{1} The opinion filed June 18, 2008, is hereby withdrawn and replaced with the following opinion. The motion for rehearing is hereby denied.
{2} Dr. Rachelle Shaw (Defendant) appeals the district court’s denial of her motion to set aside a default judgment against her in a malpractice action. After entering the default judgment as to liability, the district court held a trial on the sole issue of damages. Because Defendant was never properly served under the applicable rules governing service, we reverse the district court’s denial of Defendant’s motion to set aside the default judgment and remand. Because we reverse on this issue, we do not reach Defendant’s argument that the district court improperly excluded evidence at the damages phase of the trial.
FACTUAL AND PROCEDURAL BACKGROUND
{3} Pamela and Samuel Ortiz (Plaintiffs) sued Defendant for personal injury to their minor daughter, Sierra, following a dental procedure. In April 2002, before Plaintiffs filed suit, their then counsel, William Wag-goner, called Defendant’s husband, Attorney Daniel Faber, to discuss Plaintiffs’ claims against Defendant. Faber sent Waggoner a fax indicating that Waggoner should outline the claims in a letter to which Faber would respond. Waggoner sent a letter directly to Defendant, and Faber responded by letter denying the merits of Plaintiffs’ claim and declining to discuss settlement further.
{4} Plaintiffs filed their complaint against Defendant on December 10, 2002, and amended it three days later. On December 13, 2002, Waggoner wrote a letter to Faber stating that he had filed a complaint on Plaintiffs’ behalf. A copy of the complaint was enclosed with the letter. In the letter, Waggoner asked Faber to notify him if he was not authorized to accept service of process on behalf of Defendant or to execute and return the acceptance of service, which was apparently enclosed with the letter. Faber
{5} On January 3, 2003, Waggoner’s process server hand delivered the amended complaint to Dr. Colin Shaw’s receptionist, whose office is at the same address as Defendant’s but in a different suite. The return of service was filed on January 10, 2003, and stated that process was served by posting a copy of the summons in the most public part of Defendant’s business. The return of service does not indicate that process was mailed to Defendant or to anyone else. On January 22, 2003, Faber wrote to Waggoner, informing him that he was aware that suit had been filed against Defendant, but that Dr. Shaw had not been properly served, because the summons and complaint were handed to Dr. Colin Shaw’s receptionist. Faber stated in the letter that, while the address for Dr. Colin Shaw and Defendant was the same, they did not share the same office suite. Faber also stated that Defendant was willing to waive the defects in service in exchange for a thirty-day extension in which to file an answer to the complaint in order to allow time for Defendant’s insurance carriers to determine coverage.
{6} Waggoner responded by letter on January 24, 2003, and stated that his clients would not agree to a thirty-day extension. Waggoner suggested that Defendant and her insurance carrier determine coverage and file an answer forthwith. Faber responded to Waggoner on February 24, 2003, thanking him for allowing Defendant time to determine insurance coverage and stating that Defendant’s insurance carrier would make a decision regarding coverage shortly. Faber also suggested that Plaintiffs amend their complaint to name Defendant’s professional corporation as a defendant. On February 25, 2003, Waggoner mailed Faber a copy of the amended complaint. Also enclosed was an acceptance of service form, which Waggoner asked Faber to ask Defendant to sign. Two days later, Waggoner filed a second amended complaint which added Defendant’s professional corporation as a named defendant.
{7} Nothing further transpired until April 22, 2003, when Plaintiffs filed their motion for default judgment. Accompanying the motion was the January 10, 2003, return of service stating that process had been posted at Defendant’s business on January 3, 2003. Plaintiffs also filed a certificate stating that the amended complaint was mailed to Faber by Waggoner on February 25, 2003, and a certificate as to the state of the record stating the same information. The record also contains a clerk’s certificate as to the state of the record indicating that a complaint had been filed and that no answer or other pleading had been filed in his office or of record. On April 25, 2003, the district court granted the motion and entered default judgment against Defendant.
