This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 MABRY CONSTRUCTION, INC., 2 FFT LLC, PLACITA DE LA 3 TIERRA, LLC f/k/a TOWN 4 CENTER AT LAS CAMPANAS LLC, 5 and OSO 3 INVESTMENTS LLC, 6 Plaintiffs/Counter-Defendants-Appellants, 7

v. No. 32,731 8 LAS CAMPANAS LIMITED 9 PARTNERSHIP, LAS CAMPANAS 10 CORPORATION, STEPHEN 11 MAROTTA and RICHARD 12 ALTMAN, 13 Defendants/Counterclaimants, 14 and 15 OASIS MANAGEMENT RESOURCES, LLC, 16 Defendant-Appellee. 17 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 18 Sarah M. Singleton, District Judge 19 O’Connell Law LLC 20 Erin B. O’Connell 21 Albuquerque, NM 222 The Zamora Law Firm, LLC 1 D. Diego Zamora 2 Santa Fe, NM 3 for Appellants 4 Law & Resource Planning Associates, P.C. 5 Charles T. DuMars 6 Tanya L. Scott 7 Albuquerque, NM 8 for Appellee 9 MEMORANDUM OPINION 10 VIGIL, Judge. 11 {1} The district court concluded it does no t have personal jurisdiction over the 12 defendant Oasis Management Resources, LLC (OMR), and filed an order of dismissal. 13 After their motion to reconsider was deni ed, Plaintiffs Mabry Construction, Inc.; 14 Placita de la Tierra, LLC f/k/a Town Center at Las Campana s, LLC; and Oso 3 15 Investments, LLC (collectively Mabry) appealed. Concluding that the motion to 16 reconsider was not decided under th e applicable rule, we reverse. 17 BACKGROUND 18 {2} The district court concluded it did not have personal jurisdiction over OMR and 19 filed its order granting OMR’s motion to di smiss on April 20, 2012. Ten days later, 20 on April 30, 2012, Mabry filed a motion to reconsider supported by newly discovered 213 evidence, which it argued showed the districtcourt did have pers onal jurisdiction over 1 OMR. 2 {3} Mabry’s motion to reconsider was denominated as a “Rule 60 Motion,” and 3 alleged that the order dismissi ng OMR was “obtained by fraud and 4 misrepresentations.” See Rule 1-060(B)(3) NMRA (providing that the district court 5 may relieve a party from a final judgment or order for “fraud (whether heretofore 6 denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an 7 adverse party”). At a hearing on the moti on, the district court questioned whether it 8 was limited to the legal grounds asserted in the motion to reconsider. Specifically, the 9 district court questioned the parties whether it could consider any of the other reasons 10 listed under Rule 1-060(B) if it concluded th at the new evidence did not classify as 11 “fraud” under Rule 1-060(B)(3) but, for example, concluded that the evidence was 12 “newly discovered evidence” under Rule 1-060(B)(2). Not surprisingly, Mabry 13 contended that the district court could properly consider any grounds which justified 14 correcting the order, and OMR argued that the court was limited to considering the 15 motion only under Rule 1-060(B)(3). 16 {4} The district court ruled that the new evidence did not amount to fraud under 17 Rule 1-060(B)(3), and ordered the parties to brief “whether the new information that 18 was attached to the Rule 1-060(B) mo tion would qualify as newly discovered 194 evidence [under Rule 1-060(B)(2)] whic h by due diligence could not have been 1 discovered in time to move for a new trial.” Mabry’s brief argued for a liberal 2 construction of Rule 1-060(B), and contende d that the district court was not limited 3 to any specific ground set forth in Rule 1-060(B) because the district court had 4 authority to grant relief to ensure justice and fairness. Moreover, Mabry argued, the 5 evidence was “newly discovered” because it was evidence that was not produced in 6 response to discovery requests wh ich encompassed the documents. 7 {5} The district court ruled that the di scovery request was not broad enough to 8 include the new evidence and therefore, Ru le 1-060(B)(2) did not apply, because it 9 was not newly discovered evidence that OMR should have provided in discovery. 10 Likewise, the district court rejected any consideration of the evidence under Rule 1- 11 060(B)(6) on grounds that Mabry’s motion was pursuant to 1-060(B)(2) or (B)(3) and 12 that (B)(6) by its terms, does not include other grounds set forth in the rule. Rule 1- 13 060(B)(6) (providing that the district court may relieve a part from a final judgment 14 or order for “any other reason justifying relief from the operation of the judgment”). 15 The district court ultimately denied Mabry’s motion to reconsider, and Mabry appeals. 