N.M. R. Civ. P. Dist. Ct. 1-052
N.M. R. Civ. P. Dist. Ct. 1-052
Committee commentary. -
1. In general.
Prior to the February 1, 2001 revisions, Rule 1-052 NMRA provided procedures which were cumbersome, unnecessarily detailed and confusing. The February 1, 2001 revision simplifies the process of rendering a decision in nonjury trials while preserving the portions of the existing rule which seek to assure that the court's decision will be clear and correct.
The February 1, 2001 revision eliminates the confusing distinction between evidentiary and ultimate facts. The court is no longer required to mark as "Refused" all proposed findings that are not included in the court's decision. It requires that the court enter findings and conclusions upon request of a party. Finally, former Paragraph A of Rule 1-052 NMRA, relating to waiver of trial by jury, has been rewritten and is now found in Paragraph D of Rule 1-038 NMRA, jury trial in civil actions.
Section 39-1-1 NMSA 1978, adopted in 1897, provides that a trial court in some cases has continuing jurisdiction over its judgments for thirty (30) days after their entry. See, e.g., Laffoon v. Galles Motor Co., 80 N.M. 1, 450 P.2d 439 (Ct. App. 1969). Rather than have a ten (10)-day time requirement for filing most post-judgment motions but a thirty (30)-day time frame for filing motions under Section 39-1-1 NMSA 1978, the 2013 amendments extend the time for filing all post-trial motions, including Rule 1-052 NMRA motions to amend or add findings and conclusions after entry of judgment, to thirty (30) days from entry of the final judgment. The decision to extend the time to thirty (30) days rather than to limit Section 39-1-1 NMSA 1978 motions to ten (10) days was made because the prior ten (10)-day requirement often left insufficient time for parties to research, formulate, and prepare post-judgment motions. In addition, the choice of thirty (30) days makes it unnecessary to determine whether the provision in Section 39-1-1 NMSA 1978 for extended post-judgment jurisdiction of the district court is consistent with the principle of separation of powers between the legislature and the judiciary. See Rule 1-091 NMRA; Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976). The intent and effect of the 2013 amendment to Rule 1-052(D) NMRA is to expand the time for filing those motions to thirty (30) days from entry of the judgment.
Motions are no longer deemed denied if not ruled upon for thirty (30) days after submission. Rule 1-054.1 NMRA. See the Committee Commentary for 2006 Amendment to Rule 1-054.1 NMRA for additional information. Instead, Rule 1-054.1 NMRA directs district courts to enter an order within sixty (60) days of submission. Id. Normally, the party filing a post-judgment motion has to await entry of an order from the district court ruling on the motion before filing an effective notice of appeal because where a timely Rule 1-052(D) NMRA motion has been filed, the time for filing a notice of appeal runs from the date of entry of an order that expressly disposes of the motion. See Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122, ¶ 4, 147 N.M. 303, 222 P.3d 675 (notice of appeal filed prior to ruling on pending Rule 1-059(E) NMRA motion is premature and time for filing notice of appeal does not begin to run until order is entered resolving Rule 1-059(E) NMRA motion). A party who makes a timely Rule 1-052(D) NMRA motion may thereafter prefer to forgo an express ruling on the motion and, instead, start the appellate process. Appellate Rule 12-201(D)(3) NMRA provides that a Rule 1-052(D) NMRA movant may file a notice of withdrawal of the motion, thus affecting the time for filing a notice of appeal as provided in Rule 12-201(D)(3) NMRA.
Under Rule 12-201(D)(4) NMRA, a timely filed notice of appeal does not divest the district court of jurisdiction to dispose of any timely filed motion under Rules 1-050, 1-052, or 1-059 NMRA, or a Rule 1-060 NMRA motion filed within thirty (30) days after the filing of a judgment. The notice of appeal becomes effective when the last such motion is disposed of expressly by an order of the district court, is automatically denied, or is withdrawn.
2. Findings and conclusions; when required.
The February 1, 2001 revision requires a party to tender findings and conclusions in a timely manner in order to assure that the court will enter findings and conclusions. A party who complies with this requirement by tendering findings and conclusions at an early stage in the proceedings may subsequently waive findings and conclusions pursuant to Paragraph C of this rule.
3. Preservation of error on appeal.
Former Rule 1-052 NMRA lacked clarity as to the proper means for preserving error for appeal concerning the findings and conclusions. Compare former Rule 1-052(F) NMRA with former Rule 1-052(B)(2) NMRA; see Cockrell v. Cockrell, 117 N.M. 321, 871 P.2d 977 (1994). The revision omits reference to "preservation of error" as this is a matter for the appellate rules. See Rules 12-208(E), 12-213(A)(4), and 12-216 NMRA; cf. Martinez v. Martinez, 101 N.M. 88, 93, 678 P.2d 1163, 1168 (1984) (dicta); Blea v. Sandoval, 107 N.M. 554, 556, 761 P.2d 432, 434 (Ct. App. 1988) (dicta).
[As amended by Supreme Court Order No. 13-8300-032, effective in all cases pending or filed on or after December 31, 2013.]
ANNOTATIONS The 2013 amendment, approved by Supreme Court Order No. 13-8300-032, effective December 31, 2013, increased the time to file a motion to amend; and in Paragraph D, after "motion of a party", deleted "made" and added "filed", and after "filed not later than", deleted "ten (10)" and added "thirty (30)". The 2006 amendment, approved by Supreme Court Order No. 06-8300-17, effective August 21, 2006, eliminated the provision in Paragraph D of Rule 1-052 that stated that if a timely motion to amend findings and conclusions for a judgment was not granted within thirty days after it was filed, the motion was automatically denied. See the 2006 committee commentary to Rule 1-054.1 NMRA for additional information. The 2000 amendment, effective February 1, 2001, rewrote this rule, simplifying the process of rendering decisions in nonjury trials and requiring the entrance of finding and conclusions of law upon request of a party. Compiler's notes. - This rule is deemed to have superseded former Trial Court Rule 105-813, derived from 105-813, C.S. 1929, which were substantially the same. I. GENERAL CONSIDERATION. Law reviews. - For article, "The `New Rules' in New Mexico," see 1 Nat. Resources J. 96 (1961). For comment, "Trial-Appeal and Error-Findings of Fact," see 3 Nat. Resources J. 331 (1963). For opinion, "The Development of Modern Libel Law: A Philosophic Analysis," see 16 N.M.L. Rev. 183 (1986). Am. Jur. 2d, A.L.R. and C.J.S. references. - 75B Am. Jur. 2d Trial §§1956, 1967 to 1999. Amendment of judgment as affecting time for taking or prosecuting appellate review proceedings, 21 A.L.R. 285, 131 A.L.R. 1146. Conclusiveness of or weight attached to findings of fact of master in chancery, 33 A.L.R. 745. Right of judge trying case without jury to base findings on result of personal observations, 97 A.L.R. 335. Necessity, as condition of effectiveness of express finding on a matter in issue to prevent relitigation of question in later case, that judgment in former action shall have rested thereon, 133 A.L.R. 840. Requiring successor judge to journalize findings or decision of predecessor, 4 A.L.R.2d 584. Inclusion in domestic judgment or record, in action upon a judgment of a sister state, of findings respecting the cause of action, on which the judgment in the sister state was rendered, 10 A.L.R.2d 435. Libel and slander, findings, report or like of judge or person acting in judicial capacity as privileged, 42 A.L.R.2d 825. Withdrawal or disregard of waiver of jury trial in civil action, 64 A.L.R.2d 506, 9 A.L.R.4th 1041. Sufficiency of waiver of full jury, 93 A.L.R.2d 410. How to obtain jury trial in eminent domain; waiver, 12 A.L.R.3d 7. Power of trial court, on remand for further proceedings, to change prior fact findings as to matter not passed upon by appellate court, without receiving further evidence, 19 A.L.R.3d 502. Propriety and effect of trial court's adoption of findings prepared by prevailing party, 54 A.L.R.3d 868. Jury trial waiver as binding on later state civil trial, 48 A.L.R.4th 747. Contractual jury trial waivers in state civil cases, 42 A.L.R.5th 53. Application of "clearly erroneous" test by Rule 52(a) of the Federal Rules of Civil Procedure to trial court's findings of fact based on documentary evidence, 11 A.L.R. Fed. 212. 