Property Owners Ass'n at Suissevale, Inc. v. Sholley
| Decision Date | 07 December 1971 |
| Docket Number | No. 6193,6193 |
| Citation | 111 N.H. 363,284 A.2d 915 |
| Parties | PROPERTY OWNERS ASSOCIATION AT SUISSEVALE, INC. et al. v. Peter B. SHOLLEY et al. Joseph CRISTINI et al. v. Peter B. SHOLLEY. |
| Court | New Hampshire Supreme Court |
Cooper, Hall & Walker, Rochester (George W. Walker, Rochester, orally), for plaintiffs.
Charles F. Hartnett, Dover (by brief and orally), for defendant Peter B. Sholley appearing specially.
The defendant Peter B. Sholley excepted to the denial of his motions to dismiss for lack of jurisdiction in both these bills in equity. His bills of exceptions were allowed and transferred by the Trial Court (Loughlin, J.).
Both bills in equity were filed July 30, 1969 on behalf of lot owners and installment purchasers of lots in a development known as Suissevale in Moultonboro, New Hampshire. The allegations in the bills complain of acts during the years 1966, 1967 and 1968, when Suissevale was being developed by Suissevale, Inc. It is alleged that Peter B. Sholley was the president and major shareholder of Suissevale, Inc., until May of 1969 when the entire stock ownership of Suissevale, Inc., was sold to the defendants Speculator Realty Corp. and Bankers Credit Service Corp. Among other allegations the bills charge misrepresentation by defendant Sholley or his agents in the sale of lots and fraudulent mismanagement of the corporation. It is also alleged that on June 17, 1968, Suissevale, Inc., mortgaged its property to defendant Sholley for an antecedent debt of $275,000. Plaintiffs in both cases ask for money damages and certain equitable relief against all defendants.
A real estate attachment of defendant Sholley's mortgage interest in the property was made October 17, 1969 and a trustee attachment of any debt owed defendant Sholley by Suissevale, Inc., on the same date. An order of notice to defendant Sholley was issued on November 3, 1969, and service secured by registered mail to defendant Sholley in Wellesley, Massachusetts on November 14, 1969.
Plaintiffs claim that service on defendant Sholley was properly made under RSA 510:4 (supp.). This is the so-called long arm statute and provides for jurisdiction over a nonresident who in person or through an agent transacts any business or commits a tort in this state or owns any real or personal property in this state as to 'any cause of action arising from or growing out of the acts enumerated.' RSA 510:4(I) (supp.).
While this statute provides for service of process on the secretary of state and notice to the defendant by registered mail (RSA 510:4(II) (supp.)) this method is not exclusive and service 'may be made in any other manner provided by law.' RSA 510:4(V) (supp.). It follows that if RSA 510:4(supp.) is applicable to this case in personam jurisdiction has been acquired over the defendant Sholley. RSA 510:8; see Sampson v. Conlon, 100 N.H. 70, 119 A.2d 707 (1955).
Service in these cases was made subsequent to August 29, 1969, the date RSA 510:4 (supp.) became effective but the acts of the defendant complained of occurred before that date. Defendant argues that to base jurisdiction on the present statute would be a retroactive application not intended by the legislature. The arguments advanced by the defendant based upon the grammar of the statute, a letter from a senator and the failure of the statute to provide for emergency immediate effectiveness are not persuasive as to the intention of the legislature. Unlike the new comparative negligence statute where it appears definite consideration was given to prospective application only (see Nixon, The Actual 'Legislative Intent' Behind New Hampshire's Comparative Negligence Statute, 12 N.H.B.J. 17, 20 (1969)) it does not appear the legislature ever considered the issue.
The presumption that a statute applies prospectively is reversed when its purpose is remedial. Pepin v. Beaulieu, 102 N.H. 84, 89, 151 A.2d 230, 235 (1959). Furthermore, since service here was made after the effective date of the statute, the argument that it is being applied retroactively is correct only if it changed the substantive rights of the parties in existence before its enactment. The statute here makes no change in substantive rights. If the defendant's dealings in New Hampshire land gave rise to a cause of action they did so at...
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...9 N.H. 394, 396 (1838), is given heavy weight when contacts are weighted on the jurisdictional scale. Property Owners Association v. Sholley, 111 N.H. 363, 365, 284 A.2d 915 (1971). The harm which plaintiff has allegedly suffered has occurred in this Moreover, I have previously found that I......
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...action does not in itself make the amendment substantive." Id. at 325, 723 A.2d 583. Similarly, in Property Owners Ass'n at Suissevale, Inc. v. Sholley, 111 N.H. 363, 284 A.2d 915 (1971), we held that a statute expanding in personam jurisdiction of the court did not change substantive right......
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...purposes and objectives. 108 N.H. at 168-169, 229 A.2d at 693. More to the point is the case of Property Owners Association at Suisseval, Inc. v. Sholley, 111 N.H. 363, 284 A.2d 915 (1971). In that case several purchasers of development lots sued defendant Sholley for misrepresentation in t......