d 497; Berry v. Meadows, 1986-NMCA-002, 103 N.M. 761, 713 P.2d 1017 (decided under former law). Court may allow amendment of pleadings to set up statute of limitations defense, although generally it is true the defense is waived under Subdivision (h) (see now Paragraph H) if not asserted in a responsive pleading. Apodaca v. Unknown Heirs of Tome Land Grant, 1982-NMSC-100, 98 N.M. 620, 651 P.2d 1264. Question of capacity to sue waived after answer. - The capacity of plaintiff to sue is raised by answer or motion except when jurisdiction of the court is involved; question of capacity is waived after answer is filed. Hugh K. Gale Post No. 2182 VFW v. Norris, 1949-NMSC-003, 53 N.M. 58, 201 P.2d 777 (decided under former law). An attack on subject matter jurisdiction may be made at any time in the proceedings. It may be made for the first time upon appeal, or it may be made by a collateral attack in the same or other proceedings long after the judgment has been entered. Chavez v. County of Valencia, 1974-NMSC-035, 86 N.M. 205, 521 P.2d 1154. Although jurisdiction over the person can clearly be waived, subject matter jurisdiction can be raised at any time during the proceedings. Kalosha v. Novick, 1973-NMSC-010, 84 N.M. 502, 505 P.2d 845. All affirmative defenses must be raised either in the responsive pleading to a complaint or by separate motion, and be decided prior to the entry of judgment; the only defense which is not waived by failure to assert it prior to judgment is lack of subject-matter jurisdiction, and that defense may even be raised for the first time on appeal. Mundy & Mundy, Inc. v. Adams, 1979-NMSC-084, 93 N.M. 534, 602 P.2d 1021. Procedure on appeal where no written order exists. - Even though the trial court had not entered a written order on a party's subject matter jurisdiction claim raised pursuant to a motion under Paragraph B(1), and, as a general rule, only review of formal written orders or judgments from which an appellant has timely appealed is authorized, the court of appeals determined that it would be a waste of resources, both for the litigants and for the court, not to address the claim. Harrington v. Bannigan, 2000-NMCA-058, 129 N.M. 266, 5 P.3d 1070. Claim of waiver waived upon failure to object to amended motion. - Where defendant failed to join a challenge to personal jurisdiction in his initial motion to dismiss for lack of venue, but subsequently filed an amended motion adding the former defense, plaintiff's claim of waiver of the jurisdictional defense was itself waived by her failure to raise any objection to defendant's amended motion at a hearing thereon. Robinson-Vargo v. Funyak, 1997-NMCA-095, 123 N.M. 822, 945 P.2d 1040. Affirmation defense in counterclaim. - In a village's water dispute, the village, as a defendant in a counterclaim filed by the opponent, properly raised the defense of laches as an affirmative defense because as a plaintiff defending against a counterclaim, the village was, for all practical purposes, litigating in the capacity of a defendant. Village of Wagon Mound v. Mora Trust, 2003-NMCA-035, 133 N.M. 373, 62 P.3d 1255, cert. denied, 133 N.M. 413, 63 P.3d 516. Summary judgment - Where plaintiff contends that, even if there is no finding of a waiver of sovereign immunity, all four of her waiver arguments, when combined together, create a genuine issue of fact as to whether a waiver existed, an express waiver of sovereign immunity cannot be pierced together through inference and implication, combined with a sue or be sued clause that is not made effective due to unmet requirements and therefore, summary judgment was appropriate and there are no genuine issues of fact as to the existence of a waiver. Sanchez v. Santa Ana Golf Club, Inc., 2005-NMCA-003, 136 N.M. 682, 104 P.3d 548, cert. denied, 2005-NMCERT-001. Failure to state a claim. - Where plaintiff, who had allegedly been raped by other students, sued the university for breach of contract for failure to investigate the sexual assault, to provide a school free from harassment and hostility, and to provide reasonable support to her after the assault and where the only express contract between the university and plaintiff was plaintiff's athletic scholarship agreement in which the university agreed to provide financial aid and not to increase, reduce, or cancel the promised aid due to plaintiff's athletic performance or ability, plaintiff's complaint based on the scholarship agreement failed to state a cognizable claim for breach of contract because it did not contain allegations that the university breached its contractual duty to provide scholarship assistance in the form of financial assistance. Ruegsegger v. Western N.M. Univ. Bd. of Regents, 2007-NMCA-030, 141 N.M. 306, 154 P.3d 681, cert. denied, 2006-NMCERT-011. Where plaintiff, who had allegedly been raped by other students, sued the university for breach of contract to provide a school free from harassment and hostility, and