N.M. R. Civ. P. Dist. Ct. 1-015
N.M. R. Civ. P. Dist. Ct. 1-015
Committee commentary. -
2017 amendment
Introduction - Revisions to Rule 1-015(C) NMRA
Rule 1-015(C) NMRA is divided into three sections. Paragraph (C)(1) reiterates the first sentence of prior Paragraph C and remains unchanged. Paragraph (C)(2) addresses an issue raised in Snow v. Warren Power & Mach., Inc., 2015-NMSC-026, 354 P.3d 1285. Paragraph (C)(3) modifies prior Paragraph C by amending language in the rule to make it consistent with the Court's holding in Galion v. Conmaco Int'l, Inc., 1983-NMSC-006, 99 N.M. 403, 658 P.2d 1130.
Both new Paragraphs (C)(2) and (C)(3) maintain the current language of prior Paragraph C making the rules applicable to an amendment "changing the party against whom a claim is asserted." New Mexico has broadly construed this language. See Romero v. Ole Tires, Inc., 1984-NMCA-092, ¶ 14, 101 N.M. 759, 688 P.2d 1263 ("The word 'changing' should be given a liberal construction, so that amendments adding or dropping parties as well as amendments that substitute parties fall within the Rule."); Romero v. Bachicha, 2001-NMCA-048, ¶ 12, 130 N.M. 610, 28 P.3d 1151 ("Rule 1-015(C) clearly encompasses the amendment of pleadings to correct misnomers.").
New Paragraph (C)(2)
In Snow, 2015-NMSC-026, ¶ 33, the Court ruled that when a party filed a motion to add a new defendant shortly before the statute of limitations ran and the motion was granted after the statute of limitations ran, the motion was deemed to be granted on the date the motion was filed if the motion was accompanied by the proposed amended complaint. See Rule 1-007.1(C) NMRA (requiring the proposed pleading to be attached to the motion to amend the pleading). The Court did not impose a requirement that the person sought to be added as a defendant be notified of the proposal to amend the pleadings before the amended complaint is filed. Snow, 2015-NMSC-026, ¶¶ 35-36. The Court requested the Rules of Civil Procedure for the District Courts Committee consider whether to amend Rule 1-015 NMRA in light of its opinion. Id. ¶ 38.
The Court adopted the Committee's recommendation for a new Paragraph (C)(2), which incorporates the Court's holding in Snow by providing that motions to change a party granted in such factual situations may relate back to the date of the timely filing of the motion to change the party. The rule incorporates the Court's requirement in Snow and Rule 1-007.1(C) NMRA that the proposed amended pleading must accompany the motion to amend, and the existing Paragraph C requirement that to relate back, amended pleadings must arise out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. See Paragraph (C)(1).
In Snow, the Court asked the Committee to consider whether a rule provision setting the specific time for serving the amended complaint on the new party should be adopted. The Court adopted the Committee's recommendation that no specific time for accomplishing service should be set by rule. Instead, service must be "made with due diligence" as currently required in all cases by Rule 1-004(C)(2) NMRA. See Prieto v. Home Educ. Livelihood Program, 1980-NMCA-114, ¶ 12, 94 N.M. 738, 616 P.2d 1123 (providing that the court should exercise its inherent power and discretion to dismiss the complaint if the plaintiff does not exercise diligence in effectuating service). The possibility that plaintiff's delay in serving the amended complaint may lead to dismissal provides adequate incentive for prompt service of the amended complaint upon the new defendant.
New Paragraph (C)(3)
Prior Paragraph C provided that the defendant to be brought in by amendment after the statute of limitations had run must have received listed notice "within the period provided for commencing the action against him." Because "[a] party must . . . file the amended complaint within the period allowed under the statute of limitations," Snow, 2015-NMSC-026, ¶ 18, the rule seemed to require that the new defendant receive the listed notice before the date that the statute of limitations ran.
In Galion, 1983-NMSC-006, ¶ 6, the Court noted that in all cases, service of process may be made on a defendant after the statute of limitations has expired if the complaint was filed before the statute of limitations ran and if plaintiff exercises due diligence when serving process thereafter. See Prieto, 1980-NMCA-114, ¶ 12. The Court ruled that an amendment changing the defendant similarly should relate back "as long as service of process was effected within the reasonable time allowed under the rules of civil procedure even though the limitations period had expired." Galion, 1983-NMSC-006, ¶ 12.
Paragraph (C)(3) amends the language of former Paragraph C to conform to the holding in Galion. See also F.R.C.P. 15(c)(1)(C) (containing similar language). The amendment is not intended to modify the Galion Court's ruling limiting Galion to cases involving a close relationship between the named defendant and the new defendant. See Galion, 1983-NMSC-006, ¶ 12.
[Adopted by Supreme Court Order No. 17-8300-020, effective for all cases pending or filed on or after December 31, 2017.]
ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-020, effective December 31, 2017, provided that when a party files a motion to add a new defendant to a complaint before the running of the statute of limitations, a ruling granting the motion is deemed to be granted on the date the motion was filed if the motion was accompanied by the proposed amended complaint, provided that when a party files a motion to add a new defendant to a complaint after the statute of limitations has run, a ruling granting the motion is deemed to be granted on the date of the original pleading as long as service of process was effected within the reasonable time allowed under the rules of civil procedure, made technical revisions, and revised the committee commentary; in Paragraph C, added subparagraph designation "(1)", added new Subparagraph (2), added subparagraph designation "(3)", in Subparagraph (3), deleted "An amendment changing the party", added "When a party files a motion to amend a pleading after the statute of limitations has run, changing the party", added "a ruling granting the motion", added "to the date of the original pleading", after "if", deleted "foregoing provision" and added "Paragraph (C)(1) of this rule", after "provided by", deleted "law for commencing the action against him" and added "Rule 1-004(C)(2) NMRA for serving process", and redesignated former Subparagraphs C(1) and C(2) as Subparagraphs C(3)(a) and C(3)(b), respectively.
For striking out pleading after failure to answer interrogatories, see Rule 1-037 NMRA. Compiler's notes. - Paragraph A and Rule 1-042 NMRA are deemed to have superseded 105-604, C.S. 1929, relating to amendments and dividing misjoined causes of action. Paragraph A is also deemed to have superseded 105-613 and 105-616, C.S. 1929, authorizing the plaintiff to strike part of his complaint and providing for pleading after amendment, respectively. Paragraph B is deemed to have superseded 105-601 to 105-603, C.S. 1929, relating to variances between allegations and proof and failure of proof. See also the notes to Rule 1-060. Paragraph D is deemed to have superseded 105-612, C.S. 1929, relating to the same subject matter. Paragraph E is deemed to have superseded 105-614, C.S. 1929, which was identical therewith. See 105-615, C.S. 1929, relating to the construction of 105-614, C.S. 1929. I. GENERAL CONSIDERATION. Rule 1-015 NMRA permits the voluntary dismissal of individual claims that make up an action. Gates v. New Mexico Taxation & Revenue Dep't, 2008-NMCA-023, 143 N.M. 446, 176 P.3d 1169. II. AMENDMENTS. A. IN GENERAL. Rule 1-015 NMRA does not apply to proceedings in children's court. - Where the parent was charged with neglect and abandonment of the parent's children; at the end of the hearing, after all evidence had been presented, CYFD asserted in its closing argument that there was sufficient evidence to support a finding of abuse; the court considered CYFD's argument as a motion to amend to conform to the evidence pursuant to Rule 1-015 NMRA and granted the motion to amend the petition to include a claim of abuse; the court did not hear the issue of abuse; and the court found that the parent neglected and abused the children, the parent's due process rights were violated by the amendment procedure because the court erred by relying on Rule 1-015 NMRA and by not holding a hearing on the abuse issue as required by Section 32A-1-18 NMSA 1978. State ex rel. CYFD v. Steve C., 2012-NMCA-045, 277 P.3d 484. Denial of motion to amend was not an abuse of discretion. - Where plaintiff sued defendant for negligence, and two years after plaintiff initiated the litigation and a month after the hearings on defendant's motions for summary judgment addressed to plaintiff's negligence theory, plaintiff filed a motion for leave to file a second amended complaint to add intentional tort claims and the amendment would have prejudiced the defendant, the trial court did not abuse its discretion in denying the motion to amend. Crespin v. Albuquerque Baseball Club, LLC, 2009-NMCA-105, 147 N.M. 62, 216 P.3d 827, cert. granted, 2009-NMCERT-009. Timeliness. - Where plaintiff filed its motion and proposed amended complaint that included new theories and causes of action 20 months after filing the original complaint, seven months after the scheduling order was entered, three months after the deadline for motions established by the scheduling order, one month after discovery had been completed, and two months before trial, the court did not abuse its discretion in denying plaintiff's motion to amend. Roark v. Farmers Group, Inc., 2007-NMCA-074, 142 N.M. 59, 162 P.3d 896, cert. denied, 2007-NMCERT-006. Joint Powers Agreement Act. - Where a motion to amend to add a Joint Powers Agreement Act claim was insufficient and futile on its face, granting the motion would have served no purpose. Paragon Foundation, Inc. v. New Mexico Livestock Bd., 2006-NMCA-004, 138 N.M. 761, 126 P.3d 577, cert. denied, 2006-NMCERT-001. Supplemental pleadings and amended pleadings are different in that a supplemental pleading relates to facts which arose after the original pleading was filed, whereas an amended pleading includes matters that occurred before. Electric Supply Co. v. United States Fid. & Guar. Co., 1969-NMSC-003, 79 N.M. 722, 449 P.2d 324. Newly discovered existing facts are brought in by amendment. - Facts newly discovered but previously existing are properly brought in by amended, not supplemental, pleading. Colcott v. Sutherland, 1932-NMSC-068, 36 N.M. 370, 16 P.2d 399. A party may amend his pleadings one time as a matter of right under the conditions of the first sentence of Subdivision (a) (see now Paragraph A). Martinez v. Cook, 1953-NMSC-043, 57 N.M. 263, 258 P.2d 375. It is the intent of the rule to allow one amendment of a complaint as a matter of right when no answer is served during the pleading stage of litigation. Moffat v. Branch, 2002-NMCA-067, 132 N.M. 412, 49 P.3d 673. If no responsive pleading has been filed. - When plaintiff filed her motion to amend, summary judgment had not been entered and no responsive pleading had been filed under this rule, she was entitled to amend as a matter of right, and although leave of court was not necessary to file an amended complaint, it was error to deny such leave when timely requested by motion. Jacobson