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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 EDITH ELLESS, Individually and as 2 PERSONAL REPRESENTATIVE of 3 the Estate of HAROLD ELLESS, JR., 4 and JIMMY ELLESS and MICHAEL 5 ELLESS, Individually, 6 Plaintiffs, 7

v. No. 31,537 8 ARTESIA GENERAL HOSPITAL, 9 Defendant/Third-Party Plaintiff-Appellant, 10

v. 11 JOCELYN RAMOSO, M.D., 12 Third-Party Defendant-Appellee. 13 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 14 Thomas A. Rutledge, District Judge 15 Sandenaw Law Firm, P.C. 16 CaraLyn Banks 17 Thomas A. Sandenaw 18 Las Cruces, NM 19 for Appellant 20 Butt, Thorton & Baehr, P.C. 21 Emily A. Franke 22 W. Ann Maggiore 232 Albuquerque, NM 1 for Appellee 2 MEMORANDUM OPINION 3 FRY, Judge. 4
{1} Plaintiff Artesia General Hospital (AGH) appeals the district court’s order 5 granting Defendant Dr. Jocelyn Ramoso’s motion to dismiss AGH’s third-party 6 complaint for indemnification. AGH argues th at the district court erred in concluding 7 that: (1) its third-party co mplaint failed to state a claim for indemnification against 8 Dr. Ramoso; (2) AGH’s amended third-party complaint was barred under the Medical 9 Malpractice Act’s (MMA) statute of repos e, NMSA 1978, Section 41-5-13 (1976); (3) 10 the contractual indemnification provisi on between AGH and Dr. Ramoso prevented 11 AGH from seeking equitable indemnificati on; and (4) equitable estoppel barred AGH 12 from pursuing indemnification against Dr. Ramoso because of its previous denials of 13 her negligence. We agree with AGH that it sufficiently stated a claim for equitable 14 indemnification and that the amended third-party complaint related back to the 15 original third-party complaint. We further agree that the issue regarding the 16 contractual indemnification provision is not properly before us and that the record 17 reveals no basis for the district court’s appli cation of equitable estoppel. We therefore 18

reverse. 193 BACKGROUND 1
{2} On August 28, 2006, the family of HaroldElless, Jr. (the decedent) filed a 2 complaint for medical malpractice and wrongful death against Dr. Ramoso and her 3 employer, AGH. The decedent died on Janu ary 7, 2006, while allegedly under the 4 care of Dr. Ramoso after being admitted tothe emergency department at AGH. The 5 complaint alleged nine distinct acts of negligence committed by Dr. Ramoso and 6 sought to hold AGH vicariously liable for Dr. Ramoso’s acts and omissions as well 7 as for the acts or omissions of other AGH employees allegedly involved in the 8 negligent treatment of Elless. In its an swer to the Ellesses’ complaint, AGH denied 9 that Dr. Ramoso or any of its employees were negligent in their treatment of the 10 decedent. 11
{3} The Ellesses subsequently filed thei r first amended complaint against AGH, 12 which dismissed Dr. Ramoso as a defendant but continued to allegeher nine separate 13 acts of negligence and AGH’s vicarious liab ility for those acts. AGH, in answer to 14 the Ellesses’ first amended complaint, c ontinued to deny that Dr. Ramoso or any of 15 its employees were negligent. 16
{4} The Ellesses later sought and were granted leave to file a second amended 17 complaint. The second amended complaint added a claim against AGH for its alleged 18 negligent hiring and retention of Dr. Ramoso but continued to allege specific 194 negligent acts and omissions by Dr. Ramoso. Consistent with its previous answers, 1 AGH denied that Dr. Ramoso was negligen t in her treatment of the decedent. 2
{5} On July 31, 2008, AGH filed a third-party complaint for indemnification 3 against Dr. Ramoso (original complaint). AGH’s original complaint incorporated the 4 Ellesses’ allegations that Dr. Ramoso established a physician-patient relationship with 5 the decedent and that she “dep arted from the standard of care and failed to possess and 6 apply the knowledge and skill and care ordi narily used by a reasonably qualified 7 physician.” AGH also referenced the Ellesse s’ specific allegations of Dr. Ramoso’s 8 negligent acts or omissions and their alle gations that AGH was vicariously liable for 9 those acts or omissions. Finally, AGH alleged that if it were “found liable for any 10 portion of an award that [the Ellesses] might receive as a result of the separate acts or 11 omissions of . . . Dr. Ramoso, AGH is entitled to indemnification from Dr. Ramoso 12 for those proportions of such an award th at may be attributed to Dr. Ramoso’s 13 negligence.” 14
