2010-516 State of New Hampshire v. North of the Border Tobacco, LLC d/b/a Tobacco Haven & a.

NORTH OF THE BORDER TOBACCO, LLC d/b/a Tobacco Haven &

No. 2010-516

Merrimack

decisions of the Superior Court (Smukler Tobacco Haven (Tobacco Haven) and Roll Your Own, LLC (RYO), appeal LYNN, J. The respondents, North of the Border Tobacco, LLC d/b/a

Getman, Schulthess & Steere, P.A.

Michael A. Delaney

brief and orally, for the respondents. Clara E. Lyons on the brief), and Jeffrey A. Burd, of Cincinnati, Ohio, on the

general, on the brief and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 In 1999, the legislature enacted a Qualifying Statute, see

related to smoking. NPMs’ escrow payments are based on market share. NPMs to make annual deposits into an escrow fund to cover public health costs enforces legislation, known as a Qualifying Statute under the MSA, requiring allocated payment is not subject to the NPM adjustment if it enacts and several factors set forth under the MSA. Nevertheless, a settling state’s lost market share to the NPMs; this adjustment requires consideration of obligations of the settling manufacturers if it is proven that they collectively which attempts to level the marketplace by reducing the annual payment market share to the NPMs. Thus, the MSA provides for an NPM adjustment, (non-participating manufacturers or NPMs) and potentially cause them to lose disadvantage relative to tobacco manufacturers who have not joined the MSA 2 and payment obligations could put the settling manufacturers at a competitive The drafters of the MSA acknowledged that the marketing restrictions into rolled cigarettes. loose tobacco and cigarette tubes are placed into the machine, and the machine converts these materials we use the term “cigarette-making machines.” Notably, the mechanics of the machines are not disputed; The trial court and the parties used various terminology when referencing the machines at issue. For ease, 1

cigarettes to consumers within the state has two choices; it can 541-C (NPM Act). Under the NPM Act, a tobacco product manufacturer selling

states according to a formula set forth in the MSA. (quotations omitted). The funds are subsequently allocated among the settling “the implementation of important tobacco-related public health measures.” Id. states “achieve significant funding for the advancement of public health” and partly based on relative market share, and are intended to help the settling These annual, nationwide payments are placed into an escrow account, are several other concessions, including marketing and advertising restrictions. exchange for annual payments by the settling manufacturers, as well as release certain past and future claims against the settling manufacturers in Under the MSA, the settling states agreed to dismiss their lawsuits and to Morris USA, 155 N.H. 598, 600 (2007) (reciting general factual background). public health costs associated with smoking. See generally State v. Philip product manufacturers to resolve litigation brought by the settling states over Master Settlement Agreement (MSA) with leading United States tobacco Hampshire, and other United States territories (settling states) entered into a By way of background, in 1998 forty-six states, including New

chapter 541-C (2007). We affirm in part, vacate in part, and remand. with loose tobacco unless they make the required escrow payments under RSA customers to use on-site cigarette-making machines to make rolled cigarettes 1 petition for failure to state a claim upon which relief can be granted. It also p. 3 manufacturer under the NPM Act, and subsequently moved to dismiss the In its answer, Tobacco Haven denied that it was a tobacco product

unless and until [it] is in compliance with RSA 541-C and RSA 541-D.” the sale of cigarettes made through [Tobacco Haven’s] manufacturing process cigarette-making machines”; and (3) enter a permanent injunction “banning injunction “halting the sale of cigarettes made using [Tobacco Haven’s] products pursuant to RSA chapters 541-C and 541-D; (2) issue a temporary the trial court to: (1) declare that Tobacco Haven is a manufacturer of tobacco and preliminary and permanent injunction against Tobacco Haven, requesting machines. In August 2009, the State filed a petition for declaratory judgment identified such tobacco as “pipe tobacco” to its customers who used the was labeled by the supplier as “pipe tobacco,” and that Tobacco Haven is undisputed that the loose tobacco used in conjunction with the machines machines can inject 200 tubes with tobacco in approximately ten minutes. It conjunction with loose tobacco and cigarette tubes purchased at the store. The cigarette-making machines for on-site consumer use, for a rental fee, in making machines for home use. At some point, it purchased and installed two variety of tobacco products, including loose tobacco and certain cigarette- Respondent Tobacco Haven owns a tobacco shop in Brookline that sells a

