N.M. R. App. P. 12-208
N.M. R. App. P. 12-208
Committee commentary. - In addition to minor technical amendments, Rule 12-208 NMRA was amended in 2013 to accommodate the situation that can arise under the 2013 amendments to Rule 12-201(D) NMRA, under which a notice of appeal may be filed before the disposition of certain timely filed post-trial or post-judgment motions but does not become effective until the last such motion is disposed of expressly by an order of the district court, is automatically denied, or is withdrawn. See Rule 12-201(D)(4) NMRA. In such a situation, the docketing statement or statement of issues is not required to be filed until thirty (30) days after the notice of appeal becomes effective, so that the appellant can frame the docketing statement or statement of issues with knowledge of the disposition of the post-trial or post-judgment motions.
[Adopted by Supreme Court Order No. 13-8300-032 , effective for all cases pending or filed on or after December 31, 2013.]
.ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-011, effective December 31, 2016, amended certain citations to reflect the recompilation of former Rule 12-203A NMRA, provided new requirements regarding the disclosure of related or prior appeals, and made technical changes; in Paragraph (B), deleted "12-203A" and added "12-203.1", and after "becomes effective under", deleted "Subparagraph (4) of", and after "Rule 12-201(D)", added "(4)"; in Paragraph (C), after "notice of appeal", deleted "pursuant to" and added "under"; in Paragraph D, in the heading, added "in the Court of Appeals"; in Subparagraph (D)(7), after "related or prior appeals", added "of which the party is aware, including an appropriate citation, if any" and deleted "If the reference is to a prior appeal, the appropriate citation should be given"; in Paragraph (E), in the heading, added "in the Supreme Court", added the second sentence, and in the third sentence, after "the issues should be", deleted "short and", and after "concise", added "and accurate"; in Paragraph (F), after "Court of Appeals may", deleted "upon" and added "on", and after "Supreme Court may", deleted "upon" and added "on"; and in Paragraph (H), after "Court of Appeals", deleted "and" and added "or". The 2013 amendment, approved by Supreme Court Order No. 13-8300-032, effective December 31, 2013, provided for the time to file a docketing statement when a notice of appeal has been filed before the disposition of a post-trial or post-judgment motion; in Paragraph B, added the second sentence; in Subparagraph (6) of Paragraph D, after "entire proceedings were", deleted "tape" and added "audio" and after "record proper, not", deleted "tape" and added "audio". The 2006 amendment, approved by Supreme Court Order No. 06-8300-021, effective December 18, 2006, deleted from Paragraph B "12-605" and the last sentence relating to service of the docketing statement by the appellant; added "or statement of the issues" to Paragraph I; and added Paragraph J relating to the filing of a monthly notice by the court clerk. The 1999 amendment, effective for cases filed on and after January 1, 2000, added Paragraph C, renumbered Paragraphs C through H as present Paragraphs D through H and added Paragraph I. The 1998 amendment, effective for pleadings due on and after April 1, 1998, in Paragraph A, inserted "Unless otherwise ordered by the Court", substituted "a" for "the", and substituted "in the Court of Appeals or a statement of the issues in the Supreme Court" for "unless relieved by order of the appellate court"; in Paragraph B, substituted "service" for "contents", substituted "If the appeal has been docketed in the Court of Appeals, or a statement of the issues, if the appeal has been docketed in the Supreme Court" for "with the appellate court clerk", inserted "or statement of the issues" following "docketing statement" and designated the former last sentence, including the subparagraphs, as Paragraph C; in Paragraph C, inserted "Docketing statement; contents", and substituted "A" for "The"; added new Paragraph D; redesignated Paragraph C as Paragraph E and rewrote the paragraph; redesignated Paragraph D as Paragraph F, inserted "in the Court of Appeals or a statement of the issues in the Supreme Court" following "docketing statement", and substituted "Paragraph G" for "Paragraph E" at the end of the paragraph; redesignated Paragraph E as Paragraph G, substituted "the filing of a" for "all", substituted "statement in the Court of Appeals and a statement of the issues in the Supreme Court" for "statements filed" and inserted "or statement of the issues" following "docketing statement". The 1995 amendment, effective October 1, 1995, inserted "for each issue" and "and, where known, the applicable standard of review" in Subparagraph B(5).