{6} Meanwhile, AGH also began attempting to settle the underlying lawsuit with 15 the Ellesses. The parties reached a confidential settlement on the Ellesses’ claims, and 16 the underlying lawsuit was dismissed on December 16, 2008. AGH had notified Dr. 17 Ramoso of the “tentatively” scheduled date for the formal mediation. However, the 185 record does not reflect that Dr. Ramoso or her professional liability carrier participated 1 in the settlement attempts. 2
{7} Following settlement, AGH filed an unoppos ed motion for leave to amend its 3 original complaint. AGH sought, among other things, to amend the original complaint 4 to reflect the dismissal of the underlying laws uit. AGH also removed its denials of Dr. 5 Ramoso’s and its own negligence that were in cluded in the original complaint. The 6 district court granted AGH’s motion, and AGH filed the amended third-party 7 complaint for indemnification (amended co mplaint) on May 18, 2009, three years and 8 four months after the decedent’s death. 9
{8} On January 26, 2010, Dr. Ramoso filed her first motion to dismiss the amended 10 complaint. Dr. Ramoso argued that the amended complaint was, in fact, a “new” 11 complaint that “converted [AGH’s] indemnification cause of action into a medical 12 negligence one.” Therefore, Dr. Ramoso argued that the amended complaint was 13 subject to the MMA’s three-year statute of repose and should bebarred as untimely. 14 See § 41-5-13. The district court conclude d that the amended complaint related back 15 to the filing of the original complaint and denied the motion to dismiss. 16
{9} Dr. Ramoso then filed a motion for summary judgment arguing that the 17 indemnity provision in Dr. Ramoso’s employment contract prevented AGH from 18 pursuing common law indemnification clai ms against Dr. Ramoso. Dr. Ramoso 196 contended that the contractual indemn ity provision set out the parties’ full 1 understanding of Dr. Ramoso’s indemnity liability and that AGH’s equitable 2 indemnification theories should not be usedto circumvent the specific agreement of 3 the parties. The district court found that there were genuine issues of material fact and 4 denied Dr. Ramoso’s motion for summary judgment. 5
{10} Following the district court’s denial of summary judgment, this Court decided 6 Christus St. Vincent Reg’l Med. Ctr. v. Duarte-Afara , which held that claims for 7 equitable indemnification between a hos pital/employer and a doctor/employee are 8 “malpractice claim[s]” and subject to the MMA’s statute of repose. 2011-NMCA9 112, ¶ 15, 267 P.3d 70 (internal quotation marks omitted), cert. quashed , 2012- 10 NMCERT-005, 294 P.3d 447. Soon thereafter, Dr. Ramoso filed a second motion to 11 dismiss on the same basis as her first moti on to dismiss, this time with the added 12 authority of Christus St. Vincent , and she further argued that the amended complaint 13 failed to allege medical negligence by Dr. Ramoso. The district court granted Dr. 14 Ramoso’s second motion to dismiss, from which AGH now appeals. 15 DISCUSSION 16 Standard of Review 17
{11} This appeal arises from an order dismi ssing a complaint for failure to state a 18 claim upon which relief may be granted. Th erefore, we apply the following standard: 197 A motion to dismiss pursuant to Rule1-012(B)(6) NMRA . . . tests the 1 legal sufficiency of the complaint. In reviewing an order granting a 2 motion to dismiss, we accept as true all facts properly pleaded. A 3 complaint is subject to dismissal under Rule 1-012(B )(6) only if under 4 no state of facts provable thereunder would a plaintiff be entitled to 5 relief. . . . Under this standard of review only the law applicable to such 6 claim is tested, not the facts which support it. 7 Hovet v. Lujan , 2003-NMCA-061, ¶ 8, 133 N.M. 611, 66 P.3d 980 (alterations, 8 internal quotation marks, and citation omitted). 9 The District Court Did Not Reverse Its Previous Denial of Summary Judgment 10
