Cecil Curran v. Aaron Puyana

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0277, Cecil Curran v. Aaron Puyana, the
court on November 10, 2016, issued the following order:

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

The defendant, Aaron Puyana, a Florida resident, appeals the order of
the Circuit Court (Spath, J.) denying his motion to dismiss or to strike the
default judgment entered against him in the amount of $13,570.37 for
nonpayment of rent and damages to residential premises leased from the
plaintiff, Cecil Curran. The defendant argues that service of process was
defective.

The defendant first argues that service was defective because the plaintiff
failed to comply with RSA 510:4 (2010), which requires service of process on
the secretary of state. We review a trial court’s ruling on a motion to dismiss
for lack of personal jurisdiction de novo. Chick v. C & F Enters., 156 N.H. 56,
557 (2007). In order to obtain jurisdiction over an out-of-state defendant,
proper service is required. Impact Food Sales v. Evans, 160 N.H. 386, 390
(2010). RSA 510:4 is this state’s long-arm statute. Id. We require strict
compliance with the statutory requirements for service of process. Id. at 391.
Pursuant to RSA 510:4, II, service of process on an out-of-state defendant
requires leaving a copy of the process, with a fee of $10, with the secretary of
state. In Evans, we held that proof of service on the secretary of state must be
sent to the defendant by registered or certified mail. Id. at 392-93.

There is no dispute in this case that the plaintiff did not serve process on
the secretary of state. However, “[t]he method of service provided by [RSA
510:4, II] is not exclusive and service on nonresident individuals may be made
in any other manner provided by law.” RSA 510:4, V. One such manner is
service by consent. “Consent has long been recognized as a stand-alone basis
for exercising personal jurisdiction, existing independently of long-arm
statutes.” Chick, 156 N.H. at 558 (quotation omitted). In this case, the trial
court found that the defendant consented to jurisdiction by completing,
signing, and returning to the plaintiff an “acceptance of service” form. The
defendant argues that although he executed the form, he did not waive the
requirement that service be made on the secretary of state.
 The acceptance of service form that the defendant signed bears the
caption and docket number of the case. The first paragraph of the form states,
“I, Aaron Puyana, pro se, hereby accept service of a Writ of Summons, Petition
to Attach Without Notice and the Writ of Attachment and Trustee Process
issued by the court in this matter on August 18, 2014, and further waive the
right to formal service by a deputy sheriff.” (Underlining omitted.) The second
paragraph states, “All other defenses and defects are hereby preserved.” We
agree with the trial court that the defendant, by returning the acceptance of
service form to the plaintiff signed, notarized, and dated, consented to personal
jurisdiction in this case. Because consent is a stand-alone basis for exercising
personal jurisdiction, compliance with RSA 510:4, II, including service on the
secretary of state, was not required. See Chick, 156 N.H. at 558. Accordingly,
we conclude that the trial court did not err in denying the defendant’s motion
to dismiss or to strike the default judgment.

The defendant next argues that the plaintiff failed to properly serve his
post-judgment motion for periodic payments. It is the burden of the appealing
party, here the defendant, to provide this court with a record sufficient to
decide his issues on appeal, as well as to demonstrate that he raised his issues
in the trial court. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004).
The defendant has failed to show that he raised this issue in the trial court.
Nor did he include it in his notice of appeal. Progressive N. Ins. Co. v.
Argonaut Ins. Co., 161 N.H. 778, 784 (2011) (issues not raised in notice of
appeal are waived). Accordingly, we decline to address this issue. See Bean,
151 N.H. at 251.

Affirmed.

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

Eileen Fox,
Clerk

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