N.M. R. Civ. P. Dist. Ct. 1-006
N.M. R. Civ. P. Dist. Ct. 1-006
Committee commentary. - In 2014, the Joint Committee on Rules of Procedure amended the time computation rules, including Rules 1-006, 2-104, 3-104, 5, 104, 6-104, 7-104, 8-104, 10-107, and 12-308 NMRA, and restyled the rules to more closely resemble the federal rules of procedure. See Fed. R. Civ. Pro. 6; Fed. R. Crim. Pro. 45.
The method for computing time periods of ten days or less set forth in Subparagraph (A)(2) of this rule does not apply to any statutory notice that must be given prior to the filing of an action. For example, several provisions of the Uniform Owner-Resident Relations Act require such notice. See, e.g., NMSA 1978, § 47-8-33(D) (requiring the landlord to give the tenant three days notice prior to terminating a rental agreement for failure to pay rent).
Subparagraph (A)(4) of this rule contemplates that the court may be closed or unavailable for filing due to weather, technological problems, or other circumstances. A person relying on Subparagraph (A)(4) to extend the time for filing a paper should be prepared to demonstrate or affirm that the court was closed or unavailable for filing at the time that the paper was due to be filed under Subparagraph (A)(1), (A)(2), or (A)(3).
[Adopted by Supreme Court Order No. 14-8300-016, effective for all cases pending or filed on or after December 31, 2014.]
ANNOTATIONS The 2014 amendment, approved by Supreme Court Order No. 14-8300-016, effective December 31, 2014, completely rewrote the rule; deleted former Paragraph A which provided rules for computation of time by excluding the day of the event from which the period of time began to run, including the last day of the period of time, excluding Saturdays, Sundays, legal holidays and days of severe inclement weather, and defined legal holidays; deleted former Paragraph B which provided for the enlargement of the period of time by the court; deleted former Paragraph C which provided for the service of motions for the enlargement of the period of time and for ex parte applications; deleted former Paragraph D, which provided for a three day enlargement of the period of time when a party was served by mail; and added current Paragraphs A through D. The 1995 amendment, effective January 1, 1995, in Paragraph A, inserted "by local rules of any district court" in the first sentence, inserted the language beginning "or, when the act" and ending "court inaccessible" and substituted "one of the aforementioned holidays" for "a Saturday, a Sunday or a legal holiday" in the second sentence, and added the last two sentences; deleted "or any Supreme Court rule" following "1-062" near the end of Paragraph B; substituted the present paragraph heading in Paragraph C for "For motions; affidavits"; and substituted "the party" for "him" in two places in Paragraph D.
For failure to rule on motion as denial, see Section 39-1-1 NMSA 1978. Compiler's notes. - Paragraph B is deemed to have superseded Trial Court Rule 105-704, derived from 105-704, C.S. 1929, and 105-508, C.S. 1929, which were substantially the same. It may also, together with the other Rules of Civil Procedure, be deemed to have superseded 105-802, C.S. 1929, relating to time for hearings. Paragraph C is deemed to have superseded 105-702, C.S. 1929, which was substantially the same. It is also deemed to have superseded 34-340, 1929 Comp., relating to notice of motion where officers fail to pay over money. I. GENERAL CONSIDERATION. Distinctness of paragraphs of rule - The computation of time provision for filing periods of less than eleven days in Paragraph A of this rule and the provision allowing an extra three days if the pleading is served by mail in Paragraph D of this rule are distinct provisions of this rule. Garza v. State Taxation & Revenue Dep't., 2004-NMCA-061, 135 N.M. 673, 92 P.3d 685. Administrative appeals. - Paragraph A of this rule does apply to filing motions under Rule 1-074 R NMRA. Garza v. State Taxation & Revenue Dep't, 2004-NMCA-061, 135 N.M. 673, 92 P.3d 685. Applicability to Workmen's Compensation Law. - This rule, providing the method of computation of time, should be applicable generally to the Workmen's Compensation Law. Keilman v. Dar Tile Co., 1964-NMSC-138, 74 N.M. 305, 393 P.2d 332. The three-day mailing period of Paragraph D applies to peremptory challenges exercised under Workers' Compensation Administration Formal Hearing Rule XXIII. Rodriguez v. El Paso Elec. Co., 1992 -NMCA-042, 113 N.M. 672, 831 P.2d 608. II. COMPUTATION. Exclusion of weekends and holidays. - Paragraph A of this rule superseded 12-2-2 NMSA 1978 (see now 12-2A-7 NMSA 1978), which only extended a time period