Rule 3-706 - Appeal from metropolitan court on the recordA.Right of appeal. A party who is aggrieved by the judgment or final order in a civil action may appeal, as permitted by law, to the district court of the county within which the metropolitan court is located. The notice of appeal shall be filed in the district court within fifteen (15) days after the judgment or final order appealed from is filed in the metropolitan court clerk's office. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within ten (10) days after the date on which the first notice of appeal was served or within the time otherwise prescribed by this rule, whichever period expires last. The three (3) day mailing period set forth in Rule 3-104 NMRA does not apply to the time limits set forth above. A notice of appeal filed after the announcement of a decision, or return of the verdict, but before the judgment or order is filed in the metropolitan court clerk's office, shall be treated as timely filed. Notwithstanding any other provision of this rule, no docket fee or other cost shall be imposed against the state or its political subdivisions in any such appeal.B.Notice of appeal. An appeal from the metropolitan court is taken by:(1) filing with the clerk of the district court a notice of appeal with proof of service; and(2) promptly filing with the metropolitan court:(a) a copy of the notice of appeal which has been endorsed by the clerk of the district court; and(b) a copy of the receipt of payment of the docket fee.C.Content of the notice of appeal. The notice of appeal shall be substantially in the form approved by the Supreme Court. A copy of the metropolitan court judgment or final order appealed from, showing the date of the judgment or final order, shall be attached to the notice of appeal filed in the district court.D.Service of notice of appeal. At the time the notice of appeal is filed in the district court, the appellant shall:(1) serve each party or such party's attorney in the proceedings in the metropolitan court with a copy of the notice of appeal in accordance with Rule 1-005 NMRA of the Rules of Civil Procedure for the District Courts; and(2) file proof of service with the clerk of the district court that a copy of the notice of appeal has been served in accordance with Rule 1-005 NMRA.E.Record on appeal. Within fifteen (15) days after the appellant files a copy of the notice of appeal with the metropolitan court pursuant to Paragraph B of this rule, the metropolitan court shall file with the clerk of the district court a copy of the record on appeal taken in the action in the metropolitan court. For purposes of this rule, the record on appeal shall consist of: (1) a title page containing the caption of the case in the metropolitan court and the names and mailing addresses of each party or, if the party is represented by counsel, the name and address of the attorney;(2) a copy of all papers and pleadings filed in the metropolitan court;(3) a copy of the judgment or order sought to be reviewed with date of filing;(5) any transcript of the proceedings made by the metropolitan court, either stenographically recorded or tape recorded. If the transcript of the proceedings is a tape recording, the metropolitan court clerk shall prepare and file with the district court a duplicate of the tape and index log. Any party desiring a copy of the transcript of the proceedings shall be responsible for paying the cost, if any, of preparing such copy. The metropolitan court may order cash or other security to be deposited with the metropolitan court to secure payment of the cost.
The metropolitan court clerk shall give prompt notice to all parties of the filing of the record on appeal with the district court.
F.Correction or modification of the record. If anything material to either party is omitted from the record on appeal by error or accident, the parties by stipulation, or the metropolitan court on motion, or the district court, on proper suggestion or on its own initiative, may direct that the omission be corrected and a supplemental record transmitted to the district court.G.Stay of proceedings to enforce a judgment.(1) Except as provided in Subparagraph (2) of this paragraph, when an appeal is taken, the appellant may obtain a stay of the proceedings to enforce the judgment by posting a supersedeas bond with the clerk of the metropolitan court. The bond may be posted at any time after docketing the appeal. The stay is effective when the supersedeas bond is approved by the metropolitan court and shall continue in effect until final disposition of the appeal. The bond shall be conditioned for the satisfaction of and compliance with the judgment in full, as may be modified by an appellate court, together with costs, attorneys' fees and interest, if any. The bond shall be enforceable upon dismissal of the appeal or affirmance of the judgment. If the judgment is reversed or satisfied, the bond is void. The surety, sureties or collateral securing such bond, and the terms thereof, must be approved by and the amount fixed by the metropolitan court. If a bond secured by personal surety or sureties is tendered, the bond may be approved only on notice to the appellee. Each personal surety shall be required to show a net worth of at least double the amount of the bond. If the judgment is for the recovery of money, the amount of the bond shall be the amount of the judgment remaining unsatisfied, together with costs, attorneys' fees and interest, if any. In determining the sufficiency of the surety or sureties and the extent to which the surety or sureties shall be liable on the bond, or whether any surety will be required, the court shall take into consideration the type and value of any collateral which is in, or may be placed in, the custody or control of the court and which has the effect of securing payment of and compliance with the judgment. (2) When an appeal is taken by the state, by an officer or agency of the state, by direction of any department of the state, by any political subdivision or institution of the state or by any municipal corporation, the taking of an appeal shall operate as a stay. H.District court review. At any time after appeal is filed pursuant to Paragraph B of this rule, the district court may, upon motion and notice, review any action of, or any failure or refusal to act by, the metropolitan court dealing with supersedeas or stay. If the district court modifies the terms, conditions or amount of a supersedeas bond, or if it determines that the metropolitan court should have allowed supersedeas and failed to do so on proper terms and conditions, it may grant additional time within which to file in the district court a supersedeas bond as provided by this rule. Any change ordered by the district court shall be certified by the clerk of the district court and filed with the metropolitan court clerk by the party seeking the review.I.Procedure on appeal. The Rules of Civil Procedure for the District Courts shall govern the procedure on appeal from the metropolitan court.J.Remand. Upon remand of the case by the district court to the metropolitan court, the metropolitan court shall enforce the mandate of the district court.K.Transmittal of mandate. After final determination of the appeal, the clerk of the district court shall transmit a copy of the mandate to the metropolitan court clerk.N.M. R. Civ. P. Metro. Ct. 3-706
As amended, effective 9/1/1989;1/1/1994;7/1/1996; as amended by Supreme Court Order No. 11-8300-021, effective 5/27/2011. ANNOTATIONS The 2011 amendment, approved by Supreme Court Order No. 11-8300-021, effective May 27, 2011, in Paragraph E, required the metropolitan court to file a copy of the record with the district court and in Paragraph K, required the clerk of the district court to transmit a copy of the mandate to the metropolitan court. The 1996 amendment, effective for appeals filed after July 1, 1996, rewrote the rule.
For appeal from metropolitan court on the record, see Rule 1-073 NMRA. Late filing of appeal. - Because timely filing of an appeal is a mandatory precondition rather than an absolute jurisdictional requirement, a trial court may, under unusual circumstances, use its discretion and entertain an appeal even though it is not timely filed. The decision to dismiss an appeal is extreme and must be determined on a case-by-case basis. Trujillo v. Serrano, 1994-NMSC-024, 117 N.M. 273, 871 P.2d 369. Judicial error may excuse late appeal. - One unusual circumstance which would warrant permitting an untimely appeal is if the delay is a result of judicial error. To deny a party the constitutional right to an appeal because of a mistake on the part of the court runs against the most basic precepts of justice and fairness. Trujillo v. Serrano, 1994-NMSC-024, 117 N.M. 273, 871 P.2d 369.