2004-389, OBISPO BRITO & a. v JAMES RYAN

County Superior Court in the State of Arizona, alleging two counts of breach of defendant individually, as well as s everal business entities, in the Yuma shares of the Vipers. To recover damages for his injuries, Brito sued the injured, the defendant, a resident of New Hampshire, owned fifty membership busines s as the Yuma Bullfrogs Baseball Club (YBBC). At the time Brito was owned by the Valley Vipers Professional Baseball Club, LLC (Vipers), doing playing minor league professional baseball for the Yuma Bullfrogs, which was The following facts are uncontested. Obispo Brito was injured while

vacate or stay the judgmen t. We vacate and remand. filed by the plaintiffs, Obispo and Leslie Brito, and denying his petition to Superior Court (Fitzgerald, J.) granting a petition for entry of foreign judgment BRODERICK, C.J. The defendant, James Ryan, appeals an order of the

James Ryan, by brief and orally, pro se.

and orally), for the plaintiffs. Phillips Law Office, P.L.L.C., of Concord (Roger B. Phillips on the brief

No. 20 04 - 389 Merrimack

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

the issue in Arizo na. defendant waived the defense of lack of personal jurisdiction by failing to raise outset of [the] case.” Accordingly, we address the trial court’s ruling that the personal jur isdiction “because [he] failed to raise the issue . . . in Arizona at the trial court specifically stated that the defendant “waived” the defense of lack of litigated in Arizona, the issue was not subject to attack in New Hampshire. The suggests, conclude that because personal jurisdiction had already been At the outset, we note that the trial court did not, as the d efendant

individually, was not a proper defendant to the lawsuit. appear, collaterally attack the default judgment on the basis that he, jurisdictio n over him; and ( p. 2 2) the defendant cannot, after choosing not to minimum contacts with Arizona such that the Arizona court had personal should be upheld because the record reflects that the defendant had sufficient defendant was foreclosed from challenging personal jurisdiction, its order plaintiffs contend that: (1) although the trial court erred in ruling that the not a party to the contract between Brito and the Vipers. For their part, the individually, was not a proper defendant in the Arizona lawsuit because he was the Revised Uniform Enforcement of Foreign Judgments Act; and (3) he, Kinley, 142 N.H. 415 (1997), and incorrectly interpreted RSA chapter 524 - A, therefore was not subject to attack; (2) the trial court misconstrued Mosier v. Hampshire, or personal jurisdiction had already been litigated in Arizona and the outset of the lawsuit, rather than by way of collateral attack in New concluding that either he needed to contest personal jurisdiction in Arizona at The defendant raises three arguments: (1) the trial court erred in

and t his appeal followed. [New Hampshire].” The trial court denied the defendant’s motion to reconsider, case, such defense ha[d] been waived and [was] not now available to him in failed to raise the issue of personal jurisdiction in Arizona at the outset of [the] petition for entry of foreign judgment, ruling that “because the [d]efendant The trial court denied the defendant’s motion and granted the plaintiffs’

asserting that the Arizona court lacked personal jurisdiction over him. moved to vacate the judgment or, i n the alternative, to stay the judgment, default judgment in the Merrimack County Superior Court. The defendant taxable costs. Three months later, the plaintiffs petitioned for entry of the r esulting in a default judgment against the defendant for $ p. 2 219,000 plus the plaintiffs’ failure to file a necessary exhibit, but granted the second request, sought a default judgment. The trial court denied the first request based upon After the defendant failed to enter an appearance, the plaintiffs twice

served. respond to the lawsuit. None of the other defendants in the lawsu it were contract and two counts of negligence. The defendant did not appear or p. 3 3

reliance, however, was misplaced. Mosier, 142 N.H. at 42 p. 3 3 - 24 (quotations and brackets o mitted). The trial court’s

are reached. demands that it be fully decided before other issues of the litigation only separate, but also preliminary, and reasonable procedure litigated before the case continues. The issue of jurisdiction is not jurisdiction. It is essential that jurisdictional issues be fully waive the ability to later attack the trial court’s ruling on personal We hold that a defendant must seek an immediate appeal or

relevant part: court relied upon our holding in Mosier v. Kinle y, in which we stated, in In ruling that the defendant had waived personal jurisdiction, the trial