49 C.J.S. Judgments § 279; 50A C.J.S. Juries § 182; 89 C.J.S. Trial §§ 609 to 657. II. WAIVER OF TRIAL BY JURY. When lack of objection deemed waiver of jury. - Where defendant was in court when case was set for trial with consent of the parties, and did not demand a jury, and afterwards the case was submitted on the day set for such trial, the defendant then making no objection to the proceedings, and not demanding a jury, was not in a position to complain that there was no submission to a jury. Porter v. Alamocitos Land & Livestock Co., 1925-NMSC-036, 32 N.M. 344, 256 P. 179 (decided under former law). No application to criminal cases. - This rule sets forth various methods by which a jury trial may be waived in suits of a civil nature but is not applicable to defendant's criminal case. State v. Brill, 1970-NMCA-093, 81 N.M. 785, 474 P.2d 77, cert. denied, 81 N.M. 784, 474 P.2d 76. III. FINDINGS OF FACT. A. IN GENERAL. In a quiet title action, where the defendant, but not the plaintiff, filed timely requested findings of fact and conclusions of law and where the trial court's oral ruling in favor of the plaintiff provided no indication of why or how the plaintiff established title and relied on the weakness of the defendant's title, the trial court erred by entering judgment quieting title in the plaintiff without written findings of fact and conclusions of law. Montoya v. Medina, 2009-NMCA-029, 145 N.M. 690, 203 P.3d 905. Purpose of rule. - Although this rule differs from the federal rule, the reasons for both rules are the same, i.e., as an aid to the appellate court by placing before it the basis of the decision of the trial court; to require care on the part of the trial judge in his consideration and adjudication of the facts and for the purposes of res judicata and estoppel by judgment. Mora v. Martinez, 1969-NMSC-030, 80 N.M. 88, 451 P.2d 992; see also DesGeorges v. Grainger, 1966-NMSC-013, 76 N.M. 52, 412 P.2d 6. Application of rule. - A proceeding under former Rule 93 (now withdrawn) or 31-11-6 NMSA 1978 was an independent civil action, and, therefore, this rule requiring the making of findings of fact, applied to such proceedings. State v. Hardy, 1967-NMSC-203, 78 N.M. 374, 431 P.2d 752. Court approves making findings and conclusions whenever hearing on evidence. - While this rule does not literally require the court to make findings of fact and conclusions of law in connection with a hearing under Rule 60(b) (see now Rule 1-060 NMRA), many courts follow the commendable practice of making findings and conclusions where there has been a hearing on the evidence. Mathieson v. Hubler, 1978-NMCA-119, 92 N.M. 381, 588 P.2d 1056, cert. denied, 92 N.M. 353, 588 P.2d 554. Requirements of rule. - The rules require the trial judge to make and file his decision consisting of findings of such ultimate facts and conclusions of law stated separately as are necessary to support his judgment, in a single document; and that he sign and file such decision in the cause as a part of the record proper. Lusk v. First Nat'l Bank, 1942-NMSC-056, 46 N.M. 445, 130 P.2d 1032; McDaniel v. Vaughn, 1938-NMSC-038, 42 N.M. 422, 80 P.2d 417 (both cases decided under former law). Under this rule the trial court, when sitting without a jury, is required to make findings of fact. This is true even though a motion is sustained at the close of plaintiff's case. Guidry v. Petty Concrete Co., 1967-NMSC-048, 77 N.M. 531, 424 P.2d 806. Where jury is not solely advisory, this rule is inapplicable. - The trial court has great discretion in the matter of trial by jury; it ordered the jury; one was impaneled and its verdict received. There was no need to make findings of fact and conclusions of law. Keeth Gas Co. v. Jackson Creek Cattle Co., 1977-NMSC-087, 91 N.M. 87, 570 P.2d 918. Preserving error for review. - A request for findings is not the only means of preserving error based upon insufficiency of the evidence to support a judgment. The party may make requested findings or file exceptions. Cockrell v. Cockrell, 1994-NMSC-026, 117 N.M. 321, 871 P.2d 977. When findings of fact and conclusions of law not necessary. - Since a summary judgment presupposes that there are no triable issues of fact, findings of fact and conclusions of law are not required in rendering judgment. Failure to make and enter findings and conclusions is not error. Federal Bldg. Serv. v. Mountain States Tel. & Tel. Co., 1966-NMSC-148, 76 N.M. 524, 417 P.2d 24. Findings of fact and conclusions of law are not required by the rules except in involved cases where the reason for the summary judgment is not otherwise clearly apparent from the record. Williams v. Herrera, 1972-NMCA-057, 83 N.M. 680, 496 P.2d 740. Since a summary judgment presupposes that there are no triable issues of fact, findings of fact and conclusions of law are not required in rendering judgment. Failure to make and enter findings and conclusions is not error. Jacobson v. State Farm Mut. Auto. Ins. Co., 1970 -NMSC-089, 81 N.M. 600, 471 P.2d 170. Findings of fact and conclusions of law are not required for a motion seeking relief from judgment. Fidelity Nat'l Bank v. Lobo Hijo Corp., 1979-NMCA-045, 92 N.M. 737, 594 P.2d 1193. The requirement of written findings did not apply to the issue of attorneys' fees that was before the court in the context of a motion, not in a bench trial. Monsanto v. Monsanto, 1995-NMCA-048, 119 N.M. 678, 894 P.2d 1034. Rulings on motions. - While findings of fact and conclusions of law are not required when ruling on a motion, where a ruling on a motion necessarily involves a determination of factual issues, express findings of fact are preferable. In re Begay, 1988-NMCA-081, 107 N.M. 810, 765 P.2d 1178. Purpose of a review of evidence in a nonjury case is to determine whether evidence supports the findings of trial court. Guidry v. Petty Concrete Co., 1967-NMSC-048, 77 N.M. 531, 424 P.2d 806. An appellate court, in the review of cases tried without a jury, may be able to traverse the same ground as the lower court, reaching not a conclusion of its own, but a determination as to whether that of the trial court is justified in fact and in law. Watson Land Co. v. Lucero, 1974-NMSC-003, 85 N.M. 776, 517 P.2d 1302. Appeal must be timely. - Although the taking by the court of proposed findings of fact and noting after each whether it was "refused" or "adopted" was irregular, writ of certiorari would not lie to compel the court to make its own findings and conclusions, after time for appeal had expired. Macabees v. Chavez, 1939-NMSC-040, 43 N.M. 329, 93 P.2d 990 (decided under former law). Findings supported by substantial evidence not disturbed. - It is not the function of the appellate court to weigh the evidence or its credibility, and it will not substitute its judgment for that of the trial court as to the facts established by the evidence, so long as the findings are supported by substantial evidence. Getz v. Equitable Life Assurance Soc'y, 1977-NMSC-018, 90 N.M. 195, 561 P.2d 468, cert. denied, 434 U.S. 834, 98 S. Ct. 121, 54 L. Ed. 2d 95 (1977). Findings of fact which are supported by substantial evidence will not be disturbed on appeal. If the evidence shows that the decision of the trial court is based on reasonable, substantial and probative evidence, so that it can be said that a reasonable person might have reached the same conclusion, the decision of the trial court should be affirmed. In re Valdez, 1975-NMSC-050, 88 N.M. 338, 540 P.2d 818. It is not error to refuse requested findings which are contrary to findings made, when those findings are supported by substantial evidence. Clem v. Bowman Lumber Co., 1972-NMCA-049, 83 N.M. 659, 495 P.2d 1106. Where a jury is waived and the cause is tried by the court, the judgment of the court based on conclusions reached upon conflicting but substantial sustaining evidence will not be disturbed. Pecos Valley Immigration Co. v. Cecil, 1909-NMSC-006, 15 N.M. 45, 99 P. 695; Gale & Farr v. Salas, 1901-NMSC-024, 11 N.M. 211, 66 P. 520; Rush v. Fletcher, 1902-NMSC-031, 11 N.M. 555, 70 P. 559 (all cases decided under former law). If supported by competent evidence. - In cases where a jury is waived, the findings of fact by the court have the same force and effect as the verdict of a jury, and appellate court will not set aside the findings and order a new trial for the admission of incompetent evidence if there be other competent evidence to support the conclusion. Grayson v. Lynch, 163 U.S. 468, 16 S. Ct. 1064, 41 L. Ed. 230 (1896) (decided under former law). While findings of fact must support judgment. - A judgment cannot be sustained on appeal unless the conclusion upon which it rests finds support in one or more findings of fact. Thompson v. H.B. Zachry Co., 1966-NMSC-017, 75 N.M. 715, 410 P.2d 740. Findings of fact are to be liberally construed in support of the judgment. The findings are sufficient if a fair construction of all of them, taken together, justify the trial court's judgment. H.T. Coker Constr. Co. v. Whitfield Transp., Inc., 1974-NMCA-002, 85 N.M. 802, 518 P.2d 782. Where plaintiff's inartful drafting of findings to carry out the rulings of the trial court gave rise to defendants' claim that the trial court applied incorrect legal standards, the appellate court would construe the findings liberally to support the judgment. Martinez v. Earth Resources Co., 1975-NMCA-020, 87 N.M. 278, 532 P.2d 207. Findings are not to be construed with the strictness of special pleadings. It is sufficient if from them all, taken together with the pleadings, we can see enough, upon a fair construction, to justify the judgment of the court notwithstanding their want of precision and the occasional intermixture of matters of fact and conclusions of law. Watson Land Co. v. Lucero, 1974-NMSC-003, 85 N.M. 776, 517 P.2d 1302. The refusal by the court to accept a requested finding is regarded on appeal as a finding against the party bearing the burden of proof on the issue at trial. Western Bank v. Franklin Dev. Corp., 1991 -NMSC-009, 111 N.M. 259, 804 P.2d 1078. Findings and judgments not sustainable without substantial evidence. - A finding of fact, not supported by substantial evidence, will not be sustained on appeal, and a judgment based on such finding is itself without support. Therefore, where the district court in making its decision itself indicated concern about the lack of evidence regarding offsets on a construction contract, and the witnesses testifying in regard to offsets gave only guesses or estimates, the case was remanded to the trial court to allow defendant to present evidence, if available, to substantiate its claims. Olivas v. Sibco, Inc., 1975-NMSC-027, 87 N.M. 488, 535 