N.M. R. App. P. 12-403
N.M. R. App. P. 12-403
ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-011, effective December 31, 2016, provided that the recovery of costs and attorney fees is within the discretion of the appellate court, increased the time within which a party may file a motion to recover costs and attorney fees, removed the provision regarding the appellate court clerk taxing costs, and made stylistic and technical changes; in Paragraph (A), deleted "In all proceedings in the appellate court the party prevailing shall recover the party's costs unless otherwise provided by law, by these rules, or unless the court shall otherwise determine." and added the first sentence; in Paragraph (B), in the introductory sentence, after "costs", deleted "shall" and added "may", after "include", added "the following"; in Subparagraph (B)(2), after "proceedings", added "as reflected by the certificates of the district court clerk and the court reporter"; in Subparagraph (B)(3), after "permitted by law", deleted "if requested in the briefs or by motion filed within ten (10) days of entry of disposition"; in Subparagraph (B)(4), after "damages", deleted "pursuant to NMSA 1978 §" and added "under Section", after "39-3-27", added "NMSA 1978", and after "purposes of delay", deleted "if requested in the briefs or by motion filed within ten (10) days of entry of disposition"; in Subparagraph (B)(5), deleted "such" and added "any"; and deleted Paragraph (C), relating to the taxation of costs by the appellate court clerk. The 1993 amendment, effective September 1, 1993, substituted "the party's costs" for "his costs" in Paragraph A.
For fixing of taxable costs by rules of procedure, see Section 39-3-11 NMSA 1978. For recovery of costs in civil actions, see Section 39-3-30 NMSA 1978. I. GENERAL CONSIDERATION. Duty to assess costs. - Assessment of costs on appeal is for appellate court, and not for the trial court. Davis v. Severson, 1963-NMSC-021, 71 N.M. 480, 379 P.2d 774. Awarding of appellate costs generally supported. - While this rule places discretion in the appellate court to withhold or apportion costs, it generally supports the notion of awarding appellate costs. Dennison v. Marlowe, 1989-NMSC-041, 108 N.M. 524, 775 P.2d 726. An award of attorneys' fees while petition for writ of certiorari is pending is premature. - In an oil and gas dispute, where, on appeal, the New Mexico Court of Appeals reversed the district court's award of summary judgment in favor of defendant and awarded summary judgment in favor of plaintiff, and where defendant petitioned the New Mexico Supreme Court for a writ of certiorari, and where the Court of Appeals issued an order granting attorneys' fees and costs to plaintiff while the writ of certiorari on the merits of its decision was pending in the Supreme Court, the Court of Appeals award of attorneys' fees was premature, because this rule states that costs and fees are only awarded to the prevailing party, and whether plaintiff was a prevailing party on appeal would depend on the judgment and mandate of the Court of Appeals, but the court's judgment and mandate were suspended when defendant petitioned the supreme court for a writ of certiorari. Enduro Operating LLC v. Echo Prod., Inc., 2018-NMSC-016, rev'g 2017-NMCA-018, 388 P.3d 990. Clerk of supreme court had authority under former rules to tax costs allowed in judgment although certification of costs by district clerk was not included in transcript of record. Warder v. Shufeldt, 1937-NMSC-057, 41 N.M. 507, 71 P.2d 653. Cost of preparation of a taxpayer's hearing before commissioner of revenue (now replaced by director of revenue division of taxation and revenue department) could not properly be taxed to the bureau (revenue division) where taxpayer successfully appealed decision; since former Rule 27, N.M.R. App. P. (Civ.) (see now this rule) was not applicable to appeals from decisions of tax commissioner (director of revenue division), which involve a situation "otherwise covered," by 7-1-25B NMSA 1978. New Mexico Bureau of Revenue v. Western Elec. Co., 1976 -NMSC-049, 89 N.M. 468, 553 P.2d 1275. II. RECOVERY. Costs may be recovered against state. - The legislature, in this section, gives express authority, without exception, to the recovery of costs against any losing party, including the state. Kirby v. New Mexico State Hwy. Dep't, 1982-NMCA-014, 