N.M. R. Civ. P. Dist. Ct. 1-054
N.M. R. Civ. P. Dist. Ct. 1-054
Committee commentary. - After the filing of the final judgment, upon request of the prevailing party, the clerk shall issue a transcript of judgment. Section 39-1-6 NMSA 1978.
ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-009, effective December 31, 2016, consolidated into one paragraph the language from former Subparagraphs (B)(1) and (B)(2), and made technical changes; in Paragraph (B), deleted the language in former Subparagraphs (B)(1) and (B)(2) and added the new language in Paragraph (B); in Subparagraph (D)(2)(e)(i), after the semicolon, deleted "or", and in Subparagraph (D)(2)(g), after "for services as", deleted "[limited]". The 2008 amendment, approved by Supreme Court Order No. 08-8300-011, effective May 23, 2008, added Item (iii) of Subparagraph (e) of Paragraph (2) of Subsection D and added the provision in Subparagraph (g) of Paragraph (2) of Subsection D that expert witness fees are recoverable when the court determines that the expert witness was reasonably necessary to the litigation. The 2000 amendment, effective February 1, 2001, in Paragraph D(1), substituted "other than" for "but not" preceding "attorneys' fees" and deleted "as a matter of course" preceding "to the prevailing party"; rewrote Paragraph D(2) by adding in the costs that are generally recoverable; renumbered Paragraph D(3) as D(4); and added present Paragraph D(3), pertaining to non-recoverable costs. The 1999 amendment, effective December 15, 1999, in Paragraph A, deleted "or, for the purpose of Paragraph B of this rule, any order that in effect stays proceedings or any part thereof until entered" in the first sentence; deleted the third sentence pertaining to " 'submission' as used in Paragraph B"; deleted Paragraph B, relating to the issuance of a judgment or order within 60 days of submission, renumbered Paragraphs C through E as present Paragraphs B through D; in Paragraph D, inserted the "(1)" designation, added the bold line "Costs other than attorney's fees" at the beginning, and deleted the last two sentences; and added Paragraphs D(2) through F. The 1996 amendment, effective October 1, 1996, inserted "submissions" in the rule heading; in Paragraph A, added the language beginning "or, for the purposes of Paragraph B" at the end of the first sentence and added the last sentence; and rewrote Paragraph B and Subparagraphs B(1) and B(2).
For computation of time for periods ten (10) days or less and periods eleven (11) days or more, see Rule 1-006(A) NMRA. For costs, see Sections 39-2-1 to 39-2-14 NMSA 1978. Compiler's notes. - Paragraph D and Rule 1-027 are deemed to have superseded 105-1301, C.S. 1929, as amended by Laws 1933, ch. 16, § 1, which was substantially the same. I. GENERAL CONSIDERATION. The principles of equity do not permit a defendant to assert a right of subrogation that the defendant acquires from the plaintiff's insurer. Sunnyland Farms, Inc. v. Central. N.M. Elec. Coop., Inc., 2013-NMSC-017, 301 P.3d 387, rev'g 2011-NMCA-049, 149 N.M. 746, 255 P.3d 324. Setoff of damages was contrary to public policy. - Where a fire destroyed plaintiff's hydroponic tomato facility; the day before the fire, defendant shut off electricity to the facility for nonpayment; defendant failed to give plaintiff the customary fifteen-day notice to pay the overdue bill before defendant suspended service; plaintiff's pumps were powered by electricity and without power, firefighters could not access well water to suppress the fire; plaintiff's insurer was a plaintiff in the case; defendant settled the insurer's claim by paying the insurer a sum of money and acquiring the insurer's subrogation lien against plaintiff; and the district court allowed defendant to offset the damages defendant owed to plaintiff by the full amount of the subrogation lien, the district court's offset of damages was contrary to New Mexico's public policy. Sunnyland Farms, Inc. v. Central N.M. Elec. Coop., Inc., 2013-NMSC-017, 301 P.3d 387, rev'g 2011-NMCA-049, 149 N.M. 746, 255 P.3d 324. Setoff was not precluded. - Where plaintiff, who purchased a commercial greenhouse operation to hydrophonically grow tomatoes, contracted with defendant for electrical power; the greenhouse was destroyed in a fire before plaintiff was able to plant its first crop; before the fire and without notifying plaintiff, defendant disconnected electrical power to the greenhouse for nonpayment of bills which prevented plaintiff from pumping water from its wells to quench the fire; plaintiff sued defendant for negligence; plaintiff's casualty insurer paid plaintiff for property damage and was made a party plaintiff in the case based on the insurer's subrogation rights; defendant settled with the insurer and the insurer released its claims against defendant and assigned its subrogation rights to defendant; and the district court allowed defendant a setoff of plaintiff's judgment against defendant in the amount of the insurer's payment to plaintiff, the collateral source rule did not apply to preclude the setoff. Sunnyland Farms, Inc. v. Central N.M. Elec. Coop., Inc., 2011-NMCA-049, 149 N.M. 746, 255 P.3d 324, cert. granted, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717. Express contract. - An express contract is to be enforced as written in regard to contractual obligations of the parties unless the court has determined that equity should override the express contract because of fraud, real hardship, oppression, mistake, unconscionable results, and the other grounds of righteousness, justice and morality. Arena Res., Inc. v. OBO, Inc., 2010-NMCA-061, 148 N.M. 483, 238 P.3d 357. Judgment granting equitable relief in action based on express contract. - Where plaintiff, who was the operating-interest owner, redeveloped an oilfield unit and sought reimbursement from defendant, who was a working-interest owner; plaintiff unilaterally redeveloped the unit without obtaining the consent of defendant as was required by the operating agreement of the parties; the redevelopment project increased oil and gas production, enhanced the unit, and netted favorable revenue consequences for defendant; although the district court concluded that plaintiff had breached the operating agreement, the court granted judgment for plaintiff based on unjust enrichment; plaintiff's action was for breach of contract and to enforce a contractual lien; plaintiff never asserted a claim for unjust enrichment, the case was not tried on the theory of unjust enrichment, and plaintiff did not request findings of fact and conclusions of law on unjust enrichment; and the court never mentioned the existence of any evidence or entered any findings of fact that supported its conclusion of unjust enrichment or otherwise provided any basis for invoking the unjust enrichment theory in the face of the parties' express contract, the court was not permitted to exercise its equitable powers to grant plaintiff relief under the equitable unjust enrichment theory of recovery. Arena Res., Inc. v. OBO, Inc., 2010-NMCA-061, 148 N.M. 483, 238 P.3d 357. Factors to consider in determining whether a jury award is excessive. - In determining whether a jury award is excessive, an appellate court must determine whether the evidence, viewed in the light most favorable to the plaintiff, substantially supports the award and, if any award is supported by substantial evidence, whether there is an indication of passion, prejudice, partiality, sympathy, undue influence or a mistaken measure of damages on the part of the fact-finder. If the award does not satisfy either of these tests, then all or some portion of the award is deemed excessive. Morga v. FedEx Ground Package Sys., 2018-NMCA-039, cert. granted. Jury award was not excessive. - In a wrongful death, personal injury, and loss of consortium case, where plaintiff's claims arose from a catastrophic automobile accident which caused the death of his wife and daughter and seriously injured his son, and where the jury returned a verdict for more than $165 million in compensatory damages, the district court did not abuse its discretion in denying defendants' motion for a new trial or remittitur of damages where there was no indication in the record that either testimony or argument incited improper passion or prejudice within the jury and where the evidence at trial supported the award of economic and non-economic damages, which included testimony regarding the value of the lost lives, the severe physical and emotional issues suffered by plaintiff due to the loss of society and companionship for the injuries and death of his family members, and the severe traumatic injuries suffered by his son. Morga v. FedEx Ground Package Sys., 2018-NMCA-039, cert. granted. Jury award was not excessive. - Where plaintiff, who was employed as a drilling rig floorhand, was injured when a tool owned and operated by defendant blew apart and fractured plaintiff's femur; surgery was required to set the fracture; plaintiff also had muscle and soft tissue damage; plaintiff was in the hospital for eight days and suffered pain; a functional capacity evaluation showed that plaintiff was physically capable of returning to very heavy work, but would have difficulty performing the work of a floorhand, derrickman or operator due to pain and weakness; as a result of the accident, plaintiff postponed plaintiff's wedding for two years; plaintiff had difficulty engaging in activities plaintiff enjoyed with plaintiff's fiancé, friends and family and was no longer able to engage in outdoor activities; because of the injuries, plaintiff had to accept a lower-paying job and plaintiff's income declined by about $30,000 annually; the jury found defendant to be solely at fault and awarded plaintiff damages of $2.2 million; plaintiff's special damages related to plaintiff's medical bills and lost wages totaling approximately $100,000; plaintiff did not sustain permanent muscle damage or bone deformation to plaintiff's leg; plaintiff's future pain and suffering would be limited to a dull ache during wet and cold weather, treatable with little or no medication; and the highest estimate of plaintiff's future earnings was $600,000, the evidence justified the amount awarded and was not grossly out of proportion to the evidence. Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, 146 N.M. 853, 215 P.3d 791. Extension of deadline. - Where plaintiff filed its bill of costs after the time limit of Rule 1-054 NMRA, but within the time limit of the applicable local district court rule, the time limits of Rule 1-054 NMRA control but the district court had discretion to extend the time for filing the bill of costs for excusable neglect. H-B-S Partnership v. Aircoa Hospitality Servs., Inc., 2008-NMCA-013, 143 N.M. 404, 176 P.3d 1136. Definition of "party". - These rules, as well as common understanding of what is meant by a party to a lawsuit, are inconsistent with the position that all parties on one side of a lawsuit are but one party. Romero v. Felter, 1972-NMSC-032, 83 N.M. 736, 497 P.2d 738. Trial court is given large measure of discretion under this rule. Davis v. Severson, 1963-NMSC-021, 71 N.M. 480, 379 P.2d 774. Delay in entering judgment. - In an action for divorce the trial court's failure to enter judgment prior to the death of husband over four months after the case was heard violated former Paragraph B(1) of this rule. State ex rel. Rivera v. Conway, 1987-NMSC-061, 106 N.M. 260, 741 P.2d 1381. Right to collateral attack. - Normal method of correcting trial errors, even as to constitutional questions, is by appeal, and collateral attack cannot serve as a substitute for the regular judicial process of appeal in the absence of circumstances indicating that a right to attack collaterally is needed to provide an effective means of preserving constitutional rights. State v. Garcia, 1969-NMSC-017, 80 N.M. 21, 450 P.2d 621. Appeal of jury verdict. - Where there is nothing in record indicating jury's verdict was result of mistake, passion, prejudice, sympathy or partiality, award will not be disturbed on appeal. Williams v. Yellow Checker Cab Co., 1967-NMSC-099, 77 N.M. 747, 427 P.2d 261. In awarding damages for pain and suffering or permanent injury to health, amount of awards necessarily rests with good sense and deliberate judgment of tribunal assigned by law to ascertain what is just compensation, and, in the final analysis, each case must be decided on its own facts and circumstances. Powers v. Campbell, 1968-NMSC-111, 79 N.M. 302, 442 P.2d 792. Excessive verdict. - Proof that there has been no present or future loss of earnings does not in itself make verdict excessive. Williams v. Yellow Checker Cab Co., 1967-NMSC-099, 77 N.M. 747, 427 P.2d 261. II. FINAL JUDGMENT. A. IN GENERAL. Motion to dismiss for lack of necessary, indispensable party. - Where the only order certified by the district court as a final order was the district court's order granting defendant's motion for summary judgment, the defendant's motion to dismiss the plaintiff's complaint for failure to name a necessary, indispensable party was not before the appellate court for review. Wood v. Cunningham, 2006-NMCA-139, 140 N.M. 699, 147 P.3d 1132, cert. denied, 2006-NMCERT-011. Purpose of rule. - This rule was adopted, not to prevent piecemeal appeals, but to permit them under certain circumstances even though a judgment technically lacked finality. Central-Southwest Dairy Coop. v. American Bank of Commerce, 1967-NMSC-231, 78 N.M. 464, 432 P.2d 820; Montoya v. Anaconda Mining Co., 1981-NMCA-113, 97 N.M. 1, 635 P.2d 1323. Where issues remained outstanding in case involving arbitration clause, court order was not final. Systems Technology, Inc v. Hall, 2004-NMCA-130, 136 N.M. 548, 102 P.3d 107. Implementation of 40-4-7 A NMSA 1978. - Paragraph E of this rule and Rule 1-127 NMRA appear to implement 40-4-7 A NMSA 1978. Bursum v. Bursum, 2004-NMCA-133, 136 N.M. 584, 102 P.3d 651. Decision to make judgment final and appealable is for trial court. Central-Southwest Dairy Coop. v. American Bank of Commerce, 1967-NMSC-231, 78 N.M. 464, 432 P.2d 820. Judgment lacking decretal language not final, appealable order. - Court "order" that made numerous findings of fact and rulings of law, including a finding that mother was entitled to child support payments and costs from father, but which failed to specifically order that judgment be entered for mother, and did not contain the signatures or initials of the parties' attorneys, was not a final, appealable order because of its lack of decretal language. Khalsa v. Levinson, 1998-NMCA-110, 125 N.M. 680, 964 P.2d 844. Nondecretal order held to be incurable. - While lack of decretal language can sometimes be cured by remand to make an order final, it was impossible to do so where the trial judge was no longer serving on the bench and numerous unresolved issues relating to each claim of relief were intertwined with the court's findings. Khalsa v. Levinson, 1998-NMCA-110, 125 N.M. 680, 964 P.2d 844. Court letter describing marital property not appealable order. - Trial court's letter informing the parties that the husband's certified public accountant business would be characterized as a community asset was not a final order from which the husband could appeal. Mitchell v. Mitchell, 1986-NMCA-028, 104 N.M. 205, 719 P.2d 432. Dismissal without prejudice is not final order and is not appealable. Ortega v. Transamerica Ins. Co., 1977 -NMCA-106, 91 N.M. 31, 569 P.2d 957; Montoya v. Anaconda Mining Co., 1981-NMCA-113, 97 N.M. 1, 635 P.2d 1323. The effect of a dismissal without prejudice implies further proceedings. Montoya v. Anaconda Mining Co., 1981-NMCA-113, 97 N.M. 1, 635 P.2d 1323. Appealability of summary judgments. - Where one plaintiff and one defendant are involved, summary judgment is a final judgment and appealable. Mabrey v. Mobil Oil Corp., 1972-NMSC-023, 84 N.M. 272, 502 P.2d 297, cert. denied, 83 N.M. 740, 497 P.2d 742. Summary judgment was not an appealable order when rendered because there was not express determination making it a final judgment; however, it became an appealable final judgment upon the entry of the judgment. Mabrey v. Mobil Oil Corp., 1972-NMSC-023, 84 N.M. 272, 502 P.2d 297, cert. denied, 83 N.M. 740, 497 P.2d 742. Where a summary judgment adjudicates all of plaintiffs' claims against the defendant and does not provide that it is not final, then the summary judgment is an appealable final judgment under this rule. Stotlar v. Hester, 1978-NMCA-067, 92 N.M. 26, 582 P.2d 403, cert. denied, 92 N.M. 180, 585 P.2d 324. Judgment on directed verdict. - Where, in entering judgment on directed verdict, trial court does not make an express determination and does not give an express direction, it retains jurisdiction to revise the judgment at any time before entry of judgment adjudicating all the claims, and because power to alter judgment is reserved, judgment is not one that practically disposes of the merits of the action, and judgment is not appealable. Nichols v. Texico Conference Ass'n of Seventh Day Adventists, 1967-NMCA-012, 78 N.M. 310, 430 P.2d 881. Dismissal of a third cause of action, where the trial court found for the intervenors, was partial but final judgment under this rule. State ex rel. Overton v. State Tax Comm'rs, 1969-NMSC-164, 80 N.M. 780, 461 P.2d 913. Judgment directed on order to dismiss counterclaim was final and appealable under Subdivision (b), where order recited no reason to delay entry of order and directed that judgment should be entered. Mutual Bldg. & Loan Ass'n v. Fidel, 1968-NMSC-015, 78 N.M. 673, 437 P.2d 134. Judgment final even though cost determination pending. - The pendency of a proceeding solely to determine the amount of costs does not render an otherwise final judgment nonfinal. Schleft v. Board of Educ., 1988-NMCA-010, 107 N.M. 56, 752 P.2d 248. Issues collateral to and separate from adjudication of the merits of the action will not destroy the finality of a judgment. - Where qui tam plaintiffs, in an appeal of the district court's approval of settlements in a qui tam action under the Fraud Against Taxpayers Act, 44-9-1 to -14 NMSA 1978, argued that the district court's orders dismissing the defendants from the case were not final appealable orders because the orders did not adjudicate the share of the settlement that should be awarded to the qui tam plaintiffs or the amount of attorney fees that should be paid by the defendants, the pendency of the award issues did not render the dismissal order non-final, because the calculation of a qui tam plaintiff's award is subsequent to and supplementary to adjudication of the merits of a qui tam action or resolution by settlement, and where a post-judgment request, such as one for attorney fees, raises issues collateral to and separate from the decision on the merits, such a request will not destroy the finality of the decision. N.M. State Inv. Council v. Weinstein, 2016-NMCA-069, cert. denied. Interlocutory judgment. - Where further action of trial court is necessary to complete relief contemplated, judgment is interlocutory only and in such cases, supreme court lacks jurisdiction to consider the appeal. Carpenter v. Merrett, 1970-NMSC-148, 82 N.M. 185, 477 P.2d 819. Default judgment entered against one of two defendants under former version of this rule, where no express determination was made that there was no just cause for delay (as was required prior to 1973 amendment in cases involving multiple parties), was interlocutory, and could be set aside or affirmed in the judicial discretion of the trial court, since the issue of a meritorious defense was only applicable where defendant sought to set aside final judgment under Rules 55(c) and 60(b) (see now Rules 1-055 and 1-060 ). Brown v. Lufkin Foundry & Mach. Co., 1971-NMCA-116, 83 N.M. 