P.2d 1339. Although it is not proper for the appellate court to disagree with a finding supported by substantial evidence, it can and must determine whether the evidence presented substantially supports a finding which has been properly attacked: findings not supported by substantial evidence, and which have been properly attacked, cannot be sustained on appeal, and a judgment dependent thereon must be reversed. Getz v. Equitable Life Assurance Soc'y, 1977-NMSC-018, 90 N.M. 195, 561 P.2d 468, cert. denied, 434 U.S. 834, 98 S. Ct. 121, 54 L. Ed. 2d 95 (1977). A judgment cannot be sustained on appeal unless the conclusion upon which it is based finds support in the findings of fact. Worland v. Worland, 1976-NMSC-027, 89 N.M. 291, 551 P.2d 981. Conclusion by the court that appellee's community interest would not equal $200,000 if the tax ramifications were taken into account was an insufficient finding to enable an appellate court a meaningful opportunity for review. Michelson v. Michelson, 1974-NMSC-022, 86 N.M. 107, 520 P.2d 263. Where a case is tried to a court and the trial court makes findings of fact and conclusions of law, court of appeals cannot reverse unless convinced that the findings cannot be sustained by evidence or inferences therefrom. Barber's Super Mkts., Inc. v. Stryker, 1972-NMCA-089, 84 N.M. 181, 500 P.2d 1304, cert. denied, 84 N.M. 180, 500 P.2d 1303. Without sufficient specificity. - Laws 1880, ch. 6, §29, as amended (105-813, C.S. 1929) (now superseded) required the trial court in cases heard without a jury to make findings of fact and conclusions of law sufficiently specific to enable the higher court to review its action, and findings too general to enable the reviewing court to test the correctness of the judgment were not sufficient. Apodaca v. Lueras, 1929-NMSC-041, 34 N.M. 121, 278 P. 197 (decided under former law). Judgment entered prior to fact finding. - Where defendant filed his notice of appeal and thereafter the court entered its requested findings of fact and conclusions of law, the supreme court held that, although it was technical error to enter judgment without those findings, where the trial court's findings of fact and conclusions of law were part of the record, it would be a misuse of judicial resources to remand the case to the trial court. Hickey v. Griggs, 1987-NMSC-050, 106 N.M. 27, 738 P.2d 899. Finding of fact mislabeled as conclusion of law. - The trial court's failure to denominate as a finding of fact its determination as to the percentage of negligence between the parties and instead identifying it as a "conclusion of law" does not constitute reversible error where the trial court's decision on the matter is clear. Sheraden v. Black, 1988-NMCA-016, 107 N.M. 76, 752 P.2d 791. When remand proper. - When findings wholly fail to resolve in any meaningful way the basic issues of fact in dispute, they become clearly insufficient to permit the reviewing court to decide the case at all, except to remand it for proper findings by the trial court. Michelson v. Michelson, 1976-NMSC-026, 89 N.M. 282, 551 P.2d 638. Where there are no findings of fact at all at the trial level the appellate court shall not take to supply the findings, but remand to the trial court so that it can make them. DesGeorges v. Grainger, 1966-NMSC-013, 76 N.M. 52, 412 P.2d 6. Where justice requires supreme court may remand a case to district court for the making of proper findings and conclusions as contemplated by this rule. Prater v. Holloway, 1945-NMSC-043, 49 N.M. 353, 164 P.2d 378. Trial court was directed to make defendant's requested findings on counterclaim alleging negligent repair where erroneous award of interest and attorney fees in suit to recover for repairs to defendant's building required remand of case. Tabet Lumber Co. v. Chalamidas, 1971-NMCA-140, 83 N.M. 172, 489 P.2d 885. Where doubt or ambiguity exists as to whether the trial court considered relevant evidence, or where other findings are required, the ends of justice require that the cause be remanded to the district court for the entry of additional findings and conclusions of law. State ex rel. Human Servs. Dep't v. Coleman, 1986-NMCA-074, 104 N.M. 500, 723 P.2d 971. Findings of fact solely by district courts. - The supreme court is not authorized to make findings which the district court should have made, nor to draw inferences therefrom, and must depend upon the district court for findings of fact. Where the district court used the language of the wrong insurance policy (mistakenly filed with defendant's pleadings and later substituted by the proper policy, by stipulation of the parties) in reaching its decision, it was not in a position to make findings of fact and conclusions of law based upon proper factual evidence, and the case was remanded to the district court to reach a decision based upon findings of fact and conclusions of law consistent with the proper insurance policy. Safeco Ins. Co. of Am. v. McKenna, 1975-NMSC-023, 87 N.M. 481, 535 P.2d 1332. With a dispute as to the facts, and with no findings by the trial court, the appellate court has no facts before it. Guidry v. Petty Concrete Co., 1967-NMSC-048, 77 N.M. 531, 424 P.2d 806. Findings of fact which are not directly attacked become the facts in an appellate court. Latta v. Harvey, 1960-NMSC-046, 67 N.M. 72, 352 P.2d 649. When remand not necessary. - Even though no specific finding as to the testator's intent to revoke was made by the trial court, a remand is unnecessary if the missing fact required to support a judgment is documentary or appears undisputed in the record. Boddy v. Boddy, 1966-NMSC-242, 77 N.M. 149, 420 P.2d 301. Under this rule the trial court is required, in a case tried without a jury, to find the facts necessary to support a judgment, and the rule further provides for a remand for the making of findings when proper findings are not made. But an exception, born of common sense and presently germane, is made to the application of the rule. A remand is unnecessary if the missing fact required to support the judgment is documentary or appears undisputed in the record. Under such circumstances it may be supplied by the court without remand. DesGeorges v. Grainger, 1966-NMSC-013, 76 N.M. 52, 412 P.2d 6. Where an order allowing appeal is granted six days prior to the filing of the trial court's findings of fact and conclusions of law which were generally in accord with those erroneously contained in the judgment, the supreme court will not strike those findings and remand the case to the trial court for the making of the same over again. Brown v. Hayes, 1961-NMSC-095, 69 N.M. 24, 363 P.2d 632. Trial court loses jurisdiction of case upon filing of notice of appeal, except for the purposes of perfecting such appeal or passing upon a motion directed to the judgment which is pending at the time, therefore, the trial court lacked authority to enter findings and conclusions 19 days after the filing of the notice of appeal and over a month and a half after the entry of the judgment, the case was reversed and remanded to the district court for the purpose of entering a proper decision prior to the entry of judgment, so that either party may then take an appropriate appeal therefrom, if aggrieved thereby. University of Albuquerque v. Barrett, 1974-NMSC-085, 86 N.M. 794, 528 P.2d 207. After trial court has entered its order allowing an appeal and supersedeas bond has been set it loses jurisdiction over the case, except for perfecting the appeal, and any requested findings of fact or conclusions of law which may be filed thereafter cannot be considered. Veale v. Eavenson, 1948-NMSC-018, 52 N.M. 102, 192 P.2d 312. Although subject matter jurisdiction raised at any time. - Although the father-appellant did not precisely raise a defect in the judgment of the lower court for lack of proper findings as to domicile of his child, it is appropriate, where there is a question of subject matter jurisdiction, that the appellate court do so on its own motion. Worland v. Worland, 1976-NMSC-027, 89 N.M. 291, 551 P.2d 981. Failure to tender specific findings waives review of the findings on appeal. Fenner v. Fenner, 1987-NMCA-066, 106 N.M. 36, 738 P.2d 908. B. DECISION BY COURT. Oral opinions or oral statements do not constitute "decision," within the meaning of this rule and error may not be predicated thereon. Getz v. Equitable Life Assurance Soc'y, 1977-NMSC-018, 90 N.M. 195, 561 P.2d 468, cert. denied, 434 U.S. 834, 98 S. Ct. 121, 54 L. Ed. 2d 95 (1977); Mosley v. Magnolia Petroleum Co., 1941-NMSC-028, 45 N.M. 230, 114 P.2d 740; Specter v. Specter, 1973-NMSC-047, 85 N.M. 112, 509 P.2d 879. The oral remarks of the trial court at the completion of the evidence do not constitute a decision by the court as contemplated by this rule. Peace Found., Inc. v. City of Albuquerque, 1966-NMSC-195, 76 N.M. 757, 418 P.2d 535. Plaintiffs' assertion of error based upon the trial court's remarks at the conclusion of the testimony which they claim indicate that the decision was based partly or wholly upon erroneous conclusions and speculation unsupported by evidence is clearly without merit for the reason that an oral opinion is not a "decision" as contemplated by this rule, and error cannot be predicated thereon. Pack v. Read, 1966-NMSC-216, 77 N.M. 76, 419 P.2d 453. Oral statements of a judge in articulating his ruling at the close of trial do not constitute a "decision" within the meaning of Subdivision (B)(1)(a) (see now Paragraph B(1)(a)) and error may not be predicated thereon. Balboa Constr. Co. v. Golden, 1981-NMCA-157, 97 N.M. 299, 639 P.2d 586. Remarks from bench. - This section provides for a written