N.M. R. App. P. 12-401

As amended through May 8, 2024

Rule 12-401 - Dismissal

A.Dismissal in district court. If an appeal has not been docketed, the appeal may be dismissed by the district court upon motion of the appellant or by the parties upon the filing of a stipulation of the parties affected by the appeal. The district court clerk shall advise the appellate court in writing of the dismissal.

B.Dismissal in appellate court.

(1)Stipulated dismissal. Prior to entry of disposition, if all of the parties affected by an appeal or other proceeding sign and file with the appellate court clerk an agreement that the same be dismissed, an order of dismissal shall be entered and mandate or other process of the court shall issue immediately.

(2)Dismissal on appellant's motion. An appeal or other proceeding may be dismissed by the appellate court after motion by the appellant or party instituting the proceeding and upon such terms as are fixed by the appellate court or agreed upon by the affected parties. The motion shall state whether the opposition or concurrence of all affected parties has been sought as required by Rule 12-309(C) NMRA.

(3)Dismissal on appellee's motion. An appeal or other proceeding may be dismissed by the appellate court after motion by an appellee and upon such terms as are fixed by the appellate court. The motion shall state whether the opposition or concurrence has been sought by all affected parties as required by Rule 12-309(C) NMRA. If the motion is based on the failure to file a docketing statement or statement of the issues, the appellee shall pay the docket fee set by statute for such motions.

(4)Dismissal on appellate court's motion. An appeal or other proceeding may be dismissed by an appellate court for failure to comply with rules under Rule 12-312 NMRA.

C.Notice of dismissal. The appellate court clerk shall transmit a conformed copy of any dismissal entered under this rule to the district court, board, commission, administrative agency, or official whose action was sought to be reviewed.

N.M. R. App. P. 12-401

As amended, effective 7/1/1990; as amended by Supreme Court Order No.14-8300-008, effective for all cases filed or pending on or after12/31/2014.

Committee commentary. - The docket fee for a motion under Subparagraph (B)(3) of this rule is set by either NMSA 1978, Section 34-2-5(A) (2003) (Supreme Court), or NMSA 1978, Section 34-5-6(A) (2003) (Court of Appeals).

[Adopted by Supreme Court Order No. 14-8300-008, effective for all cases filed or pending on or after December 31, 2014.]

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ANNOTATIONS The 2014 amendment, approved by Supreme Court Order No. 14-8300-008 , effective December 31, 2014, expanded the scope of the rule to encompass all dismissals; changed the title of the rule from "Voluntary dismissal" to "Dismissal"; in Paragraph B (1), added the title, and changed "proceedings shall" to "proceeding"; in Paragraph B (2), added the title, in the first sentence, changed "person" to "party", and added the second sentence; and in Paragraph B, added Subparagraphs (3) and (4).

For dismissal of appeal by appellant, see Section 39-3-14 NMSA 1978. For federal rule, see Fed. R. App. P. Rule 42. Attorney fees. - Appellate courts have authority to either make an allowance of attorney fees on appeal or to remand to the lower court for that purpose. Vinton Eppsco, Inc. v. Showe Homes, Inc., 1981-NMSC-114, 97 N.M. 225, 638 P.2d 1070. What constitutes a reasonable attorney fee is discretionary with the appellate courts. Vinton Eppsco, Inc. v. Showe Homes, Inc., 1981-NMSC-114, 97 N.M. 225, 638 P.2d 1070. Am. Jur. 2d, A.L.R. and C.J.S. references. - 5 Am. Jur. 2d Appellate Review § 862 et seq.; 24 Am. Jur. 2d Dismissal §§ 1 to 3, 6 to 52. Right of plaintiff to dismiss an action brought in behalf of himself and other persons, 8 A.L.R. 950, 91 A.L.R. 587. Abandonment of appeal or right of appeal by commencement, or prosecution to judgment, of another action, 115 A.L.R. 121. Appellate review at instance of plaintiff who has requested, induced, or consented to dismissal or nonsuit, 23 A.L.R.2d 664. Jurisdiction to proceed with trial of criminal case pending appeal from order overruling demurrer, motion to quash, or similar motion for dismissal, 89 A.L.R.2d 1236. Dismissal of appeals under Rule 42(b) of Federal Rules of Appellate Procedure, 42 A.L.R. Fed. 758. 5 C.J.S. Appeal and Error § 631 et seq.