{12} We agree with AGH that the issue regarding the contractual indemnity 11 provision, which was raised in Dr. Ramos o’s denied motion for summary judgment, 12 is not properly before us. Having review ed the record, we understand that AGH felt 13 compelled to raise this issue in its appealbecause the district court included in its 14 order granting Dr. Ramoso’s second motion to dismiss certain findings of fact and 15 conclusions of law regarding th is issue. Nevertheless, weconclude that these findings 16 of fact and conclusions of law were not an appropriate means by which the district 17 court could have effectively reversed its previous denial of Dr. Ramoso’s motion for 18 summary judgment, especially because the district court gave no indication that it 19 intended to do so. 20
{13} As noted above, the district court initially concluded that there were genuine 21 issues of material fact as to whether the contractual indemnity provision limited 228 AGH’s right to indemnity from Dr. Ramoso to the specific ci rcumstances listed in the 1 indemnity provision. The district court denied summary judgment on this basis. 2 Following this denial, Dr. Ramoso did not atte mpt to revive her argument on this issue 3 either in her second motion to dismiss or at the hearing on her second motion to 4 dismiss. However, at the conclusion of the hearing on Dr. Ramoso’s second motion 5 to dismiss, the district court asked the parties to submit proposed findings of fact and 6 conclusions of law. This was an unusual re quest, given that a motion to dismiss tests 7 the sufficiency of a claim rather than the facts supporting a claim. See Hovet , 2003- 8 NMCA-061, ¶ 8. Dr. Ramoso, in additi on to proposing factual findings consistent 9 with her second motion to dismiss, submitted proposed findings of fact and 10 conclusions of law relevant to her previously denied motion for summary judgment. 11 The district court adopted these findings, including a factual finding that the 12 circumstances listed in the contractual indemnity provision granting a right to 13 indemnity were not present under the facts of this case and a conclusion of law that 14 “[c]ontractual claims for indemnification control over common law claims for 15 indemnification.” 16
{14} We have emphasized before that findings of fact and conc lusions of law are 17 improper when granting summary judgmen t “because the basic premise underlying 18 an award of summary judgment is the absence of any genuine issues of material fact.” 199 Durham v. Sw. Developers Joint Venture , 2000-NMCA-010, ¶ 45, 128 N.M. 648, 996 1 P.2d 911; see Cordova v. State Taxati on & Revenue, Prop. Tax Div. , 2005-NMCA2 009, ¶ 37 n.4, 136 N.M. 713, 104 P.3d 1104 (“We once again emphasize that it is not 3 necessary, nor is it even proper, for orders granting summary judgment to include 4 findings of fact because such findings are inconsistent with the very premise of a 5 motion for summary judgment.”). This similarly holds true in the context of a motion 6 to dismiss for failure to state a claim for relief. “The purpose of a motion to dismiss 7 for failure to state a claim for relief is to te st the legal sufficiency of the claim, not the 8 facts that support it.” Trujillo v. Berry , 106 N.M. 86, 87, 738 P.2d 1331, 1332 (Ct. 9 App. 1987). 10
{15} In this case, Dr. Ramoso did not filea motion for reconsideration following 11 denial of her summary judgment motion, nor did she attempt to re-argue the issue in 12 the context of her second motion to dismiss. Consequently, AGH had no notice that 13 Dr. Ramoso was attempting to revive the issu e. Furthermore, the district court gave 14 no indication that it was reconsidering its previous ruling on Dr. Ramoso’s motion for 15 summary judgment. Under these circumst ances, we will not construe the district 16 court’s ruling on the second motion to dismiss as also reversing its previous denial of 17 summary judgment based only on the inclus ion of unnecessary and improper findings 18 of fact and conclusions of law. Therefore, we disregard the district court’s findings 1910 of fact and conclusions law and proceed toconsider only whether the district court 1 properly granted Dr. Ramoso’s second motion to dismiss on the basis of failure to 2 state a claim under Rule 1-012(B)(6). 3 The District Court Erred in Granting Dr . Ramoso’s Second Motion to Dismiss 4
