Rodey Publications

Recent Developments in New Mexico Appellate Practice

Edward Ricco, Director
(505) 768-7314
ericco@rodey.com

(Cases from Bar Bulletin, Vol. 41, Nos. 1-52)

Finality/Appealability

San Juan 1990-A, L.P. v. El Paso Production Co., 2002-NMCA-041, 132 N.M. 73, 43 P.3d 1083, cert. denied, No. 27,415 (2002).

Judgment on merits was final although attorney’s fee award as discovery sanction was not yet reduced to judgment.

Judgment on merits was final with respect to defendants who were not affected by pending award of attorney’s fees as sanction against other defendants.

Campbell v. Millennium Ventures, LLC, 2002-NMCA-101, 132 N.M. 733, 55 P.3d 429.

Summary judgment in declaratory judgment action enforcing arbitration clause and compelling arbitration of dispute disposed of all issues in litigation and was final for purposes of appeal.

Notice of Appeal - Timing

San Juan 1990-A, L.P. v. El Paso Production Co., 2002-NMCA-041, 132 N.M. 73, 43 P.3d 1083, cert. denied, No. 27,415 (2002).

Time to appeal began to run from entry of judgment on merits although award of attorney’s fees as discovery sanction remained pending.

Untimely notice of appeal would not be excused where erroneous information from third party, rather than from court or clerk, caused counsel to believe that clerk’s office was closed on date notice was due.

New Mexico courts will not follow federal “unique circumstances” doctrine to excuse untimely filing of notice of appeal because several New Mexico cases provide law on this issue without reference to federal decisions.

Anthony Water & Sanitation Dist. v. Turney, 2002-NMCA-095, 132 N.M. 683, 54 P.3d 87, cert. denied, No. 27,590 (2002).

Statute providing that appeal from decision of State Engineer is perfected by serving notice of appeal within 30 days is jurisdictional and requires strict compliance.

Notice of Appeal - Effect on Trial Court Jurisdiction

Misquez v. Baca (In re Byrnes), 2002-NMCA-102, 132 N.M. 718, 54 P.3d 996.

Purported appeal from order to show cause could not have deprived trial court of jurisdiction: “An appeal from a manifestly nonfinal order cannot divest a court of jurisdiction” (¶39 ).

Record on Appeal - Supplementation

Largo v. Atchison, Topeka & Santa Fe Railway Co., 2002-NMCA-021, 131 N.M. 621, 41 P.3d 347.

On interlocutory appeal from grant of partial summary judgment, court would not consider exhibits attached to answer brief that were not before trial court until after summary judgment motion was granted and case was accepted for interlocutory appeal.

O’Neel v. USAA Insurance Co., 2002-NMCA-028, 131 N.M. 630, 41 P.3d 356, cert. denied, No. 27,344 (2002).

Where party moved to supplement record with affidavits establishing that objection to jury instructions was made during off-record conference, but trial court denied motion, no objection appeared in record and issue was not properly preserved.

Issue Preservation - Applicability to Administrative Proceedings

Henington v. Technical-Vocational Institute, 2002-NMCA-025, 131 N.M. 655, 41 P.3d 923, cert. denied, No. 27,336 (2002).

On appeal from decision of Workers’ Compensation Administration, issue not first raised before agency would not be considered.

Issue Preservation - Exceptions to Preservation Requirement

Lack of Opportunity to Raise Issue

O’Neel v. USAA Insurance Co., 2002-NMCA-028, 131 N.M. 630, 41 P.3d 356, cert. denied, No. 27,344 (2002).

Although only three minutes elapsed between return of verdict and conclusion of proceedings, defendant had adequate opportunity to raise claim of inconsistency in special verdict before jury was discharged; during that time, court read verdict in its entirety in way that should have made defendant aware of alleged inconsistency, excused jurors but asked them to wait in jury room, and asked counsel whether there was anything else, to which counsel replied in the negative; jury was available and defendant could have raised issue and sought cure for inconsistency.

Jurisdictional Issues

Anthony Water & Sanitation Dist. v. Turney, 2002-NMCA-095, 132 N.M. 683, 54 P.3d 87, cert. denied, No. 27,590 (2002).

