Overview

Keyword Index

SECTION 1.1
JURISDICTION; TIME LIMITS

1.1-1 Jurisdiction
A. General
B. Jurisdiction: Monetary Limit
C. Subject-Matter Jurisdiction: Exclusions
D. Subject-Matter Jurisdiction: Kinds of Actions
E. Territorial Jurisdiction
F. Venue of Actions
G. Personal Jurisdiction
H. Indian Jurisdiction

1.1-2 Time Limits for Bringing Actions
A. Computation of Time Limits
B. Time Limits in General
C. Other Time Limits
D. Determination That Time Limit Has Passed

SECTION 1.2
CIVIL PROCEDURE BEFORE TRIAL

1.2-1 Complaint
A. Filing of Complaint and Docketing of Action
B. Other Matters Related to Complaint

1.2-2 Summons
A. Purpose
B. Issuance
C. Service of Process - General
D. Service of Process - Methods of Service
E. Service by Mail
F. Who May Serve
G. Proof of Service of Process; Return

1.2-3 Answer, Counterclaim, Third-Party Complaint
A. General
B. Counterclaim or Setoff
C. Third-Party Complaint
D. Interpleader
E. Filing of Answer
F. Jury Demand by Defendant
G. Clarifying or Amending Complaint or Answer
H. Service of the Answer
I. Defenses
J. Default

1.2-4 Pleadings and Motions
A. Service and Filing of Papers
B. Pleadings
C. Motions
D. Motion for Judgment on the Pleadings
E. Motion for Summary Judgment

1.2-5 Parties
A. Who may Sue; Real Party in Interest
B. Minors and Incapacitated Persons
C. Death or Incapacity; Transfer of Interest
D. Joinder of Parties
E. Pro Se and Attorney Appearance
F. Other Authorized Appearances
G. Attorney Appearance
H. Withdrawal or Attorney Failure to Act

1.2-6 Dismissal
A. Definitions; General
B. Voluntary Dismissal Without Court Order
C. Voluntary Dismissal By Court Order
D. Involuntary Dismissal By Court Order
E. Counterclaims, Cross-Claims
and Third-Party Claims
F. Costs of Previously Dismissed Action
G. Filing; Service

1.2-7 Other Preliminary Matters
A. Discovery
B. Pretrial Conference
C. Notice of Trial
D. Recording of Trial
E. Appointment of Special Master, Arbitrator or Metropolitan Court Judge Pro Tempore

1.2-8 Joint and Separate Trials
A. Reasons
B. Motions; Order

SECTION 1.3
JUDGMENT; ENFORCEMENT; APPEAL

1.3-1 Judgment
A. Definition
B. Entry of Judgment
C. Multiple Claims or Multiple Parties
D. Damages
E. Interest to Date
F. Costs to be Reimbursed (Taxing Costs)
G. Satisfaction of Judgment
H. Relief from Judgment: Clerical Mistake
I. Relief from Judgment: Void Judgment

1.3-2 Default Judgment
A. Definition; Types
B. Entry of Default Judgment
C. Motion to Set Aside Default Judgment
D. Multiple Parties

1.3-3 Reserved

1.3-4 Determination of Judgment Debtor's Assets
A. Judgment Debtor Examination
B. Deposition

1.3-5 Appeal
A. Right of Appeal
B. Notice of Appeal
C. Record on Appeal
D. Stay of Proceedings to Enforce Judgment
E. Review and Remand

SECTION 1.4
EXECUTIONS AND GARNISHMENTS

1.4-1 Executions of Judgments
A. Definitions; General
B. Writ of Execution
C. Exemptions
D. Claim of Exemption for Satisfaction of Separate and Community Debts
E. Transcript of Judgment
F. Levy and Sheriff's Sale
G. Renewal of Execution
H. Examinations and Depositions to Aid Execution

1.4-2 Garnishment
A. Definitions; General
B. Types of Garnishment
C. Garnishment in Advance of Execution
D. Garnishment in Aid of Execution of Judgment
E. Garnishment in Aid of Execution of Judgment Entered in Another Court
F. Default Judgment Against Garnishee
G. Release of Garnishment
H. Miscellaneous
I. Appeals on Rulings on Claims of Exemptions

