M6 MOTORS, INC. v. NISSAN OF NORTH OLMSTED, LLC
No. 100684
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 12, 2014
2014-Ohio-2537
BEFORE: McCormack, J., S. Gallagher, P.J., and Blackmon, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-13-808958. JUDGMENT: AFFIRMED.
Robert A. Poklar
Shawn W. Maestle
Matthew C. Miller
Weston Hurd L.L.P.
The Tower at Erieview
1301 East 9th St., Suite 1900
Cleveland, OH 44114
Christopher M. Devito
Morganstern MacAdams & Devito Co.
623 West St. Clair Ave.
Cleveland, OH 44113-1204
ATTORNEYS FOR APPELLEE
James B. Niehaus
Gregory R. Farkas
Frantz Ward L.L.P.
2500 Key Center
127 Public Square
Cleveland, OH 44114
{1} Defendant-appellant, Nissan of North Olmsted, LLC (“North Olmsted Nissan“), appeals the trial court‘s order granting declaratory judgment in favor of M6 Motors, Inc., d.b.a. Nissan of Middleburg Heights (“Middleburg Heights Nissan“). For the reasons that follow, we affirm the decision of the trial court.
Procedural History and Substantive Facts
{2} This appeal stems from a dispute between two Nissan dealerships: Middleburg Heights Nissan, which is located at 7168 Pearl Road, Middleburg Heights, Ohio, and North Olmsted Nissan, which is located at 28500 Lorain Road, North Olmsted, Ohio. Bernardo Moreno, Middleburg Heights Nissan‘s principal, formed Middleburg Heights Nissan for the purpose of acquiring a Nissan franchise from North Coast Nissan. North Coast Nissan was operating out of the Pearl Road location at the time Moreno signed the asset purchase agreement to acquire it. Moreno signed the purchase agreement on March 5, 2012, and Nissan of North America, the Nissan manufacturer (“Nissan Manufacturer“), approved the sale of North Coast Nissan to Middleburg Heights Nissan on April 30, 2012.
{3} After signing the purchase agreement with North Coast Nissan, Moreno met with Mike D‘Amato, president of North Olmsted Nissan, and advised D‘Amato that he intended to relocate the Middleburg Heights Nissan‘s dealership from its current location on Pearl Road to 13960 Brookpark Road, Cleveland, Ohio (the “protest site“), in addition
{4} Middleburg Heights Nissan sought and received approval from the Nissan Manufacturer for its relocation to the protest site as well as to the proposed site located at 14080 Brookpark Road. On May 4, 2012, the Nissan Manufacturer advised North Olmsted Nissan that it approved the sale of North Coast‘s dealership assets to Middleburg Heights Nissan. The Nissan Manufacturer also advised North Olmsted Nissan that it approved the relocation of the dealership to the protest site and that upon relocation, Middleburg Heights Nissan would also be maintaining an offsite storage location for new vehicles at 14080 Brookpark Road.
{5} After learning of Middleburg Heights Nissan‘s intent to relocate, North Olmsted Nissan filed an administrative protest with the Ohio Motor Vehicle Dealers Board (the “Board“) against the Nissan Manufacturer, protesting the relocation of
{6} On May 15, 2012, the Board accepted North Olmsted Nissan‘s protest and notified the Nissan Manufacturer of the protest. Upon receiving notification of North Olmsted Nissan‘s protest, the Nissan Manufacturer moved to dismiss the protest, arguing that North Olmsted Nissan failed to timely protest the relocation and that a dealer has no right of protest when a manufacturer proposes to relocate another dealer further from that dealer. Middleburg Heights Nissan, who was not a party to the protest, filed a motion to intervene in the proceedings as well as a motion to dismiss the protest. Middleburg Heights Nissan argued that it has a right to intervene in the proceedings and that the protest should be dismissed for lack of jurisdiction. On March 27, 2013, the hearing examiner granted Middleburg Heights Nissan‘s motion to intervene for the limited purposes of attending the hearing and presenting evidence to be considered by the examiner and the Board. The hearing examiner determined, however, that even though Middleburg Heights Nissan was an “other interested individual,” it did not have the right to engage in discovery or conduct cross-examination of the witnesses at the hearing. The hearing examiner also denied Middleburg Heights Nissan‘s motion to dismiss as “moot and a legal nullity.”
