2011-154, The State of New Hampshire v. Empire Automotive Group, Inc

This is an interlocutory appeal from the ruling of the Superior

and Paul S. Reuland ___________________________ on the brief, and Mr. Dunn orally), for the defendant. Sheehan Phinney Bass + Green, P.A., of Manchester (W. Michael Dunn

assistant attorney general, on the brief and orally), for the State. a.m. on the morning of their release. T , attorney general (Constance N. Stratton, senior 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:

THE SUPREME COURT OF NEW HAMPSHIRE

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

page is: http://www.courts.state.nh.us/supreme.

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

the sale of motor vehicles using “retail installment contract[s].” RSA 361-A:1, X

scheme for persons engaged in the business of selling or providing financing for

RSA chapter 361-A establishes a comprehensive licensing and regulatory

disagree.

alleged conduct falls within the terms of the above statutory exemption. We

it is subject to the jurisdiction of the bank commissioner and therefore its

The defendant contends that because it is licensed under RSA chapter 361-A,

installment sales of motor vehicles.

commissioner pursuant to RSA 361-A, relative to retail under the jurisdiction of, and regulated by, the bank practices. This paragraph includes trade or commerce

authority to regulate unfair or deceptive trade CPA. See

banking or securities regulators who possess the begin our analysis by considering the plain meaning of the words used in the

and insurance regulators of other states, or federal

it from the CPA. This is a matter of statutory construction, and we therefore public utilities commission, the financial institutions

securities regulation, the insurance commissioner, the

On appeal, the defendant first argues that RSA 358-A:3, I ( p. 2 2009) exempts

jurisdiction of the bank commissioner, the director of motion as well as the defendant’s motion to reconsider.

I. Trade or commerce that is subject to the the criminal proceedings, lacked authority to do so. The trial court denied the the provisions of this chapter:

the banking department, and that the department of justice, which initiated conduct was exempt from the CPA and subject to the exclusive jurisdiction of The following transactions shall be exempt from The defendant moved to dismiss the indictments on the grounds that its

Hampshire Division of Motor Vehicles. See

in relevant part:

Averill v. Cox, 145 N.H. 3 p. 2 28, 330-31 (2000). RSA 358-A:3 provides,

not passed the on-board diagnostic emissions tests required by the New under installment sales contracts when the defendant knew the vehicles had (indicative of having passed inspection) on two automobiles sold to consumers

natural person, of violating RSA 358-A: p. 2 2 is a felony). RSA 358-A:6, I (2009) (providing that conviction of a person, other than a unlawful to represent that goods have approvals or qualities they do not have);

two counts of violating the CPA by allegedly placing inspection stickers contracts. On May p. 2 20, 2010, the defendant was indicted by the grand jury on p. 3 3

jurisdiction to investigate conduct that is or may be an unfair or deceptive act

states, in part: “The [bank] commissioner shall have exclusive authority and

licensed under chapter p. 3 361-A. Cf

as exempt from the CPA with respect to the transactions at issue. This statute The defendant also argues that RSA p. 3 383:10-d (2006) supports its status

such as the defendant, or were sold for cash by a dealer not required to be

CPA.

under retail installment contracts by an RSA chapter p. 3 361-A licensed dealer, would clearly violate the CPA regardless of whether the vehicles were sold alleged conduct, having nothing at all to do with the financing of the vehicles,

commissioner. Accordingly, the claims at issue here are not exempt from the pursuant to retail installment contracts within the jurisdiction of the bank this case is the sale of motor vehicles. It is not the sale of motor vehicles stickers on motor vehicles. Compare regulate the inspection of motor vehicles or the placement of inspection

inspection stickers on vehicles that had not, in fact, passed inspection. This with the department of safety, see

For all these reasons, we hold that the “trade or commerce” involved in

provision of RSA chapter p. 3 361-A that grants the bank commissioner authority to

vehicles at issue were sold; rather, they allege that the defendant placed practices as RSA chapter p. 3 358-A” (quotation omitted)). Such authority resides The indictments make no mention of the financial terms under which the trade or business” (quotation omitted)); Beer v. Bennett same ills as RSA chapter 358-A” (quotation omitted)); Bell v. Liberty Mut. Ins.

exemption from the CPA. RSA p. 3 358-A:3, I. Likewise, the defendant does not identify, nor have we located, any an agency not listed among those whose regulatory jurisdiction creates an

comprehensive and protects consumers from the same fraud and unfair Co., 146 N.H. 190, 194 (2001) (“regulation of the insurance industry is conduct alleged in the indictments. private in nature, and is in no way undertaken in the ordinary course of a fraud and deception in the marketplace in a manner calculated to avoid the attorney disciplinary scheme established by judiciary “protects consumers from

(upholding private civil judgment against New Hampshire licensed automobile

installment contracts has nothing whatsoever to do with the fraudulent (1999) (holding that CPA is “not available where the transaction is strictly that the two motor vehicles in question may have been sold under retail. Hughes v. DiSalvo, 14 p. 3 3 N.H. 576, 578 vehicles pursuant to such retail installment contracts. Here, however, the fact

bank commissioner under RSA chapter p. 3 361-A involves the sale of motor (Supp. 2011). Thus, the “trade or commerce” subject to the jurisdiction of the the trial court and it therefore is not preserved for our review. State v.

“impermissibly vague.” However, the defendant failed to raise this issue before authorizes or encourages arbitrary enforcement” and is therefore commissioner, the statutory scheme is rendered “so confusing that it

of justice to bring criminal charges without a referral from the bank

Finally, the defendant argues that, if construed to permit the department DALIANIS, C.J., and DUGGAN, HICKS and CONBOY, JJ., concurred. commissioner, see Affirmed and remanded.

For this same reason, even if we were to assume that conduct that does Duquette, 1 p. 4 45 N.H. 374, 376 (2000). not fall within the exclusive investigative authority of the bank commissioner.

RSA 383:10-d, no such conduct is at issue in this case.

be prosecuted by the department of justice absent a referral from the bank within the reach of RSA 383:10-d, and which is criminal in nature, could not

involved here is not exempt from the CPA pursuant to RSA 358-A:3, I, it does and exempt under RSA 358-A:3, I. Since, as discussed above, the conduct the conduct at issue must be both an actual or potential violation of the CPA fall within the “exclusive authority and jurisdiction” of the bank commissioner, (Emphasis added.) But as the quoted statutory text makes clear, in order to or practice under RSA 358-A and exempt under RSA 358-A:3, I. . . .”