Impact Food Sales, Inc. v. Evans

• Decision Date: 16 June 2010
• Docket Number: No. 2009–348.,2009–348.
• Citation: 160 N.H. 386,999 A.2d 198
• Court: New Hampshire Supreme Court
• Parties: IMPACT FOOD SALES, INC. v. Carl EVANS d/b/a Warehouse Club Distributing Company.

160 N.H. 386

999 A.2d 198

IMPACT FOOD SALES, INC.

v.Carl EVANS d/b/a Warehouse Club Distributing Company.

No. 2009–348.

Supreme Court of New Hampshire.

Argued: Nov. 4, 2009.

Opinion Issued: June 16, 2010.

Law Offices of Thomas Morgan, P.C., of Salem (Thomas Morgan on the brief and orally), for the plaintiff.

Ford & Weaver, P.A., of Portsmouth (Christopher J. Somma on the brief and orally), for the defendant.

BRODERICK, C.J.

The defendant, Carl Evans d/b/a Warehouse Club Distributing Company (Evans), appeals an order of the Superior Court (McHugh, J.) denying his motions to vacate judgment and to dismiss. We reverse.

The following facts are contained in the record. The plaintiff, Impact Food Sales, Inc. (Impact Food), located in Salem, is in the business of buying wholesale lots of food products. On November 26, 2007, its attorney executed a writ of summons alleging that Evans accepted money from Impact Food for the purchase of goods that were not delivered. Evans is a resident of the State of Illinois.

On November 26, Impact Food's attorney sent a letter to the Merrimack County Sheriff enclosing a copy of the writ of summons, along with copies for service on the New Hampshire Secretary of State and a check for $10.00, pursuant to RSA 510:4 (1997). That day, Impact Food also sent a copy of the same letter by certified mail to Evans. The secretary of state was served on November 29, and the writ of summons and the affidavit of service from the sheriff were filed with the superior court on December 10.

On January 31, 2008, Impact Food filed a motion for entry of default, alleging that service on Evans had been completed "by having a copy of the writ served upon the NH Secretary of State and consistent with RSA 510:4 plaintiff mailed a copy of the writ to the defendant certified mail, return receipt requested." The motion further stated that:

4. Defendant appears to have been duly notified by the U.S. Postal Service on at least two occasions and did not arrange to pick up copies of the certified mail.

5. In an effort to insure that the defendant was made fully aware of this law suit against him, counsel for plaintiff again mailed a copy of the writ of summons certified mail, return receipt requested.

6. Plaintiff's counsel has not yet received any response from the U.S. Postal Service, however, attached hereto is plaintiff's counsel file copy of a letter mailed first class mail to the same address for the defendant as the certified mail on January 15, 2008 advising the defendant of the process that had been served upon the Secretary of State against him....

7. This mail sent first class mail has not been returned by the U.S. Postal Service despite counsel's use of a clearly addressed envelope with a clearly marked return address.

In an affidavit of mailing attached to the motion, Impact Food's attorney attested that he "served the Secretary of State in accordance with RSA 510:4 and immediately mailed a copy of the process with a copy of the attached cover letter certified mail ..., however, the green post card return receipt requested was never received back from the postal service." The attached cover letter referenced in the affidavit states, "Enclosed please find Writ of Summons along with copies for service on the ... Secretary of State."

On February 7, the trial court granted Impact Food's motion and a default judgment was entered against Evans on May 6. On March 20, 2009, Evans filed a motion to vacate judgment and motion to dismiss, stating that he was never served in accordance with the statutory requirements set forth in RSA 510:4 and thus the court lacked personal jurisdiction over him. In an affidavit attached to the motion, he attested that he "was never served with the Writ of Summons in this matter ... [and] never signed a green card for any certified mail alleged to have been sent to Carl Evans doing business as Warehouse Club Distributing Company." He further attested that he "was notified of a judgment entered against [him] in New Hampshire when [he] received a Citation to Discover Assets in the Circuit Court for the Nineteenth Judicial Circuit—Lake County, Illinois that was issued on December 4, 2008." On April 23, the trial court denied the motion, ruling that "[a]dequate service has been made in this essentially theft of money by the defendant case." This appeal followed.

On appeal, Evans argues that the trial court improperly found that he was served in accordance with RSA 510:4 and erred in denying his motion to vacate judgment and motion to dismiss. He argues that Impact Food failed to follow the requirements of the statute and instead "attempted to create its own service of process contrary to both New Hampshire Statute and existing case law." Impact Food responds that RSA 510:4 only requires that certified mail be sent to the defendant and that additional service is optional. Based upon case law from other states, Impact Food argues that when certified mail is unclaimed, notice by regular mail is adequate.

