N.M. R. Civ. P. Dist. Ct. 1-066

As amended through May 8, 2024

Rule 1-066 - Injunctions and receivers

A.Preliminary injunctions; appointment of receivers; notice; bond; hearing.

(1) No preliminary injunction shall be issued nor shall any receiver be appointed without notice to the opposite party.

(2) Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible upon the trial on the merits becomes part of the record on the trial and need not be repeated upon the trial. This subparagraph shall be so construed and applied as to save to the parties any rights they may have to trial by jury.

B.Temporary restraining order; notice; hearing; duration. A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if:

(1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or his attorney can be heard in opposition; and

(2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting his claim that notice should not be required. Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed ten (10) days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period, except that, if a party adverse to the party obtaining a restraining order shall disqualify the judge who would otherwise have heard the matter, then the order shall be deemed extended until ten (10) days after the designation of another judge or until such earlier time as may be fixed by the judge so designated. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence of all matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On two (2) days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event, the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.

C.Security. No restraining order, preliminary injunction or appointment of a receiver shall issue or occur except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained, or whose property may be found to have been thereby wrongfully placed in the hands of a receiver so appointed; provided, however, that for good cause shown and to be recited in the order made, the court or judge may waive the furnishing of security.

D.Security; proceedings against sureties. Whenever these rules require or permit the giving of security by a party, and security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits himself to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the sureties, if their addresses are known.

