Robert Gunderson v. Commissioner, New Hampshire Department of Safety

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

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack
No. 2014-189

ROBERT GUNDERSON

v.

COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF SAFETY

Argued: October 15, 2014
Opinion Issued: December 19, 2014

Seufert, Davis & Hunt, PLLC, of Franklin (Brad C. Davis on the brief and
orally), for the petitioner.

Joseph A. Foster, attorney general (John J. Conforti, assistant attorney
general, on the memorandum of law and orally), for the State.

LYNN, J. The petitioner, Robert Gunderson, appeals an order of the
Superior Court (McNamara, J.) finding that he is a “Retail Vehicle Dealer” as
defined by RSA 259:89-a (2014), and that he must obtain a license in
accordance with RSA 261:103-a (2014) to engage in his motor vehicle business.
We affirm.

The following facts are undisputed. The petitioner is a New Hampshire
resident who works as a self-described “export buyer’s agent.” As such, he
purchases specific motor vehicles from retail dealers across the country and
exports them to buyers in foreign countries. Prior to exporting the vehicles, the
petitioner obtains title to the vehicles in New Hampshire and holds himself out
as the owner. The petitioner is then paid to transfer ownership of the vehicles
to the foreign purchasers. The petitioner neither owns a retail motor vehicle
sales location nor operates a lot to display vehicles, but performs his services
as an export buyer’s agent from his Moultonborough residence. The vehicles
are never listed online or in any publications or classified advertising.

In 2012, the petitioner purchased a 2012 Porsche Cayenne and a 2012
BMW X5 from out-of-state retail dealers for the purpose of selling them in
China and Russia. When the petitioner applied for titles for the vehicles,
however, the New Hampshire Bureau of Title and Anti-Theft denied the
applications and the New Hampshire Department of Safety determined that he
needed to obtain a state-issued motor vehicle dealer’s license to export motor
vehicles.

The petitioner then filed the instant declaratory judgment action in
superior court, seeking a ruling that he is not required to obtain a motor
vehicle dealer’s license.1 Based upon an agreed statement of facts submitted
by the parties, the trial court ruled that the petitioner is “engaged in the motor
vehicle business” and, therefore, is required to obtain a dealer’s license in
accordance with RSA 261:103-a. The court subsequently denied the
petitioner’s motion for reconsideration, and this appeal followed.

The petitioner asserts that: (1) he is not a retail vehicle dealer as defined
in RSA 259:89-a because he purchased and exported the vehicles in exchange
for a commission and never offered them for sale to the general public; (2) he
does not offer vehicles for sale to the general public; and (3) if New Hampshire
law requires a dealer’s license for the purpose of exporting motor vehicles out of
the country, it is preempted by federal law and violates both the Commerce
Clause and the Equal Protection Clause of the United States Constitution. The
State responds that the petitioner’s regular course of conduct of selling vehicles
to foreign buyers qualifies him as a retail vehicle dealer pursuant to RSA
259:89-a. The State further argues that the petitioner’s federal constitutional
claims have not been properly preserved for review. We agree with the State on
both points.

1 Prior to initiating this lawsuit, the petitioner filed a petition with the New Hampshire Department
of Safety seeking a ruling that he was not required to obtain a dealer’s license. Following a
hearing, a department hearings officer determined that the petitioner was conducting business as
an automobile dealer and, therefore, was required to obtain a motor vehicle dealer’s license. The
petitioner did not seek reconsideration of this decision, nor did he seek review of the decision in
this court. Nonetheless, because the State does not contend that the unappealed administrative
decision precluded the petitioner from obtaining relief from the superior court, we have no
occasion to address this issue. See Kalil v. Town of Dummer Zoning Bd. of Adjustment, 159 N.H.
725, 728 (2010) (stating that res judicata is an affirmative defense that the trial court may deem
to be waived if not asserted).

2
 We first address the preservation issues. In the trial court, the petitioner
first raised the federal preemption issue in a motion to reconsider filed after the
court issued its original order. Without any developed argument, the motion
merely asserted that federal law preempts the state’s licensing requirements
and that requiring a license would violate the Commerce and Equal Protection
Clauses of the Federal Constitution. The trial court found that “[t]his
argument was never pled, and was never made in the briefing on the merits,
and is improper now,” although the court then rejected the argument on its
merits as well.

In his notice of appeal, the petitioner raised preemption as an issue, but
did not raise the asserted Commerce Clause or Equal Protection violations.
Because the Commerce Clause and Equal Protection issues were not raised in
the notice of appeal, we deem them waived and will not address them further.
Lassonde v. Stanton, 157 N.H. 582, 587 (2008) (“Appellate questions not
presented in a notice of appeal are generally considered waived by this court.”).
With respect to the preemption issue, the petitioner’s brief on appeal is
virtually identical to his trial court motion for reconsideration – other than
noting that 19 C.F.R. § 192.2 does not require a federal license to export a used
motor vehicle, it contains no developed argument or citation of authority
explaining how or why applying this state’s dealer licensing laws to his
activities is preempted by federal law. This cursory assertion is insufficient to
warrant appellate review, and we therefore also decline to address the
preemption issue. See Douglas v. Douglas, 143 N.H. 419, 429 (1999) (“We hold
that in the realm of appellate review, a mere laundry list of complaints
regarding adverse rulings by the trial court, without developed legal argument,
is insufficient to warrant judicial review.” (citation omitted)). Therefore, we will
address only the statutory interpretation issue.

