{
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    "judges": [
      "DONNELLY and GARCIA, JJ., concur."
    ],
    "parties": [
      "James D. ROMERO and L. Norene Romero, Plaintiffs-Appellees, v. U.S. LIFE INSURANCE COMPANY OF DALLAS, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nMINZNER, Judge.\nA motion for clarification having been filed by plaintiffs, the prior opinion is withdrawn and the following is substituted.\nDefendant brings an interlocutory appeal from the trial court\u2019s denial of its motion to dismiss for failure to state a claim. This court accepted two issues for review. They are: (1) whether the trial court erred in considering matters outside the record in ruling on the motion to dismiss; and (2) whether the trial court erred in failing to dismiss the complaint on the basis the claim was time-barred. We reverse.\nFacts and Proceedings Below\nOn March 7,1984, plaintiffs sued defendant, claiming damages by reason of the recording of a \u201cNotice of Subrogation\u201d on October 5, 1978. Defendant\u2019s notice indicated it was entitled to be subrogated to the rights of the Internal Revenue Service because defendant had paid a federal tax lien asserted against plaintiffs\u2019 property. Plaintiffs\u2019 complaint also alleged damages by reason of defendant\u2019s suit to foreclose the tax lien and the notice of lis pendens filed November 6, 1978. The prior litigation, in which this court denied defendant\u2019s right to subrogation, is reported at 98 N.M. 699, 652 P.2d 249 (Ct.App.1982).\nDefendant\u2019s amended answer alleged, among other things, that plaintiffs\u2019 claim was barred by the statute of limitations; defendant subsequently moved to dismiss the complaint. After a hearing, both parties filed memorandum of law. Plaintiffs argued that their cause of action had not accrued until the foreclosure suit terminated. Defendant argued that, because the counterclaims had been dismissed, plaintiffs\u2019 cause of action had not been tolled. See King v. Lujan, 98 N.M. 179, 646 P.2d 1243 (1982). Plaintiffs also argued that defendant was estopped from relying on the statute because of its representation in the prior suit that the claim had been asserted prematurely.\nThe trial court denied the motion on the ground that plaintiffs\u2019 counterclaims to defendant\u2019s foreclosure suit had tolled the statute of limitations. Alternatively, the trial court found that defendant was es-topped from asserting the statute. The trial court, however, certified issues for an interlocutory appeal. See NMSA 1978, \u00a7 39-3-4. The trial court also granted plaintiffs\u2019 motion to amend their complaint. Discussion\nOn appeal, defendant first contends that the trial court erred in failing to dismiss the complaint because the face of the complaint showed the claim was barred. Plaintiffs argue that their complaint and defendant\u2019s answer contained sufficient facts from which the trial court could have made its determination or, alternatively, that the trial court was entitled to take judicial notice of its own records. See NMSA 1978, Evid.R. 201 (Repl.Pamp.1983). Defendant contends the trial court erred in considering the record of the foreclosure suit because neither party had requested that the motion be treated as one for summary judgment, see Civ.P.Rule 12(b) (Repl.Pamp. 1980), and because defendant had objected to such treatment. See Emery v. University of New Mexico Medical Center, 96 N.M. 144, 628 P.2d 1140 (Ct.App.1981).\nOn consideration of the arguments and the record on appeal, we conclude that we need not answer the first question certified. Plaintiffs\u2019 contention that the trial court properly considered matters other than the pleadings in effect asks us to affirm the trial court as right for the wrong reason. See State v. Beachum, 83 N.M. 526, 494 P.2d 188 (Ct.App.1972). For the reasons that follow, defendant\u2019s motion to dismiss for failure to state a claim should have been granted.