IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2010-NMCA-088
Filing Date: October 8, 2009
Docket No. 29,269
TERRY JONES,
Plaintiff-Appellee,
v.
HARRIS NEWS, INC., d/b/a BIG EYE,
a New Mexico corporation doing business
in the State of New Mexico, and
JOSHUA A. MONTOYA,
Defendants-Appellants.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Nan G. Nash, District Judge
Whitener Law Firm, P.A.
Charles W. Bennett
Santa Fe, NM
for Appellee
O’Brien & Ulibarri, P.C.
Daniel P. Ulibarri
Albuquerque, NM
for Appellants
OPINION
WECHSLER, Judge.
{1} We address again in this appeal the differences between Rule 1-062(D) NMRA and
NMSA 1978, Section 39-3-22(A) (2007) with regard to obtaining a supersedeas bond and
stay of a district court judgment pending appeal. On December 1, 2008, the district court
entered judgment in favor of Plaintiff Terry Jones after a jury trial. It awarded compensatory
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damages of $380,000 and punitive damages of $895,000 against Defendant Harris News,
Inc. and punitive damages of $5000 against Defendant Joshua Montoya. Defendants filed
a timely notice of appeal. On February 23, 2009, after correspondence between the parties’
attorneys concerning the amount of a bond, Defendants filed a motion in the district court
to set the amount of a supersedeas bond on appeal and to stay execution of the judgment
pending the appeal. The district court denied the motion. Defendants then filed a motion
with this Court to review the district court’s denial, as well as the denial of their motions
concerning post-judgment interest and stay of Plaintiff’s application for a writ of
garnishment. We hold that the time restrictions of Section 39-3-22(A) for filing a
supersedeas bond conflict with the time for taking action under Rule 1-062(D) and that, in
this case, the restrictions in Section 39-3-22(A) should not be given effect to preclude
Defendants from seeking a stay and approval of a supersedeas bond. As a result of our
ruling on Defendants’ motion concerning the bond and stay, we do not address the other
aspects of Defendants’ motion.
{2} Both Rule 1-062(D) and Section 39-3-22(A) address the procedure available to an
appellant seeking a stay of a district court judgment pending appeal. Rule 1-062(D) is
permissive in its language. It allows an appellant to obtain a stay at any time after filing a
notice of appeal by giving a supersedeas bond that is approved by the district court sufficient
to satisfy the judgment, interest, and costs, as well as other contingencies of the appeal. Rule
1-062(D) provides in pertinent part:
When an appeal is taken, the appellant by giving a supersedeas bond
may obtain a stay . . . . The bond may be given at or after the time of filing
the notice of appeal . . . . The stay is effective when the supersedeas bond is
approved by the district court. The bond shall be conditioned for the
satisfaction of and compliance with the judgment in full together with costs,
interest and damages for delay if for any reason the appeal is dismissed or if
the judgment is affirmed, and to satisfy in full such modification of the
judgment and such costs, interest and damages as the appellate court may
adjudge and award. . . . When the judgment is for the recovery of money, the
amount of the bond shall be such sum as will cover the whole amount of the
judgment remaining unsatisfied, plus costs, interest and damages for delay.
{3} Section 39-3-22(A), in contrast, is a limiting statute. It expressly restricts a
supersedeas bond and stay of execution of a final judgment to cases in which an appellant
has acted within sixty days of the entry of judgment to execute a bond in an amount double
the amount of the judgment. Section 39-3-22(A) reads in pertinent part:
There shall be no supersedeas [bond] or stay of execution upon any
final judgment or decision of the district court in any civil action in which an
appeal has been taken . . . unless the appellant or plaintiff in error, or some
responsible person for [him], within sixty days from the entry of the
judgment or decision, executes a bond to the adverse party in double the
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amount of the judgment complained of, with sufficient sureties, and approved
by the clerk of the district court . . . . The bond shall be conditioned for the
payment of the judgment and all costs that may be finally adjudged against
[him] if the appeal . . . is dismissed or the judgment or decision of the district
court is affirmed. The district court, for good cause shown, may grant the
appellant not to exceed thirty days[] additional time within which to file the
bond . . . .
{4} The district court ruled that Section 39-3-22(A) applied and denied Defendants’
motion to set a supersedeas bond and stay execution of the judgment because Defendants did
not seek the bond within sixty days of the entry of the judgment. In their motion to this
Court, Defendants contend that the rule, rather than the statute, applies and that because Rule
1-062(D) does not limit the time in which they could pursue a bond after they filed a notice
of appeal, the district court erred in denying their motion. Plaintiff, on the other hand, argues
that the district court correctly applied the statute. We review the district court’s decision
under Rule 12-207(D) NMRA, setting it aside only if it “(1) is arbitrary, capricious or
reflects an abuse of discretion; (2) is not supported by substantial evidence; or (3) is
otherwise not in accordance with law.” Because our concern is the applicability of Section
39-3-22(A), we focus on the third aspect of Rule 12-207(D).
