Andy Mohr West, Inc. v. Office of the Indiana Secretary of State , 2015 Ind. App. LEXIS 578 ( 2015 )

FRIEDLANDER, Judge,

dissenting.

[24] I respectfully dissent. The Indiana Dealer Services statutes are undoubtedly inartful, but I am convinced that the Division’s interpretation is reasonable. Accordingly, I would defer to the Division’s interpretation of the statutes it is tasked with enforcing. See Chrysler Group, LLC v. Review Bd. of Ind. Dep’t of Workforce Dev., 960 N.E.2d 118, 124 (Ind.2012) (“we defer to the agency’s reasonable interpretation of such a statute even over an equally reasonable interpretation by another party”); Ind. Wholesale Wine & Liquor Co. v. State ex rel. Ind. Alcoholic Beverage Comm’n, 695 N.E.2d 99, 105 (Ind.1998) (once the reviewing court determined that the agency interpretation was reasonable, the court “should have terminated its analysis” and not addressed the reasonableness of other proposed interpretations).

[25] The majority finds that the purpose of thé relevant statutes is to maintain the status quo in a “given market” until the Division has had an opportunity to fully assess the impact of the proposed change in that market. Op. at 708. What is unclear to me is whether “given market” (as well as the majority’s other general market' references) is intended to be synonymous with the statutorily-defined term “relevant market area”. If it is, then I agree with my colleagues’ ■ general statement of legislative purpose.

[26] This1 purpose is satisfied by the Division’s interpretation of the' relevant statutes, which allows for review by the Division when an NMV dealer is establishing or relocating within' or into a relevant market area (i.e., whenever the status quo is affected in the relevant market area). The majority’s interpretation, on the other hand, does not provide for review of a proposed relocation within a relevant market area because' the relocating dealer is not a “proposed [NMV] dealer”.

[27] Pursuant to I.C. § 9-32-13-24(d), before a franchisor, such as Toyota, enters into a franchise establishing or relocating an NMV dealer “within a relevant market area” in which thé same line make is already represented, the franchisor must give'written notice to such existing dealer(s) of the franchisor’s “intention to establish an additional dealer or to relocate an existing dealer within that relevant market area”. Following notice, I:C. § 9-32-13-24(e) allows the existing dealer(s) to “bring a declaratory judgment action before the division to determine whether good cause exists for the establishing or relocating of a proposed' [NMV] dealer.”

[28] I.C. § 9-32-2-20 determines the relevant market area applicable in any given case, which is either a six- or ten-mile radius. The statute provides:

(1) With respect to a[n NMV] dealer who plans to relocate the dealer’s place of business in a county having a population of more, than one hundred thousand (100,000), the area within’ a radius of' six (6) miles of the. intended site of the relocated dealer....

(2) With respect to a:

,(A) proposed [NMV] dealer; or

(B) [NMV] dealer who plans to relocate the dealer’s place of business in a county having a population of not more than one hundred thousand (100,000);

the area within a radius of ten (10) miles of the intended site of the proposed or relocated dealer. The ten (10) mile distance shall be determined by. measuring the distance between the nearest surveyed boundary line of the existing [NMV] dealer’s principal place of business and the nearest surveyed boundary line of the proposed or relocated [NMV] dealer’s principal place of business.

[29] With respect to I.C. § 9-32-2-20(1), the majority interprets “in a county” to include only moves from one location to another location in the same county. Although the majority’s interpretation may be reasonable, the Division’s interpretation that “in a county” includes both relocations within a county and to a different county⁴ is also reasonable and, therefore, entitled to substantial deference. See Chrysler Group, LLC v. Review Bd. of Ind. Dep’t of Workforce Dev., 960 N.E.2d 118.

[30] Relying upon the legislative plan, the majority further concludes that a “proposed [NMV] dealer” under I.C. § 9-32-2-20(2)(A) is “a dealer that proposes to enter a market where that dealer is not already doing business.” Op. at 710. This definition, however, begs the essential question. What is the applicable relevant market area?

