The petitioner, UniFirst Corporation (UniFirst), appeals an order of the trial court that denied its petition to enforce arbitration award and granted the motion to reopen filed by the respondents, Little Angels Learning Centres, Barry Neville and Kimberly Neville. UniFirst argues that the trial court erred in finding that the respondents were entitled to actual notice of the underlying arbitration proceeding and that they did not receive such notice. We affirm.
We briefly restate the procedural history of this case. UniFirst obtained an arbitrator's award against the respondents. We note that the arbitrator found in his order, issued after UniFirst waived oral hearing, that the respondents failed to submit documents after due notice by mail in accordance with the applicable arbitration rules. After the respondents did not pay the amount awarded, UniFirst filed a petition seeking confirmation of the award pursuant to RSA 542:8 (2007). The respondents filed a motion to reopen, arguing that they had not received notice of the arbitration proceedings. Following an evidentiary hearing, the trial court denied UniFirst's petition and granted the respondents' motion to reopen after finding that the respondents did not receive adequate notice of the arbitration proceedings.
UniFirst argues that it "properly served each of the respondents pursuant to the rules of the American Arbitration Association and in accordance with the applicable requirements of due process." UniFirst contends that the trial court erred in requiring that the respondents receive actual notice rather than reasonable notice. UniFirst further contends that, to the extent that the correct standard is reasonable notice, the trial court erred in failing to find that UniFirst provided reasonable notice.
We have previously held that due process requires "'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" Appeal of City of Concord, 161 N.H. 169, 173 (2010) (quoting Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314 (1950)). "While notice 'which is a mere gesture' does not satisfy due process, a chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected, or, where conditions do not reasonably permit such notice, that the form chosen is not substantially less likely to bring home notice than other of the feasible and customary substitutes." Id. (quotation omitted). Our inquiry focuses upon whether notice was fair and reasonable under the particular facts and circumstances of each case. Petition of Kilton, 156 N.H. 632, 639 (2007).
Citing Appeal of City of Concord, the trial court first ruled that adequate notice is a rebuttable presumption. The court then found that UniFirst sent notice to two addresses: one notice went to a business that had closed and the other went to an address at which the respondents produced "some evidence of irregularities in mail delivery." Having made these findings, the trial court ruled that the respondents had presented sufficient evidence to overcome the rebuttable presumption of adequate notice. UniFirst also challenges these findings, arguing that "the trial court erred in finding that 'there was no evidence to suggest that the letters were ever received' by the Respondents."
We turn first to the issue of service at the business address. UniFirst presented evidence that the address to which it sent notice was the one listed on the contract between the parties and listed at the Secretary of State's Office, and that respondent Barry Neville testified that he had previously received a June 2009 correspondence sent to that address. All of this evidence concerning the accuracy of the address predated the closing of the business. Accordingly, after assessing the credibility of the witnesses, the trial court found that service at the business address was inadequate. See In re Henry, 163 N.H. 175, 180 (2012) (where testimony presented by parties conflicted, trial judge was in best position to evaluate evidence, measure its persuasiveness and assess credibility of witnesses).
Because the trial court was also able to observe witness demeanor and measure the evidence presented concerning the adequacy of notice sent to the Neville home, we also affirm its decision on this issue. In doing so, we do not rule that UniFirst was required to prove actual service to prevail on its petition to enforce; rather, we accept the trial court's assessment that the conflicting addresses on file for the Neville home and the testimony presented concerning the unreliable mail service sufficiently rebutted the presumption of adequate service.
Based upon the unique facts in this case where the arbitrator did not decide the issue of adequate service after a full adversarial proceeding, we affirm the decision of the trial court.
HICKS, CONBOY and LYNN, JJ., ...