(1996). Gaylor, 150 N.H. 96, 97 - 98 (200 p. 3 3); Barton v. Hayes, 141 N.H. 118, 120 - 21 exercise of personal jurisdicti on in courts of this State. See Estate of Lunt v. not waived the issue, that party may collaterally attack the foreign court’s Maine). Moreover, where the party seeking to contest personal jurisdiction has defendant s would have been better served had their counsel “done nothing” in entered general appearance, thus submitting to jurisdiction of Maine courts; (1979) (defendants estopped from litigating personal jurisdiction where counsel Corp., 127 N.H. at 375 - 79 (same), with Leighton v. Davis, 119 N.H. 115, 116 jurisdiction where issue not previously litigated in foreign cour t), and V & V (defendants permitted to attack foreign judgment on basis of lack of personal Corp., 127 N.H. at 375 - 79; compare Paragon Homes, 110 N.H. at 280 this State may validly inquire i nto that court’s jurisdiction. See id.; V & V the issue of personal jurisdiction has not been litigated in the foreign court, person.” Paragon Homes, Inc. v. Gagnon, 110 N.H. 279, 280 (1970). Where [the rendering court] had jurisdiction [over both] the subject matter and . . . the CONST. art. IV, § 1; RSA 524 - A:1, 2 (1997). However, this is so “if, but only if, Corp. v. American Policyholders’ Ins. Co., 127 N.H. 372, 375 (1985); see U.S. credit, that is, to both recognition and enforcement in sister States. V & V jurisdiction is entitled under the United States Constitution to full faith a nd Generally a judgment rendered in this country by a court of competent

(explaining unsustainable exercise of discretion). Co., 126 N.H. 101, 102 (1985); cf. State v. Lambert, 1 p. 4 47 N.H. 295, 296 (2001) an unsustainable exercise of discretion. Jamieson, Inc. v. Copeland Coating default judgment unless the trial court erred as a matter of law or engaged in This court will not disturb a decision denying a motion to vacate a 4

NADEAU, DALIANIS, DUGGAN and GALWAY, JJ., concurred.

way of collateral attack. individually, was a proper party to the Arizona lawsuit cannot be contested by Accordingly, unlike the issue of personal jurisdiction, the issue of whether he, Shepard, 12 p. 4 4 N.H. 392, 396 (1983) (quotation, brackets and ellipsis omitted). validity of the legal principles on which the judgment is based.” Wilson v. Constitution precludes any inquiry into the merits of the cause of action or the issue beco mes relevant. “The full faith and credit clause of the [United States] determined that Arizona did have personal jurisdiction over the defendant, the individually, was a proper party to the lawsuit is moot. If, however, it is have personal jurisdiction over the defendant, the issue of whether he, sued was between Brito and the Vipers. If it is determined tha t Arizona did not party to the Arizona lawsuit because the contract upon which the plaintiffs Finally, the defendant argues that he, individually, was not a proper

with this opinion. we vacate the trial court’s order and remand for further proceedings consistent 376. However, the trial court has not yet addressed this issue. Accordingly, court to assert personal jurisdiction over him. See V & V Corp., 127 N.H. at had sufficient minimum contacts with the State of Arizona for the Arizona nevertheless uphold its order because the record reveals that the defendant The plaintiffs contend that, despite the trial court’s error, we should

appearance and waiver of personal jurisdiction). issue of damages addressed merits of case and therefo re constituted general judgment in which defendant conceded liability but requested to strike only on personal jurisdiction), with Barton, 1 p. 4 41 N.H. at 120 (motion to strike default appearance nor request addressin g merits of case, and therefore no waiver of strike default judgment based solely on defective service was neither general Arizona’s jurisdiction. Compare Estate of Lunt, 150 N.H. at 97 - 98 (motion to nothi ng in the record indicating that the defendant submitted himself to that the defendant waived the issue of personal jurisdiction, because there is court erred in relying on Mosier. Moreover, the trial court erred in concluding plaintiffs sought to enforce the judgment in New Hampshire. Thus, the trial the defendant took no action in Arizona, apparently waiting to d o so when the issue in this case does not concern an appeal from such a challenge. Rather, at 423. Here, the defendant did not challenge jurisdiction in Arizona and the must pursue an immediate appeal or be dee med to have waived the issue. Id. defendant who had already challenged the trial court’s personal jurisdiction In Mosier, we issued our holding in response to the question whether a