165 STANDARD OF REVIEW 1 {6} We review the district court’s denial of Mabry’s motion to reconsider for an 2 abuse of discretion. See Phelps Dodge Corp. v. Guerra , 1978-NMSC-053, ¶ 20, 92 3 N.M. 47, 582 P.2d 819. However, the scope of a rule “and application of the rule to 4 the facts involve questions of law which we review de novo.” Kinder Morgan CO2 5 Co. v. State Taxation & Revenue Dep’t , 2009-NMCA-019, ¶ 9, 145 N.M. 579, 203 6 P.3d 110. 7 ANALYSIS 8 {7} Our discussion entails a review of Rule 1-059(E) NMRA (2006, amended 2013) 9 and Rule 1-060(B) (2012, amended 2013). Wenote that in 2013, technical changes 10 were made to Rule 1-060 and substantive changes were made to Rule 1-059, thus 11 references in this Opinion to these rules –unless otherwise noted–relate to the version 12 that was in effect in 2012, when Mabry filed its motion to reconsider. 13 {8} Although Mabry filed a “Rule 60B Motion,” the motion was filed ten days after 14 the order dismissing OMR. Under these circumstances, Albuquerque Redi-Mix, Inc. 15 v. Scottsdale Ins. Co. , 2007-NMSC-051, ¶ 10, 142 N.M. 527, 168 P.3d 99 specifically 16 holds “that a motion challenging a judgment, filed within ten days of the judgment, 17 should be considered a Rule 1-059(E) motion to alter or amend a judgment. 18 Nomenclature is not controlli ng.” (Alteration, internal quotation marks, and citation 196 omitted.) See also In re Estate of Keeney , 1995-NMCA-102, ¶ 11, 121 N.M. 58, 908 1 P.2d 751 (treating a motion to reconsider file d within ten days of an order granting 2 summary judgment as a motion under Rule 1- 059(E)). Thus, the timing controls how 3 a court must view a motion to reconsider such as the motion before us in this case. 4 {9} Here, it is clear that the district court was unsure of whether it was restricted to 5 considering Mabry’s motion to reconsider strictly as a motion under Rule 1-060(B)(3), 6 or whether it could consider the motion under another rule. In keeping with the 7 holding of our Supreme Court in Albuquerque Red-Mix , we conclude that the district 8 court was required to consider the motion pur suant to Rule 1-059(E). We do not fault 9 the district court for not c onsidering Rule 1-059(E), because at the time Mabry filed 10 its motion to reconsider, no rule provided for motions “to reconsider” despite the 11 frequency in which th ey were filed. SeeRule 1-059 (2013) comm. cmt. Rule 1- 12 059(E) was amended in 2013 to account for this anomaly, and the rule now expressly 13 covers motions to reconsider. SeeRule 1-059(E) (2013) (titled: “Motion to alter, 14 amend, or reconsider a final judgment” (emphasis added)). 15 {10} Whether Rule 1-060 or Rule 1- 059(E) applies is significant. “ Although Rule 16 [1-060(B)] motions require specific grounds, Rule [1-059(E)], which is subject to 17 severe time limitations, is not so restricted as to the basis for relief. A trial court has 18 considerable discretion to reconsider summary judgment under Rule [1-059(E)].” 197 In re Estate of Keeney , 1995-NMCA-102, ¶ 12 (citation omitted). Furthermore, as to 1 the new materials presented by Mabry in support of the motion to reconsider, 2 In re Estate of Keeneyteaches: “There is no abuse of discretion for the trial court to 3 consider new material as part of a moti on for reconsideration under Rule [1-059] as 4 long as the delay in presenting the new materi al is not just for strategic reasons, and 5 its relevance outweighs any prejudice.” Id

. 6 {11} In light of the foregoing, we conclude th at the order of the district court denying 7 Mabry’s motion to reconsider must be reversed and the case remanded to the district 8 court to decide whether to grant or deny Mabry’s motion to reconsider under Rule 1- 9 059(E). Accordingly, we do not address the merits of whether the district court has 10 personal jurisdiction over OMR, as resoluti on of this question of necessity depends 11 on the district court’s resolution of the motion to reconsider. 12 CONCLUSION 13 {12} The order of the district court denying Mabry’s motion to reconsider is 14 reversed, and the case is remanded for further proceedings consistent with this 15 Opinion. 16 {13} IT IS SO ORDERED. 17

______________________________ 18 MICHAEL E. VIGIL, Judge 198 WE CONCUR: 1

___________________________________ 2 JONATHAN B. SUTIN, Judge 3

___________________________________ 4 LINDA M. VANZI, Judge 5