{16} AGH assigns two errors to the district court’s ruling. First, AGH argues that 5 the district court erred in c oncluding that the amended comp laint failed to state a claim 6 because it did not make explicit allegati ons of medical negligence by Dr. Ramoso. 7 Second, AGH argues that the district court erred in concluding that its amended 8 complaint for indemnification was barre d by the MMA’s statute of repose. See § 41- 9 5-13 (“No claim for malpractice arising outof an act of malpractice . . . may be 10 brought against a health care provider unless f iled within three year s after the date that 11 the act of malpractice occurre d[.]”). We address each of these contentions in turn. 12
{17} In Christus St. Vincent , this Court considered whether claims for equitable 13 indemnification fall within the MMA’s broad definition of “malpractice claim[s].” 14 2011-NMCA-112, ¶¶ 13-15. In examining the nature of equitable indemnification, 15 this Court reiterated that to state such a claim the plaintiff “must allege that the 16 defendant [or indemnitor] caused some direct harmto a third party and that the 17 plaintiff or [indemnitee] discharged the resulting liability from this harm.” Id. ¶ 14 18 (alterations in original) (internal quotati on marks and citation omitted). In other 1911 words, the “indemnitor must be at least partlyliable to the original plaintiff for his or 1 her injuries.” Id. (internal quotation marks and citation omitted) A claim for 2 equitable indemnification and a claim of malpractice may overlap when the 3 “gravamen of the third-party action is predicated upon the allegation of professional 4 negligence by a practicing physician.” Christus St. Vincent , 2011-NMCA-112, ¶ 15 5 (internal quotation marks and citation omitted). 6
{18} AGH’s amended complaint incorporated the Ellesses’ allegations in the 7 underlying lawsuit regarding Dr. Ramoso’s specific and separate acts or omissions 8 that constituted alleged departures from the standard of care. It further incorporated 9 the Ellesses’ allegations that AGH was vi cariously liable for Dr. Ramoso’s acts or 10 omissions. Finally, for each count of indemn ification, AGH alleged that, to the extent 11 that it was found liable for the decedent’s in juries, it was entitled to indemnification 12 from Dr. Ramoso. Based upon these allegations, we conclude that AGH stated a 13 claim for equitable indemnification agai nst Dr. Ramoso. The amended complaint 14 sufficiently provided notice of the acts or omissions of Dr. Ramoso that allegedly 15 caused direct harm to the decedent, and it provided the basis for AGH’s potential 16 obligation to discharge the resulting liability from this harm. See Christus St. Vincent , 17 2011-NMCA-112, ¶ 14. 1812 {19} To the extent that Dr. Ramoso argues thatAGH’s failure to explicitly admit Dr. 1 Ramoso’s negligence is fatal, we disagree. The amended complaint, like the original 2 complaint, repeatedly referred to Dr. Ramos o’s alleged acts and omissions in treating 3 the decedent as “purported negligence.” U nder our liberal notice pleading standard, 4 regardless of whether the allegations of negligence were characterized as purported 5 or actual, they were sufficient to appris e Dr. Ramoso of the basis of AGH’s claims. 6 General allegations are sufficient “as long as they show that th e party is entitled to 7 relief and the averments are set forth with sufficient detail so that the parties and the 8 court will have a fair idea of the action about which the party is complaining and can 9 see the basis for relief.” Schmitz v. Smentowski , 109 N.M. 386, 389-90, 785 P.2d 726, 10 729-730 (1990). Furthermore, given this Court’s ruling in Christus St. Vincent , 11 hospitals seeking indemnification from a ne gligent doctor will be required, in some 12 instances, to file their indemnification claim while the underlying lawsuit is pending 13 or risk having their indemnification claim barred by the statute of repose. See 14 Christus St. Vincent , 2011-NMCA-112, ¶ 15. Were we to adopt Dr. Ramoso’s 15 argument, a hospital would be requi red to decide between foregoing its 16 indemnification claim or admitting its em ployee’s negligence during the pendency of 17 the underlying lawsuit. That would be an unjust burden, and we accordingly reject Dr. 1813 Ramoso’s invitation to impose it upon AGH in this case. See Rule 1-008(F) NMRA 1 (“All pleadings shall be so construed as to do substantial justice.”). 2