{7} Finally, the hearing examiner denied the Nissan Manufacturer‘s motion to dismiss the protest, finding that North Olmsted Nissan has standing to protest the
{8} Middleburg Heights Nissan states that due to the delay of approximately one year from the date of the protest to the hearing examiner‘s order denying the Nissan Manufacturer‘s motion to dismiss, Middleburg Heights Nissan lost the ability to acquire the protest site. It therefore withdrew its request to the Nissan Manufacturer to relocate its dealership to that location on May 31, 2013.1
{9} At the same time, Middleburg Heights Nissan sought approval from the Nissan Manufacturer for relocation to 13930 Brookpark Road, Cleveland, Ohio (the “proposed site“). Middleburg Heights Nissan obtained a survey that showed the distance from the closest point of the property located at 28500 Lorain Road to the closest point of
[Middleburg Heights Nissan‘s] proposal to relocate to 13930 Brookpark Road presents [the Nissan Manufacturer] with the prospect of more of the same delays and failure by the Board to determine its own jurisdiction. [North Olmsted Nissan] has already threatened to protest any proposed relocation by [Middleburg Heights Nissan], presumably because it believes it can materially delay any approved relocation proposal by simply initiating a protest proceeding, regardless of whether it has any legal right to protest the relocation. The hearing examiner is apparently unwilling to address this standing question. Accordingly, because the Board failed to address the standing and jurisdiction issues in a timely way, [the Nissan Manufacturer] cannot and does not approve your request to relocate to 13930 Brookpark Road.
{10} On June 13, 2013, Middleburg Heights Nissan, filed a declaratory judgment action asking the trial court to declare that (1) the proper statutory interpretation of “further” as used in
{11} North Olmsted Nissan moved to dismiss Middleburg Heights Nissan‘s complaint, stating that the trial court lacked jurisdiction to entertain the complaint because there was no controversy between the parties, Middleburg Heights Nissan had failed to exhaust its administrative remedies, and the Nissan Manufacturer was a necessary party to the dispute. Thereafter, Middleburg Heights Nissan filed a motion for summary judgment on Count 1 of the complaint, to which North Olmsted Nissan responded with a cross-motion for summary judgment.
{12} On August 7, 2013, the trial court issued an order denying North Olmsted Nissan‘s motion to dismiss. The trial court found that there is a justiciable controversy between two parties that the legislative scheme did not contemplate the Board having jurisdiction to review. The trial court further held that the Nissan Manufacturer was not a necessary party to the action because North Olmsted Nissan does not seek any relief from the Nissan Manufacturer and the Nissan Manufacturer has no “legally protectable rights” relating to either count of Middleburg Heights Nissan‘s complaint. On August 15, 2013, North Olmsted Nissan filed a motion for reconsideration, or alternatively, motion to stay, which was denied.2
Assignments of Error
- Because Middleburg Heights Nissan lacks standing, the trial court did not have jurisdiction to issue its November 25, 2013 declaratory judgment and the order is void ab initio as a matter of law and the trial court erred in not declaring same.
- Assuming arguendo that this court determines that Middleburg Heights Nissan had the requisite standing, the trial court erred by declaring the word “further” as used in
R.C. 4517.50(C)(3) is defined as measured by a straight line from the closest point of an existing line-make new motor vehicle dealer to the closest point of a relocating line-make new motor vehicle dealer. - Because Middleburg Heights Nissan failed to exhaust its administrative remedies, the trial court erred in not dismissing the action.
- Because the board has exclusive jurisdiction, the trial court erred in not dismissing the action.
{14} For ease of discussion, we will address North Olmsted Nissan‘s assignments of error out of order.
{15} In North Olmsted Nissan‘s first assignment of error, it claims that the trial court did not have jurisdiction to review the complaint for declaratory judgment because Middleburg Heights Nissan did not have standing. As a result, North Olmsted Nissan argues that the court‘s order of November 25, 2013, granting declaratory judgment in favor of Middleburg Heights Nissan is void.