health care costs. See II proof at the time it may be proven liable for damages for smoking-related an eventual source of recovery from an NPM should the entity be judgment- cigarettes of a brand family not listed in the state directory, RSA 541-D:3, III. RSA 541-C:3, I. The escrow fund is aimed at ensuring that the State will have compliance, RSA 541-D:3, II, and no entity may sell, offer or possess for sale attorney general maintains a state directory of entities which are in and to provide a list of all cigarette brand families sold. RSA 541-D:3. The on units sold] (as such amounts are adjusted for inflation). to the attorney general that they are in compliance with RSA chapter 541-C, (2007) requires NPMs who sell cigarettes in New Hampshire to annually certify legislation to fortify the enforcement of the NPM Act. RSA chapter 541-D years. See RSA 541-C:3, II(c). In 2003, the legislature enacted complementary entity’s escrow funds, with interest, are to be returned to it after twenty-five

following the year in question [certain prescribed amounts based (b) Place into a qualified escrow fund by April 15 of the year

obligations under the [MSA]; or subsection II(jj) of the [MSA]) and generally perform its financial (a) Become a participating manufacturer (as that term is defined in corporate entity, the shopping center in which Tobacco Haven is located; (2) he p. 4 the machines. The State averred that: (1) Correia owned, through a different machines by creating a new entity, RYO, to which it transferred ownership of Tobacco Haven changed its business model relating to the cigarette-making moved to amend its petition to add RYO as a party. According to the State, Before the trial court ruled on the summary judgment motion, the State

the affidavit of Joseph Correia, a member and manager of Tobacco Haven. the summary judgment motion, and attached supporting documents, including market price of conventionally marketed cigarettes. Tobacco Haven objected to making machines for approximately $25.00 — substantially less than the sell the equivalent of a carton of rolled cigarettes through use of the cigaretteescrow payments had been made by the supplier), Tobacco Haven was able to per pound for cigarette tobacco, by using pipe tobacco (on which no cigarette Because the federal tax on pipe tobacco is only $2.83 per pound versus $24.78 to, in the words of a Tobacco Haven employee, “get around the tax man.” was labeled as pipe tobacco for use in its cigarette-making machines in order State’s affidavits established that Tobacco Haven was deliberately selling what loose tobacco, and the use of the on-site cigarette-making machines. The 4 who had visited Tobacco Haven and witnessed the manner in which it sold two tax auditors of the New Hampshire Department of Revenue Administration 541-C.” It attached supporting documents, including affidavits authored by that “Tobacco Haven is a Tobacco Products Manufacturer as defined in RSA Respondent is in compliance with RSA 541-C and RSA 541-D,” and declare

using the Respondent’s cigarette making machines unless and until the court to “[i]ssue a permanent injunction barring the sale of cigarettes made In January 2010, the State moved for summary judgment, requesting the

this court. See Haven unsuccessfully moved for reconsideration or for interlocutory review by respondent’s rolling machine[s], which bears the ‘pipe tobacco’ label.” Tobacco “to the extent it is directed at the loose tobacco used in conjunction with the motion to dismiss and granted the State’s request for a preliminary injunction the on-site cigarette-making machines. The trial court denied Tobacco Haven’s tobacco, labeled by the supplier as pipe tobacco, in conjunction with the use of Haven was manufacturing cigarettes on its premises through the sale of loose objected to Tobacco Haven’s motions, maintaining its position that Tobacco machines, were the only parties who directly produced cigarettes. The State the loose tobacco and cigarette tubes, and then rented and operated the machines constituted manufacturing cigarettes, the customers who purchased Sup. Ct. R. 8. payments. It also argued in its pleadings that to the extent use of the