While lack of subject matter jurisdiction can be raised at any time, the same does not apply to arguments seeking to create jurisdiction that were not raised in district court.

General Public Interest

O’Neel v. USAA Insurance Co., 2002-NMCA-028, 131 N.M. 630, 41 P.3d 356, cert. denied, No. 27,344 (2002).

Award of pre-arbitration interest on fact-specific grounds not involving application of district court rule regarding court-annexed arbitration “may raise novel issues” but “is not the type of decision that affects the interests of the State at large or affects the law that will be applied to a large number of cases in the near future” so as to invoke general public interest exception to preservation requirement (¶21).

Question whether comparative fault defense applies to insurance bad faith claims could apply to large number of future cases, but “there is no indication that the district courts will fail to rule correctly when [such a defense] is raised and fully developed below”; recognizing general public interest exception simply because issue is novel and applicable to similar cases in future would allow exception to swallow preservation rule (¶32).

DeFillippo v. Neil, 2002-NMCA-085, 132 N.M. 529, 51 P.3d 1183.

Applicability of Rules 1-055 and 1-060(B) and application of Rule 1-055 in dealing with motion to set aside so-called “default judgment” that left damages unresolved was a matter of general public interest that was likely to be repeated in other situations, providing alternative basis for reviewing issue even if not preserved.

Anthony Water & Sanitation Dist. v. Turney, 2002-NMCA-095, 132 N.M. 683, 54 P.3d 87, cert. denied, No. 27,590 (2002).

Court would not exercise discretion under public interest exception to resolve alleged confusion regarding procedure in appeals from State Engineer, where law was not unclear and statutory requirements for appeal had been strongly and consistently applied in prior cases.

Fundamental Error

State v. Castro, 2002-NMCA-093, 132 N.M. 646, 53 P.3d 413, cert. denied, No. 27,610 (2002).

Appellate court may raise issue of fundamental error on its own motion as basis for reversal, even if not raised by party as issue on appeal.

Issue Preservation - Adequacy of Preservation

Weststar Mortgage Corp. v. Jackson, 2002-NMCA-009, 131 N.M. 493, 39 P.3d 710, rev’d on other grounds, 2003-NMSC-002, __ N.M. __, 61 P.3d 823.

Although party’s argument on appeal had different basis than argument asserted in trial court, court of appeals would consider argument properly preserved where it presented purely legal issue and analysis required court to consider effect of case that was asserted in trial court.

State v. Morales, 2002-NMCA-052, 132 N.M. 146, 45 P.3d 406, cert. denied, No. 27,452 (2002).

Defendant’s objection to scientific validity of field test that identified substance as heroin was timely when made at time substance was introduced at trial; although there had been fleeting references to field test result in earlier testimony, and objection then might have been preferable, test result was primary foundation for identifying substance, and objection was made at precise time that state offered into evidence the very substance defendant was accused of possessing.

In re Crystal L., 2002-NMCA-063, 132 N.M. 349, 48 P.3d 87, cert. denied, No. 27,512 (2002).

Objection that question was leading, which was overruled, did not preserve contention that testimony in response to question was improper legal conclusion; “[C]ounsel objected to the question, not the testimony” ( 20).

DeFillippo v. Neil, 2002-NMCA-085, 132 N.M. 529, 51 P.3d 1183.

Although defendant technically should have moved to set aside entry of default rather than default judgment, motion which specifically relied upon both Rule 1-055 good cause standard for relief from entry of default and Rule 1-060(B) excusable neglect standard for relief from default judgment – while “not entirely free from doubt” – was adequate to preserve argument that trial court erred in applying the latter standard rather than the former; this was instance of “inartful practice” but not an effort to “sandbag” the opposing party or the trial court; granting review “does not improperly prejudice Plaintiffs or pose a danger to the orderly, efficient processing of cases through the courts” (¶¶10-12).

State v. Neswood, 2002-NMCA-081, 132 N.M. 505, 51 P.3d 1159, cert. denied, No. 27,576 (2002).