v. State Farm Mut. Auto. Ins. Co., 1970 -NMSC-089, 81 N.M. 600, 471 P.2d 170. Subdivision (a) (see now Paragraph A) authorizes a party to amend his pleading as a matter of course at any time before a responsive pleading is served; hence, the trial court did not err in permitting the plaintiff to amend its complaint to include a second count at a time when the defendant had not filed a responsive pleading. Platco Corp. v. Shaw, 1967-NMSC-123, 78 N.M. 36, 428 P.2d 10. After foreclosure of a deed of trust, and bill filed for redemption, an amended bill praying for a cancellation of trustee's deed and quieting of plaintiff's title, tendered before answer filed, should have been permitted under 2685, subd. 81, 1897 Comp. (105-604, C.S. 1929). Bremen Mining & Milling Co. v. Bremen, 1905-NMSC-016, 13 N.M. 111, 79 P. 806. Permission to amend a pleading need not be obtained if the pleading is one to which no responsive pleading is permitted, the action has not been placed on the trial calendar, and the amendment is made within 20 days after the pleading is served. In re Pulver, 1994-NMCA-024, 117 N.M. 329, 871 P.2d 985. After the filing of a responsive pleading, amendments may be made only by permission of the court. Vernon Co. v. Reed, 1967-NMSC-261, 78 N.M. 554, 434 P.2d 376. In the absence of consent by the adverse party to the amendment proposed, the pleading could only be amended by leave of the court. State v. Hodnett, 1968-NMCA-104, 79 N.M. 761, 449 P.2d 669. Amended complaint deemed filed on the day the motion for leave to amend is filed. - Filing a motion for leave of court to amend a complaint with the proposed complaint attached should be treated as the functional equivalent of filing an original complaint, subject to permission subsequently granted by the district court. Snow v. Warren Power & Mach., Inc., 2015-NMSC-026, rev'g 2014-NMCA-054, 326 P.3d 33. Where plaintiffs filed a motion for leave to amend complaint on the final day before the period allowed under the statute of limitations would expire and attached the proposed amended complaint as an exhibit to the motion, the New Mexico Supreme Court held that the amended complaint should be deemed filed on the day the motion for leave to amend was filed, because the provisions of Subsection A of this rule, requiring leave of court to amend a complaint, leaves a plaintiff with little or no control over when the amended complaint may be filed. Snow v. Warren Power & Mach., Inc., 2015-NMSC-026, rev'g 2014-NMCA-054, 326 P.3d 33. Adverse party's written consent. - Under Subdivision (a) (see now Paragraph A), defendant had the right to amend his answer by leave of court or by written consent of the adverse party. Atol v. Schifani, 1971-NMCA-153, 83 N.M. 316, 491 P.2d 533. Proper amendment of summary judgment motions. - Since motions must be directed to specific parties, a movant has the option to amend the summary judgment motion to add additional parties or to change parties, if necessary, with the motion relating back to the date of the original motion if the party has received such notice so that he will not be prejudiced. By failing to amend his motion, defendant failed to make a summary judgment motion against this plaintiff. Thus, the summary judgment motion granted must be reversed. Perea v. Snyder, 1994-NMCA-064, 117 N.M. 774, 877 P.2d 580. Motion for summary judgment is not a responsive pleading within the meaning of Subdivision (a) (see now Paragraph A). Jacobson v. State Farm Mut. Auto. Ins. Co., 1970 -NMSC-089, 81 N.M. 600, 471 P.2d 170. Motion to dismiss is not responsive pleading. - Plaintiffs should have been allowed to amend as a matter of course because a motion to dismiss is not a responsive pleading within Subdivision (a) (see now Paragraph A). Buhler v. Marrujo, 1974-NMCA-062, 86 N.M. 399, 524 P.2d 1015. Neither the filing nor granting of such a motion before answer terminates the right to amend; an order of dismissal denying leave to amend at that stage is improper, and a motion for leave to amend (though unnecessary) must be granted if filed. Malone v. Swift Fresh Meats Co., 1978-NMSC-007, 91 N.M. 359, 574 P.2d 283. Complaining that pleadings do not comply with rules. - Motions complaining that complaints failed to comply with the rules, contained matter that should be stricken thereunder, failed to state a cause of action, etc., are not responsive pleadings. Peoples v. Peoples, 1963-NMSC-067, 72 N.M. 64, 380 P.2d 513. Court's permission is necessary if right to amend was specifically denied. - When plaintiffs' complaints have been dismissed without leave and with the right to amend specifically denied, plaintiffs may not file an amended pleading without the court's permission. Peoples v. Peoples, 1963-NMSC-067, 72 N.M. 64, 380 P.2d 513. Summary judgment has been granted. - This rule had no bearing where decision granting defendant's motion for summary judgment had already been announced. At that stage of the proceeding the granting or denial of the motion to amend was within the discretion of the court. Hamilton v. Hughes, 1958-NMSC-029, 64 N.M. 1, 322 P.2d 335. Amendment to add individual members of Board. - Because the individual members of the Public Employees Retirement Board were on notice of a proceeding, and because the claim to be asserted in the amended pleading would arise out of conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, plaintiff may move to amend his complaint to add the individual members of the Board. Gill v. PERA, 2004-NMSC-016, 135 N.M. 472, 90 P.3d 491. Leave of court not required where original complaint never served. - Where service of the original complaint upon the defendant was never perfected under this rule, the plaintiffs were not required to seek leave of the court to file an amended complaint. Campbell v. Benson, 1981-NMCA-135, 97 N.M. 147, 637 P.2d 578, overruled on other grounds, Safeco Ins. Co. of Am. v. United States Fid. & Guar. Co., 1984-NMSC-045, 101 N.M. 148, 679 P.2d 816. Final amendment verification rectifying earlier insufficiency. - Although the human services department failed to obtain the court's permission prior to filing its amended petitions to terminate parental rights, the court granted permission to file the final amended petition and verification prior to the commencement of trial. Allowance of this amendment rectified any insufficiency in the earlier pleadings not being verified. The court, therefor, was not deprived of subject matter jurisdiction. Laurie R. v. New Mexico Human Servs. Dep't, 1988-NMCA-055, 107 N.M. 529, 760 P.2d 1295. One additional opportunity to withstand motions should be given. - Counsel for plaintiffs must strictly conform in any amendments undertaken with these rules in all their details. However, that they should have at least one additional opportunity to attempt to draft a complaint that will withstand proper motions is in the spirit of the rules. Peoples v. Peoples, 1963-NMSC-067, 72 N.M. 64, 380 P.2d 513. Election to amend waives error in ruling or original pleading. - Where pleader elected to amend after demurrer had been sustained, he waived the right to allege error on the ruling. Bremen Mining & Milling Co. v. Bremen, 1905-NMSC-016, 13 N.M. 111, 79 P. 806. Pleadings are the means to assist, not deter, the disposition of litigation on the merits. Dale J. Bellamah Corp. v. City of Santa Fe, 1975-NMSC-045, 88 N.M. 288, 540 P.2d 218. Amendments to pleadings are favored, and the right thereto should be liberally permitted in the furtherance of justice. Martinez v. Research Park, Inc., 1965-NMSC-146, 75 N.M. 672, 410 P.2d 200, overruled on other grounds, Sundance Mechanical & Util. Corp. v. Atlas, 1990-NMSC-031, 109 N.M. 683, 789 P.2d 1250; Camp v. Bernalillo Cnty. Med. Center, 1981-NMCA-069, 96 N.M. 611, 633 P.2d 719, overruled on other grounds, Lakeview Invs., Inc. v. Alamogordo Lake Vill., Inc., 1974-NMSC-027, 86 N.M. 151, 520 P.2d 1096. Amendments should be freely allowed. - Under Subdivision (a) (see now Paragraph A) amendments are to be freely allowed so that the ends of justice may be accomplished. Davis v. Severson, 1963-NMSC-021, 71 N.M. 480, 379 P.2d 774. Subdivision (a) (see now Paragraph A), which provides that leave to amend shall be freely given when justice so requires, is the same as former Rule 15(a), Fed. R. Civ. P. (now see Rule 1-015). Coastal Plains Oil Co. v. Douglas, 1961-NMSC-110, 69 N.M. 68, 364 P.2d 131. Laws 1865, ch. 27, §§26, 27 and 120, providing for amendments to pleadings, showed a liberal legislative intention to allow all such amendments which might be necessary in furtherance of the attainment of substantial justice between parties by disregarding technical objections and trying cases upon their merits. Sanchez y Contreas v. Candelaria, 1890-NMSC-004, 5 N.M. 400, 23 P. 239. This liberality extends to replevin actions. Vigil v. Johnson, 1955-NMSC-102, 60 N.M. 273, 291 P.2d 312. Eminent domain proceedings. State ex rel. State Hwy Comm'n v. Grenko, 1969-NMSC-051, 80 N.M. 691, 460 P.2d 56. Occupational disease disablement cases. - Subdivision (a) (see now Paragraph A), providing for freely granting of leave to amend when justice requires, is applicable to proceedings under the Occupational Disease Disablement Law. Holman v. Oriental Refinery, 1965-NMSC-029, 75 N.M. 52, 400 P.2d 471. Mandamus. - While office of mandamus is to afford a speedy remedy and to avoid delay, this does not mean that court is without power to extend time within which a respondent may answer, or that the answer may not be amended; leave to amend should be freely given when justice demands. State ex rel. Fitzhugh v. City Council of Hot Springs, 1952-NMSC-022, 56 N.M. 118, 241 P.2d 100. Parties-plaintiff may be stricken. - Under 1911, C.L. 1881, allowing plaintiff to amend by striking out parties-plaintiff before trial and without objection was proper if defendant was not prejudiced thereby and if it was necessary to determine the real question in controversy. Neher v. Armijo, 1898-NMSC-005, 9 N.M. 325, 54 P. 236. New cause of action may be alleged. - A new cause of action founded on facts not completely foreign to those pleaded originally may be alleged in an amended complaint. Newbold v. Florance, 1950-NMSC-049, 54 N.M. 296, 222 P.2d 1085. Recovery should be allowed on quantum meruit even though the suit was originally framed on express contract, and amendment to pleadings should be freely allowed to accomplish this purpose at any stage of the proceeding, including considering the pleadings amended to conform to the proof. Montgomery v. Cook, 1966-NMSC-073, 76 N.M. 199, 413 P.2d 477; State ex rel. Gary v. Fireman's Fund Indem. Co., 1960 -NMSC-100, 67 N.M. 360, 355 P.2d 291; Honaker v. Ralph Pool's Albuquerque Auto Sales, Inc., 1964-NMSC-142, 74 N.M. 458, 394 P.2d 978. Although denying right to change theory is discretionary. - A ruling that plaintiff could not change its theory of the case from that upon which the complaint was framed was discretionary with the court, as was the refusal to permit the amendment. State ex rel. State Hwy. Comm'n v. Weatherly, 1960-NMSC-048, 67 N.M. 97, 352 P.2d 1010. Amendment should be allowed to state if claims are individual or community. - Defendants were entitled to know whether wage and medical claims were asserted as individual claims of the decedent or his widow, or as community claims, and on reversal and remand of defendants' award of summary judgment, the plaintiffs should be given the opportunity to amend to state the basis of