tobacco (Tobacco Haven’s supplier) was responsible for making escrow as defined in RSA 541-C:2, IV, and, thus, the entity that “manufactured” that to Tobacco Haven, the loose tobacco itself constituted manufactured cigarettes filed an objection to the State’s petition for preliminary injunction. According regarding the status of RYO’s counterclaims. This appeal followed. p. 5 the summary judgment order also applied to RYO. It issued no express ruling motion to amend the preliminary injunction order and its motion to clarify that to the counterclaims. The trial court summarily granted both the State’s objected to the allowance of counterclaims, and filed a replication and answer constitutionally-based affirmative defenses and counterclaims. The State clarify, and also filed an answer to the amended petition, including constituted a final judgment ripe for appeal. RYO objected to the motion to to clarify that the summary judgment order also applied to RYO and preliminary injunction order, and the State filed a motion requesting the court Subsequently, RYO objected to the State’s motion to amend the

conjunction with pipe tobacco, or make the required escrow payments.” refrain from allowing customers to use the cigarette rolling machines in The court issued a permanent injunction that Tobacco Haven “must either

it manufacturing.

physical creation of a cigarette inside the store is enough to deem

(regardless of their speed or volume), as evidenced by the actual, participation in the buyer’s use of the cigarette rolling machines inquire as to the buyer’s intent. The respondent’s profit from and

loose form and leaves the store as a cigarette, the court need not

Because the pipe tobacco arrives at [Tobacco Haven’s] store in

clearly a subterfuge to circumvent statutory requirements. . . .

cigarette rolling machines conveniently located on the premises, is

immediately rolled into cigarettes retained by the customer in The process of selling loose untaxed tobacco, which is then

purposes of RSA chapter 541-C. It reasoned: judgment, ruling that Tobacco Haven was manufacturing cigarettes for On May 14, 2010, the trial court granted the State’s motion for summary

cancelled. State’s motion to amend the preliminary injunction, but the hearing was later petition. The trial court also scheduled a hearing for May 17, 2010, on the to amend the petition, adding RYO as a party, and the State filed an amended bind RYO. Over Tobacco Haven’s objection, the trial court granted the motion assistance. The State also moved to amend the preliminary injunction order to (5) customers pay $5.00 to use the machines while RYO employees provide check the tobacco for humidity and also ensure it is not a menthol blend; and premises with their own loose tobacco and cigarette tubes; (4) RYO employees Haven, in which RYO operates the machines; (3) RYO’s customers enter the built an enclosure inside a convenience store, located next door to Tobacco p. 6 (a) “Cigarette” means any product

Under the statute,

intends to be sold in the United States.” RSA 541-C:2, IX(a)(1). affiliate) . . . [m]anufactures cigarettes anywhere that such manufacturer after the effective date of this chapter directly (and not exclusively through any not containing tobacco; or (1) Any roll of tobacco wrapped in paper or in any substance I. A “tobacco product manufacturer” means, in pertinent part, “an entity that distributor, retailer, or similar intermediary or intermediaries).” RSA 541-C:3, cigarettes to consumers within the state (whether directly or through a and consists of or contains: The NPM Act applies to “[a]ny tobacco product manufacturer selling intended to be burned or heated under ordinary conditions of use, that contains nicotine, is

novo, see Appeal of Gamas, 158 N.H. 646, 648 (2009). to language its plain and ordinary meaning. See Co., 160 N.H. at 317, and our review of the interpretation of statutes is de we first examine the statutory language used, and, where possible, we ascribe expressed in the words of a statute considered as a whole, Appeal of Union Tel. N.H. 486, 488 (2007). We are the final arbiter of the intent of the legislature as This appeal requires us to conduct statutory construction. In so doing, result, see Residents Defending Their Homes v. Lone Pine Hunter’s Club, 155 effectuate the overall legislative purpose and to avoid an absurd or unjust and not in isolation, Appeal of Union Tel. Co., 160 N.H. at 317, and seek to we interpret language of a statute in the context of the overall statutory scheme Lane Realty Trust v. City of Nashua, 143 N.H. 140, 142 (1998). Additionally, appears that a different meaning was intended. RSA 21:2 (2000); see Pheasant to “the common and approved usage of the language” unless from the statute it N.H. 309, 317 (2010). Words and phrases in a statute are construed according