97 N.M. 692, 643 P.2d 256. But criminal defendant cannot recover costs against state under this rule when an appeal results in a reversal. State v. Hudson, 2003-NMCA-139, 134 N.M. 564, 81 P.3d 501. Prevailing party recovers. - When appellee is prevailing party he may recover costs. Atma v. Munoz, 1944-NMSC-016, 48 N.M. 114, 146 P.2d 631. Costs on reversal of directed verdict. - Upon reversal of directed verdict for defendant and remand for trial by jury, costs of appeal would be assessed against defendant pursuant to whose motion for directed verdict, error in proceedings had arisen. Sanchez v. Gomez, 1953-NMSC-053, 57 N.M. 383, 259 P.2d 346. Recovery of costs paid pursuant to bond. - Insurer which had issued appeal bond, for appeal from small claims court to district court, where appeal had been dismissed and costs adjudicated, could recover clerk-reporter fees from insured, after it paid same when insured refused to do so. Royal Indem. Co. v. Bottone, 1959-NMSC-070, 66 N.M. 155, 343 P.2d 1042. Cost when no "prevailing" party. - Where each party in a case involving a removal order from the state corporation commission (now public regulation commission) to the supreme court had prevailed on certain issues and thus there was no single "prevailing party," it was nevertheless deemed to be unfair and unreasonable to shift the cost of an already prepared record to the party which had enjoyed the greatest success on removal. Southern Pac. Transp. Co. v. Corporation Comm'n, 1986-NMSC-091, 105 N.M. 145, 730 P.2d 448. Where there are portions of each judgment that are affirmed and portions that are reversed, such that there is no clear "prevailing party" in these situations, the court has authority to mandate that each party should bear its own costs on appeal. Mannick v. Wakeland, 2005-NMCA-098, 138 N.M. 113, 117 P.3d 919, cert. granted, 2005-NMCERT-001. III. ALLOWABLE COSTS. Garnishee held to be "prevailing party." - Garnishee, which defeated garnishor's claim that garnishee violated a legal duty to stop payment on checks sent to payee, was "prevailing party" entitled to attorney's fees and costs at the trial and appellate levels. Central Sec. & Alarm Co. v. Mehler, 1998-NMCA-096, 125 N.M. 438, 963 P.2d 515, cert. denied, 125 N.M. 322, 961 P.2d 167. Garnishment proceedings. - Garnishee who prevailed on motion for summary judgment as to its liability for outstanding checks from garnishee to judgment debtor was a "prevailing party" within the meaning of this section, and was entitled to an award of costs and attorney's fees from garnishor, as well as costs and attorney's fees on appeal. Central Sec. & Alarm Co. v. Mehler, 1998-NMCA-096, 125 N.M. 438, 963 P.2d 515, cert. denied, 125 N.M. 322, 961 P.2d 167. Transcript costs. - On appeal following judgment in quiet title suit and denial of motion to set aside stipulation, appellant's contention that she should be reimbursed portion of cost of record included in transcript on grounds that it was unnecessarily requested by appellee was without merit, as material complained of provided background to show there was a dispute which trial court could have decided if case had gone to trial and part of material complained of was used in appellant's rebuttal argument. Marrujo v. Chavez, 1967-NMSC-059, 77 N.M. 595, 426 P.2d 199. Defendants had right to seek inclusion in transcript of all proceedings casting light on extent of negligence and weight attributed to same by trial court, where plaintiff desired testimony of only two witnesses and was attempting to show that court applied erroneous measure of negligence, and under former Supreme Court Rules trial court did not err in assessing costs of transcript of record against plaintiff. Davis v. Severson, 1963-NMSC-021, 71 N.M. 480, 379 P.2d 774. Award of attorney fees on appeal requires statutory authority. Alber v. Nolle, 1982-NMCA-085, 98 N.M. 100, 645 P.2d 456. Award of attorney fees and costs in insurance bad faith claim. - Where the insured was awarded judgment against the insurer because the insurer acted in bad faith in denying and the Court of Appeals affirmed the judgment, the insured was entitled to attorney fees and costs because Rule 12-403 NMRA allows the Court of Appeals to award attorney fees for services rendered on appeal in cases where an award of attorney fees is permitted by law and Section 39-2-1 NMSA 1978 permits a court