[31] Further, I agree with the Division that the majority’s interpretation is not consistent with the ordinary meaning of “proposed”. I.C. § 9-32-2-20(2) speaks of “proposed” dealers and “relocated” dealers, clearly implying that the former is a planned/projected dealer while the latter is an established/existing dealer. Similarly, the notice provision addresses a franchiser’s “intention to establish an additional dealer or to relocate an existing dealer”. I.C. § 9-32-13-24(d) (emphasis supplied).

[32] The Division’s interpretation of “proposed [NMV] dealer” is also consistent with the definition used in other states, such as Michigan and West Virginia. For example, Michigan defines a proposed NMV dealer as: “a person who has- an application pending for a new dealer agreement with a manufacturer or distributor. Proposed motor vehicle dealer does not include a person whose dealer agreement is being renewed or continued.” Mich. Comp. Laws Ann. § 445.1566(4). See also W. Va.Code Ann. § 17A-6A-3(13) (same definition).

' [33], Although both the West Virginia and Michigan statutes expressly differentiate between a proposed dealer and a relocating dealer, their statutes regarding notice and the right to declaratory action are virtually identical to ours. Specifically, notice must be given to same line-make dealers in a relevant, market area of a manufacturer/distributor’s intention to “establish an additional dealer” or to “relocate an existing dealer” within the same relevant market area. Mich. Comp. Laws Ann. § 445.1576(2); W. Va.Code Ann. § 17A-6A-12(2). Following notice, affected dealers have the right to bring a declaratory judgment action to “determine whether good cause exists for the establishing or relocating of a proposed [NMV] dealer.” Mich. , Comp. Laws Ann. § 445.1576(3) (emphasis supplied). See also W. Va.Code Ann. § 17A-6A-12(3).

[34] The reference to proposed NMV dealer in Mich. Comp. Laws Ann. § 445.1576(3) and W. Va.Code Ann. § 17A-6A-12(3) is, of course, perplexing, as the express statutory definitions necessarily foreclose the possibility of a proposed NMV dealer relocating. Further, a strict reading leads to the absurd result that although entitled to notice óf a planned relocation, an affected dealer is not entitled to bring a declaratory judgment action because the relocating dealer is not a proposed NMV dealer. Despite the puzzling (and seemingly mistaken) reference to proposed NMV dealer in the Michigan statute, however, the right to protest has been applied “equally to new dealerships and dealerships that .are relocating to a new location.” Chrysler Group LLC v. Fox Hills Motor Sales, Inc., 776 F.3d 411, 425 n. 9 (6th Cir.2015).

[35] The majority’s interpretation of the non-statutorily-defined term and its reliance upon the imprecise language of I.C. § 9-32-13-24(e) leads to similarly troubling results. That is, an existing dealer—though clearly entitled to notice— has no protest rights with respect to an intra-county relocation into the existing dealer’s relevant market area because the move would not involve “the establishing or relocating of a proposed [NMV] dealer”. I.C. § 9-32-13-24(e) (emphasis supplied). This, of course, renders the definitions of relevant market area contained in I.C. § 9-32-2-20(1) and (2)(B) effectively useless. The majority’s interpretation also makes meaningless I.C. § 9-32-13-24(a) and (c), which address relocations within a given market area. As already observed, intra-market relocations are never subject to the declaratory judgment provision when'the majority’s analysis is taken to its logical conclusion. This could not have been the intent of the legislature.

[36] In my mind, the clear intent of I.C. § 9-32-13-24 is to provide protest rights to affected NMV dealers regardless of whether the franchisor intends to relocate an existing dealer in/to/within the relevant market area or 'establish an entirely new dealer in the relevant ’ market area. The' applicable relevant • market area, in turn, determines which dealers have protest rights.

[37] Under its reasonable interpretation of the relevant statutes, the Division determined that the applicable relevant market, area in this case was the six-mile radius set out in I.C. § 9-32-2-20(1). The Dealers do not dispute that they are outside this area. Accordingly, I would affirm the trial court’s judgment based upon lack of standing.

4 . In other words, the focus is oh thé county of destination and its attendant population.