2013-0452, Mahindra & Mahindra, Ltd. V. Holloway Motor Cars of Manchester, LLC & a.

over Mahindra and subject matter jurisdiction to adjudicate the dealers’ claims that the trial court erred by finding that the Board had personal jurisdiction Sale s, Inc., and Crest Chevrolet, Inc. (collectively “dealers”). Mahindra argues of the respondents, Holloway Motor Cars of Manchester, LLC, Peters Auto judgment by the New Hampshire Motor Vehicle Industry Board (Board) in favor appeals a decision of the Superior Court (Smukler, J.) affirming a default CONBOY, J. The petitioner, Mahindra & Mahindra, Ltd. (Mahindra),

and orally), for the respondents. Holmes Law Offices PLLC, of Concord (Gregory A. Holmes on the brief

(L. Joseph Loveland on the brief and orally), for the petitioner. Siracusa Hillman on the brief), and King & Spalding, LLP, of Atlanta, Georgia Shaheen & Gordon, P.A., of Concord (Steven M. Gordon and Benjamin T.

HOLLOWAY MOTOR CARS OF MANCHESTER, LLC & a.

No. 2013 - 452 Merrimack

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, Concor d, 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 p. 2 22 as 2

the Board’s jurisdiction because Mahindra was never served with First, Mahindra respectfully submits that it is not subject to

three objections:” Mahindra be dismissed. The letter was filed “for the limited purpose of raising responding to the hearing notice and requesting that all claims against Mahindra’s attorney in Georgia sent a letter to the Board (the “letter”) Global Vehicles, and Mahindra ’s sector president in Houston, Texas. On May p. 2 22, 2012, t he Board issued a notice of hearing to the dealers,

sheriff’s return stated that the individual could not be found. for service on the senior vice president of Mahindra USA Automotive. The t he dealers sent a copy of the protest to the sheriff’s office in Marietta, Georgia, in Mumbai, India, which was delivered by United Parcel Service. In addition, sent a copy of the protest to the same Mahindra sector president at an address and farm equipment sector at an address in Houston, Texas. The dealers also Mahindra’s counsel in Georgia and to the president of Mahindra’s automotive variety of means. T he y sent copies of the protest by certified mail to conference, the dealers attempted service of the protest on Mahindra through a Mahindra did not participate in the pre - hearing conference. After the Mahindra, in Ken nesaw, Georgia. The notice to Mahindra U.S.A. was returned. Global Vehicles, and a senior vice president of Mahindra U.S.A., a subsidiary of T he Board issued a notice of pre - hearing conference to the dealers,

protest against both Mahindra and Global Vehicles. had entered into agreements only wi th Global Vehicles, the y brought their dealers in accordance with its agreement and state law.” Although the dealers dealers, and its refusal to provide motor vehicles to Global [Vehicles] and the announce d intention not to honor the franchise agreements held by the its wrongful termination of the Distributor Agreement with Global [Vehicles], its vehicles. The dealers claim ed that Mahindra “violated RSA [chapter] 357 - C by paid a fee to Global Vehicles in order to become dealers of Mahindra’s motor vehicles in the State of New Hampshire. They further alleged that t he dealers which Global Vehicles became the exclusive distributor of Mahindra’s motor a distributor agreement with Global Vehicles, U.S.A. Inc. (Global Vehicles) by C:3, :7 ( p. 2 2009 & Supp. 2013). The dealers as serted that Mahindra entered into based in Mumbai, India, violated RSA chapter 357 - C. See generally RSA 357 protest with the Board alleging that Mahindra, a motor vehicle manufacturer are otherwise undisputed on appeal. On July 12, 2011, the dealers filed a The following facts are drawn from the trial court ’ s order, the record, or

