JOHNSON V. YATES PETROLEUM CORP., 1999-NMCA-066,
127 N.M. 355, 981 P.2d 288
S.P. JOHNSON, III and BARBARA JO
JOHNSON, CO-TRUSTEES OF
THE S.P. JOHNSON, III and BARBARA JO JOHNSON TRUST
and PATRICIA J. COOPER, TRUSTEE OF THE PATRICIA
J. COOPER TRUST,
Plaintiffs-Appellees/Cross-Appellants,
vs.
YATES PETROLEUM CORPORATION, YATES DRILLING COMPANY, ABO
PETROLEUM CORPORATION, and MYCO INDUSTRIES, INC.,
Defendants-Appellants/Cross-Appellees.
COURT OF APPEALS OF NEW MEXICO
1999-NMCA-066, 127 N.M. 355, 981 P.2d 288
APPEAL FROM THE DISTRICT COURT OF EDDY
COUNTY. James L. Shuler, District Judge.
Released for Publication May 25, 1999.
Certiorari Denied, No. 25,739, May 25, 1999.
JAMES T. JENNINGS, A.D. JONES, Jennings
& Jones, L.C., Roswell, NM, ERNEST L. PADILLA, Padilla Law Firm, P.A.,
Santa Fe, NM, for Appellees/Cross-Appellants.
ERNEST L. CARROLL, MARY LYNN BOGLE,
Losee, Carson, Haas & Carroll, P.A., Artesia, NM, for
Appellants/Cross-Appellees.
A. JOSEPH ALARID, Judge. WE CONCUR: RUDY
S. APODACA, Judge, HARRIS L HARTZ, Judge.
{1} This is an appeal
and cross-appeal from a district court order granting partial summary judgment
in favor of each party. The dispute between the parties arose out of six oil
and gas leases and the interpretation of provisions relating to the termination
of the leases if certain requirements were not met. There are two issues
presented by this appeal: (1) whether the trial court erred in granting summary
judgment in favor of Plaintiffs S.P. Johnson, III and Barbara Jo Johnson,
Co-Trustees of the S.P. Johnson, III and Barbara Jo Johnson Trust, and Patricia
{*356} J. Cooper, Trustee of the PJC
Revocable Trust, (collectively, the Johnsons), and ruling that two of the
leases automatically terminated for failure on the part of Defendants Yates
Petroleum Corporation, Yates Drilling Company, ABO Petroleum Corporation and
Myco Industries, Inc. (collectively, Yates), to exercise due diligence in
commencing and prosecuting drilling operations; and (2) whether the trial court
erred in granting summary judgment in favor of Yates and concluding that four
of the leases remained in force because the contract required them to drill
only one well on each 160-acre proration unit. We reverse the trial court on
the first issue and affirm on the second issue.
{2} The Johnsons filed
a complaint for a declaratory judgment seeking an order terminating six oil and
gas leases owned by them as lessors, and Yates as lessees. Both parties filed
motions for summary judgment. The trial court granted partial summary judgment
in favor of the Johnsons, terminating two of the leases, and partial summary
judgment in favor of Yates, maintaining four of the leases. Yates filed notice
of appeal from the trial court's final order on November 17, 1997, and the
Johnsons filed notice of appeal on November 19, 1997. Therefore, the Johnsons'
appeal constitutes a cross appeal pursuant to Rule
12-201(B) NMRA 1999 (stating
that "the party to file the first notice of appeal shall be deemed the
appellant, and any opposing party filing a notice of appeal shall be a
cross-appellant . . . ."). We will summarize additional facts as we address
the specific issues on appeal.
{3} The appeals are
subject to the same standard of review. Summary judgment is the appropriate
remedy if the facts are undisputed and it is only the legal interpretation of
the facts that remains.
See Board of County Commissioners v. Risk Management
Div.,
120 N.M. 178, 179,
899 P.2d 1132, 1133 (1995). This Court "need
not defer to the trial court's conclusions of law and, upon analysis of the
record as established below, may reach a conclusion different from that of the
trial court."
C.R. Anthony Co. v. Loretto Mall Partners,
112 N.M.
504, 510,
817 P.2d 238, 244 (1991). The relevant facts in this case appear to
be undisputed. Thus, we may decide the legal interpretation of the facts de novo.