{5} We last addressed the tension between Rule 1-062(D) and Section 39-3-22(A) in
Grassie v. Roswell Hospital Corp., 2008-NMCA-076, 144 N.M. 241, 185 P.3d 1091, cert.
quashed, 2009-NMCERT-005, 146 N.M. 721, 214 P.3d 792, in which we considered the
statute’s requirement that the bond amount be double the judgment, which is a requirement
not included in the rule. We based our analysis in Grassie on our Supreme Court’s opinion
in Albuquerque Rape Crisis Center v. Blackmer, 2005-NMSC-032, 138 N.M. 398, 120 P.3d
820. Blackmer acknowledges that although the Supreme Court has the ultimate authority
to prescribe the rules of procedure for the courts of New Mexico, the Legislature may pass
statutes that affect court practice and procedure provided they do not conflict with Supreme
Court rules or impair “the essential functions of the Court.” Id. ¶¶ 5, 11. We thus concluded
from Blackmer that “if a legislative rule affects arguably the same subject matter as a
Supreme Court rule, courts must consider whether the purpose of the Legislature’s rule is
consistent with the Supreme Court rule.” Grassie, 2008-NMCA-076, ¶ 10 (internal
quotation marks and citation omitted). We sought to read the rule and the statute in a
consistent manner unless there is a “clear indication from the Supreme Court” that the rule
“was intended to supersede the statutory formula.” Id.
{6} We concluded in Grassie that Rule 1-062(D) and Section 39-3-22(A) do address the
same subject matter of determining the amount of a supersedeas bond and that they have the
same
underlying purpose of providing a means to ensure the status quo of the case
pending appeal—protecting the appellee from the risk of a later uncollectible
judgment and compensating the appellee for any loss resulting from the stay,
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while at the same time allowing the appellant to exercise the right to be free
from execution of the judgment during the appeal.
2008-NMCA-076, ¶ 11. We held that the district court’s setting a bond that comported with
the statutory amount requirement did not conflict with the rule’s requirement that a bond
“cover the whole amount of the judgment remaining unsatisfied, plus costs, interest and
damages for delay.” Id. ¶ 12 (internal quotation marks and citation omitted).
{7} Defendants’ motion brings before us a different tension between Rule 1-062(D) and
Section 39-3-22(A) from the one in Grassie; we are concerned not with the amount of the
supersedeas bond but, instead, with the time for its request. Nevertheless, our task is the
same as in Grassie—to determine whether there is a clear conflict between Rule 1-062(D)
and Section 39-3-22(A) with regard to a court practice or procedure as to the same subject
matter such that the statute is inconsistent with the Supreme Court’s rule.
{8} We first consider the foundational question of whether Rule 1-062(D) and Section
39-3-22(A) affect a court practice or procedure. “Generally, a substantive law creates,
defines, or regulates rights while procedural law outlines the means for enforcing those
rights.” State v. Valles, 2004-NMCA-118, ¶ 14, 140 N.M. 458, 143 P.3d 496. We
recognized in Grassie that “a stay pending appeal is a substantive right” that is “contingent
upon the appellant posting a satisfactory bond.” 2008-NMCA-076, ¶ 8. The posting of the
bond is procedural. Id. It follows that a directive concerning the time for pursuing the bond
is also procedural. Cf. Cummings v. State, 2007-NMSC-048, ¶ 17, 142 N.M. 656, 168 P.3d
1080 (discussing restrictions on time for filing an appeal as procedural).
{9} Grassie also resolved that Rule 1-062(D) and Section 39-3-22(A) address the same
subject matter of determining the amount of a supersedeas bond with the purpose of ensuring
the status quo and protecting the parties’ interests pending an appeal. Grassie, 2008-
NMCA-076, ¶ 11. In addition to addressing the amount of a bond, both Rule 1-062(D) and
Section 39-3-22(A) also address the time period in which an appellant may seek a
supersedeas bond. The rule and statute address the same subject matter as contemplated by
Blackmer.