decision of the court. Remarks from the bench were not such a decision and error could not be predicated on inconsistencies between the trial court's remarks and the findings. Fox v. Doak, 1968-NMSC-031, 78 N.M. 743, 438 P.2d 153. In no event may court comments from the bench be substituted for material facts appearing as findings in the decision. Such comments may be utilized only as an aid in understanding a decision of the court which is ambiguous. Ulibarri v. Gee, 1987-NMSC-113, 106 N.M. 637, 748 P.2d 10. Word "decision" used in this rule does not mean "judgment." It means "findings of fact and conclusions of law." Trujillo v. Tanuz, 1973-NMCA-048, 85 N.M. 35, 508 P.2d 1332. The trial court's formal findings represent the court's official decision. Western Bank v. Fluid Assets Dev. Corp., 1991 -NMSC-020, 111 N.M. 458, 806 P.2d 1048. Decision entered before judgment. - Under New Mexico law the decision of the trial court constitutes the factual and legal basis for the judgment, and the parties' requests for findings and conclusions and the court's decision, consisting of its findings and conclusions, should be entered before the entry of the judgment. University of Albuquerque v. Barrett, 1974-NMSC-085, 86 N.M. 794, 528 P.2d 207. Duty of court. - In those cases tried without a jury it is the duty of the trial court to make findings of fact and conclusions of law. State ex rel. Reynolds v. Board of Cnty. Comm'rs, 1962-NMSC-030, 71 N.M. 194, 376 P.2d 976. Trial court is charged with a duty to make findings of fact and conclusions of law when the case is tried to the court without a jury. Goldenberg v. Village of Capitan, 1948-NMSC-050, 53 N.M. 137, 203 P.2d 370. The fact that the demurrer to the evidence was sustained did not relieve the trial court of its duty of making its findings of fact and conclusions of law based thereon as required by 105-813, C.S. 1929 (now superseded), and in doing so the court is required to make every essential finding of fact necessary to sustain the plaintiff's case that had substantial support in any of the evidence or in any reasonable inference that could be deduced therefrom. Pankey v. Hot Springs Nat'l Bank, 1941-NMSC-060, 46 N.M. 10, 119 P.2d 636. A trial court may not abdicate its judicial responsibility and must exercise its independent judgment in entering findings of fact and conclusions of law. Coulter v. Stewart, 1982-NMSC-035, 97 N.M. 616, 642 P.2d 602. By selectively refusing and adopting by number reference both the plaintiff's and the defendant's requested findings of fact, without actually drafting its own, the trial court failed to make findings sufficient for review. Green v. General Accident Ins. Co. of Am., 1987-NMSC-111, 106 N.M. 523, 746 P.2d 152. When findings and conclusions requested after final decree modified. - Under this rule, the trial court was obligated to make and file findings of fact and conclusions of law, because factual determinations were necessary to a proper decision of the case, even though defendant's requested findings and conclusions were filed six days after entry of the order modifying the final divorce decree. Merrill v. Merrill, 1971-NMSC-036, 82 N.M. 458, 483 P.2d 932. Judgment lacking decretal language not final, appealable order. - Court "order" that made numerous findings of fact and rulings of law, including a finding that mother was entitled to child support payments and costs from father, but which failed to specifically order that judgment be entered for mother, and did not contain the signatures or initials of the parties' attorneys, was not a final, appealable order because of its lack of decretal language. Khalsa v. Levinson, 1998-NMCA-110, 125 N.M. 680, 964 P.2d 844. Procedure on appeal where decision not timely entered but transcript contains findings. - Subdivision (B) (see now Paragraph B) contemplates that a written decision containing findings of fact and conclusions of law be entered prior to entry of judgment. Where such a decision was not timely entered, but the findings are part of the transcript on appeal, it would be a useless thing to strike the findings and remand the case to the trial court for the making of the same over again. Peterson v. Peterson, 1982-NMSC-098, 98 N.M. 744, 652 P.2d 1195. Trial court must, when requested, find one way or another upon a material issue. Curbello v. Vaughn, 1967-NMSC-243, 78 N.M. 489, 432 P.2d 845; State ex rel. Reynolds v. Board of Cnty. Comm'rs, 1962-NMSC-030, 71 N.M. 194, 376 P.2d 976; Weldon v. Heron, 1967-NMSC-223, 78 N.M. 427, 432 P.2d 392. Error to refuse performance of duty. - The trial court must, when requested, find one way or the other upon a material fact issue, and failure to do so constitutes error. Aguayo v. Village of Chama, 1969-NMSC-005, 79 N.M. 729, 449 P.2d 331; Thompson v. H.B. Zachry Co., 1966-NMSC-017, 75 N.M. 715, 410 P.2d 740. Where a duty is imposed upon the court, which affects a right of a litigant, it is error to refuse to perform such duty. Lopez v. Townsend, 1933-NMSC-045, 37 N.M. 574, 25 P.2d 809, 96 A.L.R. 342 (1933) (decided under former law). Unless apparent that trial judge read and considered requested findings. - Where trial court failed to make, sign and file a decision as required by this rule, normally supreme court would remand the cause to the trial court to make, sign and file a proper decision as required by the rule, but where it was apparent the trial judge read and considered the requested findings, he rejected one of the requests, but adopted all of the others, and the fact that he has retired as a district judge, and the further fact that appellants made no effort to file requests or to call the now claimed error to the attention of the trial court, supreme court was not inclined to remand the case for the entry of a proper decision by some other judge unfamiliar with the case, or disregard the findings actually adopted and made by the trial judge. Sears v. Board of Trustees, 1971-NMSC-126, 83 N.M. 372, 492 P.2d 643. Not sufficient evidence to justify findings. - Trial court had a clear right to refuse to make a finding of fact concerning the amount of one alleged item of damages if, in fact, there was not sufficient evidence to justify such a finding. The court made a finding on the ultimate fact of appellants' damages in a specified amount. The failure to find as to evidentiary facts concerning particular items of alleged damage must be deemed a refusal of such items and not an erroneous failure to find an ultimate fact. Industrial Supply Co. v. Goen, 1954-NMSC-107, 58 N.M. 738, 276 P.2d 509. Independent judgment of trial judge required. - This state requires adequate findings and insists on the exercise of an independent judgment on the part of the trial judge in making his own findings of fact rather than adopting those of one of the parties. The fact that the trial court made its findings in the language submitted by the parties did not show an absence of independent judgment by the trial court; moreover, in choosing from various requested findings the trial court showed the exercise of an independent judgment. Jesko v. Stauffer Chem. Co., 1976 -NMCA-117, 89 N.M. 786, 558 P.2d 55. It is necessary that adequate findings be made and there be an exercise of an independent judgment on the part of the trial judge in making his own findings of fact rather than adopting those of one of the parties. Mora v. Martinez, 1969-NMSC-030, 80 N.M. 88, 451 P.2d 992. Section 105-813, C.S. 1929 (now superseded), contemplated that the decision on ultimate facts and appropriate conclusions of law should be that of the trial court and not of counsel. McDaniel v. Vaughn, 1938-NMSC-038, 42 N.M. 422, 80 P.2d 417 (decided under former law). No reversible error if adopted findings supported by record. - The practice of adopting findings and conclusions entirely as submitted by one of the parties is not reversible error so long as the findings adopted are supported by the record. United Nuclear Corp. v. General Atomic Co., 1979-NMSC-036, 93 N.M. 105, 597 P.2d 290, cert. denied, 444 U.S. 911, 100 S. Ct. 222, 62 L. Ed. 2d 145 (1979). Court may adopt findings and conclusions submitted by a party. - A trial court does not abdicate its judicial responsibilities by adopting findings of fact and conclusions of law submitted by one of the parties, so long as the findings adopted are supported by the record. Coulter v. Stewart, 1982-NMSC-035, 97 N.M. 616, 642 P.2d 602. Separate findings not required if not requested. - If neither party requests it, the trial court does not commit error in failing to make separate findings of fact and conclusions of law. Carlisle v. Walker, 1943-NMSC-013, 47 N.M. 83, 136 P.2d 479. Successor judge may not sign decision of initial judge. - Even though the initial trial judge prepared the findings of fact and conclusions of law, the successor judge had no power to sign and enter a decision in the case, where there was no decision, written, signed or entered before the initial trial judge left the position. Pritchard v. Halliburton Servs., 1986-NMCA-018, 104 N.M. 102, 717 P.2d 78. When refused request deemed finding against party. - Where a party has the burden of proof on an issue and requests findings on that issue, which are refused, the legal effect of the refusal of the requested findings is a finding against that party. H.T. Coker Constr. Co. v. Whitfield Transp., Inc., 1974-NMCA-002, 85 N.M. 802, 518 P.2d 782. The failure to make specific findings of fact is regarded as a finding against the party having the burden of establishing that fact. Foremost Foods Co. v. Slade, 1969-NMSC-128, 80 N.M. 658, 459 P.2d 457; Stienbaugh v. Payless Drug