Purifoy v. Stone ( 2013 )

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 FAIRY PURIFOY,
3 Plaintiff-Appellee,
4 v. No. 32,319
5 LEE STONE,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY
8 David P. Reeb, Jr., District Judge
9 John R. Hakanson
10 Alamogordo, NM
11 for Appellee
12 Lee Stone
13 San Jon, NM
14 Pro Se Appellant
15 MEMORANDUM OPINION
16 SUTIN, Judge.
17 In this Court’s second notice of proposed summary disposition, we proposed
18 to reverse the district court’s decision and remand to the district court to vacate the
1 protective order only insofar as it pertains to Defendant. See Classen v. Classen, 119
2 N.M. 582, 584-85, 893 P.2d 478, 480-81 (Ct. App. 1995) (explaining that a court has
3 no discretion in ruling on a motion under Rule 1-060(B)(4) NMRA because if a
4 judgment is void, it must be set aside). The proposed disposition was based on the
5 fact that: (1) actual service on Defendant of the motion and subsequent pleadings was
6 required, (2) Defendant’s current address was easily ascertainable to Plaintiff’s
7 counsel from the record, (3) Plaintiff’s counsel did not serve Defendant with any
8 pleadings or notices relating to the protective order, and (4) this was not a situation
9 where Defendant was difficult to locate. See McLam v. McLam, 81 N.M. 37, 39, 462
10 P.2d 622, 624 (1969) (“As a general rule, constructive service is insufficient where
11 the object of the action is to determine the personal rights and obligations of the
12 defendant.” (internal quotation marks and citation omitted)); see also Clark v.
13 LeBlanc, 92 N.M. 672, 673, 593 P.2d 1075, 1076 (1979) (“It is clear that due process
14 prohibits the use of constructive service where it is feasible to give notice to the
15 defendant in some manner more likely to bring the action to his attention.”).
16 Defendant filed a memorandum in opposition to the proposed disposition that was in
17 his favor. Plaintiff did not file a memorandum in opposition, and the time for doing
18 so has expired. See Rule 12-210(D)(3) NMRA.
2
1 Defendant’s memorandum in opposition raises numerous contentions that are
2 not essential to our proposed disposition and relate to issues outside the scope of the
3 limited issue on appeal. Therefore, we reverse the district court’s decision, and
4 remand for the district court to vacate the protective order only insofar as it pertains
5 to Defendant.
6 IT IS SO ORDERED.
7 __________________________________
8 JONATHAN B. SUTIN, Judge
9 WE CONCUR:
10 _______________________________
11 CYNTHIA A. FRY, Judge
12 _______________________________
13 M. MONICA ZAMORA, Judge
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