2009-348, Impact Foods Sales, Inc. v. Carl Evans d/b/a Warehouse Club Distributing Company

The defendant, Carl Evans d/b/a Warehouse Club

and orally), for the defendant. Ford & Weaver, P.A., of Portsmouth (Christopher J. Somma on the brief

brief and orally), for the plaintiff. Law Offices of Thomas Morgan, P.C., of Salem (Thomas Morgan on the to press. Errors may be reported by E-mail at the following address:

CARL EVANS D/B/A WAREHOUSE CLUB DISTRIBUTING COMPANY

page is: http://www.courts.state.nh.us/supreme. IMPACT FOOD SALES, INC.

No. 2009-348 editorial errors in order that corrections may be made before the opinion goes Rockingham Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 22 as with copies for service on the . . . Secretary of State.”

p. 2 referenced in the affidavit states, “Enclosed please find Writ of Summons along was never received back from the postal service.” The attached cover letter letter certified mail . . . , however, the green post card return receipt requested

and immediately mailed a copy of the process with a copy of the attached cover

sheriff were filed with the superior court on December 10. Secretary of State against him . . . .

attested that he “served the Secretary of State in accordance with RSA 510:4 requested.” The motion further stated that: mailed a copy of the writ to the defendant certified mail, return receipt requested. mailed a copy of the writ of summons certified mail, return receipt US Postal Service despite counsel’s use of a clearly addressed

November 29, and the writ of summons and the affidavit of service from the the defendant of the process that had been served upon the same letter by certified mail to Evans. The secretary of state was served on pursuant to RSA 510:4 (1997). That day, Impact Food also sent a copy of the

In an affidavit of mailing attached to the motion, Impact Food’s attorney

served upon the NH Secretary of State and consistent with RSA 510:4 plaintiff

aware of this law suit against him, counsel for plaintiff again 7. This mail sent first class mail has not been returned by the

up copies of the certified mail. the defendant as the certified mail on January 15, 2008 advising file copy of a letter mailed first class mail to the same address for service on the New Hampshire Secretary of State and a check for $10.00, US Postal Service, however, attached hereto is plaintiff’s counsel 6. Plaintiff’s counsel has not yet received any response from the

alleging that service on Evans had been completed “by having a copy of the writ

5. In an effort to insure that the defendant was made fully

Postal Service on at least two occasions and did not arrange to pick 4. Defendant appears to have been duly notified by the US

County Sheriff enclosing a copy of the writ of summons, along with copies for

On January 31, 2008, Impact Food filed a motion for entry of default,

On November 26, Impact Food’s attorney sent a letter to the Merrimack

of Illinois. the purchase of goods that were not delivered. Evans is a resident of the State appeal followed.

p. 3 has been made in this essentially theft of money by the defendant case.” This unclaimed, notice by regular mail is adequate. law from other states, Impact Food argues that when certified mail is

provides: subject to the jurisdiction of this state is set forth in RSA 510:4, II. The statute

On April 23, the trial court denied the motion, ruling that “[a]dequate service Judicial Circuit – Lake County, Illinois that was issued on December 4, 2008.” sent to the defendant and that additional service is optional. Based upon case received a Citation to Discover Assets in the Circuit Court for the Nineteenth

of the courts of this state . . . .” The method of service of process on persons

law.” Impact Food responds that RSA 510:4 only requires that certified mail be notified of a judgment entered against [him] in New Hampshire when [he] service of process contrary to both New Hampshire Statute and existing case follow the requirements of the statute and instead “attempted to create its own

personal property situated in this state submits himself . . . to the jurisdiction act within this state, or has the ownership, use, or possession of any real or state and who . . . transacts any business within this state, commits a tortious

of process upon any person who is subject to the jurisdiction of of law, which we review SERVICE OF PROCESS ON SECRETARY OF STATE. Service

Warehouse Club Distributing Company.” He further attested that he “was certified mail alleged to have been sent to Carl Evans doing business as vacate judgment and motion to dismiss. He argues that Impact Food failed to Writ of Summons in this matter . . . [and] never signed a green card for any

Pursuant to RSA 510:4, I, “Any person who is not an inhabitant of this

773 (2005).