Store, Inc., 1965-NMSC-033, 75 N.M. 118, 401 P.2d 104. The denial of the requested findings and a failure to find specifically on the issue is to be regarded as finding such material fact against the party having the burden of proof. Herrera v. C & R Paving Co., 1963-NMSC-203, 73 N.M. 237, 387 P.2d 339. Trial court is sole judge of credibility of witnesses and the weight to be given to their testimony, in a case tried without a jury. Crumpacker v. Adams, 1967-NMSC-060, 77 N.M. 633, 426 P.2d 781. Evidence of expert admissible. - Where there is no jury trial, evidence of expert is admissible within the sound discretion of the judge. State ex rel. State Hwy. Comm'n v. Pelletier, 1966-NMSC-141, 76 N.M. 555, 417 P.2d 46. C. ULTIMATE FACTS. Trial court is required to make findings of ultimate facts as are necessary to determine the issues in the case. Sanchez v. Sanchez, 1973-NMSC-006, 84 N.M. 498, 505 P.2d 443; State ex rel. State Hwy. Comm'n v. Pelletier, 1966-NMSC-141, 76 N.M. 555, 417 P.2d 46; Alvillar v. Hatfield, 1971-NMCA-063, 82 N.M. 565, 484 P.2d 1275. Under this provision, a trial court, when properly requested, is required to find the ultimate facts and it has been held that a failure to so find constitutes reversible error. Tabet Lumber Co. v. Chalamidas, 1971-NMCA-140, 83 N.M. 172, 489 P.2d 885. A court sitting without a jury is required to find those ultimate facts necessary to determine the issues, i.e., the controlling facts without which the law cannot be correctly applied in rendering judgment. Thompson v. H.B. Zachry Co., 1966-NMSC-017, 75 N.M. 715, 410 P.2d 740. It was not error for trial court to refuse factually correct findings which were not ultimate facts necessary to support the judgment. Gregory v. Eastern N.M. Univ., 1970 -NMCA-018, 81 N.M. 236, 465 P.2d 515. The trial court must make findings only with regard to ultimate facts - those necessary to determine the issues of the case. Empire West Cos. v. Albuquerque Testing Labs, Inc., 1990-NMSC-096, 110 N.M. 790, 800 P.2d 725. The trial court is only required to make ultimate findings of fact and conclusions of law necessary to support its decision. Jeantete v. Jeantete, 1990-NMCA-138, 111 N.M. 417, 806 P.2d 66. Trial court is to find only ultimate facts as opposed to evidentiary facts. State ex rel. Martinez v. Lewis, 1993-NMCA-063, 116 N.M. 194, 861 P.2d 235. Findings of fact are not required to cover every material fact, only the ultimate facts. McCleskey v. N.C. Ribble Co., 1969-NMCA-042, 80 N.M. 345, 455 P.2d 849, cert. denied, 80 N.M. 317, 454 P.2d 974. Where the findings requested were neither ultimate facts nor material to the decision, it was not error for the court to refuse to make them even though they may have been correct. State ex rel. State Hwy. Comm'n v. Pelletier, 1966-NMSC-141, 76 N.M. 555, 417 P.2d 46. Findings by a trial court judge need not cover every material fact but only ultimate facts. Griego v. Bag 'N Save Food Emporium, 1989-NMCA-097, 109 N.M. 287, 784 P.2d 1030. The rules of procedure do not require that findings of fact include more than an ultimate finding of fact. Apodaca v. Payroll Express, Inc., 1993-NMCA-141, 116 N.M. 816, 867 P.2d 1198. All relevant facts. - There is no obligation on the part of the court to find all of the relevant facts but only such ultimate facts as are necessary to determine the issues in the case. Goodwin v. Travis, 1954-NMSC-068, 58 N.M. 465, 272 P.2d 672. Every evidentiary fact. - Only such ultimate facts as are necessary to determine the issues in the case, as distinguished from evidentiary facts supporting them, are required by this rule. Thomas v. Barber's Super Mkts., Inc., 1964-NMSC-251, 74 N.M. 720, 398 P.2d 51; Hoskins v. Albuquerque Bus Co., 1963-NMSC-029, 72 N.M. 217, 382 P.2d 700; see also Nelson v. Nelson, 1971-NMSC-027, 82 N.M. 324, 481 P.2d 403. The trial court must make ultimate findings of fact. Evidentiary findings are not required. Galvan v. Miller, 1968-NMSC-139, 79 N.M. 540, 445 P.2d 961. Requested findings which go to evidentiary matters rather than ultimate facts may be properly refused on that ground. Clem v. Bowman Lumber Co., 1972-NMCA-049, 83 N.M. 659, 495 P.2d 1106. That the court's finding correctly describes the nature of the injuries sustained, but does so in general terms and does not go into the minute details requested by plaintiff, is not a ground for error as the findings of fact shall consist only of such ultimate facts as are necessary to determine the issues in the case, as distinguished from evidentiary facts supporting them. Hales v. Van Cleave, 1967-NMCA-006, 78 N.M. 181, 429 P.2d 379, cert. denied, 78 N.M. 198, 429 P.2d 657. The trial court must make findings only with regard to ultimate facts - those necessary to determine the issues of the case. Western Bank v. Franklin Dev. Corp., 1991 -NMSC-009, 111 N.M. 259, 804 P.2d 1078. Although some evidentiary facts allowable. - Though findings of ultimate facts could have been more conveniently set out with omission of many findings of evidentiary nature, where suit involves intricate accounting, but for which findings would have been more briefly stated, the findings and conclusions are in sufficient compliance with this rule. Stroope v. Potter, 1944-NMSC-049, 48 N.M. 404, 151 P.2d 748. When not proper to refuse finding of ultimate fact. - It is not proper for the trial court to refuse a proposed specific finding of an ultimate fact within the issues supported by substantial evidence, believed by the court and necessary to determine the issues in the case. State Nat'l Bank v. Cantrell, 1942-NMSC-033, 46 N.M. 268, 127 P.2d 246. When refusal of finding deemed proper. - Where the findings made were supported by substantial evidence the refusal to make contrary findings was not error. Moreover, the findings requested were findings of evidential facts, not ultimate facts as required. Asbury v. Yellow-Checker Cab Co., 1958-NMSC-100, 64 N.M. 372, 328 P.2d 941. Where the complaint and evidence all supported the court's findings, the court was under no obligation to make a finding foreign to the case as developed. Luna v. Flores, 1958-NMSC-086, 64 N.M. 312, 328 P.2d 82. Refusal deemed finding against party with burden of proof. - Failure to find facts on a material point in issue will be regarded on appeal as a finding against the party having the burden of proof. Begay v. First Nat'l Bank, 1972-NMCA-084, 84 N.M. 83, 499 P.2d 1005, cert. denied, 84 N.M. 77, 499 P.2d 999. The refusal by the court to accept a requested finding is regarded on appeal as finding against the party bearing the burden of proof on the issue at trial. Empire West Cos. v. Albuquerque Testing Labs, Inc., 1990-NMSC-096, 110 N.M. 790, 800 P.2d 725 (1990). Ultimate facts are essential and determining facts upon which the court's conclusion rests and without which finding the judgment would lack support in an essential particular or, in other words, factual conclusions deduced by a trial court from the evidentiary facts; ultimate facts should not be a mere enumeration or recapitulation of the evidentiary facts. Scott Graphics, Inc. v. Mahaney, 1976-NMCA-038, 89 N.M. 208, 549 P.2d 623, cert. denied, 89 N.M. 322, 551 P.2d 1369. Ultimate facts are the essential and determinative facts on which a conclusion is reached. A judgment cannot be sustained on appeal unless the conclusion upon which it is based finds support in the findings of fact. First W. Sav. & Loan Ass'n v. Home Sav. & Loan Ass'n, 1972-NMCA-083, 84 N.M. 72, 499 P.2d 694. Ultimate facts are the facts which are necessary to determine the issues in the case, as distinguished from the evidentiary facts supporting them. Galvan v. Miller, 1968-NMSC-139, 79 N.M. 540, 445 P.2d 961. A finding that a workman, to a stated percentage extent, is partially and permanently disabled is a finding of an ultimate fact. McCleskey v. N.C. Ribble Co., 1969-NMCA-042, 80 N.M. 345, 455 P.2d 849 (Ct. App.), cert. denied, 80 N.M. 317, 454 P.2d 974. Actual value or represented value of stock, or the difference between these values, are ultimate facts necessary to determine damages in suit based on fraudulent misrepresentations concerning sale of stock, and such findings are necessary to support conclusion as to damages. Goldie v. Yaker, 1967-NMSC-242, 78 N.M. 485, 432 P.2d 841. The existence or nonexistence of fraud or undue influence is an ultimate fact and one which a court without a jury may properly find. Goodwin v. Travis, 1954-NMSC-068, 58 N.M. 465, 272 P.2d 672. Failure of trial court to find concerning plaintiff's ability to perform the usual tasks of the work performed when injured was not a failure to find an ultimate fact. McCleskey v. N.C. Ribble Co., 1969-NMCA-042, 80 N.M. 345, 455 P.2d 849, cert. denied, 80 N.M. 317, 454 P.2d 974. In negligence suit against motel operator, failure of trial court to include the element of constructive notice in its finding that defendant did not know of hazardous condition which caused plaintiff's accident did not amount to failure to find ultimate facts necessary for determination of issues in the case where it appeared that when all findings were considered together with the conclusions flowing therefrom, the trial court was fully cognizant that the element of constructive notice was present, but that it did not deem it necessary to state the obvious. Husband v. Milosevich, 1968-NMSC-045, 79 N.M. 4, 438 P.2d 888. In finding that an account was stated between the parties, the court need not find the date of the last item of the account, or to find various exact balances show by monthly statements. Brown v. Cory, 1967-NMSC-001, 77 N.M. 295, 422 P.2d 33. In view of the findings by