34, 487 P.2d 1104. When final distribution has not been made of funds adjudged to be paid, the judgment recites that it is a "partial" judgment, and there is a total absence of an "express direction" that the judgment should be filed, the judgment is not final and appealable. Central-Southwest Dairy Coop. v. American Bank of Commerce, 1967-NMSC-231, 78 N.M. 464, 432 P.2d 820. Order setting aside and holding for naught a default judgment is a "final judgment" and appealable, as is an order overruling defendant's motion to set aside a default judgment. Gengler v. Phelps, 1976-NMCA-114, 89 N.M. 793, 558 P.2d 62. Subfile orders are final. - A subfile order, which is an adjudication of water rights as between the state and the applicant only, of all water rights issues between the state and the applicant may be given the presumption of finality accorded adjudications involving "multiple parties" under Paragraph B(2). State ex rel. State Eng'r v. Parker Townsend Ranch Co., 1994-NMSC-125, 118 N.M. 780, 887 P.2d 1247. The state is precluded from challenging the provisions of a subfile order it agreed to and requested the court to enter unless the state moves to amend such order under Rule 1-060B NMRA. State ex rel. Martinez v. Parker Townsend Ranch Co., 1992-NMCA-135, 118 N.M. 787, 887 P.2d 1254. Decree followed by supplemental final order not appealable. - In absence of express determination that there was no just reason for delay, court's final decree in quiet title suit involving multiple claims was not appealable, where it was followed by supplemental final order awarding certain tracts, excluding certain property awarded in prior decree, and finalizing determination of overlap. Leal v. Leal, 1970-NMSC-166, 82 N.M. 263, 479 P.2d 767. Judgment entered in a quiet title action was a final appealable order where it settled claims between plaintiff and two defendants and where a determination of lien rights of other defendants involving the subject property would not affect the respective claims between plaintiff and the former defendants. Tres Ladrones, Inc. v. Fitch, 1999-NMCA-076, 127 N.M. 437, 982 P.2d 488, cert. denied, 127 N.M. 391, 981 P.2d 1209. Order of judicial sale not appealable. - An order granting defendant's Rule 60(b) (see now Rule 1-060 NMRA) motion and ordering a judicial sale was not a final, appealable order, where further action was contemplated by the trial court, i.e., the foreclosure and sale of a vehicle and a determination of the method of distributing the proceeds of the sale. Waisner v. Jones, 1986-NMCA-005, 103 N.M. 749, 713 P.2d 565, rev'd on other grounds, 1988-NMSC-049, 107 N.M. 260, 755 P.2d 598. Appellate court may dismiss defective appeal on own motion. - Even in the absence of a challenge to the sufficiency of an interlocutory appeal, an appellate court will on its own motion dismiss a defective appeal on jurisdiction grounds. Montoya v. Anaconda Mining Co., 1981-NMCA-113, 97 N.M. 1, 635 P.2d 1323. Court looks to substance of judgment in making determination. - In determining whether there is a final judgment or order, the appellate court looks to the substance, and not to the form, of the judgment or order. Montoya v. Anaconda Mining Co., 1981-NMCA-113, 97 N.M. 1, 635 P.2d 1323. Right to appeal lost by acquiescing in judgment. - When defendant consented to the entry of summary judgment against him, he thereby acquiesced in the judgment and lost his right to appeal. It follows that, since the purpose of this rule is to give notice to a party that a judgment or order is "final," so as to allow immediate appeal, its provisions never became applicable, and defendant could not be heard to complain that requirements of the rule were not satisfied. Gallup Trading Co. v. Michaels, 1974-NMSC-048, 86 N.M. 304, 523 P.2d 548. B. MULTIPLE CLAIMS. Discretion of court. - The determination of whether there is no just reason for delay lies in the sound discretion of the trial court, and the trial court's determination will not be disturbed absent an abuse of discretion. Navajo Ref. Co. v. Southern Union Ref. Co., 1987 -NMSC-033, 105 N.M. 616, 735 P.2d 533; Roselli v. Rio Communities Serv. Station, Inc., 1990-NMSC-018, 109 N.M. 509, 787 P.2d 428. The trial court should not certify judgments for immediate appeals merely to put off further work on a case or to accommodate counsel's wishes; in a close case, the trial court should decide against certifying a judgment for immediate appeal. Sundial Press v. City of Albuquerque, 1992-NMCA-068, 114 N.M. 236, 836 P.2d 1257. Discretion abused where conflicting claims unresolved. - Trial court abused its discretion in finding that there was no just reason for delay of entry of judgment, where although the claims and counterclaims asserted by the parties were intertwined in many respects, several conflicting claims remained unresolved. Banquest/First Nat'l Bank v. LMT, Inc., 1987-NMSC-021, 105 N.M. 583, 734 P.2d 1266. Adjudication of less than all claims. - Under the rule, where action involves multiple claims, an order or decision is not final if it adjudicates less than all of the claims in the action, unless the trial court makes (1) an express determination that there is no reason for delay, and (2) an express direction for entry of judgment. Absent such express determination and order, a multiple claims action is treated in its entirety as a single judicial unit, and the adjudication of one or more of such multiple claims, but less than all of them, is not a final judgment or order, and therefore, is not appealable. Aetna Cas. & Sur. Co. v. Miles, 1969-NMSC-056, 80 N.M. 237, 453 P.2d 757. Where there were multiple claims and no determination by the court making summary judgment final as to two defendants, court retained jurisdiction and had authority to revise it at any time before entry of judgment adjudicating the last of the multiple claims. Barnett v. Cal M, Inc., 1968-NMSC-159, 79 N.M. 553, 445 P.2d 974. This rule scrupulously recognizes statutory requirement of a final decision before appellate court can exercise its jurisdiction. Judgment or order entered on fewer than all claims asserted against a party, absent express determination by the court that there is no just reason for delay, is not a final order and hence not appealable. Ortega v. Transamerica Ins. Co., 1977 -NMCA-106, 91 N.M. 31, 569 P.2d 957. Where judgment was entered in favor of lien-claimants, but plaintiff 's claim was undetermined, judgment appeared to be one entered upon fewer than all of the claims and not upon the express determination that there was no just reason for delay, it was not a final judgment from which an appeal will lie to supreme court. Mock Homes, Inc. v. Wakely, 1970-NMSC-152, 82 N.M. 179, 477 P.2d 813. Trial Court properly denied plaintiff's motion to reopen judgment on theory that previous court's order dismissing plaintiff's claim with prejudice affected fewer than all claims presented and adjudicated issues pertaining to fewer than all parties, since previous court's order covered all claims of all parties. Marquez v. Tome Land & Imp. Co., 1974-NMCA-045, 86 N.M. 317, 523 P.2d 815. Final property judgment in petition for dissolution of marriage was not final so as to allow appellate review where court failed to determine parties' rights to custody, support and visitation of minor children, as requested by pleading, and failed to determine that there was no just reason for delay before its decision would be final enough to allow appellate review. Thornton v. Gamble, 1984-NMCA-093, 101 N.M. 764, 688 P.2d 1268. An order that adjudicates fewer than all the claims between the parties is not final. High Ridge Hinkle Joint Venture v. City of Albuquerque, 1994-NMCA-139, 119 N.M. 29, 888 P.2d 475, aff'd, 1997-NMCA-046, 123 N.M. 394, 940 P.2d 1189. Although a court may enter a final appealable judgment as to fewer than all of the counts in a petition, it can do so only upon an express determination that there is no just reason for delay. High Ridge Hinkle Joint Venture v. City of Albuquerque, 1994-NMCA-139, 119 N.M. 29, 888 P.2d 475, aff'd, 1997-NMCA-046, 123 N.M. 394, 940 P.2d 1189. An order that sends some of the claims to arbitration and retains other claims for resolution by the district court without finally resolving any of the claims between the parties is not final unless the district court certifies it under Subparagraph (1) of Paragraph B of this rule by determining that there is no just reason for delay and directing that judgment be entered. Collier v. Pennington, 2003-NMCA-064, 133 N.M. 728, 69 P.3d 238. What constitutes separate claim. - To determine the existence of separate claims, the trial court should use a modified transaction oriented analysis. The Court should take into account whether the claims seek the same result, arise out of a common factual nucleus, and whether the claims are so inextricably intertwined that difficulties would result if appealed separately. Sundial Press v. City of Albuquerque, 1992-NMCA-068, 114 N.M. 236, 836 P.2d 1257. An order disposing of the issues contained in the complaint but not the counterclaim is not a final judgment. Watson v. Blakely, 1987-NMCA-147, 106 N.M. 687, 748 P.2d 984, overruled on other grounds, Kelly Inn No. 102, Inc. v. Kapnison, 1992-NMSC-005, 113 N.M. 231, 824 P.2d 1033. Term "claim" as used in Paragraph B of this rule has a technical meaning that is determined by a modified transaction-oriented analysis and thus cannot be treated as synonymous with "cause of action." Collier v. Pennington, 2003-NMCA-064, 133 N.M. 728, 69 P.3d 238. Claim must be disposed of by judgment. - Findings and conclusions which dispose of a claim, but which are not carried forward and incorporated in the judgment, generally have no effect. Watson v. Blakely, 1987-NMCA-147, 106 N.M. 687, 748 P.2d 984, overruled on other grounds, Kelly Inn No. 102, Inc. v. Kapnison, 1992-NMSC-005, 113 N.M. 231, 824 P.2d 