trial court’s application of the law to the facts de novo. Id. at __. grant of summary judgment. N. Sec. Ins. Co., 161 N.H. at __. We review the the moving party is entitled to judgment as a matter of law, we will affirm the our review of that evidence discloses no genuine issue of material fact, and if Connors, 161 N.H. __, __ (decided March 31, 2011); see RSA 491:8-a (2010). If in the light most favorable to the non-moving party. N. Sec. Ins. Co. v. the affidavits and other evidence, and all inferences properly drawn from them, In reviewing the trial court’s grant of summary judgment, we consider

p. 7 circumstances resulting from the two machines being moved from the premises tubes and loose tobacco. Thus, at this point, we do not consider the change of Haven’s premises in conjunction with the consumers’ purchases of cigarette motion; that is, when the cigarette-making machines were used on Tobacco facts reviewed by the trial court when it decided the State’s summary judgment We address the respondents’ first two arguments in the context of the

and failed to consider RYO’s constitutional defenses and counterclaims. summary judgment order to RYO, took no action on the amended complaint, respondents argue that the trial court erred when it summarily extended the manufacture the rolled cigarettes for personal consumption. Finally, the

because the consumers themselves rent and operate the machines, and thus that they did not manufacture any rolled cigarettes under RSA 541-C:2, IV(a) [the purchaser] does with its purchase.” Alternatively, the respondents argue under the NPM Act, and not the purchaser of that tobacco “regardless of what they contend, the manufacturer-supplier of that loose tobacco is accountable 541-C:2, IV(b) at the time the tobacco is purchased from the supplier. Thus, machines constitutes fully manufactured roll-your-own cigarettes under RSA contend that the loose tobacco used by customers in the cigarette-making

The respondents advance three arguments on appeal. First, they

(b) The term “cigarette” includes “roll-your-own” (roll-your-own cigarette). IV(a) (rolled cigarette); and certain roll-your-own tobacco, RSA 541-C:2, IV(b) subparagraph (a)(1). “cigarette” under the statute: a product with certain contents, RSA 541-C:2, RSA 541-C:2, IV (emphases added). Thus, there are two categories of

shall constitute one individual “cigarette.” definition of “cigarette,” 0.09 ounces of “roll-your-own” tobacco

or purchased by, consumers as a cigarette described in in the filler, or its packaging and labeling, is likely to be offered to,

consumers as tobacco for making cigarettes). For purposes of this suitable for use and likely to be offered to, or purchased by, which, because of its appearance, type, packaging, or labeling is

tobacco which, because of its appearance, the type of tobacco used (3) Any roll of tobacco wrapped in any substance containing

purchased by, consumers as a cigarette; or filler, or its packaging and labeling, is likely to be offered to, or which, because of its appearance, the type of tobacco used in the (2) Tobacco, in any form, that is functional in the product, purchased by, consumers. Therefore, when assessing whether a particular p. 8 reasonably to be expected use for which the tobacco will be offered to, or

the supplier. Thus, we review whether the undisputed facts in this record constituted fully manufactured roll-your-own cigarettes when purchased from relevant features. Here, the respondents contend that the loose tobacco feature is not to be considered in isolation, but in conjunction with other that a single feature could be dispositive in a particular case; however, a single tobacco to be deemed roll-your-own cigarettes under the statute. We agree one of the features (such as “type” or “appearance”) need be present for loose The respondents contend that the disjunctive term “or” means that only The phrase “likely to be” connotes an eventuality based on the

