N.M. R. App. P. 12-202
N.M. R. App. P. 12-202
Committee commentary. - In 2016, the paragraph regarding joint and consolidated appeals was withdrawn from this rule, and a new Rule 12-317 NMRA was adopted to address joint and consolidated appeals.
[Adopted by Supreme Court Order No. 16-8300-011, effective for all cases pending or filed on or after December 31, 2016.]
.ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-022, effective December 31, 2017, in Paragraph B, changed "Rule 12-305(D)" to "Rule 12-305(H)". The 2016 amendment, approved by Supreme Court Order No. 16-8300-011, effective December 31, 2016, removed the provision regarding joint or consolidated appeals and provided a new rule regarding disclosure of related or prior appeals, made technical changes, and added the committee commentary; in Subparagraph (B)(1), after "provisions of", deleted "Paragraph D of", and after "Rule 12-305", added "(D)"; in Subparagraph (D)(2), after each occurrence of "public defender", added "department"; in Paragraph (D)(3), after "in accordance with", deleted "Subparagraph (5) of Paragraph C", and after "Rule 12-211", added "(C)(5)"; and deleted former Paragraph (G), relating to joint or consolidated appeals, and added a new Paragraph (G). The 2009 amendment, approved by Supreme Court Order No. 09-8300-020, effective September 4, 2009, in Subparagraph (1) of Paragraph E, changed "in criminal cases, including criminal contempt cases, and cases governed by the Children's Court Rules" to "in criminal cases, including those involving criminal contempt, and in delinquency cases, including those involving serious youthful offenders and youth offenders"; in Subparagraph (2) of Paragraph E, deleted "in addition to those required in Subparagraph (1) of this paragraph, by serving a copy on the Legal Services Bureau of the Human Services Department" and added "in the following cases:" and added Items (a), (b), and (c). The 2006 amendment, approved by Supreme Court Order No. 06-8300-011 effective May 15, 2006, revised Paragraph B to exclude children under the Children's Code, added Paragraph C and Paragraph E (former Paragraph D) to add to Subparagraph (1) "when the public defender is appointed on appeal". The 2005 amendment, effective March 15, 2005, substituted "audio recorded" for "on tape" in Subparagraph (3) of Paragraph C and "court monitor" for "tape monitor" in Subparagraphs (1) and (3) of Paragraph D. The 2000 amendment, effective September 15, 2000, added Paragraph C(3). The 1993 amendment, effective September 1, 1993, substituted "the party's" for "the party at his" in Paragraph E.
For appellate jurisdiction of Supreme Court, see N.M. Const., art. VI, § 2. For original jurisdiction of Supreme Court, see N.M. Const., art. VI, § 3. For references to state corporation commission being construed as references to the public regulation commission, see Laws 1998, ch. 108, § 80. For appellate jurisdiction of court of appeals, see Section 34-5-8 NMSA 1978. For appellate jurisdiction of Supreme Court, see Section 34-5-14 NMSA 1978. For federal rule, see Fed. R. App. P. Rule 3. I. GENERAL CONSIDERATION. Where plaintiff's attached copy of the order, by which summary judgment was granted as to all pending claims, their appeal from this order simultaneously perfected an appeal from the court's previous interlocutory order dismissing the fraud claim. Williams v. Stewart, 2005-NMCA-061, 137 N.M. 420, 112 P.3d 281, cert. denied, 2005-NMCERT-005. Exception to panel of randomly chosen judges. - The consolidation of cases authorised by Paragraph F(2) of this rule would be an exception to the right to a panel of randomly chosen judges under Paragraph B(3) of Rule 12-210 NMRA. Mannick v. Wakeland, 2005-NMCA-098, 138 N.M. 113, 117 P.3d 919, cert. granted, 2005-NMCERT-001. Two-step process to perfecting appeal. - New Mexico cases, under older versions of the relevant appellate rules, followed the rule that timely service of the notice of appeal is not a jurisdictional prerequisite to perfecting an appeal, and this rule continues to make filing of the notice and service of the notice a two-step process. Russell v. University of N.M. Hospital/Bernalillo Cnty. Med. Ctr., 1987 -NMCA-091, 106 N.M. 190, 740 P.2d 1174. II. FILING