{ "id": 11917624, "name": "AL SMITH BUICK CO., INC., d/b/a Al Smith Mazda v. MAZDA MOTOR OF AMERICA, INC., and CARY AUTO INVESTORS COMPANY", "name_abbreviation": "Al Smith Buick Co. v. Mazda Motor of America, Inc.", "decision_date": "1996-05-21", "docket_number": "No. COA95-814", "first_page": "429", "last_page": "436", "citations": [ { "type": "official", "cite": "122 N.C. App. 429" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "82 ALR4th 624", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "87 ALR2d 271", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": -1 }, { "cite": "260 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "253" } ], "opinion_index": 0 }, { "cite": "296 N.C. 367", "category": "reporters:state", "reporter": "N.C.", "year": 1979, "pin_cites": [ { "page": "361" } ], "opinion_index": 0 }, { "cite": "163 S.E.2d 775", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "781", "parenthetical": "title of bill is \"a legislative declaration of the tenor and object of the Act\"" } ], "opinion_index": 0 }, { "cite": "274 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560423 ], "year": 1968, "pin_cites": [ { "page": "406", "parenthetical": "title of bill is \"a legislative declaration of the tenor and object of the Act\"" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0398-01" ] }, { "cite": "338 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "117-18" }, { "page": "117" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 521", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522541 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "524-25" }, { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0521-01" ] }, { "cite": "388 S.E.2d 134", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "140" } ], "opinion_index": 0 }, { "cite": "326 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307411 ], "year": 1990, "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0205-01" ] }, { "cite": "128 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1963, "pin_cites": [ { "page": "871", "parenthetical": "declaratory ruling binding when there has been no exception by either party" } ], "opinion_index": 0 }, { "cite": "258 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560854 ], "year": 1963, "pin_cites": [ { "page": "375", "parenthetical": "declaratory ruling binding when there has been no exception by either party" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0371-01" ] }, { "cite": "458 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "753" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 535", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916343 ], "year": 1995, "pin_cites": [ { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0535-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-286", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(13b)" }, { "page": "(13b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-305", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(5)" }, { "page": "(5)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 667, "char_count": 15657, "ocr_confidence": 0.767, "pagerank": { "raw": 4.023823304190357e-07, "percentile": 0.9067364545191631 }, "sha256": "b18dd21c295932924b60785593797506f558d04c5cc01c1e235cc56c06e4a08c", "simhash": "1:91d9c064242f00a4", "word_count": 2543 }, "last_updated": "2023-07-14T15:39:52.508825+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN, Mark D. and SMITH concur." ], "parties": [ "AL SMITH BUICK CO., INC., d/b/a Al Smith Mazda v. MAZDA MOTOR OF AMERICA, INC., and CARY AUTO INVESTORS COMPANY" ], "opinions": [ { "text": "GREENE, Judge.\nA1 Smith Buick Co., Inc., d/b/a A1 Smith Mazda (A1 Smith) appeals from the trial court\u2019s order filed 4 May 1995, which affirmed the order of the Commissioner of the North Carolina Division of Motor Vehicles (Commissioner) which authorized Mazda Motor of America, Inc. (Mazda) to establish a dealership in Cary, North Carolina.\nOn 5 March 1990, Mazda notified A1 Smith, pursuant to N.C. Gen. Stat. \u00a7 20-305(5), of its intent to enter a franchise agreement, establishing a new Mazda dealership in Cary, North Carolina. A1 Smith filed a petition protesting the new dealership with the Commissioner on 30 March 1990, pursuant to N.C. Gen. Stat. \u00a7 20-305(5). On 12 July 1990, A1 Smith and Mazda entered a consent order settling A1 Smith\u2019s protest petition. The consent order provided that:\nA. . . . A1 Smith Buick agrees that Mazda and/or Mazda\u2019s designated representative or authorized dealers may commence at any time prior to July 1, 1991, any and all pre-opening activities and preparations relating to the new dealership, including but not limited to, the construction of the new dealership facilities and advertising relating to the new dealership.\nB. A1 Smith Buick will not file any further administrative protest or lawsuit or initiate any further administrative or legal proceeding pertaining to or arising from the pre-opening activities and preparations or the establishment of the new dealership and will not oppose in any other way the pre-opening activities and preparations or the establishment of the new dealership.