{ "id": 2550599, "name": "NISSAN DIVISION OF NISSAN MOTOR CORPORATION IN U.S.A. v. FRED ANDERSON NISSAN, PAUL S. MEEKER and MEEKER LINCOLN-MERCURY, INC", "name_abbreviation": "Nissan Division v. Nissan", "decision_date": "1994-07-29", "docket_number": "No. 422PA93", "first_page": "424", "last_page": "430", "citations": [ { "type": "official", "cite": "337 N.C. 424" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "434 S.E.2d 224", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": -1 }, { "cite": "111 N.C. App. 748", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523802 ], "year": 1993, "opinion_index": -1, "case_paths": [ "/nc-app/111/0748-01" ] }, { "cite": "311 U.S. 15", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6136617 ], "weight": 2, "year": 1940, "pin_cites": [ { "page": "16", "parenthetical": "reasoning that Congress had drawn a \"distinction . . . between the provision explicitly stating the condition precedent to the right to sue and the provision as to the manner of serving notice\"" }, { "page": "14", "parenthetical": "reasoning that Congress had drawn a \"distinction . . . between the provision explicitly stating the condition precedent to the right to sue and the provision as to the manner of serving notice\"" } ], "opinion_index": 0, "case_paths": [ "/us/311/0015-01" ] }, { "cite": "401 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "102 N.C. App. 222", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523084 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/102/0222-01" ] }, { "cite": "84 S.E. 21", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1915, "opinion_index": 0 }, { "cite": "168 N.C. 16", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656813 ], "year": 1915, "opinion_index": 0, "case_paths": [ "/nc/168/0016-01" ] }, { "cite": "159 S.E.2d 539", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 20", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574301 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0020-01" ] }, { "cite": "235 S.E.2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561424 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0067-01" ] }, { "cite": "876 F.2d 30", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10527710 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/f2d/876/0030-01" ] }, { "cite": "957 F.2d 406", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10520124 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/f2d/957/0406-01" ] }, { "cite": "434 S.E.2d 224", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "229" }, { "page": "229" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 748", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523802 ], "year": 1993, "pin_cites": [ { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0748-01" ] }, { "cite": "250 S.E.2d 250", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 1 }, { "cite": "296 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566069 ], "year": 1979, "opinion_index": 1, "case_paths": [ "/nc/296/0357-01" ] }, { "cite": "243 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 1 }, { "cite": "36 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550833 ], "year": 1978, "opinion_index": 1, "case_paths": [ "/nc-app/36/0001-01" ] }, { "cite": "317 S.E.2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "311 N.C. 311", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4680263 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc/311/0311-01" ] }, { "cite": "434 S.E.2d 224", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "229" } ], "opinion_index": 1 }, { "cite": "111 N.C. App. 748", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523802 ], "year": 1993, "pin_cites": [ { "page": "756" } ], "opinion_index": 1, "case_paths": [ "/nc-app/111/0748-01" ] } ], "analysis": { "cardinality": 653, "char_count": 15217, "ocr_confidence": 0.738, "pagerank": { "raw": 7.052393210097117e-08, "percentile": 0.4252437111198375 }, "sha256": "e364746c958269585edeb5afa7ce67d5ffa010c5febb403b8d35aa5d8d670799", "simhash": "1:a6bbacf5412f87df", "word_count": 2398 }, "last_updated": "2023-07-14T21:06:06.194618+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NISSAN DIVISION OF NISSAN MOTOR CORPORATION IN U.S.A. v. FRED ANDERSON NISSAN, PAUL S. MEEKER and MEEKER LINCOLN-MERCURY, INC." ], "opinions": [ { "text": "MITCHELL, Justice.