SECTION 1.5
SPECIAL PROCEEDINGS

1.5-1 Attachment
A. Definition
B. Constitutionality
C. Procedures
D. Attachment Service Response
E. Dissolution of Attachment
F. Exemptions from Attachmen
G. Appeals in Attachment

1.5-2 Replevin
A. Definition
B. Complaint; Limits
C. Judgment; Execution

1.5-3 Forcible Entry or Unlawful Detainer
A. Procedure; Complaint
B. Judgment
C. Execution
D. Appeal

1.5-4 Bankruptcy
A. Overview of the Bankruptcy Process
B. Effect of Bankruptcy on Civil Court Cases
C. Effect of Bankruptcy on Criminal Court Cases
D. Effect of Bankruptcy on Collection of Criminal Fees and Fines

SECTION 1.6
LANDLORD-TENANT PROCEEDINGS

1.6-1 Uniform Owner-Resident Relations Act
A. Important Note
B. Coverage; Application of Act
Chart: Obligations of Owner and Resident Under Owner-Resident Relations Act
C. Obligations of the Owner Under the Act
D. Obligations of the Resident Under the Act
E. Types of Actions Allowed Under the Act
Chart Owner Resident Relations Act
Causes of Action
F. Notice
G. Termination of Rental Agreements and Abatement of Rent
H. Actions for Possession
I. Actions for Damages
J. Petition by Owner for Restitution; Petition by Resident for Relief; Summons
K. Judgment; Writ of Restitution
L. Actions for Counterclaim
M. Appeal in Actions for Possession
N. Deposits
O. Disposition of Property Left on Premises

1.6-2 Mobile Home Act
A. Application of Act
B. Conflicts of Law
C. Obligations of Owner
D. Obligations of Tenant
E. Tenancy Requirements, Rental Agreements
F. Termination of Tenancy
G. Action for Termination/Forcible Entry/Detainer
H. Security Agreements/Deposits
I. Alternative Dispute Resolution
J. Conflicts of Law/Mediation

CRIMINAL CHAPTER

SECTION 2.1
MISDEMEANORS: GENERAL; PROCEDURES BEFORE TRIAL

2.1-1 General
A. Definitions
B. Jurisdiction
C. Venue
D. Time Limitations
E. Determination of Present Competency

2.1-2 Complaint; Summons; Arrest Warrant
A. Filing Complaint and Docketing of Action
B. Criminal Summons
C. Arrest without a Warrant
D. Preliminary Rights
E. Probable Cause Determination
F. Detention Hearing for Children
G. Arrest Warrant

2.1-3 Arraignment
A. Definition; General
B. Juveniles in the Magistrate and
Metropolitan Courts
C. Explanation of Rights
D. Representation by Counsel
E. Entry of Plea

2.1-4 Joint and Separate Trials
A. Joinder of Offenses
B. Joinder of Defendants
C. Consolidation
D. Severance; Separate Trials

2.1-5 Jury Trial
A. Right to Jury Trial
B. Exercise or Waiver of the Right to Jury

2.1-6 Dismissal
A. Definitions; General
B. Voluntary Dismissal by Prosecution
C. Dismissal for Failure to Prosecute
D. Refiled Complaints in Metropolitan Court

2.1-7 Sentencing Options
A. Deferral, Suspension and Probation

2.1-8 Other Preliminary Matters
A. Subpoenas
B. Discovery
C. Pretrial Conference
D. Motions
E. Recording of Trial
F. Service and Filing by Facsimile
G. Service and Filing by Electronic Transmission

SECTION 2.2
FELONIES

2.2-1 General
A. Definition
B. Authority of Court

2.2-2 Complaint and Arrest Warrant
A. Filing Complaint and Docketing of Action
B. Issuance of Arrest Warrant
C. Arrest and Return
D. Arrest Followed by Complaint
E. Amendment of Complaints