NOTICE OF APPEAL. Timely filing of notice of appeal is a fundamental requirement for appellate review. Seaboard Fire & Marine Ins. Co. v. Kurth, 1980-NMCA-112, 96 N.M. 631, 633 P.2d 1229. Notices of appeal must be timely filed in the correct tribunal. Singer v. Furr's, Inc., 1990-NMCA-120, 111 N.M. 220, 804 P.2d 411. Employer's appeal from the district court's denial of its claim against the subsequent injury fund was dismissed by the court of appeals for lack of jurisdiction, where the employer filed its notice of appeal with the court of appeals instead of with the district court. Torres v. Smith's Mgt. Corp., 1990-NMCA-022, 111 N.M. 547, 807 P.2d 245. But judicial error is circumstance permitting untimely appeal. - Although the court will not ordinarily entertain an appeal in the absence of a timely notice, judicial error is an unusual circumstance creating an exception that warrants permitting an untimely appeal. Romero v. Pueblo of Sandia, 2003-NMCA-137, 134 N.M. 553, 81 P.3d 490. Judicial miscommunication led litigants to believe they had perfected their appeal where the court, within the time for filing a notice of appeal and well within the time that would be allowed with an extension, informed the litigants that it would consider their application for interlocutory appeal to serve as a notice of appeal and docketing statement; the court would not decline to hear the appeal because of a technical defect that it helped create. Romero v. Pueblo of Sandia, 2003-NMCA-137, 134 N.M. 553, 81 P.3d 490. Where defense counsel does not file a notice of appeal within the time limit, there is a conclusive presumption of ineffective assistance of counsel.- Where defense counsel attempted to fax file a notice of appeal from the district court order denying defendant's motion to suppress, but filed the notice in the wrong court and the filing was untimely, there is a presumption of ineffective assistance of counsel and dismissal of the appeal is not warranted. State v. Martinez, 2015-NMCA-051, cert. granted, 2015-NMCERT-005. Notice requirement jurisdictional. - Failure of appellant to give notice of an appeal from a summary judgment was jurisdictional. Mabrey v. Mobil Oil Corp., 1972-NMSC-023, 84 N.M. 272, 502 P.2d 297, cert. denied, 83 N.M. 740, 497 P.2d 742. But jurisdiction over prior appeal not reviewed. - Although timely entry of order allowing appeal pursuant to Rule 5(5) of former Supreme Court Rules prior to effective date of 1961 amendment thereto was jurisdictional, nevertheless, the claim that appellant had followed wrong procedure for appealing from judgment in case filed prior to such date on prior appeal would not be considered on subsequent appeal, as appellate court will not question jurisdiction over prior appeal whether or not expressly ruled upon. Varney v. Taylor, 1968-NMSC-189, 79 N.M. 652, 448 P.2d 164. Sufficient compliance. - While motion for appeal and order allowing same in case filed after March 15, 1961, were ineffective to accomplish appeal, nevertheless, notice filed and served within 30 days, which stated that order had been entered allowing the appeal and specified that plaintiff was taking the appeal and that the judgment against him was being appealed from, sufficiently complied with former Supreme Court Rules, as there was only one plaintiff and one judgment. Reed v. Fish Eng'r Corp., 1964-NMSC-042, 74 N.M. 45, 390 P.2d 283. Notice filed on same day as motion and order granting an appeal, which substantially complied with former Supreme Court Rules, was sufficient to confer jurisdiction on the supreme court. Mirabal v. McKee, 1964-NMSC-200, 74 N.M. 455, 394 P.2d 851. Sufficient notice of accident in untimely filing. - Where plaintiffs' lead trial counsel was on vacation when the notice of appeal was filed, he instructed an associate to supervise the progress of the appeal in his absence and instructed his secretary to make sure the notice of appeal was timely filed, it was standard office practice for his secretary to serve all pleadings and notices on opposing counsel, counsel served notice of appeal on defendants' counsel as soon as the matter was brought to his attention, and defendants demonstrated no actual prejudice as a result of the untimely notice, there