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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Rockingham No. 2009-348 IMPACT FOOD SALES, INC. v. CARL EVANS D/B/A WAREHOUSE CLUB DISTRIBUTING COMPANY Argued: November 4, 2009 Opinion Issued: June 16, 2010 Law Offices of Thomas Morgan, P.C., of Salem (Thomas Morgan on the brief and orally), for the plaintiff. Ford & Weaver, P.A., of Portsmouth (Christopher J. Somma on the brief and orally), for the defendant. BRODERICK, C.J. The defendant, Carl Evans d/b/a Warehouse Club Distributing Company (Evans), appeals an order of the Superior Court (McHugh, J.) denying his motions to vacate judgment and to dismiss. We reverse. The following facts are contained in the record. The plaintiff, Impact Food Sales, Inc. (Impact Food), located in Salem, is in the business of buying wholesale lots of food products. On November 26, 2007, its attorney executed a writ of summons alleging that Evans accepted money from Impact Food for

the purchase of goods that were not delivered. Evans is a resident of the State of Illinois. On November 26, Impact Food's attorney sent a letter to the Merrimack County Sheriff enclosing a copy of the writ of summons, along with copies for service on the New Hampshire Secretary of State and a check for $10.00, pursuant to RSA 510:4 (1997). That day, Impact Food also sent a copy of the same letter by certified mail to Evans. The secretary of state was served on November 29, and the writ of summons and the affidavit of service from the sheriff were filed with the superior court on December 10. On January 31, 2008, Impact Food filed a motion for entry of default, alleging that service on Evans had been completed "by having a copy of the writ served upon the NH Secretary of State and consistent with RSA 510:4 plaintiff mailed a copy of the writ to the defendant certified mail, return receipt requested." The motion further stated that: 4. Defendant appears to have been duly notified by the US Postal Service on at least two occasions and did not arrange to pick up copies of the certified mail. 5. In an effort to insure that the defendant was made fully aware of this law suit against him, counsel for plaintiff again mailed a copy of the writ of summons certified mail, return receipt requested. 6. Plaintiff's counsel has not yet received any response from the US Postal Service, however, attached hereto is plaintiff's counsel file copy of a letter mailed first class mail to the same address for the defendant as the certified mail on January 15, 2008 advising the defendant of the process that had been served upon the Secretary of State against him . . . . 7. This mail sent first class mail has not been returned by the US Postal Service despite counsel's use of a clearly addressed envelope with a clearly marked return address. In an affidavit of mailing attached to the motion, Impact Food's attorney attested that he "served the Secretary of State in accordance with RSA 510:4 and immediately mailed a copy of the process with a copy of the attached cover letter certified mail . . . , however, the green post card return receipt requested was never received back from the postal service." The attached cover letter referenced in the affidavit states, "Enclosed please find Writ of Summons along with copies for service on the . . . Secretary of State."

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On February 7, the trial court granted Impact Food's motion and a default judgment was entered against Evans on May 6. On March 20, 2009, Evans filed a motion to vacate judgment and motion to dismiss, stating that he was never served in accordance with the statutory requirements set forth in RSA 510:4 and thus the court lacked personal jurisdiction over him. In an affidavit attached to the motion, he attested that he "was never served with the Writ of Summons in this matter . . . [and] never signed a green card for any certified mail alleged to have been sent to Carl Evans doing business as Warehouse Club Distributing Company." He further attested that he "was notified of a judgment entered against [him] in New Hampshire when [he] received a Citation to Discover Assets in the Circuit Court for the Nineteenth Judicial Circuit

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