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2014-0189, Robert Gunderson v. Commissioner, New Hampshire Department of Safety
purchases specific motor vehicles from retail dealers across the country and resident who works as a self - described “export buyer’s agent.” As such, he The following facts are undisputed. The petitioner is a New Hampshire
We affirm. accordance with RSA 261:103 - a (2014) to engage in his motor vehicle business. defined by RSA 259:89 - a (2014), and that he must obtain a license in Superior Court (McNamara, J.) finding that he is a “Retail Vehicle Dealer” as LYNN, J. The petitioner, Robert Gunderson, appeals an order of the
general, on the memorandum of law and orally), for the State. Joseph A. Foster, attorney general (John J. Conforti, assistant attorney
orally), for the petitioner. Seufert, Davis & Hunt, PLLC, of Franklin (Brad C. Davis on the brief and
Opinion Issued: December 19, 2014 Argued: October 15, 2014
COMMISSIONER, NEW HA MPSHIRE DEPARTMENT O F SAFETY
v.
ROBERT GUNDERSON
No. 2014 - 189 Merrimack
___________________________
THE SUPREME COURT OF NEW HAMPSHIRE
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 22 as 2
to be waived if not asserted). 7 25, 728 (2010) (stating that res judicata is an affirmative defense that the trial court may deem occasion to address this issue. See Kalil v. Town of Dummer Zoning Bd. of Adjustment, 159 N.H. decision precluded the petitioner from obtaining relief from the superior court, we have no this court. Nonetheless, because the State does not contend that the unappealed administrative petitioner did not seek reconsideration of thi s decision, nor did he seek review of the decision in an automobile dealer and, therefore, was required to obtain a motor vehic le dealer’s license. The hearing, a department hearings officer determined that the petitioner was conducting business as of S afety seeking a ruling that he was not required to obtain a dealer’s license. Following a P rior to initiating this lawsuit, the petiti oner filed a petition with the New Hampshire D epartment 1
both points. c laims have not b een properly preserved for review. We agree with the State on 259:89 - a. The State further argues that the petitioner ’s federal constitutional to foreign buyers qualifies him as a retail ve hicle dealer pursuant to RSA State responds that the petitioner ’s regular course of conduct of selling vehicles Clause and the Equal P rotection C lause of the United States Constitution. T he the country, it is preempted by federal law and violates b oth the Commerce law requires a dealer’s license for the purpose of exporting motor vehicles out of does not offer vehicles for sale to the general public; a nd (3) if New Hampshire for a commission and never offer ed them for sale to the general public; (2) he in RSA 259:89 - a because he purchased and exported the vehicles in exchan ge The petitioner asserts that: (1) he is not a retail vehicle dealer as defined
petitioner’s motion for reconsideration, and t his appeal followed. accordance with RSA 261:103 - a. The court subsequent ly denied the vehicle business” and, therefore, is required to obtain a dealer’s license in by the parties, t he trial court ruled that the petitioner is “engaged in the motor vehicle dealer’s license. Based upon an agre ed statement of facts submitted 1 superior c ourt, seeking a ruling that he is not required to obtain a motor The petitioner then filed the instant declarator y judgment action in
vehicles. needed to obtain a s tate - issued motor vehicle dealer ’s license to export motor applications and the New Hampshire Department of Safety determined that he however, the New Hampshire Bureau of Title and Anti - Theft denied the China and Russia. When the petitioner applied for titles for the vehicles, BMW X5 fro m out - of - state retail dealer s for the purpose of selling them in In 2012, the petitioner purchased a 2 012 Porsche Cayenne and a 2012
are never listed online or in any publications or classified advertising. as an export buyer’s agent from his Moultonborough residence. The vehicles sales location n or operate s a lot to display vehicles, but performs his services to the foreign purchasers. The petitioner neither owns a retail motor vehicle as the owner. The petitioner is then paid to transfer ownersh ip of the vehicles petitioner obtains title to the vehicles in New Hampshire and holds himself out exports them to buyers in foreign countries. Prior to exporting the vehicl es, the 3
public. Any person who sells or who acts as an agent of a seller for demonstrates for sale vehicles on consignment to the general vehicle business who sells motor vehicles to the general public, or “Retail vehicle dealer” shall mean a person engaged in the motor
RSA 259:89 - a states as follows:
isolation. Id. interpret a statute in the context of the overall statutory scheme and not in said n or add language it did not see fit to include. Id. Additionally, we statute as written and will neither consider what the legislature might have to its pl ain and ordinary meaning. Id. We interpret legislative intent from the language of the statute itself, and, if possible, construe that language according considered as a whole. Id. W hen interpreting statutes, w e look to the plain fi nal arbiters of the legislature’ s intent as expressed in the words of the statute review de novo. See State v. Addison, 160 N.H. 7 32, 754 (2010). We are the Th e construction of RSA 259:89 - a presents a n issue of law, which we
address only the statutory interpretation issue. is insufficient to warrant judicial review.” (citation omitted)). Therefore, we will regarding adverse rulings by the trial court, without developed legal argument, that in the realm of appellate review, a mere laundry list of complaints preemption issue. See Douglas v. Douglas, 14 3 N.H. 419, 429 (1999) (“We hold warrant appellate review, and we therefore also decline to addr ess the activitie s is preempted by federal law. This cursory assertion is insufficient to explaining ho w or why applying this state’s dealer licensing laws to his motor vehicle, it contains no developed argument or citation of authority noting that 19 C.F.R. § 192.2 does not require a federal license to export a used virtually identical to his trial court motion for reconsideration – other than With respect to the preemption issue, the petitioner’s brief on ap peal is presented in a notice of appeal are generally considered waived by this court.”). Lassonde v. Stanton, 157 N.H. 582, 587 (2008) (“A ppellate questions not the notice of appeal, we deem them waived a nd will not address them further. B ecause the Commerce Clause and Equal P rotection issues we re not raised in did not raise the asserted Commerce C lau se or Equal P rotection violations. In his notice of appeal, the petitioner raised preemption as an issue, but