was a sufficient showing of accident or excusable mistake, and such a showing permits the appellate court to allow plaintiffs' appeal to proceed. Russell v. University of N.M. Hospital/Bernalillo Cty. Med. Ctr., 1987 -NMCA-091, 106 N.M. 190, 740 P.2d 1174. Effect of filing on trial court jurisdiction. - Trial court loses jurisdiction of the case upon the filing of the notice of appeal, except for the purposes of perfecting such appeal, or of passing upon a motion directed to the judgment pending at the time. Wagner Land & Inv. Co. v. Halderman, 1972-NMSC-019, 83 N.M. 628, 495 P.2d 1075). Upon the filing of the notice of appeal, trial court loses jurisdiction to make findings or conclusions, and supreme court must disregard such findings in reviewing judgment. Davis v. Westland Dev. Co., 1970 -NMSC-039, 81 N.M. 296, 466 P.2d 862. After filing of notice of appeal which substantially complied with former Supreme Court Rules, trial court was without jurisdiction to make findings and conclusions. Mirabal v. McKee, 1964-NMSC-200, 74 N.M. 455, 394 P.2d 851. Notice of appeal may divest trial court of jurisdiction even if technically defective. - Where father's notice of appeal of custody order, filed within 10 days, did not have a copy of judgment attached but was later amended by attaching such copy, and mother clearly had notice of judgment from which father appealed, notice of appeal divested trial court of jurisdiction and placed jurisdiction in appeals court despite technical defect. Martinez v. Martinez, 1984-NMCA-026, 101 N.M. 493, 684 P.2d 1158. Filing with district court clerk jurisdictional. - An appellant who filed a notice of appeal with the clerk of the court of appeals rather than with the clerk of the district court did not comply with the place-of-filing requirement of Paragraph A of Rule 12-202 NMRA. Thus, the court was without jurisdiction to consider the appeal. Lowe v. Bloom, 1990-NMSC-069, 110 N.M. 555, 798 P.2d 156 overruling Martinez v. Wooten Construction Co., 1989-NMCA-074, 109 N.M. 16, 780 P.2d 1163 (to the extent it holds otherwise). Appeals from agency determinations. - In appealing from a workers compensation administration ruling it is sufficient under Paragraph B of Rule 12-601 NMRA to file the notice of appeal with the appellate court and a copy of the notice with the administration within 30 days, and then file a notice with the administration at a later time. Brewster v. Cooley & Assocs., 1993-NMCA-154, 116 N.M. 681, 866 P.2d 409. Effect of failure to comply with place-of-filing requirement. - Workers' compensation claimant's failure to comply with the place-of-filing requirement of Rule 12-601B NMRA deprived the court of appeals of jurisdiction, even though claimant filed a notice of appeal with the workers' compensation division within thirty days of the filing of the order dismissing his claim for benefits. Singer v. Furr's, Inc., 1990-NMCA-120, 111 N.M. 220, 804 P.2d 411. Filing of notice of appeal "in open court" on the thirtieth day following judgment constituted substantial compliance with the thirty-day filing requirement, even though the appeal was not filed in the clerk's office until a week later. Williams v. Board of County Comm'rs, 1998-NMCA-090, 125 N.M. 445, 963 P.2d 522, cert. denied, 125 N.M. 654, 964 P.2d 818. Motion to dismiss party not abandoned. - Defendant did not abandon its motion to dismiss one of the plaintiffs, on grounds that he had no financial interest in the litigation and was not a real party in interest, by taking an appeal before the trial court ruled on the motion, since defendant raised the issue in its requested findings and conclusions; the issue never having been decided by the trial court, the cause would be remanded for such a ruling. Jesko v. Stauffer Chem. Co., 1976 -NMCA-117, 89 N.M. 786, 558 P.2d 55. Filing of notice as waiver of motion. - Where defendants filed motion for new trial or remittitur on November 15, which motion was never disposed of by trial court, final judgment was entered on November 27 and thereafter, on December 13, defendants filed notice of appeal, they abandoned the motion for a new trial or remittitur by depriving trial court of jurisdiction; their notice of appeal amounted to an election to waive