Where jury “had already heard a great deal of evidence” about subject before objection, “the horse was already out of the barn” by the time objection was made; untimely objection was insufficient to preserve issue for review (¶18).

In re Garrison P., 2002-NMCA-094, 132 N.M. 626, 52 P.3d 998.

Argument that children’s court rules did not permit procedure followed by trial court was adequately preserved by objection that “civil” rules allowed procedure but “criminal” rules did not; objection “raised the issue that the applicable rules of the court did not countenance” the procedure and, in overruling objection, “[t]he trial court responded in kind”; “Proper preservation does not always require that counsel refer to the specific rule violated when making the objection” (¶¶4-5).

Thomas-Lott v. Earles (In re Ashleigh R.), 2002-NMCA-103, 132 N.M. 772, 55 P.3d 984, cert. denied, No. 27,676 (2002).

Mother’s requested findings and conclusions adequately raised issue of what standards to apply in determining whether trial court had authority to appoint guardian over mother’s objection, although mother failed to cite controlling cases and did not argue that court lacked such authority; “It would have been preferable if Mother had cited these specific authorities. Had she done so, the district court might have applied the correct standard below, and the parties might have avoided the need for this appeal” (¶12).

Certiorari - Basis for Granting Writ

Holt v. New Mexico Dep’t of Taxation & Revenue, 2002-NMSC-034, __ N.M. __, 59 P.3d 491.

Although tax protestors’ appeal was “manifestly without merit” and was correctly decided by hearing officer’s thorough opinion and court of appeals’ summary affirmance, Supreme Court granted certiorari to “resolve the issues by opinion because the appeal appears to present an issue of first impression and arguments that are likely to arise again, causing unnecessary expenditure of public resources” (¶3).

Standards of Review

Aken v. Plains Electric Generation & Transmission Coop., 2002-NMSC-021, 132 N.M. 401, 49 P.3d 662.

Constitutional excessiveness of punitive damage award is reviewed de novo.

Campbell v. Millennium Ventures, LLC, 2002-NMCA-101, 132 N.M. 733, 55 P.3d 429.

Whether agreement to arbitrate exists is question for trial court that is reviewed de novo (distinguishing standard applicable to review of merits of arbitrator’s decision).

New Mexico Mining Comm’n v. United Nuclear Corp., 2002-NMCA-108, 133 N.M. 8, 57 P.3d 862, cert. denied, No. 27,722 (2002).

Agency’s construction of its governing state statute is accorded deference, but court gives interpretation of federal statutes and regulations “non-deferential de novo review” (¶6).

Scope of Issues Raised on Appeal

Gonzales v. Lopez, 2002-NMCA-086, 132 N.M. 558, 52 P.3d 418.

Where trial court set aside contract on multiple grounds including breach, argument that contract term allowing time to cure any default should have been enforced, while correct as general proposition, would not result in reversal because other grounds for decision were not appealed.

Harmless Error/Necessity of Demonstrating Prejudice

Jaramillo v. Gonzales, 2002-NMCA-072, 132 N.M. 459, 50 P.3d 554, cert. denied, No. 27,490 (2002).

Where plaintiffs objected to assertion of limitations defense shortly before trial but declined trial court’s offer of continuance to allow them to meet new defense, no basis existed to reverse ruling allowing defense to be asserted; decision to allow assertion of defense cannot be said to have been prejudicial.

Any error in failing to apply statute of limitations to breach of warranty claims was harmless, where trial court did not award damages for breach of warranty.

BC&L Pavement Services, Inc. v. Higgins, 2002-NMCA-087, 132 N.M. 490, 51 P.3d 533.

Although agency failed to give written notice required by regulations, appellant received oral notice and filed timely protest of agency action; failure to follow regulations caused no prejudice and was not reversible error.

“Right for Any Reason” Rule

Gonzales v. Lopez, 2002-NMCA-086, 132 N.M. 558, 52 P.3d 418.

Upholding trial court’s decision to strike counterclaim without prejudice, even though court incorrectly determined that counterclaim was not ripe, because trial court had discretion whether to allow non-mandatory counterclaim; it was not abuse of discretion to deny counterclaim that would complicate case and could delay imminent trial.

