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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

No. A-1-CA-39179

CYNTHIA MONTANO,

Plaintiff-Appellee,

v.

MOVING EXPRESS & STORAGE,

INC.,

Defendant-Appellant,

and

COUNTRYWIDE MOVING PLUS,

LLC and JAMAL MOHAMMED,

Defendants.

APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY

James A. Noel, District Judge

Ellis & Estes

Daniel P. Estes

Albuquerque, NM

for Appellee

Jay Goodman & Associates Law Firm, P.C.

Mario Hernandez-Gerety

Peter L. Bruso

Santa Fe, NM

for Appellant

MEMORANDUM OPINION
MEDINA, Judge.

{1} Defendant Moving Express & Storage, Inc. appeals the district court’s denial of 

its motion to set aside a judgment entered in favor of Plaintiff Cynthia Montano.

Defendant contends that it and defendants Countrywide Moving Plus, LLC and Jamal 

Mohammed were not properly served with process in accordance with Rule 1-004(G) 

NMRA. As such, it claims the district court lacked personal jurisdiction over Defendant 

and the judgment is void. Consequently, it contends the district court abused its 

discretion when denying Defendant’s motion to set aside the judgment. We hold that the 

district court did not abuse its discretion because Defendant was properly served. We 

therefore affirm.

DISCUSSION

{2} Defendant moved to set aside the judgment pursuant to Rule 1-055(C) NMRA 

and Rule 1-060 NMRA. We review a denial of a motion to set aside a judgment 

pursuant to Rule 1-060(B) for an abuse of discretion. Stein v. Alpine Sports, Inc., 1998-

NMSC-040, ¶ 6, 126 N.M. 258, 968 P.2d 769.

{3} Defendant argues that the district court’s denial of its motion was an abuse of 

discretion because good cause existed to set aside the judgment. See Rule 1-055(C) 

(stating that a judgment may be set aside when “good cause [is] shown”). Defendant 

argues good cause existed because it was never properly served under Rule 1-004. 

According to Defendant, (1) Plaintiff failed to show affirmative steps taken to comply 

with the requirements to serve a corporation under Rule 1-004(G); (2) Plaintiff failed to 

prove that the employee served was “in charge” of the office as required by Rule 1-

004(G)(2); and (3) Plaintiff’s facsimile, mail, and telephone notice cannot be considered 

service under Rule 1-004(G). We agree that Plaintiff’s facsimile, mail, and telephone 

notice are not proper service under Rule 1-004. However, we disagree that Defendant 

was not properly served and explain. 

{4} A plaintiff can serve a domestic or foreign corporation, limited liability company, 

or other business entity “by serving a copy of the process to an officer, a managing or a 

general agent or to any other agent authorized by appointment, by law or by this rule to 

receive service of process.” Rule 1-004(G)(1)(a). However, “[i]f none of the persons 

mentioned [in Rule 1-004(G)(1)(a)] is available, service may be made by delivering a 

copy of the process or other papers to be served at the principle office of place of 

business during regular business hours to the person in charge.” Rule 1-004(G)(2). 

{5} Although Defendant argues that the district court abused its discretion by finding 

that Plaintiff properly served Defendant, we are hindered in our review because 

Defendant has not provided this Court with the basis for the district court’s decision. In 

fact, Defendant provides little information about the hearing on its motion in its briefing 

on appeal and failed to certify a transcript or audio recording of the hearing for our 

review. See Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 65, 

146 N.M. 853, 215 P.3d 791 (“It is the duty of the appellant to provide a record 
adequate to review the issues on appeal.”); see also State ex rel. Educ. Assessments 

Sys., Inc. v. Coop. Educ. Servs. of N.M., Inc., 1990-NMCA-032, ¶¶ 1, 6, 110 N.M. 331, 

795 P.2d 1023 (stating that the “appellant is responsible for the timely preparation and 

filing of the transcript” or adequate substitute in this Court). 

{6} It appears from the record that Plaintiff made two arguments to the district court.