the wage and medical claims. Rodgers v. Ferguson, 1976-NMCA-098, 89 N.M. 688, 556 P.2d 844, cert. denied, 90 N.M. 7, 558 P.2d 619. Allegations as to credits claimed by defendant may be stricken. - A complaint to an action on an account stated may be amended by striking out allegations with respect to credits claimed by defendants. Brown & Manzanares Co. v. Gise, 1907-NMSC-030, 14 N.M. 282, 91 P. 716. Defense of statute of limitations may be allowed. - 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 Rule 12(h) (see now Rule 1-012 NMRA), 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. Reply to counterclaim may be refused where delay not excused. - When the record does not show that the failure to file a reply to a counterclaim for more than a year was due to oversight, inadvertence or excusable neglect or that the interests of justice required the allowance of appellant's request, the trial court does not err in denying a motion to file a reply. Coastal Plains Oil Co. v. Douglas, 1961-NMSC-110, 69 N.M. 68, 364 P.2d 131 (not deciding if Paragraph A of this rule applies if there is no pleading to amend). Answer may be amended by interlineation, where trial court permits. Home Owners' Loan Corp. v. Reavis, 1942-NMSC-017, 46 N.M. 197, 125 P.2d 709. Amendments of pleadings are within the sound discretion of the trial court and should be freely permitted where justice requires. State ex rel. State Hwy. Comm'n v. Grenko, 1969-NMSC-051, 80 N.M. 691, 460 P.2d 56 (eminent domain proceedings). The allowance or denial of motions to amend under this rule is a matter within the sound discretion of the trial court. State ex rel. Pennsylvania Transformer Div. v. Electric City Supply Co., 1964-NMSC-136, 74 N.M. 295, 393 P.2d 325. Even though there had been a lengthy delay between the filing of the original answer and the notice of intent to amend three days before the trial, the granting or denying of the amendment was a matter within the sound discretion of the trial court. Gillum v. Southland Life Ins. Co., 1961 -NMSC-150, 70 N.M. 293, 373 P.2d 536. 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. Liberality of court discretion exercised for amended pleadings. - Liberality, with which this rule is to be viewed, applies mainly to the manner in which the court's discretion shall be exercised in permitting amended pleadings. Raven v. Marsh, 1980-NMCA-017, 94 N.M. 116, 607 P.2d 654. Ruling is only reversible for abuse of discretion. - A motion to amend is addressed to the discretion of the trial court, and on review the court's ruling will not be disturbed unless an abuse of discretion has occurred. Constructors, Ltd. v. Garcia, 1974-NMSC-025, 86 N.M. 117, 520 P.2d 273. A motion to amend is addressed to the sound discretion of the trial court and on review the ruling of the court will not be disturbed unless there is a clear showing of abuse of discretion. Montano v. House of Carpets, Inc., 1972-NMSC-052, 84 N.M. 129, 500 P.2d 414. Amendments of pleadings should be permitted with liberality in the furtherance of justice, but such applications are addressed to the sound discretion of the court, and its action in denying permission to amend is subject to review only for a clear abuse of discretion. Cantrell v. Dendahl, 1972-NMCA-035, 83 N.M. 583, 494 P.2d 1400; In re Will of Stern, 1956-NMSC-098, 61 N.M. 446, 301 P.2d 1094; Vernon Co. v. Reed, 1967-NMSC-261, 78 N.M. 554, 434 P.2d 376; State v. Hodnett, 1968-NMCA-104, 79 N.M. 761, 449 P.2d 669; Atol v. Schifani, 1971-NMCA-153, 83 N.M. 316, 491 P.2d 533. Allowance of trial amendments is within discretion of trial court, and where such discretion is not abused, the refusal to allow such an amendment will not warrant a reversal of the judgment. Klasner v. Klasner, 1918-NMSC-021, 23 N.M. 627, 170 P. 745. Denial of a motion to amend will be reversed only upon a showing of clear abuse of discretion. Slide-A-Ride of Las Cruces, Inc. v. Citizens Bank, 1987-NMSC-018, 105 N.M. 433, 733 P.2d 1316. Motions to amend are addressed to the sound discretion of the trial court, and will be reviewed on appeal only for abuse of discretion. An abuse of discretion occurs when the court exceeds the bounds of reason, considering all the circumstances before it. Rivera v. King, 1988-NMCA-093, 108 N.M. 5, 765 P.2d 1187. Amendments are within the trial court's discretion and will be reversed on appeal only for abuse of discretion. Schmitz v. Smentowski, 1990-NMSC-002, 109 N.M. 386, 785 P.2d 726. "Abuse of discretion" controls district court ruling. - Whether a district court grants or denies a motion to amend, the rule remains the same: "abuse of discretion" controls. Newman v. Basin Motor Co., 1982-NMCA-074, 98 N.M. 39, 644 P.2d 553. Where amendments have been previously allowed. - Whether a third opportunity to amend should be granted rests in the trial court's discretion, and its ruling will be reviewed only on the question of abuse of discretion. Hambaugh v. Peoples, 1965-NMSC-044, 75 N.M. 144, 401 P.2d 777. Amendment of pleadings after the first time rests in the sound discretion of the trial court subject to the supreme court's review of such discretion. Martinez v. Cook, 1953-NMSC-043, 57 N.M. 263, 258 P.2d 375. Where complaint had been twice amended and on the last adverse ruling the plaintiffs, represented by competent counsel, of their own free will determined to stand on their last pleading and brought the case to the supreme court for review and the dismissal of the second amended complaint was affirmed, on remand the trial court did not abuse its discretion in denying the plaintiffs' motion for leave to further amend. Martinez v. Cook, 1953-NMSC-043, 57 N.M. 263, 258 P.2d 375. Discretion held not abused. - Trial court did not err in allowing defendant in action for sales commission to amend his answer at the commencement of the trial as to assert an affirmative defense. Montano v. House of Carpets, Inc., 1972-NMSC-052, 84 N.M. 129, 500 P.2d 414. Where although plaintiffs moved to amend as soon as the ordinance and building code came to their attention, they did not invoke a ruling on their motion prior to trial, and instead proceeded to trial when only one of plaintiffs' witnesses remained to testify before a ruling was invoked, the court held there was no abuse of discretion in denying the amendment at that stage of the trial. Cantrell v. Dendahl, 1972-NMCA-035, 83 N.M. 583, 494 P.2d 1400. Where the materiality of the proposed additional exhibits to the pretrial order depended on the proposed amendment, which the trial court, in its discretion, properly disallowed, there was no error in not permitting the addition of these exhibits. Cantrell v. Dendahl, 1972-NMCA-035, 83 N.M. 583, 494 P.2d 1400. Where a long period of time had elapsed between the filing of the answers and the request for permission to amend, and no showing of prejudice was made, there is no abuse of discretion by the trial court in refusing motion to amend. Pope v. Lydick Roofing Co., 1970-NMSC-090, 81 N.M. 661, 472 P.2d 375. The trial court did not err in allowing the state to amend its map by showing access roads extending to defendants' boundaries and awarding damages based on the state's agreement where the highway commission during the trial obtained an easement over federally owned lands and agreed to construct the necessary connecting link so as to provide access between the defendants' two tracts to the highway system by way of a county road. The admission of the amendment to correct an honest mistake and to prevent a windfall to the defendants was not an abuse of discretion. State ex rel. State Hwy. Comm'n v. Grenko, 1969-NMSC-051, 80 N.M. 691, 460 P.2d 56. Where the trial judge rules that joinder of a conspiracy action against an insurance company with the plaintiff's malpractice action would be confusing to the jury, that decision does not exceed the bounds of reason, and is not a clear abuse of discretion. Clancy v. Gooding, 1982-NMCA-096, 98 N.M. 252, 647 P.2d 885. Trial court did not abuse its discretion in denying a motion to amend filed almost five years after the original complaint, where the hearing on the motion was held a month before a trial setting in the case, and plaintiff's brief did not explain how she was prejudiced by the denial of her motion. Rivera v. King, 1988-NMCA-093, 108 N.M. 5, 765 P.2d 1187. The court did not abuse its discretion by refusing to allow an oral motion to amend, two years after an initial complaint was filed and subsequent to its grant of summary judgment to the defendant. Lunn v. Time Ins. Co., 1990 -NMSC-047, 110 N.M. 73, 792 P.2d 405, cert. denied, 498 U.S. 958, 111 S. Ct. 387, 112 L. Ed. 2d 397 (1990). The district court did not abuse its discretion in denying the plaintiffs leave to amend their complaint under Paragraph A of this rule where the plaintiffs counsel admitted that the facts underlying the motion to amend were "always there" and plaintiffs were just "bundling them in a different theory," the case had already had a three-year delay in getting to trial, and the proposed amendment would cause a further continuance to allow the defendant time to assess its position, develop facts and a defense, and determine if it could assert third-party claims. Apodaca v. AAA Gas Co., 2003-NMCA-085, 134 N.M. 77, 73 P.3d 215. Where plaintiff did not alert the trial court's attention to the motion to amend until 10 days before the case was set to go trail, the trial court's decision to deny the motion to amend was reasonable. Matrix Production Co. v. Ricks Exploration Inc., 2004-NMCA-135, 136 N.M. 593, 102 P.3d 1285, cert. denied, 2004-NMCERT-012, 136 N.M. 665, 103 P.3d 1097. Discretion held abused. - Where numerous grievous wrongs are attempted to be asserted on behalf of plaintiffs occupying positions of relative difficulty, represented principally by nonresident counsel unfamiliar with New Mexico rules of practice and procedure and opposed by experienced local counsel, plaintiffs should not have been denied a third attempt to state a claim upon which relief could be had, and the court abused its discretion in ruling otherwise. Hambaugh v. Peoples, 1965-NMSC-044, 75 N.M. 144, 401 P.2d 777. Denial of motion to amend complaint in tort suit to allege that defendant had transferred realty in contemplation of insolvency so that any judgment against him would be an empty one was an abuse of discretion. Fitzhugh v. Plant, 1953-NMSC-024, 57 N.M. 153, 255 P.2d 683. Where a court allowed a plaintiff to amend the pleadings during trial to include a new theory of negligence but prevented the defendant from preparing a defense to that theory, the court abused its discretion in the allowance of the amendment. Camp v. Bernalillo Cnty. Med. Center, 1981-NMCA-069, 96 N.M. 611, 633 P.2d 719. Denial based on mistake of law is not exercise of sound discretion. - Where counsel for plaintiff requested permission to amend by striking the allegation of doing business in the state and alleging that while agents solicited in the state, acceptance of the order was at the home office of the company in a foreign state, and the record makes it equally clear that the court so understood the request but construed the previous decisions to hold that mere solicitation of the contract in this state by an agent amounted to the transaction of business and that any action thereon is barred, the court erred. Denial of the request to amend was not, under the circumstances, a denial in the exercise of a sound judicial