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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 
2

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).
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 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 
4

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 

 

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 petitioner does not claim to sell fewer than 5 vehicles in a 

12-month period. 
5

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.