N.M. R. Civ. P. Dist. Ct. 1-011
N.M. R. Civ. P. Dist. Ct. 1-011
Committee commentary. - New Mexico has enacted an Electronic Authentication Documentation Act which provides for the Secretary of State to register electronic signatures using the public key technology. See Section 14-15-4 NMSA 1978.
Committee commentary for 2008 and 2014 amendments. - Rule 1-011 NMRA was amended in 2008 to permit self-affirmation in lieu of notarization of any written sworn statement required or permitted under the Rules of Civil Procedure for the District Courts. The 2008 amendment, however, did not permit self-affirmation of a statement that must be sworn under statute. See, e.g., NMSA 1978, § 40-4-6 (providing that a petition for dissolution of marriage "must be verified by the affidavit of the petitioner"). The 2014 amendment removed that limitation. See Miller & Assocs., Inc. v. Rainwater, 1985-NMSC-001, ¶¶ 6-8, 102 N.M. 170, 692 P.2d 1390 (holding that NMSA 1978, Section 38-7-1, which requires the denial of an account to be "under oath, in writing, and filed as a part of the pleadings before trial," is "merely a rule of procedure" and therefore is unconstitutional under Ammerman v. Hubbard Broadcasting, Inc., 1976-NMSC-031, 89 N.M. 307, 551 P.2d 1354). Thus, notarization is no longer required for any written statement in a court proceeding, including a declaration, verification, certificate, oath, affirmation, acknowledgment, or affidavit, as long as the statement is affirmed under penalty of perjury in accordance with Paragraph B of this rule. Accord NMSA 1978, § 30-25-1(A) (2009) ("Perjury consists of making a false statement under oath, affirmation or penalty of perjury, material to the issue or matter involved in the course of any judicial, administrative, legislative or other official proceeding or matter, knowing such statement to be untrue." (emphasis added)).
Although Paragraph B permits self-affirmation of documents in lieu of notarization, the rule is not intended to alter any statutory requirements that may exist for notarizing documents to be filed with other governmental agencies. Moreover, nothing in the 2008 or 2014 amendments prohibit a person from using a notary, and many of the Civil Forms for use in the district courts still include the option for notarization. The amendments simply provide an alternative method for providing written sworn statements that may be permitted or required under rule or statute.
[As amended by Supreme Court Order No. 14-8300-023, effective December 31, 2014.]
ANNOTATIONS The 2015 amendment, approved by Supreme Court Order No. 15-8300-024, effective November 18, 2015, provided an exception to the unsworn affirmation provision; and in Paragraph B, added "Except as provided in Rule 1-120 NMRA". The 2014 amendment, approved by Supreme Court Order No. 14-8300-023, effective December 31, 2014, provided that a written statement that is not notarized has the same effect as a notarized statement if the statement is dated, signed by the person making the statement, and affirmed under penalty of perjury; in the title of the rule, after "sanctions", deleted "self-affirmation in lieu of notarization" and added "unsworn affirmations under penalty of perjury"; deleted former Paragraph B which provided that written sworn statements had to be dated, signed by the person making the statement and affirmed under penalty of perjury, but did not have to be notarized, and added current Paragraph B. The 2008 amendment, approved by Supreme Court Order 08-8300-022, effective September 12, 2008, deleted language in Subsection A which provided that pleadings need not be verified or accompanied by affidavit and that abolished the rule in equity that averments of an answer must be overcome by two witness or one witness and other corroborating circumstances; added Subsection B; and added the Committee comment for the 2008 amendment. The 1997 amendment, effective January 1, 1997, added the last sentence defining "signature".