\nThe controlling facts in this case are not in dispute. In December of 1981, Fred Anderson Nissan (hereinafter \u201cAnderson\u201d) entered into a \u201cNissan Dealer Sales and Service Agreement\u201d (hereinafter \u201cagreement\u201d) with the Nissan Division of Nissan Motor Corporation. Under the terms of the agreement, Anderson was to obtain written consent from Nissan prior to relocating the dealership.\nIn March of 1991, Anderson learned that Paul Meeker, the owner and sales operator of Meeker Lincoln-Mercury, Inc., was interested in selling his facility located at 252 Patton Avenue in Asheville, North Carolina. On 24 May 1991, Anderson, having outgrown its location at 585 Tunnel Road in Asheville, entered into an \u201cAsset Sales Agree-merit\u201d with Meeker, which would have enabled Anderson to move to the Patton Avenue site. This agreement was conditioned on Anderson\u2019s ability to obtain approval from Nissan for the relocation. Nissan, having heard of Anderson\u2019s relocation plans, sent Anderson a letter dated 24 May 1991 informing the dealership that it opposed the move. Anderson replied by letter dated 29 May 1991 that it was merely considering the relocation. Then, on 3 July 1991, Nissan again informed Anderson by letter that it opposed the relocation.\nOn 3 October 1991, pursuant to N.C.G.S. \u00a7 20-305(4), Anderson\u2019s general manager personally delivered written notice to Nissan of Anderson\u2019s intention to relocate. Nissan continued to oppose the relocation. Nissan sent its notice of objection by Federal Express within the 30-day period prescribed by N.C.G.S. \u00a7 20-305(4).\nOn 27 November 1991, Anderson filed a petition for a hearing with the Commissioner of Motor Vehicles. See N.C.G.S. \u00a7 20-305(4) (1993). In its petition, Anderson alleged that Nissan\u2019s objection to Anderson\u2019s proposed dealership relocation was invalid under N.C.G.S. \u00a7 20-305(4) since it was delivered by private delivery service rather than U.S. Mail. Anderson also moved for summary judgment, contending that Nissan had waived any objection to the relocation by failing to serve Anderson with proper notice. The hearing officer granted Anderson\u2019s motion for summary judgment on the basis that Nissan\u2019s service of notice by private delivery service was insufficient. Nissan appealed to the Superior Court, Wake County, and on 13 April 1992 Judge Donald W. Stephens affirmed the hearing officer\u2019s decision granting Anderson\u2019s motion for summary judgment.\nNissan appealed to the Court of Appeals which reversed the decision of the Superior Court. The majority concluded that \u201cwhere the controlling statute does not specifically require United States mail, delivery by Federal Express, which provides a signed receipt verifying delivery, is registered mail within the meaning of the statute.\u201d Nissan Motor Corp. v. Fred Anderson Nissan, 111 N.C. App. 748, 756, 434 S.E.2d 224, 229 (1993). Judge Wells did not \u201cagree that the General Assembly intended to include Federal Express mail\u201d under N.C.G.S. \u00a7 20-305(4). Id. at 757, 434 S.E.2d at 229. Judge Wells nevertheless concurred, reasoning that it was unnecessary even to consider that question since he could not \u201cdiscern any harm or prejudice to [Anderson] from [Nissan\u2019s] failure to follow the statutory directive in sending its letter.\u201d Id. We reverse.\nAnderson contends that the Court of Appeals erroneously concluded that notice by a private delivery service that provides a signed receipt constitutes \u201cregistered or certified mail, return receipt requested\u201d in accordance with N.C.G.S. \u00a7 20-305(4). We agree.\nOnly a few courts in other jurisdictions have considered whether Federal Express constitutes mail. The United States Courts of Appeal for the Fifth and Seventh Circuits have held that it does not. Audio Enterprisers v. B & W Loudspeakers, 957 F.2d 406 (7th Cir. 1992); Prince v. Poulos, 876 F.2d 30 (5th Cir. 1989). Further, we have found no appellate decision, other than the decision filed by the Court of Appeals in this case, that has held that Federal Express or any other private delivery service constitutes \u201cregistered or certified mail.