N.M. R. Civ. P. Dist. Ct. 1-066

For injunctions pending appeal from judgment as to injunction, see Rule 1-062 NMRA. For enjoining delinquent taxpayer from continuing in business, see Section 7-1-53 NMSA 1978. For enjoining payment of salary in quo warranto proceeding for usurpation of office, see Section 44-3-6 NMSA 1978. For actions against receivers for compensation, see Section 44-8-1 NMSA 1978. For injunctions and restraining orders in labor disputes, see Sections 50-3-1 and 50-3-2 NMSA 1978. For receiver in suit to set aside assignment in fraud of creditors, see Section 56-9-4 NMSA 1978. For enforcement of public service commission orders by injunction, see Section 62-12-1 NMSA 1978. For injunctions in actions against public service commission, see Section 62-12-2 NMSA 1978. For restraining orders or injunctions against oil conservation commission or division, see Section 70-2-27 NMSA 1978. For receivers for irrigation districts, see Sections 73-13-38 to 73-13-42 NMSA 1978. Compiler's notes. - Paragraphs A, B and C are similar to former Trial Court Rule 105-1008 and Rule 65 of the Federal Rules of Civil Procedure. Paragraph D is similar to Rule 65.1 of the Federal Rules of Civil Procedure. Section is not confined to creditors' suits but is a procedural rule which applies to a wide variety of litigation situations. Torres v. First State Bank, 588 F.2d 1322 (10th Cir. 1978). This rule is not applicable in criminal sentencing context. State v. Garcia, 2005-NMCA-065, 137 N.M. 583, 113 P.3d 406. Injunction can only bind party. - No court can make a decree which will bind anyone but a party; it cannot lawfully enjoin the world at large, no matter how broadly it words its decree. If it assumes to do so, the decree is pro tanto brutum fulmen. Allen v. McClellan, 1967-NMSC-114, 77 N.M. 801, 427 P.2d 677, overruled on other grounds, New Mexico Livestock Bd. v. Dose, 1980-NMSC-022, 94 N.M. 68, 607 P.2d 606. Rule contemplates notice and hearing for injunction. - The order of the district court allowing an appeal from ad valorem tax valuation and enjoining the state tax commission from certifying tax assessments to county assessors was an abuse of discretion, under the provisions of this rule, which require notice and contemplate a hearing. State ex rel. State Tax Comm'n v. First Judicial Dist. Ct., 1961 -NMSC-157, 69 N.M. 295, 366 P.2d 143. The essence of this rule is to preclude restriction of one's conduct or activities without first giving notice and a hearing to the one to be restrained. In re Doe, 1983-NMCA-025, 99 N.M. 517, 660 P.2d 607. Notice is necessary for consolidated hearing on injunction. - Failure of the court to notify the parties involved, either before or at time of consolidation, verbally or in writing, that consolidation is to take place is reversible error. Cook v. Klopfer, 1974-NMSC-023, 86 N.M. 111, 520 P.2d 267. Although it need not be written notice. - Subdivision (a)(2) (see now Paragraph A(2)) is derived from Rule 65(a)(2) of the Federal Rules of Civil Procedure, and it is required that a consolidation may not be ordered without some kind of notice to the parties; however, this notice need not be in writing so long as it is communicated to the parties involved. Cook v. Klopfer, 1974-NMSC-023, 86 N.M. 111, 520 P.2d 267. Subdivision (b) (see now Paragraph B) has safeguards necessary to meet due process requirements of the U.S. Const., as it orders an expeditious post-seizure hearing following an ex parte seizure order in a debtor-creditor situation. Torres v. First State Bank, 588 F.2d 1322 (10th Cir. 1978). Consolidation which interferes with right to hearing on merits is error. - Procedural due process imposes some limits upon the rule that advancement and consolidation may be ordered without some kind of notice to the parties. The trial court may order advancement and consolidation, and in any manner, so long as it protects the parties' right to a full hearing on the merits. But where defendant requested that hearing be limited to a temporary restraining order, but trial court went further and heard evidence and closing arguments, whereupon it granted a permanent injunction against appellant, not only did the trial court fail to formally order the advancement and consolidation, but also because of the lack of effective notice defendant never had a chance to present testimony of crucial but absent witnesses for his case. For these reasons, and because it advanced and consolidated the case sua sponte, the trial court committed reversible error. Los Lunas Consol. Sch. Dist. No. 1 v. Zbur, 1976-NMSC-036, 89 N.M. 454, 553 P.2d 1261 (1976). Granting of preliminary injunction without notice is not conclusive of probable cause. - Where an injunction is issued after the court is fully informed by proof taken and arguments presented on both sides, the granting of the injunction under those circumstances is conclusive of probable cause, but if a preliminary injunction is granted ex parte on the allegations of the bill, without notice to or hearing of the other side, and afterwards the injunction is dissolved, the granting of the preliminary injunction is not conclusive of probable cause. Bokum v. Elkins, 1960-NMSC-091, 67 N.M. 324, 355 P.2d 137. Denial of permanent injunction after entry of preliminary injunction. - The entry of a preliminary injunction did not prevent the trial court from denying entry of a permanent injunction after considering additional evidence at a final hearing. Insure N.M., LLC v. McGonigle, 2000-NMCA-018, 128 N.M. 611, 995 P.2d 1053. Giving of security is not mandatory under Subdivision (c) (see now Paragraph C), but to a large extent is left to the discretion of the court. Rhodes v. State ex rel. Bliss, 1954-NMSC-085, 58 N.M. 579, 273 P.2d 852. Even erroneous failure to require security does not affect jurisdiction. - Although the issuance of a temporary restraining order without requiring security, absent a stated reason or for an improper stated reason, might well be error subject to reversal on appeal, such failure to require security does not render the order of the court without jurisdiction. Rhodes v. State ex rel. Bliss, 1954-NMSC-085, 58 N.M. 579, 273 P.2d 852. Injunction in private procurement process. - Injunctive relief may be available to a disappointed bidder in a private procurement process. Orion Technical Res., LLC v. Los Alamos Nat'l Sec., LLC, 2012-NMCA-097, 287 P.3d 967. Am. Jur. 2d, A.L.R. and C.J.S. references. - 42 Am. Jur. 2d Injunctions §§1 to 8, 10, 14, 48, 49, 247, 264, 265, 285, 310 to 317, 327, 347, 373, 381; 65 Am. Jur. 2d Receivers §§97, 99 to 106. Rule against collateral attack as applicable to temporary injunction, 12 A.L.R. 1165. Right of invalidly appointed receiver to compensation as such, 34 A.L.R. 1356. Partial dissolution of injunction as breach of injunction bond, 40 A.L.R. 990. Liability apart from bond and in absence of elements of malicious prosecution for wrongfully suing out injunction, 45 A.L.R. 1517. Liability of one procuring appointment for expenses of receivership, 68 A.L.R. 878. Attorney's fees or other expenses incurred in unsuccessfully resisting appointment or attempting removal of receiver for corporation as proper claim against receiver, 89 A.L.R. 1531. Criticism of court's appointment of receiver as contempt, 97 A.L.R. 903. Restitution as remedy for wrongful injunction, 131 A.L.R. 878. Constitutionality of statute or practice requiring or authorizing temporary restraining order or injunction without notice, 152 A.L.R. 168. Ex parte appointment of receiver for partnership, 169 A.L.R. 1127. Consent of court to tax sale of property in custody of receiver appointed by court, 3 A.L.R.2d 893. Costs and other expenses incurred by receiver whose appointment was improper as chargeable against estate, 4 A.L.R.2d 160. State court's injunction against action in court of another state, 6 A.L.R.2d 896. Necessary parties defendant to independent action on injunction bond, 55 A.L.R.2d 545. Duty to minimize damages for wrongful injunction, 66 A.L.R.2d 1131. Appeal from order appointing, or refusing to appoint, receiver, 72 A.L.R.2d 1009. Appeal from order discharging, or vacating appointment of, or refusing to discharge, or vacate appointment of, receiver, 72 A.L.R.2d 1075. Court's lack of jurisdiction of subject matter in granting injunction as a defense in action on injunction bond, 82 A.L.R.2d 1064. Propriety of appointing receiver, at behest of mortgagee, to manage or operate property during mortgage foreclosure, 82 A.L.R.2d 1075. Appealability of order granting, extending or refusing to dissolve temporary restraining order, 19 A.L.R.3d 403. Appealability of order refusing to grant or dissolving temporary restraining order, 19 A.L.R.3d 459. Receiver's personal liability for negligence in failing to care for or maintain property in receivership, 20 A.L.R.3d 967. Recovery of damages resulting from wrongful issuance of injunction as limited to amount of bond, 30 A.L.R.4th 273. Enforceability of sale-of-business agreement not to compete against nonsigner or nonowning signer, 60 A.L.R.4th 294. Anticompetitive covenants: aerial spray dust business, 60 A.L.R.4th 965. Construction and application of restrictive covenants to the use of signs, 61 A.L.R.4th 1028. Federal receivers of property in different districts under 28 USCS §754, 57 A.L.R. Fed. 621. Who, under Rule 65(d) of Federal Rules of Civil Procedure, are persons "in active concert or participation" with parties to action so as to be bound by order granting injunction, 61 A.L.R. Fed. 482.