I. Background

this opinion. instructions to remand to the Board for further proceedings consistent with against Mahindra. We vacate the order of the superior court and remand with p. 3 3

appeared for the final hearing despite being properly noticed, they had The Board concluded that, because neither Global Vehicles nor Mahindra

have already been decided in a binding overseas arbitrati on. were subject to Section 60(b) of the Distributor Agreement and not parties -- should be off - limits in this forum. Those disputes termination of a Distributor Agreement to which [the dealers] are but not limited to any issues related to the performance a nd prior dispute between Global Vehicles and Mahindra -- including Global Vehicles’ behalf in this forum, any issues relating to the inten d to re - litigate Global Vehicles’ claims against Mahindra on separate contracts with Mahindra. To the extent [the dealers] [The dealers] have not alleged that they entered into any

relationship between Mahindra and Global Vehicles. violated any state or federal dealer laws that may govern the according to its own terms, and that Mahindr a had not otherwise Distributor Agreement automatically terminated on June 11, 2010 the Distributor Agreement. Instead, the tribunal found that the claims, including the claim that Mahindra wrongfully terminated Agreement.... [T] he arbitral tribunal rejecte d Global Vehicles’ engaged in certain conduct in violati on of the Distributor In the arbitration, Global Vehicles had claimed that Mahindra

Agreement, to which [the dealers] are not parties.... allegations about the Mahindra - G lobal Vehicles Distributor Mahindra observes that [the dealers’] Protest consists primarily of Even if the Board finds that it has jurisdiction over Mahindra,

Vehicles, the letter explained: With respect to the third objection, relating to the arbitration with Global

have been sound ly rejected. dispute was subject to an arbitration where Global Vehicles’ claims dispute between Global Vehicles and Mahindra (it does not), that Accordingly, even if the Board had jurisdiction over the contract clause in the Mahindra - Global Vehicles Distributor Agreeme nt. Vehicles initiated in London pursuant to a binding arbitration earlier this year following an international arbitration that Global and Mahindra. This dispute was decided in Mahindra’s favor itself into a private contractual dispute between Global Veh icles herein, [the dealers’] protest improperly a s ks this Board to interject public highways of New Hampshire. Third, as set forth further or assemble new motor vehicles for use and operation on the the Board’s jurisdiction because Mahindra does not manufactur e the July 12, 2011 Protest. Second, Mahindra also is not subject to p. 4 4

Nissan N. Am., 16 p. 4 4 N.H. 729, 735 (2013). or vacate the trial court’s decision except for errors of law. See Strike Four v. Our review of the trial court’s decision is similarly limited: we will not set aside

the superior c ourt on appeals from the board. errors of law. N o additional evidence shall be heard or taken by decision appealed from shall not be set aside or vacate d exc ept for the court shall be prima facie lawful and reasonable. The order or A ll findings of the board upon all questions of fact properly before

C:1 2, VII, which provides: The trial court’ s review of the Board’s dec ision is governed by RSA 357 -

II. Standard of Review

motion for reconsideration was denied, and this appeal followed. the Board had subject matter jurisdiction to hear the protest. Mahindra’s found that the dispute was wit hin the scope of RSA 357 - C:2 (2009), such that service and submitted to the jurisdiction of the [Board].” The trial court also of preclusion.” The trial court, therefore, concluded that “Mahindra waived objection in the letter to the Board “raise[d] a defense to the protest, the ground notwithstanding the applicability of t he Hague Service Convention, the third Hampshire. The court affirmed the Board’s decision, finding that, Mahindra d id not manufacture motor vehicles for sale or operation in New the Board lacked subject matter jurisdiction over the dispute because in accordance with the Hague Service Convention. Mahindra also assert ed that with RSA 357 - C:12, VII (2009), arguing that the dealers did not serve Mahindra Mahindra appealed the Board’s order to the s uperior c ourt in accordance

denied the motion. Convention and sought dismissal of the protest for lack of servi ce. The Board service attempted by the dealers did not comply with the Hague Service only by complying with its requirements. Mahindra argued that the methods of Convention), the dealers could have effectuated service of process on Mahindra or Commercial Matters, Nov. 15, 1965, 20 U.S.T 361 (Hague Service C onvention on Service Abroad of Judicial and Extrajudicial Documents in Civil arguing that, because India and the United States are parties to the Hague Mahindra filed a motion asking the Board to vacate the default judgment,