\u201d\nTraditionally, we have strictly construed notice statutes. See, e.g., Guthrie v. Ray, 293 N.C. 67, 235 S.E.2d 146 (1977); In re Harris, 273 N.C. 20, 159 S.E.2d 539 (1968); S. Lowman v. Ballard & Co., 168 N.C. 16, 84 S.E. 21 (1915). N.C.G.S. \u00a7 20-305(4) provides, in pertinent part:\nNo franchise may be... relocated... unless the franchisor has been given at least 30 days\u2019 prior written notice as to the ... location and site plans of any proposed relocation. The franchisor shall send the dealership notice of objection, by registered or certified mail, return receipt requested, to the proposed . . . relocation . . . within 30 days after receipt of notice from the dealer .... Failure by the franchisor to send notice of objection within 30 days shall constitute waiver by the franchisor of any right to object to the proposed ... relocation ....\n(Emphasis added.) We conclude that the General Assembly intended for the phrase \u201cregistered or certified mail, return receipt requested\u201d to refer exclusively to the delivery service offered by the U.S. Mail and not to notice delivered by any private delivery service. Strictly construing the above statute, we conclude that Nissan has waived any objection to Anderson\u2019s proposed relocation.\nNissan directs our attention to what it deems to be the \u201cfirst sentence\u201d of the notice requirement of N.C.G.S. \u00a7 20-305(4) \u2014 \u201cThe franchisor shall send the dealership notice of objection, by registered or certified mail, returned receipt requested, to the proposed . .. relocation . . . within 30 days after receipt of notice from the dealer . . . .\u201d Nissan contends that this \u201cfirst sentence\u201d does not expressly require that notice be sent through the U.S. Mail and, therefore, notice sent through private delivery services is proper under the statute. Nissan argues that the General Assembly easily could have inserted language that would have provided for exclusive use of the U.S. Mail if it had intended for franchisors to send notice exclusively in this manner.\nNissan cites the opinion of the Court of Appeals in Warzynski v. Empire Comfort Systems, 102 N.C. App. 222, 401 S.E.2d 801 (1991), which held that the phrase \u201cany form of mail,\u201d as used in N.C.G.S. \u00a7 1A-1, Rule 4(j3) relating to service of process in foreign countries includes Federal Express. But this decision does not alter our conclusions in the present case.\nIt is clear that, in adopting N.C.G.S. \u00a7 20-305(4), our legislature intended for \u201cmail\u201d to refer solely to U.S. Mail. The phrase \u201cregistered or certified mail, return receipt requested\u201d specifically denotes a mailing privilege offered by the U.S. Mail for a certain fee. One reasonable purpose for requiring notice by registered or certified mail is to distinguish the manufacturer\u2019s notice of objection from the correspondence that dealers receive daily from their franchisors by Federal Express and regular U.S. Mail. The dealership will be made aware of the notice if it is sent in an exclusive manner.\nNissan next focuses on what it terms the \u201csecond sentence\u201d of the notice requirement of section 20-305(4): \u201cFailure by the franchisor to send notice of objection within 30 days shall constitute waiver by the franchisor of any right to object to the proposed . . . relocation . . . .\u201d Nissan contends that the \u201cfirst sentence\u201d of the notice requirement refers both to the manner of sending notice and the timing of the notice. The \u201csecond sentence,\u201d however, refers only to the timing of the notice. Nissan therefore argues that as long as the notice of objection is timely, failure to deliver the notice in the manner prescribed in the \u201cfirst sentence\u201d will not constitute waiver.