First, Plaintiff argued that the employee served was the only person working at 

Defendant’s office to support that the employee was in charge of the office. Second, 

Plaintiff argued that the employee served was a managing or general agent of 

Defendant because the employee was involved in settlement negotiations with Plaintiff. 

Plaintiff maintains both arguments on appeal. 

{7} Because our record is deficient, “every presumption is indulged in favor of the 

correctness and regularity of the [district] court’s decision, and the appellate court will 

indulge in reasonable presumptions in support of the order entered.” Sandoval, 2009-

NMCA-095, ¶ 65 (internal quotation marks and citation omitted). Further, “[i]n the 

absence of a transcript . . . , we presume the district court’s ruling is supported by the 

evidence.” N.M. State Inv. Council v. Weinstein, 2016-NMCA-069, ¶ 94, 382 P.3d 923. 

Therefore, we assume the district court considered evidence sufficient to support its 

conclusion that Plaintiff properly served Defendant.

{8} We disagree with Defendant that Plaintiff did not properly serve it under Rule 1-

004(G). The record indicates that Plaintiff’s process server attempted to serve an 

officer, a managing or a general agent, or any other agent authorized by appointment of 

the business according to Rule 1-004(G)(1)(a) at Defendant’s office. But because such 

a person was unavailable, Plaintiff’s process server served an employee apparently in 

charge of Defendant’s office as permitted by Rule 1-004(G)(2). Although not required by 

the rule, Plaintiff’s process server mailed an additional copy to the same address to 

ensure receipt of the complaint and summons.

{9} Defendant argues that “there is nothing in the record” showing Plaintiff’s process 

server “even attempted to locate and/or serve an officer or agent of Defendant.” But the 

return of service filed states Plaintiff’s process server attempted to locate a manager or 

officer of Defendant at Defendant’s office, which is sufficient to fulfill Rule 1-

004(G)(1)(a).

{10} Defendant also argues that Plaintiff “provided no facts upon which their process 

server relied” to determine the employee served was in charge at the place of business 

after failing to serve an officer or agent. But as discussed above, we assume that the 

district court’s decision is supported by evidence when reviewing an insufficient record. 

See Michaluk v. Burke, 1987-NMCA-044, ¶ 25, 105 N.M. 670, 735 P.2d 1176. To meet 

its burden on appeal, Defendant must provide an argument including “citations to 

authorities, record proper, transcript of proceedings, or exhibits relied on.” See Rule 12-

318(A)(4) NMRA (emphasis added). Defendant has therefore failed to meet its burden 

to show the district court’s decision is unsupported by substantial evidence by failing to 

provide a full record for review. Cf. Woolwine v. Furr’s, Inc., 1987-NMCA-133, ¶ 14, 106 
N.M. 492, 745 P.2d 717 (holding that a party’s challenge to a jury instruction failed when 

the party argued there was no evidence in the record on appeal to support the use of 

the jury instruction, but the party did not include all relevant information in the record 

used to support the district court’s decision on appeal). 

{11} Finally, Defendant argues on appeal that defendants Countrywide Moving Plus, 

LLC and Jamal Mohammed were also improperly served and that this should effect our 

analysis of whether the judgment is void. These defendants are not parties to this 

appeal, and therefore we decline to consider Defendant’s argument on their behalf. See 

Wright v. First Nat’l Bank Albuquerque, 1997-NMSC-026, ¶ 1, 123 N.M. 417, 941 P.2d 

498 (declining to consider an argument on behalf of an entity not a party to the appeal); 

State ex rel. Stratton v. Sinks, 1987-NMCA-092, ¶ 8, 106 N.M. 213, 741 P.2d 435 

(stating that the defendant cannot raise issues attacking the judgment on behalf of 

others). 

CONCLUSION

{12} Based on the forgoing, we hold that Defendant failed to establish “good cause” to 

set aside the judgment. We therefore affirm the district court’s denial of Defendant’s 

motion to set aside the judgment.

{13} IT IS SO ORDERED. 

JACQUELINE R. MEDINA, Judge

WE CONCUR:

MEGAN P. DUFFY, Judge

MICHAEL D. BUSTAMANTE, Judge, retired, sitting by designation