{16} Standing is a jurisdictional prerequisite that must be resolved in order for a trial court to adjudicate an action. Belvino L.L.C. v. Empson United States, 8th Dist. Cuyahoga No. 97305, 2012-Ohio-3074, ¶ 16, citing State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 77, 701 N.E.2d 1002 (1998). It is “‘part of the common understanding of what it takes to make a justiciable case.‘” Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 21, quoting Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). “[S]tanding is not a technical rule intended to keep aggrieved parties out of court.” Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 47. Rather, it is a “practical concept” that is utilized to prevent the litigation of nonjusticiable interests and to ensure that a real controversy is adjudicated. Id., citing Fort Trumbull Conservancy, L.L.C. v. Alves, 262 Conn. 480, 486, 815 A.2d 1188 (2003), quoting
{17} A justiciable matter is an actual controversy between parties. Pointe at Gateway Condo. Owner‘s Assn. v. Schmelzer, 8th Dist. Cuyahoga Nos. 98761 and 99130, 2013-Ohio-3615, ¶ 25, citing State ex rel. Barclays Bank PLC v. Hamilton Cty. Court of Common Pleas, 74 Ohio St.3d 536, 542, 660 N.E.2d 458 (1996). Declaratory judgment actions may be filed for the purposes of deciding an actual controversy. Mid-Am. Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142, ¶ 9. In order for a justiciable question to exist, the “threat” to a party‘s position “must be actual and genuine and not merely possible or remote.” Id., citing League for Preservation of Civil Rights v. Cincinnati, 64 Ohio App. 195, 197, 28 N.E.2d 660 (1st Dist.1940), quoting Borchard, Declaratory Judgments (1934) 40.
{18} The purpose of a declaratory judgment action is “to serve the useful end of disposing of uncertain or disputed obligations quickly and conclusively.” Moore at ¶ 46, quoting Ohio Farmers Indemn. Co. v. Chames, 170 Ohio St. 209, 213, 163 N.E.2d 367 (1959). To that end, courts construe the declaratory judgment statute liberally. Id. Issues of statutory interpretation can be properly presented in a complaint for declaratory judgment. See
{19} In order to obtain relief under the Declaratory Judgment Act,
{20} A trial court‘s determination regarding the justiciability of a declaratory judgment action is reviewed for an abuse of discretion. Arnott v. Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586, ¶ 13. An abuse of discretion suggests that a trial court‘s judgment is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Once a trial court determines that a matter is appropriate for declaratory judgment, its decision regarding the questions of law are reviewed de novo. Arnott.
{21} North Olmsted Nissan contends that Middleburg Heights Nissan does not have a justiciable controversy with North Olmsted Nissan because Middleburg Heights Nissan has admitted that the Nissan Manufacturer denied its request to relocate to 13930 Brookpark Road. North Olmsted Nissan argues that because there has already been a
{22} Middleburg Heights Nissan alleges, on the other hand, that (1) the Nissan Manufacturer‘s denial of its request to relocate to the proposed site was based upon North Olmsted Nissan‘s threat to protest, (2) North Olmsted Nissan‘s threat to continue to protest any relocation attempts made by Middleburg Heights Nissan creates a present and on-going dispute and is therefore an actual controversy, and (3) the matter can be resolved by the court‘s interpretation of “further” as defined in
{23} On August 7, 2013, the trial court denied North Olmsted Nissan‘s motion to dismiss Middleburg Heights Nissan‘s complaint for declaratory judgment, finding a substantive and justiciable controversy between the parties. The court determined that North Olmsted Nissan‘s “threatened protest can be resolved by [the] court defining [the] statutory meaning of ‘further’ and applying that definition to [Middleburg Heights Nissan‘s] new property in comparison to [North Olmsted Nissan‘s] property.” The court also found that the “real and substantial controversy [ ] will admit a decree conclusive in character.”
{24}
Except as provided in division (C) of this section, when a franchisor seeks to * * * relocate an existing new motor vehicle dealer at a location in a relevant market area where the same line-make of motor vehicle is then represented, the franchisor shall first give notice in writing, by certified mail, to the motor vehicle dealers board and to each franchisee of such line-make in the relevant market area of the franchisor‘s intention to * * * relocate an existing new motor vehicle dealer at a location in that relevant market area. * * * Within fifteen days after receiving the notice, or within fifteen days after the conclusion of any appeal procedure provided by the franchisor, whichever is later, the franchisee of the same line-make may file with the board a protest against the * * * relocation of the proposed new motor vehicle dealer. When such a protest has been filed, the board shall inform the franchisor that a timely protest has been filed and that a hearing is required pursuant to section 4517.57 of the Revised Code. * * *
{25} The notification requirement outlined above does not apply, however, when “[t]he relocation of an existing new motor vehicle dealer * * * relocates further from an existing line-make new motor vehicle dealer although the relocation is within the same line-make new motor vehicle dealer‘s relevant market area.” (Emphasis added.)
