Gunderson v. Commissioner, New Hampshire Department of Safety, 2014–189

• Decision Date: 19 December 2014
• Docket Number: No. 2014–189,2014–189
• Citation: 167 N.H. 215,108 A.3d 619
• Parties: Robert GUNDERSON v. COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF SAFETY
• Court: New Hampshire Supreme Court

167 N.H. 215

108 A.3d 619

Robert GUNDERSON

v.COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF SAFETY

No. 2014–189

Supreme Court of New Hampshire.

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.

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, 956 A.2d 332 (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, 728 A.2d 215 (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, 7 A.3d 1225 (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 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...