Briefs

State v. Gage, 2002-NMCA-018, 131 N.M. 581, 40 P.3d 1025, cert. denied, No. 27,315 (2002).

Appellant’s assertions in appellate brief, without citation to record, that he made requests for rulings from district court were disregarded where nothing in record showed requests or rulings.

Aken v. Plains Electric Generation & Transmission Coop., 2002-NMSC-021, 132 N.M. 401, 49 P.3d 662.

Substantial compliance standard applies to requirement that manner of preservation be set out in brief-in-chief.

State v. Neswood, 2002-NMCA-081, 132 N.M. 505, 51 P.3d 1159, cert. denied, No. 27,576 (2002).

Where only reference to evidence rule in appellant’s brief was mention of rule in statement of facts and footnote setting out text of rule, with “no actual argument with regard to how it applies to this case,” evidentiary issue would not be considered on appeal (¶10).

Gallagher v. Santa Fe Federal Employees Federal Credit Union, 2002-NMCA-088, 132 N.M. 552, 52 P.3d 412, cert. denied, No. 27,601 (2002).

Facts asserted in appellant’s brief without being properly introduced and supported in trial court would not be considered in reviewing grant of summary judgment) (party did not move for additional time to respond to motion nor request remand to allow adequate opportunity to discover and present facts).

Campbell v. Millennium Ventures, LLC, 2002-NMCA-101, 132 N.M. 733, 55 P.3d 429.

Reply brief page limitation includes any text in reply brief, even if not designated as “argument”; rule governing reply briefs contemplates that brief shall consist only of tables and argument.

“Typeface” and “point” in rule regarding form of briefs refer to computer-generated text; “pitch” and “type style” refer to text produced by typewriter. Ten-point text is not permitted.

Conflict Between Procedural Rules and Statutes

Anthony Water & Sanitation Dist. v. Turney, 2002-NMCA-095, 132 N.M. 683, 54 P.3d 87, cert. denied, No. 27,590 (2002).

While not deciding issue, court expresses doubt that statute providing procedure for appeal de novo from decision of State Engineer can be viewed as inconsistent with, and controlled by, Rule 1-074 regarding appellate proceedings in district court.

Precedent - Binding Effect

State v. Erickson K., 2002-NMCA-058, 132 N.M. 258, 46 P.3d 1258, cert. quashed, No. 27,464 (2002).

Where Court of Appeals previously held contrary to holding of present case, but never considered the “analytical and textual” statute- and rule-based arguments made in present appeal, court could not be bound by prior holding “when . . . faced with newly framed and persuasive arguments never made before. . . . [W]e have an obligation to keep an open mind to new arguments and authorities” ( 19-20).

Aguilera v. Palm Harbor Homes, Inc., 2002-NMSC-029, 132 N.M. 715, 54 P.3d 993.

Court of Appeals is bound by Supreme Court precedent, though it is encouraged to express its rationale for any reservations it may harbor over the precedent (reversing decision in which Court of Appeals had determined that it could decline to follow Supreme Court precedent if it concluded that Supreme Court would decide precedent was no longer good law and would overrule it if given the opportunity).

Mandate

State v. Frank, 2002-NMSC-026, 132 N.M. 544, 52 P.3d 404.

District court properly departed from mandate and applied current law established by intervening United States Supreme Court decision.

Law of the Case Doctrine

White Sands Forest Products, Inc. v. First National Bank of Alamogordo, 2002-NMCA-079, 132 N.M. 453, 50 P.3d 202.

Although defendant did not assert argument that common-law negligence cause of action did not exist in conjunction with specific statutory cause of action in prior appeal as alternative basis for affirmance, defendant was not precluded by “waiver” variant of law of the case doctrine from raising non-existence of negligence cause of action as basis for reversal in subsequent appeal; court noted cases recognizing “waiver” variant as well as authority questioning its applicability to appellee’s failure to assert all possible grounds for affirmance, but resolved issue by holding that law of the case would not be applied in case at bar to perpetuate manifest error (¶¶16-18 & n.1).