\nIn support of its interpretation, Nissan notes that the Supreme Court of the United States interpreted provisions of the Miller Act (which required subcontractors to deliver written notice to contractors before suing on a performance bond) in a similar fashion. See Fleisher Engineering and, Construction Co. v. United States, 311 U.S. 15, 16, 85 L. Ed. 12, 14 (1940) (reasoning that Congress had drawn a \u201cdistinction . . . between the provision explicitly stating the condition precedent to the right to sue and the provision as to the manner of serving notice\u201d). We find no such distinction between the timing requirement in the \u201cfirst sentence\u201d and manner of notice in the \u201csecond sentence\u201d of the requirement for notice to the dealership contained in N.C.G.S. \u00a7 20-305(4). Instead, we conclude that the legislature meant for the \u201csecond sentence\u201d to refer back to the first. The \u201csecond sentence\u201d therefore requires that notice of objection must be sent in the manner prescribed by the \u201cfirst sentence.\u201d Use of the word \u201cshall\u201d evidences the intention that the franchisor send notice to its dealer by U.S. Mail (\u201cregistered or certified mail, return receipt requested\u201d) and U.S. Mail only. If a franchisor sends notice through a private delivery service within the prescribed time, the notice is still invalid. We do not find Fleisher persuasive, and we are not compelled to follow the method of statutory interpretation preferred by the Supreme Court of the United States when we are interpreting state law.\nNissan was required to use the U.S. Mail when sending notice of its objection to the relocation of the Anderson dealership. Since the language of the statute requires that notice be sent through \u201cregistered or certified mail, return receipt requested\u201d and provides that failure to do so \u201cshall constitute waiver,\u201d Nissan waived any objection to Anderson\u2019s proposed relocation by sending its notice by Federal Express.\nFor the foregoing reasons, we conclude that the Court of Appeals erred in holding that notice by a private delivery service that provides a signed receipt constitutes notice by \u201cregistered or certified mail, return receipt requested\u201d in accordance with N.C.G.S. \u00a7 20-305(4). The decision of the Court of Appeals is reversed and this case is remanded to that court for further remand to the Superior Court, Wake County, for reinstatement of the summary judgment for the defendants.\nREVERSED AND REMANDED.", "type": "majority", "author": "MITCHELL, Justice." }, { "text": "Justice Frye\nconcurring in part, dissenting in part.\nI agree with the majority that the Court of Appeals erred in concluding that notice by Federal Express constitutes mail within the meaning of N.C.G.S. \u00a7 20-305(4). I conclude however, as did Judge Wells in the Court of Appeals, that defendant has suffered no prejudice here. I therefore dissent from that portion of the majority opinion holding that because plaintiff sent its notice of objection through Federal Express rather than U.S. Mail it has waived any objection to defendant\u2019s proposed relocation.\nThe purpose of the North Carolina Motor Vehicle Dealers and Manufacturers Licensing Law is to address the historical disparity in the bargaining positions between manufacturers and dealers and to provide some protection for local dealers and the public from abuse of the franchise system by manufacturers. N.C.G.S. \u00a7 20-285 (1993); American Motors Sales Corp. v. Peters, 311 N.C. 311, 317 S.E.2d 351 (1984); Mazda Motors v. Southwestern Motors, 36 N.C. App. 1, 243 S.E.2d 793 (1978), rev\u2019d in part on other grounds, 296 N.C. 357, 250 S.E.2d 250 (1979). As noted by Judge Wells in his concurring opinion in the Court of Appeals, the purpose of the notice requirement of section 20-305(4) is \u201cto prevent franchisors from stonewalling proposed dealership changes or modifications by not responding to the dealer\u2019s request or proposal.