The construction of RSA 259:89-a presents an issue of law, which we
review de novo. See State v. Addison, 160 N.H. 732, 754 (2010). We are the
final arbiters of the legislature’s intent as expressed in the words of the statute
considered as a whole. Id. When interpreting statutes, we look to the plain
language of the statute itself, and, if possible, construe that language according
to its plain and ordinary meaning. Id. We interpret legislative intent from the
statute as written and will neither consider what the legislature might have
said nor add language it did not see fit to include. Id. Additionally, we
interpret a statute in the context of the overall statutory scheme and not in
isolation. Id.

RSA 259:89-a states as follows:

“Retail vehicle dealer” shall mean a person engaged in the motor
vehicle business who sells motor vehicles to the general public, or
demonstrates for sale vehicles on consignment to the general
public. Any person who sells or who acts as an agent of a seller for

3
 5 or more vehicles at retail to the general public in a consecutive
12-month period is a retail vehicle dealer.

Thus, to meet the statutory definition of a retail vehicle dealer, a person must:
(1) be engaged in the motor vehicle business; (2) sell vehicles or demonstrate
for sale vehicles on consignment; and (3) make the sales or demonstrations to
the general public.2

RSA 259:60-a (2014) defines a motor vehicle business as follows:

“Motor vehicle business” shall mean a business which is
principally engaged in one or more of the following activities:
buying, selling, or exchanging motor vehicles requiring registration
for use upon a way, motor vehicle mechanical service, motor
vehicle collision repair service, the reconditioning and restoration
of motor vehicles, and the sale of motor vehicle parts. For the
purposes of this definition, “principally engaged” means that the
business derives at least 51 percent of its annual gross income
from the motor vehicle business or, if there was no income in the
prior year, 51 percent of the assets of the business are directly
related to the motor vehicle business.

Here, the petitioner concedes that he “generates income for himself by
purchasing new automobiles from dealerships around the United States and
exporting the vehicles to buyers in foreign countries,” and that he “can be seen
as being engaged in the motor vehicle business.” Additionally, he does not
claim that his income derived from motor vehicle sales fails to meet the
statute’s “principally engaged” test. As a result, we conclude that the petitioner
is engaged in the motor vehicle business.

The next requirement of the retail vehicle dealer definition is the sale of
vehicles or demonstration for sale of vehicles on consignment. RSA 259:89-a
does not provide a definition of the term “sale.” Accordingly, we look to its
plain and ordinary meaning. Addison, 160 N.H. at 754. A “sale” is “[t]he
transfer of property or title for a price.” Black’s Law Dictionary 1454 (9th ed.
2009). This interpretation is consistent with how the legislature has defined
the term elsewhere. For example, under the Uniform Commercial Code, as
adopted in New Hampshire, a “‘sale’ consists in the passing of title from the
seller to the buyer for a price.” RSA 382-A:2-106 (2011); cf. RSA 259:95 (2014)
(including “any transfer of ownership” within the definition of “sale” for road
toll fuel assessment purposes). This is precisely what occurs here. Prior to

2The second sentence of the statute appears to address the matter of how frequently or regularly
a person must engage in sales of motor vehicles (i.e., at least 5 sales in a 12-month period) in
order to be regarded as a dealer. The petitioner does not claim to sell fewer than 5 vehicles in a
12-month period.

4
exporting a vehicle overseas, the petitioner obtains title to the vehicle and holds
himself out as the owner. He is then paid in exchange for the transfer of the
vehicle’s title. The petitioner argues that he receives only a commission to
export vehicles, and does not receive money for their sale; thus, he contends he
is not engaged in the sale of the vehicles directly. Regardless of the term the
petitioner uses to describe the payment he receives, however, there is no
dispute that he had actual legal ownership of the vehicles he purchased and
that he then transferred that ownership in exchange for money. Therefore, we
conclude that the petitioner sells the vehicles.

Finally, the petitioner argues that even if he is engaged in the motor
vehicle business, he does not sell vehicles to the general public and, thus,
cannot be considered a motor vehicle dealer under RSA 259:89-a. Because
RSA 259:89-a does not provide a definition of the term “general public,” we
interpret the term according to its plain and ordinary meaning. See Addison,
160 N.H. at 754. The petitioner cites the Black’s Law Dictionary definition of
“public” in support of his argument that the phrase “the general public”
consists of a smaller, more specific subset of the public at large. The
applicable Black’s Law Dictionary definition for “public” includes “[t]he people
of a nation or community as a whole.” Black’s Law Dictionary 1348 (9th ed.
2009). The petitioner contends that the vehicles were exported to specific
buyers obtained as clients before he purchased the vehicles and that, as a
result, the vehicles were not offered for sale to the whole community. No
evidence suggests, however, that the petitioner makes his services available to
only a select few; nor does the petitioner argue that he sells vehicles to only a
certain group of people. Even if the petitioner exports vehicles to buyers he
obtains before purchasing the vehicles, there is no evidence to suggest that he
limits the universe of persons who may become buyers. Additionally, the plain
meaning of “general public” does not require that every member of the larger
community have access to the petitioner’s services, that the vehicles must be
targeted toward every member of the community, or that the community must
be within the United States.

For the reasons stated above, we hold that the trial court did not err in
determining that the petitioner is a “Retail Vehicle Dealer” as defined by RSA
259:89-a.

Affirmed.

DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.

5