Lachapelle v. Town of Goffstown, 90-218

• Decision Date: 24 July 1991
• Docket Number: No. 90-218,90-218
• Parties: Jacqueline LACHAPELLE v. TOWN OF GOFFSTOWN.
• Court: New Hampshire Supreme Court

Page 1152

593 A.2d 1152

134 N.H. 478

Jacqueline LACHAPELLE v. TOWN OF GOFFSTOWN.

No. 90-218.

Supreme Court of New Hampshire.

July 24, 1991.

Sakellarios & Associates, Manchester (Jean-Claude Sakellarios on the brief and orally), for plaintiff.

Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester (Marc R. Scheer orally and on the brief, and Michael R. Mortimer on the brief), for defendant.

MEMORANDUM OPINION

BATCHELDER, Justice.

The defendant, the Town of Goffstown (the Town), appeals the decision of the Superior Court (Barry, J.) denying its motion for late entry of appearance and its motion to strike default. The Town argues that service of process in the underlying suit was defective, because it did not fulfill the statutory requirements of RSA 510:10 (Supp.1990), that the superior court did not obtain jurisdiction over the Town because service was defective, and that "justice and equity" require reversal of the trial court's decision. We reverse and remand.

The plaintiff, Jacqueline Lachapelle, was the owner of real estate on Wallace Road in Goffstown, where her son, Brett Lachapelle, was a tenant. Pursuant to a search warrant, agents of the Town entered the property to seize certain items which the Town asserted were illegally possessed by her son. During the course of removing and later returning the items, vehicles operated by the Town's agents struck her house, damaged a stone wall, and drove over her septic system. The plaintiff subsequently filed suit against the Town, alleging that it was responsible for this damage. The writ was served on the town clerk and on the administrative assistant to the selectmen. Although the Town obtained counsel and was proceeding to defend a companion suit filed by Brett Lachapelle, arising from the same events, it never filed an appearance in the Jacqueline Lachapelle suit. Consequently, the plaintiff, through an employee of her counsel's law firm who was not a member of the New Hampshire bar, wrote to the clerk of the superior court, requesting that the court enter a default judgment against the Town in the Jacqueline Lachapelle suit. When the Town received notice of the impending default judgment from the superior court, it filed a motion for late entry of appearance and a motion to strike default. Both motions were denied by the trial court, and this appeal followed.

The standard of review is well settled. "The decision to strike a default is within the trial court's discretion and will not be disturbed unless the court clearly abused its discretion or erred as a matter of law." Sununu v. Clamshell Alliance, 122 N.H. 668, 673, 448 A.2d 431, 434 (1982).

RSA 510:10 (Supp.1990) requires that writs against a Town must be served "upon one of the selectmen and the town clerk." (Emphasis added.) This language is plain and requires strict compliance. The writ in this case was served on the town clerk and the administrative assistant to the...