For contents of briefs, see Rule 12-318 NMRA. For form of papers, see Rule 12-305 NMRA. For federal rule, see Fed. R. App. P. Rule 12. I. GENERAL CONSIDERATION. Effect of failure to comply with rule. - Where defendants have failed to comply with this rule, or to indicate that the issue sought to be argued on appeal is jurisdictional, or that the issue was properly preserved for appellate review, an appellate court may decline to address such contention on appeal. State v. Goss, 1991-NMCA-003, 111 N.M. 530, 807 P.2d 228. II. ATTORNEY RESPONSIBLE. Counsel held in contempt for failure to comply with former Rule 205(b), N.M.R. App. P. (Crim.). - Both nonadmitted counsel and associated local counsel, entering joint appearance under Rule 5-108, N.M.R. Crim. P., were held in contempt of court for failing to comply with former Rule 205(b), N.M.R. App. P. (Crim.) (see now Paragraph A of this rule). State v. White, 1984-NMCA-033, 101 N.M. 310, 681 P.2d 736. Trial counsel has ultimate responsibility. - Even if appellate counsel may act as an agent for trial counsel in the filing of the docketing statement, trial counsel has the ultimate responsibility for the docketing statement. Loverin v. Debusk, 1992-NMCA-023, 114 N.M. 1, 833 P.2d 1182. Failure to file the docketing statement can be contempt. - Trial counsel may be held in contempt for failure to prepare and file the docketing statement as required by the appellate rules. In re Palafox, 1983-NMSC-078, 100 N.M. 563, 673 P.2d 1296. Criminal appeals trial counsel believes are frivolous still require a thorough docketing statement. - Trial counsel in a criminal case is required to prepare a docketing statement of sufficient completeness to afford adequate appellate review even if trial counsel believes that the appeal is frivolous. State v. Talley, 1985-NMCA-058, 103 N.M. 33, 702 P.2d 353. III. DOCKETING STATEMENT. A. TIME FOR FILING. District court cannot extend time to file. - Although former N.M.R. App. P. (Crim.) did not specifically state that a motion for extension of time to file the docketing statement was to be filed in the appellate court, the import of former Rule 402, N.M.R. App. P. (Crim.) (see now Rule 12-309 NMRA), was that motions involving appellate court responsibility in perfecting the appeal were to be filed in the appellate court. Therefore, the district court had no authority to extend the time specified under former Rule 205, N.M.R. App. P. (Crim.) (see now this rule) for filing the docketing statement, but an attorney who relied on such an erroneous extension was not to be held in contempt for late filing. State v. Brionez, 1977-NMCA-064, 90 N.M. 566, 566 P.2d 115, aff'd, 1977-NMCA-123, 91 N.M. 290, 573 P.2d 224. Court of appeals can extend time. - Appellant's failure to file timely a docketing statement with the court of appeals did not deprive that court of jurisdiction over the appeal. The court of appeals has jurisdiction to grant an extension of time for the filing of a docketing statement. Johnson v. School Bd. of Albuquerque Pub. Sch. Sys., 1991 -NMCA-062,113 N.M. 117, 823 P.2d 917. B. SERVICE. Reliance on skeleton transcript for proof of service. - Where neither the motion for extension nor the notice of appeal included in the transcript proper indicated certification of service upon opposing counsel, but the copy of the motion in the skeleton transcript prepared by counsel certified that service had been made, in light of the fact that the skeleton transcript was required as part of the appellate process by this rule and in light of the requirement that the skeleton be certified by the district court clerk, the court of appeals would rely on the copies of the motion for extension and the notice of appeal included in the skeleton transcript for proof that opposing counsel had been served. White v. Singleton, 1975-NMCA-104, 88 N.M. 262, 539 P.2d 1024. C. CONTENTS. Issue not listed in statement may not be raised. - Following the 1990 amendment to Rule 12-213 NMRA [now 12-318 NMRA], the