96, 97 (2003) (quotation omitted). The interpretation of a statute is a question minimum contacts with the jurisdiction.” Estate of Lunt v. Gaylor, 150 N.H. service is separate from the due process requirement that the defendant have was served in accordance with RSA 510:4 and erred in denying his motion to an out-of-state defendant, proper service of process is required. Id. “Proper affidavit attached to the motion, he attested that he “was never served with the Assoc. v. Moran, 141 N.H. 484, 486 (1996). In order to obtain jurisdiction over RSA 510:4 is this state’s long-arm statute. South Down Recreation

On appeal, Evans argues that the trial court improperly found that he RSA 510:4 and thus the court lacked personal jurisdiction over him. In an was never served in accordance with the statutory requirements set forth in Evans filed a motion to vacate judgment and motion to dismiss, stating that he

default judgment was entered against Evans on May 6. On March 20, 2009, On February 7, the trial court granted Impact Food’s motion and a such additional notice, if any, as justice may require.

p. 4 delivered to or accepted by the defendant, the court may order

the event that the notice and a copy of the process are not section shall be appended to the process and entered therewith. In affidavit of the plaintiff or his attorney of compliance with the

in the state or country in which the defendant resides. postage prepaid, to the defendant at his last known abode or place of business must send a “notice thereof and a copy of the process” by registered mail, 4

the defendant resides. The defendant’s return receipt and an the trial court. compliance with [RSA 510:4, II]” must be attached to the process and filed with

hands or office of the secretary of state.” RSA 510:4, II. Second, the plaintiff

words used.

the defendant, the court may order additional notice. Id. must be followed . . . .” known abode or place of business in the state or country in which Id. If a copy of the process is not p. 4 delivered to or accepted by either registered mail or certified mail.” prepaid, by the plaintiff or his attorney to the defendant at his last defendant’s return receipt and an affidavit of the plaintiff or his attorney of copy of the process is forthwith sent by registered mail, postage

process . . . may be made by leaving a copy thereof, with a fee of $10, in the a nonresident defendant, several steps must be taken. First, “[s]ervice of statute and where possible, we ascribe the plain and ordinary meaning to Pursuant to RSA 510:4, II, in order to effect valid service of process over

statute points out a particular method of serving process . . . such method when used in connection with the requirement for notice by mail “shall mean Lachapelle v. Town of Goffstown, 134 N.H. 478, 479-80 (1991). “Where a requirements for service of process.” the law of that state or country, provided that notice thereof and a South Down, 141 N.H. at 487; see see fit to include. Id. We require “strict compliance with statutory plain language of the legislation nor add words which the lawmakers did not it for further indicators of legislative intent. Id. Courts can neither ignore the When a statute’s language is plain and unambiguous, we need not look beyond

Collden Corp. v. Town of Wolfeboro, 159 N.H. 747, 750 (2010).

When construing a statute, we first examine the language found in the

We note that according to RSA 21:32-a (2000), the words “registered mail” business in the state or country where he resides and according to and effect as if served on the defendant at his abode or place of secretary of state. Such service shall be of the same legal force

copy thereof, with a fee of $10, in the hands or office of the this state, as provided in this section, may be made by leaving a least a week later.

p. 5 would mean that a copy of the process would have been sent at

5. But if actual service had been the triggering event, “forthwith” after its letter requesting service was sent to a sheriff on September meant that a copy of the process was properly sent immediately

sending the documents to a county sheriff for eventual service. . . .

have varied widely. As it happened, [plaintiff] maintains that it

was given of a preliminary step to service on the Secretary, i.e., commencement of action hopefully leading to service. Here, notice to make service, expectation that service will take place, or

loses all significance. In the case at bar, the time referenced could

notice of the referent of “thereof,” which is “service” – not intention was addressed by the United States Court of Appeals for the First Circuit in accomplished simultaneously with that to the sheriff’s office. This same issue immediately followed by the proviso, “provided that notice thereof of state, which it could not have done if the mailing to the defendant was same effect as if “served on the defendant at his abode.” This is copy plus fee of $10 in the office of the Secretary, as having the to the defendant’s address in New Jersey. Moreover, “forthwith,” without any definite starting point, same day, the plaintiff sent another copy of the documents by registered mail

. . . is forthwith sent . . . to the defendant.” This can mean only upon the New Hampshire Secretary of State, as required by statute.”

mailing to the defendant include notice of the effected service on the secretary [T]he statute proclaims the effect of “service,” defined as leaving a

the Merrimack County Sheriff for service on the secretary of state. On the The First Circuit initially reviewed the statutory language, stating that:

5. Id. office, the return receipt for the registered mail had been signed on September secretary of state was made on September 12, 2002. Id. At the defendant’s (quotation omitted). The deputy sheriff’s return indicated that service on the

Writ of Summons and Complaint to the Merrimack County Sheriff for service defendant, the plaintiff stated that it had on that day “forwarded copies of the certified mail to Evans. The statute, however, requires that the certified Id. at 363. In the letter to the on the secretary of state and simultaneously sent a copy of the same letter by to the sheriff’s office enclosing a writ of summons, along with copies for service under RSA 510:4, II, the plaintiff sent copies of a summons and complaint to In M & K Welding, to comply with the service of process requirements

M & K Welding, Inc. v. Leasing Partners, LLC, 386 F.3d 361 (1st Cir. 2004).

that although the record is not clear, it appears that Impact Food sent a letter Impact Food did not follow this statutory procedure. Initially we note some preliminary stage of, the process of serving.”

p. 6 registered agent in the state for transacting business within this state.”

Evans on November 26 only contained notice of “the commencement of, or it had effected service on the secretary of state. Short of that, the mailing to the statute, Impact Food should have waited to give notice to Evans until after adequately raising this issue. judgment and motion to dismiss, and supporting memorandum of law, as

notifying Evans that “the NH Secretary of State has been served as your

sheriff were not filed with the court until December 10. In order to comply with

second letter to Evans by certified mail enclosing a copy of the writ and that it first serve the secretary of state because on January 15, 2008, it sent a

however, until November 29, and the writ and the affidavit of service from the was sent by certified mail to Evans. The secretary of state was not served, copies for service on the secretary of state. That same day, a copy of the letter court and therefore ought to be precluded from raising it for the first time on

Impact Food also argues that it in fact complied with the requirement

N.H. 791, 799 (2007).

Merrimack County Sheriff enclosing a copy of the writ of summons, along with Impact Food argues that Evans never raised this issue before the trial

366. see fit to include). M & K Welding, 386 F.3d at

see fit to include.

hour of

In the case before us, Impact Food sent a letter on November 26 to the

158 N.H. 338, 343 (2009) (we will not add language that the legislature did not

place. To hold otherwise adds words to the statute that the legislature did not process on the secretary of state may not be given before the service has taken added.) Under the plain language of the statute, therefore, notice of service of service in the hands or office of the secretary of state.” (Emphasis keep a record of all process served, “and said record shall show the date and state.” RSA 510:4, II. Pursuant to RSA 510:4, III, the secretary of state shall does not occur until the process is “in the hands or office of the secretary of Dictionary 1491 (9th ed. 2009) (italics omitted). Accordingly, service of process or other legal process . . . [a]lso termed service of process.” Black’s Law Law Dictionary defines “service” as: “The formal delivery of a writ, summons, We agree with the First Circuit’s construction of RSA 510:4, II. Black’s

and stages short of completed service. Id. at 365-66. declined to stretch the meaning of “notice thereof” to include notice of actions notice be given of the actual service on the Secretary of State,” the Court Hampshire court would take literally the requirement in section 510:4, II that Id. at 366 (ellipses omitted). Expressing its opinion that it was likely “a New service of process by a method other than that set forth in the statute.

p. 7 undeliverable or not accepted, a court order is the sole authority for effecting

avoiding service and service by regular mail is adequate. mail was received at the same address, then the defendant is deemed to be 7

suit to the defendant by registered or certified mail, or actually deliver it in defendant, the notice and a copy of the process are not delivered to or accepted by the notice by first class mail. However, RSA 510:4, II provides, “In the event that specifically provided that when the notice and a copy of the process are or rules. In

when certified mail is returned unclaimed and there is evidence that regular

for the plaintiff send a certified copy of the citation and of the petition in the that is necessary to constitute service upon a non-resident . . . is that counsel

McFarland, “[u]nder the clear wording of [the long-arm statute], all RSA 510:4 does not authorize service on an out-of-state defendant by providing RSA 510:4, II or RSA 510:8.”). Rather, under RSA 510:4, II, the legislature has cited, however, are governed by the specific language of the applicable statutes

additional notice as the case requires, either by virtue of the last sentence of 2000); First Resolution Inv. v. Seker, 795 A.2d 868 (N.J. 2002). The cases method fails, then plaintiffs may request the superior court to order such v. Dippel, 756 So. 2d 618 (La. Ct. App.), cert. denied, 770 So. 2d 349 (La.

