N.M. R. App. P. 12-203
N.M. R. App. P. 12-203
ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-011, effective December 31, 2016, prohibited the filing of a reply to a response to an application for interlocutory appeal without leave of the appellate court, provided the procedures for seeking leave to file a reply, and made technical changes; in Paragraph (A), added "NMSA 1978" in two places, and changed "§" to "Section" in two places, after "notice of appeal", deleted "pursuant to" and added "under", and after "limits set by this", deleted "subsection" and added "paragraph"; in Paragraph (B), in the third sentence, deleted "The application shall include or have annexed thereto", after "opinion relating", deleted "thereto" and added "to the order shall be attached to the application"; in the fourth sentence, deleted "The application may have annexed thereto", and after "exercising its discretion", added "may be attached"; added a new Paragraph (E) and redesignated former Paragraph (E) as Paragraph (F); and in Paragraph (F), after "copy of the record proper", deleted "upon" and added "on". The 2000 amendment, effective June 15, 2000, inserted "or of the proposed summary disposition" at the end of the second sentence in Paragraph E. The 1998 amendment, effective for pleadings due on and after April 1, 1998, inserted "or statement of the issues" following "docketing statement" near the end of Paragraph B. The 1997 amendment, effective January 1, 1997, substituted "fifteen (15) days" for "ten (10) days" in Paragraph A and Paragraph D.
For federal rule, see Fed. R. App. P. Rule 5. Final order as to one plaintiff. - Where both plaintiffs were parties to counts I through III of the complaint; plaintiff Bigbyte was not a party to count IV; the parties dismissed count III; the district court granted summary judgment against plaintiffs on counts I and II; count IV remained pending before the district court; and the district court's summary judgment provided that the summary judgment did not practically dispose of the merits of the case, but did finally dispose of the claims raised in counts I through II; that the summary judgment involved a controlling question of law as to which there was a substantial ground for differences of opinion, and that "an immediate appeal from the summary judgment may materially advance the ultimate termination of litigation and there is no just cause for delay"; the summary judgment was a final judgment because all of Bigbyte's claims had been disposed of, and the summary judgment did not contain express language stating that the summary judgment was not a final order as to Bigbyte. Santa Fe Pac. Trust, Inc. v. City of Albuquerque, 2012-NMSC-028, 285 P.3d 595. Generally, no appeal from anything other than formal written order or judgment. - In the absence of an express provision or rule, there is no appeal from anything other than a formal written order or judgment signed by the judge and filed in the case or entered upon the records of the court and signed by the judge thereof. State v. Morris, 1961-NMSC-120, 69 N.M. 89, 364 P.2d 348. Allowance of interlocutory appeal is discretionary with appellate court. State v. Hernandez, 1980-NMCA-138, 95 N.M. 125, 619 P.2d 570. Trial court has no authority to grant an interlocutory appeal. State v. Garcia, 1977-NMCA-116, 91 N.M. 131, 571 P.2d 123. Failure to timely file application for appeal. - Where a district court certifies an order for interlocutory appeal, the appealing party must seek permission from the appellate court for leave to file an appeal by filing an application within 15 days of entry of the order in district court, but where the appealing party did not file an application for interlocutory appeal until 17 days after the filing of the district court's order, appealing party's attempt to perfect an interlocutory appeal was unavailing. Systems Technology, Inc. v. Hall, 2004-NMCA-130, 136 N.M.548 , 102 P.3d 107. Orderly process of appellate review must be considered. - The grant of an application for an interlocutory appeal turns on whether a substantial ground exists for a difference of opinion on the question, and whether its resolution may materially advance the ultimate termination of the litigation. The policy of judicial economy served by this process of interlocutory appeal must, however, be weighed against the policy which favors the orderly process of appellate review. Schlieter v. Carlos, 1989-NMSC-037, 108 N.M. 507, 775 P.2d 709. Jurisdiction remains in trial court where permission to appeal from interlocutory order denied. - When the permission to appeal from an interlocutory order is denied, the appellate court never assumes jurisdiction of the matter; consequently, jurisdiction remains in the trial court and there is nothing to prevent the trial court from proceeding to try the pending case. State v. Hernandez, 1980-NMCA-138, 95 N.M. 125, 619 P.2d 570. Appeal improperly denominated "as of right" treated as interlocutory. - Where the docketing statement proceeds on the basis that the appeal is as of right, and it is