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Nissan North America, Inc. v. Tillman

Supreme Court of Mississippi

June 6, 2019

NISSAN NORTH AMERICA, INC.
v.
ANN C. TILLMAN AND GREAT RIVER NISSAN, LLC d/b/a GREAT RIVER NISSAN

          DATE OF JUDGMENT: 03/19/2018

          ADAMS COUNTY CHANCERY COURT, HON. E. VINCENT DAVIS JUDGE.

          TRIAL COURT ATTORNEYS: GLENN GATES TAYLOR CHRISTY M. SPARKS R. KENT HUDSON CHRISTOPHER C. GENOVESE S. KEITH HUTTO JASON H. STRONG.

          ATTORNEYS FOR APPELLANT: JASON H. STRONG S. KEITH HUTTO CHRISTOPHER C. GENOVESE.

          ATTORNEYS FOR APPELLEES: GLENN GATES TAYLOR CHRISTY M. SPARKS R. KENT HUDSON.

          BEFORE KING, P.J., COLEMAN AND BEAM, JJ.

          COLEMAN, JUSTICE.

         ¶1. The present appeal involves a dispute between an automobile manufacturer and a dealership. The Court must determine whether the dealer timely filed a complaint under Mississippi Code Section 63-17-73(1)(d)(iii) after the dealer received the manufacturer's notice that it would terminate the applicable dealership agreement. In determining timeliness, the Court must decide whether the statute's phrase "within the sixty-day notice period" refers to the sixty days following a dealer's receipt of its notice of termination or the sixty days within the effective date of termination.

         STATEMENT OF THE CASE

         ¶2. The parties agree that Section 63-17-73(1)(d)(iii) requires an automobile manufacturer seeking to terminate a dealership agreement to provide a notice of termination to its dealer at least sixty days before the effective date of termination. The parties also agree that Section 63-17-73(1)(d)(iii) provides a dealer an opportunity to challenge a notice of termination by filing a verified complaint with the Mississippi Motor Vehicle Commission. The parties dispute, however, the period of time in which a dealer is required to file a complaint under Section 63-17-73(1)(d)(iii) challenging the notice of termination. Section 63-17-73(1)(d)(iii) provides that

It is unlawful and a misdemeanor:
(d) For a manufacturer, a distributor, a wholesaler, a distributor branch or division, a factory branch or division, or a wholesaler branch or division, or officer, agent or other representative thereof:
(iii) To terminate or cancel the franchise or selling agreement of any dealer without due cause. The nonrenewal of a franchise or selling agreement, without due cause, shall constitute an unfair termination or cancellation, regardless of the terms or provisions of such franchise or selling agreement. "Due cause" shall be defined as a breach by the dealer of a material provision of the franchise agreement which breach has not been cured within a reasonable time after the dealer has been given written notice of the breach. The burden of proving that due cause exists shall be upon the party attempting to terminate, cancel or not renew the franchise or selling agreement. The manufacturer, distributor, wholesaler, distributor branch or division, factory branch or division, or wholesaler branch or division, or officer, agent or other representative thereof shall notify a motor vehicle dealer in writing, and forward a copy of the notice to the commission, of the termination or cancellation of the franchise or selling agreement of the dealer at least sixty (60) days before the effective date thereof, stating the specific grounds for such termination or cancellation. The manufacturer, distributor, wholesaler, distributor branch or division, factory branch or division, or wholesaler branch or division, or officer, agent or other representative thereof shall notify a motor vehicle dealer in writing, and forward a copy of the notice to the commission, at least sixty (60) days before the contractual term of his franchise or selling agreement expires that the franchise or selling agreement will not be renewed, stating the specific grounds for the nonrenewal, in those cases where there is no intention to renew the franchise or selling agreement. In no event shall the contractual term of any franchise or selling agreement expire, without the written consent of the motor vehicle dealer involved, prior to the expiration of at least sixty (60) days following such written notice. Any motor vehicle dealer who receives written notice that his franchise or selling agreement is being terminated or cancelled or who receives written notice that his franchise or selling agreement will not be renewed, may, within the sixty-day notice period, file with the commission a verified complaint for its determination as to whether the termination or cancellation or nonrenewal is unfair within the purview of the Mississippi Motor Vehicle Commission Law, and the franchise agreement shall continue in effect until final determination of the issues raised in the complaint notwithstanding anything to the contrary contained in the law or in the franchise or selling agreement.

Miss. Code. Ann. § 63-17-73(1)(d)(iii) (Supp. 2018) (emphasis added).

         FACTS AND PROCEDURAL HISTORY

         ¶3. Ann C. Tillman is the principal owner of Great River Nissan, [1] a locally owned and operated Nissan dealership in Natchez, Mississippi. On November 23, 2016, Nissan North America, Inc., notified Great River that it would terminate its dealership agreement with Great River based on unsatisfactory sales, among other reasons. Although at least sixty days' notice is required before the effective date of termination under Section 63-17-73(1)(d)(iii), Nissan and Great River's dealership agreement required at least ninety days' notice. Accordingly, Nissan advised Great River that the dealership agreement would be terminated effective ninety days from the date of Great River's receipt of the notice; therefore, the effective date of termination was set for February 21, 2017.

         ¶4. On February 17, 2017, Great River challenged the notice of termination by filing a verified complaint with the Commission under Section 63-17-73(1)(d)(iii). Nissan filed a motion to dismiss the complaint as untimely, claiming that the deadline to file the complaint with the Commission was within sixty days after Great River had received the notice of termination, not within sixty days of the effective date of the termination. Great River responded, arguing that its complaint was timely because it had been filed within sixty days before the effective date of termination.

         ¶5. The Commission held a hearing on the matter. The Commission found that Great River had received a notice of termination letter on November 23, 2016, and that Great River filed its complaint on February 17, 2017. The Commission found that Great River had "filed its [v]erified [c]omplaint outside the statutory window of sixty (60) days to file ...


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