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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-40620

MARGARET PADILLA, Individually

and as Personal Representative of

the ESTATE OF BETTY J. PADILLA,

Plaintiff-Appellant,

v.

PRESBYTERIAN HEALTHCARE SERVICES

d/b/a PLAINS REGIONAL MEDICAL CENTER;

DR. EDWARD JOSEPH PIENKOS; DR. LESLIE 

DONALDSON; and SARAH NEAL, RN,

as employees and/or contractors of PLAINS

REGIONAL MEDICAL CENTER, and in their

individual capacity, 

Defendants-Appellees.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY

Fred T. Van Soelen, District Court Judge

The Law Office of Ross R. Bettis

Ross R. Bettis

Hobbs, NM

for Appellant

Atwood, Malone, Turner & Sabin, P.A.

Carla Neusch Williams

Roswell, NM

for Appellee Presbyterian Health Care Services

Krehbiel & Barnett, P.C.

Ryan Wityak

Albuquerque, NM
for Appellee Leslie Donaldson, M.D.

Edward Joseph Pienkos, MD

Clovis, NM

Pro Se Appellee

Sarah Neal, RN

Clovis, NM

Pro Se Appellee

MEMORANDUM OPINION

DUFFY, Judge.

{1} Plaintiff is appealing from two district court orders dismissing the complaint. The 

first order dismissed the complaint against Defendant Donaldson under the applicable 

three-year statute of limitations for personal injury. [RP 118, 120] See NMSA 1978, § 

37-1-8 (1880). The second order dismissed the complaint against Defendant 

Presbyterian under the applicable three-year statute of repose, which applies to 

qualified healthcare providers. [RP 118, 122] See NMSA 1978, § 41-5-13 (2021); Armijo 

v. Tandysh, 1981-NMCA-098, ¶ 6, 98 N.M. 181, 646 P.2d 1245 (stating that this statute 

of repose applies, inter alia, to wrongful death actions based on medical malpractice), 

overruled on other grounds by Roberts v. Southwest Cmty. Health Servs., 1992-NMSC042, ¶ 19, 114 N.M. 248, 837 P.2d 442. Because the district court considered matters 

outside of the pleadings, we construe the court’s order as one of summary judgment. 

See Tunis v. Country Club Estates Homeowners Ass’n, 2014-NMCA-025, ¶ 17, 318 

P.3d 713.

{2} “Summary judgment is appropriate where there are no genuine issues of material 

fact and the movant is entitled to judgment as a matter of law.” Self v. United Parcel 

Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. “We review these legal 

questions de novo.” Id. 

{3} Here, Plaintiff’s complaint was filed on September 28, 2021, alleging malpractice 

for care received by Decedent on September 20, 2018. [RP 1] The motions to dismiss 

were based on the fact that the complaint was filed past the three-year statutory 

deadlines. [RP 14, 90] This was sufficient to establish a prima facie ground for barring 

the complaint under the applicable limitation periods. See generally Blauwkamp v. Univ. 

of N.M. Hosp., 1992-NMCA-048, ¶ 18, 114 N.M. 228, 836 P.2d 1249 (discussing 

summary judgment burden shifting). In response, Plaintiff claimed that she was first told 

by a family friend that a nurse believed Decedent was given too much medication. [RP 

87] Plaintiff’s second amended complaint specifically claimed that a nurse during 

Decedent’s September 20, 2018, treatment “admitted in front of two witnesses that she 

must have given [Decedent] too much Fentanyl.” [RP 134] Plaintiff’s fraudulent 
concealment claim is based on the alleged failure of Defendants to contemporaneously 

disclose this information. 

{4} As the district court observed in its letter decision, Plaintiff never responded to 

Defendant Donaldson’s motion to dismiss. [RP 118] Where a nonmovant fails to 

respond to a motion for summary judgment, the district court may enter summary 

judgment on the movant’s prima facie case. Freeman v. Fairchild, 2018-NMSC-023, ¶ 

21, 416 P.3d 264. In that circumstance, “[a]ll material facts set forth in the statement of 

the moving party shall be deemed admitted.” Rule 1-056(D)(2) NMRA. As such, we 

conclude that Defendant Donaldson was entitled to summary judgment based on the 

statute of limitations.

{5} With respect to Defendant Presbyterian, the district court relied on Plaintiff’s own 

claim that the alleged concealment was discovered approximately two months after the 

incident occurred. [RP 118] As a result, Plaintiff still had practically all of the statutory 

period left to file her claim, which undermines fraudulent concealment as a basis for 

extending the limitations period. See Blea v. Fields, 2005-NMSC-029, ¶ 28, 138 N.M. 

348, 120 P.3d 430 (noting that, in considering whether the statute of limitations should 

be tolled based on fraudulent concealment, the court considers whether the plaintiff 

“lacked knowledge of her cause of action and could not have discovered it by exercising 

reasonable diligence during the statutory period”). Given the undisputed facts with 

respect to the date of alleged negligence and the asserted date of discovery, we 

conclude that the district court ruling was not made in error. See Tomlinson v. George, 

2005-NMSC-020, ¶¶ 13, 15, 138 N.M. 34, 116 P.3d 105 (concluding that fraudulent 

concealment did not preclude the defendant from asserting the limitations period as a 

defense because the defendant did not prevent the plaintiff from filing suit within the 

statutory period). 

{6} For the reasons set forth above, we affirm.

{7} IT IS SO ORDERED.

MEGAN P. DUFFY, Judge

WE CONCUR:

JENNIFER L. ATTREP, Chief Judge

SHAMMARA H. HENDERSON, Judge