N.M. R. App. P. 12-503
N.M. R. App. P. 12-503
ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-011, effective December 31, 2016, removed the fifteen-page limitation for a petition for writ of error and added provisions regarding length limitations for such petitions, required a statement of compliance indicating that the petition complies with other length limitations if it exceeds ten pages, increased the time within which a response to a petition for writ of error may be filed, prohibited the filing of a reply to a response to a petition for writ of error without leave of the appellate court, provided the procedures for filing a motion seeking leave to file a reply, and made stylistic and technical changes; in Paragraph (A), after "Supreme Court", deleted "and" and added "or"; in Paragraph (B), after the paragraph designation, deleted the heading "Jurisdiction to issue." and added the new heading, deleted "As part of its appellate jurisdiction pursuant to" and added "Under", after "Section 29 of the", added "New Mexico", after "Constitution", deleted "of New Mexico", after "the", added "Supreme Court authorizes the", and after "Court of Appeals", deleted "is granted authority to"; in Paragraph (E), in the introductory sentence, after "writ of error shall", deleted "file a petition not exceeding fifteen (15) pages in length which shall contain" and added "attach to the petition a copy of the order of the district court, with the date of filing noted on its face, and shall include in the petition"; in Subparagraph (E)(2)(c), after the semicolon, added "and"; in Subparagraph (E)(3), deleted "a copy of the order of the district court with the date of filing noted on its face and"; added new Paragraphs (F) and (G); redesignated the language from former Paragraph (F) as Paragraph (H), and after "court", deleted "which" and added "that"; redesignated former Paragraphs (G) and (H) as Paragraphs (I) and (J), respectively; in Paragraph (J), after "writ of error within", deleted "ten (10)" and added "fifteen (15)", after "response shall", deleted "be limited to fifteen (15) pages in length" and added "comply with Paragraphs F and G of this rule"; added new Paragraph (K) and redesignated former Paragraphs (I) and (J) as Paragraphs (L) and (M), respectively; in Paragraph (L), substituted "on" for "upon" throughout the paragraph, and after "Rule 12-202", added "NMRA"; and in Paragraph (M), substituted "on" for "upon" throughout the paragraph, after "party seeking", added "either", after "the order", deleted "which" and added "that", after "district court's ruling", deleted "pursuant to" and added "under", after "12-206", added a comma, and after "12-207", added "NMRA". The 1993 amendment, effective December 1, 1993, rewrote this rule.
For writs of error, see Section 39-3-5 NMSA 1978. Collateral orders. - Collateral orders are reviewed under writ of error procedure. Collado v. New Mexico Motor Vehicle Div., 2005-NMCA-056, 137 N.M. 442, 112 P.3d 303. The collateral order doctrine does not contemplate the granting of a writ of error unless the order conclusively determines a disputed issue that is entirely separate from the merits of the action. Williams v. Rio Rancho Pub. Schs., 2008 -NMCA-150, 145 N.M. 214, 195 P.3d 879. The collateral order doctrine. - Generally, appeal lies only from a final judgment or decision, any interlocutory order or decision which practically disposes of the merits of the action, or any final order after entry of judgment which affects substantial rights. An exception to the principle of finality is the collateral order doctrine, whose reach is limited to trial court orders affecting rights that will be irretrievably lost in the absence of an immediate appeal. To permit review under the doctrine, the order must finally determine the disputed question, must concern an issue that is entirely separate from the merits of the claim, and there must be no effective remedy by appeal. Montaño v. Frezza, 2015-NMCA-069, rev'd on other grounds, 2017-NMSC-015. In a medical negligence case filed against a Texas-based physician, where the district court was required to