See Ramirez v. Ramirez 1996-NMCA-116,
122 N.M. 590, 591,
929 P.2d 982,
983 ;
see also Gallegos v. State of New Mexico Board of Education, et al.,
1997-NMCA-40, P11,
123 N.M. 362,
940 P.2d 468 ("Our appellate courts are
not bound by the conclusions of law reached by the trial court, and the
applicable standard of review for such issues is de novo.").
B.Yates' Appeal--Well Completion Clause
{4} The Johnsons
executed six oil and gas leases in favor of Yates. Only two of the six leases
are at issue in Yates' appeal. The pertinent language of the two leases is
identical. The contract provided that the leases "shall be for a term of 3
years from this date (called "primary term") and as long thereafter
as oil and gas is produced from said land or land with which said land is
pooled hereunder." The contract for the leases was executed on March 15,
1990.
{5} The provision at
issue is in the nature of a well completion clause (hereinafter
"completion clause").
See generally Richard W. Hemingway,
The
Law of Oil and Gas §§ 6.6, 6.7 at 360-67 (3d. ed. 1991) (discussing well
completion clauses which propel the lease past the primary term by the
commencement of drilling operations) (hereinafter Hemingway). It provided that
if the lessee is engaged in drilling or reworking operations at the expiration
of the primary term, the leases remain in force as long as drilling operations
are prosecuted without cessation for more than sixty consecutive days.
Specifically, the completion clause provided as follows:
If at the expiration of the primary term oil or gas is
not being produced on said land, or from land pooled therewith, but Lessee is
then engaged in drilling or reworking operations thereon, or shall have
completed a dry hole thereon within 60 days prior to the end of the primary
terms, the lease shall remain in force so long as operations on said well or
for drilling or reworking of any additional well are prosecuted {*357} with no cessation of more than 60
consecutive days, and if they result in the production of oil or gas so long
thereafter as oil or gas is produced from said land, or from land pooled
therewith.
{6} The completion
clauses at issue in Yates' appeal contain slightly different language.
Nevertheless, the actions required of the lessee to extend the leases beyond
their primary term are essentially the same.
See Whelan v. Lacy, 251
S.W.2d 175, 176-77 (Tex. Civ. App. 1952) (relying on authority interpreting
"commence to drill" in construing "engaged in drilling");
Petersen
v. Robinson Oil & Gas Co., 356 S.W.2d 217, 220 (Tex. Civ. App. 1962)
("If drilling operations have 'commenced,' . . . then lessee is 'engaged
in drilling operations'").
{7} The undisputed
facts are that prior to the expiration of the primary term of the lease, Yates
had staked and surveyed the location, filed for and received a permit to drill
a well and began to prepare and build the well location. Specifically, the
location of the well was staked on February 23, 1993. On March 1, 1993, Yates
applied for a permit to drill the well, and on March 4, 1993, the application
was approved. Yates entered into an agreement with a contractor to have the
location of the well prepared. On March 13, 1993, the contractor hauled a
bulldozer to the well location. The contractor began clearing the brush and
leveling the location on March 14, 1993. Thereafter, from March 17 to March 21,
1993, the contractor leveled the location and began stripping top soil from the
pit area. The contractor continued working to build and prepare the roads and
location for the well until April 2, 1993. On April 7, 1993, the rig was moved
to the well where it was continuously drilled. The well was completed as a
producing well on May 24, 1993.
{8} Based on these
undisputed facts, the trial court granted the Johnsons' motion for summary
judgment, concluding that "Defendants failed to diligently prosecute, once
commenced, drilling operations of the initial well (the Hooper Amp # 1)."
Yates contends this is based upon the court's conclusion that construction of
the location occurred over a period of eighteen days, when there was evidence
that a similar location could have possibly been built in approximately five
days. Yates argues that the trial court erred as a matter of law in concluding
that the leases expired because Yates was engaged in drilling operations at the
expiration of the primary term and there was no cessation of drilling
operations for a period of sixty consecutive days, as provided under the
leases. Yates asserts that the question of whether it commenced drilling operations
before the expiration of the primary term is not at issue because the trial
court specifically refused the Johnsons' request that their motion for summary
judgment be granted "with respect to the timely commencement . . . of
drilling operations of the initial well." Instead, the trial court adopted
Yates' proposed order on the matter. Therefore, Yates interprets the trial
court's order as indicating that Yates commenced drilling operations prior to
the expiration of the primary term, but that Yates failed to diligently
prosecute drilling operations after the primary term. In this regard, Yates
asserts that the trial court erred as a matter of law by implying a covenant of
due diligence to the continuation of operations after the expiration of the primary
term because the lease terms spoke to the standard of diligence to be applied.