to provide reasonable support to her after the assault on the theory that the university student handbook constituted an implied contract and where the student handbook stated that it was not to be regarded as a contract and did not contain references to investigatory procedures, investigatory rights, or supportive services, the handbook consisted of guidelines for the operation of the university and did not constitute an implied contract or guarantee the rights asserted by plaintiff and plaintiff's complaint based on the terms of the terms of the handbook failed to state a cognizable claim for breach of contract. Ruegsegger v. Western N.M. University Bd. of Regents, 2007-NMCA-030, 141 N.M. 306, 154 P.3d 681, cert. denied, 2006-NMCERT-011. Medical malpractice dismissed. - Where patient who committed suicide had consulted defendant psychiatrist during five office visits and thereafter the patient failed to attend scheduled appointments with defendant, then voluntarily hospitalized himself as an inpatient, where the patient consented to treatment from a new psychiatrist, then voluntarily submitted to outpatient treatment at the hospital by the same psychiatrist and then voluntarily continued further treatment from a psychologist and never called or returned to defendant for any purpose, defendant and the patient did not have a special relationship, defendant did not have the ability to control the patient, and defendant did not owe a duty of care to the patient the breach of which would render defendant liable for the patient's death. Estate of Haar v. Ulwelling, 2007-NMCA-032, 141 N.M. 252, 154 P.3d 67. Law reviews. - For article, "The `New Rules' in New Mexico," see 1 Nat. Resources J. 96 (1961). For article, "'To Purify the Bar': A Constitutional Approach to Non-Professional Misconduct," see 5 Nat. Resources J. 299 (1965). For comment on Reed v. Melnick, 81 N.M. 14, 462 P.2d 148 (Ct. App. 1969), see 1 N.M.L. Rev. 615 (1971). For article, "Mandamus in New Mexico," see 4 N.M.L. Rev. 155 (1974). For article, "The Writ of Prohibition in New Mexico," see 5 N.M.L. Rev. 91 (1974). For article, "The Impact of Non-Mutual Collateral Estoppel on Tort Litigation Involving Several Liability," see 18 N.M.L. Rev. 559 (1988). Am. Jur. 2d, A.L.R. and C.J.S. references. - 4 Am. Jur. 2d Appearance §1; 9 Am. Jur. 2d Bankruptcy §§760 to 766; 61A Am. Jur. 2d Pleading §§220 to 248, 278, 279, 333 to 337, 347, 348. Appealability of order entered on motion to strike pleading, 1 A.L.R.2d 422. Application and effect of parol evidence rule as determinable upon the pleadings, 10 A.L.R.2d 720. Appealability of order overruling motion for judgment on pleadings, 14 A.L.R.2d 460. Punishment of civil contempt in other than divorce cases by striking pleading or entering default judgment or dismissal against contemner, 14 A.L.R.2d 580. Statute of frauds raised by a motion to strike testimony after failure to object to parol evidence, 15 A.L.R.2d 1330. Pleading last clear chance doctrine, 25 A.L.R.2d 254. Objection before judgment to jurisdiction of court over subject matter as constituting general appearance, 25 A.L.R.2d 833. Manner and sufficiency of pleading agency in contract action, 45 A.L.R.2d 583. Court's power, on motion for judgment on the pleadings, to enter judgment against the movant, 48 A.L.R.2d 1175. Proper procedure and course of action by trial court, where both parties move for a judgment on the pleadings, 59 A.L.R.2d 494. Raising defense of statute of limitations by demurrer, equivalent motion to dismiss, or by motion for judgment on pleadings, 61 A.L.R.2d 300. Litigant's participation on merits, after objection to jurisdiction of person made under special appearance or the like has been overruled, as waiver of objection, 62 A.L.R.2d 937. Propriety of entering summary judgment for plaintiff before defendant files or serves answer to complaint or petition, 85 A.L.R.2d 825. Right to voluntary dismissal of civil action as affected by opponent's motion for summary judgment, judgment on the pleadings, or directed verdict, 36 A.L.R.3d 1113. Dismissal of state court action for failure or refusal of plaintiff to answer written interrogatories, 56 A.L.R.3d 1109. Dismissal of action for plaintiff's failure or refusal to obey court order relating to pleadings or parties, 3 A.L.R.5th 237. What, other than affidavits, constitutes "matters outside the pleadings," which may convert motion under Federal Rule of Civil Procedure 12(b)(c), into motion for summary judgment, 2 A.L.R. Fed. 1027. Joinder of counterclaim under Rule 13(a) or 13(b) of Federal Rules of Civil Procedure with jurisdictional defense under Rule 12(b) as waiver of such defense, 17 A.L.R. Fed. 388. Necessity of oral argument on motion for summary judgment or judgment on pleadings in federal court, 105 A.L.R. Fed. 755. 27 C.J.S. Dismissal and Nonsuit §67; 71 C.J.S. Pleading §§ 99, 112 to 116, 121 to 129, 264 to 268, 424 to 449, 463 to 482, 498, 508, 560 to 586.