1033. Dismissal of issue affecting claims. - The court's denial of a motion to dismiss was not a final appealable judgment as to any of plaintiffs' or defendant's claims. The order did not dismiss any of those claims, but merely disposed of an issue affecting those claims. Accordingly, the defendant's later appeal from the denial of the motion was neither waived nor untimely. Blea v. Sandoval, 1988-NMCA-036, 107 N.M. 554, 761 P.2d 432. Paragraph B(1) cannot be used to sanction the appeal of a partial adjudication of a single claim or claims. Graham v. Cocherell, 1987-NMCA-013, 105 N.M. 401, 733 P.2d 370. Decision that is "final" within Paragraph B(1) does not necessarily mean last order possible in a case; whether a decision is final may be at times a close question, since it is difficult to devise a formula to resolve all marginal issues coming within the scope of finality. Montoya v. Anaconda Mining Co., 1981-NMCA-113, 97 N.M. 1, 635 P.2d 1323. Judgment not "final" unless all necessary issues determined. - A judgment or order is not "final" unless all the issues of law and of fact necessary to be determined have been determined, and the case has been completely disposed of so far as the court has the power to dispose of it. Montoya v. Anaconda Mining Co., 1981-NMCA-113, 97 N.M. 1, 635 P.2d 1323. Where court's order granting summary judgment dismissed all claims directed by plaintiffs, it was a final order. Sam v. Estate of Sam, 2004-NMCA-018, 135 N.M. 101, 84 P.3d 1066. Order is fatally defective as a final order where: (1) it was entered "without prejudice"; and (2) it failed to contain a determination by the trial court that there is no just reason for delay in the prosecution of the appeal. Montoya v. Anaconda Mining Co., 1981-NMCA-113, 97 N.M. 1, 635 P.2d 1323. Final judgment order held erroneous. - Trial court abused its discretion in making a determination that there was no just reason to delay entering final judgment, where the issues determined by a summary judgment and some of unadjudicated issues were interrelated and, because of the numerous claims and counterclaims, the amounts which might ultimately be owned after setoff were uncertain. Navajo Ref. Co. v. Southern Union Ref. Co., 1987 -NMSC-033, 105 N.M. 616, 735 P.2d 533. This rule was held inapplicable where trial court, in rendering default judgment for plaintiff, held in abeyance the matter of any other damages to which plaintiffs were entitled against the defendant until trial of the issues between plaintiffs and the other defendant. Chronister v. State Farm Mut. Auto. Ins. Co., 1960 -NMSC-067, 67 N.M. 170, 353 P.2d 1059. Summary judgment order, authorizing amendment to counterclaim, not final. - Although summary judgment disposed of all issues in connection with original complaint and counterclaim, where the same order authorized defendant to amend the counterclaim, "all" claims were not disposed of so that it was not a final judgment. City of Albuquerque v. Jackson, 1984-NMCA-062, 101 N.M. 457, 684 P.2d 543. Appellate review of certification for immediate appeal. - Appellate review of the trial court's discretion in certifying an immediate appeal is to assure that the trial court considers appropriate factors in certifying that there is no just reason to delay finality of a claim; the question is whether the trial court's consideration of the appropriate factors was reasonable in light of the policies of the applicable rule. Sundial Press v. City of Albuquerque, 1992-NMCA-068, 114 N.M. 236, 836 P.2d 1257. C. MULTIPLE PARTIES. Final order as to one plaintiff. - Where both plaintiffs were parties to counts I through III of the complaint; plaintiff Bigbyte was not a party to count IV; the parties dismissed count III; the district court granted summary judgment against plaintiffs on counts I and II; count IV remained pending before the district court; and the district court's summary judgment provided that the summary judgment did not practically dispose of the merits of the case, but did finally dispose of the claims raised in counts I and II; that the summary judgment involved a controlling question of law as to which there was a substantial ground for differences of opinion, and that "an immediate appeal from the summary judgment may materially advance the ultimate termination of litigation and there is no just cause for delay"; the summary judgment was a final judgment as to Bigbyte because all of Bigbyte's claims had been disposed of, and the summary judgment did not contain express language stating that the summary judgment was not a final order as to Bigbyte. Santa Fe Pac. Trust, Inc. v. City of Albuquerque, 2012-NMSC-028, 285 P.3d 595. Final order. - Where the court adjudicated all issues regarding one of the defendants when it entered its order to dismiss on December 10, 2003, as that defendant had not filed a counterclaim against plaintiff, and the court's dismissal of plaintiff's amended complaint resolved all the claims involving the defendant, pursuant to Paragraph B(2) of this rule, the December 10 order was final as to that defendant. Healthsource, Inc. v. X-Ray Assocs., 2005-NMCA-097, 138 N.M. 70, 116 P.3d 861, cert. denied, 2005-NMCERT-007. In personal injury suit against two defendants, if determination of the issues relating to one defendant will or may affect the determination of the issues relating to another defendant, the judgment in favor of the first is not appealable under Rule 3, N.M.R. App. P. (Civ.) (see now Rules 12-201 and 12-203 NMRA), and if such interrelationship exists, there is but one claim against both defendants and if there is but one claim, the judgment in favor of the first defendant is neither a final judgment on that claim nor an interlocutory order which practically disposes of the merits of the action. Nichols v. Texico Conference Ass'n of Seventh Day Adventists, 1967-NMCA-012, 78 N.M. 310, 430 P.2d 881. Default judgment awarding damages on negligence complaint invalid. - Where a complaint alleges that two employees and, vicariously, their employer were negligent and the employees fail to answer the complaint, a default judgment is valid as to the issue of the employees' liability, but invalid insofar as it awards damages. United Salt Corp. v. McKee, 1981-NMSC-052, 96 N.M. 65, 628 P.2d 310. Default judgment absent notice and hearing not final adjudication. - A default judgment, absent notice and hearing or an opportunity to be heard, is not an adjudication of all issues as intended by Paragraph B(2). United Salt Corp. v. McKee, 1981-NMSC-052, 96 N.M. 65, 628 P.2d 310. Uninjured defendant cannot appeal default judgment against other defendants. - Where there is no substantial reason for believing that a defendant will be prejudiced or injured by a final default judgment entered in error against other defendants, the defendant has no standing to appeal that judgment. McKee v. United Salt Corp., 1980-NMCA-175, 96 N.M. 382, 630 P.2d 1237, aff'd in part, rev'd on other grounds, 1981-NMSC-052, 96 N.M. 65, 628 P.2d 310. Even where judgment may affect remaining defendants' liability, decision not reversed. - Where the trial court has entered a final default judgment against some but not all of the defendants, the determination is technically erroneous where it will or may affect the liability of the remaining defendants. A reviewing court will not reverse the trial court's decision, however, in the absence of an abuse of discretion, when there are sound judicial reasons for the decision. McKee v. United Salt Corp., 1980-NMCA-175, 96 N.M. 382, 630 P.2d 1237, aff'd in part, rev'd on other grounds, 1981-NMSC-052, 96 N.M. 65, 628 P.2d 310. Judgment dismissing all claims of one party is final at that time, and such party cannot wait until the remaining claims are concluded before appealing. Seaboard Fire & Marine Ins. Co. v. Kurth, 1980-NMCA-112, 96 N.M. 631, 633 P.2d 1229. Order holding parties jointly and severally liable. - Order entered in show cause hearing, because of attorney's and client's failure to obey court order in main action, which held attorney and client jointly and severally liable for attorney's fees, was final judgment appealable under Rule 3(a)(1), N.M.R. App. P. (Civ.) (see now Rules 12-201 and 12-203 NMRA) as to attorney since proceeding against him was independent of main action. Although order, as to client, was not viewed as having been entered in proceeding independent of main action, since no final judgment has been entered against client nor have all issues been decided against client in main action, since it was joint and several, it was held appealable on same basis as order against attorney. Miller v. City of Albuquerque, 1975-NMCA-099, 88 N.M. 324, 540 P.2d 254, cert. denied, 88 N.M. 318, 540 P.2d 248. Interlocutory nature of order dismissing third party defendants. - Trial court's order granting dismissal of third party defendants which defendants sought to implead was interlocutory in nature if not in form, since the trial court had implicitly ruled that defendant's answer raised an adequate defense. Wilson v. Gillis, 1986-NMCA-112, 105 N.M. 259, 731 P.2d 955. Supplemental order as to third-party plaintiffs, defendants. - Before 1973 amendment to this rule, which changed procedure involving multiple parties, supplemental order and judgment granted third-party plaintiff against third-party defendant, reducing previous judgment, was not appealable as final judgment absent express determination that there was no just reason for delay and direction for entry of final judgment. Voison v. Kantor, 1970-NMSC-078, 81 N.M. 560, 469 P.2d 709. Order setting aside default judgment as to one of two defendants is final and appealable under this rule. Gengler v. Phelps, 1976-NMCA-114, 89 N.M. 793, 558 P.2d 62. "No just reason for delay". - Paragraph B(2), unlike Paragraph B(1), does not require that the trial court expressly find there is "no just reason for delay". Rivera v. King, 