Therefore, Yates contends that implying a covenant of due diligence conflicts
with the plain language of the completion clause, which expressly provides a
sixty-day-cessation-of-operations standard of diligence.
{9} On the other hand,
the Johnsons interpret the trial court's order as indicating that Yates failed
to commence drilling operations prior to the expiration of the primary term.
They contend that the trial court's order expresses a conclusion on the issue
of due diligence. Thus, having failed to diligently prosecute drilling
operations before the expiration of the primary term, as a matter of law, Yates
was not "then engaged in drilling or reworking operations" such as to
trigger an extension of the leases beyond their primary term. The Johnsons
acknowledge that the leases are silent with respect to "due
diligence" and the actions required of the lessee to be engaged in
drilling operations. Nonetheless, the Johnsons contend
{*358}
that because the leases are silent on these matters, the trial court
appropriately implied a covenant of due diligence on Yates' drilling activities
during the primary term. The Johnsons argue that because Yates did not
diligently engage in drilling operations during the primary term of the lease,
it cannot resurrect the lease by invoking the completion clause.
{10} In this regard,
the Johnsons assert that because the issue of due diligence is a factual
determination, this Court is bound by the trial court's determination that
Yates failed to exercise due diligence in commencing drilling operations prior
to the expiration of the primary term. In doing so, they cite a New Mexico case
for the proposition that where the facts are undisputed but where reasonable
minds may differ, the issue of "due diligence" in the context of a
settlement agreement is a question of fact for the trial court.
Cf. Western
Commerce Bank v. Gillespie,
108 N.M. 535, 538,
775 P.2d 737, 740 (1989). We
disagree.
Gillespie is inapplicable because the procedural posture of
that case is distinguishable. In
Gillespie, the trial court was deciding
a motion to enforce settlement.
See id. at 537, 775 P.2d at 739.
Therefore, the trial court acted as the trier of fact at an evidentiary hearing
where testimony was presented.
See id. at 538, 775 P.2d at 740. In
contrast, the matter before the trial court in this case consisted of cross
motions for summary judgment. Consequently, the trial court did not make
findings, but applied the law to the undisputed facts submitted by the parties.
See Roth v. Thompson,
113 N.M. 331, 334,
825 P.2d 1241, 1244 (1992)
("Summary judgment is proper if there are no genuine issues of material
fact and the movant is entitled to judgment as a matter of law."). While
the trial court's final order states that it "finds as follows," the
paragraphs that follow are legal conclusions based on the undisputed facts.
Thus, we reject the Johnsons' argument.
{11} In determining
whether Yates' activities were sufficient to constitute the commencement of
drilling operations, it appears that any activities in preparation for, or
incidental to, drilling a well are sufficient.
See Geier-Jackson, Inc. v.
James, 160 F. Supp. 524, 529 (E.D. Tex. 1958) ("The drilling
operations referred to in the 60 day clause obviously mean operations incident
to and connected with the drilling of a well for oil or gas.").
"Although there is some limited authority to the contrary, in general it
appears that the courts have been ready to find the commencement of operations
(or the pursuit of drilling operations) where only the most modest preparations
for drilling have been made." Howard R. Williams & Charles J. Meyers,
3
Oil and Gas Law § 618.1 at 320-21 (1998) (footnotes omitted)
(hereinafter Williams & Meyers).
{12} The leases
provided that Yates could continue drilling operations engaged in at the end of
the primary term, or conduct additional operations, so long as not more than 60
consecutive days elapsed during which there was a cessation of operations. The
work performed by Yates prior to the expiration of the primary term constituted
drilling operations, in accordance with the completion clause. The undisputed
facts demonstrate that Yates staked and surveyed the location, applied for and received
a permit to drill the well, and began preparing and building the well location
prior to the expiration of the primary term. These activities have been held to
be sufficient to constitute the engagement and commencement of drilling
operations.