{10} We thus turn to whether there is a clear conflict between Rule 1-062(D) and Section
39-3-22(A) with regard to the time period to pursue a supersedeas bond and, if so, whether
Section 39-3-22(A) is fatally inconsistent with Rule 1-062(D). With regard to the time
period for taking action, we view Rule 1-062(D) as a permissive rule, granting an appellant
the ability to give a bond “at or after the time of filing the notice of appeal.” It does not
restrict the time period once the appellant has commenced the appeal. On the other hand,
Section 39-3-22(A) specifically restricts the time period for action to sixty days from the
entry of judgment or decision, with the opportunity to extend the period to ninety days for
good cause. With this restriction in Section 39-3-22(A), we cannot read the statute
harmoniously with Rule 1-062(D).
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{11} Indeed, the Supreme Court’s intent in extending the opportunity to obtain a
supersedeas bond and stay of execution of a judgment without temporal limitation fulfills
the underlying purpose of the rule of ensuring the status quo pending appeal and protecting
the respective parties’ rights. See Grassie, 2008-NMCA-076, ¶ 11. Regardless of when an
appellant pursues the bond, if the appellant provides a sufficient bond as contemplated by
Rule 1-062(D), the appellee will be able to recover the amount of the judgment as well as
costs, interest, and damages for delay. If the appellant delays, and the appellee has already
partially executed on the judgment when the appellant obtains a bond, the appellant may
suffer the consequence. If the bond under Rule 1-062(D) is only set to cover the unsatisfied
amount of the judgment, plus costs, interest, and delay damages, and the appellant prevails
in the appeal, it will be the appellant who may then need to recover from the appellee for the
portion of the judgment that was satisfied.
{12} Finally, we note Plaintiff’s argument based on Long v. Continental Divide Electric
Cooperative, 117 N.M. 543, 873 P.2d 289 (Ct. App. 1994), that a district court may not
proceed under Rule 1-062(D) with deference to the time limitations of Section 39-3-22(A).
In support of this argument, Plaintiff also refers us to the compiler’s annotations to Rule 1-
062(D) that reference Long. The appellant in Long also did not request a stay or attempt to
post a bond within the statutory time limits of Section 39-3-22(A), and this Court granted
the appellees’ motion to lift the stay issued by the district court. Long, 117 N.M. at 544, 546,
873 P.2d at 290, 292. However, at the applicable time period in Long, Rule 1-062(D) did
not permit an appellant to give a bond “at or after the time of filing the notice of appeal” as
it currently does. Instead, the rule at that time also provided a time restriction, allowing the
posting of a bond “at any time within thirty (30) days after taking the appeal,” with an
allowable extension of an additional thirty days for good cause. Rule 1-062(D) SCRA (1992
Repl. Pamp.); Long, 117 N.M. at 544, 873 P.2d at 290. Although Plaintiff asserts that he
should be able to rely on the compiler’s annotation that discusses Long, the compiler’s
annotation is not the law of New Mexico, particularly in a situation such as ours, when the
rule was updated after Long. Cf. State v. Reed, 2005-NMSC-031, ¶ 69, 138 N.M. 365, 120
P.3d 447 (noting that committee commentary to uniform jury instructions is persuasive
authority, so long as it is not inconsistent with existing law).
{13} We thus conclude that Section 39-3-22(A) clearly conflicts with Rule 1-062(D)
regarding the time restrictions for filing a supersedeas bond and that the two provisions
cannot both be given effect. See Blackmer, 2005-NMSC-032, ¶ 11. Because the provisions
affect a court practice or procedure that is in the province of the Supreme Court, Rule 1-
062(D) prevails, and in the case before us, we will not give effect to the time restrictions
contained in Section 39-3-22(A).
CONCLUSION
{14} We grant Defendants’ motion to review the district court’s denial of a supersedeas
bond and stay of judgment pending appeal. On or before fifteen days from the date of our
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August 31, 2009 order, Defendants should submit to the district court for approval a
supersedeas bond in the amount of $2,560,000. The district court shall determine any
additional terms, conditions, and matters relating to a stay, as may be appropriate.
{15} IT IS SO ORDERED.
____________________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
____________________________________
MICHAEL D. BUSTAMANTE, Judge
____________________________________
JONATHAN B. SUTIN, Judge
Topic index for Jones v. Harris News, Inc., Docket No. 29,269
AE APPEAL AND ERROR
AE-SP Stay Pending Appeal
AE-SU Supersedeas Bond
CP CIVIL PROCEDURE
CP-CL Conflict of Laws
CP-RC Rules, Construction of Civil Procedure
CP-SG Stay of Proceedings
CT CONSTITUTIONAL
CT-SP Separation of Powers
CU COURTS
CU-IP Inherent Powers
ST STATUTES
ST-CS Conflicting Statutes
ST-RC Rules of Construction
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