{8} On May 5, 2003, Defendant filed an answer and a counterclaim, and the next day filed a motion to set aside default judgment. In the motion to set aside default judgment, Defendant argued that she had never been properly served under the applicable service rules and that default judgment was improper in the absence of proper service of process. The motion also referenced Defendant’s answer and alleged that it set out the existence of a meritorious defense. Plaintiffs responded that service was proper, that Defendant agreed to waive any defect in service in exchange for an extension, and that Defendant had actual knowledge of the lawsuit.
{9} The district court denied the motion to set aside the default judgment. The court made no findings of fact. However, at the hearing on the motion to set aside default judgment, the court stated:
I think what is of concern to me is the position that Dr. Shaw is in, and her husband having engaged in all of these negotiations. You know, that puts her in a different position, and I’m going to uphold the default judgment on liability. I agree with Mr. Waggoner that, you know, I think there were several times that [an answer] probably should have been filed.
Defendant then filed a third-party complaint against her insurers. The case was tried to a jury on the sole issue of damages. The jury returned a verdict awarding Plaintiffs $90,000 in compensatory damages and $130,000 in punitive damages.
1. Timeliness of Notice of Appeal
{10} Plaintiffs filed a timely motion under Rule 1-059(E) NMRA (2006) to modify the judgment to include pre-judgment interest on June 30, 2006. The district court’s order disposing of the motion was filed on September 14, 2006, and Defendant filed her notice of appeal on September 25, 2006. In our Calendar Notice, we directed the parties to brief whether the appeal was timely, specifically addressing the applicability of NMSA 1978, § 39-1-1 (1917); City of Santa Fe v. Komis,
{11} However, after we assigned this case to the General Calendar, our Supreme Court issued its opinion in Albuquerque Redi-Mix, Inc. v. Scottsdale Insurance Co.,
2. Standard of Review
{12} We review the district court’s denial of a motion to set aside a default judgment for abuse of discretion. See Magnolia Mountain Ltd. P’ship v. Ski Rio Partners, Ltd.,
{13} Defendant argues that the district court abused its discretion in refusing to set aside the default judgment because she was never properly served under the rules governing service of process. Defendant argues that Plaintiffs failed to properly serve either her as an individual or her professional corporation because: (1) Plaintiffs attempted to post service at her business rather than her residence, and in fact posted service at the business of Dr. Colin Shaw, and (2) Plaintiffs failed to mail service of process to her residence, instead mailing a copy of the amended complaint to her husband, who had indicated
3. Service of Process
{14} Defendant’s motion to set aside default judgment was made pursuant to Rule 1-055(0 NMRA. Under this rule, “[generally, before a trial court will set aside an entry of default, the defendant must demonstrate that there was ‘good cause’ for failing to answer, as well as the existence of a meritorious defense.” DeFillippo,
{15} Plaintiffs attempted to serve their amended complaint on Defendant in January 2003. Under the procedural rule applicable at the time, service of process could be accomplished on an individual by
(1) ... delivering a copy of the summons and of the complaint to the individual personally; or if the individual refuses to receive such, by leaving same at the location where the individual has been found; and if the individual refuses to receive such copies or permit them to be left, such action shall constitute valid service. If the individual is absent, service may be made by delivering a copy of the process or other papers to be served to some person residing at the usual place of abode of the defendant who is over the age of fifteen (15) years; and if there is no such person willing or able to accept delivery, then service may be made by posting such copies in the most public part of defendant’s premises, and by mailing to the defendant at the defendant’s last known mailing address copies of the process.
Rule 1 — 004(F)(1) NMRA (2005).