See, e.g.,
Petersen, 356 S.W.2d at 219-20 (hiring
contractor to drill well, employing surveyor to survey well, and staking and
leveling well location constituted engagement in drilling operations);
Oelze
v. Key Drilling, Inc., 135 Ill. App. 3d 6, 481 N.E.2d 801, 802-03, 90 Ill.
Dec. 1 (holding that "obtaining a drilling permit, clearing brush,
leveling a well site and digging slush pits" functioned as commencement of
drilling operations);
D'Lo Royalties, Inc. v. Shell Oil Co., 389 F.
Supp. 538, 549 (S.D. Miss. 1975) (stating that preliminary site work commenced
prior to expiration sufficient to extend lease),
aff'd Campise v. Hamilton,
541 F.2d 279 (5th Cir. 1976). Therefore, Yates contends that implying a
requirement of due diligence into the contract after the primary term would be
inconsistent with the provision to which the parties expressly agreed.
See
Continental Potash, Inc. v. Freeport-McMoran Inc.,
115 N.M. 690,
704,
858 P.2d 66, 80 ("The general rule is that an
{*359}
implied covenant cannot co-exist with express covenants that specifically
cover the same subject matter.").
{13} Even assuming a
requirement of reasonable diligence in addition to the 60-day provision, we
hold that the work performed by Yates was sufficient, as a matter of law, to constitute
the commencement of drilling operations under the lease. The Johnsons emphasize
the evidence that preparation of the well location could have been completed
earlier, that Yates told their contractor not to be in any hurry, and that the
drilling rig ultimately used to drill the well was under contract to Yates to
drill a well at another location. Yates points out that the drilling rig
scheduled to drill the well in question was not available until April 6, 1993,
when it was placed on the location, and the well was spudded. Thus, Yates
asserts that even if the construction of the location had been completed in
five days, drilling could not, in any case, commence until April 6, 1993.
Consequently, we reverse the trial court and hold that the two leases in
question remain in force.
C. The Johnsons' Appeal--Allocation of Land to a
Well Unit
{14} The Johnsons
contend that drilling one well per 160-acre proration or spacing unit did not
satisfy Yate's drilling obligations under the lease, and therefore, four of the
six leases automatically terminated. The leases contained the following special
provision as an addendum to the leases (hereinafter referred to "Paragraph
12"):
NOTWITHSTANDING anything contained in this lease to
the contrary:
At the expiration of the primary term hereof, this
lease shall terminate as to all lands covered hereby not included in or
otherwise allocated to a "well unit" as hereinafter defined, unless
Lessee is producing oil, gas or other hydrocarbons from any well on the leased premises
or is drilling upon said lands across the expiration of the primary term as
provided for in the body of the lease, and does not allow more than 120 days to
elapse between the completion or abandonment of one well on such land and the
commencement of another well thereon until the leased premises have been
"fully developed", as hereinafter defined. Operations for drilling of
the first such development well must be commenced (a) within 120 days after the
expiration of the primary term if production is established on this lease prior
to the expiration of the primary term, or (b) within 120 days of completion of
the well which is being drilled, tested, or completed across the expiration of
the primary term. Should Lessee fail to timely commence a well in accordance
with the aforesaid 120 days continuous drilling or development program prior to
the point in time the lease premises have been fully developed then this lease
shall terminate as to all lands not included in or otherwise allocated to a
well unit. For the purpose hereof, the term "well unit" shall mean
the proration or spacing unit created for a well capable of producing oil
and/or gas or other hydrocarbons in paying quantities as in accordance with the
applicable rules and regulations of the governmental authority having
jurisdiction, and the term "fully developed" shall mean the point in
time when the entirety of the leased premises has been included in a well unit
or units as defined. At the end of the continuous development program, if any,
this lease will automatically terminate as to all lands covered hereby which
have not been so fully developed, and as to lands so fully developed shall
terminate as to all depths lying more than 100 feet below the base of the
deepest producing formation.
{15} Neither party
disputes that the governmental authority in this case, the Oil Conservation
Division (hereinafter "OCD"), created proration or spacing units
(hereinafter "proration units") of 160 acres. However, the Johnsons
assert that to give effect to Paragraph 12, this Court must consider the intent
of the clause and the parties, as well as the surrounding circumstances.
However, "when discerning the purpose, meaning, and intent of the parties
to a contract, the court's duty is confined to interpreting the contract that
the parties made for themselves, and absent any ambiguity, the court may not
alter or fabricate a new
{*360} agreement
for the parties."