specified by the statute without a court order. authorizing the plaintiff to attempt to effect service of process in a manner not The plaintiff cites case law from other jurisdictions which holds that

immediately after some preceding event.” dispatch : without delay : within a reasonable time . . . : IMMEDIATELY . . . copies it had sent by certified mail to the same address via first class mail.

where jurisdiction is acquired under RSA 510:4, I, is via RSA 510:4, II. If that 489 (“[t]he manner of service of process prescribed by the legislature in cases second letter mailed to Evans approximately six weeks later satisfies the See South Down, 141 N.H. at

require.” (Emphasis added.) We do not interpret this plain language as

the court may order such additional notice, if any, as justice may

“forthwith” to the defendant. Webster’s Dictionary defines “forthwith” as “with Finally, Impact Food argues that service was effected by sending the that notice of service on the secretary of state and a copy of the process be sent secretary of state, such service was likewise deficient. RSA 510:4, II requires the statutory requirement that notice be given of the effected service on the after the effected service on the secretary of state. We cannot conclude that the process to be sent “forthwith,” such mailing should have occurred immediately effected on November 29, 2007. In order for notice thereof and a copy of the connotes a sense of immediacy. Here, service on the secretary of state was Dictionary 895 (unabridged ed. 2002). Accordingly, the term “forthwith”

letter that the secretary of state had been served is sufficient to comply with However, assuming, without deciding, that the statement in the January 15 opportunity to present their objections.’”

apprise interested parties of the pendency of the action and afford them an provide for notice reasonably calculated, under all the circumstances, to constitutionally sufficient notice’” and that “the goal of RSA 510:4 must be ‘to

service on file with the court as required by RSA 510:4, II.

rather than at his home address in Portsmouth, did not comply with the in-state defendant at the defendant’s liability carrier’s office in Manchester, statutes governing service of process is to ‘afford[ ] the defendant 155 N.H. at 451. In Duncan, we concluded that the attempted service on an had been properly perfected on a New Hampshire resident’s “abode.” Nault, In Nault, the issue before us was whether pursuant to RSA 510:2, service service was not executed by a sheriff. persuasive regarding service on an out-of-state defendant. there was no record of the registered mail service and return receipts of such at issue in either of these two cases and thus they are neither controlling nor solely with RSA 510:2 and service on in-state defendants. RSA 510:4 was not

105 N.H. 30 p. 8 8 (1964), the dissent states that “[t]he ‘overall purpose’ of our Citing Nault v. Tirado, 155 N.H. 449 (2007), and Duncan v. McDonough,

dismissal of the suit on the ground that, though actual notice was received,

attested copy thereof.” defendant’s motion to dismiss the suit for lack of personal jurisdiction because had been sent to the defendants, we reversed the trial court’s denial of a secretary of state had been made and, according to counsel, registered mail 4 p. 8 89. Finally, most recently, in Lunt, 150 N.H. at 97, although service on the recognized is a request to the trial court to order additional service. Id. at 487, complied with literally. For example, in authorize out-of-state personal service and that the only alternative method community by a sheriff of that state. We held that RSA 510:4, II does not Recreation, 141 N.H. at 485, out-of-state defendants were served in their home

addressed to the sheriff in contemplation that he will serve them,” we affirmed

process “shall be served by giving to the defendant or leaving at his abode an sheriff’s behalf. Id. at 102. The applicable statute, RSA 510:2, provided that leaving a copy of a summons and complaint at the defendant’s home on the (1970), the brother-in-law of the defendant accommodated a deputy sheriff by

Service is effected only if the provisions of the applicable statute are

A.2d at p. 8 871 (quotation, ellipsis, and italics omitted).

to the party’s last known address; or if the party refuses to claim or to accept service “shall be made by registered or certified mail, return receipt requested, rule governing service of a notification for wage execution mandated that receipt.” McFarland, 756 So. 2d at 622. Likewise, in First Resolution, a court person. There is no requirement under [the statute] for a signed return and . . . such jurisdiction depends on the proper service of process. . . .” p. 9 over a defendant is void, . . . it remains vulnerable to being vacated at any time, certified mailing to Evans. “[A] default judgment issued without jurisdiction

case met all of the requirements of RSA 510:4, II (1997), I respectfully dissent.

notice service on the secretary of state had not occurred prior to Impact Food’s first judgment, applies to a suit dismissed for defective service of process). there are two underlying purposes to service of process: providing sufficient

Evan’s motion to vacate judgment and motion to dismiss. jurisdiction over him. Accordingly, we reverse the trial court’s order denying properly served and therefore the trial court never obtained personal HICKS, J., dissenting. Because I believe that the service effected in this

DALIANIS, DUGGAN and CONBOY, JJ., concurred; HICKS, J., dissented.