\nC. Mazda is hereby authorized to establish the Cary, North Carolina dealership pursuant to the terms of this Consent Order.\nBecause Mazda had not \u201cobtained a license from the Commissioner at the relevant site ... or actually commenced operations\u201d there, A1 Smith filed a request for a declaratory ruling with the Commissioner on 7 July 1993 requesting the Commissioner to determine whether, \u201cin light of the given state of facts,\u201d Mazda must provide notice to A1 Smith and \u201cafford A1 Smith the opportunity to file a petition with the Commissioner protesting the establishment of said dealership and requesting a hearing before the Commissioner at which it will be determined whether good cause currently exists for the establishment of such dealership.\u201d\nThe Commissioner ruled on 16 August 1993 that the 1990 consent order \u201cceased to be effective after a reasonable period of time had elapsed during which time the proposed Cary dealership was not constructed or licensed by the North Carolina Division of Motor Vehicles and no Mazda vehicles were sold at said facility.\u201d The Commissioner then stated that a \u201creasonable period\u201d is two years and a reasonable period of time had expired by 7 July 1993. The Commissioner then ruled:\n5. The 1990 determination, which was entered with the consent of both A1 Smith and Mazda, does not bar A1 Smith from initiating the present request for a declaratory ruling or from filing a protest before the Commissioner to Mazda\u2019s intention to establish an additional dealership under G.S. 20-305(5) based upon the given state of facts presented above so long as said dealership has A1 Smith within' its relevant market area.\nMazda appeared and presented argument at the hearing for declaratory judgment, was served with a copy of the declaratory ruling and did not appeal from that ruling.\nOn 15 December 1993, A1 Smith received a new notice that Mazda intended to establish a new dealership in Cary, which A1 Smith considered its \u201crelevant market area,\u201d and A1 Smith filed a protest petition with the Commissioner on 12 January 1994. On 29 August 1994, the Commissioner determined that the 1993 declaratory ruling\nprovided that any determination made by the Commissioner in the July, 1990 Consent Order could not bind the Commissioner for more than a reasonable time and that a reasonable time had expired since the Consent Order was entered. The request for declaratory ruling did not request a finding that, and the declaratory ruling did not provide that, the separate contractual undertakings between A1 Smith and Mazda expired after this reasonable time.\nAccordingly, the Commissioner stated that the 1990 Consent Order precluded A1 Smith from \u201cpursu[ing] further legal challenges to the establishment of Mazda\u2019s Cary dealership.\u201d The Commissioner also concluded that \u201c[i]f A1 Smith is not within the relevant market area, Mazda is entitled to have the protest proceeding dismissed on this separate and independent ground\u201d because A1 Smith would have no standing to bring this protest. It is not disputed that A1 Smith is \u201clocated more than 10 miles from\u201d the site of the proposed dealership. The Commissioner concluded that the \u201cproper procedure under N.C. Gen. Stat. \u00a7 20-286(13b)\u201d for determining \u201crelevant market area\u201d is to:\ni) identify the location of the proposed site;\nii) identify all United States census tracts wholly or partially within a ten-mile radius from the proposed dealership site;\niii) determine the total population for each such census tract as determined in accordance with the most recent population update of NPDC or a similar recognized source; and\niv) to accumulate the population.\nThe Commissioner further stated in his conclusion that \u201c[t]he statutory directive to accumulate population directs that the entire population of all tracts wholly or partially within a ten-mile radius of the dealership be added together.\u201d Finally the Commissioner concluded that when properly measuring population in the ten mile radius of the proposed new dealership, the population exceeds 250,000 and that A1 Smith is, therefore, \u201clocated outside the relevant market area of the proposed Cary Mazda dealership\u201d and \u201clacks standing to challenge\u201d the proposed dealership.\nThe issues are (I) whether the 1993 declaratory ruling permits A1 Smith to file a protest with the Commissioner with regard to Mazda\u2019s intention to establish an additional motor vehicle dealership within A1 Smith\u2019s market area; and if so, (II) whether the determination of the \u201crelevant market area,\u201d as that term is used in N.C. Gen. Stat. \u00a7 20-286(13b), requires the counting of the entire population in a census tract when only a portion of that tract is located within a designated radius of the proposed site of the additional new motor vehicle dealership.