2.2-3 First Appearance
A. Definition; General
B. Explanation of Rights
C. Representation by Counsel
D. Determination of Indigency
E. Release; Bail
F. Explanation of Preliminary Examination and Grand Jury Indictment Process
G. Dialogue for First Appearance

2.2-4 Fugitive Actions
A. Fugitive Complaint
B. Arraignment and Commitment Hearing
C. Transfer of Actions

SECTION 2.3
MISDEMEANORS: JUDGMENT; SENTENCE; APPEAL

2.3-1 General
A. Judgment and Sentence; Written Orders
B. Right to Appeal

2.3-2 Sentencing
A. Pre-Sentence Report
B. Sentencing Options
C. Sentencing for Hate Crimes
D. Terms and Conditions of a Deferred or Suspended Sentence: Probation
E. Successful Completion of or Violation and Revocation of Probation

2.3-3 Court Costs and Fines
Payment of Court Costs and Fines

2.3-4 Appeal
A. Right, Notice and Docketing of Appeal
B. Transcript of Proceedings
C. Conditions of Release
D. Disposition; Time Limitations

SECTION 2.4
GAME AND FISH VIOLATIONS

2.4 Game and Fish Violations
A. Jurisdiction; Penalties
B. Arrest; Search Warrants; Citations
C. Prosecution

SECTION 2.5
SEARCH AND SEIZURE

2.5-1 Search Warrants
A. General
B. Sufficiency of Affidavit; Probable Cause

2.5-2 Searches Without Warrants
A. General
B. Searches of Persons and Places
C. Searches of Motor Vehicles

2.5-3 Motion to Suppress
A. General
B. Who May File Motion
C. Grounds for Suppression

2.5-4 Gambling: Search and Seizure
A. Affidavit
B. Search Warrant
C. Execution: Arrest

2.5-5 Inspection Orders
A. Administrative Inspection; Defined
B. Application for Inspectorial Search Order
C. Probable Cause for Issuance of Inspection Order
D. Exceptions to Requirement for Inspection Order

SECTION 2.6
RELEASE; BAIL

2.6-1 General
A. Right to Release; Purpose of Conditions
B. Factors to be Considered Prior to
Setting Conditions of Release
C. Conditions of Release to Assure Orderly Administration of Justice
D. Release Proceedings
E. Release Forms
F. Failure to Comply with Conditions of Release
G. Failure to Appear
H. Forfeiture of bail -- exoneration
I. Misdemeanors: Continuation and
Review of Release

2.6-2 Personal Recognizance and Bonds
A. Personal Recognizance
B. Bonds; General
C. Unsecured Appearance Bond
D. Appearance Bond: Cash Deposit.
E. Appearance Bond: 100 Percent Cash Deposit
F. Bail Bond
G. Bail Bond: Discharge of Surety
H. Bonds: Forfeiture

GENERAL CIVIL & CRIMINAL CHAPTER

SECTION 3.1
SUBPOENAS

3.1 Subpoenas
A. General
B. Issuance; General Rules
C. Service of Subpoena
D. Motion to Quash Subpoena
E. Failure of Appear

SECTION 3.2
JURY SELECTION AND TRIALS

3.2-1 Calling of Prospective Jurors
A. General
B. Request for Qualified Jurors
C. Excusing
D. Jury Costs

3.2-2 Trials General

3.2-3 Calling the Cause
A. Start of Trial
B. Readiness to Proceed with Trial
C. Motion to Quash Jury Array
Appendix
UJI Civil 13-106 7
UJI Criminal 14-101 10

3.2-4 Selection of Jury
A. Calling Jurors
B. Voir Dire: General
C. Challenges for Cause
D. Drawing Names
E. Peremptory Challenges
F. Additional Jurors
G. General
Appendix
   Voir Dire Instructions in Civil Cases
   Voir Dire Instructions in Criminal Cases

3.2-5 Oath to Jurors; Preliminary Instructions
A. Oath
B. Preliminary Instructions
C. Opening statement -- UJI Civil 13-108
Appendix
   Preliminary Instructions in Civil Cases
   Preliminary Instructions in Criminal Cases

