N.M. R. Civ. P. Dist. Ct. 1-059
N.M. R. Civ. P. Dist. Ct. 1-059
Committee commentary. - Motions to "reconsider" final judgments are frequent, but there was no rule providing for them. Rule 1-059(E) NMRA now authorizes such a motion, and sets a time limit for its use. Motions addressed to the validity of a judgment provide a time limit in which to bring the motion. With the exception of Rule 1-060 NMRA, the time limit had been ten (10) days. See Rule 1-059(B) NMRA (motion for a new trial); Rule 1-050(B) NMRA (renewed motion for judgment as a matter of law); Rule 1-052(D) NMRA (motion to amend or add findings and conclusions); Rule 1-059(E) NMRA (motion to alter or amend judgment). The trial court cannot extend the time for bringing these motions. Rule 1-006(B) NMRA.
On occasion, parties have filed a motion to reconsider after these motions were denied, requiring the court to consider the motion and then enter an additional order, thereby arguably extending the time for filing a notice of appeal until the motion to reconsider denial of the earlier motion was itself denied. The 2013 amendment to Rule 1-059 NMRA ends this practice by requiring that any motion to reconsider a judgment must be filed within thirty (30) days of entry of the judgment that is the subject of the motion. As a result, after a Rule 1-050(B) NMRA motion, a Rule 1-052(D) NMRA motion, or a Rule 1-059(A) or (E) NMRA motion is made and denied, a motion to reconsider those rulings is not available and the time for appeal cannot be extended by filing a motion to reconsider. If, however, one of those motions is granted and a new judgment is entered, a party may then make a motion to reconsider the newly entered judgment. Court rulings or orders that are not final for the purpose of appeal continue to be "subject to revision at any time before the entry of judgment adjudicating all claims." Rule 1-054(B)(1) NMRA; see Melnick v. State Farm Mutual Automobile Ins. Co., 106 N.M. 726, 728, 749 P.2d 1105, 1107 (1988).
Section 39-1-1 NMSA 1978, adopted in 1897, provides that a trial court in some cases has continuing jurisdiction over its judgments for thirty (30) days after their entry. See, e.g., Laffoon v. Galles Motor Co., 80 N.M. 1, 450 P.2d 439 (Ct. App. 1969). Rather than have a ten (10) day time requirement for filing most post-judgment motions but a thirty (30) day time frame for filing motions under Section 39-1-1 NMSA 1978, the 2013 amendments extend the time for filing all post-trial motions to thirty (30) days from entry of the final judgment. The decision to extend the time to thirty (30) days for all motions rather than to limit Section 39-1-1 NMSA 1978 motions to ten (10) days was made because the prior ten (10) day requirement often left insufficient time for parties to research, formulate, and prepare post-judgment motions. In addition, the choice of thirty (30) days makes it unnecessary to determine whether the provision in Section 39-1-1 NMSA 1978 for extended post-judgment jurisdiction of the district court is consistent with the principle of separation of powers between the legislature and the judiciary. See Rule 1-091 NMRA; Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976). The intent and effect of the 2013 amendments to Rule 1-059(B) and (E) NMRA, Rule L-050(B) NMRA, and Rule 1-052(E) NMRA is to expand the time for filing all motions challenging an entered judgment to thirty (30) days from entry of judgment with the exception of motions made pursuant to Rule 1-060 NMRA, which have separate, longer time limits.
Motions are no longer deemed denied if not ruled upon for thirty (30) days after submission. Rule 1-054.1 NMRA. See the Committee Commentary for 2006 Amendment to Rule 1-054.1 NMRA for additional information. Instead, Rule 1-054.1 NMRA directs district courts to enter an order within sixty (60) days of submission. Id. Normally, the party filing a post-judgment motion has to await entry of an order from the district court ruling on the motion before filing an effective notice of appeal because where a timely Rule 1-059(A) or (E) NMRA motion has been filed, the time for filing a notice of appeal runs from the date of entry of an order that expressly disposes of the motion. Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122, & 4, 147 N.M. 303, 222 P.3d 675 (notice of appeal filed prior to ruling on pending Rule 1-059(E) NMRA motion is premature and time for filing notice of appeal does not begin to run until order is entered resolving Rule 1-059(E) NMRA motion). A party who makes a timely Rule 1-059(A) or (E) NMRA motion, or a motion pursuant to Section 39-1-1 NMSA 1978, may thereafter prefer to forgo an express ruling on the motion, see Rule 12-216(A) NMRA ("[N]or is it necessary to file a motion for a new trial to preserve questions for review."), and, instead, start the appellate process. Appellate Rule 12-201(D)(3) NMRA provides that a Rule 1-059 NMRA movant may file a notice of withdrawal of the motion, thus affecting the time for filing a notice of appeal as provided in Rule 12-201(D)(3) NMRA.
Under Rule 12-201(D)(4) NMRA, a timely filed notice of appeal does not divest the district court of jurisdiction to dispose of any timely filed motion under Rules 1-050, 1-052, or 1-059 NMRA, or a Rule 1-060 NMRA motion filed within thirty (30) days after the filing of a judgment. The notice of appeal becomes effective when the last such motion is disposed of expressly by an order of the district court, is automatically denied, or is withdrawn.
Rule 1-059 NMRA formerly provided that the moving party "serve" a Rule 1-059 NMRA motion within the time provided by the rule. To make this rule consistent with Rule 1-050 NMRA, Rule 1-052 NMRA, and Section 39-1-1 NMSA 1978, Rule 1-059 NMRA now provides that the motion must be "filed" within thirty (30) days. See Rule 1-050 NMRA (requiring "filing" within time set by rule); Rule 1-052(D) NMRA (formerly requiring that motion be "filed" within time set by rule but now requiring that motion be "filed" by deadline); Section 39-1-1 NMSA 1978 (requiring motion to be "filed" within time period set by statute).