to the following Monday if the last day falls on a Sunday. Therefore, a claim under the Tort Claims Act was not barred by the two-year statute of limitations of 41-4-15 NMSA 1978 where the last day of the two-year period fell on a Saturday and the plaintiff filed her claim on the following Monday. Dutton v. McKinley Cnty. Bd. of Comm'rs, 1991-NMCA-130, 113 N.M. 51, 822 P.2d 1134. Whether limitation considered procedural or substantive, etc., deemed immaterial. - Whether a case is timely filed under Subdivision (a) (see now Paragraph A) or under 12-2-2 NMSA 1978 (see now 12-2A-7 NMSA 1978) is irrelevant, since these two provisions, considered together, make it amply clear that whether a limitation is considered procedural or substantive or whether it is a limitation on the right and remedy, or on only the remedy, is immaterial so far as the method to be utilized in computing time is concerned. Keilman v. Dar Tile Co., 1964-NMSC-138, 74 N.M. 305, 393 P.2d 332. Medical malpractice action. - The three-year limitation period of 41-5-13 NMSA 1978 may be extended by Subdivisions (a) and (e) (see now Paragraphs A and D), to allow the timely filing of a medical malpractice action. Saiz v. Barham, 1983-NMCA-132, 100 N.M. 596, 673 P.2d 1329. III. ENLARGEMENT. Motion for attorney's fees for bad faith litigation. - Where plaintiff sought attorney's fees based on a claim that defendant engaged in bad faith litigation; defendant's attorney received plaintiff's motion five days after the motion was filed; defendant filed a response to plaintiff's motion thirty-six days after plaintiff's motion was filed together with a request for an extension of time; defendant's attorney claimed that the attorney was on a three-week vacation when plaintiff's motion arrived at the attorney's office and that the motion had been misfiled by a secretary; the court noted that defendant's notice of appeal in the case, bearing the attorney's signature, had been filed within the fifteen day period for response to plaintiff's motion, at a time when the attorney asserted the attorney was on vacation; and the court denied the request for an extension of time, determining that it was not justified by excusable neglect, the court abused its discretion because the motion for attorney's fees for bad faith litigation was a new and relatively rare claim for monetary relief from defendant which defendant should not have expected. Skeen v. Boyles, 2009-NMCA-080, 146 N.M. 627, 213 P.3d 531. This rule places exclusive control as to enlargement of time for pleading in court, not with counsel. Rogers v. Lyle Adjustment Co., 1962-NMSC-089, 70 N.M. 209, 372 P.2d 797. Whatever may have been the practice, there can be no valid excuse for failure to attend at any hearing of which an attorney has been notified, or to timely arrange with the court to be excused therefrom. Rogers v. Lyle Adjustment Co., 1962-NMSC-089, 70 N.M. 209, 372 P.2d 797. Court not allowed to extend or enlarge time under certain rules. - Under the terms of Subdivision (b) (now Paragraph B), the court cannot extend or enlarge the time for taking any action under Rule 52(B)(b) (now Rule 1-052 NMRA) 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. Change procedure. - Where the effect of rule change, as applied to a case, extended the time for filing a motion for a new trial from 10 to 12 days contrary to Rule 59(b) (now Rule 1-059 NMRA), it is clearly a change in procedure. Marquez v. Wylie, 1967-NMSC-245, 78 N.M. 544, 434 P.2d 69. Rule does not authorize trial court to extend time period fixed by statute. Mathieson v. Hubler, 1978-NMCA-119, 92 N.M. 381, 588 P.2d 1056, cert. denied, 93 N.M. 353, 588 P.2d 554. Subdivision (b) (now Paragraph B) may not affect extension of time limitation of 45-3-806A NMSA 1978 (relating to allowance of claims against a decedent's estate) because such an extension would be inconsistent with that statute's barring of a disallowed claim unless proceedings are commenced not later than 60 days after mailing of notice of disallowance. Mathieson v. Hubler, 1978-NMCA-119, 92 N.M. 381, 588 P.2d 1056, cert. denied, 92 N.M. 353, 588 P.2d 554. Section 72-7-1B NMSA 1978 specifically deals with the time limits for serving a notice of appeal from a decision of the state engineer and is controlling over this section. The trial courts are without authority to extend a period of time fixed by statute. In re Metropolitan Inv., Inc., 1990-NMCA-070, 110 N.M. 436, 796 P.2d 1132. IV. FOR MOTIONS. Applicability. - The five-day time limit of this rule did not apply to a will contestant's petition for a formal testacy proceeding filed pursuant to 45-3-401 NMSA 1978. Vieira v. Estate of Cantu, 1997-NMCA-042, 