2006-548, STEVEN NAULT v. MICHELLE TIRADO

The plaintiff, Steven Nault, appeals an order of the

Connor on the brief, and Mr. Burt orally), for the defendant. Wiggin & Nourie, P.A., of Manchester (Gary M. Burt and Doreen F.

MacMillan on the brief and orally), for the plaintiff. to press. Errors may be reported by E-mail at the following address: MacMillan Law Offices, of Bradford, Massachusetts (Thomas K.

editorial errors in order that corrections may be made before the opinion goes No. 2006-548 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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. Opinions are available on the Internet by 9:00

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

“abode” service to be made at a defendant’s

defendant constitutionally sufficient notice. See Duncan, 105 N.H. at 309. manner is consistent with the statute’s overall purpose of affording the others.” RSA p. 2 21:6-a (2000). Construing the term “abode” in RSA 510:2 in this place of physical presence for the indefinite future to the exclusion of all “The place of abode . . . is that designated by a person as his principal appeal followed. the time of the attempted service. the unrefuted proof established that the defendant did not reside in Exeter at

overcome the presumption. The defendant counters that RSA 510: p. 2 2 requires that she had not resided there for more than a year was insufficient to presumption of correctness, and that the defendant’s assertion, without more, been made at the defendant’s “last and usual place of abode” was entitled to a The plaintiff argues that the sheriff’s return showing that service had

constitute the defendant’s abode in accordance with this standard. applies, we review the trial court’s finding that the Exeter address did not last and usual place of address. The trial court granted the motion, and this on appeal suggest that the unsustainable exercise of discretion standard defendant. The plaintiff argued that service was timely made at the defendant’s Assoc. v. Moran, 141 N.H. 484, 489 (1996). Because both parties’ arguments “leaving [it] at his abode.” RSA 510: p. 2 2 (1997); submitted proof that the post office did not have a forwarding address for the see South Down Recreation by either giving a copy of the writ to the defendant within the state, or by identifying the Exeter address as the defendant’s address. The plaintiff also N.H. 308, 309 (1964). Service on a New Hampshire resident is accomplished Estate of Lunt v. Gaylor, 150 N.H. 96, 97 (2003); Duncan v. McDonough, 105 the action, and to vest the trial court with jurisdiction over the defendant. See argued it was time-barred. is required to provide the defendant with constitutionally sufficient notice of served nor entered with the court prior to November 27, 2005, the defendant Strict compliance with the statutory requirements for service of process copy of the writ had been sent to her insurer. Because the writ was neither aware of the action by her counsel, who had learned of it because a courtesy

Exeter bearing the town clerk’s stamp with a date of February 1, p. 2 2006, and To counter the motion, the plaintiff submitted a voter registration list for

had not lived at the Exeter address since the move. She claimed she was made p. 2 2006, she moved to Massachusetts in connection with her employment, and submitted an affidavit asserting that more than a year before January 1 p. 3 3, because she no longer resided in Exeter. In support of the motion, she The defendant moved to dismiss, arguing that service was defective 3

trial court.

BRODERICK, C.J., and DUGGAN and GALWAY, JJ., concurred.

N.H. 848, 852 (1998).

See Super. Ct. R. 58; Provencher v. Buzzell-Plourde Assoc., 142

accordance with Superior Court Rule 58 why such a hearing would assist the indication that he requested an evidentiary hearing, or set forth reasons in hearing in his objection to the motion to dismiss, the record contains no have conducted a full evidentiary hearing. Although the plaintiff requested a Finally, we reject the plaintiff’s contention that the trial court should

P.2d 4 p. 3 39, 440 (Wash. Ct. App.), review denied, 943 P.2d 662 (Wash. 1997). Exeter address is the defendant’s abode. See Gross v. Evert-Rosenberg, 933 forwarding address on record with the post office, compels a finding that the the defendant’s name on a voter registration list, nor the absence of a burden to establish personal jurisdiction). Moreover, neither the presence of Env’t Mach. Co., 152 N.H. 325, 327 (2005) (when challenged, plaintiff bears establish the location of her present abode. Cf. Continental Biomass Indus. v. Contrary to the plaintiff’s argument, the defendant was not required to further resided at the Exeter address since some time prior to January 13, 2005. may have arisen from the sheriff’s return by offering proof that she had not In this case, the defendant adequately rebutted any presumption that

by contrary proof. See Adams v. Sullivan, 110 N.H. 101, 10 p. 3 3 (1970). return of service is presumed to be correct, the presumption may be overcome Civil Practice and Procedure § 14.03, at 302 (2d ed. 1997). While a sheriff’s action and to prepare a response.” 4 R. Wiebusch, New Hampshire Practice, may be expected to return in sufficient time to become apprised of . . . the left is the place where the defendant has been living and to which he or she perfected on an “abode,” therefore, is “whether the place where the process is The issue critical to determining whether service has been properly