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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 ___________________________

Merrimack No. 2010-302

RICHARD FELLOWS & a. v. ROBIN TENNANT COLBURN & a. Argued: May 5, 2011 Opinion Issued: November 22, 2011 Seufert Law Office, P.A., of Franklin (Christopher J. Seufert and Lexie Rojas on the brief, and Mr. Seufert orally), for the plaintiffs.

Devine, Millimet & Branch, P.A., of Manchester (Daniel E. Will and Jonathan M. Eck on the brief, and Mr. Will orally), for the defendants.

HICKS, J. The defendants, Robin Tennant Colburn and Ronald and Richard Tennant, appeal an order of the Superior Court (Sullivan, J.) denying their motion to dismiss this action by the plaintiffs, Richard and Cheryl Fellows and Benjamin Bellerose, for negligence and violation of federal law for lack of personal jurisdiction. We reverse. The trial court's order recites, or the record supports, the following facts. On December 14, 1981, the defendants' parents, Marvin and Thelma Tennant,

and their sister, Barbara Tennant, purchased a residential property at 538 North State Street in Concord (the Concord property). On August 28, 1991, Marvin and Thelma executed the Tennant Family Trust (trust). They named themselves as co-trustees and Richard and Ronald Tennant as successor trustees. The beneficiaries included the defendants and Barbara. The trust was prepared by a Florida attorney, executed in Florida and listed Marvin and Thelma as residents of Florida. In June 1992, Barbara quitclaimed her interest in the Concord property to Marvin and Thelma. On April 6, 1994, Marvin and Thelma conveyed the Concord property to the trust via warranty deed. The warranty deed was executed in Florida and notarized by a Florida notary. Thereafter, the deed was recorded in the Merrimack County Registry of Deeds. On June 30, 1996, an order of abatement was issued to Marvin and Thelma by the New Hampshire Division of Public Health Services (DPHS), Childhood Lead Poisoning Prevention Program, ordering them to abate lead paint contamination at the Concord property. On May 22, 1998, DPHS sent a letter threatening to fine them because they had not complied with the abatement order. The letter further informed them that a sale of the property would not negate the order and that failure to notify a buyer would be a violation of state and federal law. On February 5, 2000, Marvin and Thelma, as trustees of the trust, sold the Concord property to Jesus and Eileen Guzman (the Guzmans), allegedly without notifying them of the lead paint abatement orders. On November 22, 2000, Marvin and Thelma executed a restatement of trust agreement, amending and restating the trust. The restated trust was executed in Florida and named Marvin and Thelma as trustees and Richard Tennant and Robin as successor trustees. The beneficiaries included the defendants and Barbara. Robin resides in Illinois. Richard Tennant is a Florida resident, who spends six to seven months of the year in Florida and the remainder of the year in Massachusetts, and Ronald resides in Colorado. On August 6, 2003, the Guzmans sold the Concord property to the plaintiffs. The Guzmans allegedly were unaware of the lead paint problem or the abatement orders and, thus, did not inform the plaintiffs of such at the time of sale. Thelma passed away in June 2004. In July, Marvin resigned as trustee of the trust, and Richard Tennant and Robin became successor trustees. In April 2006, the final distribution was made from the trust to the defendants and Barbara.

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In September 2009, the plaintiffs sued the defendants and Barbara, alleging a violation of federal law as well as negligence and/or intentional misrepresentation by the trust and Marvin and Thelma, as trustees. The plaintiffs claim that the defendants and Barbara, as successor trustees and beneficiaries of the trust, are liable for the actions of the trust and Marvin and Thelma, as former trustees. The defendants moved to dismiss, arguing that the court lacked personal jurisdiction over them. On February 5, 2010, the trial court held a hearing at which the parties presented legal argument and offers of proof. Following the hearing, the court found that it had jurisdiction over the trust; over Robin and Richard, as successor trustees "in their fiduciary capacity as representatives of the Trust[;]" and over all three defendants in their capacities as beneficiaries. Accordingly, the trial court granted the defendants' motion to the extent that the plaintiffs' writ could be read to assert any claim against them in their individual capacities and denied the motion in all other respects. This appeal followed. The plaintiffs bear the burden of demonstrating facts sufficient to establish personal jurisdiction. Lyme Timber Co. v. DSF Investors, 150 N.H. 557, 559 (2004). Where, as here, neither party requested an evidentiary hearing on disputed jurisdictional facts, the plaintiffs had to make only a prima facie showing of jurisdictional facts to defeat the defendants' motion to dismiss. Id. Under the prima facie standard, the inquiry is whether the plaintiffs have "proffered evidence which, if credited, is sufficient to support findings of all facts essential to personal jurisdiction." State v. N. Atlantic Ref. Ltd., 160 N.H. 275, 280 (2010) (quotation omitted). The plaintiffs "ordinarily cannot rest upon the pleadings, but [are] obliged to adduce evidence of specific facts." Id. at 281 (quotation omitted). Where a prima facie evidence standard is employed, we review a trial court's ruling on a motion to dismiss for lack of personal jurisdiction de novo. Lyme Timber Co., 150 N.H. at 559. "[O]ur role in a de novo review, is not as a factfinder, but as a data collector. That is to say, the court must accept the plaintiff[s'] (properly documented) proffers as true for the purpose of determining the adequacy of the prima facie jurisdictional showing." N. Atlantic Ref. Ltd., 160 N.H. at 281 (quotation and ellipsis omitted). "[T]he court must construe the plaintiff[s'] evidentiary proffers in the light most congenial to the plaintiff[s'] jurisdictional claim." Id. (quotation omitted). Facts put forward by the defendants may be considered only if they are uncontradicted by the plaintiffs' submissions. Id. To decide whether it may exercise in personam jurisdiction over a nonresident defendant, a court typically must engage in a two-part inquiry. Phelps v. Kingston, 130 N.H. 166, 170 (1987). "First, the State's long-arm statute must authorize such jurisdiction. Second, the requirements of the federal Due