RSA 510:4 is this state's long-arm statute. South Down Recreation Assoc. v. Moran, 141 N.H. 484, 486, 686 A.2d 314 (1996). In order to obtain jurisdiction over an out-of-state defendant, proper service of process is required. Id. "Proper service is separate from the due process requirement that the defendant have minimum contacts with the jurisdiction." Estate of Lunt v. Gaylor, 150 N.H. 96, 97, 834 A.2d 367 (2003) (quotation omitted). The interpretation of a statute is a question of law, which we review de novo . Carlisle v. Frisbie Mem. Hosp., 152 N.H. 762, 773, 888 A.2d 405 (2005).

Pursuant to RSA 510:4, I, "Any person who is not an inhabitant of this state and who ... transacts any business within this state, commits a tortious act within this state, or has the ownership, use, or possession of any real or personal property situated in this state submits himself ... to the jurisdiction of the courts of this state...." The method of service of process on persons subject to the jurisdiction of this state is set forth in RSA 510:4, II. The statute provides:

SERVICE OF PROCESS ON SECRETARY OF STATE. Service of process upon any person who is subject to the jurisdiction of this state, as provided in this section, may be made by leaving a copy thereof, with a fee of $10, in the hands or office of the secretary of state. Such service shall be of the same legal force and effect as if served on the defendant at his abode or place of business in the state or country where he resides and according to the law of that state or country, provided that notice thereof and a copy of the process is forthwith sent by registered mail, postage prepaid, by the plaintiff or his attorney to the defendant at his last known abode or place of business in the state or country in which the defendant resides. The defendant's return receipt and an affidavit of the plaintiff or his attorney of compliance with the section shall be appended to the process and entered therewith. In the event that the notice and a copy of the process are not delivered to or accepted by the defendant, the court may order such additional notice, if any, as justice may require.

We note that according to RSA 21:32–a (2000), the words "registered mail" when used in connection with the requirement for notice by mail "shall mean either registered mail or certified mail."

When construing a statute, we first examine the language found in the statute and where possible, we ascribe the plain and ordinary meaning to words used. Collden Corp. v. Town of Wolfeboro, 159 N.H. 747, 750, 993 A.2d 184 (2010). When a statute's language is plain and unambiguous, we need not look beyond it for further indicators of legislative intent. Id. Courts can neither ignore the plain language of the legislation nor add words which the lawmakers did not see fit to include. Id. We require "strict compliance with statutory requirements for service of process." South Down, 141 N.H. at 487, 686 A.2d 314; see Lachapelle v. Town of Goffstown, 134 N.H. 478, 479–80, 593 A.2d 1152 (1991). "Where a statute points out a particular method of serving process ... such method must be followed...." Bissonnette v. Alpine, Inc., 96 N.H. 419, 420, 77 A.2d 586 (1951).

Pursuant to RSA 510:4, II, in order to effect valid service of process over a nonresident defendant, several steps must be taken. First, "[s]ervice of process ... may be made by leaving a copy thereof, with a fee of $10, in the hands or office of the secretary of state." RSA 510:4, II.

Second, the plaintiff must send a "notice thereof and a copy of the process" by registered mail, postage prepaid, to the defendant at his last known abode or place of business in the state or country in which the defendant resides. Id. Third, "[t]he defendant's return receipt and an affidavit of the plaintiff or his attorney of compliance with [ RSA 510:4, II]" must be attached to the process and filed with the trial court. Id. If a copy of the process is not delivered to or accepted by the defendant, the court may order additional notice. Id.

Impact Food did not follow this statutory procedure. Initially we note that although the record is not clear, it appears that Impact Food sent a letter to the sheriff's office enclosing a writ of summons, along with copies for service on the secretary of state and simultaneously sent a copy of the same letter by certified mail to Evans. The statute, however, requires that the certified mailing to the defendant include notice of the effected service on the secretary of state, which it could not have done if the mailing to the defendant was accomplished simultaneously with that to the sheriff's office. This same issue was addressed by the United States Court of Appeals for the First Circuit in M & K Welding, Inc. v. Leasing Partners, LLC, 386 F.3d 361 (1st Cir.2004).

In M & K Welding, to comply with the service of process requirements under RSA 510:4, II, the plaintiff sent copies of a summons and complaint to the ...