Kimball Union Acad. v. Genovesi

• Decision Date: 28 June 2013
• Docket Number: No. 2012–492,2012–492
• Citation: 165 N.H. 132,70 A.3d 435
• Parties: KIMBALL UNION ACADEMY v. John GENOVESI & a.
• Court: New Hampshire Supreme Court

165 N.H. 132

70 A.3d 435

KIMBALL UNION ACADEMY

v.John GENOVESI & a.

No. 2012–492

Supreme Court of New Hampshire.

Argued: February 13, 2013

Opinion Issued: June 28, 2013

Sheehan, Phinney, Bass + Green, P.A., of Manchester (John–Mark Turner and Peter S. Cowan on the brief, and Mr. Turner orally), for the plaintiff.

Devine, Millimet & Branch, P.A., of Manchester (Andrew D. Dunn & a. on the brief, and Jonathan M. Eck orally), for defendant John Genovesi.

HICKS, J.

Defendant John Genovesi appeals the refusal of the Superior Court (Tucker, J.) to dismiss, for lack of personal jurisdiction, a claim against him for professional negligence brought by the plaintiff, Kimball Union Academy (KUA). Defendants JDE, Inc. (JDE) and James DePaul are not involved in this appeal. We affirm and remand.

KUA's writ alleges the following facts. KUA is a college preparatory school located in Meriden. It hired JDE to design and build a field house facility on its campus. JDE is a Florida corporation with a place of business in Pennsylvania. James DePaul is JDE's president and resides in Pennsylvania. Under its contract with KUA, JDE was required to supply an architect and an engineer, both licensed in New Hampshire, for the project's design.

The writ further alleges that Genovesi is a professional engineer who resides in New Jersey. He is not licensed in New Hampshire. Nevertheless, JDE hired him "to perform certain design work for the footings and foundation system" of the field house. JDE and Genovesi failed to "prepare a complete set of construction documents, for the footing and foundation system design," prior to the commencement of work on the footings and foundation. The incomplete design "lacked key information essential to the construction and proper inspection of the footings and foundation system. Among other things, [Genovesi] failed to provide (or to determine that others were providing) special inspection instructions for the footings and foundation system as required by the^" applicable building code.

KUA's writ alleges a number of problems with the footing and foundation work that prompted it to terminate its contract with JDE and commence this action. The writ alleges a single count, for professional negligence, against Genovesi, which reads, in part, as follows:

[Genovesi] breached his duty to KUA by failing to perform his work on the Project in conformance with both the applicable laws and codes and with the applicable professional practice standards governing his work by, among other things, failing to prepare complete construction documents and failing to supply special inspection instructions for the footing and foundation work and/or to determine that such special inspection instructions were provided.

Genovesi moved to dismiss, asserting that the superior court lacks personal jurisdiction over him. He submitted an affidavit averring that he has "never resided in New Hampshire, owned any real property in New Hampshire, advertised in New Hampshire, had any business interests in New Hampshire, or even been in New Hampshire since a ski vacation ... more than thirty years before the circumstances of this case arose." He also averred that he "did all of the work in connection with preparing foundation drawings from [his] office in New Jersey." KUA objected, submitting, among other things, copies of the contract between Genovesi and JDE, Genovesi's bill for services, which reflects three conference calls with New Hampshire participants, and certain e-mails. The trial court denied Genovesi's request for an evidentiary hearing and denied his motion to dismiss. This appeal followed.

Our standard of review for rulings on motions to dismiss for lack of personal jurisdiction varies according to the case's procedural posture. State v. N. Atlantic Ref. Ltd. , 160 N.H. 275, 280, 999 A.2d 396 (2010). "When, as in this case, the trial court rules upon the motion without holding an evidentiary hearing, the trial court employs a prima facie standard, and we review the trial court's decision de novo." Id. (quotation omitted). The inquiry under the prima facie standard is whether the plaintiff "has proffered evidence which, if credited, is sufficient to support findings of all facts essential to personal jurisdiction." Id. (quotation omitted). "[T]he plaintiff ordinarily cannot rest upon the pleadings, but is obliged to adduce evidence of specific facts." Id. at 281, 999 A.2d 396 (quotation omitted). Both the trial court and we, when undertaking de novo review, "must accept the plaintiff's (properly documented) proffers as true for the purpose of determining the adequacy of the prima facie jurisdictional showing." Id. (quotation omitted). The plaintiff's evidentiary proffers must be construed "in the light most congenial to the plaintiff's jurisdictional claim" and "[f]acts put forward by the defendant may be considered only if they are uncontradicted by the plaintiff's submissions." Id. (quotation omitted).