\u201d Nissan Motor Corp. v. Fred Anderson Nissan, 111 N.C. App. 748, 756, 434 S.E.2d 224, 229 (1993). In this case, this purpose was attained, although there was not strict adherence to the statute as we have now interpreted it. On 3 October 1991, defendant personally delivered to plaintiff notice of its intent to relocate. Plaintiff responded indicating its opposition to the proposed relocation by a letter dated 31 October 1991, which was delivered by Federal Express on 1 November 1991. Further, the record indicates that one of plaintiff\u2019s representatives telephoned defendant\u2019s general manager on 1 November to confirm that the notice was received and read. Defendant confirmed receipt of the notice. On 27 November 1991 defendant filed its petition for a hearing which was held on 6 January 1992. Thus, this dealer received a timely response to its request to relocate and consideration of this request \u2014 through a hearing pursuant to section 20-305(4) \u2014 took place without delay.\nThe only consequence of plaintiff\u2019s use of Federal Express was that defendant most likely received notice of plaintiff\u2019s objection sooner than if the notice had been delivered by U.S. Mail. At no time has defendant contended that plaintiff\u2019s response was not promptly received. In fact, it was in response to plaintiff\u2019s notice of opposition to the relocation that defendant requested a hearing. Under these circumstances, I conclude that defendant suffered no harm as a result of plaintiff\u2019s sending its notice of objection to the relocation by Federal Express rather than by U.S. Mail as we now determine the statute requires.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Justice Frye" } ], "attorneys": [ "Smith, Helms, Mullis & Moore, by David M. Moore and James L. Gale; Latham & Watkins, by Maureen E. Mahoney, for the plaintiff-appellee.", "Johnson, Gamble, Mercer, Hearn & Vinegar, by Richard J. Vinegar, for the defendant-appellant Fred Anderson Nissan.", "Brooks, Pierce, McLendon, Humphrey & Leonard, by Michael D. Meeker, for Paul S. Meeker and Meeker Lincoln-Mercury, Inc., intervenor-appellants.", "Harry H. Harkins, Jr., for North Carolina Automobile Dealers Association, amicus curiae." ], "corrections": "", "head_matter": "NISSAN DIVISION OF NISSAN MOTOR CORPORATION IN U.S.A. v. FRED ANDERSON NISSAN, PAUL S. MEEKER and MEEKER LINCOLN-MERCURY, INC.\nNo. 422PA93\n(Filed 29 July 1994)\nAutomobiles and Other Vehicles \u00a7 187 (NCI4th); Notice \u00a7 4 (NCI4th)\u2014 relocation of automobile dealership \u2014 objection by franchisor \u2014 registered or certified mail \u2014 U.S. Mail required\nThe requirement of N.C.G.S. \u00a7 20-305(4) that a franchisor\u2019s objection to a proposed automobile dealership relocation be sent \u201cby registered or certified mail, return receipt requested\u201d refers exclusively to the delivery service offered by the U.S. Mail and not to a private delivery service that provides a signed receipt. Therefore, Nissan\u2019s objection to defendant\u2019s proposed relocation of its dealership was invalid under N.C.G.S. \u00a7 20-305(4) where it was delivered by Federal Express rather than by the U.S. Mail, and Nissan waived objection by failing to send proper notice to defendant within the time provided in the statute.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 150 et seq.; Notice \u00a7\u00a7 5-12, 32-40.\nValidity, construction, and application of state statutes regulating dealings between automobile manufacturers, dealers, and franchisees. 82 AJLR4th 624.\nJustice Frye concurring in part, dissenting in part.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a decision of the Court of Appeals, 111 N.C. App. 748, 434 S.E.2d 224 (1993), reversing a judgment entered by Stephens, J., on 15 June 1993, in the Superior Court, Wake County. Heard in the Supreme Court on 10 May 1994.\nSmith, Helms, Mullis & Moore, by David M. Moore and James L. Gale; Latham & Watkins, by Maureen E. Mahoney, for the plaintiff-appellee.\nJohnson, Gamble, Mercer, Hearn & Vinegar, by Richard J. Vinegar, for the defendant-appellant Fred Anderson Nissan.\nBrooks, Pierce, McLendon, Humphrey & Leonard, by Michael D. Meeker, for Paul S. Meeker and Meeker Lincoln-Mercury, Inc., intervenor-appellants.\nHarry H. Harkins, Jr., for North Carolina Automobile Dealers Association, amicus curiae." }, "file_name": "0424-01", "first_page_order": 452, "last_page_order": 458 }