“appearance, type, packaging, or

added). or purchased by, consumers for making cigarettes. does not necessarily establish that the loose tobacco is “likely to be” offered to, labeling.” RSA 541-C:2, IV(b) (emphasis purchased by, consumers for making cigarettes, due to the tobacco’s establishes only that the tobacco is “suitable for use” for making cigarettes. It substance to tobacco labeled as cigarette or roll-your-own tobacco, this fact reasonably expected that the loose tobacco would likely be offered to, or standpoint that the loose tobacco labeled by the supplier as pipe tobacco is identical in; that is, it must be determined whether the entity should have RSA 541-C:2, IV(b), the loose tobacco must be considered from that entity’s purchased by, consumers as tobacco for making cigarettes.” Even assuming entity “suitable for use” for making cigarettes and (2) “likely to be offered to, or is manufacturing tobacco that constitutes roll-your-own cigarettes under cigarette when due to “its appearance, type, packaging, or labeling” it is (1) Under RSA 541-C:2, IV(b), loose tobacco constitutes a roll-your-own

customers for making cigarettes in the machines at issue in this case. tobacco labeled as pipe tobacco that was actually being used by Tobacco Haven that the State initially sought escrow payments from the supplier of the loose same as “roll your own” brands listed in the State’s directory, and point out respondents contend that brand names for the labeled pipe tobacco are the necessarily constitutes roll-your-own cigarettes under RSA 541-C:2, IV(b). The tobacco labeled by the supplier for cigarette use, and, thus, the tobacco labeled by the supplier as “pipe tobacco,” is identical in substance to loose According to the respondents, it is undisputed that the loose tobacco, while cigarettes as defined in RSA 541-C:2, IV(b) when purchased from the supplier. the on-site cigarette-making machines already constituted fully manufactured essential and dispositive issue of this case: whether the loose tobacco used in The respondents first contend that the trial court failed to address the

p. 9 initially seeking escrow payments from the supplier advances the respondents’ Additionally, we fail to see how the State’s pre-litigation conduct of

IV(b) when purchased from the supplier. See loose tobacco constituted fully manufactured cigarettes under RSA 541-C:2, Accordingly, on this record, we reject the respondents’ argument that the as tobacco for pipe use. reasonably expect such tobacco to be offered to, and purchased by, consumers escrow payments had previously been paid, and, thus, the supplier would tobacco that this was tobacco on which neither the cigarette tax nor cigarette Haven understood by virtue of the price it paid its supplier for the loose identifying it as pipe tobacco. Moreover, the record makes it clear that Tobacco 9 that a consumer would likely purchase it for cigarette use in the face of a label expected the retailer would likely offer it to consumers for making cigarettes or justify a conclusion on this record that the supplier should have reasonably name as loose tobacco labeled as cigarette or roll-your-own tobacco, does not below, but the trial court, as well as the State in its appellate brief, base the tobacco labeled as pipe tobacco was purportedly sold under the same brand being offered for sale. It is not clear whether this legal issue was litigated substance to that labeled by the supplier for making cigarettes, and that loose the conduct of the retailer, objectively viewed, in relation to the loose tobacco making cigarettes. That the loose tobacco was purportedly identical in classification of loose tobacco as cigarettes under RSA 541-C:2, IV(b) based on offered by the retailer to, or purchased by, consumers for pipe use, not for the language of the statute does not preclude a construction that allows tobacco is a strong signal that it expected such loose tobacco would likely be reclassification by the retailer,” as the respondents contend. We note only that Viewed objectively, the supplier’s labeling of the loose tobacco as pipe as roll-your-own cigarettes under RSA 541-C:2, IV(b) is not “subject to genuine issue for trial). We need not decide whether the status of loose tobacco judgment, the non-moving party must set forth specific facts showing a Kearsarge Lighting Precinct, 159 N.H. 529, 535 (2009) (to defeat summary

that tobacco for use in cigarettes. pipe tobacco and that it was Tobacco Haven which made the decision to offer only after it was satisfied the supplier had sold the loose tobacco labeled as from the supplier, and that it turned its focus to respondent Tobacco Haven acted entirely responsibly in initially seeking to collect the escrow payments properly advance alternative legal grounds). Indeed, it appears that the State

“appearance, type, packaging, or labeling.”

purchased by, consumers for making cigarettes, due to the tobacco’s that the loose tobacco it labeled as pipe tobacco would likely be offered to, or demonstrate that the manufacturer-supplier should have reasonably expected consumers rolled cigarettes which it p. 10 undisputed material facts establish as a matter of law that Tobacco Haven sold ‘manufactured’ on [Tobacco Haven’s] premises.” The issue is whether the the respondents recognize that “there is no doubt that rolled cigarettes were [Tobacco Haven’s] store in loose form and leaves the store as a cigarette,” and Tobacco Haven’s premises; the trial court observed, “the pipe tobacco arrives at Common definitions of “manufacture,” see There is no dispute that rolled cigarettes were being manufactured on