determine whether New Mexico or Texas law should apply, the petition for writ of error was appropriately granted because the choice of law encompasses whether the defendant doctor was immune from suit, a decision which necessarily implicates a right that would be irretrievably lost if not heard by the appellate court. Montaño v. Frezza, 2015-NMCA-069, rev'd on other grounds, 2017-NMSC-015. This rule means what it says. Pincheira v. Allstate Ins. Co., 2004 -NMCA-030, 135 N.M. 220, 86 P.3d 645, cert. denied, 2004-NMCERT-003. Paragraph C does not contain any provision extending time to appeal based upon the filing of a post-order motion seeking further review by the trial court. Pincheira v. Allstate Ins. Co., 2004 -NMCA-030, 135 N.M. 220, 86 P.3d 645, cert. denied, 2004-NMCERT-003. Time limit mandatory. - Where appeal had to be taken or a writ of error sued out within prescribed period under former Supreme Court Rules, the requirement was mandatory and jurisdictional. Breithaupt v. State, 1953-NMSC-012, 57 N.M. 46, 253 P.2d 585. Finality required. - There is no difference between the degree of finality of judgments, orders or decisions which may be reviewed by appeal and the degree of finality of judgments, orders or decisions which may be reviewed by error. Angel v. Widle, 1974-NMSC-061, 86 N.M. 442, 525 P.2d 369. Collateral orders. - Although this rule does not use the phrase "collateral order", orders properly reviewable under this rule are referred to as collateral orders. King v. Allstate Ins. Co., 2004 -NMCA-031, 135 N.M. 206, 86 P.3d 631, cert. denied, 2004-NMCERT-003. Issuance of subpoenas duces tecum to a non-party was a collateral order. - Where plaintiff sued defendants for employment discrimination; plaintiff's spouse, who was not a party to the action, maintained a private law practice; plaintiff alleged that upon filing the complaint, defendants retaliated against plaintiff by asserting irregularities with regard to the gross receipts tax records and returns of the spouse's private law practice; the district court issued subpoenas duces tecum to the spouse and to defendant taxation and revenue department for the spouse's gross receipts tax records and returns; the spouse moved to quash the subpoenas on the grounds that the gross receipts tax information was confidential and privileged; the district court denied the motion; the order denying the motion to quash practically disposed of all issues raised by the spouse; the issue of the spouse's rights and privilege concerning the confidentiality of the gross receipt tax information had nothing to do with the merits of plaintiff's action; and the district court's order was not a final order disposing of the merits of the underlying case and was effectively unreviewable on appeal from a final judgment because the spouse was not a party to the action, the district court's order authorizing the subpoenas was reviewable by writ of error under the collateral order doctrine. Breen v. New Mexico Taxation & Revenue Dep't, 2012-NMCA-101, 287 P.3d 379. Review of sovereign immunity determination. - As a general matter, the limited exception to the rule of finality known as the collateral order doctrine applies to district court determinations regarding governmental immunity under 37-1-23A NMSA 1978, and such determinations are subject to review by writ of error. Handmaker v. Henney, 1999-NMSC-043, 128 N.M. 328, 992 P.2d 879. Remedies by appeal and writ of error cannot be prosecuted concurrently. Daily v. Foster, 1912-NMSC-045, 17 N.M. 377, 128 P. 71. Scope of review. - Scope of review under Rule 6 of former Supreme Court Rules, providing for writs of error, was co-extensive with the review under Rule 5 of former rules, relating to appeals. Milosevich v. Board of Cnty. Comm'rs, 1942-NMSC-019, 46 N.M. 234, 126 P.2d 298. Writ of error did not lie to review election contests under Rule 6 of former Supreme Court Rules. Hannett v. Mowrer, 1927-NMSC-018, 32 N.M. 231, 255 P. 636. Order not reviewable. - Order of district court declaring that the plaintiff was real party in interest, and denying the plea in abatement, was an interlocutory