discretion, but the denial rested upon an erroneous construction of applicable law. Vernon Co. v. Reed, 1967-NMSC-261, 78 N.M. 554, 434 P.2d 376. The right to amend should be permitted with liberality in the furtherance of justice, and is addressed to the sound discretion of the trial court; where the trial court denied the request to amend upon an erroneous construction of applicable law regarding questions of consideration in stating a claim for relief, plaintiff should be granted the right to file his first amended complaint in furtherance of justice. Kirby Cattle Co. v. Shriners Hosps. for Crippled Children, 1975-NMCA-140, 88 N.M. 605, 544 P.2d 1170, rev'd on other grounds, 1976-NMSC-013, 89 N.M. 169, 548 P.2d 449 (trial court's construction of applicable law correct). Proceeding to trial while motion is pending is abuse of discretion. - Where record clearly shows that defendant called the pendency of the motion to amend to the attention of the trial court, that the trial court proceeded to trial despite the pendency of the motion and that the pending motion sought to amend the issues to be tried, since amendments to pleadings are favored and should be liberally permitted in the furtherance of justice, the trial court abused its discretion in proceeding to trial despite the pendency of such motion. Atol v. Schifani, 1971-NMCA-153, 83 N.M. 316, 491 P.2d 533. Court may pass on apparent insufficiency or futility of amended pleading. - While ordinarily the courts on motion to amend will not pass on the sufficiency of the amended pleading, the New Mexico Supreme Court thinks the better reasoning, applied in the federal courts, is that a court may do so when the insufficiency or futility of the pleading is apparent on its face. State ex rel. Pennsylvania Transformer Div. v. Electric City Supply Co., 1964-NMSC-136, 74 N.M. 295, 393 P.2d 325. Ruling based on proper reason will not be reversed for other erroneous reason. - If the trial court stated a reason upon which it could properly disallow the amendment to the complaint, its ruling is not to be reversed because it stated another allegedly erroneous reason. Cantrell v. Dendahl, 1972-NMCA-035, 83 N.M. 583, 494 P.2d 1400. For review, time and nature of proposed amendment must be shown. - Supreme court cannot decide whether trial court erred in denying motion to amend the answer where it is not shown whether request was made before, during or after the trial, nor what the nature of the amendment was, and where it is not indicated that the amendment was one permitted under this rule. Bounds v. Carner, 1949-NMSC-008, 53 N.M. 234, 205 P.2d 216. Party objecting to amendment must show prejudice. - Even if a party objects to another party's amendment, the trial court is required to allow the amendment freely, if the objecting party fails to show that he will be prejudiced by the amendment. Crumpacker v. DeNaples, 1998-NMCA-169, 126 N.M. 288, 968 P.2d 799, cert. denied, 126 N.M. 532, 972 P.2d 351. Amendments which alter or change theory of case not permitted on appeal. Houston v. Young, 1980-NMSC-053, 94 N.M. 308, 610 P.2d 195. B. CONFORMING TO EVIDENCE. Material variance between pleading and proof precludes recovery. - A variance between the pleading and proof of a party litigant which precludes a recovery means a substantial and material difference, in that they depart from each other upon a material phase of the cause of action or defense. Epstein v. Waas, 1923-NMSC-061, 28 N.M. 608, 216 P. 506. Minor variances between the pleadings and the evidence are generally disregarded if they do not prejudice or mislead the opposing party. Johnson v. Mercantile Ins. Co. of Am., 1943-NMSC-006, 47 N.M. 47, 133 P.2d 708. In action to recover compensation under Federal Employers' Liability Act ( 45 U.S.C. § 51 et seq.), variance between allegation that injury resulted from negligent pushing, by fellow employee, of truck against jamb of doorway causing steel shafting or bars to fall off truck and break plaintiff's leg, and proof showing that fellow employee pushed the shafting and bars causing them to fall off the truck was not fatal where employer was not misled. Tillian v. Atchison, T. & S.F. Ry., 1935 -NMSC-094, 40 N.M. 80, 55 P.2d 34. Immaterial or inconsequential variances which do not mislead or prejudice the opposite party should be disregarded. Epstein v. Waas, 1923-NMSC-061, 28 N.M. 608, 216 P. 506. Such variances are cured. - Where services were proved as rendered at the request of the defendant, while the complaint was for services sold and delivered, Laws 1897, ch. 73, §78 (105-601, C.S. 1929) cured the variance. Bushnell v. Coggshall, 1900-NMSC-041, 10 N.M. 601, 62 P. 1101. Absence of pleading is immaterial where not objected to. - Subdivision (b) (see now Paragraph B) follows the rule which long obtained in New Mexico to the effect that an absence of pleading supporting the proof becomes immaterial when the matter is litigated without objection to the deficiency in the pleading. George v. Jensen, 1946-NMSC-004, 49 N.M. 410, 165 P.2d 129. An issue has been litigated with consent. - A party may not, after consenting to litigate an issuable defense not pleaded, later, and upon failing to sustain the issue through want of proof, insist that the defense was not available because not pleaded. Csanyi v. Csanyi, 1971-NMSC-037, 82 N.M. 411, 483 P.2d 292. Subdivision (b) (see now Paragraph B), identical to Rule 15(b), Fed. R. Civ. P., is but declaratory of the rule in this jurisdiction that absence of a pleading to support the proof is waived when a party litigates the issue without objection. Posey v. Dove, 1953-NMSC-019, 57 N.M. 200, 257 P.2d 541; George v. Jensen, 1946-NMSC-004, 49 N.M. 410, 165 P.2d 129; Page & Wirtz Constr. Co. v. Solomon, 1990-NMSC-063, 110 N.M. 206, 794 P.2d 349. Pretrial order states issue is pending for trial. - Failure to incorporate a previously filed counterclaim into an amended answer as required by Subdivision (e) (see now Paragraph E) is not a sound basis for its dismissal where there is neither surprise nor prejudice, or where the pretrial order regularly entered states the issues of the counterclaim to be pending for trial or where such issues are actually tried without objection. Biebelle v. Norero, 1973-NMSC-052, 85 N.M. 182, 510 P.2d 506. Under Rule 16 (see now Rule 1-016 NMRA), relating to pretrial procedure, it is expressly provided that the court may make an order, which, when entered, shall control subsequent course of the action, and where appellants were aware that appellee's claimed right to set off a repair bill was an issue in the cause and matters pertaining to the repair bill were litigated without objection on appellants' part, and likewise the issue was a subject of findings and conclusions requested by appellants, appellee's failure to plead this setoff under Rule 13 (see now Rule 1-013 NMRA) did not bar their recovery of this setoff. Charley v. Rico Motor Co., 1971-NMCA-004, 82 N.M. 290, 480 P.2d 404. Amendment or consent to litigation of issue is necessary for jurisdiction. - Where on a claim of slander of title to plaintiffs' property by reason of defendant filing for record an invalid materialman's lien which affected the marketability of plaintiffs' property, because the complaint alleged general damages, but not special damages, it failed to state a claim for relief, the trial court lacked jurisdiction to enter judgment on the complaint unless the omitted element of special damages was supplied by amendment of the complaint or by litigation of the issue of special damages without objection by the opposing party. Branch v. Mays, 1976-NMCA-086, 89 N.M. 536, 554 P.2d 1297. To bring defense before court. - At a commitment hearing, where the state did not give its consent, express or implied, to trial of an issue not raised in defendant's pleadings, neither party made a motion for amendment of the pleadings, nor did the court allow any such amendment sua sponte, this issue was not properly before the trial court. In re Valdez, 1975-NMSC-050, 88 N.M. 338, 540 P.2d 818. Subdivision (b) (see now Paragraph B) could not apply where defendant sought to raise fraud as a defense to action for anticipatory breach of contract although there were admitted technical defects in his pleading, because the issue of fraud was not tried by express or implied consent nor did defendant seek an amendment. American Inst. of Mktg. Sys. v. Keith, 1971-NMSC-072, 82 N.M. 699, 487 P.2d 127. Where contributory negligence was not pleaded, raised by an affirmative pleading or tried by express or implied consent and defendant did not seek an amendment to his pleadings, the affirmative defense of contributory negligence was waived. Groff v. Circle K. Corp., 1974 -NMCA-081, 86 N.M. 531, 525 P.2d 891. Instruction is proper only if plaintiff pleads the theory or it is tried by express or implied consent. Rice v. Gideon, 1974-NMCA-050, 86 N.M. 560, 525 P.2d 920, cert. quashed, 87 N.M. 299, 532 P.2d 888. Unpled issue not tried by implied consent. - Since the evidence admitted without objection was relevant to both a pled issue and an unpled issue, the unpled issue was not litigated under implied consent. In re Estate of Kimble, 1994-NMCA-028, 117 N.M. 258, 871 P.2d 22. Amendment should be allowed as to litigated issues. - If a material fact has been omitted from the pleadings, but the fact is litigated as if it had been put in issue by the pleadings, then it is the duty of the trial court to amend the complaint in aid of the judgment so as to allege the omitted fact. Wynne v. Pino, 1967-NMSC-254, 78 N.M. 520, 433 P.2d 499. Under Subdivision (b) (see now Paragraph B) an amendment to set forth defenses proved though not pleaded should be allowed upon timely motion. Skeet v. Wilson, 1966-NMSC-182, 76 N.M. 697, 417 P.2d 889. There is wide latitude given district courts to amend pleadings to conform to the evidence. South Second Livestock Auction, Inc. v. Roberts, 1961-NMSC-130, 69 N.M. 155, 364 P.2d 859. Subdivision (b) (see now Paragraph B) requires that the court may and should permit the pleadings to be freely amended in order to aid in the presentation of the merits of the controversy, as long as the opposing party is not actually prejudiced, and Rule 9(k) (see now Rule 1-009) , now integrated with the Rules of Civil Procedure, should be construed to conform with the general tenor of the rules, i.e., to reach the merits of the controversy and not determine the case on a mere technicality. Kleeman v. Fogerson, 1964-NMSC-246, 74 N.M. 688, 397 P.2d 716. To correct factual discrepancy in pleadings. - Assignment of error on court's allowance of amendment to correct factual discrepancy in pleadings was denied, where the court had permitted amendment of the pleadings to conform to the evidence, as is permissible under Subdivision (b) (see now Paragraph B). Vigil v. Johnson, 1955-NMSC-102, 60 N.M. 273, 291 P.2d 312 (replevin action). Where pleading was drawn on misinformation. - When a bill in equity was drawn on misinformation as to the real facts, which were only disclosed at the trial, complainants were entitled to amend their bill on final hearing so that the pleadings would conform to the facts by leave of the court. Perea v. Gallegos, 1889-NMSC-008, 5 N.M. 102, 20 P. 105. In workmen's compensation case. - By Subdivision (b) (see now Paragraph B), specifically made applicable to workmen's compensation cases arising on and after July 1, 1959, the trial court is given wide discretion in its allowance