American Heritage, supra at 1067 (similar definition). Thus, generally commodity.” Webster’s Third New International, supra at 1378; see also factory”; and “one who changes the form of a commodity or who creates a new “manufacturer” include: “one that manufactures”; “the owner or operator of a industrial machines”). Further, common definitions for the term make or process goods, especially in large quantities and by means of machines”; “[t]o create, produce, or turn out in a mechanical manner”; and “[t]o includes: “[t]o make or process (a product), especially with the use of industrial English Language 1067 (4th ed. 2006) (the definition of “manufacture” 1378 (unabridged ed. 2002); see also The American Heritage Dictionary of the plan and with division of labor.” Webster’s Third New International Dictionary materials by hand or by machinery”; and “to produce according to an organized make (as raw material) into a product suitable for use”; “to make from raw

the NPM Act. brands that belong to upstream manufacturers.” meaning of the statutory language, in the context of the scope and purpose of families” they manufacture; they argue, “[r]etailers, in contrast, merely sell 541-C:2, IV(a), :IX(a). To analyze this question, we review the ordinary requirement under RSA chapter 541-D that entities must identify the “brand further distinguish retailers from manufacturers by relying on the statutory manufactured. See RSA 541-C:3, I; RSA “tobacco, paper tubes and electric home rolling machines to end users.” They manufacturers of the ‘roll your own’ rather than downstream retailers” who sell respondents contend that the legislature intended to “regulate the upstream where the consumer is the one who is making the rolled cigarettes. The site machinery is akin to selling cigarette-making machines for home use, help cigarette filling machines for personal use.” They contend that renting onbecome a tobacco product manufacturer “by renting consumers in-store, self- Tobacco Haven manufactured rolled cigarettes because a retailer does not The respondents next argue that the trial court erred in concluding that

issue for another day. sale of rolled cigarettes. See RSA 541-C:2, IV(a). Therefore, we leave this legal status of Tobacco Haven as a cigarette manufacturer on the production and instructed customers on the appropriate blends or types of tobaccos for

p. 11 site machines to produce rolled cigarettes. Tobacco Haven employees cigarette tubes, for customers to purchase in conjunction with using the ondesignated varying levels of strength, were kept in the store, along with tobacco (which had been purchased by Tobacco Haven as “pipe tobacco”), with to make cigarettes from loose tobacco and cigarette tubes. Bins of loose maintained in its retail tobacco shop two cigarette-making machines designed

summary judgment record. Tobacco Haven purchased, installed and With this backdrop, we turn to the undisputed material facts from the

purchase by consumers in the United States. cigarettes and profit from placing them into the stream of commerce for entities that are directly responsible for making, creating or producing RSA 541-C:1, VI. Accordingly, the NPM Act was designed to target commercial

arise. profits and then becoming judgment-proof before liability may

and to prevent such manufacturers from deriving large, short-term

establish a reserve fund to guarantee a source of compensation

the interest of the state to require that such manufacturers from them if they are proven to have acted culpably. It is thus in

ensuring that the state will have an eventual source of recovery short-term profits in the years before liability may arise without

settlement could use a resulting cost advantage to derive large,

product manufacturers who determine not to enter into such a It would be contrary to the policy of the state if tobacco

part: IX(a)(1), (2). Further, when adopting the NPM Act, the legislature declared in manufacturer does not intend to be sold in the United States.” RSA 541-C:2, for resale in the United States of cigarettes manufactured anywhere that the intends to be sold in the United States,” or “[i]s the first purchaser anywhere affiliate) . . . [m]anufactures cigarettes anywhere that such manufacturer manufacturer” means an entity that “directly (and not exclusively through any stream of commerce in the United States. For example, “[t]obacco product directly responsible for manufacturing cigarettes and placing them into the “tobacco product manufacturer” is broadly defined to reach entities that are cigarette manufacturer under the circumstances before us. The statutory term whether the legislature intended a retailer like Tobacco Haven to constitute a The scope and purpose of the NPM Act is particularly instructive on