510:4, II for effecting service of process on a nonresident defendant because N.H. at 104-05 (RSA 508:10, permitting a new action within one year after process is to afford constitutionally sufficient notice undermines the fact that

service of process were not met in this case, the out-of-state defendant was not Welding, 386 F.3d at 364. We hold that because the statutory requirements for

Impact Food did not comply with the requirements set forth in RSA dissent’s conclusion that the purpose of our statutes governing service of 04. accordance with the requirements of the statute. See Adams, 110 N.H. at 103does not render the service effectual if the process was not served in Indeed, the fact that a defendant has actual knowledge of attempted service without effected service on the defendant in the manner prescribed by law. jurisdiction over the defendant is established by service. No case can proceed agree that notice of the pending action is given by a copy of the writ, and establishing the court’s jurisdiction over the defendant. While we

resident service, and not RSA 510:4, which governs nonresident service, the the fact that Nault and Duncan are construing RSA 510:2, which governs and Procedure § 14.01, at 300-01 (2d ed. 1997) (emphasis added). Aside from proceedings can begin.” 4 R. Wiebusch, New Hampshire Practice, Civil Practice proceeding. . . . [B]oth must be achieved before any constitutionally sufficient Second, it informs the defendant of the pendency and the particulars of the court’s jurisdiction over the defendant or the res in connection with the action. “Service of process accomplishes two purposes. First, it establishes the

Duncan, 105 N.H. at 309 (quotation omitted). giving to the defendant or leaving at his abode an attested copy thereof . . . .” mandates of RSA 510:2 that “all writs and other processes shall be served by such additional notice, if any, as justice may require.

p. 10 delivered to or accepted by the defendant, the court may order

the event that the notice and a copy of the process are not section shall be appended to the process and entered therewith. In affidavit of the plaintiff or his attorney of compliance with the

the defendant resides. The defendant’s return receipt and an

the state or country in which the defendant resides.” his attorney to the defendant at his last known abode or place of business in

known abode or place of business in the state or country in which prepaid, by the plaintiff or his attorney to the defendant at his last a copy of the process is forthwith sent by registered mail, postage

“[i]n order to comply with the statute, Impact Food should have waited to give

to the law of that state or country, provided that notice thereof and

office of the secretary of state”; and (2) sending, “forthwith,” “notice thereof and requirements: (1) “leaving a copy thereof, with a fee of $10, in the hands or service of process upon a nonresident defendant. The first two are unqualified for service upon the secretary of state. Specifically, the majority states that sending a copy of the writ to the defendant by certified mail and to the sheriff the second step, the majority finds fault with the plaintiff simultaneously and the record supports that the secretary of state was properly served. As to legislature did not use superfluous or redundant words.” statute as a whole, not on isolated words or phrases, presuming that the of business in the state or country where he resides and according The majority does not note any deficiency in effecting the first step here,

Reading the statute as a whole, it sets forth three steps for effecting

RSA 510:4, II.

the plain meaning of the words used. . . . In our analysis, we will focus on the force and effect as if served on the defendant at his abode or place of the secretary of state. Such service shall be of the same legal by leaving a copy thereof, with a fee of $10, in the hands or office

settled rules of statutory construction. “When we interpret statutes, we look to

jurisdiction of this state, as provided in this section, may be made Service of process upon any person who is subject to the

RSA 510:4, II provides:

citation omitted).

