Kinchla v. Baumner, 6861

• Decision Date: 31 December 1974
• Docket Number: No. 6861,6861
• Parties: David E. KINCHLA et al. v. William L. BAUMNER, III, et al.
• Court: New Hampshire Supreme Court

Page 112

330 A.2d 112

114 N.H. 818

David E. KINCHLA et al. v. William L. BAUMNER, III, et al.

No. 6861.

Supreme Court of New Hampshire.

Dec. 31, 1974.

Shute, Engel & Frasier and Lynn D. Morse, Exeter, for plaintiffs.

Perkins, Holland, Donovan & Beckett and Arthur C. Randlett, Exeter, for defendants.

GRIMES, Justice.

The question before the court is whether RSA 510:4, subd. I (Supp.1973) confers jurisdiction over a defendant who was a resident at the time of the occurrence out of which the cause of action arose but who had become a nonresident before the time of service. We hold that it does.

Plaintiffs brought an action for deceit in the sale of land and buildings. Service of process was made in accordance with RSA 510:4, subd. II (Supp.1973). Defendants appeared specially and filed a motion to dismiss for lack of jurisdiction. After a hearing, the motion was granted and plaintiffs' exception was transferred by Morris, J.

This action arose from sale of certain land and buildings by the defendants to the plaintiffs. The property is located in East Kingston, New Hampshire, and the sale was consummated on or about October 27, 1972. This controversy arose over certain alleged statements made by the defendants concerning the condition of the cellar and a well on the property.

Before, during, and after the sale of the premises and the alleged statements, the defendants were residing in East Kingston. On or about November 1, 1972, the defendants left the State of New Hampshire to reside in Newtown, Pennsylvania.

This case focuses around the interpretation of RSA 510:4, subd. I (Supp.1973) which is captioned 'Nonresident Defendant. Jurisdiction' and reads: '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.'

Defendants' principal argument is that for RSA 510:4, subd. I (Supp.1973) to apply, one of the enumerated acts must take place during the nonresidence of the party to be charged. Defendants reach this conclusion by a textual analysis of the act. They argue that because of strategically placed commas and the conjunctive 'and', both elements must contemporaneously exist before jurisdiction attaches to a New Hampshire court.

Defendants also contend that a more precise statute could have removed the alleged limitation. In support of this argument, defendants point to this State's motor vehicle act, RSA 264:1, which specifically provides that the act 'shall not apply to a resident unless after an accident he shall have removed from the state.' Similar language in RSA 510:4, subd. I (Supp.1973), defendants claim, would have clarified the statute, since such language shows an obvious legislative intent to retain jurisdiction over wrongdoers who remove themselves from the State before being served.

In response, plaintiffs argue that RSA 510:4, subd. I (Supp.1973) does provide a basis for jurisdiction over the defendants because grammatical analysis of the statute actually vests jurisdiction over any 'nonresident' so long as one of the three enumerated acts is present. Plaintiffs rely on legislative intent and assert in their brief that the defendants' position 'would produce an unjust and illogical result for it would deprive a New Hampshire resident the opportunity to litigate his claim in a New Hampshire court, once the New Hampshire resident who committed the proscribed act removes himself from the state.'

When construing a statute, this court will look to both the legislative intent and the objectives of the legislation. Frizzell v. Charlestown, 107 N.H. 286, 220 A.2d 742 (1966); Chagnon v. Union-Leader Corp., 104 N.H. 472, 190 A.2d 721 (1963); Newell v. Moreau, 94 N.H. 439, 443, 55 A.2d 476, 480 (1947). During the only legislative discussion on record regarding the present law, RSA 510:4, subd. I (Supp.1973), Senator Leonard commented that '(T)his bill (HB 616) changes the procedure of getting service out-of-state. Under the present...