3.2-6 Witness Oath; Exclusion Rules; Opening Statements
A. Witness Oath
B. Exclusion Rule
C. Opening Statements

3.2-7 Presentation of Evidence
A. Order of Presentation
B. Witnesses: Testimony
C. Defendant as Witness
D. Introduction of Documentary Evidence and Other Things
E. Objections
F. Confessions

3.2-8 Rules of Evidence
A. Overview
B. Application of the Rules of Evidence
C. Construction of the Rules of Evidence
D. General Principles of Evidence
E. Relevancy
F. Evidence on Specific Topics
G. Witness Testimony
H. Hearsay
I. Privileges

3.2-9 Instructions to Jury
A. General
B. Instructions in Criminal Cases
C. Instructions in Civil Cases
D. Requested Instructions

3.2-10 Closing Arguments
A. Definition
B. Order of Presentation

3.2-11 Jury Deliberation; Verdict; Trial by Court
A. Deliberation
B. Procedure When Jury Reaches Verdict
C. Failure of Jury to Reach Verdict
D. Trial by Court: Nonjury Trials

3.2-12 Motions for Directed Verdict or Dismissal During Trial
A. Motion for Directed Verdict
B. Motions for Dismissal

3.2-13 Motion for New Trial

3.2-14 Preservation and Disposition of Exhibits
A. Preservation
B. Return to Court for Appeal
C. Final Disposition

SECTION 3.3
BENCH WARRANT

3.3 Bench Warrant
A. General
B. Issuance
C. Execution; Return
D. Grounds for Issuing Bench Warrant

SECTION 3.4
CONTEMPT

3.4 Contempt
A. General; Definitions
B. Direct Contempt
C. Indirect Contempt
D. Notice
E. Hearing
F. Punishment; Appeal

SECTION 3.5
EXCUSAL, RECUSAL, INABILITY TO PROCEED

3.5-1 Excusal, Recusal, Inability to Proceed
A. Excusal
B. Recusal
C. Inability of a Judge to Proceed
D. Procedure for Replacing a Judge Upon Excusal or Recusal - Magistrate Court
E. Procedure for Replacing a Judge Upon Excusal or Recusal - Metropolitan Court

3.5-2 Recording of Proceedings
A. Record
B. Broadcasting and Photographs

SECTION 3.6
EFFECTIVE DATES OF STATUTES AND COURT RULES

3.6 Effective Dates of Statute and Court Rules
A. General
B. Exceptions

1.2-4 Pleadings and Motions

A. Service and Filing of Papers (Magis. Ct. R. 2-203; Metro. Ct. R. 3-203)

1. When Required. Unless the court orders otherwise, every pleading subsequent to the complaint, every order not entered in open court, every written motion unless it is one as to which a hearing ex parte is authorized, and every written notice, demand and similar paper shall be served on each party. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons.
2. How Made. When service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party himself is ordered by the court. Magis. Ct. R. 2-203; Metro. Ct. R. 3-203. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address, or if no address is known, by leaving it with the judge or clerk of the court who shall place it in the court file. "Delivery of a copy" within this rule means: handing it to the attorney or to the party; or leaving it at his office with his secretary or other person in charge; or if there is no one in charge, leaving it in a conspicuous place therein; or if the office is closed or the person to be served has no office, leaving it at his usual place of abode with some person of his family above fifteen (15) years of age and informing such person of the contents thereof; or leaving it in a mail depository authorized by the attorney to be served. Service by mail shall be deemed complete upon mailing. "Mailing" shall include deposit in an outgoing mail container, postage prepaid for ordinary first class mail.
3. Filing. All original papers, copies of which are required to be served upon parties, must be filed with the court either before service or immediately thereafter. The date of filing and the identity of the person receiving the papers shall be noted thereon and the papers placed in the court file.
4. Proof of Service. Except as otherwise provided in these rules or by order of the court, proof of service shall be made by the certificate of an attorney of record, or if made by any other person, by the affidavit of such person. The certificate or affidavit shall be filed with the clerk of the court or endorsed on the pleading, motion or other paper required to be served.
5. Service and Filing by Facsimile. (Magis. Ct. R. 2-204; Metro. Ct. R. 3-204)

   a. A party may file a copy of any pleading or other paper by faxing it directly to the court if (1) no fee is required for filing; (2) only one copy is required; (3) it does not exceed 10 pages in length; and (4) it has a cover sheet with the required information.