{27} The Nissan Manufacturer denied Middleburg Heights Nissan‘s request to relocate to 13930 Brookpark Road, based upon North Olmsted Nissan‘s threatened protest, stating that North Olmsted Nissan has already threatened to protest any proposed relocation by Middleburg Heights Nissan, “regardless of whether it has any legal right to protest the relocation.” The Nissan Manufacturer further stated that because the Board is unwilling to address the issue of whether North Olmsted Nissan has standing to protest Middleburg Heights Nissan‘s relocation request, “[The Nissan Manufacturer] cannot and does not approve [Middleburg Heights Nissan‘s] request to relocate to 13930 Brookpark Road.”
{28} Through this denial, the Nissan Manufacturer has made it clear that it will not approve any relocation requests made by Middleburg Heights Nissan because of
{29} North Olmsted Nissan provides that Middleburg Heights Nissan‘s claims of North Olmsted Nissan‘s “threatened protest” are merely hypothetical or speculative and are based on contingent events that have not occurred. As an example, it states that the proposed relocation site is currently occupied by another dealership, and therefore, 13930 Brookpark Road is not available to Middleburg Heights Nissan. North Olmsted Nissan further states that even if the site becomes available, Middleburg Heights Nissan must still seek and obtain approval from the Nissan Manufacturer for its relocation to that site once it becomes available, and there is no evidence that the Nissan Manufacturer would approve the relocation.
{30} As Middleburg Heights Nissan correctly notes, however, the controversy at issue in this matter is not whether Middleburg Heights Nissan may move to the proposed relocation site, as Middleburg Heights Nissan did not ask the trial court to approve its relocation. Rather, the controversy involves the interpretation and application of
{31} North Olmsted Nissan also argues that a declaratory judgment will not terminate the uncertainty or any controversy because the Nissan Manufacturer is not a party to the action. In its order denying North Olmsted Nissan‘s motion to dismiss, the trial court held that the Nissan Manufacturer was not a necessary party because Middleburg Heights Nissan is not seeking relief from the Nissan Manufacturer and this action would not bind the Nissan Manufacturer in any way, stating that “[the Nissan Manufacturer] has no legally protectable rights relating to either count [for] which [Middleburg Heights Nissan] has sought relief.”
{32} Under
{34} Here, Middleburg Heights Nissan‘s complaint for declaratory judgment does not seek any relief from the Nissan Manufacturer. Middleburg Heights Nissan is not asking the trial court to approve its relocation or to direct the Nissan Manufacturer to perform in any manner. Rather, Middleburg Heights Nissan is asking the trial court to interpret
{36} North Olmsted Nissan‘s first assignment of error is overruled.
Administrative Remedies and Board‘s Exclusive Jurisdiction
{37} In its third and fourth assignments of error, North Olmsted Nissan claims that the trial court erred in not dismissing Middleburg Heights Nissan‘s complaint because the Board has exclusive authority to determine relocation protests and Middleburg Heights Nissan failed to exhaust its administrative remedies. Because North Olmsted Nissan‘s third and fourth assignments of error address the trial court‘s alleged error in not dismissing Middleburg Heights Nissan‘s complaint and the claims are related, we will address them together.
{38} In its order denying North Olmsted Nissan‘s motion to dismiss Middleburg Heights Nissan‘s complaint, the trial court determined that Middleburg Heights Nissan‘s declaratory judgment action did not circumvent the administrative proceedings. The court found that the current action “relates to a different property[] and involves a controversy between two parties which the legislative scheme did not contemplate the [Motor Vehicle Dealers Board] having jurisdiction to hear.”
{39} A party filing a complaint for declaratory judgment must first exhaust any administrative remedies before invoking the jurisdiction of the common pleas court. Jones v. Chagrin Falls, 77 Ohio St.3d 456, 462, 674 N.E.2d 1388 (1997). The failure to
{40} A party is not required to exhaust administrative remedies, however, where there is no administrative remedy available. Kaufman v. Newburgh Hts., 26 Ohio St.2d 217, 271 N.E.2d 280 (1971). An administrative remedy would not be available, for instance, where an administrative body “lacks the authority to grant the relief sought.” State ex rel. Teamsters Local Union No. 436 v. Bd. of County Commrs., 132 Ohio St.3d 47, 2012-Ohio-1861, 969 N.E.2d 224, ¶ 24, quoting Nemazee v. Mt. Sinai Med. Ctr., 56 Ohio St.3d 109, 115, 564 N.E.2d 477 (1990).