RSA 510:4, II requires entails an examination of the statute under our well- Recreation Assoc. v. Moran, 141 N.H. 484, 487 (1996). Determination of what compliance with statutory requirements for service of process.” South Down As the majority correctly points out, we “consistently require strict office. p. 11 exercise reasonable diligence in retrieving the registered mail from the post registered mail and notice thereof is left at his residence, he is under a duty to

of delivery to the officer,” we have held that where process is sent to a sheriff by

designated party. I would hold that notice to the defendant that the plaintiff or

writ to the sheriff with instructions to serve it.

while “mere proof of mailing of legal process to a sheriff is not of itself evidence upon delivery of the process to the sheriff and his acceptance thereof, and department and issued from lawful authority.” RSA 104:5. The duty arises

said nor add words that it did not see fit to include.”

in motion a legally-prescribed procedure for service of process upon the Demers, 106 N.H. at 356. Thus, the delivery of a writ to the sheriff sets

upon the secretary of state in the customary way; namely, by forwarding the state. Nor would I do so now. The statute does not require it. the writs themselves “to the sheriff in contemplation that he will serve them.” serve the defendant). Rather, service by the sheriff is implicit in the address of

mention of service by the sheriff or his return of service. shall serve and execute all writs and other precepts directed to the sheriff’s (1965). One such official duty is that “[t]he sheriff and the sheriff’s deputies stage of, the process of serving.” construction. First, “[w]e will neither consider what the legislature might have the performance of their official duties.” Demers v. Bisbee, 106 N.H. 354, 356 the Secretary of State rather than the commencement of, or some preliminary officers, are under a general duty to exercise reasonable skill and diligence in We have opined that “sheriffs and their deputies, like other public

Id. at 104; see RSA 104:5 (2001); RSA 509:3 (1997). requires only notice that the plaintiff or his attorney has instituted service that statute to require waiting for the return of service upon the secretary of disagree that it requires notice that service has been completed. In my view, it 110 N.H. 101, 103-04 (1970) (noting that RSA 510:2 does not specify who must ‘thereof,’ which is ‘service,’” Cf. Adams v. Sullivan, N.H. 602, 605 (2009) (quotation omitted). RSA 510:4, II itself makes no

This interpretation is consistent with our standards of statutory the requirement in section 510:4, II that notice be given of the actual service on

arm statute, however, is not binding upon us, and we have never construed agree that “notice thereof” means notice of service upon the secretary of state, I

Court of Appeals in which the First Circuit concluded “can mean only notice of the referent of not parse the statute so finely. The statute requires that “notice thereof,”

The First Circuit opined that “a New Hampshire court would take literally

(1st Cir. 2004). The First Circuit Court of Appeals’ interpretation of our long

reaching its conclusion, the majority adopts the reasoning of the First Circuit notice to Evans until after it had effected service on the secretary of state.” In statute.

we will construe statutes to effectuate their underlying policies.”

statutes always have some purpose or object to accomplish.” the dictionary,” but instead would heed the admonition to “remember that

effected here was within the legislature’s contemplation and well satisfies the

requirements for service of process,”

our rule of statutory construction providing that “[w]here reasonably possible, construction described herein, jurisdiction was established. 158 N.H. 437, 440 (2009) (quotations omitted). That admonition is reflected in personal jurisdiction over the defendant. Zorn v. Demetri,

in my opinion, the most reasonable one. I would not “make a fortress out of definition in Black’s Law Dictionary (9th ed. 2009), is a possible one, it is not, terms. While the majority’s interpretation of “service,” based upon the term’s “forthwith.” RSA 510:4, II. I would conclude that simultaneous notice as strict compliance with a statute does not equate to strict construction of its goal of expedition by directing that “notice thereof” be sent to the defendant South Down Recreation, 141 N.H. at 487, his response, most consistent with that goal. Indeed, RSA 510:4, II reflects the While, as previously noted, we “require strict compliance with statutory

believe that once the service statute was complied with, consistent with the

As the majority notes, a second purpose of service is the establishment of

has been served.” return is merely evidence by which the court is informed that the defendant not the return . . . but the service of the writ, that gives jurisdiction. The

opportunity to present their objections.” notice, and, therefore, gives the defendant the greatest length of time to prepare apprise interested parties of the pendency of the action and afford them an omitted), I would find the interpretation that most expeditiously provides opportunity to present [his] objections,” Duncan, 105 N.H. at 309 (quotation As one purpose of our service statutes is to “afford [the defendant] an

