Mark T. Eno v. Khaled Abdel-Fattah

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0569, Mark T. Eno v. Khaled Abdel-
Fattah, the court on February 27, 2024, issued the following
order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The defendant, Khaled Abdel-Fattah, appeals, and the
plaintiff, Mark T. Eno, cross-appeals, a decision of the Superior Court
(Colburn, J.), following a two-day bench trial, granting declaratory relief
concerning the distribution between the parties of sale proceeds held by two
limited liability companies in which the parties own interests. We affirm.

At the outset, we note that the defendant makes numerous assertions
throughout his brief that the trial court lacked jurisdiction and, thus, that its
decision is void. A court’s subject matter jurisdiction concerns its authority to
decide a particular case and is dependent upon the nature of the case and the
type of judicial relief sought. Hardy v. Chester Arms, LLC, 176 N.H. ___, ___
(Jan. 30, 2024) (slip op. at 4). Because subject matter jurisdiction concerns
the court’s power to decide the case at all, a decision outside of its subject
matter jurisdiction is void, and an objection to the court’s exercise of subject
matter jurisdiction may not be waived. See id. at ___ (slip op. at 4-5); Lonergan
v. Town of Sanbornton, 175 N.H. 772, 775 (2023). Personal jurisdiction, by
contrast, concerns whether the court may properly assert its coercive power
over a particular person. See Fortune Laurel, LLC v. High Liner Foods (USA),
Tr., 173 N.H. 240, 245 (2020). An objection to the court’s exercise of personal
jurisdiction, including a challenge to service of process, may be waived by, for
instance, defending a case on its merits or failing to timely object to the
exercise of personal jurisdiction or appeal an adverse decision on personal
jurisdiction. See Mosier v. Kinley, 142 N.H. 415, 423-24 (1997) (objection to
personal jurisdiction must be raised as preliminary issue, and failure to
immediately appeal denial of motion to dismiss on personal jurisdiction
grounds constitutes waiver); Beggs v. Reading Company, 103 N.H. 156, 158
(1961) (defendant waived challenge to personal jurisdiction by failing to timely
move to dismiss and participating in hearings relating to merits of case); Super.
Ct. R. 9(e) (requiring party challenging personal jurisdiction or service of
process to do so by motion to dismiss within 30 days of service and to appeal
adverse decision thereon within 30 days of notice of decision, and providing
that failure to comply constitutes waiver).

The superior court is a court of general jurisdiction with authority to
decide common law civil disputes between parties, including contractual
disputes between parties, and to issue declaratory judgments in disputes
between parties making adverse claims to a present legal or equitable right or
title. See Rogers v. Rogers, 171 N.H. 738, 743 (2019); RSA 491:7 (Supp. 2023);
RSA 491:22 (Supp. 2023); cf. RSA 304-C:190 (2015) (providing that “[n]othing
in this subdivision shall be construed to restrict the right of a member [of a
New Hampshire limited liability company] to bring a direct action on his or her
own behalf against [another] member” of the limited liability company). Here,
the parties’ dispute as to the proper distribution of sale proceeds held by the
relevant limited liability companies under the relevant operating agreement
terms fell squarely within the trial court’s subject matter jurisdiction. To the
extent the defendant is challenging whether the plaintiff effected proper service
of process, the record reflects that he participated in a full trial on the merits,
and has never appealed the denial of a preliminary motion to dismiss on
service of process or personal jurisdiction grounds. Under these
circumstances, he has waived any challenge to the trial court’s exercise of
personal jurisdiction. Accordingly, we reject the defendant’s arguments that
the trial court lacked jurisdiction and that its decision is void. For the same
reasons, we deny the defendant’s separate motion to “inform Supreme Court of
New Hampshire of the void judgment.”

Based upon our review of the parties’ written arguments, the relevant
law, the record on appeal, and the trial court’s thorough and well-reasoned
decision, we find both the defendant’s arguments in his appeal and the
plaintiff’s arguments in his cross-appeal to be unpersuasive, and we affirm the
trial court’s decision.

Affirmed.

MacDonald, C.J., and Bassett, Hantz Marconi, Donovan, and Countway,
JJ., concurred.

Timothy A. Gudas,
Clerk

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