answer to th [e] protest.” from doing business in New Hampshire until it “appears before th [e] Board to [Vehicles] ha[d] violated RSA 3 p. 5 57 - C:3 and RSA 357 - C:7” and barred Mahindra defaulted. T he Board additionally found and ruled “that Mahindra and Global 5

court, the dealers asserted that the requirements of the Hague Service In their answer and counterclaim to Mahindra’s appeal to the superior

of the United States in Force on January 1, 2013 410 (2013). State, Treaties in Force: A List of Treaties and Other International Agreeme nts the United States and India are signatories to the treaty. See U.S. Dep’t of (1988); see also Hague Service Convention, P reamble, 20 U.S.T. at 362. Both abroad.” Vol k swagenwerk Aktiengesell s chaft v. Sc hlunk, 486 U.S. 694, 698 receive actual and timely notice of suit, and to facilitate proof of service process abroad, to assure that defendants sued in foreign jurisdictions would 361, 362. The C onvention was implemented “to provide a simpler way to serve Documents in Civil or Commercial Matters, Nov. 1 p. 5 5, 1965, art. 1, 20 U.S.T document for service abroad.” Service Abroad of Judicial and Extrajudicial matters, where there is o ccasion to transmit a judicial or extrajudicial The Hague Service Convention applies “in all cases, in civil or commercial

(quotation and ellips e s omitted). method must be followed.” South Down Recreation Ass oc., 141 N.H. at 487 “Where a statute points out a particular method of serving process [,] such quotation omitted); see also Estate of Lunt v. Gaylor, 1 p. 5 50 N.H. 96, 97 (2003). statutory requirements for service of process.” Id. at 487 (citation and constitutional limit, we also consistently require strict compliance with our statutes providing personal jurisdiction over nonresidents to the full substantial justice.” Id. at 486 - 87 (quotation omitted). “Although we construe maintenance of the suit does not offend traditional notions of fair play and the defendant have minimum contacts with the jurisdi ction such that the omitted). “This requirement is separate from the due process requirement that Down Recreation Ass oc. v. Moran, 141 N.H. 484, 486 (1996) (quotation the legislature has provided another method of service of process.” South see RSA 510:2 (2010), “jurisdiction over a nonresident can only be obtained if (2010). If personal service is not effected within the boundaries of the State, ser vice of process is required.” Impact Food Sales v. Evans, 160 N.H. 386, 390 “In order to obtain jurisdiction over an out - of - state defendant, proper

A. Service of Process

matter of law. jurisdiction. We agree with Mahindra, and find that the trial court erred as a of the convention’s applicability, Mahindra waived its challenge to service and requirements of the Hague Service Convention i n this case and that, regardless Service Convention. The dealers contend that they were not bound by the findi ng that it waived its right to insist on proper service pursuant to the Hague served by the [dealers] in this matter,” and argues that the trial court erred in Mahindra asserts that “there is no dispute that [it] was never properly

I I I. Analysis p. 6 6

finding and have adv anced no argument that they effectuated service in the Hague [Service] Convention.” Because the dealers did not challenge this the [dealers] now concede that they did not effectuate service that conforms to C o nvention, t he trial court found that, “[a]lthough they originally disputed it, As to whether the dealers, in fact, effectuated service pursua n t to the

(2014). analysis. See Camire v. Gunstock Area Commission, 1 p. 6 66 N.H. 374, 379 appeal, they have failed to support this assertion with any developed legal individuals in the United States was sufficient, we decline to do so; in their To the extent that the dealers ask us to revive their assertion that service on that, subsequent to their concession, the dealers did not seek such a ruling. United States obviated the service requirements under the C o nvention, and did not rule on the issue of whether the dealers’ service on individuals in the therefore we were “foreclosed” from considering it). We note that the trial court N.H. 14, 29 (2003) (State conceded issu e at oral argument on appeal and conceded in a lower court may not be argued on appeal.”); cf. State v. Ayer, 150 Inc. v. S.C. Dept. of Revenue, 503 S.E.2d 471, 474 (S.C. 1998) (“An issue traditional public f orum and plaintiff relied on that representation); TNS Mills, trial court premised its ruling on defendants’ representation that park was consider whether park was limited public forum or nonpublic forum because Resources & Economic Dev., 163 N.H. 215, 22 1 - 2 2 (2012) (declining to the dealers are bound by their concession. See Doyle v. Comm’ r, N.H. Dep’t of governed service requirements. Under these circumstances, we conclude that from th is c oncession that, absent a waiver by Mahindra, the C onvention At no point during the proceedings before the trial court did the dealers retreat

[COUNSEL]: It does govern.

you’re not contesting that the Hague [Service] Convention governs? THE COURT: I understand that you’re arguing the waiver, but

. . . .

