South Down Recreation Ass'n v. Moran, No. 95-372

• Court: Supreme Court of New Hampshire
• Writing for the Court: BROCK
• Citation: 686 A.2d 314,141 N.H. 484
• Docket Number: No. 95-372
• Decision Date: 10 December 1996
• Parties: SOUTH DOWN RECREATION ASSOCIATION v. Philip and Carole MORAN.

Page 314

686 A.2d 314 141 N.H. 484 SOUTH DOWN RECREATION ASSOCIATION
v.
Philip and Carole MORAN. No. 95-372. Supreme Court of New Hampshire. Dec. 10, 1996.

Page 315

[141 N.H. 485] Lawson & Philpot, P.C., Laconia (Edward D. Philpot, Jr. on the brief and orally), for plaintiff.

Philip and Carole Moran, pro se, filed no brief.

BROCK, Chief Justice.

The plaintiff, South Down Recreation Association, appeals the Laconia District Court (Huot, J.) dismissal of the plaintiff's action against the defendants, Philip and Carole Moran. The trial court ruled that it did not have personal jurisdiction over the defendants because service of process was not in accordance with the long-arm statute. See RSA 510:4 (1983 & Supp.1996). We affirm.

The plaintiff sued the defendants in district court for payment of condominium dues and assessments. See RSA 356-B:15 (1995). The defendants are residents of Salem, Massachusetts. The writ was served on the defendants' abode in Salem by an Essex County, Massachusetts sheriff. The defendants did not appear and were defaulted.

Before final judgment was entered, the district court, sua sponte, raised the question of personal jurisdiction and ruled "that nonresident defendants must be served by service on the Secretary of State and certified mail in the first instance. If that is unsuccessful, application may be made to the court for alternative service." The plaintiff appealed.

[141 N.H. 486] On appeal, the plaintiff argues that RSA 510:4, II (Supp.1996) does not provide the exclusive means of serving nonresident defendants, contending that RSA 510:4, V (1983) and RSA 510:2 (1983) authorized the service it effected in this case. We disagree.

RSA 510:4 is our long-arm statute. See Roy v. Transairco, Inc., 112 N.H. 171, 173, 291 A.2d 605, 606 (1972). RSA 510:4, I, provides for implied submission to New Hampshire jurisdiction when a nonresident "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." See Hutchings v. Lee, 119 N.H. 85, 87-88, 398 A.2d 68, 69-70 (1979). RSA 510:4, II provides:

Service of Process on Secretary of State. Service of process upon any person who is subject to the jurisdiction of this state, as provided in this section, may be made by leaving a copy thereof, with a fee of $10, in the hands or office of the secretary of state. Such service shall be of the same legal force and effect as if served on the defendant at his abode or place of business in the state or country where he resides and according to the law of that state or country, provided that notice thereof and a copy of the process is forthwith sent by registered mail, postage prepaid, by the plaintiff or his attorney to the defendant at his last known abode or place of business in the state or country in which the defendant

Page 316

resides. The defendant's return receipt and an affidavit of the plaintiff or his attorney of compliance with the section shall be appended to the process and entered therewith. In the event that the notice and a copy of the process are not delivered to or accepted by the defendant, the court may order such additional notice, if any, as justice may require.

RSA 510:4, V states that the method of service provided in RSA 510:4, II "is not exclusive and service on nonresident individuals may be made in any other manner provided by law." (Emphasis added.)

Proper service of process is a necessary prerequisite to obtaining jurisdiction over an out-of-state defendant. Hutchins v. Del Rosso, 116 N.H. 421, 423, 365 A.2d 127, 129 (1976). If personal service is not effected within the boundaries of the State, see RSA 510:2, "jurisdiction over a nonresident can only be obtained if the legislature has provided another method of service of process." Hutchins, 116 N.H. at 423, 365 A.2d at 129. This requirement is [141 N.H. 487] separate from the due process requirement that the defendant have minimum contacts with the jurisdiction "such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quotation omitted); see Williams v. Williams, 121 N.H. 728, 731, 433 A.2d 1316, 1318-19 (1981), appeal dismissed, 455 U.S. 930, 102 S.Ct. 1415, 71 L.Ed.2d 639...