Genovesi first argues that the trial court erred in failing to conduct an analysis under New Hampshire's long-arm statute. See RSA 510:4, I (2010). "To decide whether it may exercise in personam jurisdiction over a nonresident defendant, a court typically must engage in a two-part inquiry. First, the State's long-arm statute must authorize such jurisdiction. Second, the requirements of the federal Due Process Clause must be satisfied." Fellows v. Colburn, 162 N.H. 685, 690, 34 A.3d 552 (2011) (quotation and citation omitted).

Genovesi acknowledges our case law construing the New Hampshire long-arm statute to permit "the exercise of jurisdiction to the extent permissible under the Federal Due Process Clause," id. but asserts that this interpretation "does not permit a trial court to conflate the analyses in circumstances where the plain language of the statutory requirements have not been met." We are not persuaded. "Because we construe the long-arm statute broadly, personal jurisdiction over nonresidents may be exercised whenever the requirements of the Due Process Clause of the United States Constitution are satisfied." Alacron v. Swanson, 145 N.H. 625, 628, 765 A.2d 1043 (2000) (citation omitted). Moreover, we disagree that Genovesi does not fall within the statute's plain language.

New Hampshire's long-arm statute provides, in part:

Any person who is not an inhabitant of this state and who, in person or through an agent, transacts any business within this state, [or] commits a tortious act within 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.

RSA 510:4, I. Genovesi contends that he did not transact any business in this state, given that it is undisputed that his business transactions were with JDE, a Florida corporation, and DePaul, a Pennsylvania resident. He also asserts that he did not commit a tortious act in New Hampshire, "as he completed all of his work from his office in New Jersey."

KUA counters that the long-arm statute is satisfied because Genovesi's tortious act caused injury in New Hampshire. We agree. "For jurisdictional purposes, a party commits a tortious act within the State when the injury occurs in New Hampshire even if the injury is the result of acts outside the State.^" Thomas v. Telegraph Publ'g Co., 151 N.H. 435, 437, 859 A.2d 1166 (2004) ; see Tavoularis v. Womer, 123 N.H. 423, 426, 462 A.2d 110 (1983) (holding that "the fact that only the alleged injury occurred within the State does not preclude New Hampshire courts from subjecting a nonresident to their jurisdiction under the long-arm statute").

Genovesi argues, however, that KUA has "failed to allege an injury which can be causally related to the alleged negligent actions taken by [him]" because it "does not allege that [his] designs were actually used by JDE to complete the KUA field house." In fact, Genovesi points out, KUA's writ alleges that "[t]he footing and foundation work performed by JDE did not conform to the design prepared by [Genovesi]." Thus, Genovesi argues, his designs could not have caused injury in New Hampshire even assuming they were negligently prepared.

Genovesi's argument is unavailing. First, as KUA notes, its writ alleges that "[t]he footing and foundation system design prepared by [Genovesi] and used by JDE was incomplete and lacked key information." (Emphasis added.) Moreover, that KUA's writ alleges JDE negligently executed Genovesi's design does not negate its allegation that the design itself was also negligently prepared by Genovesi. Any issue related to the actual causation of injury is, as KUA suggests, a merits issue rather than a jurisdictional one. For similar reasons, we are not persuaded by Genovesi's argument that "JDE was supposed to present Mr. Genovesi's foundation design to a New Hampshire-licensed professional engineer for review, signature, and seal by that engineering professional prior to submission to the [town] for a building permit." Again, this fact, even if true, does not negate the allegation that Genovesi was negligent in the first instance. Issues of ultimate responsibility are not before us. We conclude that because Genovesi is alleged to have caused injury in New Hampshire by his tortious acts, the requirements of New Hampshire's long-arm statute have been met. See Thomas, 151 N.H. at 437, 859 A.2d 1166.

We now turn to the second prong of the jurisdictional inquiry—whether the requirements of the Federal Due Process Clause are satisfied. See Fellows, 162 N.H. at 690, 34 A.3d 552. Under the Federal Due Process Clause, "a court may exercise personal jurisdiction over a non-resident defendant if the defendant has minimum contacts with the forum, such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Id. at 690–91, 34 A.3d 552 (quotation omitted). KUA does not contend that Genovesi has the ...