CC Housing Corp. v. Ryder Truck Rental, Inc.,
106
N.M. 577, 579,
746 P.2d 1109, 1111 (1987);
accord Montoya v. Villa Linda
Mall, Ltd.,
110 N.M. 128, 129,
793 P.2d 258, 259 (1990). Paragraph 12
clearly states that the lease shall terminate as to all lands not allocated to
a "well unit," and expressly defines a "well unit" as the
proration unit created by, in this case, the OCD. It is without dispute that
the OCD created proration units of 160 acres. Therefore, the contract is clear
and unambiguous, and we will not imply terms and construct an agreement for the
parties.
See Richardson v. Farmers Ins. Co. of Arizona,
112 N.M. 73, 74,
811 P.2d 571, 572 (1991) ("A contract is deemed ambiguous only if it is
reasonably and fairly susceptible of different constructions.").
{16} The Johnsons
maintain that their intent was to require Yates to follow the customary development
for oil production and drill one well per 40 acres. Specifically, the Johnsons
assert that OCD increased oil allowables or production limits for 160-acre
proration units, rather than reduce the size of the proration units. They
contend that the resulting drilling pattern in the North Dagger Draw Pool,
where the leased land is located, has been on a 40-acre basis. However,
Paragraph 12 does not require Yates to conform to the customary development or
drilling pattern for oil production in that region.
{17} In addition, the
Johnsons assert that for a proration unit to be fully developed, as required by
Paragraph 12, the unit must have been developed on a 40-acre basis. However,
the leases do not require Yates to "fully develop" the 160-acre
proration units by drilling on a 40-acre basis. Rather, the express language of
Paragraph 12 required Yates to allocate leased land to a well unit in
accordance with the OCD regulations which, it is undisputed, created proration
units of 160 acres. It is also undisputed that Yates allocated the leased land
to 160-acre proration units, in accordance with OCD regulations. Absent express
language in the leases requiring what the Johnsons are asserting, their
argument is unpersuasive. If the Johnsons intended to require a drilling
pattern of one well per 40 acres, they should have included language to this
effect in Paragraph 12.
{18} Moreover, the
portion of Paragraph 12 requiring the land to be "fully developed" is
inapplicable under the facts of the case. The portion of Paragraph 12 relied
upon by the Johnsons begins with the term "unless," and provides
alternative means of avoiding the termination of the leases. In other words, if
Yates did not have the land allocated to 160-acre proration units, they could
save the leases from termination by satisfying one of the two other
alternatives following the term "unless." The alternative means of
saving the leases from termination include (1) if the lessee is producing oil,
gas, or other hydrocarbons from any well on the leased premises, or (2) if the
lessee is drilling after the expiration of the primary term, without more than
120 days elapsing between the completion or abandonment of one well and the
commencement of another well, until the leased premises have been "fully
developed," which is defined as the point in time when the entire leased
land has been included in a well unit or units. Because Yates satisfied
Paragraph 12 by allocating the land to 160-acre proration units, however, these
alternatives were inapplicable.
{19} The Johnsons
further contend that the trial court's interpretation of Paragraph 12 renders
it meaningless in light of the pooling provisions contained in the leases. The
leases have different pooling provisions, one of which provided:
Lessee, at its option, is hereby given the right and
power to pool or combine the acreage covered by this lease, or any portion
thereof as to oil and gas, or either of them, with other land, lease or leases
in the immediate vicinity thereof to the extent, hereinafter stipulated, when
in the Lessee's judgment it is necessary or advisable to do so in order
properly to explore, or to develop and operate said leased premises in
compliance with the spacing rules of the New Mexico Oil Conservation
Commission, or other lawful authority or when to do so would, in the judgment
of Lessee, promote the conservation of oil and gas in and under and that may be
{*361} produced from said premises.
Units pooled for oil hereunder shall not substantially exceed 40 acres each in
area, and units pooled for gas hereunder shall not substantially exceed in area
640 acres each plus a tolerance of 10% thereof, provided that should
governmental authority having jurisdiction prescribe or permit the creation of
units larger than those specified, units thereafter created may conform
substantially in size with those proscribed by governmental regulations.
