N.M. R. App. P. 12-312
N.M. R. App. P. 12-312
ANNOTATIONS The 1998 amendment, effective for pleadings due on and after April 1, 1998, inserted "in the Court of Appeals, statement of the issues in the Supreme Court" in Paragraph A. Concession of issue. - The rule that an issue is conceded by failing to brief it or by failing to cite authorities applies to appellants and not appellees. Mannick v. Wakeland, 2005-NMCA-098, 138 N.M. 113, 117 P.3d 919, cert. granted, 2005-NMCERT-001. Appellee does not have to file a brief. Mannick v. Wakeland, 2005-NMCA-098, 138 N.M. 113, 117 P.3d 919, cert. granted, 2005-NMCERT-001. Rules construed liberally to allow determination on merits. - Former Rules 102 and 404, N.M.R. App. P. (Crim.) (see now this rule), were enforcement rules designed to give the courts sufficient power to insure that appellants complied with other procedural rules, and appeals could be dismissed for failure to follow appellate procedures that were outlined. However, the supreme court followed a policy of construing rules liberally, to the end that causes on appeal could be determined on the merits where it could be done without impeding or confusing the administration of justice or perpetrating injustice. Olguin v. State, 1977-NMSC-034, 90 N.M. 303, 563 P.2d 97. Court will not hesitate in imposing rule's sanctions. - The supreme court fully expected compliance with its rules of procedure in general and its specific orders in particular, and it would not hesitate to impose the sanctions provided for in former Rule 31, N.M.R. App. P. (Civ.) (see now this rule). United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981). But appeal dismissed only in extreme case. - The determination of what constitutes an extreme case had to be made on a case-by-case basis and no party or counsel could assume that procedural rules could be disregarded without the possibility that his case would be dismissed; nevertheless, the court should have considered other sanctions against counsel or a party prior to applying the extreme sanction of dismissal, since former Rule 102, N.M.R. App. P. (Crim.), provided that only in extreme cases was the appeal to be dismissed. Olguin v. State, 1977-NMSC-034, 90 N.M. 303, 563 P.2d 97. Such as where indigent defendant takes no steps for preparation of transcript. - An appeal will be dismissed on a motion by the state for noncompliance with former Rule 208, N.M.R. App. P. (Crim.) (see now Rule 12-211 NMRA), when an indigent defendant does not respond to the motion or appear at a hearing to show cause why the appeal should not be dismissed, there is nothing showing that the defendant has sought an order for free process as ordered to meet the cost of production of the transcript process and no steps have been taken for the preparation of a transcript for use in the appeal. State v. Laran, 1977-NMCA-035, 90 N.M. 295, 562 P.2d 1149. Or fails to include exhibits. - The supreme court will dismiss a party's substantial evidence issue when that party fails to incorporate in the record on appeal those exhibits which are germane to that issue. Luxton v. Luxton, 1982-NMSC-087, 98 N.M. 276, 648 P.2d 315. But not where accused not responsible for breach of rules. - The dismissal of an appeal for the failure to file a poverty affidavit prior to the expiration of an extension is an abuse of discretion where the reason for the delay appears to rest with the court reporter and nothing in the record indicates a lack of diligence on the part of the accused except for the fact that he has not requested an additional extension. State v. Reyes, 1968-NMSC-182, 79 N.M. 632, 447 P.2d 512. It is inconsistent for the court of appeals to impose the most severe sanction of dismissal against a criminal defendant for failing to file a docketing statement while failing to impose any sanction against heedless counsel upon whom the defendant relied, and the case will be remanded under these circumstances with instructions to allow the filing of the statement and to reinstate the matter for its determination upon the merits. Olguin v. State, 1977-NMSC-034, 90 N.M. 303, 563 P.2d 97. Failure to supply complete record. - When problems with an unintelligible or missing portion of a transcript are not timely called to the attention of the proper court under Rule 12-211C(4) and E NMRA, the appellate court may refuse to consider contentions relating to that portion of the transcript. State ex rel. Educ. Assmts. Sys. v. Cooperative Educ. Servs., 1990 -NMCA-032,110 N.M. 331, 795 P.2d 1023. Filing notice of appeal with district court clerk jurisdictional. - An appellant who filed a notice of appeal with the clerk of the court of appeals rather than with the clerk of the district court did not comply with the place-of-filing requirement of Paragraph A of Rule 12-202 NMRA. Thus, the court was without jurisdiction to consider the appeal. Lowe v. Bloom, 1990-NMSC-069, 110 N.M. 555, 798 P.2d 156, overruling Martinez v. Wooten Construction Co., 1989-NMCA-074, 109 N.M. 16, 780 P.2d 1163 (to the extent it holds otherwise). Law reviews. - For annual survey of civil procedure in New Mexico, see 18 N.M.L. Rev. 287 (1988). Am. Jur. 2d, A.L.R. and C.J.S. references. - Appellate review of order denying extension of time for filing notice of appeal under Rule 4(a) of Federal Rules of Appellate Procedure, 39 A.L.R. Fed. 829. Failure to appeal denial of double jeopardy claim within time limits of Rule 4, Federal Rules of Appellate Procedure, as precluding review of claim on appeal of conviction at retrial, 51 A.L.R. Fed. 770. Lack of notice to contemnor at time of contemptuous conduct of possible criminal contempt sanctions as affecting prosecution for contempt in federal court, 76 A.L.R. Fed. 797.