{20} For similar reasons, we also hold that th e district court erred in concluding that 3 AGH’s amended complaint was barred by the MMA’s statute of repose. See § 41-5- 4 13. AGH’s original complaint, undisputedlyfiled within the three-year statute of 5 repose, included qualifying language denying that Dr. Ramos o was negligent. After 6 AGH settled the underlying case, AGH’s unopposed motion to amend the original 7 complaint was granted by the district court. Because the amende d complaint removed 8 AGH’s denials of Dr. Ramoso’s negligence and sought indemnification for the 9 settlement amounts paid by AGH, Dr. Ramoso argued that the amended complaint 10 was effectively transformed into a “new” complaint. Therefore, Dr. Ramoso argued 11 that the amended complaint should be barre d since it was filed after the statute of 12 repose deadline expired. See Christus St. Vincent , 2011-NMCA-112, ¶¶ 13-15 13 (holding that hospital’s equitable indemnif ication claims against a doctor arising out 14 of alleged acts of professional negligen ce were “malpractice claim[s]” for the 15 purposes of MMA and subject to the MMA ’s three year statute of repose). 16
{21} Dr. Ramoso’s attempts to characteri ze the amended complaint as a “new” 17 complaint are unpersuasive. In denying Dr . Ramoso’s first motion to dismiss on this 18 basis, the district court originally, and correctly, concluded that the amended 1914 complaint related back to the original complaint. Under Rule 1-015(C) NMRA, an 1 amendment to a pleading may relate back to the original filing date when “the claim 2 . . . asserted in the amended pleading ar ose out of the conduct, transaction[,] or 3 occurrence set forth or attempte d to be set forth in the original pleading.” The basis 4 of AGH’s amendments reflected the underlying settlement but still arose out of the 5 same facts forming the basis of the originalcomplaint. Furthermore, even if we were 6 to agree with Dr. Ramoso that the amended complaint stated a ne w claim or cause of 7 action, we would still conclude that the amended complaint related back to the 8 original filing date. “A new cause of acti on may be alleged in an amended complaint, 9 provided [that] it is founded on facts not wholly foreign to the facts originally 10 pleaded.” Newbold v. Florance , 54 N.M. 296, 299, 222 P.2d 1085, 1087 (1950). 11 Therefore, because the origin al complaint was timely filed, we hold that the amended 12 complaint was not barred by the MMA’s statute of repose. 13 Equitable Estoppel Does Not Apply to AGH’s Amended Complaint 14
{22} Dr. Ramoso only peripherally mentioned the doctrine of equitable estoppel in 15 her second motion to dismiss, and she completely failed to mention the doctrine at the 16 hearing on her second motion to dismiss. Nevertheless, the district court adopted 17 findings that the doctrine of equitable est oppel bars AGH’s claims for indemnification 18 against Dr. Ramoso. For that reason alone we express the same reservation regarding 1915 this issue on appeal as we did for those findings of fact and conclusions of law 1 adopted by the district court relevant to the summary judgment issue discussed above. 2

{23} However, we also note that application of equitable estoppel requires more than 3 a party simply taking an inconsistent position. See Vill. of Angel Fire v. Bd. of Cnty. 4 Comm’rs of Colfax Cnty. , 2010-NMCA-038, ¶ 21, 148 N.M. 804, 242 P.3d 371 5 (listing six elements of an equitable estoppe l claim). Among the myriad of factors that 6 a district court is to consider, we have emphasized that there mu st be some showing 7 of a material and detrimental change in position by the party invoking equitable 8 estoppel. Envtl. Control, Inc. v. City of Santa Fe , 2002-NMCA-003,¶ 23, 131 N.M. 9 450, 38 P.3d 891 (“[T]he party claiming estoppe l must assert that in reliance on the 10 conduct of the party to be es topped, it was induced to takeor for[e]go a position to its 11 prejudice or detriment.”). Because Dr. Ramoso failed to make this showing, we hold 12 that the district court erred in concluding that the doctrine of equitable estoppel barred 13 AGH’s claims for indemnification. 14 CONCLUSION 15
{24} For the foregoing reasons, we reverse th e district court’s order granting Dr. 16 Ramoso’s motion to dismiss. 1716 {25} IT IS SO ORDERED. 1

2 CYNTHIA A. FRY, Judge 3 WE CONCUR: 4

5 TIMOTHY L. GARCIA, Judge 6

7 M. MONICA ZAMORA, Judge 8