   b. A party may file a copy of any pleading or other paper by faxing it to an intermediary agent who files it in person with the court. Filing in this manner is not subject to the restrictions in 5(a) above.

   c. A facsimile copy has the same effect as any other filing for all procedural and statutory purposes.

   d. Faxed filings must be sent to a number designated by the clerk. Judges may permit faxing to a number designated by the judge, who must note on the copy the date and promptly give it to the clerk's office.

   e. The court may use facsimile transmission for issuance of notice, orders or writs. A notice, order, writ, pleading or paper may be faxed to a party or attorney who has listed a fax number on a pleading or paper filed in the action with the court, or has letterhead with a fax number, or has agreed to be served by fax.

   f. Proof of facsimile service must include (1) a statement that the pleading or paper was transmitted by fax and reported as complete; (2) the time, date and sending and receiving fax numbers; and (3) the name of the person who made the fax transmission.

   g. A party has the right to inspect and copy the original of any pleading or paper that has been filed or served by fax if the pleading or paper has a statement signed under oath or affirmation or penalty of perjury.

6. Service and Filing by Electronic Transmission. (Magis. Ct. R. 2-205; Metro. Ct. R. 3-205)

   a. Pleadings and other papers ("documents") may be filed and served by electronic transmission, which is the transfer of data from one computer to another, other than by fax. These documents may be filed with the court if the court has adopted technical specifications for electronic transmission and if there is either no filing fee or payment is made at the time of filing.

   b. The court may send documents to, and service may be made upon, an attorney registered with the Supreme Court as accepting documents by electronic transmission and to any other person who agrees to accept documents in this manner.

   c. Proof of electronic transmission service must be made by an attorney certificate or non-attorney affidavit and include (1) the name of the person who sent the document; (2) the time, date and electronic address of the sender; (3) the electronic address of the recipient; and (4) a statement that the document was successfully served by electronic transmission.

   d. A party has the right to inspect and copy any document that has been filed or served by electronic transmission if the document has a statement signed under oath or affirmation or penalty of perjury.

7. Notice. A party giving notice shall provide sufficient information to give actual notice of the event and shall communicate such notice to the attorney for the party to be given notice or to the party himself if he has no attorney. Except as otherwise ordered by the court, notice may be by any method accepted in the usual course of business.
8. Filing of Motions Whenever, by these rules, a motion is required to be "made" within a specified time, the motion shall be deemed to be made at the time it is filed or at the time it is served, whichever is earlier.
9. Attorneys. Attorneys of record continue to be subject to service for ninety (90) days after entry of final judgment. This rule does not preclude the earlier withdrawal of counsel as provided by court rule. Magis. Ct. R. 2-108(C); Metro. Ct. R. 3-108(C). In the event of further legal proceedings between the parties after ninety (90) days have passed, the moving party must effect service of process upon the responding party in the manner prescribed above and in court rules. Magis. Ct. R. 2-108(D), 2-202; Metro. Ct. R. 3-108(D), 3-202.

