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

1.6-2 Mobile Home Park Act

A. Application of Act
When disputes involving mobile homes are before the Court, the Court’s first task is to determine whether the Mobile Home Park Act or the Uniform Owner Resident Relations Act applies. Sections 47-8-3(F) & (Q), 47-10-1 through -23. For purposes of the Mobile Home Park Act, a "mobile home park" is a parcel of land used for the continuous accommodation of twelve or more occupied mobile homes that is operated for the monetary benefit of the land owner. Section 47-10-2(C). A mobile home park does not include mobile home subdivisions or property zoned for manufactured home subdivisions. Section 47-10-2(C); see also §§47-5-2(A) (defining subdivision generally) and 47-6-2(J) (defining county subdivisions). If the Mobile Home Park Act’s definition does not apply, the judge should consider whether the Uniform Owner-Resident Relations Act applies instead. See §1.6-2(I) of this Benchbook for a discussion of conflicts of law.

B. Conflicts of Law (§§47-8-52 and 47-10-18)
Unless a provision of the Mobile Home Park Act directly conflicts with provisions of the Uniform Owner-Resident Relations Act, the Uniform Owner-resident Relations Act shall apply to mobile home park owners and residents.

C. Obligations of Owner
If the Mobile Home Park Act applies, the landlord or the manager has certain responsibilities created by this position.

1. The management must adopt rules and regulations concerning all residents' use and occupancy of the premises. The Mobile Home Park Act establishes restrictions on the scope of allowable rules and requirements for adopting or amending rules. Section 47-10-15.
2. The management must ensure that all common areas of the mobile home park are open to all residents equally. Section 47-10-7.
3. The management must not make retaliatory or discriminatory regulations or rules. Section 47-10-15(D).
4. The management shall not require as a condition of tenancy that a tenant purchase a mobile home from any particular seller. Section 47-10-11; see also §47-10-16.
5. The management shall treat all persons equally in renting or leasing available space, except that all or any portion of a park may be designated for adult-only occupancy after six months' notice to residents. Section 47-10-15(D).
6. The management may not require any selling fee or transfer fee by a tenant who wishes to sell his mobile home or from a purchaser as a condition of tenancy unless such fees are agreed to in writing and are based on services actually performed. Section 47-10-12.

D. Obligations of Tenant (§47-10-5)
A tenant must comply with responsibilities created by written agreement.

1. The tenant must comply with local ordinances and state laws governing mobile homes. Section 47-10-5.
2. The tenant must conduct himself in such a manner as to not become an annoyance to other tenants or interfere with park management. Section 47-10-5.
3. The tenant must comply with written rules in the rental agreement or amended with thirty (30) days written notice. The management may amend at its discretion regulations applicable to recreation facilities. Section 47-10-5.
4. The tenant must pay rent when due or face the removal of his or her unit from the premises within three (3) days after notice is served or posted. Section 47-10-6.

E. Tenancy Requirements (§47-10-3)

1. A tenancy begins with the creation of a written agreement. This agreement may not be terminated without service of a notice to quit that is properly served on the tenant. The rental agreement must disclose certain information. Section 47-10-14. Specifically:
   
   a. Term of tenancy, amount of rent and amount of any rent increases in the preceding two years;
   
   b. Day upon which rent is due;
   
   c. Day when unpaid rent is considered in default;
   
   d. Rules and regulations then in effect;
   
   e. Zoning applicable to property;
   
   f. The name and mailing address where a manager's decision may be appealed;
   
   g. The name and address of the park owner;
   
   h. All charges to the tenant other than rent;
   
   i. A statement explaining the resident's right to request alternative dispute
   resolution of any disputes with the owner or management, except for nonpayment of rent or utilities or in the case of public safety emergencies;
   
   j. Signatures of management and tenant with each party receiving a copy; and
   
   k. Any other terms and conditions not prohibited by the Mobile Home Act. Sections 47-10-11 through -13.
2. If an owner deliberately uses a rental agreement containing provisions that are prohibited by law, the tenant may bring an action for damages and may recover attorney fees. Section 47-10-14(D).

F. Termination of Tenancy
A written notice is required to terminate a tenancy. Section 47-10-3. The notice must state:

1. Name of landlord or park;
2. Mailing address of the property;
3. Location or space number of the mobile home;
4. County in which the home is located;
5. The reason for termination, including the date, place and circumstances of acts justifying termination.
6. The notice must be served personally or affixed to the mobile home and sent by certified mail. Section 47-10-3(B). The tenant has a period of thirty (30) days from the end of the rental period during which the termination was served to remove any mobile home from the park. Section 47-10-3(C). A tenant who has a multi-section home or who is leasing his or her home to a third party shall have sixty (60) days to remove their home. Section 47-10-3(C).
7. Tenancy may not be terminated by a park owner solely because of the mobile home's size or age. Section 47-10-3(E).

G. Action for Termination/Forcible Entry and Detainer (Section 47-10-4)
An action for termination is filed and served in the same manner as an action pursuant to the Uniform Owner Resident Relations Act. Section 47-8-46. Upon granting judgment for possession by the landlord, the court issues a writ of restitution. Section 47-10-9. The notice of judgment shall state that within forty-eight (48) hours after entry of the judgment, the sheriff will serve the writ and superintend the removal of the mobile home from the premises. Specifics for removal are delineated in the statute. Section 47-10-9(B)-(F); Civil Forms 4-921 (Three-Day Notice of Nonpayment of Rent) and 4-922 (Thirty-Day and Sixty-Day Notice to Quit).

H. Security Agreements/Deposits

1. When a security agreement on the mobile home is known to exist, the Plaintiff must promptly inform the holder of the agreement as to the location of the home, the person who obtained the writ, and the time when the home is to be moved. Section 47-10-9(G).
2. A security deposit against actual damages to the premises or to secure rental payments may only be the amount of one month's rent or two months’ rent for multi-wide units. Sections 47-10-8 & -10. Deposits remain the property of the tenant and shall be deposited into a trust account by the landlord. Section 47-10-10(B)(2).

I. Alternative Dispute Resolution (§47-10-17)

1. A civil dispute between the management and a mobile home park resident arising out of the provisions of the Mobile Home Park Act may be submitted to alternative dispute resolution by request of either party with approval of all the parties, unless the dispute involves nonpayment of rent or utility charges or when the health or safety of other residents is in imminent danger. The alternative dispute resolution must be performed by a professionally certified mediator approved by all the disputing parties, with the cost shared equally by the parties. Either party may terminate the process at any time without prejudice.
2. Any agreement reached must be presented to the court as a stipulation. If either party subsequently violates the stipulation, the other party may immediately apply to the court for relief.

J. Jurisdicton to Issue Injunctions (§§47-10-1 through -17)
The Mobile Home Park Act allows the court to award equitable relief, including the enjoining of either party from further violations of the rental agreement or the Act. In Martinez v. Sedillo, 2005-NMCA-029, 107 P.3d 543, the Court of Appeals held that Section 47-10-10(D) of the Act grants the metropolitan court authority to issue an injunction even though metropolitan courts do not generally have jurisdiction to issue injunctions in civil cases. Sections 35-3-3(C)(6) and 34-8A-3(A)(2). Although the Court’s holding was limited to the metropolitan court’s jurisdiction, its rationale would apply logically to magistrate courts as well.