docketing statement no longer governs the issues that may be raised in briefs on a nonsummary calendar. State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730. Failure to provide all material facts. - Defendant's failure to provide court with a summary of all the facts material to consideration of the issue on appeal, as required by Rule 12-208B(3) (now Paragraph D(3)), necessitated a denial of relief on this ground. State v. Chamberlain, 1989-NMCA-082, 109 N.M. 173, 783 P.2d 483. Issues listed in docketing statement which have not been argued are deemed abandoned. State v. McGill, 1976-NMCA-100, 89 N.M. 631, 556 P.2d 39. Affidavits not presented to trial court not considered with docketing statement. - No rule authorizes exhibits to docketing statements, but since exhibits to briefs neither identified nor tendered as exhibits to the trial court will not be considered, neither will the affidavits attached to the docketing statement. State v. Lucero, 1977-NMCA-021, 90 N.M. 342, 563 P.2d 605, cert. denied, 90 N.M. 636, 567 P.2d 485. Counsel may be held in contempt for inaccurate factual statement. - Trial counsel may be held in contempt for failing to take a timely appeal, and also for making inaccurate factual recitations in the docketing statement filed. State v. Fulton, 1983-NMCA-010, 99 N.M. 348, 657 P.2d 1197. Facts that support the trial court's ruling must be stated. - The docketing statement must include all the facts material to the issues, including the facts that support the trial court's ruling. Thornton v. Gamble, 1984-NMCA-093, 101 N.M. 764, 688 P.2d 1268. Unchallenged facts are accepted. - Facts in a docketing statement that are not challenged are to be accepted as the facts of the case. State v. Anaya, 1982-NMSC-073, 98 N.M. 211, 647 P.2d 413. Failure to provide all the facts can result in affirmance. - When the party appealing fails to provide a summary of all the facts material to consideration of an issue, affirmance is appropriate. State v. Chamberlain, 1989-NMCA-082, 109 N.M. 173, 783 P.2d 483. Docketing statement is substitute for transcript. - The docketing statement is an adequate alternative to a complete transcript of proceedings. State v. Talley, 1985-NMCA-058, 103 N.M. 33, 702 P.2d 353. Contentions must be supported by authorities. - Contentions not supported by citations to legal authorities may be ignored by the appellate court. State v. Boyer, 1985-NMCA-058, 103 N.M. 655, 712 P.2d 1; In re Adoption of Doe, 1984-NMSC-024, 100 N.M. 764, 676 P.2d 1329. Preservation of issues must occur in trial court. - Raising an issue in the docketing statement will not preserve it for appeal if the issue was not raised in the trial court and no ruling was invoked on the issue. State v. Barrera, 2001-NMSC-014, 130 N.M. 227, 22 P.3d 1177. Related or prior appeals. - The purpose of referencing related or prior appeals in the docketing statement is to alert the appellate court that cases may be joined, which forecloses the possibility of inconsistencies in rulings and conserves judicial resources. State v. Gonzales, 2014-NMSC-039. Failure to comply. - Where district attorney filed separate appeals for two defendants in the same case, but failed to alert the Court of Appeals of the related appeals, the failure to comply with Paragraph D(7) of this rule resulted in inconsistent rulings and a waste of judicial resources. State v. Gonzales, 2014-NMSC-039. D. RESPONSIBILITIES OF COURT-APPOINTED COUNSEL WHEN CLIENT WISHES TO ADVANCE CONTENTIONS THAT COUNSEL BELIEVES ARE FRIVOLOUS. Defendant's contentions in criminal case must be stated. - The docketing statement should state the contentions advanced by a defendant in a criminal case. This statement should include a statement of all facts material to the contentions, a statement of whether the contentions were raised in the trial court, and a statement of whether the contentions or facts will appear in the record made below. State v. Boyer, 1985-NMCA-029, 103 N.M. 655, 712 P.2d 