order not determinative of suit and was not reviewable on writ of error under former Supreme Court Rules. Albuquerque Gas & Elec. Co. v. Curtis, 1939-NMSC-024, 43 N.M. 234, 89 P.2d 615. Trial court's grant of a jury trial to a child in delinquency proceedings was not reviewable as a writ of error. In re Larry K., 1999-NMCA-078, 127 N.M. 461, 982 P.2d 1060. An order granting or denying a motion for a protective order is not a collateral order and not subject to review by writ of error. King v. Allstate Ins. Co., 2004 -NMCA-031, 135 N.M. 206, 86 P.3d 631, cert. denied, 2004-NMCERT-003. Review of restraining order. - Where an order of the district court denominated "temporary restraining order" was to all intents and purposes final, as its effect was to permanently restrain the county board from transferring the teachers until the teachers saw fit to present the case to "a competent tribunal" for determination, the case was reviewable on writ of error under Rule 6 of former Supreme Court Rules. Rio Arriba Cnty. Bd. of Educ. v. Martinez, 1964-NMSC-227, 74 N.M. 674, 397 P.2d 471. Writ of error could be taken from decree for sale of decedent's real estate to pay debts under Rule 6 of former Supreme Court Rules. Cooper v. Brownfield, 1928-NMSC-039, 33 N.M. 464, 269 P. 329. Motion to quash denied. - In tort action, where judgment might have been rendered against both or either party, either party was entitled to review, and a motion to quash the writ of error on the grounds that the suit was against both while the cause was submitted and judgment rendered against the defendant who did not bring error would be overruled. New Mexico & S.P.R.R. v. Madden, 1893-NMSC-018, 7 N.M. 215, 34 P. 50. Writ not barred. - Under former appellate procedure, an appeal sued out by one party to a suit, which was heard, did not bar another party from suing out a writ of error to review errors not reviewed on the appeal. Armijo v. Neher, 1902-NMSC-010, 11 N.M. 354, 68 P. 914. Under Rule 6 of former Supreme Court Rules, an appellant had the right, after taking and abandoning an appeal to the supreme court, to sue out a writ of error within the statutory period. Oskins v. Miller, 1927-NMSC-100, 33 N.M. 104, 263 P. 766. Parties. - Where plaintiff in error failed to make all interested parties below parties to writ of error, under former Supreme Court Rules neither the parties included nor those omitted could be made parties in the supreme court by motion or otherwise after the time had expired. Clark v. Rosenwald, 1924-NMSC-074, 30 N.M. 175, 230 P. 378; Clark v. Rosenwald, 1925-NMSC-062, 31 N.M. 443, 247 P. 306. Writ of error could be amended by striking out the names of some of the defendants in error. Neher v. Armijo, 1898-NMSC-005, 9 N.M. 325, 54 P. 236, overruled on other grounds, De Bergere v. Chavez, 1908-NMSC-006, 14 N.M. 352, 93 P. 762, 51 L.R.A. (n.s.) 50 (1908), aff'd sub nom. Chavez v. Bergere, 231 U.S. 482, 34 S. Ct. 144, 58 L. Ed. 325 (1913). Where a writ of error was improperly directed to an individual rather than to a company, which was plaintiff below, it would be dismissed. R.H. Pierce Co. v. Richardson, 1908-NMSC-003, 14 N.M. 340, 93 P. 717. Issuance of writs at court's direction. - Where the supreme court, upon statehood, appointed the clerk of the territorial court as its clerk and allowed him to continue to issue writs of error, as had been the practice before statehood, such writs were issued with the knowledge and acquiescence of the supreme court and were to be taken as at their direction, within the scope of N.M. Const., art. VI, § 3. Wood v. Sloan, 1913-NMSC-078, 18 N.M. 290, 137 P. 578; Farmers' Dev. Co. v. Rayado Land & Irrigation Co., 1913-NMSC-055, 18 N.M. 138, 134 P. 216. Writ of error as appropriate means for invoking collateral order doctrine. Carrillo v. Rostro, 1992-NMSC-054, 114 N.M. 607, 845 P.2d 130. Law reviews. - For note, "The Adoption of the Collateral Order Doctrine in New Mexico: Carrillo v. Rostro," see 24 N.M.L. Rev. 389 (1994). Am. Jur. 2d, A.L.R. and C.J.S. references. - 4 C.J.S. Appeal and Error §§ 9 et seq.; 353 et seq.; 5 C.J.S. Appeal and Error § 724.