\nIn ruling on a motion to dismiss, all facts well-pleaded are accepted as true. Candelaria v. Robinson, 93 N.M. 786, 606 P.2d 196 (Ct.App.1980). Only the allegations of the complaint, however, are to be considered. McNutt v. New Mexico State Tribune Co., 88 N.M. 162, 538 P.2d 804 (Ct.App.1975). Legal conclusions or inferences that may be drawn from the allegations are not admitted. Id.\nPlaintiffs argue that the complaint contained sufficient facts from which the trial court could infer that the statute had been tolled while the prior proceedings were pending. We disagree.\nPlaintiffs\u2019 complaint alleges a wrongful act in 1978, from which they first suffered damages later the same year. There are no allegations concerning the counterclaims. We need not decide whether the statute of limitations for slander of title suits in New Mexico is the three-year limitation for personal injury, NMSA 1978, Section 37-1-8, or the four-year limitation for damages to property or for no unspecified actions, NMSA 1978, Section 37-1-4. We also need not decide whether the cause of action accrued when plaintiffs suffered damages, see Shenefield v. Axtell, 274 Or. 279, 545 P.2d 876 (1976), or when defendant\u2019s notice was recorded. There being no allegations in the complaint as to tolling and estoppel, we agree that defendant\u2019s motion to dismiss should have been granted. Stringer v. Dudoich, 92 N.M. 98, 583 P.2d 462 (1978); Rather v. Allen County War Memorial Hospital, 429 S.W.2d 860 (Ky.1968). Plaintiffs\u2019 complaint stated facts that showed a cause of action which by 1984 was barred by the passage of time. Cf. Hernandez v. Anaya, 66 N.M. 1, 340 P.2d 838 (1959).\nAlternatively, plaintiffs have argued that the trial court could properly take judicial notice of its records in an earlier case involving these parties. We recognize the court\u2019s inherent power to judicially notice its own records without specifically approving the court\u2019s procedure in this case. See Frost v. Markham, 86 N.M. 261, 522 P.2d 808 (1974).\nNevertheless, when matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment. Transamerica Insurance Co. v. Sydow, 97 N.M. 51, 636 P.2d 322 (Ct.App.1981); NMSA 1978, Civ.P.R. 12(b) (Repl.Pamp. 1980). Whatever may have been the propriety of the trial court\u2019s consideration of matters outside the pleadings, we do not have before us the proceedings of the foreclosure suit, part of which apparently formed the basis of the trial court\u2019s disposition of defendant\u2019s motion. Absent the record of those facts, no question is presented to this court for review. See Richardson Ford Sales v. Cummins, 74 N.M. 271, 393 P.2d 11 (1964).\nThe trial court erred in its denial of defendant\u2019s motion to dismiss plaintiffs\u2019 claim. We reverse the trial court and remand with instructions for the trial court to grant defendant\u2019s motion. Dismissal shall be without prejudice. No costs are awarded.\nIT IS SO ORDERED.\nDONNELLY and GARCIA, JJ., concur.",
        "type": "majority",
        "author": "MINZNER, Judge."
      }
    ],
    "attorneys": [
      "Paul A. Phillips, Dan A. McKinnon, III, Marr\u00f3n, McKinnon & Ewing, Albuquerque, for plaintiffs-appellees.",
      "Leonard G. Espinosa, Moses, Dunn, Beckley, Espinosa & Tuthill, Albuquerque, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "719 P.2d 819\nJames D. ROMERO and L. Norene Romero, Plaintiffs-Appellees, v. U.S. LIFE INSURANCE COMPANY OF DALLAS, Defendant-Appellant.\nNo. 8550.\nCourt of Appeals of New Mexico.\nMay 1, 1986.\nPaul A. Phillips, Dan A. McKinnon, III, Marr\u00f3n, McKinnon & Ewing, Albuquerque, for plaintiffs-appellees.\nLeonard G. Espinosa, Moses, Dunn, Beckley, Espinosa & Tuthill, Albuquerque, for defendant-appellant."
  },
  "file_name": "0241-01",
  "first_page_order": 275,
  "last_page_order": 277
}