{41} An administrative agency can exercise only the jurisdiction conferred upon it by statute. Time Warner AxS v. Pub. Util. Comm., 75 Ohio St.3d 229, 234, 661 N.E.2d 1097 (1996). In other words, an administrative agency has no authority beyond its statutorily delegated powers and may only exercise those powers the General Assembly expressly granted to it. Shell v. Ohio Veterinary Med. Licensing Bd., 105 Ohio St.3d 420, 2005-Ohio-2423, 827 N.E.2d 766, ¶ 32.
{42} The statute at issue in this case is
{¶43} North Olmsted Nissan‘s argument fails for several reasons. First, Middleburg Heights Nissan‘s complaint for declaratory judgment does not concern an ongoing relocation dispute. Rather, it seeks the trial court‘s interpretation of the meaning of “further” as stated in
{¶44} Finally, as the trial court states in its order denying North Olmsted Nissan‘s motion to dismiss, the original relocation protest concerned the property located at 13960 Brookpark Road. The protest concerning that property has been dismissed for mootness because the site is no longer available for a Nissan franchise. The current proposed site, however, which is the property at issue in Middleburg Heights Nissan‘s complaint, is 13930 Brookpark Road. The Nissan Manufacturer has stated that it will not approve this
{¶45} In light of the foregoing, we find that the trial court did not abuse its discretion in finding that Middleburg Heights Nissan did not fail to exhaust its administrative remedies because Middleburg Heights Nissan had no administrative remedy available to it. The Board therefore had no statutorily provided jurisdiction over Middleburg Heights Nissan‘s complaint for declaratory judgment.
{¶46} North Olmsted Nissan‘s third and fourth assignments of error are overruled.
Statutory Interpretation of R.C. 4517.50(C)(3)
{¶47} In its second assignment of error, North Olmsted Nissan claims that the trial court erred in declaring the word “further” as used in
{¶48} Statutory interpretation is a question of law that we review de novo. State v. Lindstrom, 8th Dist. Cuyahoga No. 96653, 2011-Ohio-6755, ¶ 8, citing State v. Sufronko, 105 Ohio App.3d 504, 506, 664 N.E.2d 596 (1995).
{¶49} The principal consideration with respect to the interpretation of a statute is the legislative intent. State v. Garner, 8th Dist. Cuyahoga Nos. 97948 and 97949, 2012-Ohio-3262, ¶ 10, citing State v. Jordan, 89 Ohio St.3d 488, 491, 733 N.E.2d 601 (2000). Courts must first look to the language of the statute itself in order to determine the legislative intent. Provident Bank v. Wood, 36 Ohio St.2d 101, 105, 298, 304 N.E.2d 378 (1973). When examining the actual language of a statute, words should be given their common and ordinary meaning unless the legislature has clearly expressed a contrary intention. Youngstown Club v. Porterfield, 21 Ohio St.2d 83, 86, 255 N.E.2d 262 (1970);
{¶50} If a statute is clear and unambiguous, the statute must be applied as written and no further interpretation is necessary. State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463, 465 (1996). The court must give effect to the words used in a statute, while avoiding “delet[ing] words used or insert[ing] words not used.” Bernardini v. Conneaut Area City School Dist. Bd. of Edn., 58 Ohio St.2d 1, 4, 387 N.E.2d 1222 (1979), quoting Columbus-Suburban Coach Lines v. Pub. Util. Comm., 20 Ohio St.2d 125, 127, 254 N.E.2d 8 (1969). A court may therefore interpret a statute only where the words of the statute are ambiguous. State ex rel. Celebrezze v. Allen Cty. Bd. of Commrs., 32 Ohio St.3d 24, 27, 512 N.E.2d 332 (1987).
{¶51} A statute is ambiguous if the language is susceptible to more than one reasonable interpretation. Cleveland Clinic Found. v. Bd. of Zoning Appeals, 8th Dist. Cuyahoga No. 98115, 2012-Ohio-6008, ¶ 21; State ex rel. Toledo Edison Co. v. Clyde, 76 Ohio St.3d 508, 513, 668 N.E.2d 498 (1996). If a statute is ambiguous, the court may consider several factors, including the object sought to be obtained, the legislative history,
{¶52} In order to clarify an ambiguity, statutory provisions must be read together in order to “provide[] the proper effect to each statute.” Blair v. Bd. of Trustees of Sugarcreek Twp., 132 Ohio St.3d 151, 2012-Ohio-2165, 970 N.E.2d 884, ¶ 18, quoting State ex rel. Cordray v. Midway Motor Sales, Inc., 122 Ohio St.3d 234, 2009-Ohio-2610, 910 N.E.2d 432, ¶ 25. In that regard, “[a]ll provisions of the Revised Code bearing upon the same subject matter should be construed harmoniously unless they are irreconcilable.” Id.