of amendments to conform to the evidence. Winter v. Roberson Constr. Co., 1962 -NMSC-076, 70 N.M. 187, 372 P.2d 381. To increase amount sued for. - Trial court had authority to allow an amendment to increase the amount sued for where defendant did not show any prejudice to his defense as a result of the amendment. Measday v. Sweazea, 1968-NMCA-008, 78 N.M. 781, 438 P.2d 525. To allow recovery on quantum meruit. - Recovery should be allowed on quantum meruit even though the suit was originally framed on express contract, and amendment to pleadings should be freely allowed to accomplish this purpose at any stage of the proceeding, including considering the pleadings amended to conform to the proof. Montgomery v. Cook, 1966-NMSC-073, 76 N.M. 199, 413 P.2d 477; State ex rel. Gary v. Fireman's Fund Indem. Co., 1960 -NMSC-100, 67 N.M. 360, 355 P.2d 291; Honaker v. Ralph Pool's Albuquerque Auto Sales, Inc., 1964-NMSC-142, 74 N.M. 458, 394 P.2d 978. To name other persons charged with illegal voting. - Amendment of petition for election contest was properly allowed after testimony was closed, so as to name other persons charged with illegal voting. Berry v. Hull, 1892-NMSC-029, 6 N.M. 643, 30 P. 936. To assert defense of limitations. - The amendment of pleadings for the purpose of asserting the statute of limitations is a matter resting within the sound discretion of the trial court. Chavez v. Kitsch, 1962-NMSC-122, 70 N.M. 439, 374 P.2d 497. Appellees, who failed to plead the statute of limitations as an affirmative defense in their answer, have waived this defense under Rule 12(h) (see now Rule 1-012 NMRA), and this defense, having been waived, cannot be revived unless appellees are relieved from their default by the trial court upon a motion to amend the answer so as to plead the defense of the statute of limitations. Chavez v. Kitsch, 1962-NMSC-122, 70 N.M. 439, 374 P.2d 497. A trial court may allow pleadings to be amended to set up the statute of limitations defense, although generally it is true the defense is waived under Rule 12(h) (see now Paragraph H of Rule 1-012 NMRA) 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. Defense of waiver. - Where party amended his counterclaim at conclusion of trial to insert defense of waiver, the court held that the amendment was to conform the pleadings to the evidence under Subdivision (b) (see now Paragraph B) and not to insert an affirmative defense under Rule 8(c) (see now Rule 1-008 NMRA). Western Farm Bureau Mut. Ins. Co. v. Lee, 1957-NMSC-055, 63 N.M. 59, 312 P.2d 1068. Defense of fraud. - Where, after plaintiff has rested case and defendant raises defense of fraud, not in pleadings, notifies court and plaintiff, and plaintiff is not surprised nor prejudiced and in fact presents witnesses in defense, it is proper, after judgment is entered, to move for an amendment of the pleadings to conform to the evidence on fraud. Citizens Bank v. C & H Constr. & Paving Co., 1976-NMCA-063, 89 N.M. 360, 552 P.2d 796, cert. denied, 90 N.M. 7, 558 P.2d 619, modified, State ex rel. Citizens Bank v. Fowlie, 1977-NMSC-022, 90 N.M. 208, 561 P.2d 208. Pleadings are treated as amended to include litigated issues. - Where issues not within the pleadings are fully litigated without objection, the pleadings are treated as amended by the trial court or the appellate court so as to put in issue all litigated issues. Luvaul v. Holmes, 1957-NMSC-073, 63 N.M. 193, 315 P.2d 837; Bauer v. Bates Lumber Co., 1972-NMCA-149, 84 N.M. 391, 503 P.2d 1169, cert. denied, 84 N.M. 390, 503 P.2d 1168. Issues tried by express or implied consent of the parties will be treated as if they had been raised in the pleadings. Terry v. Terry, 1970-NMSC-135, 82 N.M. 113, 476 P.2d 772. When an issue was tried by express or implied consent of the parties, then the trial court was obliged to treat this issue in all respects as if it had been raised in the pleadings, even had the complaint not been amended. Wynne v. Pino, 1967-NMSC-254, 78 N.M. 520, 433 P.2d 499. Such as balance due. - Where the complaint did not specifically allege a balance due, the evidence was not within the pleadings, and appellant did not amend his complaint to conform to the evidence, this was not fatal, as an actual amendment need not be made. Failure so to amend does not affect the result of the trial of these issues. Luvaul v. Holmes, 1957-NMSC-073, 63 N.M. 193, 315 P.2d 837. Amount advanced to defendant. - Where defendant argued that the court found and allowed recovery to plaintiffs on account of money advanced to defendant of a larger amount than was sued for in their complaint, but evidence supporting the amount found to have been advanced was admitted without objection, it was not error for the court to treat the complaint amended in this regard to conform to the proof. Allsup v. Space, 1961-NMSC-175, 69 N.M. 353, 367 P.2d 531. Greater danger from breach. - Where subcontractor did not object to evidence that subcontractor's breach resulted in greater danger to contractor than original cross-complaint specified, the trial court could treat the cross-complaint as amended to conform with the evidence admitted without objection and made findings accordingly. Tyner v. DiPaolo, 1966-NMSC-129, 76 N.M. 483, 416 P.2d 150. Requirement of contractor's license. - Where appellants made no objection to evidence of contractor's license and raised neither the jurisdiction nor the limitation question at trial, and requested no findings on either question, the requirement of the allegation of a contractor's license was a matter of public policy and did not otherwise bear any relation to the cause of action; an appellant cannot object to appellate court treating an issue tried with consent of the parties as though it had been raised by the pleadings. Daughtrey v. Carpenter, 1970-NMSC-151, 82 N.M. 173, 477 P.2d 807. Affirmative defense should be pleaded as new matter. - The defense that defendants' easement was altered by lawful authority is an affirmative defense of justification, a plea of confession and avoidance, and rightly should be pleaded as new matter. Posey v. Dove, 1953-NMSC-019, 57 N.M. 200, 257 P.2d 541 (see Paragraph C of Rule 1-008 ). Not available if not pleaded. - Those matters constituting an avoidance or affirmative defense not pleaded as required by the rules are not available as a defense. McLean v. Paddock, 1967-NMSC-165, 78 N.M. 234, 430 P.2d 392, overruled on other grounds, Duke City Lumber Co. v. Terrel, 1975-NMSC-041, 88 N.M. 299, 540 P.2d 229. If there is no finding or pleading on issue, no amendment will be implied. - Where mitigation of damages, as a defense to appellant's counterclaim, did not appear in plaintiff-cross-appellee's requested findings and conclusions, and where appellant made no mention of any theory of mitigation of damages, the pleadings will not be considered amended to conform to the proof. Moya v. Fidelity & Cas. Co., 1965-NMSC-110, 1953-NMSC-019, 75 N.M. 462, 406 P.2d 173. Issue may be passed on if evidence supports it. - If it appears that a defense complained of is available under the issues litigated, and that substantial competent evidence supports its prerequisite facts found by the court, the trial court does not commit error in considering such defense and making decision on it. Posey v. Dove, 1953-NMSC-019, 57 N.M. 200, 257 P.2d 541. Such as invalidity of ordinance. - In an action by plaintiff-landowner seeking to enjoin defendants, city, city council and city planning commission from reconsidering a zoning ordinance, although defendants failed to plead the invalidity of the ordinance as an affirmative defense but rather entered an oral general denial, and although defendants failed to amend their answer to include this affirmative defense during or after the hearing on the merits, where the evidence as to the invalidity of the ordinance was presented without objection (although its import was not recognized until later), the issue was subsequently argued, and the trial court specifically ruled upon that issue in its findings of fact and conclusions of law, Subdivision (b) (see now Paragraph B) was held to be sufficiently broad to allow amendment of the pleadings to conform to the issues and evidence raised during trial, failure to amend did not affect the result of the trial of these issues and the issue of the invalidity of the ordinance was properly before the court. Dale J. Bellamah Corp. v. City of Santa Fe, 1975-NMSC-045, 88 N.M. 288, 540 P.2d 218. Equitable estoppel. - Although equitable estoppel is an affirmative defense and must be pleaded in the answer, which the appellant failed to do, the supreme court has the authority to review the issue notwithstanding appellant's failure to plead same in the lower court. Hall v. Bryant, 1959-NMSC-097, 66 N.M. 280, 347 P.2d 171. Adverse possession. - If defense of adverse possession is litigated without a plea, absence of a special plea is cured. Conway v. San Miguel Cnty. Bd. of Educ., 1955-NMSC-008, 59 N.M. 242, 282 P.2d 719. Failure to amend does not affect result on litigated issues. - Even if district court was without jurisdiction to modify its previous custody decree, since plaintiff's motion to modify failed to specifically allege that a change of circumstances had occurred, where the question that was litigated, and in which the defendant fully participated, was whether the custody provisions should be changed, and where defendant claimed no surprise and made no objection to the custody issue being heard, it was not necessary for plaintiff to formally move to amend his pleadings, because failure so to amend does not affect the result of the trial on the issues litigated. Terry v. Terry, 1970-NMSC-135, 82 N.M. 113, 476 P.2d 772. Failure to formally amend the pleadings will not jeopardize a verdict or judgment based upon competent evidence. If an amendment to the pleadings to conform to the proof should have been made, the appellate court will presume that it is so made to support the judgment. Kleeman v. Fogerson, 1964-NMSC-246, 74 N.M. 688, 397 P.2d 716. It is unimportant if party was put on notice of issue. - Where during defendant's cross-examination of plaintiff, plaintiff announced that his complaint alleged punitive damages and defendant made no objection to this comment, and during the trial of the case defendant made no objection to any evidence which might bear on the issue of fraud or bad faith, defendant was put on notice of the issue of punitive damages. The fact that an amendment to the complaint was not actually made to use the words "punitive damages" is unimportant. Curtiss v. Aetna Life Ins. Co., 1976 -NMCA-057, 90 N.M. 105, 560 P.2d 169, cert. denied, 90 N.M. 7, 558 P.2d 619. Where issues are tried by express or implied consent of the parties, that is, upon the admission, without objection, of evidence upon an issue not pleaded, the pleadings will be treated as if they had been amended and the issue raised thereby, and the fact that the amendment was not actually made is unimportant. Aguayo v. Village of Chama, 1969-NMSC-005, 79 N.M. 729, 449 P.2d 331. Where issues are tried by express or implied consent of the parties, they will be treated as if they had been raised in the pleadings. That the amendments were not actually made is unimportant. Berkstresser v. Voight, 1958-NMSC-017, 63 N.M. 470, 321 P.2d 1115. Failure to amend is not an issue on appeal. - Where the defendant did not affirmatively plead illegality as a defense in its answer as