the motion and proceed with the appeal as though the motion had not been made. Selgado v. Commercial Whse. Co., 1975 -NMCA-144, 88 N.M. 579, 544 P.2d 719. III. CONTENT OF NOTICE. Notice of appeal should be construed so as to reach merits and not be dismissed by the use of strict or technical application of the rules. Baker v. Sojka, 1964-NMSC-234, 74 N.M. 587, 396 P.2d 195. But intent to appeal must appear. - Although notices of appeal are to be liberally construed, even under the rule of liberal interpretation a notice is sufficient only if the intent to appeal from a specific judgment can be fairly inferred therefrom. Mabrey v. Mobil Oil Corp., 1972-NMSC-023, 84 N.M. 272, 502 P.2d 297, cert. denied, 83 N.M. 740, 497 P.2d 742. Specificity necessary. - Where more than one order by the trial court exists, an appellant has a duty to specify each order in the notice of appeal from which an appeal is taken. Mabrey v. Mobil Oil Corp., 1972-NMSC-023, 84 N.M. 272, 502 P.2d 297, cert. denied, 83 N.M. 740, 497 P.2d 742. Notice of appeal giving erroneous date of order appealed from is a nullity and cannot be taken as an appeal from an order entered after the notice is filed. State v. Phillips, 1967-NMCA-016, 78 N.M. 405, 432 P.2d 116. Substantial compliance determinative. - Denomination of the document as a "motion" rather than as a "notice" was not determinative; what was important was that the document substantially complied with and gave the information required, and thus met purpose of rule requiring filing of notice. Johnson v. Johnson, 1964-NMSC-233, 74 N.M. 567, 396 P.2d 181. The filing of a docketing statement that specifically referred to the notice of appeal, and to a motion to grant an extension of time to file the notice of appeal, and which substantially complied with the content provisions of Paragraph B was sufficient to vest appellate jurisdiction in the court of appeals. Marquez v. Gomez, 1990-NMSC-101, 111 N.M. 14, 801 P.2d 84. Notice of appeal sufficient. - Notice of appeal was effective to appeal the portion of the judgment which awarded insured (third-party appellee) judgment for damages against insurer (appellant) where it specifically identified the judgment resulting from the first trial at which appellant's liability to insured was determined, specifically identified portion of the second judgment which awarded damages to joint plaintiff, and although it did not specifically identify the portion of the second judgment which carried forward appellant's liability to insured by naming the monetary amounts of that liability, made clear the intent to appeal this aspect. Lujan v. Gonzales, 1972-NMCA-098, 84 N.M. 229, 501 P.2d 673, cert. denied, 84 N.M. 219, 501 P.2d 663. Although summary judgment, confined to issue of liability, was not mentioned in notice of appeal from judgment, where judgment, entered six months after summary judgment, recited issuance thereof and in its operative provisions "confirmed" same, appellant board would not be precluded from appealing issues determined by summary judgment. Nevarez v. State Armory Bd., 1972-NMSC-065, 84 N.M. 262, 502 P.2d 287. Although the defendants' notice of appeal did not specifically refer to the order denying the defendants' motion to dismiss, the defendants' intent to appeal from that order can be fairly inferred, especially since, but for the denial of that motion, the summary judgment would not have been entered. Additionally, the plaintiff has not alleged, and the record does not suggest, that the plaintiff was prejudiced or misled. Attachment of only the relevant final judgment perfects an appeal from any previous oral or written orders encompassed in that judgment, as long as error has otherwise been preserved. Thus, the defendants' notice of appeal adequately perfected an appeal from the order denying the defendants' dismissal motion. Board of Cnty. Comm'rs v. Ogden, 1994-NMCA-010, 117 N.M. 181, 870 P.2d 143. Notice sustained where defendant not misled. - Even if the notice of appeal is deficient, if it is apparent therefrom that it is the intention of the appellant to appeal and if the appellee has not been misled, the notice of appeal will be sustained. Nevarez v. State Armory Bd., 1972-NMSC-065, 84 N.M. 262, 502 P.2d 