{16} We agree with Defendant that Plaintiffs did not properly serve her under this rule. Plaintiffs did not attempt to deliver a copy of the summons and complaint to Defendant personally. They then had the option of either delivering copies of the summons and complaint to Defendant’s usual place of abode or posting copies of the summons and complaint in the most public part of her premises and mailing them to her last known mailing address. The record below indicates that Plaintiffs attempted to serve process by posting the summons and complaint at Defendant’s business rather than her residence and in fact posted them at the business of Dr. Colin Shaw. See Klumker v. Van Allred,
{17} Proper service of process is required before a court can exercise jurisdiction over a defendant and render a binding judgment. See Trujillo v. Goodwin,
{18} Plaintiffs also argue that Defendant did not establish the existence of a meritorious defense as required under Rule 1-055(C) because her motion to set aside default judgment only alleged that Defendant was not properly served. “[I]n reviewing a claimed meritorious defense the object ‘is to ascertain whether there is some possibility that the outcome of the suit after trial will be different from the result achieved by default.’ ” DeFillippo,
4. Waiver
{19} Plaintiffs argue that Defendant agreed to waive any defects in service of process in exchange for an extension of time to file an answer. “Waiver is the intentional relinquishment of a known right.” Berry v. Meadows,
{20} Plaintiffs argue that Wag-goner’s statements at the hearing on the motion to set aside default judgment are sufficient to establish waiver. At the hearing, Waggoner stated that after Plaintiffs rejected Defendant’s offer to waive service, he and Faber agreed in a later telephone conversation to waive service in exchange for an extension to file an answer. However, we do not believe that counsel’s statement at the hearing is sufficient to establish the existence of an agreement to waive service of process. Generally, statements of counsel are not evidence. See Yount v. Millington,
{21} We now turn to Plaintiffs’ arguments that by failing to assert insufficiency of service of process in her answer, entering a general appearance, and making requests for affirmative relief from the district court, Defendant waived any objection to service of process and to the district court’s jurisdiction. For the reasons that follow, we reject Plaintiffs’ arguments.
{22} Plaintiffs first argue that Defendant waived her claims of insufficiency of process and lack of jurisdiction under Rule 1-012(B). Rule 1-012(B) allows a defendant to raise the defenses of lack of personal jurisdiction and insufficiency of service of process in the first responsive pleading or by motion made under the rule before the first responsive pleading is filed. See Rule 1-012(B)(2), (5). Rule l-012(H)(l)(b) expressly provides that these defenses are waived if not raised in the first responsive pleading or by motion before the responsive pleading. In this case, default judgment was entered on April 25, 2003. Defendant filed an answer and a counterclaim on May 5, 2003, and a motion to set aside default judgment the next day. Plaintiffs argue that Defendant’s answer was her first responsive pleading and that her failure to raise these defenses in her answer waived the defenses.
{23} We disagree. Plaintiffs argument assumes that the case was governed by Rule 1-012. However, the district court granted a default judgment against Defendant before she filed her answer and counterclaim. Until the district court granted relief from default judgment, Defendant could not file an effective responsive pleading or motion under Rule 1-012(B). Rather, Defendant was required to proceed under Rule 1-055(0, governing relief from default judgment, before she could file an answer in the ease. See Rogers v. Lyle Adjustment Co.,
{24} Plaintiffs also argue that by seeking affirmative relief in the form of a peremptory challenge to the district judge pursuant to Rule 1-088.1 NMRA, and by filing a permissive third-party complaint, Defendant entered a general appearance in the action, waived her objections to service of process, and submitted to the district court’s jurisdiction. Plaintiffs rely on Barreras v. New Mexico Motor Vehicle Division,
{25} Finally, Plaintiffs argue that by filing a third-party complaint, Defendant invoked the jurisdiction of the district court and could not then object to the court’s exercise of jurisdiction. In support, Plaintiffs rely on Williams v. Arcoa International, Inc.,
CONCLUSION
{26} For these reasons, we reverse the district court’s denial of Defendant’s motion to set aside the entry of default judgment and remand for further proceedings in accordance with this opinion.
{27} IT IS SO ORDERED.