UniFirst Corporation v. Daniel C. Cloutier, Jr. d/b/a Check Engine Services

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0069, UniFirst Corporation v. Daniel C.
Cloutier, Jr. d/b/a Check Engine Services, the court on
September 15, 2016, issued the following order:

Having considered the briefs and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The defendant, Daniel C. Cloutier, Jr. d/b/a Check Engine Services,
appeals a default judgment issued by the Superior Court (Colburn, J.) in favor of
the plaintiff, UniFirst Corporation, on its breach of contract claim. We construe
the defendant’s brief to argue that: (1) he was not properly served because the
plaintiff’s petition to confirm the arbitration award was delivered to his “former
address where [he] no longer reside[s]”; (2) he was denied due process because he
was not informed that he was required to appear on January 7, 2016, the date of
the trial court’s entry of final judgment, “to defend [his] position”; (3) he was not
“given a fair chance to defend” himself; (4) the only copy of the contract he
received had been altered as to price; (5) he did not intend to have his dispute
with the plaintiff arbitrated, although the contract he signed required it; (6) the
plaintiff’s salesperson misrepresented the terms of the contract; (7) the contract
was “one of adhesion”; (8) there is no evidence that he read or understood the
terms of the contract; and (9) “[i]f [he] had understood the contract . . ., [he]
would never have agreed to any such terms.”

In this case, in accordance with the terms of the contract, the plaintiff
sought arbitration of its claim. The arbitrator’s award states that the defendant
“failed to appear and . . . failed to submit documents after due notice by mail in
accordance with the Rules.” The return of service of the plaintiff’s petition to
confirm the arbitration award shows that the defendant was served at the
mailing address listed with the Secretary of State for his business, which he
listed as his address on his appearance.

On October 19, 2015, the trial court issued a notice of default, which
stated that “[a] hearing as to final judgment shall be scheduled upon the request
of any party.” The defendant then filed an untimely appearance, on October 22,
listing the same address as the return of service, but did not request a hearing or
move to strike the default. See Super. Ct. Civ. R. 42(a) (stating default may be
stricken only upon motion and affidavit of defenses). On October 30, the
plaintiff’s counsel e-mailed the defendant, at the address shown on his
appearance, stating that counsel had tried unsuccessfully to reach the defendant
by phone and requesting the defendant to contact him to discuss the action.
Counsel represents that the defendant did not respond.

On December 14, the plaintiff moved for entry of final judgment. Counsel
certified that he had mailed a copy of the motion to the defendant at the address
given on the defendant’s appearance. The motion stated that: (1) the defendant
could “file a written response to this motion within 10 days”; (2) the defendant
could request a hearing; and (3) if the defendant did not respond, the trial court
could issue a final judgment in the plaintiff’s favor without a hearing. The record
does not establish that the defendant responded in any way.

On January 7, 2016, the trial court issued a final judgment in favor of the
plaintiff. The record does not reflect that the defendant moved for
reconsideration.

We review a ruling on default under our unsustainable exercise of
discretion standard. Douglas v. Douglas, 143 N.H. 419, 422 (1999). To show
that the trial court’s decision is not sustainable, the defendant must demonstrate
that its ruling was clearly untenable or unreasonable to the prejudice of his case.
State v. Lambert, 147 N.H. 295, 296 (2001). When we determine whether a
ruling is a proper exercise of judicial discretion, we are really deciding whether
the record establishes an objective basis sufficient to sustain the discretionary
judgment made. Id.

We conclude that the defendant was adequately notified of the proceeding
against him because he was served at the address that he listed on his
appearance. See Super. Ct. Civ. R. 42(d) (“All notices under this rule shall be
sufficient if mailed to the last known address of the defaulting party.”) The
record shows that he was afforded multiple opportunities to defend himself, but
chose to avail himself of none.

Because the defendant’s due process argument is undeveloped, we decline
to address it. See State v. Chick, 141 N.H. 503, 504 (1996). Likewise, we decline
to address the defendant’s arguments concerning the validity of the contract
because they were never presented to the trial court. See Town of Atkinson v.
Malborn Realty Trust, 164 N.H. 62, 69 (2012).

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk
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