Kibby v. Anthony Industries, Inc., 82-335

• Citation: 123 N.H. 272,459 A.2d 292
• Decision Date: 29 April 1983
• Docket Number: No. 82-335,82-335
• Parties: Richard C. KIBBY et al v. ANTHONY INDUSTRIES, INC.
• Court: Supreme Court of New Hampshire

Page 292

459 A.2d 292

123 N.H. 272

Richard C. KIBBY et al v. ANTHONY INDUSTRIES, INC.

No. 82-335.

Supreme Court of New Hampshire.

April 29, 1983.

Brown & Nixon P.A., Manchester (Leslie C. Nixon, Manchester, on brief and orally), for plaintiffs.

Gallagher, Callahan & Gartrell P.A., Concord (Steven J. McAuliffe, Concord on brief and orally), for defendant.

BOIS, Justice.

The plaintiffs, Richard and Mary Kibby, appeal from a Superior Court (Cann, J.) decision dismissing their writ against the defendant, Anthony Industries, Inc., for lack of personal jurisdiction. See RSA 510:4, I (Supp.1979). We affirm.

The case arises out of the alleged defective installation of a swimming pool at the plaintiffs' home in Candia, New Hampshire, by Quality Swimming Pools, Inc. (Quality), a New Hampshire corporation with its principal place of business in Hooksett. At the time the pool was installed, Quality had the exclusive dealership for Anthony Industries' pool equipment in several New Hampshire counties and represented itself as an "Authorized Anthony Pools Equipment Dealer." Anthony Industries, a Delaware Corporation with its principal place of business in California, was not licensed to do business in this State.

The plaintiffs filed suit against Anthony Industries in New Hampshire Superior Court, alleging that Anthony Industries was engaged in the business of manufacturing, constructing, and installing pools in New Hampshire by virtue of its agency relationship with Quality. The plaintiffs claimed that the defendant had a duty to supervise and inspect the construction of their pool and that the breach of this duty resulted in damage to the plaintiffs.

The defendant entered a special appearance and moved to dismiss the case for lack of in personam jurisdiction. The trial court found that the plaintiffs failed to establish any connection between the defendant and the allegedly defective pool installation. The court therefore ruled that the facts did not warrant application of New Hampshire's long-arm statute, RSA 510:4, I (Supp.1979), and it granted the motion to dismiss.

The general rule in New Hampshire is that on a motion to dismiss, the plaintiffs' pleadings and all reasonable inferences therefrom are to be taken as true and construed most favorably to the plaintiffs. Jarvis v. Prudential Ins. Co., 122 N.H. 648, 651, 448 A.2d 407, 409 (1982). The rule, however, does not negate the plaintiffs' burden of demonstrating sufficient facts to satisfy the statutory requirements regarding in personam jurisdiction. See Cove-Craft Industries v. B.L. Armstrong Co. Ltd., 120 N.H. 195, 198, 412 A.2d 1028, 1030 (1980).

RSA 510:4, I (Supp.1979) provides:

"Jurisdiction. Any person, who is not an inhabitant of this state, and who in person or through an agent 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, or his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from or growing out of the acts enumerated above."

(Emphasis added.) Although the statute provides a broad basis for the exercise of in personam jurisdiction over persons transacting business within the State, it requires that a cause...