the trial court on an express contract, the question of fraud was not a material issue necessary for the determination of the case and that it was not error for the court to refuse such finding. Luna v. Flores, 1958-NMSC-086, 64 N.M. 312, 328 P.2d 82. Findings of fact and conclusions of law may intermix. - Contention that some of the trial court's findings of fact were conclusions of law and not findings of ultimate facts, and the judgment based thereon cannot stand is not correct because occasional intermixture of matters of fact and conclusions of law do not constitute error where court can see enough, upon a fair construction, to justify the judgment of the court. Gough v. Famariss Oil & Ref. Co., 1972-NMCA-045, 83 N.M. 710, 496 P.2d 1106, cert. denied, 83 N.M. 698, 496 P.2d 1094. In workmen's compensation case, where there was no specific finding by trial court under the "finding of fact" concerning notice of a compensable injury, but where one of the conclusions of law read in part that plaintiff did not give the defendant notice of a compensable injury within the time and manner provided by law, that portion of the conclusion was a finding of ultimate fact although intermingled with the conclusion of law. Clark v. Duval Corp., 1971-NMCA-091, 82 N.M. 720, 487 P.2d 148. In many instances the ultimate facts to be properly found by a trial court are indistinguishable from and identical to conclusions of law which are also found by the court. Goodwin v. Travis, 1954-NMSC-068, 58 N.M. 465, 272 P.2d 672. Although only findings of ultimate fact binding in review. - A finding by the trial court which is a "conclusion of fact," or of "fact and law," and not a "finding of ultimate fact," from which such conclusion might be drawn, is not binding on the supreme court. Porter v. Mesilla Valley Cotton Prods. Co., 1937 -NMSC-096, 42 N.M. 217, 76 P.2d 937 (decided under former law). Where not necessary to state finding of fact separately. - Where finding was not separately stated and numbered as a finding of fact as required by this section but where the finding was clear, and the only fault with the finding was that it was mislabeled, plaintiff was not prejudiced, and court of appeals declined to remand the case to require the trial court to remove the finding from its conclusions and include it under the findings of fact. Clark v. Duval Corp., 1971-NMCA-091, 82 N.M. 720, 487 P.2d 148. D. CONCLUSIONS OF LAW. Conclusions of law must be predicated upon, and supported by, findings of fact; and where there is a conflict between an opinion and a finding of fact supported by substantial evidence, the finding prevails. In re Will of Carson, 1974-NMSC-097, 87 N.M. 43, 529 P.2d 269. In a workers' compensation case, while the trial court concluded that the employer was 20% liable and the subsequent injury fund 80% liable, no finding supported this conclusion. In contrast to this conclusion, the judgment ordered the fund to reimburse the employer for 90% of all amounts it paid the worker. Because of the conflict between the judgment and the trial court's findings and conclusions, the cause was remanded for adoption of additional findings and conclusions so as to clearly delineate the percentage of liability to be properly apportioned between the employer and the fund based upon the worker's disability. Mares v. Valencia County Sheriff's Dep't, 1988-NMCA-003, 106 N.M. 744, 749 P.2d 1123. Where findings of fact fail to resolve all of the issues presented by the evidence and do not support the conclusions reached, a judgment will be remanded for further proceedings consistent with this opinion. Foutz v. Foutz, 1990-NMCA-093, 110 N.M. 642, 798 P.2d 592. Conclusions of law treated as findings of fact. - The appellate court may treat a conclusion of law as a finding of fact under certain circumstances. Apodaca v. Payroll Express, Inc., 1993-NMCA-141, 116 N.M. 816, 867 P.2d 1198. Whether or not master-servant relationship existed is a legal conclusion, and it would have been improper to have found it as a fact. Latta v. Harvey, 1960-NMSC-046, 67 N.M. 72, 352 P.2d 649. E. SIGNED AND FILED IN RECORD. Findings and conclusions entered into record before judgment. - Rules contemplate that a written decision containing findings of fact and conclusions of law be entered prior to entry of judgment. Kipp v. McBee, 1967-NMSC-217, 78 N.M. 411, 432 P.2d 255. Proper part of record. - Findings of fact and conclusions of law made by the trial court are a part of the record proper. Martin v. Village of Hot Springs, 1928-NMSC-036, 33 N.M. 396, 268 P. 568 (decided under former law). Where review allowed although findings not in record. - Though findings were not incorporated into a written decision filed in the cause, as required by the rules, the impropriety was not that of appellant, and it will not interfere with appellate review. State v. Gibby, 1967-NMSC-219, 78 N.M. 414, 432 P.2d 258. F. REFUSED FINDINGS. Court may refuse findings as part of decision. - Where trial court's decision stated that, "The Court has considered such requests and they are all hereby denied except such as are included in this Decision," this statement was sufficient compliance with this rule. Chalmers v. Hughes, 1971-NMSC-111, 83 N.M. 314, 491 P.2d 531. Trial court's conclusion of law in record stating "All requested findings of fact and conclusions of law inconsistent herewith are hereby refused" held sufficient for purpose of this rule. Southwestern Pub. Serv. Co. v. Artesia Alfalfa Growers' Ass'n, 1960-NMSC-052, 67 N.M. 108, 353 P.2d 62. In a quiet title action the court need not separately mark each finding "refused," but may enter an order as a part of the decision refusing all requested findings and conclusions submitted by the parties in conflict with those made by the court. Stull v. Board of Trustees, 1956-NMSC-041, 61 N.M. 135, 296 P.2d 474. Where the record shows that portions of some of the findings and conclusions submitted by both parties were refused while other portions were adopted, and that the wording of all of the findings and conclusions is different, the trial court, instead of marking each requested finding and conclusion not included in his findings and conclusions "Refused," could have stated in his conclusions of law that, "All requested Findings of Fact and Conclusions of Law submitted by the parties at variance with this Decision are hereby denied." Edwards v. Peterson, 1956-NMSC-039, 61 N.M. 104, 295 P.2d 858. By not including in decision. - Where the court filed his decision without including any findings of fact requested by plaintiff, the effect is a refusal to make the requested findings. Sandoval Cnty. Bd. of Educ. v. Young, 1939-NMSC-042, 43 N.M. 397, 94 P.2d 508 (decided under former law). Refusal deemed finding against party with burden of proof. - The refusal or failure to make a requested finding on a material issue is held by the court to be in effect a finding against the party having the burden of proof. Gallegos v. Wilkerson, 1968-NMSC-156, 79 N.M. 549, 445 P.2d 970; Wynne v. Pino, 1967-NMSC-254, 78 N.M. 520, 433 P.2d 499. Although not deemed finding to contrary. - The trial court's specific refusal of a proposed finding is not equivalent to a direct finding to the contrary. State Nat'l Bank v. Cantrell, 1942-NMSC-033, 46 N.M. 268, 127 P.2d 246 (decided under former law). G. WAIVER. Purpose of subdivision. - Addition of Subdivision B(a)(6) (see now Paragraph B(1)(f)) was but a recognition of established case law that a party could not take advantage of court's failure to make specific findings unless he has requested them. State v. Fernandez, 1952-NMSC-087, 56 N.M. 689, 248 P.2d 679. Effect of subdivision. - The effect of Subdivision (B)(a)(6) (see now Paragraph B(1)(f)) is to limit the scope of attack on appeal, and thus to define the area of review by the supreme court. This provision caused the New Mexico rule to differ from Federal Rule of Civil Procedure 52(a), which provides that requests are unnecessary for a review. State v. Hardy, 1967-NMSC-203, 78 N.M. 374, 431 P.2d 752. Compliance with Paragraph B(1)(f). - A written communication, sufficient to apprise the trial court of a desire to submit requested findings and conclusions, is a "general request" satisfying the requirements of Subdivision (B)(1)(f) (see now Paragraph B(1)(f)) and a formal written request is unnecessary. McCaffery v. Steward Constr. Co., 1984 -NMCA-016, 101 N.M. 51, 678 P.2d 226. Trial court did not err in rejecting plaintiffs' requested findings of fact which were either findings of evidentiary, not ultimate, facts, or were not supported by substantial evidence. Whorton v. Mr. C's, 1984-NMSC-080, 101 N.M. 651, 687 P.2d 86. When party waives specific findings and conclusions. - A party will waive specific findings of fact and conclusions of law if he fails to make a general request therefor in writing, or if he fails to tender specific findings and conclusions. Wagner Land & Inv. Co. v. Halderman, 1972-NMSC-019, 83 N.M. 628, 495 P.2d 1075. A party who has failed to request a finding of ultimate fact has waived such a finding. C & L Lumber & Supply, Inc. v. Texas Am. Bank/Galeria, 1990-NMSC-056, 110 N.M. 291, 795 P.2d 502. By failing to request findings concerning stock's value, plaintiffs waived findings as to this ultimate fact. Goldie v. Yaker, 1967-NMSC-242, 78 N.M. 485, 432 P.2d 841. When, in a suit by a real estate broker for his commission, the defendants made no requested findings as to the plaintiff having failed to produce a qualified purchaser, the defendants relying entirely in the trial court on the lack of good faith, such claim is waived. Hinkle v. Schmider, 