See the Committee Commentary for 2006 Amendment to Rule 1-054.1 NMRA for additional information.
[As amended by Supreme Court Order No. 13-8300-032, effective in all cases pending or filed on or after December 31, 2013.]
ANNOTATIONS The 2013 amendment, approved by Supreme Court Order No. 13-8300-032, effective December 31, 2013, increased the time to file a motion for a new trial or motion to alter, amend or reconsider a final judgment; in Paragraph B, after "new trial shall be", deleted "served" and added "filed", and after "filed not later than", deleted "ten (10)" and added "thirty (30)"; and in Paragraph E, in the title, after "alter", deleted "or", after "amend", added "or reconsideration", after "a", added "final", after "motion to alter, amend", added "or reconsider a final", after "judgment shall be", deleted "served" and added "filed", and after "filed not later than", deleted "ten (10)" and added "thirty (30)". The 2006 amendment, approved by Supreme Court Order 06-8300-17, effective August 21, 2006, eliminated the provision in Paragraph D of Rule 1-059 NMRA that stated that if a motion for new trial were not granted within thirty (30) days after it was filed, the motion was automatically denied.
For the computation of time for motions, see Rule 1-006 NMRA. For judgment notwithstanding the verdict, see Rule 1-050 NMRA. For judgment in nonjury trial, see Rule 1-052 NMRA. For relief from final judgment, see Rule 1-060 NMRA. For stay of enforcement of judgment upon motion for new trial, see Rule 1-062 NMRA. Compiler's notes. - Paragraph A is deemed to have superseded 34-341, C.S. 1929, relating to motions for new trials and in arrest of judgment. Paragraphs B and C together with Rule 20(3) of the former "Supreme Court Rules" are deemed to have superseded 105-842, C.S. 1929, relating to new trial motions and appeals in jury cases. Rule 20(3) of the former "Supreme Court Rules" mentioned above is deemed to have been superseded by Rule 12-216 NMRA. Pending post-judgment motion tolls time for appeal. - Where plaintiff filed a Rule 1-059(E) motion to amend the district court's judgment; plaintiff did not file a reply to the responses to the motion; plaintiff did nothing to have the motion addressed by the district court; plaintiff did not claim on appeal that the district court erred by failing to rule on the motion; and the district court had not ruled on the motion before plaintiff filed the notice of appeal, the judgment entered by the district court was not final for purposes of appeal. Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122, 147 N.M. 303, 222 P.3d 675. Motion to modify an order to permit an interlocutory appeal was a motion to reconsider. - Were the defendant filed a motion to modify the district court's order, which denied the defendant's motion to extend the redemption period in a foreclosure action, to include language permitting an interlocutory appeal more than ten days, but less than thirty days, after the entry of the order, the motion asked the district court to reconsider its order and determine if an appeal was necessary and the motion should be deemed to be a motion for reconsideration, not a motion to alter or amend a judgment under Rule 1-059 NMRA. Chapel v. Nevitt, 2009-NMCA-017, 145 N.M. 674, 202 P.3d 889. A motion to amend or alter a judgment is not subject to automatic denial after thirty days. Albuquerque Redi-Mix, Inc. v. Scottsdale Ins. Co., 2007 -NMSC-051, 142 N.M. 527, 168 P.3d 99. A motion challenging a judgment, filed within ten days of the judgment, should be considered a Rule 1-059(E) motion to alter or amend a judgment. Albuquerque Redi-Mix, Inc. v. Scottsdale Ins. Co., 2007 -NMSC-051, 142 N.M. 527, 168 P.3d 99. This rule is substantially the same as its federal counterpart with one notable exception. Federal Rule of Civil Procedure 59 does not impose a time limit on the trial court in granting new trial motions. Martinez v. Friede, 2004-NMSC-006, 135 N.M. 171, 86 P.3d 596. Automatic denial provision of Paragraph D was intended, at least in part, to assist district courts in managing their dockets by disposing of motions for new trial that are not acted upon within a specified time. Martinez v. Friede, 2004-NMSC-006, 135 N.M. 171, 86 P.3d 596. Rule not only authority for new trial. - This rule is not the only authority upon which the district court may order a new trial. A new trial may also be an available remedy under Rule 1-060 NMRA. Martinez v. Friede, 2004-NMSC-006, 135 N.M. 171, 86 P.3d 596. Ruling on new trial motion within trial court's discretion. - The granting or denial of a motion for a new trial rests within the sound discretion of the trial court and its ruling will not be disturbed in the absence of a clear abuse of that discretion. Martinez v. Schmick, 1977-NMCA-053, 90 N.M. 529, 565 P.2d 1046, cert. denied, 90 N.M. 637, 567 P.2d 486; Cienfuegos v. Pacheco, 1952-NMSC-092, 56 N.M. 667, 248 P.2d 664; Scott v. Brown, 1966-NMSC-135, 76 N.M. 501, 416 P.2d 516; State ex rel. State Hwy. Dep't v. Robinson, 1973-NMSC-022, 84 N.M. 628, 506 P.2d 785; Murphy v. Frinkman, 1978-NMCA-127, 92 N.M. 428, 589 P.2d 212. A motion for new trial is addressed to the sound discretion of the court, and the decision of the court in granting or refusing it alone is not the proper subject of a bill of exceptions. Buntz v. Lucero, 1893-NMSC-019, 7 N.M. 219, 34 P. 50 (decided under former law). The grant or denial of a new trial is a matter resting within the sound discretion of the trial court, and the reviewing court will not reverse absent a manifest abuse of that discretion. Martinez v. Ponderosa Prods., Inc., 1988-NMCA-115, 108 N.M. 385, 772 P.2d 1308. Abuse of discretion determined from entire record. - The granting or denying of a motion for new trial is within the sound discretion of the trial court. The claim of abuse of discretion will not be considered when it is based only upon that portion of the evidence favorable to claimant; it must appear from the entire record, insofar as it concerns the issue involved. Minor v. Homestake-Sapin Partners Mine, 1961-NMSC-111, 69 N.M. 72, 364 P.2d 134. In determining whether the trial court abused its discretion in ruling on a motion for a new trial, the appellate court examines the entire record, not just the portions favorable to plaintiff. Martinez v. Ponderosa Prods., Inc., 1988-NMCA-115, 108 N.M. 385, 772 P.2d 1308. Denial by operation of law. - Where the trial court failed to rule on plaintiff's motion for a new trial within the thirty-day period prescribed by Paragraph D of this rule, the motion was denied by operation of law and the trial court's jurisdiction to grant a new trial terminated. The trial court's order granting a new trial was void for want of jurisdiction, as were any proceedings conducted pursuant to that order. Martinez v. Friede, 2003-NMCA-081, 133 N.M. 834, 70 P.3d 1273, cert. granted, 133 N.M. 727, 69 P.3d 237. Relief is disfavored under Rule 1-060 NMRA if the grounds for the relief were known to the movant in time to bring a motion under this rule. Martinez v. Friede, 2004-NMSC-006, 135 N.M. 171, 86 P.3d 596. Request for relief based on previously known facts cannot be characterized as a motion under Rule 1-060 NMRA. - Where the fact of a modification of a jury instruction on damages for pain and suffering was known to the plaintiff and the possible role of the modification in the jury's failure to award damages for past pain and suffering was known or should have been known to the plaintiff when she filed her motion for a new trial, plaintiff's motion for a new trial could not be characterized as motion under Rule 1-060(B) NMRA and plaintiff was relegated to the remedy provided by this rule. Martinez v. Friede, 2003-NMCA-081, 133 N.M. 834, 70 P.3d 1273, cert. granted, 133 N.M. 727, 69 P.3d 237. Applicability to motions under Rule 1-060B. - The 30-day time limit of Paragraph D of Rule 1-059 NMRA does not apply to motions for a new trial authorized by Paragraph B of Rule 1-060 NMRA. Archuleta v. New Mexico State Police, 1989-NMCA-012, 108 N.M. 543, 775 P.2d 745. When the grounds for a Rule 1-060B NMRA motion are or should have been known within the ten-day time limit for a motion pursuant to Paragraph B of this rule for a new trial, it is inappropriate to try to circumvent that time limit by resorting to the longer time limit afforded by Rule 1-060B NMRA. This rationale is equally appropriate in the context of a motion pursuant to Paragraph E of this rule to amend the judgment. Dozier v. Dozier, 1994-NMCA-080, 118 N.M. 69, 878 P.2d 1018. A motion for new trial may be made in a nonjury cause. Romero v. McIntosh, 1914-NMSC-094, 19 N.M. 612, 145 P. 254 (decided under former law). Court has wide discretion to grant new trial in nonjury trials. - Since in the New Mexico rule the words found in the federal rule at the end of the first sentence: "in actions at law in the courts of the United States; and (2) in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the United States," are omitted, it would appear that the framers of the New Mexico rule desired to grant the court broader discretion where it hears the case itself, without a jury, than is allowed under the federal rule. Cienfuegos v. Pacheco, 1952-NMSC-092, 56 N.M. 667, 248 P.2d 664. Motion for new trial must state grounds. - Unless the assignment of error in the motion for a new trial clearly specifies the legal ground of objection, the objection will not be considered. State v. Williams, 1916-NMSC-073, 22 N.M. 337, 161 P. 334 (decided under former law). Excessive verdicts ground for new trial. - Trial judges have a heavy responsibility in federal employer liability cases to see the damages are kept within reasonable bounds. They have considerable discretion in passing on motions for a new trial based on claimed excessive verdicts. Padilla v. Atchison, T. & S.F. Ry., 1956 -NMSC-034, 61 N.M. 115, 295 P.2d 1023. New trial not warranted where 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. New trial not warranted where district court took measures to minimize any prejudice. - Where plaintiff brought a claim under the Whistleblower Protection Act (WPA), NMSA 1978, §§ 10-16C-1 to -6, claiming that defendants were in violation of state law by failing to promptly and immediately investigate reports of child abuse and neglect referred to the Farmington Police Department (FPD) from the New Mexico Children, Youth and Families Department (CYFD), and where, during a bench conference at trial, plaintiff's counsel made a comment, which was possibly heard by the jury, regarding an FPD supervisor who was suing FPD, the district court did not abuse its discretion in denying defendants' motion for a new trial, because the district court took reasonable measures to minimize any prejudice to defendants as a result of the comment by offering to give the jury a curative instruction to disregard the comment, which Defendants declined, and ruled that neither party was permitted to comment to the jury or elicit evidence concerning the supervisor's absence and lawsuit against FPD. Dart v. Westall, 2018-NMCA-061. Plaintiffs waived the right to challenge the verdict by contributing to ambiguity in the verdict and by failing to object. - In a wrongful death and loss of consortium lawsuit, where decedent's spouse, individually, as the personal representative of decedent's estate, and as next friend of decedent's minor daughter, asserted claims of negligence and premises liability, and where plaintiffs' counsel modified the uniform jury instruction on wrongful death damages and drafted the special verdict form in a way that failed to advise jurors how to allocate damages between the individual loss-of-consortium claimants and the decedent's estate, the district court did not abuse its discretion in denying plaintiffs' motion for a new trial, because plaintiffs waived the right to challenge the verdict on appeal where they contributed to ambiguity in the verdict and failed to object to the verdict prior to the jury's discharge. Saenz v. Ranack Constructors, Inc., 2018-NMSC-032, rev'g in part, 2015-NMCA-113, 362 P.3d 134. A verdict that is contrary to the clear weight of the evidence falls within the proper ground for a new trial. - Proof of a wrongful death necessarily implies recoverable damages, because damages based on pecuniary