For verification of petition in divorce actions, see Section 40-4-6 NMSA 1978. For verification of pleadings in action for seizure of illegal oil, see Section 70-2-32 NMSA 1978. Compiler's notes. - This rule, in conjunction with Rule 1-005, is deemed to have superseded 105-510 and 105-705, C.S. 1929. It is further deemed to partially supersede 105-415, C.S. 1929, and to supersede 105-424, 105-425, 105-821, C.S. 1929. Sanctions. - The district court's imposition of sanctions on plaintiff was appropriate where plaintiff agreed to purchase property subject to the right of defendants to reside on the property until the closing on the sale; plaintiff made a partial payment of the purchase price and the seller executed, but did not deliver, a deed on December 11, 2003; plaintiff filed an unlawful detainer action in December; but plaintiff did not pay the balance of the purchase price until May 26, 2003, the closing occurred when plaintiff paid the balance of the purchase price and plaintiff could not have pleaded with good cause that the transaction was closed in December. Benavidez v. Benavidez, 2006-NMCA-138, 140 N.M. 637, 145 P.3d 117. Purpose. - The primary goal of this rule is to deter baseless filings in district court by testing the conduct of counsel. Rivera v. Brazos Lodge Corp., 1991-NMSC-030, 111 N.M. 670, 808 P.2d 955. The objectives sought by this rule and the wording of the rule primarily place a moral obligation upon the lawyer to satisfy himself that there are good grounds for the action or defense. This requires honesty and good faith in pleading. Rivera v. Brazos Lodge Corp., 1991-NMSC-030, 111 N.M. 670, 808 P.2d 955. The "good ground" provision in this rule is to be measured by subjective standards at the time of the signing of the pleading. Any violation depends on what the attorney or litigant knew and believed at the relevant time and involves the question of whether the litigant or attorney was aware that a particular pleading should not have been brought. Rivera v. Brazos Lodge Corp., 1991-NMSC-030, 111 N.M. 670, 808 P.2d 955. The "good ground" provision of this rule is measured by a subjective standard: Any violation depends on what the attorney or litigant knew and believed at the relevant time (the signing of the pleading) and involves the question of whether the litigant or attorney was aware that a particular pleading should not have been brought. Lowe v. Bloom, 1991-NMSC-058, 112 N.M. 203, 813 P.2d 480. Sanction for prosecuting an action that lacked a good ground. - Where, before plaintiff's death, plaintiff designated one of plaintiff's children as plaintiff's agent; plaintiff owned a stock certificate which the agent and the agent's sibling asked defendant to hold until they both agreed that it should be returned to plaintiff for plaintiff's care; when the agent asked defendant to return the stock certificate to plaintiff and defendant refused, the agent filed suit against defendant for replevin; defendant answered that defendant was holding the stock certificate pursuant to the agreement between the agent and the sibling, defendant disclaimed any personal or financial interest in the stock certificate, and defendant did not return the stock certificate because the agent and the sibling were engaged in a dispute regarding the agent's management of plaintiff's finances; defendant filed a claim for interpleader asking the court to hold the stock certificate until the dispute between the agent and the sibling had been resolved; the district court accepted the interpleader, found that plaintiff was the rightful owner of the stock certificate, and ordered that the issue of the rightful possession of the stock certificate be resolved in a pending guardianship and conservatorship proceeding filed by the sibling, leaving only the issue of damages to be determined; when defendant died, the agent insisted that the court proceed to determine damages; in the damages case, the district court found that defendant's actions were not an unjustified detention, the agent knew that the suit against defendant should not have been filed, and the agent was pressing an unfounded claim to impose liability on defendant for defendant's attempt to comply with the agreement between the agent and the sibling for the safekeeping of the stock certificate; and the district court sanctioned plaintiff in the amount of the defense attorney fees of $56,575.44, the district court did not abuse its discretion. Bernier v. Bernier, 2013-NMCA-074. Husband signing pleading as attorney-in-fact equivalent to wife signing. - Where defendant did not personally sign the answer in the prior suit, in which appeared the admission of the debt later sued upon, but in her answer in the later suit she admitted her deceased husband signed the answer in the prior suit as attorney for her and himself, and no question had been raised as to his authority to sign the answer as her attorney or to make the admission on her behalf, then his signature on her behalf to the answer in the prior suit had the same effect as if she had personally signed. Smith v. Walcott, 1973-NMSC-074, 85 N.M. 351, 512 P.2d 679. Where an appellant is obviously present before the court and vigorously pursuing his case - although his name is missing from the caption of the case and he has erroneously designated someone else as the appellant - the court and all those concerned may yet have sufficient knowledge of the parties and their positions to hear the merits of the case. Mitchell v. Doña Ana Sav. & Loan Ass'n, 1991-NMSC-007, 111 N.M. 257, 804 P.2d 1076. Pleading stricken when required verification omitted. - Where a verification is required and is omitted, the pleading may be stricken out or judgment may be had on the pleadings. Hyde