1962-NMSC-080, 70 N.M. 349, 373 P.2d 918. Cannot obtain review of evidence. - Subdivision B(a)(6) (see now Paragraph B(1)(f)) provides that a party waives specific findings if he fails to make a request therefor in writing, or if he fails to tender specific findings, and a party who does not request findings of fact and conclusions of law cannot on appeal obtain a review of the evidence. McNabb v. Warren, 1971-NMSC-109, 83 N.M. 247, 490 P.2d 964. Plaintiffs' failure to timely request findings of fact and conclusions of law constitutes a waiver of same, and they cannot obtain a review of the evidence on appeal. Wagner Land & Inv. Co. v. Halderman, 1972-NMSC-019, 83 N.M. 628, 495 P.2d 1075. The claimed errors, if any, were not preserved by any request for findings contrary to those which were entered by the court. Appellant made no request for findings at any time, nor in any way excepted to the express findings of the court, and, in such a situation, both the rules and decisions are to the effect that the error has not been preserved; thus failure to make any request is dispositive of this appeal. Davis v. Davis, 1966-NMSC-233, 77 N.M. 135, 419 P.2d 974. The supreme court, on appeal, will not consider whether the trial court erred in failing to make separate findings and conclusions where, as here, the complaining party neither tendered specific requests nor made a general request in writing. Edington v. Alba, 1964-NMSC-117, 74 N.M. 263, 392 P.2d 675. Where there was no requested finding that counsel was asked to appeal judge's decision and the only requested finding was that defendant was not adequately represented by counsel at the hearing before the judge, finding that defendant was adequately represented was supported by substantial evidence and no review was allowed of claim that counsel was asked to appeal judge's decision. Maimona v. State, 1971-NMCA-002, 82 N.M. 281, 480 P.2d 171. Where court, in single document entitled "judgment," found that the proof sustained only one item of damages and judgment was rendered accordingly, without exception by the appellants to the form of the judgment nor with the request of findings of their own, the supreme court cannot review the evidence to see whether or not it supported general findings and judgment. Scuderi v. Moore, 1955-NMSC-051, 59 N.M. 352, 284 P.2d 672. The failure of a party to file a timely request for findings of fact and conclusions of law precludes evidentiary review by the court of appeals. Pennington v. Chino Mines, 1990-NMCA-023, 109 N.M. 676, 789 P.2d 624. "Ends of justice" exception to waiver. - In this case the appellant initially waived error in the trial court's failure to make additional or specific findings by his failure to request or submit findings. The appellate court will not remand for findings absent a timely request unless the "ends of justice" so require. Only when there are exceptional circumstances does an "ends of justice" argument prevail over waiver. These exceptional circumstances include those cases in which: (1) jurisdictional questions exist; (2) there are questions of a general public nature affecting the interest of the state at large; (3) it is necessary to do so to protect the fundamental rights of the party; or (4) facts or circumstances occurred, arose, or first became known after the trial court lost jurisdiction. Cockrell v. Cockrell, 1994-NMSC-026, 117 N.M. 321, 871 P.2d 977. Specific findings waived. Lukoski v. Sandia Indian Mgt. Co., 1988 -NMSC-002, 106 N.M. 664, 748 P.2d 507. No review of evidence on appeal absent request for findings. - Once a party has failed to request specific findings he cannot, on appeal, obtain a review of the evidence. Pedigo v. Valley Mobile Homes, Inc., 1982-NMCA-066, 97 N.M. 795, 643 P.2d 1247. Argue findings or conclusions for first time on appeal. - No findings or conclusions were requested on this issue, nor were any made by the trial court. The claimed error was not preserved for review and cannot be urged for the first time on appeal. Schreiber v. Armstrong, 1962-NMSC-117, 70 N.M. 419, 374 P.2d 297. Where no findings or conclusions touching the issue of independent contractor during the trial are requested, or made, it is too late to attempt to inject the issue for review on appeal. Selby v. Tolbert, 1952-NMSC-096, 56 N.M. 718, 249 P.2d 498. On appeal from trial court's decision allowing certain expenditures from principal, it would be unfair to opposing party and trial court to enlarge upon the items which, after a hearing, appellant then asked to be held illegal. National Agrl. College v. Lavenson, 1951-NMSC-081, 55 N.M. 583, 237 P.2d 925. In case a party makes no request in trial court for additional or other findings and raises no objection to findings made, except through a motion to vacate, and fails to make the trial court aware of the error claimed in some other manner, failure to make the additional or substitute finding cannot be made the basis of complaint on appeal. Chavez v. Chavez, 1950-NMSC-003, 54 N.M. 73, 213 P.2d 438. Where the plaintiff failed to request a finding that the defendant insurance company impermissibly changed its theory of the case, the plaintiff could not raise the issue for the first time on appeal. Crownover v. National Farmers Union Prop. & Cas. Co., 1983-NMSC-099, 100 N.M. 568, 673 P.2d 1301. Review of legal conclusions. - While the failure to submit findings of fact and conclusions of law precludes a review of the evidence on appeal, this merely prevents the appellate court from reviewing the factual basis of any findings the trial court may have made. The appellate court may still review the trial court's decision to determine whether it is legally correct. Blea v. Sandoval, 1988-NMCA-036, 107 N.M. 554, 761 P.2d 432. Preservation of issues for appeal. - A party need not request findings of fact and conclusions of law to preserve certain issues for appeal. However, in the absence of findings of fact and conclusions of law, or an alternate manner of calling the insufficiency of the evidence to the attention of the district court, an appellate court's review is limited to the district court's decision to determine whether it is legally correct, and whether it is supported by findings of fact, if any, made by the district court. Unified Contractor, Inc. v. Albuquerque Housing Auth., 2017-NMCA-060. In a contractual dispute, where the plaintiff failed to timely submit requested findings of fact and conclusions of law, but instead filed a motion for reconsideration of the judgment, which only challenged the legal issues related to the damages award, plaintiff failed to preserve its sufficiency argument on appeal. Had the motion addressed the sufficiency of the evidence, plaintiff could have preserved a sufficiency argument on appeal. Unified Contractor, Inc. v. Albuquerque Housing Auth., 2017-NMCA-060. Review not provided by designating, on appeal, certain findings as "challenged". - Designating certain findings as "challenged," then restating portions of the evidence, does not automatically provide entitlement to appellate review when the challenge is, in reality, to the sufficiency of the evidence. There can be no review of the evidence on appeal when the party seeking review has failed to submit requested findings of fact and conclusions of law to the trial court. Smith v. Maldonado, 1985-NMSC-115, 103 N.M. 570, 711 P.2d 15. Specific findings not required unless requested. - The trial court was not required by Laws 1880, ch. 64, §29, as amended (105-813, C.S. 1929) (now superseded), to make specific findings of fact and conclusions of law in the absence of a request to so do. Alexander Hamilton Inst. v. Smith, 1930-NMSC-051, 35 N.M. 30, 289 P. 596; Bank of Commerce v. Baird Mining Co., 1906-NMSC-016, 13 N.M. 424, 85 P. 970; Radcliffe v. Chavez, 1910-NMSC-004, 15 N.M. 258, 110 P. 699; Springer Ditch Co. v. Wright, 1925-NMSC-035, 31 N.M. 457, 247 P. 270 (all cases decided under former law). Requests must be timely. - If requested findings of fact and conclusions of law are untimely requested, they are considered waived. Fidelity Nat'l Bank v. Lobo Hijo Corp., 1979-NMCA-045, 92 N.M. 737, 594 P.2d 1193. No request for findings of fact and conclusions of law having been made until after judgment had been entered and appeal allowed, trial court's failure to make findings and conclusions did not constitute error. Veale v. Eavenson, 1948-NMSC-018, 52 N.M. 102, 192 P.2d 312. The omission of the trial court to make findings will not be considered on appeal in the absence of a request therefor in the trial court, and findings of fact submitted after judgment cannot be made the basis of appeal. In re Caffo, 1961-NMSC-161, 69 N.M. 320, 366 P.2d 848. Not applicable in summary judgment proceedings. - Since a summary judgment presupposes that there are no triable issues of fact, findings of fact and conclusions of law are not required in rendering judgment. Failure to make and failure to request findings and conclusions is not error barring review. Jacobson v. State Farm Mut. Auto. Ins. Co., 1970 -NMSC-089, 81 N.M. 600, 471 P.2d 170. Although rule applicable in other proceedings. - Because the rules of procedure followed by the state corporation commission (now public regulation commission) are, as far as applicable, the same as the rules of procedure generally followed by district courts, the assimilation of Subdivision B(a)(1) (see now Paragraph B(1)(a)) calling upon the court for findings of fact and conclusions of law, at the same time would bring in Subdivision B(a)(6) (see now Paragraph B(1)(F)) providing that a party will waive specific findings and conclusions if he fails to tender