1988-NMCA-093, 108 N.M. 5, 765 P.2d 1187. III. DEMAND FOR JUDGMENT. Relationship between prayer for relief and cause of action. - While a prayer for relief may be helpful in specifying the contentions of the parties, it forms no part of the pleader's cause of action, and the prevailing party should be given whatever relief he is entitled to under the facts pleaded and proved at trial. Lett v. Westland Dev. Co., 1991 -NMSC-069, 112 N.M. 327, 815 P.2d 623. Relationship between pleadings and recovery. - Judgment may not grant relief which is neither requested by the pleadings nor within the theory on which the case was tried. Holmes v. Faycus, 1973-NMCA-147, 85 N.M. 740, 516 P.2d 1123. Judgment may not grant relief which is neither requested by the pleadings nor within the theory on which the case was tried. Federal Nat'l Mtg. Ass'n v. Rose Realty, Inc., 1968-NMSC-102, 79 N.M. 281, 442 P.2d 593. Divorce decree granting wife as alimony the difference between value of the community property which she received and the value of the community property which the husband received was affirmed, despite the fact that alimony was not demanded in the wife's petition as required by Paragraph C in judgment by default, since essential nature of decree was an equitable division of the community property of the parties, for which the wife had petitioned. Worland v. Worland, 1976-NMSC-027, 89 N.M. 291, 551 P.2d 981. Recovery should be allowed on quantum meruit even though suit was originally framed on express contract; amendment to pleadings should be freely allowed to accomplish that purpose at any stage of the proceeding, including considering the pleadings amended to conform to the proof. State ex rel. Gary v. Fireman's Fund Indem. Co., 1960 -NMSC-100, 67 N.M. 360, 355 P.2d 291. Although a plaintiff did not request a deficiency judgment in her pleadings, the district court did not exceed the scope of the pleadings when it awarded a deficiency judgment against the defendants should the sale of the corporate assets in issue not fully satisfy the judgment. Wilburn v. Stewart, 1990-NMSC-039, 110 N.M. 268, 794 P.2d 1197. The pleadings are not dispositive of the issues, and recovery may be found on other grounds not specifically stated in the complaint. Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 1990-NMSC-100, 111 N.M. 6, 800 P.2d 1063. Amendment of plaintiff's pleadings after default. - This rule is derived from Rule 54(c), Federal Rules of Civil Procedure, and refers to problems of amending pleadings in a default judgment. The statute applies to the situation in which an action is commenced, default occurs and the plaintiff subsequently amends his pleadings. Under these circumstances, no default judgment can be entered unless the defendant is notified of the amended pleading. Richins v. Mayfield, 1973-NMSC-099, 85 N.M. 578, 514 P.2d 854. Notice of amendment of pleadings. - Neither this rule nor Rule 5(a) (see now Rule 1-005 NMRA), pertaining to service of pleadings, entitles defendant to notice that pleadings have been amended to allege gross negligence rather than negligence against defendant where there was no showing that the damages rested upon this charge and no relief was sought from the damages. Gurule v. Larson, 1967-NMSC-249, 78 N.M. 496, 433 P.2d 81. Possession of land preceding default judgment. - Where default judgment was not changed in kind or exceeded by the trial court's later action, nor did plaintiff attempt to substantially amend his pleadings, and as trial court did not grant plaintiff-appellee possession of the partnership land since possession already had occurred, this rule does not apply. Richins v. Mayfield, 1973-NMSC-099, 85 N.M. 578, 514 P.2d 854. Award of prejudgment interest. - The district court may grant an award of prejudgment interest even if the party entitled to recover has not included a demand for such relief in his pleadings. Foster v. Luce, 1993-NMCA-035, 115 N.M. 331, 850 P.2d 1034. An award of prejudgment interest will not be precluded merely because a party fails to request specifically such an award. Taylor v. Allegretto, 1994-NMSC-081, 118 N.M. 85, 879 P.2d 86. IV. COSTS. Time to file cost bill. - Where plaintiff filed a bill of costs before the entry of judgment; defendant did not object to the cost bill within ten days and the clerk of the court taxed the costs to defendant; at a hearing on the entry of a final judgment, defendant objected to inclusion of the taxable costs in the final judgment; and the district court quashed the clerk's entry of costs and held that plaintiff was not required to resubmit its cost bill, that the cost bill would be considered as entered at the same time as the judgment, and that the ten-day objection period would run from the date of the entry of the final judgment, the district court did not err in its ruling and had authority to consider anew the issue of the amount of costs. Helena Chem. Co. v. Uribe, 2013-NMCA-017, 293 P.3d 888, cert. denied, 2012-NMCERT-012. Summary judgment. - Where defendants obtained summary judgment in a toxic tort action, defendants were entitled to recover expert witness fees for witnesses whose affidavits and testimony were material to the award of summary judgment for defendants and to the exclusion of the testimony of plaintiff's expert witnesses and whose testimony was not cumulative. Andrews v. U.S. Steel Corp., 2011-NMCA-032, 149 N.M. 461, 250 P.3d 887. Attorney fees. - Where plaintiff was successful on certain claims brought against defendant, but was not successful on an Unfair Trade Practices Act claim; the court ruled that defendant was only entitled to attorney fees incurred in defending the Unfair Trade Practices Act claim; and defendant did not identify what portion of defendants' attorney fees were attributable to defending the Unfair Trade Practices Act or demonstrate that it was difficult or impossible to segregate the work of defending the Unfair Trade Practices Act claim from plaintiff's other claims, the court did not abuse its discretion in ruling that defendant was not entitled to any attorney fees. Dean v. Brizuela, 2010-NMCA-076, 148 N.M. 548, 238 P.3d 917. Attorney fees against the State held proper. - Attorney fees are appropriate to vindicate the court's judicial authority. Courts have the power to award attorney fees as a sanction for bad faith or vexatious litigation or for defiance of a court order. Attorney fees against the state are permissible when the state defies a court order, not just for frivolous or vexatious claims. State ex rel. Children, Youth & Families Dep't. v. Mercer-Smith, 2015-NMCA-093, cert. granted, 2015-NMCERT-008. The district court did not abuse its discretion in the award of attorney fees to respondents where the Children, Youth and Families Department (CYFD) defied the district court's placement order prohibiting CYFD from placing children with their former counselors where such placement created dual relationships, which were forbidden by the code of ethics for counselors and therapists, and where there was expert testimony from a psychologist that any possibility of future reconciliation of the children and their parents would be significantly lessened if they were to reside with the former counselors, and where evidence was presented that CYFD knew that the placement order prohibited the counselors from being caretakers of the children and that CYFD nevertheless arranged for the children to spend the majority of their waking hours either in school or with the former counselors, and that CYFD, as an agency engaged in activity and took direct actions that were in contempt of the placement order. State ex rel. Children, Youth & Families Dep't. v. Mercer-Smith, 2015-NMCA-093, cert. granted, 2015-NMCERT-008. District court is required to enforce attorney fees provision. - Where the seller sold a home that had construction defects to the purchaser; the purchaser sued the seller, seller's broker and the purchaser's brokers; the purchase agreement provided that the prevailing party in litigation concerning any aspect of the purchase agreement, including the purchaser's brokers, was entitled to an award of reasonable attorney fees; and the district court awarded summary judgment for the purchaser's brokers, but refused to award the purchaser's brokers their attorney fees, as required by the purchase agreement, because the purchaser's brokers' defense was provided by their insurer, the district court erroneously failed to award attorney fees to the purchaser's brokers because the attorney fees provision of the purchase agreement required the district court to award reasonable attorney fees to the purchaser's brokers as the prevailing parties. Varga v. Ferrell, 2014-NMCA-005, cert. denied, 2013-NMCERT-012. Opportunity to respond to motion for attorney fees. - Under Subparagraph E(3) of this Rule, a party opposing a motion for attorney fees must be afforded an opportunity to respond. Dollens v. Wells Fargo Bank, 2015-NMCA-096. Where the district court ordered that the issue of fees would not be litigated until after entry of judgment and after determination of liability in a claim under the Unfair Practices Act, but where plaintiff submitted an attorney fee affidavit before the court issued its judgment or concluded whether attorney fees would even be available under any or all statutory claims, the district court erred in awarding attorney fees before affording the parties an opportunity to actually litigate the reasonableness of attorney fees, and defendant did not waive his right to respond to the attorney fee affidavit by adhering to the court's order not to litigate the issue until after liability was established. Dollens v. Wells Fargo Bank, 2015-NMCA-096. Not applicable in administrative hearings. - Rule 1-054 NMRA does not govern the award of costs in an administrative disciplinary action under the Uniform Licensing Act. New Mexico Bd. of Veterinary Med. v. Riegger, 2006-NMCA-069, 139 N.M. 679, 137 P.3d 619, cert. granted, 2006-NMCERT-006. 