N.M. R. App. P. 12-404

As amended through February 27, 2024

Rule 12-404 - Rehearings

A.Motion; when filed. A motion for rehearing may be filed within fifteen (15) days after filing of the appellate court's disposition, or any subsequent modification of its disposition, unless the time is shortened or enlarged by order. The three (3) day mailing period set forth in Rule 12-308 NMRA does not apply to the time limits set by this rule. The motion shall state briefly and with particularity, but without argument, the points of law or fact which in the opinion of the movant the court has overlooked or misapprehended. If the motion is based on a point of law or fact not raised, briefed, or argued by any party but relied on by the court in its disposition of the matter, the motion shall specifically so state, and shall be accompanied by a brief in support thereof. In all other cases the movant may, but is not required to, file a brief in support of the motion at the time it is filed. No response to a motion for rehearing shall be filed unless requested by the court. If a motion for rehearing is granted, the appellate court clerk shall give notice thereof and any party who has not filed a brief on rehearing may, within fifteen (15) days after notice, file a brief addressed to the issues on rehearing. There shall be no other briefs or argument unless the appellate court shall otherwise direct.

B.How granted.

(1)Supreme Court. Rehearing in the Supreme Court may be granted on the request of any three justices. Any member of the current court may participate in a rehearing or consideration of a motion for rehearing irrespective of whether the justice participated in the original decision or was a member of the court at the time the original decision was filed. When necessary the court may designate any justice or judge to participate in a rehearing or consideration of a motion for rehearing.

(2)Court of Appeals. Rehearing in the Court of Appeals may be granted at the request of any two judges who participated in the hearing or decision. If any judge of the Court who participated in the hearing or decision is unable, for any reason, to participate in a rehearing or consideration of a motion for rehearing, the chief judge or acting chief judge shall designate another judge or acting judge of the Court as a replacement, and the judge so designated shall have the same duties and authority as though the judge had participated in the hearing and concurred in the decision.

C.Effect on decision or opinion. The granting of a motion for rehearing shall have the effect of suspending the decision or opinion of the appellate court until final determination by the appellate court.

N.M. R. App. P. 12-404

As amended, effective 9/1/1991;9/1/1993;1/1/1997; as amended by Supreme Court Order No. 09-8300-010, effective 5/6/2009; as amended by Supreme Court Order No. 16-8300-011, effective for all cases pending or filed on or after12/31/2016; as amended by Supreme Court Order No. 22-8300-007, effective for all cases pending or filed on or after 3/30/2022.

ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-011, effective December 31, 2016, in Paragraph (A), substituted "on" for "upon" throughout the paragraph; in Paragraph (B), added the subparagraph designation and heading "(1) Supreme Court.", after "may be granted", deleted "upon" and added "on", and after "at the time the decision was filed.", added the subparagraph designation and heading "(2) Court of Appeals", and substituted "Court" for "court of appeals" in two places; and in Paragraph (C), in the heading, deleted "effect of failure to act". The 2009 amendment, approved by Supreme Court Order No. 09-8300-010, effective May 6, 2009, in Paragraph C, deleted "effect of failure to act" from the caption, and deleted "Any motion for rehearing not acted upon within thirty (30) days after it is filed shall be deemed denied unless otherwise ordered by the court. If a motion for rehearing is granted and no further order or disposition is made of it within thirty (30) days thereafter, or, if argument has been directed, then within thirty (30) days after argument, the relief sought by the motion shall be deemed denied unless otherwise ordered by the court." The 1997 amendment, effective January 1, 1997, substituted "fifteen (15) days" for "ten (10) days" in the fifth sentence in Paragraph A. The 1993 amendment, effective September 1, 1993, in Paragraph B, substituted "whether the justice" for "whether he" in the second sentence, and substituted "the judge had" for "he had" near the end of the last sentence. The 1991 amendment, effective for cases filed in the supreme court and court of appeals on and after September 1, 1991, inserted "who has not filed a brief on rehearing" in the next-to-last sentence in Paragraph A.

For federal rule, see Fed. R. App. P. Rule 40. Motion denied by operation of law. - There is no provision in this rule which provides that a motion for reconsideration or rehearing is deemed denied by operation of law if it is not acted upon by the district court within a certain time period. Paule v. Santa Fe Cnty., 2005-NMSC-021, 138 N.M. 82, 117 P.3d 240. Motion for rehearing. - Proposition which did not have for its basis fundamental error could not, as a matter of right, be raised on motion for rehearing under former Supreme Court Rules. Wilson v. Rowan Drilling Co., 1950-NMSC-046, 55 N.M. 81, 227 P.2d 365. Party filing motion for rehearing without supporting brief was not entitled to reconsideration as of right under former Supreme Court Rules. Dunne v. Petterman, 1948-NMSC-035, 52 N.M. 284, 197 P.2d 618. Motion for reconsideration of initial denial of rehearing motion. - A party's motion for reconsideration of the supreme court's initial denial of his motion for rehearing could properly be considered a motion filed after a subsequent modification of the court's original denial. Boudar v. E.G. & G., Inc., 1987-NMSC-077, 106 N.M. 279, 742 P.2d 491. Questions reviewed on rehearing. - On rehearing, only those questions were reviewed which were provided for by Rule 18 of former Supreme Court Rules and matters which could have been considered on original appeal but had not been raised could not be considered. Pitek v. McGuire, 1947-NMSC-053, 51 N.M. 364, 184 P.2d 647. Tolling period. - The 15-day period for filing a rehearing motion is recognized as a tolling period. Serrano v. Williams, 383 F.3d 1181 (10th Cir. 2004). Denial of certiorari writ. - This rule, and its allotment of 15 days to move for rehearing, applies to denials of certiorari by the New Mexico Supreme Court. Serrano v. Williams, 383 F.3d 1181 (10th Cir. 2004). New Mexico rules of appellate procedure do not preclude the filing of a motion for rehearing with its Supreme Court to reconsider the denial of a certiorari writ. Serrano v. Williams, 383 F.3d 1181 (10th Cir. 2004). New points may not be presented in a petition for rehearing. State v. Curlee, 1982-NMCA-126, 98 N.M. 576, 651 P.2d 111. Civil case was considered to be finally disposed of and mandate issued when time for filing motion for rehearing had expired without motion being filed or, if filed, if same was denied under former Supreme Court Rules. Woodson v. Lee, 1964-NMSC-106, 74 N.M. 227, 392 P.2d 419. Law reviews. - For annual survey of civil procedure in New Mexico, see 18 N.M.L. Rev. 287 (1988). Am. Jur. 2d, A.L.R. and C.J.S. references. - 5 Am. Jur. 2d Appellate Review § 878 et seq. Effect of equal division of appellate court upon rehearing after reversal, 131 A.L.R. 1011. 5 C.J.S. Appeal and Error § 676 et seq.