required by Rule 8(c) (see now Rule 1-008 NMRA) nor did the defendant at any time during or after the hearing move to amend its answer to include this affirmative defense as provided by Subdivision (b) (see now Paragraph B), but the testimony of defendant's president at trial raised the issue of illegality and was litigated without objection and specifically ruled upon by the trial court, the defendant's failure to affirmatively plead or move to amend at trial does not become an issue on appeal. Terrill v. Western Am. Life Ins. Co., 1973 -NMSC-080, 85 N.M. 456, 513 P.2d 390. Pleading will be treated in all respects as amended. - Where the court permitted an amendment to the pleadings to conform to the evidence, the complaint will be treated in all respects as so amended, and a failure to formally amend the pleadings does not affect the result of the trial on such issues. Irwin v. Lamar, 1964-NMSC-253, 74 N.M. 811, 399 P.2d 400. Amendment to conform caption of complaint to evidence and remainder of the pleading is proper even after trial on the merits. Roybal v. Morris, 1983-NMCA-101, 100 N.M. 305, 669 P.2d 1100. The test should be whether the defendant would be prejudiced by the implied amendment, i.e., whether he had a fair opportunity to defend and whether he could offer any additional evidence if the case were to be retried on a different theory. Wynne v. Pino, 1967-NMSC-254, 78 N.M. 520, 433 P.2d 499. Amendment allowed where no prejudice to opposing party. - When an amendment of the pleadings to conform to the proof presented at trial is asked, and there is no express or implied consent to the amendment, the test is whether prejudice would result to the opposing party if the amendment were allowed, i.e., whether the party would have a fair opportunity to defend and whether he could offer any additional evidence if the case were to be retried on a different theory. Camp v. Bernalillo Cnty. Med. Center, 1981-NMCA-069, 96 N.M. 611, 633 P.2d 719. Because defendant knew of plaintiff's claims through his discovery requests, pretrial motions, trial brief, and requested jury instructions, defendant had a fair opportunity to defend, and therefore was not prejudiced by trial court's order allowing plaintiff to amend pleadings to conform to evidence. Enriquez v. Cochran, 1998-NMCA-157, 126 N.M. 196, 967 P.2d 1136, cert. denied, 126 N.M. 532, 972 P.2d 351. Evidence on pleaded issue does not authorize amendment as to another issue. - The purpose of an amendment to conform to proof is to bring the pleadings in line with the actual issues upon which the case was tried. There is no authorization within Subdivision (b) (see now Paragraph B) to allow an amendment to the pleadings to conform to proof merely because evidence presented which is competent and relevant to the issue created by the pleadings may incidentally tend to prove another fact not in issue. Moya v. Fidelity & Cas. Co., 1965-NMSC-110, 75 N.M. 462, 406 P.2d 173. Trial court may not amend sua sponte to give itself jurisdiction. - A trial court does not have the power sua sponte to exercise its own jurisdiction of the subject matter by its own amendment of a party's pleadings, since in order that jurisdiction may be exercised, there must be a case legally before the court; if a material element is omitted, no legal cause of action is stated and no jurisdiction to render a judgment arises. Branch v. Mays, 1976-NMCA-086, 89 N.M. 536, 554 P.2d 1297. Judgment may not grant relief not requested nor within theory of trial. - A judgment may not grant relief which is neither requested by the pleadings nor within the theory on which the case was tried. Federal Nat'l Mtg. Ass'n v. Rose Realty, Inc., 1968-NMSC-102, 79 N.M. 281, 442 P.2d 593); Holmes v. Faycus, 1973-NMCA-147, 85 N.M. 740, 516 P.2d 1123. Amendment after judgment stating a new cause of action or a new defense is not permissible under the guise of conforming the pleadings to the proof and the court was right in striking the amendments from the records and reinstating the original judgment. Wynne v. Pino, 1967-NMSC-254, 78 N.M. 520, 433 P.2d 499. Since there was no consent to trial of unrecognized issue. - The purpose of an amendment to conform to proof is to bring the pleadings in line with the actual issues upon which the case was tried; therefore, an amendment after judgment is not permissible which brings in some entirely extrinsic issue or changes the theory on which the case was actually tried, even though there is evidence in the record - introduced as relevant to some other issue - which would support the amendment. This principle is sound, since it cannot be fairly said that there is any implied consent to try an issue where the parties do not squarely recognize it as an issue in the trial. Wynne v. Pino, 1967-NMSC-254, 78 N.M. 520, 433 P.2d 499. Inconsistent claims may be stated. - In an original complaint or in an amended complaint a party may plead inconsistent claims. Honaker v. Ralph Pool's Albuquerque Auto Sales, Inc., 1964-NMSC-142, 74 N.M. 458, 394 P.2d 978. There is no room for the application of the doctrine of election of remedies under applicable rules of procedure. Honaker v. Ralph Pool's Albuquerque Auto Sales, Inc., 1964-NMSC-142, 74 N.M. 458, 394 P.2d 978 (complaint for rescission amended to seek damages for fraud). Failure to object to evidence is implied consent to litigating issue. - Where bailment theory of relief in negligence case was not raised by pleadings, but facts necessary to support such theory were presented in evidence at trial without objection by opposing party, such issue was tried by implied consent. White v. Wayne A. Lowdermilk, Inc., 1973-NMCA-058, 85 N.M. 100, 509 P.2d 575. In the absence of any objection to evidence on an issue not raised by the pleadings, the party failing to object has impliedly consented to the amendment of the pleading to conform to the evidence. In re Sedillo, 1972-NMSC-050, 84 N.M. 10, 498 P.2d 1353 (disbarment proceeding). Where the evidence relative to the question of delivery was in large part developed by the defendant, and evidence relative to this question, which was developed by the plaintiff, was received without objection, then insofar as the fact of delivery was litigated, it was done with the implied consent of defendant. Wynne v. Pino, 1967-NMSC-254, 78 N.M. 520, 433 P.2d 499. Broaching issue on cross-examination. - Where defendants failed to plead waiver of mechanic's liens as an affirmative defense, but intervenors broached the issue when they asked defendant's witness during cross-examination about the existence, identification and usage of the lien waivers, the issue was tried by implied consent during cross-examination, and defendant on redirect could pursue the issue. Objection made by intervenors at the end of the testimony upon redirect was not timely. George M. Morris Constr. Co. v. Four Seasons Motor Inn, Inc., 1977-NMSC-064, 90 N.M. 654, 567 P.2d 965. Unless evidence is relevant to another issue. - Implied consent usually is found where one party raises an issue material to the other party's case, or where evidence is introduced without objection. However, consent cannot be implied where the evidence introduced is relevant to some other issue and the parties do not squarely recognize it as an issue in the trial. Rice v. Gideon, 1974-NMCA-050, 86 N.M. 560, 525 P.2d 920, cert. quashed, 87 N.M. 299, 532 P.2d 888. Objecting party does not impliedly consent to trial of issue. - The recognized cases of "implied consent" under Subdivision (b) (see now Paragraph B) are those where the evidence is introduced without objection or when it is introduced by the party who would be in a position to complain of its irrelevancy. Where a party properly objects to the introduction of evidence as being irrelevant or collateral to the pleading, he cannot be considered as having impliedly consented to trial of the issue under this rule. Neither can he be said to have waived his objection by combatting the objectionable evidence within the scope it was introduced. Landers v. Atchison, T. & S.F. Ry., 1961 -NMSC-017, 68 N.M. 130, 359 P.2d 522. If there is objection, pleading may be amended. - The phrase in the third sentence of Subdivision (b) (see now Paragraph B), that the court may allow the pleadings to be amended, has been interpreted by the court of appeals to mean that the court may allow the pleadings to be amended when the proponent of evidence objected to seeks or offers an amendment. Branch v. Mays, 1976-NMCA-086, 89 N.M. 536, 554 P.2d 1297. Amendment will not be implied. - Where evidence on an issue not in the pleadings has been admitted over objection and the pleadings have not been amended, no amendment can be implied. In re Valdez, 1975-NMSC-050, 88 N.M. 338, 540 P.2d 818; McLean v. Paddock, 1967-NMSC-165, 78 N.M. 234, 430 P.2d 392, overruled on other grounds, Duke City Lumber Co. v. Terrel, 1975-NMSC-041, 88 N.M. 299, 540 P.2d 229. Appellant cannot take advantage of appellee's proof for first time on appeal. - Although failure to plead matter which constitutes an affirmative defense does not preclude a party from taking advantage of the opposing party's proof, if the proof establishes the defense, appellant cannot take advantage of appellee's proof for the first time on appeal. Fredenburgh v. Allied Van Lines, 1968-NMSC-174, 79 N.M. 593, 446 P.2d 868. Where trial court did not rely on amended complaint. - Defendant's contention that the trial court erred in permitting plaintiff to amend his complaint to conform to the evidence was without merit where the trial court neither considered nor based its judgment on the allegations in the amended complaint to which evidence defendant objected at the trial and defendant made no showing that he was prejudiced by the allowance of the amendment. Silva v. Noble, 1973-NMSC-106, 85 N.M. 677, 515 P.2d 1281. C. RELATION BACK. Failure to assert a meritorious defense. - Where the plaintiff proposes to amend its complaint to add the defendant as a party, the defendant's failure to set forth a meritorious defense is not grounds for the court to deny the defendant's motion to vacate. Capco Acquiscub, Inc. v. Greka Energy Corp., 2008-NMCA-153, 145 N.M. 328, 198 P.3d 354. Amendment adding defendant at the close of the trial. - Where the defendant was a named party in a case that was consolidated with a second case in which the defendant's subsidiaries were named defendants; the defendant had notice of the claims against its subsidiaries in the second case; the complaint in the second case did not contain any allegations with respect to the defendant; the plaintiff in the second case never served the defendant with process; and the defendant participated in the consolidated proceedings, the trial court denied the defendant due process by permitting the plaintiff in the second case to amend its complaint at the close of the trial of the second case to name the defendant as a party to the second case and by immediately entering a money judgment against the defendant in the second case. Capco Acquiscub, Inc. v. Greka Energy Corp., 2008-NMCA-153, 145 N.M. 328, 198 P.3d 354. Amended complaint deemed filed on the day the motion for leave to amend is filed. - Filing a motion for leave of court to amend a complaint with the proposed complaint attached should be treated as the functional equivalent of filing an original complaint, subject to permission subsequently granted by the district court. Snow v. Warren Power & Mach., Inc., 