\nBecause both issues present questions of law, our review is de novo. N.C.G.S. \u00a7 20-305.3 (1993) (review and appeal pursuant to Chapter 150B); N.C.G.S. \u00a7 150B-51(b) (1995); Williams v. North Carolina Dept. of Economic and Community Dev., 119 N.C. App. 535, 539, 458 S.E.2d 750, 753 (1995).\nI\nMazda argues that A1 Smith is barred by the 1990 consent order from contesting the establishment of a new Mazda dealership in Cary. We disagree. The continued viability of the consent order was addressed in the 1993 declaratory ruling. That ruling held that A1 Smith was not barred from \u201cfiling a protest before the Commissioner to Mazda\u2019s intention to establish an additional dealership under G.S. 20-305(5) ... so long as said dealership has A1 Smith within its relevant market area.\u201d Mazda did not appeal from that ruling and cannot now complain about it. See Poindexter v. Wachovia Bank & Trust Co., 258 N.C. 371, 375, 128 S.E.2d 867, 871 (1963) (declaratory ruling binding when there has been no exception by either party). Thus the law of this case is that the consent decree ceased to be effective because two years had expired after the signing of the consent decree and Mazda had not yet constructed the proposed dealership nor had it been licensed by the North Carolina Division of Motor Vehicles. The 1994 ruling of the Commissioner, therefore, that A1 Smith was precluded from \u201cpursufing] further legal challenges to the establishment of Mazda\u2019s Cary dealership\u201d was error.\nII\nThe statutes relevant to this case provide that a car manufacturer may not enter a franchise agreement with a new dealership, if the new dealership lies within the relevant market area of an existing dealer who deals in the same \u201cline make\u201d without first notifying the Commissioner and the dealer in writing. N.C.G.S. \u00a7 20-305(5) (Supp. 1995). The existing dealer then has the right to a hearing, by the Commissioner, to determine whether \u201cthere is good cause\u201d for an additional dealership. Id. At the time of Mazda\u2019s 1993 notice to A1 Smith, \u201crelevant market area\u201d was defined as a ten mile radius if the \u201cpopulation in an area within a radius of 10 miles around the proposed site is 250,000\u201d after determining population. N.C.G.S. \u00a7 20-286(13b) (1993). In measuring population:\nthe most recent census by the U.S. Bureau of the Census or the most recent population update either from the National Planning Data Corporation or other similar recognized source shall be accumulated for all census tracts either wholly or partially within the relevant market area.\nId.\nA1 Smith argues that section 20-286(13b) \u201cmakes clear that partially included census tracts may not be ignored, not that population outside the [radius] must be counted as falling within the [radius].\u201d In other words, only the population of a census tract within the relevant radius of the site is to be included in determining the population of the market area. Mazda, however, argues that \u201c[s]ection 20-286(13b) mandates, simply and unambiguously, that the population shall be \u2018accumulated,\u2019 not . . . \u2018apportioned\u2019 \u201d and that A1 Smith\u2019s method involves apportioning population instead of accumulating population. In other words, the entire population of any census tract, if any part of it is within the relevant radius of the site, must be included in determining the population of the market area.\nBoth contentions are reasonable. The legislature has stated unequivocally that only the population \u201cwithin\u201d a relevant radius of the site is to be determined. N.C.G.S. \u00a7 20-286(13b)(a). At the same time, Mazda argues that the language in the statute can be read to state that in determining the population \u201cwithin\u201d the radius, the population outside the radius must be counted to the extent a census tract partially within the radius extends beyond that radius. N.C.G.S. \u00a7 20-286(13b). It is also, however, reasonable to read, as A1 Smith suggests, the statute as stating that when a census tract lies partially outside the radius, the Commissioner is not to disregard that tract in its entirety but is to include the population of that portion of the census tract that lies within the radius.\nWhen a statute contains an ambiguity, as this statute does, our Court must construe the statute to arrive at the intent of the legislature. Burgess v. Your House of Raleigh, 326 N.C. 205, 215, 388 S.E.2d 134, 140 (1990). Legislative intent may be ascertained from amendments to the statute. General Motors Corp. v. Kinlaw, 78 N.C. App. 521, 524-25, 338 S.E.2d 114, 117-18 (1985). In 1995, the legislature enacted a bill entitled: \u201cAn Act to Clarify the Definition of the Term \u2018Relevant Market Area\u2019 in the Motor Vehicle Dealers and Manufacturers Licensing Law.\u201d 1995 N.C. Sess. Laws ch. 234, \u00a7 1. This act did not change any substantive language in section 20-286(13b), but inserted the following language at the end of subsection 13b:\nIn accumulating population for this definition, block group and block level data shall be used to apportion the population of census tracts which are only partially within the relevant market area so that population outside of the applicable radius is not included in the count.