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Process Clause must be satisfied." Skillsoft Corp. v. Harcourt General, 146 N.H. 305, 307-08 (2001) (quotation omitted). Because we construe the State's long-arm statute as permitting the exercise of jurisdiction to the extent permissible under the Federal Due Process Clause, our primary analysis relates to due process. Vt. Wholesale Bldg. Prods. v. J.W. Jones Lumber Co., 154 N.H. 625, 628 (2006). "Pursuant to the Federal Due Process Clause, a court may exercise personal jurisdiction over a non-resident defendant if the defendant has minimum contacts with the forum, such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Id. (quotation omitted); see Internat. Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The concept of minimum contacts . . . can be seen to perform two related, but distinguishable, functions. It protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92 (1980). Personal jurisdiction "can be `general,' where the defendant's contacts with the forum State are continuous and systematic, or `specific,' where the cause of action arises out of or relates to the defendant's forum-based contacts." Staffing Network v. Pietropaolo, 145 N.H. 456, 458 (2000) (quotations omitted). Here, the parties' arguments focus upon whether New Hampshire has specific jurisdiction over the defendants in their respective capacities as successor trustees and/or beneficiaries. Therefore, we review for specific personal jurisdiction only. In determining whether the exercise of specific personal jurisdiction over a defendant comports with due process, we examine whether: (1) the contacts relate to the cause of action; (2) the defendant has purposefully availed itself of the protection of New Hampshire's laws; and (3) it would be fair and reasonable to require the defendant to defend the suit in New Hampshire. Vt. Wholesale, 154 N.H. at 628. Each factor must be evaluated on a case-by-case basis, and all three factors must be satisfied in order for the exercise of jurisdiction to be constitutional. Lyme Timber Co., 150 N.H. at 560. If the plaintiffs meet their burden as to the first two factors, we then consider the third. Vt. Wholesale, 154 N.H. at 629. In examining this factor, we look to the so-called "gestalt factors," which are:

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the burden on the defendant, the forum State's interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and effective relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and the shared interest of the several States in furthering fundamental substantive social policies. Id. (quotation omitted). The plaintiffs argue that we should focus on the trust's contacts with New Hampshire "in order to establish if the Defendant[s] in their capacity as successor trustees and beneficiaries should have reasonably anticipated that their voluntary acceptance of their roles would have subjected them to New Hampshire's jurisdiction." They maintain that all three defendants knew the trust owned and sold property in New Hampshire and, with this knowledge, Robin and Richard Tennant assumed the role of successor trustee, and all three defendants received trust assets as beneficiaries. Thus, the plaintiffs argue that it was reasonably foreseeable that the defendants could be called into court in New Hampshire and that by accepting distributions from the trust, the defendants purposely availed themselves of the benefits and protections of New Hampshire law. Finally, the plaintiffs contend that it would be fair and reasonable to subject the defendants to suit in New Hampshire because the injury, which concerns New Hampshire residents and property, occurred here, making New Hampshire the most convenient forum. The defendants maintain that they have never had any contacts with New Hampshire related to this litigation; nor have they ever "purposefully and deliberately engaged in specific activities in New Hampshire that resulted in this litigation." They contend that, given their respective contacts with New Hampshire are so minimal and those contacts are unrelated to this litigation, requiring them to defend this action in New Hampshire "would be particularly burdensome and unfair." Under RSA 564-B:8-811 (2007), "[a] trustee shall take reasonable steps to enforce claims of the trust and to defend claims against the trust." Nonetheless, "[a] nonresident trustee may not be called upon to defend in an action involving the trust unless it has `minimal contacts' with the state in which the suit is brought." 76 Am. Jur. 2d Trusts

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