{¶53}
{¶54} The statute does not define the word “further.” The ordinary meaning of “further” has been defined in terms of distance. Webster‘s Unabridged Dictionary (2d Ed.1998) (defining “further” as “at or to a greater distance“). We must therefore
{¶55} Courts have generally favored the straight-line method of measurement in statutes that require distance to be measured but do not specify the method of measurement. In a case involving the interpretation of the proper measure of distance in a statute governing the weighing of motor vehicles, the Ohio Supreme Court reversed the court of appeals’ ruling that the phrase “within three miles” meant “road miles,” or drive distance. State v. Shepherd, 61 Ohio St.2d 328, 401 N.E.2d 934 (1980). In that case,
{¶56} Looking at the statute, the supreme court found the General Assembly‘s intent to be controlling, finding that the legislature deliberately chose the language “within three miles,” rather than the “use of an inflexible road mileage limitation” to
If the General Assembly had intended to require the use of road miles, it would have surely used a phrase more explicitly indicating that intent. The common understanding of the phrase “within three miles” is that it refers to straight-line distance.
{¶57} More recently, lower courts have adopted the straight-line method of measurement. In a case involving the interpretation of the phrase “within one thousand feet” contained within the residency restriction in
{¶58} This court has also adopted the straight-line measurement with respect to a non-competition agreement. Frederick D. Harris, M.D., Inc. v. Univ. Hosps., 8th Dist. Cuyahoga Nos. 76724 and 76785, 2002-Ohio-983. In that case, where the non-competition agreement did not specify the manner in which to measure the distance, we rejected the drive distance method of computing distance between two office locations, stating that “[c]ase law has been historically uniform in rejecting this theory and in holding that the correct way to measure the distance between locations is as the crow flies, or the straight-line approach used by a surveyor. Id. at ¶ 20.
{¶59} Significantly, an appellate court implicitly adopted the use of a straight-line method of measurement as it applied to a relocation protest under
{¶60} In Fleisher, Rouen Lincoln Mercury sold its dealership to Brondes Ford. Brondes then moved the Lincoln Mercury dealership to the Brondes Ford location. Both dealerships were within the relevant market area of another Lincoln Mercury dealership, which was owned by Robert Fleisher. Fleisher protested the relocation, alleging that Ford violated the statute by failing to provide Fleisher notice of the relocation. Ford obtained a straight-line measurement of the distance between Rouen Lincoln Mercury location and Brondes Ford, which revealed that the distance was .54 miles.
{¶61} Based upon this measurement, Ford moved to dismiss the protest. Relying on Ford‘s measurement and
{¶62} Additionally, in looking at the statute itself, we do not find that the language in the statute expressly indicates an intent to define “further” as measured by distance traveled, rather than straight-line measurement. And if the legislature had intended to require the use of road miles for purposes of applying the exception outlined in
{¶63} Moreover, the language in other parts of the statute suggests a straight-line measurement for distances between two locations.
{¶65} Finally, North Olmsted Nissan argues that industry standards establish that drive distance or travel time is the preferred method of measurement in the motor vehicle industry. In support of its argument, North Olmsted Nissan provided the expert testimony of John Matthews. This testimony, however, is irrelevant to the court‘s interpretation of
{¶66} Based upon the foregoing, we find that the trial court correctly interpreted
{¶67} Applying this definition to Middleburg Heights Nissan‘s proposed relocation site of 13930 Brookpark Road, we find that the trial court correctly concluded that the property located at 13930 Brookpark Road, Cleveland, Ohio, is “further” from North Olmsted Nissan‘s dealership at 28500 Lorain Road, North Olmsted, Ohio, than Middleburg Heights Nissan‘s current dealership located at 7168 Pearl Road, Middleburg Heights, Ohio. Middleburg Heights Nissan offered evidence that the distance, as measured by a straight line, from the closest point of the property located at 28500 Lorain Road to the closest point of the property located at 7168 Pearl Road is 7.43 miles. The evidence also showed that the distance from the closest point of the property located at 28500 Lorain Road to the closest point of the property located at 13930 Brookpark Road is 7.61 miles. North Olmsted Nissan did not dispute this evidence.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
TIM MCCORMACK, JUDGE
SEAN C. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR