2023 New Mexico Statutes › Chapter 39 - Judgments, Costs, Appeals › Article 3 - Appeals › Section 39-3-4 - Interlocutory order appeals from district court.

A. In any civil action or special statutory proceeding in the district court, when the district judge makes an interlocutory order or decision which does not practically dispose of the merits of the action and he believes the order or decision involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order or decision may materially advance the ultimate termination of the litigation, he shall so state in writing in the order or decision.
B. The supreme court or court of appeals has jurisdiction over an appeal from such an interlocutory order or decision, as appellate jurisdiction may be vested in those courts. Within fifteen days after entry of the order or decision, any party aggrieved may file with the clerk of the supreme court or court of appeals an application for an order allowing an appeal, accompanied by a copy of the interlocutory order or decision.
C. Application under this section for an order allowing appeal does not stay proceedings in the district court unless so ordered by the district judge or a judge or justice of the court to which application is made.
History:
1953 Comp., § 21-10-3, enacted by Laws 1971, ch. 40, § 1; 1999, ch. 80, § 1.
ANNOTATIONS
Cross references.
— For appellate jurisdiction of supreme court,
see
N.M. Const., art. VI, § 2; 39-3-2, 39-3-3 NMSA 1978.
For jurisdiction of court of appeals,
see
N.M. Const., art. VI, § 29.
For Uniform Certification of Questions of Law Act,
see
Chapter 39, Article 7 NMSA 1978.
For appellate jurisdiction of court of appeals,
see
34-5-8 NMSA 1978.
For when appeals taken,
see
Rules 12-201 and 12-203 NMRA.
For procedure on certiorari to review decision of court of appeals,
see
Rule 12-502 NMRA.
For procedure on certification from court of appeals,
see
Rule 12-606 NMRA.
The 1999 amendment,
effective July 1, 1999, in Subsection B, substituted "fifteen days" for "ten days" in the second sentence, and deleted the former last sentence, which read "If an application has not been acted upon within twenty days, it shall be deemed denied", and made a minor stylistic change.
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 "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 Pacific Trust, Inc. v. City of Albuquerque
, 2012-NMSC-028, 285 P.3d 595.
Appeal of barred issues.
— An application for interlocutory appeal will not be granted where the controlling questions of law advanced by the appellant relate to issues that the district court, in its partial judgment, barred as untimely raised.
Ellis v. Cigna Prop. & Cas. Cos.
, 2007-NMCA-123, 142 N.M. 497, 167 P.3d 945, cert. denied, 2007-NMCERT-009, 142 N.M. 715, 169 P.3d 408.
Jurisdiction over interlocutory appeal.
— Court of appeals had jurisdiction to entertain petitioner's application for interlocutory appeal, even though the application was granted more than 20 days after it was filed.
Lovelace Med. Ctr. v. Mendez
, 1991-NMSC-002, 111 N.M. 336, 805 P.2d 603.
The legislature did not intend the 20-day requirement in this section to be a limitation on the appellate courts' jurisdiction, conferred by that section, over interlocutory appeals. The requirement, in other words, was intended to assist the courts with the management of their cases in the absence of some other provision, not to limit the courts' jurisdiction.
Lovelace Med. Ctr. v. Mendez
, 1991-NMSC-002, 111 N.M. 336, 805 P.2d 603.
Allowance of interlocutory appeal is discretionary
with the appellate court.
State v. Hernandez
, 1980-NMCA-138, 95 N.M. 125, 619 P.2d 570, cert. denied, 95 N.M. 299, 621 P.2d 516.
Requirements of interlocutory appeals.
— Interlocutory appeals require the existence of a substantial difference of opinion on a controlling issue of law. Starko, Inc., et al. v. Cimarron Health Plan, Inc., 2005-NMCA-040, 137 N.M. 310, 110 P.3d 526, cert denied, 2005-NMCERT-004, 137 N.M. 454, 112 P.3d 1111.
Allowance of appeal not subject to challenge.
— The acceptance of an appeal by the court of appeals when there has been compliance with Subsection A of this section, is not subject to challenge.
Salazar v. St. Vincent Hosp.
, 1980-NMCA-095, 96 N.M. 409, 631 P.2d 315,
aff'd in part, rev'd in part
, 1980-NMSC-124, 95 N.M. 147, 619 P.2d 823.
When permission to appeal from interlocutory order is denied,
the appellate court never assumes jurisdiction of the matter; consequently, jurisdiction remains in the trial court and there is nothing to prevent the trial court from proceeding to try the pending case.
State v. Hernandez
, 1980-NMCA-138, 95 N.M. 125, 619 P.2d 570, cert. denied, 95 N.M. 299, 621 P.2d 516.
Extension of time for interlocutory appeal.
— Absent statutory authority or supreme court rule, appellate courts may not extend the time for an interlocutory appeal, even to relieve against mistake, inadvertence or accident. However, in appropriate circumstances, the district court may reconsider the issue and enter a second interlocutory order from which application for a timely interlocutory appeal may be made.
Candelaria v. Middle Rio Grande Conservancy Dist.
, 1988-NMCA-065, 107 N.M. 579, 761 P.2d 457.
Section gives jurisdiction to appellate court to deny motion for summary judgment.
— This section, along with 34-5-8 NMSA 1978, gives court of appeals jurisdiction over interlocutory appeal from an order or decision which does not practically dispose of the merits of the case. Therefore court could hear appeal of defendant whose motion for summary judgment in medical malpractice suit was denied.
Vaca v. Whitaker
, 1974-NMCA-011, 86 N.M. 79, 519 P.2d 315.
Section does not give jurisdiction to appellate court to grant motion to dismiss.
— Where an order denying defendant's motion to dismiss was a part of the main action, no final judgment or interlocutory order which practically disposed of the merits having been entered, and the order did not contain the requisite finding on which to base an application for an interlocutory appeal under this section, the argument that a decision whether to make the requisite finding should only have been made by the judge who held the motion hearing and could not have properly been made by a different judge was not an issue in the appeal because the order denying the motion to dismiss was not an appealable order.
Miller v. City of Albuquerque
, 1975-NMCA-099, 88 N.M. 324, 540 P.2d 254, cert. denied, 88 N.M. 319, 540 P.2d 249.
Order disqualifying counsel.
— Although an order disqualifying counsel may not be properly appealed under the collateral order doctrine, an appellate court may hear the issue if it is certified by the trial court for interlocutory appeal.
Sanders v. Rosenberg
, 1995-NMCA-039, 119 N.M. 811, 896 P.2d 491,
rev'd on other grounds
, 1997-NMSC-002, 122 N.M. 692, 930 P.2d 1144.
Denial of motion for protective order held not appealable.
— Doctors' appeal from order denying motion for protective order, which sought to have court order a stay in taking of deposition of patient seeking to perpetuate testimony until such time as court first determined competency of patient as witness, was not an appealable final judgment and was not appealable as interlocutory order where order did not comply with this section.
In re Bartow
, 1984-NMCA-074, 101 N.M. 532, 685 P.2d 387.
Appeals from children's court.
— The court of appeals has jurisdiction over appeals from interlocutory orders from the children's court pursuant to this section, as the children's court is a division of the district court.
In re Doe
, 1973-NMCA-141, 85 N.M. 691, 516 P.2d 201.
This section is not applicable to appeals from judgments of the children's court where the child was alleged to be delinquent or in need of supervision.
Health & Social Servs. Dep't v. Doe
, 1978-NMCA-045, 91 N.M. 675, 579 P.2d 801.
Remand of zoning decision not final.
— The district court's remand of a zoning matter to the city council was not a final, appealable order; before a party would have the right to challenge that order on appeal to the court of appeals, it would have to await the council decision on remand, obtain review of the council decision in district court, and then appeal the district court judgment.
High Ridge Hinkle Joint Venture v. City of Albuquerque
, 1994-NMCA-139, 119 N.M. 29, 888 P.2d 475, cert. denied, 119 N.M. 20, 888 P.2d 46,
aff'd
, 1997-NMCA-046, 123 N.M. 394, 940 P.2d 1189,
rev'd on other grounds
, 1998-NMSC-050, 126 N.M. 413, 970 P.2d 599.
Order not final appealable order.
— Where court order contained language required to certify an order for interlocutory appeal, and order also contained language certifying an order for immediate appeal as of right, the order is not a final appealable order.
Sys. Tech., Inc. v. Hall
, 2004-NMCA-130, 136 N.M.548 , 102 P.3d 107.
Law reviews.
— For comment, "New Mexico's Analogue to 28 U.S.C. § 1292(b): Interlocutory Appeals Come to the State Courts," see 2 N.M. L. Rev. 113 (1972).
For article, "Judicial Adoption of Comparative Fault in New Mexico: The Time Is at Hand," see 10 N.M.L. Rev. 3 (1979-80).
For annual survey of New Mexico law relating to civil procedure, see 13 N.M.L. Rev. 251 (1983).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 4 Am. Jur. 2d Appellate Review § 84 et seq.; 5 Am. Jur. 2d Appellate Review § 967 et seq.
Appealability of interlocutory orders in proceedings in bankruptcy, 33 A.L.R.2d 1366.
Reviewability, on appeal from final judgment, of interlocutory order, as affected by fact that order was separately appealable, 79 A.L.R.2d 1352.
Reviewability of order denying motion for summary judgment, 15 A.L.R.3d 899.
Appealability of order staying, or refusing to stay, action because of pendency of another action, 18 A.L.R.3d 400.
Appealability of state criminal court order requiring witness other than accused to undergo psychiatric examination, 17 A.L.R.4th 867.
Appealability of interlocutory or pendente lite order for temporary child custody, 82 A.L.R.5th 389.
4 C.J.S. Appeal and Error §§ 81, 298, 397; 5 C.J.S. Appeal and Error § 716.