N.M. R. App. P. 12-207

As amended through August 23, 2024

Rule 12-207 - Supersedeas and stay in civil matters

A.Appellate court review. At any time after a notice of appeal has been filed and the docket fee paid, the appellate court may, upon motion and notice, review any action of, or any failure or refusal to act by, the district court dealing with supersedeas or stay, irrespective of whether a docketing statement or statement of the issues has been filed.

B.Application or motion for relief. Application for a stay of the judgment or order of a district court pending appeal, or for approval of a supersedeas bond, or for an order suspending, modifying, restoring or granting an injunction during the pendency of an appeal must be made in the first instance in the district court. A motion for review of the district court's action may be made to the appellate court, but the motion shall show that the district court has denied an application, or has failed to afford the relief which the applicant requested, with the reasons given by the district court for its action. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant. Notice of the motion shall be given to all parties.

C.Filing of the motion. A motion for review of a supersedeas or stay shall be filed with the appellate court clerk.

D.Standard of review. The decision of the district court shall be set aside only if it is shown that the decision:

(1) is arbitrary, capricious or reflects an abuse of discretion;

(2) is not supported by substantial evidence; or

(3) is otherwise not in accordance with law.

E.Additional time to file supersedeas bond. If the appellate court modifies the terms, conditions or amount of a supersedeas bond or if it determines that the district court should have allowed supersedeas and failed to do so on proper terms and conditions, it shall enter an appropriate order and it may grant additional time, not to exceed fifteen (15) days from the date of such order, within which to file in the district court a supersedeas bond complying with the standards prescribed in such order. Upon the entry of such order, the appellate court clerk shall give prompt notice thereof to the district court clerk.

N.M. R. App. P. 12-207

As amended, effective 4/1/1998.

ANNOTATIONS The 1998 amendment, effective for pleadings due on and after April 1, 1998, inserted "or statement of the issues" following "docketing statement" near the end of Paragraph A.

For posting of supersedeas bond where title to or possession of property is involved, see Sections 39-3-9 and 39-3-10 NMSA 1978. For supersedeas and stay in civil actions, see Section 39-3-22 NMSA 1978. Supersedeas bond required to stay judgment. - If the status quo was to be maintained a supersedeas bond had to be provided pursuant to 39-3-9 NMSA 1978 in such an amount as would indemnify the appellee from all damages that might result from such supersedeas, the amount to be fixed by the court; absent a court order and a bond, the judgment would remain in effect and could be enforced. Gregg v. Gardner, 1963-NMSC-223, 73 N.M. 347, 388 P.2d 68. Absent supersedeas bond, appellee entitled to execute questioned plan. - Where county school board affected by administrative reorganization plan of school districts, on appealing from judgment denying injunction against state board of education and superintendent, did not apply for and file a supersedeas bond, state board and superintendent had right to execute plan of administrative reorganization. Board of Educ. v. State Bd. of Educ., 1964-NMSC-207, 74 N.M. 496, 394 P.2d 1004. Where the trial court determined that a fraudulent conveyance by the decedent and the failure to notify plaintiff of the probate proceedings improperly thwarted plaintiff's efforts to satisfy his judgment against decedent, and ordered the verified statement vacated and the probate matter reopened, and where after the filing of their notice of appeal the court entered an order appointing a new administrator for decedent's estate, the order implemented the judgment in this case which provided that such a person would be appointed. Because defendants did not seek to file a supersedeas bond to preserve the status quo, the judgment of the trial court remained in effect and could be enforced. Beagles v. Espinoza, 1990-NMCA-121, 111 N.M. 206, 803 P.2d 1111. The district court may act on matters of supersedeas and stay during the pendency of an appeal. In re Estate of Gardner, 1991-NMCA-039, 112 N.M. 536, 817 P.2d 729. Mandamus to compel stay. - Defendant against whom a mandatory injunction issued was entitled to supersede the judgment and suspend the force of the injunction pending appeal or writ of error, and mandamus would issue ordering judge to fix amount of supersedeas bond and on its approval to supersede mandatory injunction. State ex rel. Martinez v. Holloman, 1918-NMSC-138, 25 N.M. 117, 177 P. 741. Injunction suspended. - Order of justice of the supreme court that the judgment of the district court be superseded until the final disposition of cause, endorsed upon application for writ of error, suspended the operation of a prohibitory injunction issued by the district court. Sena v. District Court of the Fourth Judicial Dist., 1925-NMSC-030, 30 N.M. 505, 240 P. 202. Grant of application discretionary. - Grant of an application for stay is not a matter of right but an exercise of judicial discretion, and is dependent on the circumstances of each individual case. Alpers v. Alpers, 1990-NMCA-015, 111 N.M. 467, 806 P.2d 1057. Executors, administrators and corporations could supersede judgment against them, as such, only when they had sued out appeal or writ of error within the time allowed. Sakariason v. Mechem, 1915-NMSC-038, 20 N.M. 307, 149 P. 352. Factors to be considered in granting stay in custody matter. - The factors to be considered in deciding whether a motion to stay a trial court's custody order should be granted pending disposition of an appeal are: (1) the likelihood of hardship or harm to the children if the stay is denied; (2) whether the appeal is taken in good faith and the issues raised are not frivolous; (3) the potential harm to the interests of the nonmoving party if the stay is granted; and (4) a determination of other existing equitable considerations, if any. Alpers v. Alpers, 1990-NMCA-015, 111 N.M. 467, 806 P.2d 1057. Adequate remedy despite court discretion. - Writ of prohibition seeking to prohibit further action in mandamus proceeding would not issue, as law provided adequate remedy by way of appeal or writ of error, despite fact that right to supersede judgment was discretionary with lower court or supreme court. Board of Comm'rs v. District Court of Fourth Judicial Dist., 1924-NMSC-009, 29 N.M. 244, 223 P. 516. Am. Jur. 2d, A.L.R. and C.J.S. references. - 5 Am. Jur. 2d Appellate Review § 436 et seq. Appeal from award of injunction as stay or supersedeas, 93 A.L.R. 709. Right to stay without bond or other security pending appeal from judgment or order against executor, administrator, guardian, trustee or other fiduciary who represents interests of other persons, 119 A.L.R. 931. Stay, pending review, of judgment or order revoking or suspending a professional, trade or occupational license, 166 A.L.R. 575. Stay or supersedeas on appellate review in mandamus, 88 A.L.R.2d 420. 4 C.J.S. Appeal and Error § 408 et seq.