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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Merrimack

No. 2014

- 189

ROBERT GUNDERSON

v.

COMMISSIONER, NEW HA MPSHIRE DEPARTMENT O F 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 and2

exports them to buyers in foreign countries

. Prior to exporting the vehicl es, the petitioner obtains title to the vehicles in New Hampshire and holds himself out

as the owner. The petitioner is then paid to transfer ownersh ip of the vehicles to the foreign purchasers

. The petitioner neither owns a retail motor vehicle

sales location n or operate s 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 2 012 Porsche Cayenne and a 2012

BMW X5 fro m out

- of

- state retail dealer s 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 s tate

- issued motor vehicle dealer ’s license to export motor

vehicles.

The petitioner then filed the instant declarator y judgment action in superior c ourt

, seeking a ruling that he is not required to obtain a motor
vehicle dealer’s license. 1 Based upon an agre ed statement of facts submitted by the parties, t he 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 subsequent ly denied the petitioner’s motion for reconsideration , and t his 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 exchan ge for a commission and never offer ed them for sale to the general public; ( 2) he does not offer vehicles for sale to the general public; a nd ( 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 b oth the Commerce Clause and the Equal P rotection C lause of the United States Constitution

. T he State responds that the petitioner ’s regular course of conduct of selling vehicles to foreign buyers qualifies him as a retail ve hicle dealer pursuant to RSA

259 :89

- a. The State further argues that the petitioner ’s federal constitutional

c laims have not b een properly preserved for review

. We agree with the State on both points

.

1 P rior to initiating this lawsuit, the petiti oner filed a petition with the New Hampshire D epartment
of S afety 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 vehic le dealer’s license. The petitioner did not seek reconsideration of thi s 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).3

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 requirement s and that requiring a license would vio late the Commerce and Equal P rotection

C lauses 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 reject ed 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 C lau se or Equal P rotection violations

. B ecause the Commerce Clause and Equal P rotection issues we re not raised in the notice of appeal, we deem them waived a nd will not address them further.

Lassonde v. Stanton , 157 N.H. 582, 587 (2008) (“A ppellate 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 ap peal 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 ho w or why applying this state’s dealer licensing laws to his

activitie s is preempted by federal law. This cursory assertion is insufficient to

warrant appellate review, and we therefore also decline to addr ess 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.

Th e construction of RSA 259 :89

- a presents a n issue of law, which we

review de novo

. See State v. Addison , 160 N.H. 732, 754 ( 2010)

. We are the

fi nal arbiters of the legislature’ s intent as expressed in the words of the statute

considered as a whole. Id

. W hen interpreting statutes, w e look to the plain language of the statute itself, and, if possible, construe that language according to its pl ain and ordinary meaning. Id

. We interpret legislative intent from the

statute as written and will neither consider what the legislature might have

said n or 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 for4

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 v ehicles 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 m otor vehicle b usiness as follows:

“Motor ve hicle 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 collisio n 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.” Additionall y, he does not

claim that his income derived from motor vehicle sales fail s 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 vehic le 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 Unifor m 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 purpos es ) . Thi s is precisely what occurs here. Prior to

2 The 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 petiti oner does not claim to sell fewer than 5 vehicles in a

12

- month period.5

exporting a vehicle overseas , the pet itioner obtains title t o the vehicle and holds

himself ou t as the owner. He is then paid in exchange for the tra nsfer of the

vehicle’s title

. The petitioner argues t hat 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. R egardless 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 t he petitioner sell s the vehicles.

Finally, t he 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 75 4. The petitioner cites the Black’s Law Dictionary definition of “public” in support of his argument that the phrase “the general public”

con sists 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 cli ents before he purchased the vehicles and that , as a result, the vehicles were not offered for sale to the whole community

. N o evidence s uggest s, however, that the petitioner makes his services available to only a select few; nor does the petitioner argue that he sells vehicles to o nly a certain group of people. Even if the petition er exports vehicles to buyers he

obtains before purchasing the vehicles , there is no evidenc e to suggest that he

limits the universe of persons who may be come 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 m ust 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” a s defined by RSA

259:89

- a.

Affirmed

.

DALIANIS, C.J., and HICKS, CONBOY

, and BASSETT, JJ., concurred.