[COUNSEL]: I agree, it would.

Hague [Service] Conve ntion govern? THE COURT: In other words, if there were not a waiver, would the

The following exchange occurred between the court and counsel for the dealers: the Hague Service Convention governed service of process in this proceeding. the hearing before the trial court, the dealers conceded that, absent a waiver, attorney in Georgia and its sector president in Houston, Texas. However, at further asserted that they effectuated proper service on Mahindra by serving its Convention are inapplicable when service is made in the United States. They p. 7 7

novo. See Edwards v. RAL Auto. Group, 156 N.H. p. 7 700, 705 (2008) (the Mahindra’s letter, the waiver issue presents a question of law that we review de 168, here, because the trial court’s waiver finding was based solely upo n (1923). Although waiver ordinarily is a question of fact, see Lyford, 97 N.H. at that the actor intends to submit to it.” Dolber v. Young, 81 N.H. 157, 159 which recognizes the jurisdiction [of the tribunal] has some tendency to show pleadings, but with respect to its action as a whole.” Id. at 169. “Any act determined not solely with reference to isolated allegations contained in its jurisdiction of the tribunal.” Id. “The effect of the defendant’s action is to be omitted). “The question is whether he has in fact submitted himself to the defendant makes, which determi nes the ef fect of his conduct.” Id. (quotation consideration of the court, and not the form of the statements which the at 168 (quotation omitted). “It is the character of his acts in praying the evidence and is not concluded by the declaration of the part y.” Lyford, 97 N.H. “[W]aiver, like any question of fact, is to be determined upon all the

this case. precedents to determine whether Mahindra waived the service requirements in proc ess or sufficiency of service of process.”). Accordingly, we look to our prior motions that raise issues aside from personal jurisdiction, sufficiency of submitted to the court’s jurisdiction by filing an Answer or other pleadings or ... the litigant [will not] be deemed to have waived such challenges and apply in this case. S ee Super. Ct. Civ. R. 9(f) & cmt. (“Under the new rule to proceedi ngs in the superior court, no party asserts that the new rule should personal jurisdiction challenges became effective in October 2013 with respect (quotation omitted). We note that a lthough a new rule regarding waiver of se rvice or notice, to the court or other tribunal.” Lyford, 9 p. 7 7 N.H. at 168 appearance or otherwise, submits any other question, except the sufficiency of states: “[A] n objection to service or notice is waived when a party, by general The dealers rely up on Lyford v. Academy, 97 N.H. 167, 168 (1951), which

disagree. this issue to the Board, it submitted itself to the Boar d’s jurisdiction. We affirmative bar to the protest.” They argue that because Mahindra submitted dismissed by claiming that the favorable result in the arbitration is an or personal jurisdiction. The y assert that “Mahindra sought to have the protest Mahindra waiv ed any challenge that it might have had to the validity of service conclude d that, regardless of the applicability of the Hague Service Convention, personal jurisdiction. The dealers argue that the trial court correctly proper service in the letter, the trial court erred in finding that the Board had Mahindra argues that because it did not waive its right to ins ist on