injury to the estate are rarely zero, and even in the absence of pecuniary injury, the jury may also consider the present worth of life, based on age, occupation, earning capacity, health, habits, and the probable duration of the life of decedent. Where plaintiff presented evidence that decedent was employed at the time of his death, that he was a competent and dependable employee making between $10 and $33 per hour, it was contrary to the clear weight of the evidence for the jury to find that the damage to decedent's estate was zero, and the motion for new trial should have been granted. Estate of Saenz v. Ranack Constructors, Inc., 2015-NMCA-113, 362 P.3d 134, rev'd in part, 2018-NMSC-032. Where motivated by passion or prejudice. - The fact that a verdict appears to be excessive is not a ground for a motion for a new trial. It is only when the excessive damages appear to have been given under the influence of passion or prejudice that a new trial may be granted for that reason. There is no standard fixed by law for measuring the value of human pain and suffering. In every case of personal injury a wide latitude is allowed for the exercise of the judgment of the jury, and, unless it appears that the amount awarded is so grossly out of proportion to the injury received as to shock the conscience, the court cannot substitute its judgment for that of the jury. Lujan v. Reed, 1967-NMSC-262, 78 N.M. 556, 434 P.2d 378. Timing of jury decision did not indicate passion or prejudice. - Where the jury indicated several times during its deliberations that it was deadlocked; twelve hours of deliberation, the jury informed the judge that the jury was deadlocked and that the jurors were tired, hungry and frustrated and that only one vote had changed in twelve hours; and forty-five minutes later, the jury came to an agreement and rendered a verdict of one million dollars in damages against defendant, the timing of the jury decision was not evidence that the jurors' decision was based on passion, partiality, sympathy, undue influence, or a mistaken measure of damages. Salopek v. Friedman, 2013-NMCA-087. Where damage award excessive, remittitur or new trial required. - Where the trial court determines that a jury award of damages is manifestly excessive, thereby necessitating remittitur, it should require the party which recovered damages to either remit a specific amount or submit to a new trial. Chavez-Rey v. Miller, 1982-NMCA-187, 99 N.M. 377, 658 P.2d 452. Jury award was not excessive. - Where defendant negligently performed exploratory abdominal surgery to locate a perforation in plaintiff's colon; because of defendant's failure to locate the perforation, plaintiff ultimately had thirteen surgeries, including surgeries to remove part of plaintiff's colon, to create a colostomy to reroute the colon through the abdominal wall to allow the stool to drain from the body, and to reconnect the severed colon; plaintiff was in constant pain, could not walk well, had fevers, and suffered emotional anguish; the colostomy adversely affected plaintiff's relationship with plaintiff's spouse and teen-aged child; the use of a colostomy bag changed how plaintiff went in public, slept, and lived; plaintiff had no control over bowel movements, could not return to work on the family farm, travel, or engage in outdoor sports or activities, suffered complications from subsequent surgeries, and had to be fed through an IV; and there was no indication of prejudice, undue influence, or mistaken measure of damages on the part of the jury, the evidence substantially supported the jury award of one million dollars against defendant. Salopek v. Friedman, 2013-NMCA-087. New trial proper for refusal to instruct. - Where motion for new trial is based on the refusal of the requested instruction, and where such refusal prevents a fair presentation of the case, the motion should have been granted. Flanary v. Transport Trucking Stop, 1968-NMCA-010, 78 N.M. 797, 438 P.2d 637. Ambiguous verdict. - When it is impossible to ascertain from the verdict whether the jury intended to find for the plaintiff or for the defendants, it was the duty of the trial court to point out this defect to the jury and send it back with directions either to assess the damages or else return a verdict for defendants, but where the trial court failed to perform that duty and the jury has been discharged, the judgment must be reversed and new trial granted. Marr v. Nagel, 1954-NMSC-126, 59 N.M. 21, 278 P.2d 561. Improper admission of evidence. - The proper remedy for disposing of evidence erroneously admitted during the course of the trial is a new trial where motion therefor has been made. Townsend v. United States Rubber Co., 1964-NMSC-103, 74 N.M. 206, 392 P.2d 404, overruled in part on other grounds, Rhein v. ADT Auto, Inc., 1996-NMSC-066, 122 N.M. 646, 930 P.2d 783. Violation of collateral source rule. - The declaration of a mistrial is a ruling which in effect states, as a matter of law, that the trial cannot stand because of the disregard of some fundamental prerequisite, and the admission of evidence in violation of the collateral source rule constitutes such reversible error. Martinez v. Knowlton, 1975-NMCA-038, 88 N.M. 42, 536 P.2d 1098, cert. denied, 88 N.M. 28, 536 P.2d 1084. Communications with jurors. - Trial court may, without abusing his or her discretion, justifiably grant a new trial on the basis of communications with jurors or prospective jurors. Martinez v. Ponderosa Prods., Inc., 1988-NMCA-115, 108 N.M. 385, 772 P.2d 1308. Unauthorized amendment of decree. - Replacement judge did not abuse his discretion in granting defendant's motion for a new trial where original judge, without stating cognizable grounds for doing so, amended final divorce decree to provide for temporary alimony for plaintiff. Gruber v. Gruber, 1974-NMSC-055, 86 N.M. 327, 523 P.2d 1353. Limited new trial available. - Where great conflict and inconsistency were present in the evidence and at conclusion of first trial, the trial judge remarked that he was dissatisfied with the testimony and showed reluctance in ruling for either side, he was granted wide discretion under this rule in permitting a limited new trial and abandoning an original finding for plaintiff and rendering judgment for defendants. Cienfuegos v. Pacheco, 1952-NMSC-092, 56 N.M. 667, 248 P.2d 664. Where issues separable. - Where the issue of damages is separable and distinct from the issues of negligence and proximate cause, and reversal is required because of errors in the amount of damages awarded, and where no error appears as to other issues, a new trial may be limited to the issue in which the error is present. Sanchez v. Dale Bellamah Homes of N.M., Inc., 1966-NMSC-040, 76 N.M. 526, 417 P.2d 25. Not all in dispute. - With respect to the reversal for prejudicial error by trial court, where there was no claim of error as to the damages, the awarding of a new trial, limited to the issue of liability alone, conforms to the spirit of this rule. Cherry v. Stockton, 1965-NMSC-114, 75 N.M. 488, 406 P.2d 358. Partial retrial proper where issues are separate and distinct. - Where plaintiff filed a complaint against defendant hospital for medical negligence, and where the jury found defendant negligent, but hung on the issue of causation, the district court did not err in ordering a partial retrial limited to causation, because the jury's finding of negligence was entirely separate and distinct from the issue of causation, and under the general verdict rule, the jury's verdict as to negligence on any of the seven theories advanced by plaintiff could be affirmed as long as they were supported by substantial evidence, and the jury did not need to agree on the factual ground on which a negligence finding was based. Christopherson v. St. Vincent Hosp., 2016-NMCA-097, cert. denied. Prejudicial misconduct requiring a mistrial. - In a trial where plaintiff alleged medical negligence against defendant hospital, and where the jury found in favor of defendant, the district court did not abuse its discretion in ordering a retrial based on defense counsel's improper conduct which included fifty-five instances of improper questioning or behavior during the trial and hearings. Christopherson v. St. Vincent Hosp., 2016-NMCA-097, cert. denied. Improper influence on juror. - A district court may order a new trial under this rule because of improper influence on a juror. Archuleta v. New Mexico State Police, 1989-NMCA-012, 108 N.M. 543, 775 P.2d 745. New trial proper because of bailiff's conduct. - Trial court properly ordered a new trial, where the subjective and subtle nature of the bailiff's conduct in demonstrating to the jurors his relationship to several defendants in a wrongful death action may have adversely affected the jury. Prudencio v. Gonzales, 1986-NMCA-101, 104 N.M. 788, 727 P.2d 553. New trial improper when based solely on juror's affidavits. - New Mexico courts will deny the right to a new trial based alone on affidavits or statements of jurors presented after the jury has been discharged. Skeet v. Wilson, 1966-NMSC-182, 76 N.M. 697, 417 P.2d 889. Admissibility of expert testimony under New Mexico law. - New Mexico has never adopted the Joiner rule that a judge may reject expert testimony where the "analytical gap" between the underlying evidence and the expert's conclusions is too great. Joiner is inconsistent with longstanding New Mexico law that leaves credibility determinations and weighing of the evidence to the trier of fact; any doubt regarding the admissibility of scientific evidence should be resolved in favor of admission, rather than exclusion. Acosta v. Shell W. Expl. & Prod., Inc., 2016-NMSC-012, rev'g 2013-NMCA-009, 293 P.3d 917. In a toxic tort case, where plaintiffs sued defendants for personal injuries resulting from defendants' dumping of toxic hydrocarbons in the ground where plaintiffs' houses were subsequently built, and where plaintiffs' expert witness conducted a study that included an analysis of plaintiffs' medical conditions through patient history, medical records, physical examinations and diagnostic testing, reviewed the scientific evidence related to general causation, relied on animal studies establishing that pristane, a toxic chemical found in crude oil, exposure in mice induces autoimmunity and lupus, and concluded that plaintiffs' inhalation, ingestion, and absorption of the combination of various toxins from defendants' oil and gas operations caused or aggravated plaintiffs' lupus and other autoimmune disorders, the district court erred when it determined that the expert's study and the proffered testimony would not assist the trier of fact in determining whether the chemical mixture at issue was capable of causing lupus or other autoimmune disorders. The expert's causation opinion, his study, and the animal studies it relied on support a valid scientific inference that is probative of causation, even if they do not conclusively establish that the specific chemicals at issue can cause lupus or other autoimmune disorders. The expert's study and his causation testimony were relevant and should have been admitted. Acosta v. Shell W. Expl. & Prod., Inc., 2016-NMSC-012, rev'g 2013-NMCA-009, 293 P.3d 917. Juror statements indicating juror prejudice. - Where, in a toxic tort case, plaintiffs sued defendants for personal injuries resulting from defendants' negligent disposition of toxic petrochemicals that plaintiffs alleged caused plaintiffs' lupus and other autoimmune disorders; the jury found against plaintiffs on all claims; plaintiffs moved for a new trial on the grounds of juror prejudice; and plaintiffs' motion was supported by juror affidavits in which the jurors stated that after three days of a seventeen day trial, one juror stated "Why are we here? This is a waste of time" and "we know what the outcome is" and complained that the juror was tired of hearing the same evidence and wanted to go home, the statements of the jurors in the affidavits were admissible evidence and the district court did not err in denying plaintiffs' motion because the statements were vague and insufficient to prove that the juror's opinion was immutably fixed. Acosta v. Shell W. Expl. & Prod., Inc., 2013-NMCA-009, 293 P.3d 917, cert. granted, 2012-NMCERT-012. Counsel's conduct must