v. Bryan, 1918-NMSC-097, 24 N.M. 457, 174 P. 419 (decided under former law). Where the attorney objected to the judgment which included sanction, and the court also gave him notice through the order to show cause, this afforded the attorney not only the essential facts but also the notice and an opportunity to be heard; the attorney was afforded all the process he was due. Doña Ana Sav. & Loan Ass'n v. Mitchell, 1991-NMCA-054, 113 N.M. 576, 829 P.2d 655. Sworn statement not required. - Service of a sworn statement before imposing sanctions is not required. Doña Ana Sav. & Loan Ass'n v. Mitchell, 1991-NMCA-054, 113 N.M. 576, 829 P.2d 655. Motion to vacate a judgment need not be verified. Sheppard v. Sandfer, 1940-NMSC-031, 44 N.M. 357, 102 P.2d 668 (decided under former law). District court improperly imposed sanctions against an attorney for willfully failing to disclose the pendency of an action in another state involving the same issue, where the sanction awarded was based on what the attorney failed to disclose to the court, as opposed to a defect in his pleading. Cherryhomes v. Vogel, 1990-NMCA-128, 111 N.M. 229, 804 P.2d 420. Sanctions should be entered against an attorney rather than a party for violation of the "good ground" requirement of this rule only when a pleading or other paper is unsupported by existing law rather than unsupported by facts. Rivera v. Brazos Lodge Corp., 1991-NMSC-030, 111 N.M. 670, 808 P.2d 955. Sanctions for filing attorney charging lien. - Where attorney significantly contributed to client's ultimate recovery on the client's claim, which client obtained after the attorney was discharged, the attorney's charging lien for a contingent fee based on the recovery stated a colorable claim and the attorney was not subject to sanctions. Rangel v. Save Mart, Inc., 2006-NMCA-120, 140 N.M. 395, 142 P.3d 983. Sanction for excessive fee. - Where attorney recovered a $5,000 medical payment, attorney made a substantial contribution to the client's ultimate recovery of an additional $18,000, which the client obtained after the attorney was discharged, the attorney's claim for a 40% contingent fee on the recovery was not so unreasonable as to warrant sanctions. Rangel v. Save Mart, Inc., 2006-NMCA-120, 140 N.M. 395, 142 P.3d 983. Procedural due process. - Rule 11 sanctions should be imposed rarely, they should be levied only if the mandates of procedural due process are obeyed. Rivera v. Brazos Lodge Corp., 1991-NMSC-030, 111 N.M. 670, 808 P.2d 955. Determining whether process is due in a Rule 11 case requires an application of familiar principles of due process. The timing and content of the notice and the nature of the hearing will depend upon an evaluation of all the circumstances and an appropriate accommodation of the competing interests involved. Rivera v. Brazos Lodge Corp., 1991-NMSC-030, 111 N.M. 670, 808 P.2d 955. Appellate review of Rule 11 determination. - An appellate court should apply an abuse-of-discretion standard in reviewing all aspects of a trial court's Rule 11 determination. An abuse of discretion will be found when the trial court's decision is clearly untenable or contrary to logic and reason. Rivera v. Brazos Lodge Corp., 1991-NMSC-030, 111 N.M. 670, 808 P.2d 955. Case was remanded to the district court for the entry of findings and conclusions on the imposition of Rule 11 sanctions, where the supreme court was unable to review whether an abuse of discretion occurred in the imposition of sanctions for the filing of plaintiff's complaint without speculation about the subjective knowledge of the relevant facts and applicable law held by plaintiff and his attorney at the time of filing. Rivera v. Brazos Lodge Corp., 1991-NMSC-030, 111 N.M. 670, 808 P.2d 955. Evidence of willful violation lacking. - An earlier action for attorney fees was disposed of through a voluntary dismissal without prejudice and with no answer having been filed. The later filing of a malpractice claim against the plaintiffs in the earlier action was not a violation of this rule. Whether the claim for malpractice was a compulsory counterclaim in the earlier action was a question on which reasonable lawyers and judges could have differed. Lowe v. Bloom, 1991-NMSC-058, 112 N.M. 203, 813 P.2d 480. Am. Jur. 2d, A.L.R. and C.J.S. references. - 61B Am. Jur. 2d Pleading §§881 to 898. Sufficiency of verification of pleading by person other than party to action, 7 A.L.R. 4 Perjury in verifying pleadings, 7 A.L.R. 1283. Civil liability of attorney for abuse of process, 97 A.L.R.3d 688. Comment Note - General principles regarding imposition of sanctions under Rule 11, Federal Rules of Civil Procedure, 95 A.L.R. Fed. 107. Imposition of sanctions under Rule 11, Federal Rules of Civil Procedure, pertaining to signing and verification of pleadings, in actions for defamation, 95 A.L.R. Fed. 181. Imposition of sanctions under Rule 11, Federal Rules of Civil Procedure, pertaining to signing and verification of pleadings, in action for wrongful discharge from employment, 96 A.L.R. Fed. 13. Imposition of sanctions under Rule 11, Federal Rules of Civil Procedure, pertaining to signing and verification of pleadings, in actions for securities fraud, 97 A.L.R. Fed. 107. Imposition of sanctions under Rule 11, Federal Rules of Civil Procedure, pertaining to signing and verification of pleadings, in actions for infliction of emotional distress, 98 A.L.R. Fed. 442. Imposition of sanctions under Rule 11, Federal Rules of Civil Procedure, pertaining to signing and verification of pleadings, in antitrust actions, 99 A.L.R. Fed. 573. Procedural requirements for imposition of sanctions under Rule 11, Federal Rules of Civil Procedure, 100 A.L.R. Fed. 556. 71 C.J.S. Pleading §§ 339 to 366.