The other pooling provision provided:
Lessee is hereby granted the right and power, from
time to time, to pool or combine this lease, the land covered by it or any part
or horizon thereof with any other land, leases, mineral estates or parts
thereof for the production of oil or gas. Units pooled hereunder shall not
exceed the standard proration unit fixed by law or by the Oil Conservation
Division of the Energy and Minerals Department of the State of New Mexico or by
any other lawful authority for the pool or area in which said land is situated,
plus a tolerance of ten percent.
{20} The Johnsons
maintain that both pooling provisions limit the size of a pooled unit to the
standard proration unit of 160 acres, as established by the OCD. The leases in
question covered no more than 60 acres. Therefore, the Johnsons assert that
Yates could have saved the leases in their entirety by relying solely on the pooling
provisions, thereby rendering Paragraph 12 meaningless. In response, Yates
contends that while in some sections of the leased lands, the acreage consisted
of a single tract, two other sections consisted of two small tracts contained
in different proration units. Thus, the purpose of Paragraph 12 was to require
production in both proration units. Although the language of Paragraph 12 was
contained in all of the six leases, it served a purpose as to at least some of
the leases.
{21} The Johnsons
further contend that irrespective of the maximum allowables or production
limits established by the OCD, under Paragraph 12, Yates was required to drill
four wells per 160-acre proration unit to achieve ultimate recovery from each
160-acre proration unit. They maintain that if proration units are not drilled
on a 40-acre basis, unrecovered oil is left in the ground. The Johnsons
acknowledge that to comply with OCD production limits, the combined production
of the four wells must be added together to obtain the figure used for
determining production limits. Consequently, the Johnsons argue that to comply
with the OCD's production limits, it would be necessary to curtail production
of one well to allocate production to each of the other wells drilled on a
40-acre basis. However, it seems unreasonable to interpret the leases as
requiring the lessee to continue drilling once one well on the lease has
produced the production limits for the 160-acre proration unit.
Cf. Rummel
v. Lexington Ins. Co., 1997-NMSC-41, P27,
123 N.M. 752,
945 P.2d 970
(stating that rules of contract construction prohibit an absurd interpretation
of contract terms). Similarly, it would seem unreasonable to interpret the
leases as requiring Yates to cut back production of one well in order to allocate
resources and production to three additional wells drilled on a 40-acre basis.
In any event, the language of the contract does not support Johnsons'
interpretation.
{22} Finally, the
parties dispute Yates' position regarding maximum allowables and down spacing
of proration units in OCD hearings, which took place prior to the execution of
the contracts at issue. Essentially, the Johnsons contend that Yates maintains
a position in this case inconsistent with that taken at OCD hearings, and
therefore, Yates is judicially estopped from asserting the position maintained
on appeal.
"Judicial estoppel" simply means that a
party is not permitted to maintain inconsistent positions in judicial
proceedings. Where a party assumes a certain position in a legal proceeding and
succeeds in maintaining that position, he may not thereafter assume a contrary
position, especially if it be to the prejudice of the party who has acquiesced
in the position formally taken by him.
{*362} Even were we to
apply the doctrine to OCD hearings, it would not apply here. Johnson has not
explained how Yates took any position before the OCD regarding the
interpretation of its contract with Johnson. Moreover, it does not appear that
Yates succeeded in its position before the OCD. Consequently, we reject this
argument. Similarly, the history of the OCD regulations is also irrelevant,
since the express language of the contract controls, absent any ambiguity.
Therefore, we affirm the district court's conclusion that the leases developed
at one well per 160-acre proration unit remain in force.
{23} The undisputed
evidence supports the conclusion that prior to the expiration of the primary
term of the lease, Yates set into motion the process of drilling a well, and
that such acts preliminary to the actual work of drilling were performed with
diligence to the completion of the well. Therefore, we reverse the trial
court's determination and hold that the two leases did not terminate by reason
of Yates' failure to begin and prosecute drilling operations, as required under
the completion clause of the leases. In addition, the undisputed evidence
supports the trial court's conclusion that Yates allocated leased land to
160-acre proration units, as set by the OCD, and in accordance with the express
provisions of the leases. Consequently, we affirm the trial court's determination
that the four leases at issue in Johnsons' appeal remained in force. As the
prevailing party, Yates is entitled to costs incurred in responding to the
Johnson's cross appeal.
See Rule
12-403(A) NMRA 1999.