123 N.M. 342, 940 P.2d 190. Court order may alter notice period. - One-day notice of domestic relations hearing in which ex-husband was ordered to sign promissory note was appropriate where he was put on notice by prior court order that he might have to appear before court "any morning" and where no new issues were raised by ex-wife at hearing. Wolcott v. Wolcott, 1984-NMCA-089, 101 N.M. 665, 687 P.2d 100. Purported notice failing to comply. - Where trial court ruled upon the question of visitation rights at the hearing on appellant's motion for summary judgment and without any pleading appellee sought the right of visitation, without any notice to appellant that the matter of visitation rights would be considered and without opportunity to meet that particular question, appellant did not have proper notice of appellee's motion to stay the execution of the judgment and appellee's purported notice of his motion to stay the judgment did not comply with this rule. Padgett v. Padgett, 1960-NMSC-123, 68 N.M. 1, 357 P.2d 335. V. ADDITIONAL TIME AFTER SERVICE BY MAIL. Entry of summary judgment held error. - Where service of the motion for summary judgment is by mail and judgment is entered prior to the time plaintiff could be required to interpose counter-affidavits or other opposing evidence, pursuant to Subdivision (e) (now Paragraph D) entry of summary judgment is error. Barnett v. Cal. M., Inc., 1968-NMSC-159, 79 N.M. 553, 445 P.2d 974. Subdivision (e) (see now Paragraph D) has no application when computing time for notice of appeal because the time for appeal starts to run from entry of judgment. The rule only applies to enlarge periods of time in which a party has to act after service of a notice by mail. Socorro Livestock Mkt., Inc. v. Orona, 1978-NMSC-084, 92 N.M. 236, 586 P.2d 317. A party notified by mail of judgment entered against him in magistrate court who filed a notice of appeal 16 days later could not take advantage of the three-day extension provision of Subdivision (e) (now Paragraph D). Socorro Livestock Mkt., Inc. v. Orona, 1978-NMSC-084, 92 N.M. 236, 586 P.2d 317. Am. Jur. 2d, A.L.R. and C.J.S. references. - 9A Am. Jur. 2d Bankruptcy §2170 et seq.; 20 Am. Jur. 2d Courts §5; 56 Am. Jur. 2d Motions, Rules and Orders §§10, 11, 13, 14, 16, 33; 58 Am. Jur. 2d Notice §§34 to 36, 43, 46; 62B Am. Jur. 2d Process §§114-125; 74 Am. Jur. 2d Time §§15 to 19. "Until" as a word of inclusion or exclusion, where one is given until a certain day to file a pleading, 16 A.L.R. 1095. Inclusion or exclusion of first and last day for purposes of statute of limitations, 20 A.L.R. 1249. Power of trial court indirectly to extend time for appeal, 89 A.L.R. 941, 149 A.L.R. 740. Failure to file return within limitation provisions of Internal Revenue Code, excuse for, 30 A.L.R.2d 452. Difference between date of affidavit for service by publication and date of filing or of order for publication as affecting validity of service, 46 A.L.R.2d 1364. Time for payment of insurance premium where last day falls on Sunday or a holiday, 53 A.L.R.2d 877. Jurisdiction or power of grand jury after expiration of term of court for which organized, 75 A.L.R.2d 544. Future date, inclusion or exclusion of first and last day in computing the time for performance of an act or event which must take place a certain number of days before, 98 A.L.R.2d 1331. Vacating judgment or granting new trial in civil case, consent as ground of after expiration of term or time prescribed by statute or rules of court, 3 A.L.R.3d 1191. Necessity and propriety of counter-affidavits in opposition to motion for new trial in civil case, 7 A.L.R.3d 1000. When medical expense incurred under policy providing for payment of expenses incurred within fixed period of time from date of injury, 10 A.L.R.3d 468. Attorney's inaction as excuse for failure to timely prosecute action, 15 A.L.R.3d 674. What circumstances excuse failure to submit will for probate within time limit set by statute, 17 A.L.R.3d 1361. Construction and effect of contractual or statutory provisions fixing time within which arbitration award must be made, 56 A.L.R.3d 815. Extension of time within which spouse may elect to accept or renounce will, 59 A.L.R.3d 767. Validity of service of summons or complaint on Sunday or holiday, 63 A.L.R.3d 423. When is office of clerk of court inaccessible due to weather or other conditions for purpose of computing time period for filing papers under Rule 6(a) of Federal Rules of Civil Procedure, 135 A.L.R. Fed. 259. 60 C.J.S. Motions and Orders §§8, 18, 28; 66 C.J.S. Notice §§ 26 to 32; 71 C.J.S. Pleading §§ 98, 114, 219; 72 C.J.S. Process §§ 41, 55; 86 C.J.S. Time §§ 13, 29 to 38.