B. Waiver of Challenge to Service

sufficient service of process. compliance with the C onvention, we hold that Mahindra did not receive p. 8 8

the letter differently and disagree with the trial court’s conclusion. and finally resolved the dispute between the parties.” We read the language of preclusion” and interpret the letter as asserting “that a prior proceeding fully objection in Mahindra’s letter “raises as a defense to the protest, the ground of objection, t he dealers rely upon the trial court’s assessment that the third In support of their argument that Mahindra waived its jurisdictional

before the Board. Mahindra and Global Vehicles — the two named respondents in the proceeding agreement, subject to binding arbitration, which governed the dispute bet ween which [the dealers] are not parties.” The letter, therefore, identified an allegations about the Mahindra - Global Vehicles Distributor Agreement, to its letter, Mahindra stressed that the dealer s’ protest “consists primarily of to an arbitration where Global Vehicles’ claims ha[d] been soundly rejected.” In contractual dispute between Global Vehicles and Mahindra” that was “subject The third objection in the l etter sought only to apprise the Board of a “private dealers while simultaneously arguing that the Board did not have jurisdiction. Here, Mahindra’s letter did not ask the Board to resolve an issue with the

case and deny its jurisdiction.” Dolber, p. 8 81 N.H. at 159. not “at the same time invoke the judgment of the court upon the merits of the objection to jurisdiction was based upon the premise that the defendants could merits). In these cases, our determination that the defendants had waived any sufficiency of the service or notice” because his counsel tried the case on the 342 - 43 (1972) (concluding that defendant “waived all objection to the requests for substantive findings and rulings”); Jewett v. Jewett, 112 N.H. 341, to the court’s jurisdictio n by “fil[ing] various pleadings with the court, including (holding that party waived any jurisdictional objections and submitted himself judgment). See also, e.g., Druding v. Allen, 122 N.H. 823, 826 - 27 (1982) jurisdiction al argument by conced ing liability in a motion to strike default v. Hayes, 141 N.H. 118, 120 (1996) (holding that defendant waived jurisdiction”); and by addressing the merits of the plaintiff’s claims, see Barton to be used in the trial of [the] issue was an unreserved invocation of the (determining that defendant ’s “application for a commission to take depositions limitations); by actively participating in the case, see Dolber, 81 N.H. at 159 defendant waived jurisdiction al claim by including plea of statute of Gagnon v. Croft Manufacturing & c. Co., 108 N.H. 329, 330 (1967) (holding their objections to service of process by asserting an affirmative defense, see objection to service. For instance, we have concluded that defendants waived circumstances in other cases in which we have held that a defendant waived The language in Mahindra’s letter is distinguishable fr om th e

better position to decide the case than are we.” (quotation omitted)). the documents ... are available for our perusal, the [trial] court was in no novo); Masse v. Commercial Un ion Ins. Co., 136 N.H. 62 p. 8 8, 632 (1 p. 9 993) (“As all interpretation of written documents is a question of law that we review de 9

fact represented and protected in the prior litigation. Id. Thus, privity is found relationship, in which, at a minimum, the interests of the non - party were in (2003) (quotatio n omitted). These phrases imply not a formal, but a functional, representation, and substantial identity.” Cook v. Sullivan, 14 p. 9 9 N.H. 774, 779 privity in the estoppel context has been described as one of virtual “The relationship between party and non - party implied by a finding of

on Global Vehicles’ behalf.” We disagree with thi s interpretation. that the dealers “intend to re - litigate Global Vehicles’ claims against Mahindra Global Vehicles Distributor Agreement ’” and also because Mahindra claimed the [dealers’] protest con sists ‘ primarily of allegations about the Mahindra was claiming that the [dealers] were in privity with Global [Vehicles] because that “[a]lthough Mahindra did not use the legal label[] of privity ..., Mahindra Agreement th at was at issue in the arbitration. Nonetheless, the dealers argue I nstead, t he letter stated that the dealers were not a party to the Distributor in the arbitration action or were in privity with someone who appear ed. Moreover, in its letter, Mahindra did not assert that the dealers appeared

arbitration. the issue before the Board was identical to the issues resolved in the between the disputes, nothing in Mahindra’s letter can be read to assert that arbitration governed — and the dispute before the Board. G iven the distinction the distinction between the dispute with Global Ve hicles — which the “contract ual dispute between Global Vehicles and Mahindra.” Mahindra noted violates RSA 357 - C:3 and RSA 357 - C:7,” while the arbitration decided the Board “to adjud icate certain alleged conduct by Mahindra that allegedly were identical. Rather, in the letter, Mahindra note d that the dealers asked the not allege that the issue s raised before the Board and resolved in arbitration In the letter, Mahindra did not assert a collateral estoppel defense. It did