\nN.C.G.S. \u00a7 20-286(13b) (Supp. 1995). Although the bill amending section 20-286(13b) states that it \u201cdoes not affect litigation pending at the time of its enactment. . . portions of the amendment!] are [nevertheless] helpful in ascertaining the intent of the legislature in enacting the original version.\u201d General Motors Corp., 78 N.C. App. at 524, 338 S.E.2d at 117. This new amendment plainly reveals the intent of the legislature to exclude population outside the designated radius and indicates an intent to clarify the earlier version of the statute. See id.-, see also Sykes v. Clayton, Comm\u2019r of Revenue, 274 N.C. 398, 406, 163 S.E.2d 775, 781 (1968) (title of bill is \u201ca legislative declaration of the tenor and object of the Act\u201d). Therefore, the pre-amendment version of section 20-286(13b) must be construed consistent with the 1995 amendment and population determined in accordance therewith.\nAccordingly, the Commissioner erred in his conclusion to include population lying outside the ten mile radius when determining \u201crelevant market area.\u201d This matter is remanded for a determination of the \u201crelevant market area\u201d using the proper method of measuring population.\nReversed and remanded.\nJudges MARTIN, Mark D. and SMITH concur.\n. Even if we accept Mazda\u2019s argument that the statute stating how the population is to be counted is not ambiguous and requires the counting of the population in the entire census tract, even if partially outside the radius, this reading of the statute violates the manifest intent of the legislature, as revealed by the language requiring the determination of population \u201cwithin\u201d a relevant radius. Thus, we would be required to interpret and apply the statute consistent with the intent of the legislature. See Mazda Motors v. Southwestern Motors, 296 N.C. 367, 361, 260 S.E.2d 260, 253 (1979); 2A Norman J. Singer, Sutherland Statutory Construction \u00a7 46.07 (5th ed. rev. vol. 1992).", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Johnson, Mercer, Hearn & Vinegar, PLLC, by Richard J. Vinegar and Shawn D. Mercer, for appellant Al Smith Buick Co., Inc. d/b/a Al Smith Mazda.", "Smith Helms Mulliss & Moore, L.L.P., by James L. Gale and Mary M. Dillon, for appellee Mazda Motor of America, Inc.", "Moore & Van Allen, PLLC, by David E. Fox and Robert A. Meynardie, for intervenor Cary Auto Investors Company." ], "corrections": "", "head_matter": "AL SMITH BUICK CO., INC., d/b/a Al Smith Mazda v. MAZDA MOTOR OF AMERICA, INC., and CARY AUTO INVESTORS COMPANY\nNo. COA95-814\n(Filed 21 May 1996)\n1. Appeal and Error \u00a7 555 (NCI4th)\u2014 1990 consent order\u2014 1993 declaratory judgment \u2014 1990 consent order no longer applicable\nPlaintiff automobile dealer was not barred by a 1990 consent order between the parties whereby plaintiff agreed not to protest defendant\u2019s intention to establish an additional dealership in the area, since a 1993 declaratory ruling held that plaintiff was not barred from filing a protest so long as the intended new dealership was within plaintiff\u2019s relevant market area because a reasonable time had passed from the signing of the consent order and no new dealership had been built, and that ruling became the law of the case since defendant did not appeal therefrom.\nAm Jur 2d, Appellate Review \u00a7\u00a7 605-613.\nErroneous decision as law of the case on subsequent appellate review. 87 ALR2d 271.\n2. Automobiles and Other Vehicles \u00a7 181 (NCI4th)\u2014 new dealership \u2014 relevant market area \u2014 method of determining population \u2014 Commissioner\u2019s error\nThe Commissioner of Motor Vehicles erred in concluding that the \u201crelevant market area,\u201d as that term is used in N.C.G.S. \u00a7 20-286(13b), required the counting of the entire population in a census tract when only a portion of that tract is located within a designated radius of the proposed site of a new motor vehicle dealership.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 394, 395; Private Franchise Contracts \u00a7 581.\nValidity, construction, and application of state statutes regulating dealings between automobile manufacturers, dealers, and franchisees. 82 ALR4th 624.\nAppeal by Al Smith Buick Co., Inc., d/b/a Al Smith Mazda from order filed 4 May 1995 in Wake County Superior Court by Judge Stafford G. Bullock. Heard in the Court of Appeals 17 April 1996.\nJohnson, Mercer, Hearn & Vinegar, PLLC, by Richard J. Vinegar and Shawn D. Mercer, for appellant Al Smith Buick Co., Inc. d/b/a Al Smith Mazda.\nSmith Helms Mulliss & Moore, L.L.P., by James L. Gale and Mary M. Dillon, for appellee Mazda Motor of America, Inc.\nMoore & Van Allen, PLLC, by David E. Fox and Robert A. Meynardie, for intervenor Cary Auto Investors Company." }, "file_name": "0429-01", "first_page_order": 465, "last_page_order": 472 }