1999 amendment inapplicable. - Where an amendment to the Rules of Civil Procedure, approved by the Supreme Court on October 27, 1999, was effective for cases filed on or after December 15, 1999, because plaintiffs filed an action in November, 1998, amended Paragraph D(2)(g) of this rule would not apply. Fernandez v. Española Pub. Sch. Dist., 2004 -NMCA-068, 135 N.M. 677, 92 P.3d 689, cert. granted, 2004-NMCERT-006. Paragraph D and Rule 1-068 NMRA. - A plaintiff who recovers a judgment is the prevailing party and entitled to recover his or her costs, at least as incurred before the defendant makes a Rule 1-068 NMRA offer of judgment. Dunleavy v. Miller, 1993-NMSC-059, 116 N.M. 353, 862 P.2d 1212. Paragraph D does not apply when statute expressly provides for award of costs. - The trial court did not err in making an award of costs without notice to defendants pursuant to Paragraph D, since that paragraph, by its own terms, does not apply when a statute expressly provides for an award of costs. Paternoster v. La Cuesta Cabinets, Inc., 1984-NMCA-097, 101 N.M. 773, 689 P.2d 289. Paragraph D(2) correctly sets out the law relating to recoverable costs of expert witnesses. Fernandez v. Española Pub. Sch. Dist., 2005 -NMSC-026, 138 N.M. 283, 119 P.3d 163. Costs are defined as "statutory allowance to a party for his expenses incurred in an action." Mills v. Southwest Bldrs., Inc., 1962-NMSC-115, 70 N.M. 407, 374 P.2d 289. "To the prevailing party" defined. - The phrase "to the prevailing party" in Paragraph D means the party who wins the lawsuit. South v. Lucero, 1979-NMCA-046, 92 N.M. 798, 595 P.2d 768, cert. denied, 92 N.M. 675, 593 P.2d 1078. The threshold question in determining if a party is entitled to an award of costs under Paragraph D is whether the party requesting costs is the prevailing party; the prevailing party is the party who wins the lawsuit; that is, a plaintiff who recovers a judgment or a defendant who avoids an adverse judgment. Marchman v. NCNB Tex. Nat'l. Bank, 1995-NMSC-041, 120 N.M. 74, 898 P.2d 709. Plaintiff who won judgment less than that proffered by defendant was nonetheless the "prevailing party" and entitled to costs from defendant. Gilmore v. Duderstadt, 1998-NMCA-086, 125 N.M. 330, 961 P.2d 175. One recovering judgment, but reduced in amount by damages awarded in recoupment, was the prevailing party and should recover costs under former law. State Trust & Sav. Bank v. Hermosa Land & Cattle Co., 1925-NMSC-037, 30 N.M. 566, 240 P. 469. Costs awarded to party supporting valuation determined by court. - Where central issue is valuation of plaintiff's interest in an LLC and where trial court entered judgment for plaintiff on the amount defendant agreed was the value of plaintiff's interest, rather than on higher amount claimed by plaintiff, defendant was the prevailing party for purpose of awarding costs to defendant. Mayeux v. Winder, 2006-NMCA-028, 139 N.M. 235, 131 P.3d 85. Costs against state allowed under 39-3-30 NMSA 1978. - The legislature, in 39-3-30 NMSA 1978, 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. Costs taxed against the state engineer. - The plain meaning of Section 72-7-1(D) NMSA 1978 allows district courts to tax costs in the same way and against anyone subject to a cost award in cases brought in the district court. The natural meaning of the language used in Subsection D of this section is to assign the taxation of costs against the party who loses the appeal, regardless of the party's identity, and therefore the district court did not act outside its authority in taxing applicant's costs against the state engineer. Santa Fe Water Res. All. v. D'Antonio, 2016-NMCA-035, cert. denied. Court clerk's responsibility. - This rule tasks the clerk of court with the responsibility of determining whether a specific cost is allowed by law and then creates a presumption that those costs are to be taxed against the losing party. A district court judge only becomes involved when the losing party files objections to the prevailing party's bill of costs. Where the state engineer argued that the district court judge should consider the propriety of a cost award even without objections from the losing party, the district court did not abuse its discretion in rejecting this argument because it is the losing party's responsibility to identify aspects of the record and any other considerations that would justify disallowing costs, given the presumption in favor of awarding costs. Santa Fe Water Res. All. v. D'Antonio, 2016-NMCA-035, cert. denied. Application to supreme court. - Section 105-1301, C.S. 1929, regarding costs, applied to supreme court as well as to the district court, at least insofar as actions at law were concerned. King v. Tabor, 1910-NMSC-037, 15 N.M. 488, 110 P. 601. Mediation costs not recoverable. - Where mediation is conducted pursuant to agreement of the parties, not by order of the court, the expense of the mediator's fee should not be a recoverable cost, absent an enforceable agreement permitting such award. Smith v. Village of Ruidoso, 1999-NMCA-151, 128 N.M. 470, 994 P.2d 50. Matter of costs was in discretion of the court under former law. State ex rel. Stanley v. Lujan, 1939-NMSC-039, 43 N.M. 348, 93 P.2d 1002. Supreme court had discretion in assessing costs under former law but, in law actions at least, district court was required to award costs in favor of the prevailing party. Frank A. Hubbell Co. v. Curtis, 1936-NMSC-033, 40 N.M. 234, 58 P.2d 1163. Under this rule, trial court is given large measure of discretion in allowing costs and this includes cost of depositions, if the taking of the deposition was reasonably necessary, even though it was not used at the trial. Mantz v. Follingstad, 1972-NMCA-164, 84 N.M. 473, 505 P.2d 68. Matter of assessing costs lies within discretion of trial court, and appellate court will not interfere with trial court's exercise of this discretion in this regard. Hales v. Van Cleave, 1967-NMCA-006, 78 N.M. 181, 429 P.2d 379, cert. denied, 78 N.M. 198, 429 P.2d 657; South v. Lucero, 1979-NMCA-046, 92 N.M. 798, 595 P.2d 768, cert. denied, 92 N.M. 675, 593 P.2d 1078. The trial court has discretion in assessing costs, and its ruling will not be disturbed on appeal unless it was an abuse of discretion. Pioneer Sav. & Trust v. Rue, 1989-NMSC-079, 109 N.M. 228, 784 P.2d 415. Costs for depositions, filing fees, lis pendens, service of process and a receiver's fee are costs which are reasonably necessary and so within the discretion of the court. Pioneer Sav. & Trust v. Rue, 1989-NMSC-079, 109 N.M. 228, 784 P.2d 415. This rule allows costs to be awarded to the prevailing party as a matter of course. The trial court has discretion in assessing costs, and its ruling will not be disturbed on appeal unless it was an abuse of discretion. Mascarenas v. Jaramillo, 1991-NMSC-014, 111 N.M. 410, 806 P.2d 59. The assessment of costs is entrusted to the sound discretion of the court, and absent a showing of an abuse of discretion, a reviewing court will not interfere with such discretion. In re Stailey, 1994-NMCA-015, 117 N.M. 199, 870 P.2d 161. Even though the defendant was the prevailing party against certain plaintiffs, based on the granting of a motion for summary judgment, since those plaintiffs' claims were intertwined with those of another plaintiff dismissed on the grounds of forum non conveniens, the trial court did not err in ordering the parties to bear their own costs pending final adjudication of the action. Marchman v. NCNB Tex. Nat'l. Bank, 1995-NMSC-041, 120 N.M. 74, 898 P.2d 709. When dismissal of a complaint was made after a full trial on the merits, it was treated as a judgment on the merits, and the defendant was entitled to costs as the prevailing party. Daddow v. Carlsbad Mun. Sch. Dist., 1995 -NMSC-032, 120 N.M. 97, 898 P.2d 1235. Even though plaintiff won a majority of its claims, trial court's decision that each party should bear its own costs was not an abuse of discretion based on its consideration of the complexity of the case, issues involved, legitimacy of some of the disputes, and the fact that plaintiff had requested more damages than it ultimately received. Cafeteria Operators v. Coronado - Santa Fe Assocs., 1998-NMCA-005, 124 N.M. 440, 952 P.2d 435. It is within the informed discretion of the trial court to assess costs against an insurer who intervenes in the worker's suit against an alleged tortfeasor. Eskew v. National Farmers Union Ins. Co., 2000 -NMCA-093, 129 N.M. 667, 11 P.3d 1229. Costs awarded for fraudulent claim. - In an action to quiet title to property, where a claim was based upon a document expressly found to have been forged by defendant, the trial court's order denying an award of costs for plaintiff's expert witness and imposition of sanctions against defendant was reversed and remanded for reconsideration. Martinez v. Martinez, 1997-NMCA-096, 123 N.M. 816, 945 P.2d 1034. Award of partial costs not abuse of trial court's discretion. - Where a party does not prevail in all respects at trial, the trial court does not abuse its discretion in awarding him partial costs. In re Estate of Head, 1980-NMCA-096, 94 N.M. 656, 615 P.2d 271. Ability to pay is a factor. - Trial courts may properly consider plaintiff's and her parents' ability to pay as one factor to be considered in determining whether to award defendants their costs. Gallegos v. Southwest Community Health Servs., 1994-NMCA-037, 117 N.M. 481, 872 P.2d 899. Where the trial court did not limit its consideration to the parties' disparity in wealth but rather properly considered evidence relevant to the parties' ability to pay, the court's decision to deny the defendant costs was reasonable and not an abuse of discretion. Apodaca v. AAA Gas Co., 2003-NMCA-085, 134 N.M. 77, 73 P.3d 215. Where plaintiff and plaintiff's fiancé have