prevent just verdict to justify new trial. - Conduct of counsel in characterizing the cause of action as a money-making scheme in which their chiropractor and lawyer were also implicated was not such as would necessarily prevent the jury from rendering a just verdict. The issue of whether counsel misconduct in statements to the jury should result in a new trial is left to the discretion of the trial court. Romero v. Melbourne, 1977-NMCA-015, 90 N.M. 169, 561 P.2d 31, cert. denied, 90 N.M. 254, 561 P.2d 1347. Denial of new trial based on credibility of witness strongly presumed correct. - Where the weight to be given testimony rests primarily on its credibility, the trial court's action in denying a motion for new trial, after seeing and observing the witnesses as they testified, is not to be lightly ignored or brushed aside. Reck v. Robert E. McKee Gen. Contractors, 1955-NMSC-074, 59 N.M. 492, 287 P.2d 61. Post-decision change in note value. - Where, in a divorce action, the change in value of a note occurred after its value was set at trial and the trial court was apprised of the change after it had rendered its decision changing ownership of the note from tenancy in common to wife's separate property, this is a post-trial and post-decision matter, and is governed by this rule and Rule 1-060 NMRA. Lewis v. Lewis, 1987-NMCA-073, 106 N.M. 105, 739 P.2d 974. Contention not previously raised not considered in new trial motion. - It is not the function of a motion for a new trial to raise propositions not raised in the progress of the cause. Kelly v. La Cueva Ranch Co., 1920-NMSC-013, 25 N.M. 674, 187 P. 547 (decided under former law). The trial court was correct in denying plaintiff's motion for a new trial because there was no timely objection to defense counsel's allegedly improper arguments. Romero v. Melbourne, 1977-NMCA-015, 90 N.M. 169, 561 P.2d 31, cert. denied, 90 N.M. 254, 561 P.2d 1347. Motion for new trial must be filed within 10 days of entry of judgment. - A motion filed more than 10 days after the rendition of the verdict is not well taken. Ojo Del Espiritu Santo Co. v. Baca, 1923-NMSC-039, 28 N.M. 516, 214 P. 771 (decided under former law). Subdivision (b) (see now Paragraph B) is a mandatory provision. El Paso Elec. v. Real Estate Mart, Inc., 1982-NMCA-101, 98 N.M. 490, 650 P.2d 12. Untimely motion not considered. - Motions for new trials must be filed within the specified time after rendition of the verdict, and in event such motion was not so made in court below, the supreme court will not review the action. Schofield v. Slaughter, 1898-NMSC-020, 9 N.M. 422, 54 P. 757 (decided under former law). Motion to reconsider, treated as a motion for a new trial, filed more than 10 days after the entry of order, is not timely. State v. Navas, 1967-NMSC-198, 78 N.M. 365, 431 P.2d 743. Motion 13 days after the order denying the motion for error coram nobis is the equivalent of a motion for new trial, and was not timely under this rule as it was not served within 10 days after entry of judgment. State v. Ragin, 1967-NMSC-252, 78 N.M. 542, 434 P.2d 67. Hearing on motion did not toll limitation period. - Plaintiff's appeal from an order denying her motion for a new trial was untimely since it was filed over three and one-half months after the motion for a new trial was filed, and over 60 days from the date the motion was denied by operation of law, and no extensions of time within which to file an appeal were sought or granted; the fact that the trial court held a hearing on the motion for a new trial within 30 days after it was filed did not have the effect of tolling the period within which to file the notice of appeal. Feynn v. St. Martin's Hospitality Ctr., 1997-NMCA-122, 124 N.M. 317, 950 P.2d 290. Rule change affecting time for filing inapplicable in pending case. - Where the effect of the rule change relating to time computation, as applied to this case, extends the time for filing a motion for new trial from 10 to 12 days contrary to Subdivision (b) (see now Paragraph B) of this rule, it is clearly a change in procedure and as such the change is inapplicable to pending cases. Marquez v. Wylie, 1967-NMSC-245, 78 N.M. 544, 434 P.2d 69. Untimely motion to vacate new trial denial. - Denial of new trial motion, timely filed, and granting of remittitur reestablished the earlier judgment as final, and a motion to vacate the order denying a new trial, filed after the time in which the original motion could have been filed, will not be considered. Salinas v. John Deere Co., 1984-NMCA-121, 103 N.M. 336, 707 P.2d 27. Timely motion for new trial tolls time for filing appeal. - A motion for new trial, unless made within 10 days after judgment as provided by Subdivision (b) (see now Paragraph B) does not extend the time for appeal. Marquez v. Wylie, 1967-NMSC-245, 78 N.M. 544, 434 P.2d 69; Associates Disc. Corp. v. DeVilliers, 1964-NMSC-218, 74 N.M. 528, 395 P.2d 453. Judgment not final until denial of motion. - Motions under Rule 60(b) (see now Rule 1-060 NMRA) do not affect the finality of a judgment, but a motion under this rule made within 10 days, does affect finality of judgment and the running of the time for appeal. Perez v. Perez, 1966-NMSC-010, 75 N.M. 656, 409 P.2d 804. Merely formal amendment of judgment does not toll appeal time. - To terminate the running of the time for appeal, a timely motion for a new trial is required. Mere amendment of judgment which makes no material change does not toll appeal time, which runs from the date of the original judgment. Rice v. Gonzales, 1968-NMSC-125, 79 N.M. 377, 444 P.2d 288. Denial of new trial motion of record prerequisite to appellate review of same. - Claim that the trial court erred in refusing to grant the relief sought in motion for a new trial or in the alternative for remittitur was not subject to review, since no refusal appeared of record. Selgado v. Commercial Whse. Co., 1975 -NMCA-144, 88 N.M. 579, 544 P.2d 719. Failure to rule on new trial motion deemed denial. - A motion for a new trial is deemed overruled by operation of law if no ruling is entered within 30 days of filing the motion. Since the trial court's ruling prior