to award attorney fees in cases in which the court finds that the insurer acted unreasonably in failing to pay a claim. Am. Nat'l. Prop. & Cas. Co. v. Cleveland, 2013-NMCA-013, 293 P.3d 954. Failure to request attorney fees by motion. - Where a party is entitled to attorney fees as a matter of law, the district court must award the fees even when the prevailing party fails to request those fees by formal motion to the Supreme Court. Aguilera v. Palm Harbor Homes, Inc., 2004-NMCA-120, 136 N.M. 422, 99 P.3d 672, cert. denied, 2004-NMCERT-010. Where there is no prevailing party, attorney fees are not warranted. - Where petitioner was appointed the personal representative of his deceased grandfather's estate, and where the probate court, at Petitioner's request, issued an order directing the New Mexico Taxation and Revenue Department (Department) to release $70,000 of unclaimed property that belonged to decedent, and where the probate court transferred the case to the district court when the Department refused to release the property, neither party was entitled to attorney fees as a "prevailing party" where it was determined that petitioner failed to exhaust administrative remedies under the Uniform Unclaimed Property Act, 7-8A-1 to 7-8A-31 NMSA 1978, and where the Department acted outside its statutory authority in denying petitioner's claim. In re Estate of McElveny, 2017-NMSC-024, rev'g 2015-NMCA-080, 355 P.3d 75. Attorney's fees not awarded. - Fact that the plaintiff's appeal as presented lacked merit did not mean that it was taken or pursued in bad faith or for the purposes of delay and harassment, and the supreme court would not award defendant attorneys' fees for the appeal under Rule 17(3) of former Supreme Court Rules, which authorized award of damages for appeals taken merely for delay. Perez v. Gallegos, 1974-NMSC-102, 87 N.M. 161, 530 P.2d 1155. The appellate court will not award attorney fees where an appeal raises substantial questions concerning a decision of the personnel board. State ex rel. New Mexico State Hwy. Dep't v. Silva, 1982-NMCA-121, 98 N.M. 549, 650 P.2d 833. Attorney fees were properly not awarded pursuant to this rule, where the company cited no law for the proposition that attorney fees were recoverable as costs in a tort case. Dawley v. La Puerta Architectural Antiques, Inc., 2003-NMCA-029, 133 N.M. 389, 62 P.3d 1271. Costs not awarded. - Where the parties' agreement to split costs meant that the allowable costs incurred by defendant related to its appeal on the merits, and the allowable costs incurred by plaintiffs related to their cross-appeal on other issues, plaintiffs did not incur allowable costs as an appellee in defendant's appeal and neither party was entitled to recover costs relating to plaintiffs' cross-appeal because the court ruled in favor of each party on one issue therein. New Mexico Right to Choose/NARAL v. Johnson, 1999-NMSC-028, 127 N.M. 654, 986 P.2d 450. Supreme Court may recall mandate to add attorneys' fees. - The New Mexico supreme court may, upon its own motion or upon motion of any of the parties, recall its mandate to correct or clarify its inadvertent failure to award attorneys' fees. Central Adjustment Bureau, Inc. v. Thevenet, 1984-NMSC-083, 101 N.M. 612, 686 P.2d 954. Unfair Practices Act. - This rule and 57-12-10 C NMSA 1978 are not mutually exclusive. Aguilera v. Palm Harbor Homes, Inc., 2004-NMCA-120, 136 N.M. 422, 99 P.3d 672, cert. denied, 2004-NMCERT-010. Section 57-12-10 C NMSA 1978 allows the award of attorney fees in Unfair Practices Act cases, and this rule simply provides a procedure for requesting the appellate portion of those allowable fees. Aguilera v. Palm Harbor Homes, Inc., 2004-NMCA-120, 136 N.M. 422, 99 P.3d 672, cert. denied, 2004-NMCERT-010. Am. Jur. 2d, A.L.R. and C.J.S. references. - 5 Am. Jur. 2d Appellate Review § 909 et seq. Award of costs by appellate court as affected by subsequent proceedings or course of the action in the lower court, 116 A.L.R. 1152. Award of damages for dilatory tactics in prosecuting appeal in state court, 91 A.L.R.3d 661. Award of damages or costs under 28 USCS § 1912 or Rule 38 of Federal Rules of Appellate Procedure, against appellant who brings frivolous appeal, 67 A.L.R. Fed. 319. Award of costs in appellate proceedings in federal court under Rule 39 of Federal Rules of Appellate Procedure, 68 A.L.R. Fed. 494.