specific findings and conclusions. Ferguson-Steere Motor Co. v. State Corp. Comm'n of N.M., 1955-NMSC-078, 60 N.M. 114, 288 P.2d 440. This rule applies to findings made by the court in a workmen's compensation case. Rone v. Calvary Baptist Church, Inc., 1962-NMSC-124, 70 N.M. 465, 374 P.2d 847. In workmen's compensation, where the exceptional circumstances identified in DesGeorges v. Grainger, 1966-NMSC-013, 76 N.M. 52, 412 P.2d 6, exist, the "ends of justice" provision of Subdivision B(a)(7) (see now Paragraph B(1)(g)) is not applicable. Subdivision B(a)(6) (see now Paragraph B(1)(f)) is applicable. Having failed to make a general request for findings or tender specific findings, plaintiff has waived findings by the court. Having waived findings, the case will not be remanded for findings by the court. Guidry v. Petty Concrete Co., 1967-NMSC-048, 77 N.M. 531, 424 P.2d 806. Failure to make findings. - Alleging error for failure to make requested findings of fact and conclusions of law is not equivalent to alleging error for failure to find facts and conclusions of law, especially in view of lack of request therefor. Board of Trustees v. Garcia, 1925-NMSC-028, 32 N.M. 124, 252 P. 478 (decided under former law). Findings not waived. - Although the buyer waived requested findings and conclusions following trial, it preserved its claims on appeal in its motion to amend the judgment. Credit Institute v. Veterinary Nutrition Corp., 2003-NMCA-010, 133 N.M. 248, 62 P.3d 339. H. SINGLE DOCUMENT; REMAND. Single document required. - The rule is plain, and requires the trial judge to file his decision in a single document consisting of the findings of ultimate facts and conclusions of law, stated separately. Moore v. Moore, 1961-NMSC-032, 68 N.M. 207, 360 P.2d 394. The trial judge in an action for partition is required to file his decision in a single document consisting of the findings of ultimate fact and conclusions of law, stated separately. This is true even though the complaining parties never tendered any requested findings of fact and conclusions of law. Moore v. Sussman, 1978-NMSC-066, 92 N.M. 70, 582 P.2d 1283. Order refusing findings not included in single document. - Subdivision B(a)(7) (see now Paragraph B(1)(g)) contains no requirement that an order refusing proposed findings be included in the same document as the court's decision. United Nuclear Corp. v. General Atomic Co., 1979-NMSC-036, 93 N.M. 105, 597 P.2d 290, cert. denied, 444 U.S. 911, 100 S. Ct. 222, 62 L. Ed. 2d 145 (1979). Where there is doubt as to the findings adopted by the trial court, the cause will be remanded for additional findings and conclusions. Carter v. Mountain Bell, 1986-NMCA-103, 105 N.M. 17, 727 P.2d 956. Where remand required by ends of justice. - Where trial judge did not file his decision in a single document, although sympathies are with the parties who are faced with delay caused by something which is not their responsibility, the ends of justice require a remand of the case to the district court for the making and filing of proper findings of fact and conclusions of law. Moore v. Moore, 1961-NMSC-032, 68 N.M. 207, 360 P.2d 394. Where not required. - Where the trial court did, by supplemental written decision, make a general finding of fact which is sufficient to support the judgment, the ends of justice do not require a remand for further findings of fact. Edington v. Alba, 1964-NMSC-117, 74 N.M. 263, 392 P.2d 675. Wrongful death action for vehicle pedestrian accident did not present a question of a general public nature affecting the interest of the state at large and did not call for remand of cause to district court for the making and filing of proper findings of fact and conclusions of law. Hamilton v. Woodward, 1968-NMSC-002, 78 N.M. 633, 436 P.2d 106. In workmen's compensation, where the exceptional circumstances identified in DesGeorges v. Grainger, 1966-NMSC-013, 76 N.M. 52, 412 P.2d 6, exist, the "ends of justice" provision of Subdivision B(a)(7) (see now Paragraph B(1)(g)) is not applicable. Subdivision B(a)(6) (see now Paragraph B(1)(f)) is applicable. Having failed to make a general request for findings or tender specific findings, plaintiff has waived findings by the court. Having waived findings, the case will not be remanded for findings by the court. Guidry v. Petty Concrete Co., 1967-NMSC-048, 77 N.M. 531, 424 P.2d 806. Where judgment contains findings remand for separate statement unnecessary. - Where, in the judgment, there are findings which the trial court entered, and there is substantial evidence to support these findings, little would be accomplished in remanding the case for the purpose only of separately stating these same findings of fact. Coulter v. Stewart, 1982-NMSC-035, 97 N.M. 616, 642 P.2d 602. I. OPPORTUNITY TO SUBMIT FINDINGS. Must be timely filed and served upon opposing counsel. - Where defendant's requested findings of fact and conclusions of law were not timely filed and copies thereof were not served upon opposing counsel, as required by Subdivisions B(a)(6), B(a)(7), B(a)(8) and B(b) (see now Paragraphs B(1)(f), (g), (h) and (2)), they were never submitted to or considered by the trial court. Supreme court could not consider them and defendant could not contend at that point that the judgment was not supported by the evidence. Macnair v. Stueber, 1972-NMSC-059, 84 N.M. 93, 500 P.2d 178. Proposed findings following notice of appeal. - A pending appeal does not divest the trial court of jurisdiction to take further action when the action will not affect the judgment on appeal and when, instead, the further action enables the trial court to carry out or enforce the judgment. The notice of appeal in this case did not deprive the judge of jurisdiction to permit the party to file its supplemental proposed findings, which had been submitted to the judge well before filing of the notice. Barela v. ABF Freight Sys., 1993-NMCA-137, 116 N.M. 574, 865 P.2d 1218. J. AMENDMENT. Applicability. - Subdivision B(b) (see now Paragraph B(2)) contemplates the existence of findings and applies only to findings made after judgment. Absent such findings, this rule is not applicable. Guidry v. Petty Concrete Co., 1967-NMSC-048, 77 N.M. 531, 424 P.2d 806. The third sentence of Subdivision B(b) (see now Paragraph B(2)) should only be applied where findings were made after judgment. Duran v. Montoya, 1952-NMSC-025, 56 N.M. 198, 242 P.2d 492. Where rule not applicable. - Subdivision B(b) (see now Paragraph B(2)) is not applicable to a case where no findings of fact were made by the court. Gilmore v. Baldwin, 1955-NMSC-003, 59 N.M. 51, 278 P.2d 790. Cases in which the court has made no findings of fact would come under Section 39-1-1 NMSA 1978 which limits the time for modification of judgment to not more than 30 days after the date of its entry, that being the time during which the court retains jurisdiction. Gilmore v. Baldwin, 1955-NMSC-003, 59 N.M. 51, 278 P.2d 790. Motion must be timely. - This rule allows only 10 days after entry of judgment for the filing of a motion to have the court amend its findings, or make additional findings, and to amend the judgment accordingly. Wagner Land & Inv. Co. v. Halderman, 1972-NMSC-019, 83 N.M. 628, 495 P.2d 1075. Motion to reconsider filed more than 10 days after the entry of order and accordingly was not timely. State v. Navas, 1967-NMSC-198, 78 N.M. 365, 431 P.2d 743. Court cannot extend or enlarge time for motions. - Under the terms of Rule 6(b) (see now Rule 1-006 NMRA), the court cannot extend or enlarge the time for taking any action under Subdivision B(b) (see now Paragraph B(2)) except under the conditions stated in such rule. Wagner Land & Inv. Co. v. Halderman, 1972-NMSC-019, 83 N.M. 628, 495 P.2d 1075. Need timely request for findings. - While Subdivision B(b) (see now Paragraph B(2)) allows review of the evidence, that provision applies only when the party asking for a review had timely requested findings and conclusions in compliance with Subdivision B(a)(6) (see now Paragraph B(1)(f)). Kipp v. McBee, 1967-NMSC-217, 78 N.M. 411, 432 P.2d 255. Exceptions or motions to amend not necessary. - Where party submitted requested findings, the party consequently may obtain a review of the evidence without having filed exceptions or a motion to amend findings. Van Orman v. Nelson, 1967-NMSC-069, 78 N.M. 11, 427 P.2d 896. When error not to amend. - Under Subdivision B(a)(1) (see now Paragraph B(1)(a)), the trial court was obligated to make and file findings of fact and conclusions of law, because factual determinations were necessary to a proper decision of the case even though defendant's requested findings and conclusions were filed six days after entry of the order modifying the final divorce decree. Merrill v. Merrill, 1971-NMSC-036, 82 N.M. 458, 483 P.2d 932. Provisions not considered as waiver. - The provisions of Subdivision B(b) (see now Paragraph B(2)) relating to amendments should not be considered as a waiver on the part of the defendant when court failed to comply with Subdivision A(a)(7) (see now Paragraph B(1)(g)) for the simple reason that there were no findings of the court to be amended. Moore v. Moore, 1961-NMSC-032, 68 N.M. 207, 360 P.2d 394. Doctrine of fundamental error not applicable. - Doctrine of fundamental error has for its purpose the protection of an accused who has been convicted of a crime where there was no evidence to support the verdict and it was not intended to be applied in a case where a decision was made in the main on conflicting evidence after three separate hearings and an independent survey. Duran v. Montoya, 1952-NMSC-025, 56 N.M. 198, 242 P.2d 492.