approximately $7,000 in disposal income every year, the district court did not abuse its discretion in awarding deposition costs to defendant in the amount of $2,800.36. May v. DCP Midstream, L.P., 2010-NMCA-087, 148 N.M. 595, 241 P.3d 193, cert. granted, 2010-NMCERT-009, 149 N.M. 49, 243 P.3d 753. Where plaintiff, a resident physician at the University of New Mexico School of Medicine, brought an unsuccessful lawsuit against the Board of Regents following her dismissal from the medical school's residency program, the district court did not abuse its discretion when it denied the award of attorney fees and certain costs, taking into consideration plaintiff's inability to pay, based on evidence presented that plaintiff, although she had a medical degree, had earned almost no money and had been unemployed from the time of her termination to the time of trial. Herald v. Board of Regents of the Univ. of N.M., 2015-NMCA-104, cert. denied, 2015-NMCERT-009. Court may disallow costs based on equitable grounds. - In exercising its discretion to deny or to award costs under Rule 1-054(D) NMRA, the district court is permitted to disallow costs based upon equitable grounds, including a losing party's inability to pay. Firstenberg v. Monribot, 2015-NMCA-062, cert. denied, 2015-NMCERT-006. Where plaintiff's nuisance and prima facie tort cases were dismissed on defendant's motion for summary judgment, the district court did not abuse its discretion in denying defendant's costs on equitable grounds based on plaintiff's inability to pay, the disparity of income between plaintiff and defendant, and the fact that defendant's insurance company paid for nearly all of defendant's costs. Firstenberg v. Monribot, 2015-NMCA-062, cert. denied, 2015-NMCERT-006. Reducing award of costs based on financial disparity between parties. - The district court abused its discretion when, without evidence, it reduced a cost award to defendant because of the financial disparity between the parties, plaintiff's perceived inability to pay all of defendant's costs, and the chilling effect that a large cost award would have on future litigation. Key v. Chrysler Motors Corp., 2000-NMSC-010, 128 N.M. 739, 998 P.2d 575. Time to file cost bill. - Where, in an action for prima facie tort and defamation; the jury awarded plaintiff nominal damages of $2.00; plaintiff filed a cost bill for $89,000; defendant had a total annual income of $18,500; plaintiff claimed $64,000 for three expert witnesses even though many of the costs were not necessarily related to preparations for depositions or trial; and one expert witness' fee was $13,000 for coming to trial, including eight hours for testimony although the witness' testimony was between one and three hours, the district court did not abuse its discretion by reducing the award of costs to $9,000. Helena Chem. Co. v. Uribe, 2013-NMCA-017, 293 P.3d 888, cert. denied, 2012-NMCERT-012. Costs divided between parties. - Where plaintiff's recovery was $703.52, which was reduced by $50.00 on appeal, costs of appeal were taxed equally between parties under former law. Roberson v. Bondurant, 1937-NMSC-058, 41 N.M. 638, 73 P.2d 321. Under former law where both parties appealed, but one did not perfect a cross-appeal, but joined in appellants' appeal, and both parties in fact prevailed in their demands, costs should be divided equally between them. Field v. Hudson, 1915-NMSC-022, 20 N.M. 178, 147 P. 283. Award against prevailing party. - The court cannot order a prevailing party to share, or shoulder, all or part of the costs of an unsuccessful litigant, unless the costs are intended to serve as a sanction and the court clearly expresses its reasons for imposing such sanction. Absent a finding of bad faith or misconduct by a prevailing party during litigation, neither Paragraph D of this rule nor Section 39-3-30 NMSA 1978 authorizes a court to award costs against a prevailing party. In re Stailey, 1994-NMCA-015, 117 N.M. 199, 870 P.2d 161. Dismissal of action for discovery violations. - Where the district court imposed the sanction of dismissal against plaintiff for discovery violations, it did not abuse its discretion in viewing the assessment of costs as an additional sanction and relying upon this articulated reasoning as the good cause for refusing to award defendant its costs. Reed v. Furr's Supermarkets, Inc., 2000-NMCA-091, 129 N.M. 639, 11 P.3d 603, cert. denied, 129 N.M. 599, 11 P.3d 563. Award in proportion to percentages of negligence. - There need be no direct relation between percentage of fault and costs, but it is within the trial court's discretion to award costs in such a manner. Thus, a trial court did not err or abuse its discretion by awarding costs in proportion to the percentages of negligence found by the jury in a medical malpractice case. Baca v. Marquez, 1987-NMCA-011, 105 N.M. 762, 737 P.2d 543. Costs unevenly divided between defendants. - Trial court did not abuse its discretion in assessing 30 percent of costs against one codefendant and 70 percent of costs against other codefendant. Robison v. Campbell, 1984-NMCA-048, 101 N.M. 393, 683 P.2d 510, cert. denied, 101 N.M. 362, 683 P.2d 44. Costs cannot be taxed against the regents under this rule unless permitted by law. Hillis v. Meister, 1971-NMCA-034, 82 N.M. 474, 483 P.2d 1314. Deposition and witness costs improper. - The trial court abused its discretion in allowing defendant to recover for the costs of a taxi and parking associated with a deposition, and for the witness fee since the witness was not identified in the cost bill. Dunleavy v. Miller, 1992-NMCA-061, 116 N.M. 365, 862 P.2d 1224, rev'd on other grounds, 1993-NMSC-059, 116 N.M. 353, 862 P.2d 1212. Costs of deposition. - No abuse of discretion is apparent or demonstrated in allowance of cost of taking deposition of man employed by plaintiff to make certain tests designed to demonstrate speed of death car in action for death of minor resulting from overturning of automobile. Davis v. Severson, 1963-NMSC-021, 71 N.M. 480, 379 P.2d 774. Electronic filing fees. - "Filing fees," as that term is used in Paragraph D(2)(a) of this section, includes electronic filing fees. Herald v. Board of Regents of the Univ. of N.M., 2015-NMCA-104, cert. denied, 2015-NMCERT-009. Where the district court denied a request for recovery of e-filing charges on the grounds that 1-054 NMRA does not allow for the recovery of e-filing charges, the court's decision was an abuse of discretion because the ruling was based on a misconstruction of 1-054(D)(2)(a) NMRA; filing fees are generally recoverable, and there is nothing in the provisions of the rule to suggest that the cost of electronically filing court documents is excluded from Paragraph D(2)(a). Herald v. Board of Regents of the Univ. of N.M., 2015-NMCA-104, cert. denied, 2015-NMCERT-009. Traveling expenses. - In equity cases, under former law traveling expenses for attorneys usually could not be recovered. State ex rel. Stanley v. Lujan, 1939-NMSC-039, 43 N.M. 348, 93 P.2d 1002. Travel expenses for attorneys ordinarily should not be taxed as costs; thus, when the district court awarded travel expenses, it was required to state a reason for such action. Lopez v. American Airlines, 1996-NMCA-088, 122 N.M. 302, 923 P.2d 1187. Section 38-6-4 NMSA 1978 does not condition the travel allowance upon being subpoenaed to appear. The allowance of costs for witness fees and mileage is discretionary with the court under this section. Prudential Ins. Co. of Am. v. Anaya, 1967-NMSC-132, 78 N.M. 101, 428 P.2d 640. Because a party is not entitled to per diem or mileage expenses for appearing as a witness in his own case, where defendants argue that the general rule in inapplicable since they received a subpoena too close to trial for their motion for protective order to be filed, but cite no authority for an exception to the rule that parties are not entitled to be treated as ordinary witnesses, trial court's award of transportation and per diem for travel was error. Robertson v. Carmel Builders Real Estate, 2004-NMCA-056, 135 N.M. 641, 92 P.3d 653, cert. denied, 2004-NMCERT-004. Where a defense witness had to be driven in a motor home from Florida because of the witness' age and fear of flying and plaintiff refused to allow the witness to testify by telephone, the district court did not abuse its discretion in awarding defendant the witness' travel expenses of $2,229.42. Bernier v. Bernier, 2013-NMCA-074. Costs not authorized. - Expenses for photocopies, telephone, facsimile, courier, mileage, travel, and per diem, and a large expense paid for obtaining plaintiff's own medical records, were not properly recoverable as costs. Gillingham v. Reliable Chevrolet, 1998-NMCA-143, 126 N.M. 30, 966 P.2d 197. Computer-assisted legal research. - Computer-assisted legal research expenses are not allowable as costs. Key v. Chrysler Motors Corp., 2000-NMSC-010, 128 N.M. 739, 998 P.2d 575. Pre-trial survey expense allowed as costs. - The expense of a survey made preparatory for trial, and upon which the surveyor testified, is properly allowed as costs. Ulibarri Landscaping Material, Inc. v. Colony Materials, Inc., 1981-NMCA-148, 97 N.M. 266, 639 P.2d 75; Gurule v. Ault, 1985-NMCA-056, 103 N.M. 17, 702 P.2d 7. Expenses of adjuster and engineer in action for damages caused by fire. - Where, as a result of the failure of a manufacturer to properly manufacture and inspect a fireplace, and a seller to inspect a fireplace, a fire occurs and the expenses of an adjuster and an engineer are incurred to investigate its cause, the cost of the adjuster and the engineer are properly assessed against the defendants where plaintiff prevails in action for damages caused by the fire. Pedigo v. Valley Mobile Homes, Inc., 1982-NMCA-066, 97 N.M. 795, 643 P.2d 1247. Expenses of judge and court reporter. - Costs are creature of statutes and may not be imposed in absence of clear legislative