287. Where the intent of the plaintiff to appeal was plain from notice, and trial court had entered only one order, defendant could not have been misled by the failure to designate judgment, order or part appealed from in the notice. Baker v. Sojka, 1964-NMSC-234, 74 N.M. 587, 396 P.2d 195. Notice insufficient. - Notice failed to comply with former rule, where it failed to indicate judgment, order or part appealed from. State ex rel. Norvell v. Credit Bureau of Albuquerque, Inc., 1973-NMSC-087, 85 N.M. 521, 514 P.2d 40. Review of motions to vacate precluded. - Denial of motions to vacate default judgment would not be reviewed where defendants appealed from entry of default judgment, but did not appeal from order denying motions to vacate same. Gallegos v. Franklin, 1976-NMCA-019, 89 N.M. 118, 547 P.2d 1160, cert. denied, 89 N.M. 206, 549 P.2d 284. District attorney certification is neither a jurisdictional limitation nor a mandatory precondition. - New Mexico law does not bar appellate review when the State timely files its notice of appeal but fails to make the necessary certification to the district court or attach a copy of the certification to the notice of appeal. Section 39-3-3(B)(2) NMSA 1978 does not limit the Court of Appeal's general subject matter jurisdiction either expressly or implicitly. Rule 12-202(D) NMRA does not establish a mandatory precondition to an appeal. State v. Vasquez, 2014-NMSC-010, rev'g 2012-NMCA-107. Remedy for failure by district attorney to file a certification. - When the prosecutor files an interlocutory appeal and fails to make a timely certification to the district court or fails to attach a copy of the certification to the notice of appeal, the interlocutory appeal should not be dismissed for lack of jurisdiction. Instead of summarily dismissing an appeal that may affect a defendant's substantive rights, the better policy is to assess the circumstances of each case and hear the appeal when (1) the intent to appeal a specific judgment can be fairly inferred, and (2) the defendant is not prejudiced by any technical error or mistake. Sanctions are an appropriate means to ensure compliance with Rule 12-202 NMRA. State v. Vasquez, 2014-NMSC-010, rev'g 2012-NMCA-107. Failure of district attorney to file a certification. - Where defendant was charged with criminal sexual contact of a minor child; the district court excluded the testimony of the child and the parent of the child because the defense had not been able to interview them; the State filed an interlocutory appeal that did not contain the district attorney's certification to the district court as provided for in Section 39-3-3(B)(2) NMSA 1978; and a year after filing the interlocutory appeal and before the Court of Appeals heard the appeal, the State filed an amended notice of appeal that included the certification language and stated that the notice of appeal related back to the original notice of appeal; and the State's intent to appeal the exclusion of the two critical witnesses could be fairly inferred from the record and defendant was not prejudiced by the State's failure to attach a copy of the certification to the notice of appeal, the Court of Appeals erred in dismissing the interlocutory appeal for lack of jurisdiction. State v. Vasquez, 2014-NMSC-010, rev'g 2012-NMCA-107. Dismissal of appeal is not warranted where there is a presumption of ineffective assistance of counsel. - An attorney who files a timely notice of appeal, but causes the appeal to be dismissed due to his inaction denies the defendant his constitutional right to appeal; the appellate court is not divested of jurisdiction because there is a conclusive presumption of ineffective assistance of counsel. State v. Lope, 2015-NMCA-011, cert. denied, 2014-NMCERT-010. Where defense counsel filed a timely notice of appeal of a suppression order, but failed to perfect the appeal by failing to obtain and attach a final written order denying the defendant's motion to suppress, the court of appeals determined that it had jurisdiction to entertain the appeal based on the conclusive presumption of ineffective assistance of counsel. State v. Lope, 2015-NMCA-011, cert. denied, 2014-NMCERT-010. IV. SERVICE OF NOTICE. Jurisdiction over appellee