Perils of not answering your door
Published 08/2/07

When a law suit is commenced against a person, the plaintiff is required to “serve” the defendant with a copy of the complaint or other document which gives rise to the suit. Service can take several forms, but is most commonly done by a county sheriff. The sheriff is instructed to either give a copy of the complaint to the defendant or leave a copy of the complaint at the defendant's abode.

If the defendant is served, but fails to file a timely appearance and/or answer, the court may deem the defendant to be in “default.” When a party is in default he or she may be precluded from contesting the claims that are being brought against them and/or precluded from asking for relief from the court.

In the case of Maynard and Maynard (decided July 13, 2007), the NH Supreme Court highlighted the perils a party could face if they ignore a sheriff's attempt to make service upon them. In Maynard , the husband filed a petition for divorce. A sheriff served the petition. When the sheriff arrived at the wife's residence and attempted to serve her in hand, the wife refused to answer the door. The sheriff then left a copy of the petition at the residence. The husband further attempted to provide notice to the wife by placing copies of the petition for divorce in the children's school bag and her car. Despite these attempts, the wife did not file an appearance, answer, or attend the temporary hearing.

When the wife decided to participate in the divorce action some time later, she argued at the final hearing that she should receive alimony. The marital court ruled that her failure to file a timely answer which made a specific request for alimony precluded her from seeking alimony at the final hearing. The court ruled that she had received proper notice of the hearing of the divorce case and her testimony to the contrary was not credible.

Maynard highlights the risks a person can face if they ignore a lawsuit. When served with a lawsuit people's reactions can vary widely. Some people are unable to cope with the thought of being sued and ignore the claim hoping it will go away. Others become indignant and believe that they have no obligation to respond to the claim because the claim is without merit.

Both of these reactions can prove extremely harmful because the plaintiff, like the husband in Maynard , may obtain a default judgment against the defendant, and thus bar him or her from contesting the merits of the claim. Therefore, if served with a lawsuit, one should immediately protect his or her rights and obtain counsel if he or she does not know how to do so.

Andrew J. Piela is an associate attorney at Hamblett & Kerrigan, P.A. His legal practice includes civil litigation, family law, land use litigation and probate. You can reach Attorney Piela by e-mail at: apiela@hamker.com

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