to the expiration of the 30-day appeal period would be reviewable, the court holds that failure to rule cannot avoid review. A timely motion for a new trial denied by operation of law had the same effect for appeal purposes as a motion denied by the trial court. Montgomery Ward v. Larragoite, 1970-NMSC-057, 81 N.M. 383, 467 P.2d 399. The failure to rule within 30 days of the filing of the motion for new trial constitutes a denial of the motion by operation of law. Chavez-Rey v. Miller, 1982-NMCA-187, 99 N.M. 377, 658 P.2d 452. Motion subject to 39-1-1 NMSA 1978. - A motion brought under Paragraph D was subject to the limitations 39-1-1 NMSA 1978, providing that a court's failure to rule on a motion within 30 days of its filing is deemed a denial thereof. Beneficial Fin. Corp. v. Morris, 1995-NMCA-076, 120 N.M. 228, 900 P.2d 977. Hearing on a motion for a new trial is generally not required except under the circumstances specified in Subdivision (d) (see now Paragraph D). New Mexico Feeding Co. v. Keck, 1981-NMSC-034, 95 N.M. 615, 624 P.2d 1012 (1981). Order granting new trial is not appealable. Scott v. J.C. Penney Co., 1960-NMSC-068, 67 N.M. 219, 354 P.2d 147. Denial of motion is ordinarily not an appealable order. El Paso Elec. v. Real Estate Mart, Inc., 1982-NMCA-101, 98 N.M. 490, 650 P.2d 12. Error at first trial not reviewable upon grant of new trial. - If the motion for a new trial is granted, the case stands as never tried, and until retried and a judgment entered, there is no final judgment. Scott v. J.C. Penney Co., 1960-NMSC-068, 67 N.M. 219, 354 P.2d 147. Grant of new trial renders verdict nullity. - Where motions for judgment n.o.v. and new trial are made in the alternative, and no judgment has been rendered on the verdict, order granting new trial renders verdict a nullity and is not appealable. Scott v. J.C. Penney Co., 1960-NMSC-068, 67 N.M. 219, 354 P.2d 147. Order granting new trial not interlocutory order disposing of merits. - An order granting a new trial is not generally such an interlocutory order as practically disposes of the merits of the action because the order granting a new trial contemplates another trial at which the issues will be determined and in itself does not dispose of the merits of the action. Warren v. Zimmerman, 1971-NMCA-039, 82 N.M. 583, 484 P.2d 1293, cert. denied, 82 N.M. 562, 484 P.2d 1272. Trial court loses jurisdiction of judgment upon filing notice of appeal. - From and after the filing of the notice of appeal from a judgment, the trial court was without jurisdiction to take any further step in regard to the motion to alter or amend judgment. Meeker v. Walker, 1969-NMSC-053, 80 N.M. 280, 454 P.2d 762. Filing notice of appeal waives motion for new trial. - By serving their notice of appeal, the defendants abandoned the motion for a new trial or in the alternative for remittitur by depriving the trial court of jurisdiction; their notice of appeal amounted to an election to waive the motion and proceed with the appeal as though the motion had not been made. Selgado v. Commercial Whse. Co., 1975 -NMCA-144, 88 N.M. 579, 544 P.2d 719. Jurisdiction on remand limited by mandate. - The district court loses jurisdiction of the case when it is appealed, and on remand regains only such jurisdiction as the supreme court's opinion and the mandate confers. Wilson v. Employment Sec. Comm'n, 1966-NMSC-147, 76 N.M. 652, 417 P.2d 455. District court has jurisdiction to pass upon motions pending when the appeal is taken. City of Roswell v. Berry, 1969-NMSC-033, 80 N.M. 110, 452 P.2d 179. Longer time allowed for new trial based on new evidence. - A motion for a new trial on grounds of newly discovered evidence presents a somewhat different question than a motion for a new trial based on alleged erroneous instructions and rulings on matters presented to the trial court in the first instance, in that the former situation is covered by Rule 60(b) (see now Rule 1-060B ) as to the time for filing. Public Serv. Co. v. First Jud. Dist. Ct., 1959 -NMSC-002, 65 N.M. 185, 334 P.2d 713. Consideration of new material. - The trial court had discretion to consider new material as a part of a motion for reconsideration as long as the delay in presenting the new material was not just for strategic reasons, and its relevance outweighed any prejudice; further, if the trial court considered the new material, the appellate court could review the materials de novo. In re Estate of Keeney, 1995-NMCA-102, 121 N.M. 58, 908 P.2d 751. Parties on same side of suit remain one party. - The New Mexico Rules of Civil Procedure, as well as the 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. Post-decision change in note value. - Where, in a divorce action, the change in value of a note occurred after its value was set at trial and the trial court was apprised of the change after it had rendered its decision changing ownership of the note from tenancy in common to wife's separate property, this is a post-trial and post-decision matter, and is governed by this rule and Rule 1-060 NMRA. Lewis v. Lewis, 1987-NMCA-073, 106 N.M. 105, 739 P.2d 974 (Ct. App. 1987). Law reviews. - For comment, "Judgments: New Mexico and the Additur," see 2 N.M.L. Rev. 101 (1972). Am. Jur. 2d, A.L.R. and C.J.S. references. - 58 Am. Jur. 2d New Trial §1 et seq. Abuse of witness by counsel as ground for new trial, 4 A.L.R. 414. Lis pendens, protection during time allowed for appeal, writ of error, or motion for new trial, 10 A.L.R. 415. Inattention of juror from sleepiness or other cause as ground for new trial, 12 A.L.R. 663, 88 A.L.R.2d 1275. Inability to perfect record for appeal as ground for new trial, 13 A.L.R. 102, 16 A.L.R. 1158, 107 A.L.R. 603. Violation of court rule by trial court as ground for new trial, 23 A.L.R. 52. Right of court, under its inherent power to grant a new trial, to disregard statute limiting time for filing or determining motion for new trial, 48 A.L.R. 362. Contact between juror and party or attorney during trial of civil case as ground for new trial, 55 A.L.R. 750, 62 A.L.R.2d 298. Conduct of party in courtroom tending improperly to influence jury as ground for new trial, 57 A.L.R. 