2015-NMSC-026, rev'g 2014-NMCA-054, 326 P.3d 33. Where plaintiffs filed a motion for leave to amend complaint on the final day before the period allowed under the statute of limitations would expire and attached the proposed amended complaint as an exhibit to the motion, the New Mexico Supreme Court held that the amended complaint should be deemed filed on the day the motion for leave to amend was filed, because the provisions of Subsection A of this rule, requiring leave of court to amend a complaint, leaves a plaintiff with little or no control over when the amended complaint may be filed. Snow v. Warren Power & Mach., Inc., 2015-NMSC-026, rev'g 2014-NMCA-054, 326 P.3d 33. Amendment adding defendants after statute of limitations expires. - Where plaintiff was injured when a hose assembly came loose from a water pump and struck plaintiff in the leg; the hose was manufactured by defendant Midwest and sold to defendant Warren who rented the hose to defendant Brininstool who supplied the hose to the refinery where plaintiff worked; plaintiff's initial complaint did not name Midwest and Brininstool; on January 20, 2011, the final day before the statute of limitations expired, plaintiff filed a motion to file a second amended complaint to add Warren and Brininstool as defendants; the district court granted the motion on January 27, 2012; plaintiff filed the second amended complaint on January 30, 2012; Warren and Brininstool were informed of the accident and plaintiff's injuries immediately after it occurred; it was not until service of the second amended complaint that Brininstool received notice of the suit; Warren was served with a subpoena one month before the statute of limitations expired requesting documents relevant to the accident; and plaintiff did not assert that a mistake had been made concerning the identity of Warren and its relation to the hose assembly and plaintiff failed to show that plaintiff exercised due diligence to investigate and identity Warren as a defendant, the complaint against Brininstool did not relate back to the initial complaint under Rule 1-015(C)(1) NMRA and the complaint against Warren did not relate back to the initial complaint under Rule 1-015(C)(2) NMRA. Snow v. Warren Power & Machinery, Inc., 2014-NMCA-054, cert. granted, 2014-NMCERT-005. Paragraph C contains at least two notice requirements, both of which must be satisfied within the limitations period. Romero v. Ole Tires, Inc., 1984-NMCA-092, 101 N.M. 759, 688 P.2d 1263. Under Paragraph C, it is not enough that a defendant is aware that an action may be brought by the plaintiff. Rather, Subparagraph C(1) requires that a plaintiff prove that the defendant received notice of the institution of the action. Romero v. Bachicha, 2001-NMCA-048, 130 N.M. 610, 28 P.3d 1151. "Changing" construed. - The word "changing", in Paragraph C should be given a liberal construction, so that amendments adding or dropping parties, as well as amendments substituting parties, fall within the rule. Romero v. Ole Tires, Inc., 1984-NMCA-092, 101 N.M. 759, 688 P.2d 1263. "Mistake" construed. - The word "mistake", as used in Paragraph C, does not ordinarily encompass failure to include a proper party as a result of lack of knowledge that the party exists. Romero v. Ole Tires, Inc., 1984-NMCA-092, 101 N.M. 759, 688 P.2d 1263. To relate back, claim for relief must have been made in time. - The test of whether an amended pleading relates back to the original pleading is whether a "claim for relief " was made or attempted within the statutory period. Brito v. Carpenter, 1970-NMSC-104, 81 N.M. 716, 472 P.2d 979. Amendment relates back to original complaint date. - Where the allegations in the amended complaint had to do with the conduct, transaction or occurrence set forth in the original complaint, they relate back to the date in the original complaint. Dellaria & Carnes v. Farmers Ins. Exch., 2004 -NMCA-132, 136 N.M. 552, 102 P.3d 111. Omitted counterclaim. - The strong liberal amendment policy expressed in this rule indicates that an omitted counterclaim should relate back provided it arose from the same conduct, transaction, or occurrence set forth in the original pleading. State Sav. & Loan Ass'n v. Rendon, 1986-NMSC-002, 103 N.M. 698, 712 P.2d 1360. General wrong and general conduct causing it control. - Under Paragraph C the general wrong suffered and the general conduct causing the wrong are the controlling considerations. Scott v. Newsom, 1964-NMSC-173, 74 N.M. 399, 394 P.2d 253. Rather than legal theory of action. - Under Paragraph C the specified conduct of the defendant, upon which the plaintiff relies to enforce his claim, is to be examined rather than the theory of law upon which the action is brought. Scott v. Newsom, 1964-NMSC-173, 74 N.M. 399, 394 P.2d 253. Pleading statute of frauds does not prevent relation back. - Where the plea of the statute of frauds was merely an allegation of an additional legal theory which originally was not relied upon and it arose out of the transaction or occurrence set forth in the original answer, merely adding new consequences, the amendment should relate back. If the amendment had introduced an entirely different claim for relief, then the relation back theory would be inapplicable. Carney v. McGinnis, 1961-NMSC-006, 68 N.M. 68, 358 P.2d 694. Amended occupational disease disablement claim relates back. - All that is required by 52-3-42 NMSA 1978 is the timely filing of a complaint. An amended claim may relate back to the date of the original claim if such amended claim arose out of the same conduct, transaction or occurrence as the claim set forth in the original complaint. If it did, it will be related back to the date of the filing of the original complaint. Holman v. Oriental Refinery, 1965-NMSC-029, 75 N.M. 52, 400 P.2d 471. Correction of earlier complaint by later one. - Where plaintiff suffered two falls and sued on the second fall and the subsequent injuries that it caused, but misstated the dates of the second fall in the original complaint, the trial court correctly allowed an amended complaint, relating back to the original complaint, with the correct date of the second fall. Bagwell v. Shady Grove Truck Stop, 1986-NMCA-013, 104 N.M. 14, 715 P.2d 462. Relation back allowed where parties with real interest had sufficient notice. - Where no one had been appointed personal representative at the time plaintiff's original complaint against persons she thought were representatives was filed, and she then filed an amended complaint after the statute of limitations had run, naming decedent's insurer and "John Doe" as the unknown personal representative of decedent's estate as defendants, the amendment related back because, before the expiration of the statute of limitations, the parties with a real interest in the estate had received sufficient notice of the mistaken identity and they would not be prejudiced in maintaining a defense on the merits. Macias v. Jaramillo, 2000-NMCA-086, 129 N.M. 578, 11 P.3d 153. Amended complaint alleging libel not permitted to relate back to fiduciary breach count. - Where original complaint alleged a breach of contractual and fiduciary duties, a count in an amended complaint alleging libel will not be permitted to "relate back" under Paragraph C. Raven v. Marsh, 1980-NMCA-017, 94 N.M. 116, 607 P.2d 654. Former time limit in 3-21-9 NMSA 1978 not extended by this rule. - This rule, governing the relation back of amended pleadings, cannot be construed to extend the former 30-day time limit of 3-21-9 NMSA 1978 for appeal from a decision of the zoning authority. Citizens for Los Alamos, Inc. v. Incorporated Cnty. of Los Alamos, 1986-NMSC-063, 104 N.M. 571, 725 P.2d 250. Amendment of affidavit in replevin relates back to the date of the original affidavit. First Nat'l Bank v. Southwest Yacht & Marine Supply Corp., 1984-NMSC-075, 101 N.M. 431, 684 P.2d 517. No relation back where original complaint deemed nullity. - Where an amended complaint seeks damages against the state, the department of corrections and its employees under the Tort Claims Act (41-4-1 through 41-4-27 NMSA 1978), and where the original complaint is a nullity, there is no relation back. DeVargas v. State ex rel. N.M. Dep't of Cors., 1981-NMCA-109, 97 N.M. 447, 640 P.2d 1327, cert. quashed, 97 N.M. 563, 642 P.2d 166 (1982). An amendment to a complaint which is filed after the statute of limitations has run does not relate back to the original filing where the original complaint does not state a cause of action. DeVargas v. State ex rel. N.M. Dep't of Cors., 1981-NMCA-109, 97 N.M. 447, 640 P.2d 1327, cert. quashed, 97 N.M. 563, 642 P.2d 166 (1982). Where lack of reasonable diligence in proceeding against original John Doe defendants. - The filing of an original complaint naming John Doe defendants does not toll the running of the statute of limitation against defendants added in an amended complaint where there is a lack of reasonable diligence in proceeding against the John Doe defendants. DeVargas v. State ex rel. N.M. Dep't of Cors., 1981-NMCA-109, 97 N.M. 447, 640 P.2d 1327 (Ct. App. 1981), cert. quashed, 97 N.M. 563, 642 P.2d 166 (1982). New party must have received timely notice. - An amendment changing parties relates back only if the new party received the requisite notice within the period provided by law for commencing the action against him. The personal representative of a tort-feasor should be put in no worse position as to defending stale claims than the tort-feasor, had he lived. Mercer v. Morgan, 1974-NMCA-102, 86 N.M. 711, 526 P.2d 1304. The amended complaint against the defendant did not "relate back" to the date of filing the original complaint since the defendant was not affiliated with or related to either of originally named defendants and had no notice of the suit within the three year limitations period. Fernandez v. Char-Li-Jon, Inc., 1994-NMCA-130, 119 N.M. 25, 888 P.2d 471. Where the plaintiff waited until after an incorrect name in his complaint was amended before serving the defendant, the defendant was not a party to the action, and the court would not assume that the defendant had sufficient notice under Subparagraphs C(1) and (2), but required the plaintiff to bear his burden of proving that adequate notice was given within the period for commencing the action. Romero v. Bachicha, 2001-NMCA-048, 130 N.M. 610, 28 P.3d 1151. The period includes time for service. - Under Rule 1-015(C) NMRA, the period for commencing an action includes the reasonable time allowed under Rule 1-004(F) NMRA for service of process. To the extent that Fernandez v. Char-Li-Jon, Inc., 1994-NMCA-130, 119 N.M. 25, 888 P.2d 471 or other similar cases appear to hold otherwise, these opinions are not to be followed. Romero v. Bachicha, 2001-NMCA-048, 130 N.M. 610, 28 P.3d 1151. Relation back only where identity of interests between old and new defendants. - An amendment may relate back to the filing of the action only when there is such an identity of interest between the old and new defendants that relation back is not prejudicial to the party to be added. Galion v. Conmaco Int'l, Inc., 1983-NMSC-006, 99 N.M. 403, 658 P.2d 1130. Between parent company and subsidiary. - Where a parent company and its subsidiary have a substantial identity of interest, Paragraph C permits the relation back of an amendment to the complaint to substitute defendants as long as service of process has been effected within the reasonable time allowed