Sununu v. Clamshell Alliance

• Decision Date: 14 July 1982
• Docket Number: No. 81-188,81-188
• Citation: 122 N.H. 668,448 A.2d 431
• Parties: John SUNUNU, In the Interest of the State of New Hampshire v. CLAMSHELL ALLIANCE et al.
• Court: New Hampshire Supreme Court

Page 431

448 A.2d 431

122 N.H. 668

John SUNUNU, In the Interest of the State of New Hampshire v. CLAMSHELL ALLIANCE et al.

No. 81-188.

Supreme Court of New Hampshire.

July 14, 1982.

William E. Brennan, P. A., Manchester (William E. Brennan, Manchester, on the brief and orally), for plaintiff.

Wood & Smart, Portsmouth (Christopher W. Wood, Portsmouth, on the brief and orally), for defendants Adams and Koski.

PER CURIAM.

The issue in this case is whether the superior court erred in denying the motion of the defendants Jay Adams and Norma Koski to strike a judgment by default. Finding error, we vacate the default judgment and remand.

On the weekend of May 24, 1980, an anti-nuclear demonstration took place at the Seabrook nuclear power station. The plaintiff, a New Hampshire taxpayer, thereafter sued the Clamshell Alliance, the Coalition for Direct Action, and "John Doe, a participant," on a plea of debt to recover the costs spent by the State to police the demonstration.

On June 12, 1980, a writ of summons was issued against the defendants in which the plaintiff, on behalf of the State, sought reimbursement for $400,000 in damages. Eight days later, the Rockingham County Sheriff attempted service of process on the Clamshell Alliance by leaving a copy of the summons at the Seabrook, New Hampshire abode of Kristie Conrad, a member of the Clamshell Alliance. The Coalition for Direct Action, not a party to this appeal, was served pursuant to the out-of-State service procedure of RSA 510:4 (Supp.1979). The Coalition has not challenged service of process or the default judgment against it.

Because neither the organizations nor the individuals who participated in the demonstration entered appearances, default was entered against them on August 15, 1980. On October 7, 1980, judgment was entered against them, and damages were assessed at $179,325.62.

On December 4, 1980, two members of the Clamshell Alliance filed a motion to strike the default judgment, asserting that they were not served with process and did not hear that members of the Clamshell Alliance would be held individually liable until October 1980, after default was entered and damages assessed. They also contended that the Clamshell Alliance had not been served in accordance with RSA 510:13. The Superior Court (Temple, J.) denied their motion on the ground that the two movants lacked standing because they had not participated in the May 1980 demonstration. They did not appeal.

Jay Adams and Norma Koski (hereinafter "the defendants"), two members of the Clamshell Alliance who participated in the May 1980 demonstration, filed a motion to strike the judgment by default on April 3, 1981. In their motion and supporting affidavits, the defendants asserted that they had not been served, were not actually or adequately notified of the "matter," and did not know before default judgment was rendered that they would be held liable.

The Superior Court (Contas, J.) held a hearing and denied the defendants' motion to strike the default judgment on April 29, 1981. Despite lack of personal or abode service, the court found that "there was sufficient information, State wide, that suit had been brought against the Coalition for Direct Action and the Clamshell Alliance and the defendants knew if they were members of either or both.... The Court is of the opinion that the defendants had sufficient notice of the pendency of this suit ... [and have failed] to show any standing for bringing this motion."

The defendants appealed the court's order and raise the following issues: whether the defendants had standing to bring their motion to strike the default judgment; whether the defendants were actually notified, and if not, whether they were "sufficiently" notified of their liability; and whether the defendants have any other ground for striking the default judgment.

The trial court's statement that Adams and Koski lacked standing was incorrect. The Clamshell Alliance and "John Doe, a participant," were named as parties to the suit. Adams and Koski were members of the Clamshell Alliance who participated in the Seabrook demonstration; thus, they were parties defendant. The plaintiff sought to hold them personally liable for the $179,325.62 judgment by default. Because Adams and Koski have a direct and substantial interest in the outcome, they have standing. See Warth v. Selden, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). We now consider the notification issue.

The pertinent statutes dealing with service of process upon unincorporated associations are as follows:

RSA 510:13 Associations. Service of writs or other process against unincorporated associations, joint stock companies, syndicates, orders or any mutual association of persons, other than a partnership having not more than four members, within this state, may, except when otherwise provided, be made upon any officer thereof; or, if it have no officer, then upon any two members thereof.

RSA 514:1 Default. If a defendant on whom process has been duly served neglects to appear at the court to which the same is returned his default shall be recorded, and judgment shall be rendered against him for such damages as upon inquiry the plaintiff appears to have sustained.

RSA 514:14 Notices. The court shall order notice to be given, in such manner as they think fit, of any petition, complaint, libel, application or motion in writing filed therein, and no judgment or decree shall be rendered thereon without compliance with such order.

RSA 510:13 provides that writs or other process against unincorporated associations shall be served on two members if the association has no officers. The Clamshell Alliance which is such an unincorporated association, was not served properly because only one member was served with the writ of summons.

The plaintiff claims, however, that the absence of proper service under the statute is cured in some way by media coverage of the litigation. This claim is...