not, the court of appeals may treat the docketing statement as an application for an interlocutory appeal and deny it. State v. Garcia, 1977-NMCA-116, 91 N.M. 131, 571 P.2d 123. Effect, not form, important. - Where the decree appealed from, although denominated "partial," appears to be interlocutory and to practically dispose of the merits of all claims of the parties, it is appealable. State ex rel. Reynolds v. Allman, 1967-NMSC-078, 78 N.M. 1, 427 P.2d 886. Extension of time for appeal. - Absent statutory authority or supreme court rule, appellate courts may not extend the time for an interlocutory appeal, even to relieve against mistake, inadvertence or accident. However, in appropriate circumstances, the district court may reconsider the issue and enter a second interlocutory order from which application for a timely interlocutory appeal may be made. Candelaria v. Middle Rio Grande Conservancy Dist., 1988-NMCA-065, 107 N.M. 579, 761 P.2d 457. Interlocutory decree appealable only if dispositive of merits. - Appeal is not timely when taken from an interlocutory order and must be dismissed unless the order in some manner practically disposes of the merits of the action so that further proceedings would only carry into effect the terms of the order. Miller v. Montano, 1944-NMSC-015, 48 N.M. 78, 146 P.2d 172. Dismissal of counterclaims. - Directed judgment on motion to dismiss counterclaims was final and appealable under former Rule 54(b), N.M.R. Civ. P. (see now Rule 1-054B NMRA), where order recited no reason to delay entry of the order and directed that the judgment should be entered. Mutual Bldg. & Loan Ass'n v. Fidel, 1968-NMSC-015, 78 N.M. 673, 437 P.2d 134. Conditioned order of dismissal. - Order of dismissal, providing that if plaintiffs did not file second amended complaint within 10 days from entry thereof cause would be dismissed with prejudice, was properly appealed even though plaintiffs filed notice of appeal three days after entry of order. Garver v. Public Serv. Co., 1966 -NMSC-261, 77 N.M. 262, 421 P.2d 788). Determination of water rights. - Order entered in an action relating to artesian water rights, which covered specifics to which right was appurtenant, was final and appealable to that extent. State ex rel. Reynolds v. Sharp, 1959-NMSC-080, 66 N.M. 192, 344 P.2d 943. Partition order. - Judgment in statutory partition suit, declaring rights of all the parties, ordering partition and appointing commissioners, was interlocutory decree, appealable under former rule. Torrez v. Brady, 1930-NMSC-101, 35 N.M. 217, 292 P. 901. Order sustaining demurrer. - Order sustaining a demurrer to a complaint because of not stating a cause of action was appealable as an interlocutory order practically disposing of the merits. Roeske v. Lamb, 1934-NMSC-034, 38 N.M. 309, 32 P.2d 257. Order granting new trial. - Order granting a new trial based upon error at law disposed of merits and was appealable, where trial court held a will invalid because of latent ambiguity and no more evidence was adduced explaining the ambiguity. In re Richter's Will, 1938-NMSC-057, 42 N.M. 593, 82 P.2d 916. Order allowing a new trial is not appealable unless it practically disposes of the merits of the action. Milosevich v. Board of County Comm'rs, 1942-NMSC-019, 46 N.M. 234, 126 P.2d 298. Review of appealable interlocutory order on appeal from final judgment. - Upon appeal from the final judgment, interlocutory orders or decrees and proceedings upon which they are based may be reviewed, even though an appeal might have been taken therefrom at the time entered. State ex rel. State Eng'r v. Crider, 1967-NMSC-133, 78 N.M. 312, 431 P.2d 45. Where appealable interlocutory judgment, order or decree is entered, and no appeal is taken therefrom within time allowed, such interlocutory decree and the proceeding prior to its entry may be considered in an appeal from the final decree. Torrez v. Brady, 1932-NMSC-080, 37 N.M. 105, 19 P.2d 183. Remand of zoning decision. - The district court's remand order of a zoning matter to the city council was not a final, appealable order; before a party would have the right to challenge that order on appeal to the Court of Appeals, it would have to await the council decision on remand, obtain review of the council decision in district court, and then appeal the district court judgment. High Ridge Hinkle Joint Venture v. City of Albuquerque, 1994-NMCA-139, 119 N.M. 29, 888 P.2d 475, aff'd, 1997-NMCA-046, 123 N.M. 394, 940 P.2d 1189. Law reviews. - For comment, "New Mexico's Analogue to 28 U.S.C. § 1292(b): Interlocutory Appeals Come to the State Courts," see 2 N.M.L. Rev. 113 (1972). Am. Jur. 2d, A.L.R. and C.J.S. references. - 4 Am. Jur. 2d Appellate Review § 84 et seq.; 5 Am. Jur. 2d Appellate Review § 693. Reviewability, on appeal from final judgment, of interlocutory order, as affected by fact that order was separately appealable, 79 A.L.R.2d 1352. Appealability of orders or rulings, prior to final judgment in criminal case, as to accused's mental competency, 16 A.L.R.3d 714. 4 C.J.S. Appeal and Error § 81 et seq.