(quotation omitted). statutory scheme.” Bissonnette v. Alpine, Inc., 96 N.H. 419, 420 (1951)

action is given by the copy of the writ itself. Thus, we have noted that “[i]t is 309 (1964) (quotation omitted). Notice of the pendency, and nature, of the

provide for notice reasonably calculated, under all the circumstances, to 155 N.H. 449, 451 (2007). Accordingly, the goal of RSA 510:4 must be “to to “afford[] the defendant constitutionally sufficient notice.” Nault v. Tirado, omitted). The “overall purpose” of our statutes governing service of process is

enacting them, and in light of the policy sought to be advanced by the entire “Our goal is to apply statutes in light of the legislature’s intent in

notice of service, for purposes of RSA 510:4, II. his attorney has instituted this procedure constitutes “notice thereof,” i.e., prior to sending the first class letter,

p. 13 the plaintiff could have asked the court whether additional notice was required additional notice by first class mail, no further notice was required. Granted, been complied with and that, whether in light of, or notwithstanding, the

order as an acknowledgment that all mandatory portions of the statute had

completed prior to sending the letter by first class mail, I would read the court’s my conclusion that the first two steps in RSA 510:4, II had been properly after-the-fact sanction of an unauthorized method of service. Rather, in light of

court may order such additional notice, if any, as justice may require.” and a copy of the process are not delivered to or accepted by the defendant, the qualified, however, by the sentence that follows it: “In the event that the notice

statute prohibit a plaintiff from voluntarily providing more notice than the specified by the statute without a court order.” Neither, however, does the 489, and at that point, the court’s answer might have been different. While “authoriz[e] the plaintiff to attempt to effect service of process in a manner not see South Down Recreation, 141 N.H. at

the process and entered therewith.” RSA 510:4, II. This third “requirement” is

comply with the second step in RSA 510:4, II. “appended to the process and entered therewith.” and copy of the process are not accepted by the defendant, they need not be

The majority concludes that the provision for additional notice does not

other hand is, in my view, both unnecessary and unreasonable. required no additional notice. followed, by practitioners in this state. The majority’s construction, on the the plaintiff or his attorney of compliance with the section shall be appended to “[a]dequate service has been made.” I would read this as a finding that justice additional notice is required. In this case, the trial court determined that added). The plain import of this language is that there are cases in which no may order such additional notice, if any, as justice may require.” Id. (emphasis pursuant to RSA 510:4.” I would hold that this is sufficient notice of service to Id. In that case, “the court

Reading the last two sentences of the statute together, if, as here, the notice

coincidence, this is the construction placed upon the statute, and generally The third step is that “[t]he defendant’s return receipt and an affidavit of

with a check in the amount of $10.00 made payable to the Secretary of State along with copies for service on the New Hampshire Secretary of State along sent to the sheriff, which itself stated: “Enclosed please find Writ of Summons The record reflects that the plaintiff copied the defendant on the letter he

accommodating the practicalities of legal practice. Thus, perhaps not by of the purposes of effecting service and providing notice while also secretary of state and notice to the defendant. Such a construction serves all possible to construe RSA 510:4, II to authorize simultaneous service upon the Rowan, p. 14 142 N.H, 67, 74 (1997) (quotation omitted). I believe it is reasonably 14

reasons, I respectfully dissent.

was not defective, implicitly finding that no additional notice was required.

decision”). I would not disturb that determination. For all of the foregoing

went unclaimed by the defendant. The trial court here concluded that service

assume the trial court makes “all subsidiary findings necessary to support its defendant in Massachusetts, a method of service not authorized by statute. Smith v. Lillian V. Donahue Trust, 157 N.H. 502, 508 (2008) (noting we

mail service and the return receipt is unavailable precisely because the notice conclusion I reach. In defective. Id. By contrast, in this case, the plaintiff has proof of the registered Lunt, 150 N.H. at 97. Furthermore, the trial court concluded that service was the defendant] and had not filed the return receipts for service with the court.” In by the relevant statute. Lunt, the plaintiff “had no record of the registered mail service [upon

properly made upon the secretary of state by a sheriff. South Down Recreation, p. 14 141 N.H. at 485, 487. In the instant case, service was

service upon the secretary of state but rather effected abode service upon the N.H. at 103-04, and in South Down Recreation, the plaintiff did not attempt

150 N.H. 96 (2003), are distinguishable and therefore not contrary to the Finally, Adams, South Down Recreation and Estate of Lunt v. Gaylor,

either doing something not prohibited, or failing to do something not required, notice” (emphasis added)). I see no reason to fault the plaintiff in this case for “fails, then plaintiffs may request the superior court to order . . . additional p. 14 141 N.H. at 489 (stating that if method of service provided in RSA 510:4, II the plain language of the statute or our decision in South Down Recreation, such a step might have been prudent, however, it was not mandated by either