B. Pleadings (Magis. Ct. R. 2-301; Metro. Ct. R. 3-301)

1. Pleadings are limited to the complaint, the answer, the third-party complaint and interpleader for persons having claims for funds from a third party if the plaintiff may be exposed to double or multiple liability.
2. Any exhibit attached to a pleading is considered to be a part of the pleading. At trial, the exhibit must be properly admitted as evidence under the Rules of Evidence, or be stipulated as admitted by the parties or their attorneys. Magis. Ct. R. 2-301; Metro. Ct. R. 3-301.
3. Pleadings must be signed either by the party or the party's attorney. Magis. Ct. R. 2-301(I); Metro. Ct. R. 3-301(I).
4. The signature of a party or his attorney on a pleading certifies that he or she has read it, there is good ground to support it, and it is not used to delay. "Signature" includes an original signature, a copy of an original signature, a computer generated signature, or any other legally authorized signature. Pleadings that do not meet such criteria may be stricken by the court as false. Magis. Ct. R. 2-301(I); Metro. Ct. R. 3-301(I).
5. Amended and supplemental pleadings are allowed. (Magis. Ct. R. 2-304; Metro. Ct. R. 3-304)

   a. They must be marked as amended supplemental pleadings.

   b. The party filing the amended or supplemental pleading must serve it on the opposing party in the manner provided for service of pleadings and other papers.

   c. Continuances to examine new material asserted in amended or supplemental pleadings may be granted within the discretion of the Court if necessary to avoid surprise or other prejudice to the opposing party. Magis. Ct. R. 2-304; Metro. Ct. R. 3-304; see also Bombach v. Battershell, 105 N.M. 625, 735 P.2d 1131 (1987). A denial of a continuance will be reversed only upon a showing of abuse of discretion.

   d. A supplemental pleading may state a different claim or defense if new claims or defenses have arisen since the date of the pleading to be supplemented.

   e. A pleading may be amended at any time before entry of final judgment by permission of the judge. Malone v. Swift Meats Co., 91 N.M. 359, 574 P.2d 283 (1978).f. Permission to amend a pleading shall be freely granted if the trial of the action on its merits will be advanced.

C. Motions

1. All written motions must be served on the opposing party as provided for service of pleadings and other papers, unless the motions is one as to which a hearing ex parte is allowed. Magis. Ct. R. 2-303(A); Metro. Ct. R. 3-203(A).
2. Written motions are allowed only:

   a. when permitted by the court rules; or

   b. when required by the nature of the proceedings. Magis. Ct. R. 2-301(G); Metro. Ct. R. 3-301(G).

3. If the judge determines that a hearing should be held on an oral motion, notice of the hearing must be given to the opposing party by the moving party.
4. A written motion, other than one that may be heard ex parte, and a written notice of hearing must be served on the opposing party by the moving party no less than five (5) days before the date of hearing. Magis. Ct. R. 2-104(C); Metro. Ct. R. 3-104(C). Note, however, that in Metropolitan court, motions for summary judgment must be served at least ten days before the motion hearing. Metro. Ct. R. 3-703(C). Notice may be by any method accepted in the usual course of business.
5. The following are examples of written motions:

   a. Motion for extension of time. Magis. Ct. R. 2-104(B); Metro. Ct. R. 3-104(B).

   b. Motion to have answer clarified or explained (defenses may not be raised in the motion). Magis. Ct. R. 2-302(B); Metro. Ct. R. 3-302(B).

   c. Motion to file amended or supplemental pleadings. Magis. Ct. R. 2-304; Metro. Ct. R. 3-304.

   d. Motion for judgment on the pleadings. Magis. Ct. R. 2-303; Metro. Ct. R. 3-303.

   e. In Metropolitan Court, motion for summary judgment. Metro. Ct. R. 3-703.

   f. Motion for dismissal for failure of the plaintiff to pursue the case Magis. Ct. R. 2-305(B); Metro. Ct. R. 3-305(B); Civil Form 4-305 (Order Dismissing Action for Failure to Prosecute).

   g. Motion for substitution or joinder of parties. Magis. Ct. R. 2-401(A); Metro. Ct. R. 3-401(A).

   h. Motion to consolidate cases for trial. Magis. Ct. R. 2-402(B) & (C); Metro. Ct. R. 3-402(B) & (C).

   i. Motion for production. Magis. Ct. R. 2-601; Metro. Ct. R. 3-501; Civil Form 4-501 (Motion for Production).

   j. Motion for pre-trial conference. Magis. Ct. R. 2-306; Metro. Ct. R. 3-306.