means of industrial machinery. according to an organized plan, in a mechanical manner and probably by who makes, creates or produces rolled cigarettes, see RSA 541-C:2, IV(a), speaking, a manufacturer of rolled cigarettes means an entity which or person manufactured by the commercial entity, see p. 12 customers at home. In such transactions, no rolled cigarettes are being tubes and a type of cigarette-making machine for assembly of cigarettes by commercial transactions in which Tobacco Haven sells loose tobacco, cigarette We decline to analyze the merits of the respondents’ argument relating to

an incomplete batch. cigarettes to complete the order of 200 cigarettes when the machines produced when they jammed, maintained the machines, and provided additional rolled how to use the machines, offered guidance as necessary, fixed the machines loose tobacco for producing the desired cigarettes, instructed customers on Tobacco Haven employees informed customers on the appropriate blend of status as an entity that directly manufacturers and sells rolled cigarettes; Haven’s practice of renting the use of its on-site machines does not vitiate its for producing rolled cigarettes with the tubes and selected tobacco. Tobacco selection, along with cigarette tubes, and providing cigarette-making machines process included displaying various types of loose tobacco for consumer

commerce for consumers to purchase. Tobacco Haven’s manufacturing machines batches of 200 rolled cigarettes and place them into the stream of plan to produce in a mechanical manner and with use of industrial-type illustrate that Tobacco Haven, a commercial entity, had an organized business consumers within the meaning of the NPM Act. The facts, viewed objectively, Haven was a tobacco product manufacturer selling rolled cigarettes to We have no doubt that the trial court correctly concluded that Tobacco

reasons set forth earlier, we decline to address whether a retailer can become a

$24.99 and a $5.00 rental fee for the “RYO Machine.” total batch cost $29.99, with a single receipt listing the tubes and tobacco at cigarette tubes and the use of a machine. At the time of summary judgment, a Haven charged $19.99 for each batch, which included the loose tobacco, the to complete the batch of 200 cigarettes. When this litigation began, Tobacco some individual cigarettes which had been previously made from the machine produce a full batch, Tobacco Haven employees directed customers to take cigarettes lasted approximately ten minutes. When a machine failed to repaired and maintained the machines. The process of making each batch of customer to press the start button again. Tobacco Haven employees generally creating a batch, Tobacco Haven employees fixed it and instructed the provided all necessary guidance. When a machine jammed in the middle of

machine, Tobacco Haven employees instructed them how to use it and bag or some other type of container. For customers unfamiliar with the rolled cigarettes (the equivalent of a carton), which were deposited into a plastic the machine. Customers pressed the start button, and each batch created 200 tobacco, poured it into the top of the machine, and inserted cigarette tubes into

to purchase cigarettes made by the machines selected the desired loose achieving a desired cigarette type, such as Marlboro Lights. Customers seeking appellate review. See p. 13 before the trial court to determine whether RYO preserved its argument for First, we review the chronology and substance of the parties’ pleadings

manner through its objections to the State’s requests. claims to the court for consideration and did so in a meaningful time and did not err because RYO had adequate opportunity to present its constitutional 13 action to request further briefing or hearing.” It also argues that the trial court RYO, the respondents “made no motion to reconsider and took no further used.” preserved because once the trial court applied its summary judgment ruling to a monetary award for the State was ascertainable “based on the number of times the machine was injunction, Tobacco Haven took the position that the State had a complete remedy at law because counterclaims. The State contends that the respondents’ claim of error is not issue. We do note, however, that when objecting to the State’s request for a preliminary amended complaint, and failing to consider RYO’s affirmative defenses and address how the escrow payment would be calculated under RSA 541-C:3 in the circumstances at without making factual findings specific to RYO, taking no action on the from having the status of “tobacco product manufacturer” under RSA chapter 541-C, we do not extending the summary judgment order on the permanent injunction to RYO state. While we are not convinced that the definition of “units sold” precludes Tobacco Haven Next, the respondents argue that the trial court erred by summarily that the rolled cigarettes at issue in this case apparently did not bear the excise tax stamp of the own’ tobacco containers) bearing the excise tax stamp of the state,” RSA 541-C:2, X. We recognize product manufacturer . . . measured by excise taxes collected by the state on packs (or ‘roll-your- IV pertinent part as “the number of individual cigarettes sold in the state by the applicable tobacco We note that escrow payments are based on “units sold,” see RSA 541-C:3, which are defined in 2 makes “the required escrow payments.” 2 rolling machines in conjunction with [the sale of] pipe tobacco,” unless it extent it enjoined Tobacco Haven “from allowing customers to use the cigarette affording trial court opportunity to correct an error it may have made, or clearly Accordingly, we affirm the trial court’s grant of summary judgment to the requiring a timely objection to preserve issue for appellate review includes