under the Rules of Civil Procedure, even though the limitations period has expired. Galion v. Conmaco, Int'l, Inc., 1983-NMSC-006, 99 N.M. 403, 658 P.2d 1130. Between natural parents of deceased tort victim and personal representatives. - Although 41-2-3 NMSA 1978 requires that every wrongful death action shall be brought by the personal representatives, an action for malpractice and wrongful death brought under the Tort Claims Act (41-4-1 through 41-4-27 NMSA 1978) by the natural parents of a deceased girl within the limitation period was not barred because the parents failed to secure court appointment as personal representatives within the two-year limitation period of 41-4-15 NMSA 1978, due to the operation of Paragraph C and Rule 1-017 (real party in interest). Chavez v. Regents of Univ. of N.M., 1985-NMSC-114, 103 N.M. 606, 711 P.2d 883. Representation by counsel involved since inception. - The fact that both the original defendants and the defendants sought to be added were represented by counsel who were involved in the litigation since its inception was a significant factor in evaluating the identity of interest shared by the original and the new defendants, in determining whether an amendment relates back to the original complaint. Rivera v. King, 1988-NMCA-093, 108 N.M. 5, 765 P.2d 1187. Effect of Paragraph C on personal representative resulting in abatement of action. Valdez v. Ballenger, 1978-NMSC-055, 91 N.M. 785, 581 P.2d 1280. Complaint against dead or nonexistent defendant cannot be amended after period. - A suit brought against a defendant who is already deceased is a nullity and of no legal effect, and therefore where an action is brought against a defendant who is dead or nonexistent, the complaint may not be amended after the period of the statute of limitations has expired so as to bring in a defendant having the capacity to be sued; the rule of relation back would not apply since there could be no suit to relate back to. Mercer v. Morgan, 1974-NMCA-102, 86 N.M. 711, 526 P.2d 1304. Filing amended complaint does not automatically revive right to jury trial. - When a jury has been waived by failure to make timely demand the right to a jury trial is not automatically revived by the filing of an amended pleading. Griego v. Roybal, 1968-NMSC-077, 79 N.M. 273, 442 P.2d 585. Where amendment pleads no new issues and arose from same occurrence. - Demand for jury trial was not timely made where original complaint was in the nature of a suit for an accounting and amended complaint, though given label of "trover and conversion," pleaded no new issues and arose out of the same conduct, transaction or occurrence set out in the original complaint. Brown v. Dougherty, 1964-NMSC-058, 74 N.M. 80, 390 P.2d 665. III. SUPPLEMENTAL PLEADINGS. Supplemental pleadings and amended pleadings are different in that a supplemental pleading relates to facts which arose after the original pleading was filed, whereas an amended pleading includes matters that occurred before. Electric Supply Co. v. United States Fid. & Guar. Co., 1969-NMSC-003, 79 N.M. 722, 449 P.2d 324. A supplemental pleading alleges facts arising after the original pleading was filed, whereas an amended pleading includes facts that occurred before. Cagan v. Village of Angel Fire, 2005-NMCA-059, 137 N.M. 570, 113 P.3d 393. Newly discovered existing facts are brought in by amendment. - Facts newly discovered but previously existing are properly brought in by amended, not supplemental, pleading. Colcott v. Sutherland, 1932-NMSC-068, 36 N.M. 370, 16 P.2d 399. Supplemental pleading may be filed after remand by appellate court. - Supplemental bill may be filed after case has been remanded by appellate court for the purpose of obtaining further evidence. Rio Grande Dam & Irrigation Co. v. United States, 215 U.S. 266, 30 S. Ct. 97, 54 L. Ed. 190 (1909). May ask different relief. - Another or different order of relief from that asked in the original complaint may be prayed in a supplemental complaint. Atchison, T. & S.F. Ry. v. Citizens' Traction & Power Co., 1919-NMSC-031, 25 N.M. 345, 182 P. 871. Section 2685, subd. 87, C.L. 1897 (105-612, C.S. 1929), allowed the allegation in a supplemental complaint of such facts as authorized other and different relief. United States v. Rio Grande Dam & Irrigation Co., 1906-NMSC-013, 13 N.M. 386, 85 P. 393, aff'd, 215 U.S. 266, 30 S. Ct. 97, 54 L. Ed. 190 (1909). Failure to file supplemental pleading does not waive defense based on subsequent happenings. - Subdivision (d) (see now Paragraph D) has to do with supplemental pleadings, and there is nothing therein that would require the parties to have applied to the court to file a supplemental answer, alleging an accord and satisfaction, or that, failing to do so, the right to rely upon happenings since the date of the answers would be waived, as Rule 12(h) (see now Rule 1-012 NMRA) does not contemplate a waiver under these circumstances. Electric Supply Co. v. United States Fid. & Guar. Co., 1969-NMSC-003, 79 N.M. 722, 449 P.2d 324 (defense properly considered in connection with motion for summary judgment). Pleadings in federal court before remand to state court. - Pleadings filed in federal court, while the federal court has jurisdiction, become part of the state court record on remand. State ex rel. Vill. of Los Ranchos De Albuquerque v. City of Albuquerque, 1993-NMCA-147, 119 N.M. 169, 889 P.2d 204, rev'd on other grounds, 1994-NMSC-126, 119 N.M. 150, 889 P.2d 185. Formerly, no notice was required if supplemental pleading was filed and served in term. - Where a supplemental complaint was filed in term time and on the same day that it was served on defendant's counsel, no notice of hearing of the application for leave to file was necessary. United States v. Rio Grande Dam & Irrigation Co., 1906-NMSC-013, 13 N.M. 386, 85 P. 393, aff'd, 215 U.S. 266, 30 S. Ct. 97, 54 L. Ed. 190 (1909). IV. SETTING FORTH ALL MATTERS. Purpose of Subdivision (e) (see now Paragraph E) is to prevent surprise and prejudice and to serve the convenience of court, counsel and litigants by avoiding the necessity of rummaging through court files to discover operative pleadings scattered about therein. Biebelle v. Norero, 1973-NMSC-052, 85 N.M. 182, 510 P.2d 506. Subdivision (e) (see now Paragraph E) is not applicable where there were no supplemental pleadings. Curtis Mfg. Co. v. Barela, 1966-NMSC-112, 76 N.M. 392, 415 P.2d 361. All matters in original not carried forward are abandoned. - In every amendatory or supplemental pleading filed by a party it is necessary for him to restate his entire cause of action, defense or reply, and all matters set forth in his original pleading and not carried forward are abandoned, and a judgment for the defendant dismissing a cause on the merits is res judicata only as to such matters as were carried forward into the amendatory complaint. Albright v. Albright, 1916-NMSC-024, 21 N.M. 606, 157 P. 662. Cause of action must be restated in supplemental pleading. - It is necessary for a pleader filing a supplemental pleading to restate his entire cause of action, defense or reply, and all matters not carried forward are abandoned. Albright v. Albright, 1916-NMSC-024, 21 N.M. 606, 157 P. 662. Including issue on which case is remanded. - Where plaintiff fails to tender as an issue in his supplemental complaint the only matter the court was given jurisdiction to ascertain on remand, the plaintiff must be held to have abandoned all the allegations in his original complaint not carried forward into his amended or supplemental complaint. Primus v. Clark, 1954-NMSC-079, 58 N.M. 588, 273 P.2d 963. Counterclaim must be part of amended answer. - Subdivision (e) (see now Paragraph E) requires a party to set forth in one entire pleading all matters which are necessary to be determined; the failure to reallege allegations of an original pleading constitutes an abandonment of those allegations not realleged. Since Rule 7(a) (see now Rule 1-007 NMRA) requires a counterclaim to be a part of an answer, it is apparent that Subdivision (e) (see now Paragraph E) requires a counterclaim, if there is one, to be a part of an amended answer. Griego v. Roybal, 1968-NMSC-077, 79 N.M. 273, 442 P.2d 585. Unless counterclaim is set for trial or tried without objection. - Failure to incorporate a previously filed counterclaim into an amended answer as required by Subdivision (e) (see now Paragraph E) is not a sound basis for its dismissal where there is neither surprise nor prejudice, or where the pretrial order regularly entered states the issues of the counterclaim to be pending for trial (Rule 16 (see now Rule 1-016 NMRA)) or where such issues are actually tried without objection (Subdivision (b) (see now Paragraph B)). Biebelle v. Norero, 1973-NMSC-052, 85 N.M. 182, 510 P.2d 506 (dismissal of counterclaim held harmless error). Striking of an amended complaint leaves the original complaint in force. State ex rel. Peteet v. Frenger, 1929-NMSC-030, 34 N.M. 151, 278 P. 208. Seeking additional damages does not abandon original complaint. - A supplemental complaint which does not purport to abandon an original complaint, but on the other hand purports to sue for damages in addition to those sued for in the original complaint, does not operate as an abandonment of the original complaint. Weeks v. Bailey, 1931-NMSC-026, 35 N.M. 417, 300 P. 358. Law reviews. - For article, "The `New Rules' in New Mexico," see 1 Nat. Resources J. 96 (1961). For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961). For survey, "Civil Procedure in New Mexico in 1975," see 6 N.M.L. Rev. 367 (1976). For article, "Medical Malpractice Legislation in New Mexico," see 7 N.M.L. Rev. 5 (1976-77). For annual survey of New Mexico law relating to civil procedure, see 12 N.M.L. Rev. 97 (1982). For annual survey of New Mexico law relating to civil procedure, see 13 N.M.L. Rev. 251 (1983). For article, "Survey of New Mexico Law, 1982-83: Civil Procedure," see 14 N.M.L. Rev. 17 (1984). 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. - 9A Am. Jur. 2d Bankruptcy §756; 12 Am. Jur. 2d Bills and Notes §650; 61A Am. Jur. 2d Pleading §§745 to 787; 61B Am. Jur. 2d Pleading §§789 to 880. Pleading last clear chance doctrine, 25 A.L.R.2d 254. Amendment of pleading to assert statute of limitations, 59 A.L.R.2d 169. Timely suit to enforce policy as interrupting limitation against claimant's amended pleading to reform it, or vice versa, 92 A.L.R.2d 168. Right to amend pending personal injury action by including action for wrongful death after statute of limitations has run against independent death action, 71 A.L.R.3d 933. Amendment of pleading after limitation has run, so as to set up subsequent appointment as executor or administrator of plaintiff who professed to bring the action in that capacity without previous valid appointment, 27 A.L.R.4th 198. Amendment of pleading to add, substitute or change capacity of party plaintiff as relating back to date of original pleading under Rule 15(c) of Federal Rules of Civil Procedure so as to avoid bar of limitations, 12 A.L.R. Fed. 233, 100 A.L.R. Fed. 880. What constitutes "prejudice" to party who objects to evidence outside issues made by pleadings so as to preclude amendment of pleadings under Rule 15(b) of Federal Rules of Civil Procedure, 20 A.L.R. Fed. 448. Rule 15(c), Federal Rules of Civil Procedure, or state law as governing relation back of amended pleading, 100 A.L.R. Fed. 880. 71 C.J.S. Pleading §§ 275 to 338.