   k. Motion for continuance. Magis. Ct. R. 2-601(A); Metro. Ct. R. 3-601(A).

   l. Motion for withdrawal or substitution of attorneys. Magis. Ct. R. 2-108(A); Metro. Ct. R. 3-108(A).

   m. Motion to correct clerical mistakes Magis. Ct. R. 2-703(A); Metro. Ct. R. 3-704(A).

   n. Motion for relief from judgment. Magis. Ct. R. 2-703(B); Metro. Ct. R. 3-704(B);

   o. Motion to set aside default judgment. Magis. Ct. R. 2-702(C); Metro. Ct. R. 3-702(C); Civil Form 4-704 (Motion to Set Aside Default Judgment).

   p. Motion for appointment of guardian ad litem. Magis. Ct. R. 2-401(C); Metro. Ct. R. 3-401(C); see also §1.2-5(B) of this Benchbook regarding minors and incapacitated persons.

   q. Motion to quash or modify subpoena. See §3.1(D) of this Benchbook regarding motion to quash subpoenas.

   r. Motion to strike pleadings. Magis. Ct. R. 2-301(I); Metro. Ct. R. 3-301(I).

   s. motion to remove to district court.

6. Before, during, and after trial, motions may be made which must be granted or denied by the judge. Compare Dist. Ct. R. 1-012 and 1-050; see also §3.2-11 of this Benchbook regarding motions during trial.

D. Motions for Judgment on the Pleadings (Magis. Ct. Rule 2-303; Metro. Ct. R. 3-303; Civil Form 4-303 (Motion for Judgment on the Pleadings))

1. A claimant may make a motion for judgment on the pleadings at any time after an answer or reply by an adverse party. If the answer raises issues of law only, and the essential facts in the case are not disputed, a motion for judgment on the pleadings may properly be considered. Western Commerce Bank v. Reliance Insurance Co., 105 N.M. 346, 732 P.2d 873 (1987).
2. A defending party may make a motion for judgment on the pleadings at any time. Magis. Ct. R. 2-303(B); Metro. Ct. R. 3-303(B).
3. A motion for judgment on the pleadings must be served at least five days prior to the hearing. Magis. Ct. R. 2-303(C); Metro. Ct. R. 3-303(C).
4. A judgment on the pleadings may be rendered on the issue of liability, even though there is a genuine issue as to the amount of damages. Magis. Ct. R. 2-303(C); Metro. Ct. R. 3-303(C).

E. Motion for Summary Judgment

1. Summary judgment is available only in the Metropolitan Court. Metro. Ct. R. 3-703. It may be filed by any part at any time after the expiration of twenty (20) days from the commencement of the action or after service of a motion for summary judgment by the adverse party.
2. The motion must be served at least ten (10) days before the hearing.
3. The motion may request summary judgment on any or all claims. Metro. Ct. R. 3-703 (C), (E) – (G).
4. A party may support a motion for or reply opposing summary judgment or judgment on the pleadings:

   a. by affidavit; or

   b. in the case of a party not represented by counsel, at the hearing where the party may appear by being sworn and making material statements.

5. Affidavits opposing the summary judgment motion may be served prior to the day of the hearing. Metro. Ct. R. 3-703(C).
6. The judge must grant the motion and render judgment for the prevailing party if the pleadings, affidavits and testimony show that there is no genuine issue as to any material fact that would prevent the moving party from prevailing as a matter of law. Metro. Ct. R. 3-703(C).
7. A summary judgment may be rendered on the issue of liability, even though there is a genuine issue as to the amount of damages. Metro. Ct. R. 3-703(C).
8. When presented with a summary judgment motion or motion for judgment on the pleadings, the judge may issue an order establishing those material facts that are uncontroverted and hold trial on facts that are substantially disputed. Magis. Ct. R. 2-303; Metro. Ct. R. 3-303 and 3-703(C).

   a. The judge may issue an order specifying the facts without substantial controversy, which may include an undisputed amount of damages.

   b. The judge will hold trial on only the facts that exist with substantial controversy.