litigation. in this case and any related federal regulations is beyond the scope of this Finally, we note that the relationship between the statutory provisions at issue these arguments are based on factual situations that are not before us. would result in enforcement difficulties regarding the tobacco tax, because chapter 78, and that a retailer’s status as a tobacco product manufacturer tobacco product manufacturer would give rise to double taxation under RSA decline to address the merits of their arguments that deeming Tobacco Haven a manufacturer of roll-your-own cigarettes. See RSA 541-C:2, IV(b). We also matter of law. See p. 14 conclusively establishes the State’s theory for injunctive relief against RYO as a Corriea’s March 31, 2010 deposition, and we cannot say that such evidence substantiate its allegations in its pleadings the State relied on a portion of worked together with Tobacco Haven to manufacture cigarettes. Notably, to cigarette-making machines. Further, RYO denied the State’s allegations that it determine where the customers obtain their loose tobacco for use in the that it is a different entity with a different business plan, and that it cannot machines for the manufacture of the cigarettes.” RYO, however, contended and then take those materials next door to [RYO] and pay to use their cigarettes, as customers will purchase tobacco and tubes from [Tobacco Haven] entity and [Tobacco Haven] will both profit from the manufacture of these allow, promote, and encourage their customers to make cigarettes. The new established “a new entity[, RYO,] which will, in concert with [Tobacco Haven], to manufacture cigarettes. For example, the State alleged that Tobacco Haven appears to allege that RYO and Tobacco Haven are engaged in a joint enterprise In its amended petition, as well as in other pertinent pleadings, the State

chapter 541-C. State’s allegation that RYO constitutes a cigarette manufacturer under RSA injunction to RYO was error because factual disputes exist regarding the association of two or more persons formed to carry out a single business stating, “Granted. Objection noted.” On this record, summarily extending the Kenneth Dash Partnership, 142 N.H. 501, 508 (1997) (joint venture is “an clarify the summary judgment order, the trial court issued an order simply generally Miami Subs Corp. v. Murray Family Trust and ruling on the State’s motion to amend the preliminary injunction and motion to Therefore, we turn to the merits of respondent RYO’s argument. In

for RYO to preserve its claim of error for appeal. Accordingly, we conclude that a motion for reconsideration was not necessary of relief, which is the basis for the claim of error that RYO advances on appeal. affording it any further opportunity to litigate the viability of the State’s theory court was aware that it was rendering a final decision against RYO without the litigation was recent. Therefore, in the context of these pleadings, the trial ripe for review, and RYO objected to this motion, noting that its involvement in to clarify, the State had requested the court to deem the order a final judgment several constitutionally-based defenses and counterclaims. Also, in its motion different fact scenario in its answer to the amended petition, and also raised State had brought against Tobacco Haven. It set forth this purportedly facts relating to its business plan were meaningfully different from the case the injunction and summary judgment order to it, RYO argued, in part, that the cancelled it. When objecting to the State’s requests to extend the preliminary amended petition and motion to amend the preliminary injunction, but later ruling, the trial court apparently had scheduled a hearing on the State’s explain why it did not make an error). Prior to issuing its summary judgment p. 15 Affirmed in part; vacated in

DALIANIS, C.J.