Hansa Consult of N. Am., 163 N.H. at 50.

finding at issue was essential to the first judgment. estopped had a full and fair opportunity to litigate the issue; and (5) the the first action or was in privity with someone who did; (4) the party to be the issue finally on the merits; (3) the party to be estopped appeared in subject to estoppel is identical in each action; (2) the first action resolved relitigation of findings made by a previous court when: (1) the issue Under certain circumstances, c ollateral estoppel may preclude the

issue preclusion as the same doctrine). Aubert v. Aubert, 12 p. 9 9 N.H. 422, 425 (1987) (recognizing collateral estoppel and N. Am. v. Hansaconsult Ingenieurgesellschaft, 163 N.H. 46, 50 (2011); see or fact actually litigated and determined in the pri or action. Hansa Consult of prior action, or a person in privity with such party, from relitigating any issue Th e doctrine of issue preclusion (collateral estoppel) bars a party to a p. 10 10

jurisdiction over Mahindra b ecause “[i] n order to obtain jurisdiction over an received proper service is the argument that the Board never obtained personal vacate the default judgment. Implicit in Mahindra’s argument that it never personal jurisdiction, it waived that issue by failing to include it in its motion to Finally, the dealers argue that, to the extent that Mahindra contes ts

to the jurisdictional issue and were in pursuance thereof”). not waive his right to contest jurisdiction because all of his actions “pertained v. McDonough, p. 10 105 N.H. 3 08, 310 - 11 (1964) (conclud ing that defendant did defective service and did not waive objections to personal jurisdiction); Duncan 97 - 98 (holding that motion to strike default judgment was based solely on it waive d i ts right to contest service of process. See Estate of Lunt, 150 N.H. at support a conclusion that it submitted itself to the Board’s jurisdiction or that waiver of its jurisdiction al objection, and Mahindra’s actions as a whole do not law, the character of Mahindra’s request of the Board cannot be regarded as a invoke court’s jurisdiction). Consequently, we conclude that, as a matter of said action’” “sought no determination of the merits” and therefore did not assertion in its motion to vacate default judgment that it “‘intends to defend merits of the dealers’ claims. Lyford, 97 N. H. at 169 (holding that defendant’s service was proper.” Here, as in Lyford, Mahindra never actually addressed the Board’s order, it conditioned this request upon “the Board ... decid [ing] Although Mahindra “request[ed] an opportunity to contest the merit s” of the the Board vacate its order because Mahindra was not properly served. Mahindra filed the motion to vacate “for the limited purpose” of requesting that that the Board lacked jurisdiction du e to insufficient service of process. submit ted itself to it. In all of its filings, Mahindra consistently maintained support a conclusion that Mahindra recognize d the Board’s jurisdiction and the jurisdict ional issue, we do not find that its request was sufficient to the [Board’s] Opinion.’” Because Mahindra’s motion to strike again focused on the merits of the Protest” by “requesting ‘an opportunity to contest the merits of dealers assert that “Mahindra affirmatively sought to contest not service but jurisdiction on the Board and waive [d] any claim of improper service.” T he affirmative relief in its motion to strike the default judgment confer[red] We also reject the dealers’ argument that “Mahindra’s request for

not submit to the Board’s jurisdiction with respect to the dealers’ protest. disputes between Mahindra and Global Vehicles. I n doing so, Mahindra did Mahindra simply identified a binding arbitration agreement that governed Mahindra’s letter raised a collateral estoppel defense. Rather, in the letter, Consequently, we reject the dealers’ argument that the third objection in

dealers authorized Global Vehicles to represent their interests. the dealers’ interests were in fact represented during the arbitration or that the represent his or her interests. Id. Nothing in Mahindra’s letter suggests that controlling the presentation or if a non - party authorizes a party in litigation to to exist, for example, when a non - party controls or substantially participates in p. 11 11

DALIANIS, C.J.