merits as well. and is improper now,” although the court then reject ed the argument on its argument was never pled, and was never made in the briefing on the merits, C lauses of the Federal Constitution. The trial court found that “[t]his and that requiring a license would vio late the Commerce and Equal P rotection merely asserted that federal law preempts the state’s licensing requirement s court issued its original order. Without any developed argument, the motion first raised the federal preemption issue in a motion to reconsider filed after the We first address the preservation issues. In the trial court, the petitioner 4
12 - month period. order to be regarded as a dealer. The petiti oner does not claim to sell fewer than 5 vehicles in a a person must engage in sales of motor vehicles (i.e., at least 5 sales in a 12 - month period) in The second sentence of the statute appears to address the matter of how frequently or regularly 2
toll fuel assessment purpos es). Thi s is precisely what occurs here. Prior to (including “any transfer of ownership” within the definition of “sale” for road seller to the buyer for a price.” RSA 382 - A:2 - 106 (2011); cf. RSA 259:95 (201 4) adopted in New Hampshire, a “‘sale’ consists in the passing of title from the the term elsewhere. For example, under the Unifor m Commercial Code, as 2009). This interpretation is consistent with how the legislature has defined transfer of property or title for a price.” Black’s Law Dictionary 1454 (9th ed. plain and ordinary meaning. Addison, 160 N.H. at 754. A “sale” is “[t]he does not provide a definition of the term “sale.” Accordingly, we look to its vehicles or demonstration for sale of vehicles on consignment. RSA 259:89 - a The next requirement of the retail vehic le dealer definition is the sale of
is engaged in the motor vehicle business. statute’s “principally engaged” test. As a result, we conclude that the petitioner claim that his income derived from motor vehicle sales fail s to meet the as being engaged in the motor vehicle business.” Additionall y, he does not exporting the vehicles to buyers in foreign countries,” and that he “can be seen purchasing new automobiles from dealerships around the United States and Here, the petitioner concedes that he “generates income for himself by
related to the motor vehicle business. prior year, 51 percent of the assets of the business are directly from the motor vehicle business or, if there was no income in the business derives at least 51 percent of its annual gross income purposes of this definition, “principally engaged” means that the of motor vehicles, and the sale of motor vehicle parts. For the vehicle collisio n repair service, the reconditioning and restoration for use upon a way, motor vehicle mechanical service, motor buying, selling, or exchanging motor vehicles requiring registration principally engaged in one or more of the following activities: “Motor ve hicle business” shall mean a business which is
RSA 259:60 - a (201 4) defines a m otor vehicle b usiness as follows:
the general public. 2 for sale vehicles on consignment; and (3) make the sales or demonstrations to (1) be engaged in the motor vehicle business; (2) sell v ehicles or demonstrate Thus, to meet the statutory definition of a retail vehicle dealer, a person must:
12 - month period is a retail vehicle dealer. 5 or more vehicles at retail to the general public in a consecutive 5
DALIANIS, C.J.
, and HICKS, CONBOY, and BASSETT, JJ., concurred.
Affirmed.
2 59:89 - a. determining that the petitioner is a “Retail Vehicle Dealer” a s defined by RSA For the reasons stated above, we hold that the trial court did not err in
be within the United States. targeted toward every member of the community, or that the community must community have access to the petitioner’s services, that the vehicles m ust be meaning of “general public” does not require that every member of the larger limits the universe of persons who may be come buyers. Additionally, the plain obtains before purchasing the vehicles, there is no evidenc e to suggest that he certain group of people. Even if the petition er exports vehicles to buyers he only a select few; nor does the petitioner argue that he sells vehicles to o nly a evidence s uggest s, however, that the petitioner makes his services available to result, the vehicles were not offered for sale to the whole community. N o buyers obtained as cli ents before he purchased the vehicles and that, as a 2009). The petitioner contends that the vehicles were exported to specific of a nation or community as a whole.” Black ’ s Law Dictionary 1348 (9th ed. applicable Black’s Law Dictionary definition for “public” includes “[t] he people con sists of a smaller, more specific subset of the public at large. The “public” in support of his argument that the phrase “the general public” 160 N.H. at 7 5 4. The petitioner cites the Black’s Law Dictionary definition of interpret the term according to its plain and ordinary meaning. See Addison, RSA 259:89 - a does not provide a definition of the term “general public,” we cannot be considered a motor vehicle dealer under RSA 259:89 - a. Because vehicle business, he does not sell vehicles to the general public and, thus, Finally, t he petitioner argues that even if he is engaged in the motor
conclude that t he petitioner sell s the vehicles. that he then transferred that ownership in exchange for money. Therefore, we dispute that he had actual legal ownership of the vehicles he purchased and petitioner uses to describe the payment he receives, however, there is no is not engaged in the sale of the vehicles directly. R egardless of the term the export vehicles, and does not receive money for their sale; thus, he contends he vehicle’s title. The petitioner argues t hat he receives only a commission to himself ou t as the owner. He is then paid in exchange for the tra nsfer of the exporting a vehicle overseas, the pet itioner obtains title t o the vehicle and holds