1. Respondent's contentions in termination case must be stated. - The docketing statement should state the contentions advanced by a defendant, should include a statement of all facts material to those contentions, should inform the court whether and how the contentions were raised in the trial court, and should inform the court whether the contentions or facts would appear in the record. State ex rel. Children, Youth & Families Dep't v. Alice P., 1999-NMCA-098, 127 N.M. 664, 986 P.2d 460, cert. denied, 127 N.M. 391, 981 P.2d 1209. E. FORM. Pagination is required. - As provided by Rule 12-305 NMRA, the docketing statement must be paginated. In re Reif, 1996-NMSC-026, 121 N.M. 758, 918 P.2d 344. F. AMENDMENTS. Allowance of amendment to initial docketing statement is discretionary with the appellate court on appeal. State v. Rael, 1983-NMCA-081, 100 N.M. 193, 668 P.2d 309. Time for filing motion to amend is with or before first memorandum in opposition. - Motions to amend the docketing statement will be considered timely for cases assigned to the summary calendar when they are filed with the party's first memorandum in opposition to the proposed disposition in the calendar notice. State v. Moore, 1989-NMCA-073, 109 N.M. 119, 782 P.2d 91. Preservation of issue to be added must be shown in motion to amend. - Motion to amend the docketing statement must show that the issue counsel seeks to add was properly preserved below or is one that can be raised for the first time on appeal. State v. Rael, 1983-NMCA-081, 100 N.M. 193, 668 P.2d 309. Amendment not necessary in general calendar cases. - For appeals filed after July 1, 1990, there is no need to file motions to amend the docketing statement once the case is assigned to the general calendar. State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730. Timely motion to amend docketing statement. - A motion to amend a docketing statement will be considered timely when filed prior to the expiration of the original briefing time in cases assigned to a nonsummary calendar. State v. Rael, 1983-NMCA-081, 100 N.M. 193, 668 P.2d 309. Statement supporting motion to amend docketing statement. - Issues sought to be added under a motion to amend a docketing statement shall be simply and concisely stated, supported by appropriate legal authority, together with any contrary authority known by appellant. Argument on the law shall not be included, but a short, simple statement of the rule for which the case or text is cited should accompany the citation. State v. Rael, 1983-NMCA-081, 100 N.M. 193, 668 P.2d 309. Reason for recitation of why new issue was not originally raised. - The point of the requirement that the motion to amend recite the reason why the new issue was not originally raised is to allow the appellate court insight into trial counsel's evaluation of the issue, which may bear on the appellate court's own assessment of the issue's viability. State v. Moore, 1989-NMCA-073, 109 N.M. 119, 782 P.2d 91. Good cause is a basic requirement for all docketing statement amendments. Good cause is established when the issue is demonstrated to be meritorious fundamental or jurisdictional error. Good cause may be established in other ways when the issue is not meritorious fundamental or jurisdictional error. State v. Moore, 1989-NMCA-073, 109 N.M. 119, 782 P.2d 91. Good cause was not shown. - Defendant's assertion that an issue was omitted from the original docketing statement "due to inadvertence" was not "good cause shown" for granting a motion to amend the docketing statement. State v. Gallegos, 1989-NMCA-066, 109 N.M. 55, 781 P.2d 783. Law reviews. - For annual survey of civil procedure in New Mexico, see 18 N.M.L. Rev. 287 (1988). For article, "New Mexico's Summary Calendar for Disposition of Criminal Appeals: An Invitation for Inefficiency, Ineffectiveness and Injustice," see 24 N.M.L. Rev. 27 (1994). Am. Jur. 2d, A.L.R. and C.J.S. references. - 5 Am. Jur. 2d Appellate Review § 347. 4 C.J.S. Appeal and Error § 390 et seq.