authorization, and since no statute or rule of court imposes upon litigants in a civil case the burden of paying per diem and travel expenses incurred by district judge and his court reporter, such expenses could not be properly taxed as costs when plaintiff requested continuance pending appeal of one defendant's summary judgment. Read v. Western Farm Bureau Mut. Ins. Co., 1977 -NMCA-039, 90 N.M. 369, 563 P.2d 1162. Physicians appearing as expert witnesses. - Fees paid to physicians who testified as expert witnesses at trial or served as consulting experts to plaintiff were properly awarded as costs against defendant. Gillingham v. Reliable Chevrolet, 1998-NMCA-143, 126 N.M. 30, 966 P.2d 197. Expense of transcript as cost. - Even if expense of transcript of hearing was a cost, trial court had discretion as to who should bear it, which discretion is not to be tampered with, absent an abuse thereof. Dunne v. Dunne, 1972-NMSC-002, 83 N.M. 377, 492 P.2d 994. No provision is made for costs of compensating jury panel in attendance at court for their time in travel and attendance, and since taxation of costs must await final determination of the case, costs of jury attendance in court were not properly taxed against plaintiff when he requested a continuance to appeal the award of summary judgment to the defendant. Read v. Western Farm Bureau Mut. Ins. Co., 1977 -NMCA-039, 90 N.M. 369, 563 P.2d 1162. Levy of execution in unlawful detainer. - In a judgment awarding possession of premises to plaintiffs which was not contemplated by lease stipulation, the plaintiffs are entitled to their costs incurred in connection with levy of execution in unlawful detainer. Putelli v. Hardy, 1972-NMCA-099, 84 N.M. 66, 499 P.2d 688. Costs of appeal after remand. - Where decision of the trial court, directing verdict for defendant, is reversed, and case remanded with instructions that it be reset for trial by jury, costs of appeal will be assessed against defendant pursuant to whose motion for a directed verdict the error in the proceedings has arisen. Sanchez v. Gomez, 1953-NMSC-053, 57 N.M. 383, 259 P.2d 346. Dismissal of writ of error. - Under former law, writ of error would be dismissed as to consideration of a question which had become moot, and the court could make an order concerning costs. First Nat'l Bank v. Noce, 1926-NMSC-041, 31 N.M. 591, 249 P. 107. Child abuse and neglect proceedings. - A specific Children's Code provision for costs controlled, in a child abuse and neglect proceedings, over the general statute (39-3-30 NMSA 1978) governing costs in civil actions. State ex rel. Human Servs. Dep't v. Judy H., 1987-NMCA-045, 105 N.M. 678, 735 P.2d 1184. Disbarment proceedings. - Section 105-1301, C.S. 1929 did not authorize taxation of cost in disbarment proceedings and, in absence of statute providing therefor, none could be taxed. In re Marron & Wood, 1917-NMSC-023, 22 N.M. 501, 165 P. 216. Divorce proceedings. - Section 105-1301, C.S. 1929 applied to divorce cases. Fullen v. Fullen, 1916-NMSC-062, 22 N.M. 122, 159 P. 952. Habeas corpus proceedings. - Section 105-1301, C.S. 1929, did not apply to habeas corpus proceedings. In re Fullen, 1913-NMSC-036, 17 N.M. 405, 132 P. 1137. Mandamus proceeding costs. - Where an officer refused to perform mere ministerial duty, such as signing voucher for salary earned, he was liable under former law to relator for costs incurred in compelling the performance of such duty by mandamus proceeding. State ex rel. Stephens v. State Corp. Comm'n, 1918-NMSC-125, 25 N.M. 32, 176 P. 866. In action in quo warranto, taxation of costs, other than the receivership costs, is governed by Section 44-3-11 NMSA 1978 (costs in quo warranto proceedings) rather than by this section. White v. Clevenger, 1962-NMSC-144, 71 N.M. 80, 376 P.2d 31. Action dismissed based on forum non conveniens. - In granting a motion to dismiss the plaintiff's claims on the grounds of forum non conveniens, the trial court did not reach the merits of the plaintiff's underlying action and, thus, could not determine who was the prevailing party for purposes of awarding costs. Marchman v. NCNB Tex. Nat'l. Bank, 1995-NMSC-041, 120 N.M. 74, 898 P.2d 709. Special master to regulate corporate proxy fight. - The court did not abuse its discretion by determining that special master proceedings were necessary to ensure a well-regulated vote count in a corporate proxy fight and that the corporation should bear the costs of those proceedings. Pena v. Westland Dev. Co., 1988 -NMCA-052, 107 N.M. 560, 761 P.2d 438. Award of costs to a governmental entity as the prevailing party in an inverse condemnation action. - Where plaintiff was authorized to supply water as a public utility in an area on the outskirts of the municipality; the municipality annexed the area and committed itself to provide water to the subdivisions plaintiff was developing; plaintiff filed an inverse condemnation action against the municipality for a regulatory taking of its property; and the New Mexico Supreme Court determined the municipality's actions were not a compensable taking of plaintiff's property, the municipality, as the prevailing party, was entitled to reasonable costs pursuant to Section 42A-1-29 NMSA 1978 and Rule 1-054(D) NMRA. Moongate Water Co., Inc. v. City of Las Cruces, 2014-NMCA-075. Specific order for recovery of costs. - Appellants, having prevailed in the supreme court, were entitled under former law to recover their costs and to have execution issue against appellees, without specific order. Gallup Elec. Light Co. v. Pacific Imp. Co., 1911 -NMSC-033, 16 N.M. 279, 117 P. 845. Conditioning continuance on payment of costs and expenses. - While granting or denying of continuances is matter within the sound discretion of trial court, and will be reviewed only where palpable abuse of discretion is demonstrated, there was palpable abuse of discretion in conditioning continuance on plaintiff 's payment of costs and expenses where plaintiff was ready for trial and did not seek a continuance merely for vexation or delay, but was caught by surprise the morning of trial, when summary judgment was granted to the defendant principal. Read v. Western Farm Bureau Mut. Ins. Co., 1977 -NMCA-039, 90 N.M. 369, 563 P.2d 1162. Remission of amount recovered. - Where on appeal or error, under former law, appellee or defendant in error remitted a portion of amount recovered, he would be required to pay costs of appeal or writ of error. King v. Tabor, 1910-NMSC-037, 15 N.M. 488, 110 P. 601. If action was not timely for relief sought, it must be dismissed in toto, including costs and attorney fees, and the costs reassessed pursuant to this rule. Brito v. Carpenter, 1970-NMSC-104, 81 N.M. 716, 472 P.2d 979. Supreme court had discretion in assessing costs under former law but, in law actions at least, district court was required to award costs in favor of the prevailing party. Frank A. Hubbell Co. v. Curtis, 1936-NMSC-033, 40 N.M. 234, 58 P.2d 1163. Supreme court had discretion in assessing costs under former law but, in law actions at least, district court was required to award costs in favor of the prevailing party. Frank A. Hubbell Co. v. Curtis, 1936-NMSC-033, 40 N.M. 234, 58 P.2d 1163. Service of process fee. - State highway commission [State transportation commission] does not have to pay the $3.00 service of process fee provided for in 38-1-5 NMSA 1978. 1964 Op. Att'y Gen. No. 64-11. Law reviews. - For article, "The `New Rules' in New Mexico," see 1 Nat. Resources J. 96 (1961). For article, "Medical Malpractice Legislation in New Mexico," see 7 N.M.L. Rev. 5 (1976-77). Am. Jur. 2d, A.L.R. and C.J.S. references. - 20 Am. Jur. 2d Costs § 1 et seq.; 46 Am. Jur. 2d Judgments § 1 et seq. Correcting clerical errors in judgments, 10 A.L.R. 526, 67 A.L.R. 828, 126 A.L.R. 956, 14 A.L.R.2d 224. Form of judgment against garnishee respecting obligation payable in installments, 7 A.L.R.2d 680. Jurisdiction, upon constructive or extraterritorial service upon nonresident, of suit for establishment or enforcement of trust in respect of real property within the state, 15 A.L.R.2d 610. Unsuccessful litigant's payment of costs as barring his right to appeal from judgment on merits, 39 A.L.R.2d 194. Effect of verdict for plaintiff in action against multiple defendants, 47 A.L.R.2d 803. Appealability of order or judgment awarding or denying costs but making no other adjudication, 54 A.L.R.2d 927. Court's power to increase amount of judgment, over either party's refusal or failure to consent to addition, 56 A.L.R.2d 213. Appealability of void judgment or of one granting or denying motion for vacation thereof, 81 A.L.R.2d 537. Validity of court's judgment rendered on Sunday or holiday, 85 A.L.R.2d 595. Contempt for violation of compromise and settlement, the terms of which were approved by court but not incorporated in court order, decree or judgment, 84 A.L.R.3d 1047. Attorney's personal liability for expenses incurred in relation to service for client, 66 A.L.R.4th 256. Propriety under 28 USCS § 1920 and Rule 54(d) of the Federal Rules of Civil Procedure of allowing prevailing party costs for copies of depositions, 50 A.L.R. Fed. 472. Compensation of expert witness as costs recoverable in federal civil action by prevailing party against party other than United States, 71 A.L.R. Fed. 875. Recoverability of cost of computerized legal research under 28 USCS § 1920 or Rule 54(d), Federal Rules of Civil Procedure, 80 A.L.R. Fed. 168. Modern status of Federal Civil Procedure Rule 54(b) governing entry of judgment on multiple claims, 89 A.L.R. Fed. 514. Propriety under 28 USCA § 1920 and Rule 54(d) of Federal Rules of Civil Procedure of allowing prevailing party costs for copies of depositions, 155 A.L.R. Fed. 445. 4 C.J.S. Appeal and Error §§ 33 to 35, 121, 127, 142, 198; 20 C.J.S. Costs §§ 36 to 38, 134 et seq.; 49 C.J.S. Judgments §§ 2 to 21, 73 to 94, 195 to 233, 235 to 242, 538.