dependent on notice. - Supreme court had jurisdiction of a "cause" on appeal, but not of appellee until notice under Rule 7 of former Supreme Court Rules was served or waived. Pankey v. Hot Springs Nat'l Bank, 1938-NMSC-067, 42 N.M. 674, 84 P.2d 649. Effect of failure to notify. - Supreme court could not consider alleged errors affecting rights of defendant to whom notice of appeal was not addressed and on whom such notice was not served. Commercial Std. Ins. Co. v. Hitson, 1963-NMSC-225, 73 N.M. 328, 388 P.2d 56. Proof of service. - Where neither the motion for extension nor the notice of appeal included in the transcript proper indicated certification of service upon opposing counsel, but the copy of the motion in the skeleton transcript prepared by counsel certified that service had been made, in light of the fact that the skeleton transcript was required as part of the appellate process and was required to be certified by the clerk of the district court, the court of appeals would rely on the copies of the motion for extension and the notice of appeal included in the skeleton transcript for proof that opposing counsel was served. White v. Singleton, 1975-NMCA-104, 88 N.M. 262, 539 P.2d 1024. Removals from corporation commission's rate making proceedings. - Period within which removals from corporation commission's rate making proceedings may be taken was governed by Rules 3(d) and 4(c), N.M.R. App. (Civ.) (see now Rule 12-201 NMRA and this rule). Mountain States Tel. & Tel. Co. v. Corporation Comm'n, 1982-NMSC-127, 99 N.M. 1, 653 P.2d 501. Law reviews. - For article, "New Mexico's Summary Calendar for Disposition of Criminal Appeals: An Invitation for Inefficiency, Ineffectiveness and Injustice," see 24 N.M.L. Rev. 27 (1994). Am. Jur. 2d, A.L.R. and C.J.S. references. - 5 Am. Jur. 2d Appellate Review § 269 et seq. Who is adverse party within statute providing for service of notice of appeal on adverse party, 88 A.L.R. 419. Right of public officer or board to appeal from a judicial decision affecting his or its order or decision, 117 A.L.R. 216. Who entitled to contest, or appeal from, allowance of claim against decedent's estate, 118 A.L.R. 743. Leaving process or notice at residence as compliance with requirement that party be served "personally" or "in person," "personally served," etc., 172 A.L.R. 521. Appealability of adjudication as to sexual psychopathy, 24 A.L.R.2d 350. Personal representative, guardian or trustee as parties entitled to appeal from order on application for removal of, 37 A.L.R.2d 751. Defeated party's payment or satisfaction of, or other compliance with civil judgment as barring his right to appeal, 39 A.L.R.2d 153. Plea of guilty in justice of the peace or similar inferior court as precluding appeal, 42 A.L.R.2d 995. Ruling on motion to quash execution as ground of appeal or writ of error, 59 A.L.R.2d 692. Right of an attorney to prosecute an appeal to protect his contingent fee notwithstanding desire of client to dismiss appeal or to substitute attorneys, 91 A.L.R.2d 618. Filing of notice of appeal as affecting jurisdiction of state trial court to consider motion to vacate judgment, 5 A.L.R.5th 422. Appellate review of order denying extension of time for filing notice of appeal under Rule 4(a) of Federal Rules of Appellate Procedure, 39 A.L.R. Fed. 829. Acceptance by United States District Court of Notice of Appeal in criminal case untimely filed, as grant of additional time to file notice, under Rule 4(b) of Federal Rules of Appellate Procedure, 43 A.L.R. Fed. 815. Failure to appeal denial of double jeopardy claim within time limits of Rule 4, Federal Rules of Appellate Procedure, as precluding review of claim on appeal of conviction at retrial, 51 A.L.R. Fed. 770. Bail bond forfeiture proceedings as civil or criminal for purposes of time for appeal under Rule 4 of Federal Rules of Appellate Procedure, 70 A.L.R. Fed. 952. Tolling of time for filing notice of appeal in civil action in federal court under Rule 4(a)(4) of Federal Rules of Appellate Procedure, 74 A.L.R. Fed. 516. Untimely notice of appeal as motion for extension of time to appeal under Rule 4(a)(5) of Federal Rules of Appellate Procedure, 74 A.L.R. Fed. 775. 4 C.J.S. Appeal and Error § 154 et seq.