62. Premature motion for new trial and its effect, 78 A.L.R. 1108. Running of limitations against proceeding to renew or revive judgment as affected by appeal or right of appeal from judgment, or by motion or right to move for new trial, 123 A.L.R. 565. Lower court's consideration, on the merits, of unreasonable application for new trial, rehearing, or other reexamination, as affecting time in which to apply for appellate review, 148 A.L.R. 795. Res judicata as affected by newly discovered evidence after judgment, 149 A.L.R. 1195. Expression of opinion by juror based upon or influenced by his own observation and experience in connection with his trade, business or profession as grounds for new trial, 156 A.L.R. 1033. Equity, new trial after jury's verdict in, on ground of error in rulings at trial, 156 A.L.R. 1165. Newly discovered evidence, corroborating testimony given only by a party or other interested witness, as ground for new trial, 158 A.L.R. 1253. Misinformation by judge or clerk of court as to status of case or time of trial or hearing as ground for new trial, 164 A.L.R. 537. Effect of exclusion of eligible class of persons from jury list in civil case, 166 A.L.R. 1422. Disregard of court's instructions in rendering an adequate verdict as ground of complaint by party against whom it is rendered, 174 A.L.R. 765. Allowance of, or refusal to allow, peremptory challenge after acceptance of juror, 3 A.L.R.2d 499. Voluntary statements damaging to accused, not proper subject for testimony, uttered by a testifying police or peace officer as ground for granting new trial, 8 A.L.R.2d 1013. Judgment as res judicata pending motion for a new trial or during the time allowed therefor, 9 A.L.R.2d 984. Statements of witness in civil action secured after trial inconsistent with his testimony as basis for new trial on ground of newly discovered evidence, 10 A.L.R.2d 381. Constitutional or statutory provision forbidding re-examination of facts tried by jury as affecting power to reduce or set aside verdict because of inadequacy, 11 A.L.R.2d 1217. Raising defense of statute of frauds by motion for new trial after failure to object to parol evidence, 15 A.L.R.2d 1330. Court's power to grant new trial as to both defendants, over their objection, because of verdict for the employer in absolving employee for latter's negligence, 16 A.L.R.2d 969. Coercive effect of verdict urging by judge in civil case, 19 A.L.R.2d 1257, 38 A.L.R.3d 1281, 41 A.L.R.3d 845, 41 A.L.R.3d 1154. Conditioning the setting aside of judgment or grant of new trial on payment of opposing attorney's fees, 21 A.L.R.2d 863. Necessity that trial court give parties notice and opportunity to be heard before ordering a new trial on its own motion, 23 A.L.R.2d 852. Prejudicial effect of argument that adversary was attempting to suppress facts, 29 A.L.R.2d 996. Prejudicial effect of admission of evidence as to communist or other subversive affiliation or association of accused, 30 A.L.R.2d 589. Evidence as to physical condition after trial as affecting right to new trial, 31 A.L.R.2d 1236. What constitutes final judgment within provision or rule limiting application for new trial to specified period thereafter, 34 A.L.R.2d 1181. Right to have reporter's notes read to jury, 50 A.L.R.2d 176. Facts or evidence forgotten at trial as newly discovered evidence which will warrant grant of new trial, 50 A.L.R.2d 994. Manifestation of emotion by party during civil trial as ground for new trial, 69 A.L.R.2d 954. Coaching of witness by spectator at trial as prejudicial error requiring new trial, 81 A.L.R.2d 1142. Time for filing motion for new trial based on jury conduct occurring before, but discovered after, verdict, 97 A.L.R.2d 788. Consent as ground of vacating judgment, or granting new trial, in civil case, after expiration of term or time prescribed by statute or rules of court, 3 A.L.R.3d 1191. Propriety and prejudicial effect of suggestions or comments by judge as to compromise or settlement of civil case, 6 A.L.R.3d 1457. Necessity and propriety of counteraffidavits in opposition to motion for new trial in civil case, 7 A.L.R.3d 1000. Propriety and prejudicial effect of instructions in civil case as affected by the manner in which they are written, 10 A.L.R.3d 501. Prejudicial effect of unauthorized view by jury in civil case of scene of accident or premises in question, 11 A.L.R.3d 918. Propriety and prejudicial effect of reference by counsel in civil case to result of former trial of same case, or amount of verdict therein, 15 A.L.R.3d 1101. Absence of judge from courtroom during trial of civil case, 25 A.L.R.3d 637. Recantation by prosecuting witness in sex crime as ground for new trial, 51 A.L.R.3d 907. Juror's voir dire denial or nondisclosure of acquaintance or relationship with attorney in case, or with partner or associate of such attorney, as ground for new trial or mistrial, 64 A.L.R.3d 126. Amendment, after expiration of time for filing motion for new trial, in civil case, of motion made in due time, 69 A.L.R.3d 845. Amendment, after expiration of time for filing motion for new trial in criminal case, of motion made in due time, 69 A.L.R.3d 933. Jury trial waiver as binding on later state civil trial, 48 A.L.R.4th 747. Validity of verdict awarding medical expenses to personal injury plaintiff, but failing to award damages for pain and suffering, 55 A.L.R.4th 186. Court reporter's death or disability prior to transcribing notes as grounds for reversal or new trial, 57 A.L.R.4th 1049. Filing of notice of appeal as affecting jurisdiction of state trial court to consider motion to vacate judgment, 5 A.L.R.5th 422. Propriety of limiting to issue of damages alone new trial granted on ground of inadequacy of damages - modern cases, 5 A.L.R.5th 875. Excessiveness or adequacy of damages awarded for injuries causing metal or psychological damage, 52 A.L.R. 5th 1. Time limitations under Rule 59(b) of Federal Rules of Civil Procedure, 45 A.L.R. Fed. 104. Request for attorney fees as motion to alter or amend judgment within Federal Rule of Civil Procedure 59(e), 74 A.L.R. Fed. 797. 49 C.J.S. Judgments §§ 279 to 304; 66 C.J.S. New Trials §§ 2, 3.