STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NOLETTE MOTORS, INC., )
d/b/a PLAZA MAZDA, )
)
Petitioner, )
)
vs. ) Case Nos. 98-1457
) 98-2596
MAZDA MOTORS OF AMERICA, INC., ) and DEPARTMENT OF HIGHWAY SAFETY ) AND MOTOR VEHICLES, )
)
Respondents. )
)
RECOMMENDED ORDER
Notice was provided and on January 19 and 20, 1999, in Building B, Room 360, Jacksonville Regional Service Center, 921 North Davis Street, Jacksonville, Florida, a formal hearing was held in this case. The authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The hearing was held before Charles C. Adams, Administrative Law Judge.
APPEARANCES
For Petitioner: Hugh A. Davis, II, Esquire
H. D. Robuck, Jr., P.A. 610 East Main Street Leesburg, Florida 34748
For Respondent Mazda Motors of America, Inc.:
Dean Bunch, Esquire
Kelly A. O'Keefe, Esquire Southerland, Asbill & Brennan, L.L.P. 2282 Killearn Center Boulevard Tallahassee, Florida 32308
For Respondent Department of Highway Safety and Motor Vehicles: No Appearance.
STATEMENT OF THE ISSUES
Should the franchise agreement held by Nolette Motors, Inc., d/b/a Plaza Mazda (Nolette) be cancelled for the alleged abandonment of the agreement by that dealer's failure to be engaged in business with the public for ten consecutive business days in relation to promotion of products of Mazda Motors of America, Inc. (Mazda)? See Section 320.641(4), Florida Statutes. Additionally, should the Nolette franchise agreement with Mazda be cancelled for alleged breaches of the franchise agreement which are material and substantial? See Section 320.641(1) through (3), Florida Statutes.
PRELIMINARY STATEMENT
On March 5, 1998, by hand-delivery, Mazda served Nolette with notice of intended termination of the franchise agreement based upon a claim of abandonment and several additional grounds which Mazda claimed constituted material and substantial breaches of the franchise agreement committed by Nolette. In particular, the notice provided:
In accordance with the terms of your Mazda Dealer Agreement, dated August 30, 1996, and Section 320.641, Florida Statutes, this letter is to notify you of the intent of Mazda Motor of America, Inc. ("Mazda") to terminate the Mazda Dealer Agreement of Nolette Motors, Inc. Dba Plaza Mazda ("Plaza Mazda"), and to inform you of the specific grounds on which this intended termination is based.
Termination for Abandonment. As the first independent ground for the intended termination, you have abandoned your dealership, as that on the signature page of your Mazda Dealer Agreement, a copy of which is attached as exhibit A your Approved Location for purposes of sales, is 9007 South Highway 441, Leesburg, Florida 34789. Your Approved Location of service is 8925 South Highway 441, Leesburg, Florida 34798.
Specific Grounds for Action. During the ten consecutive business days in February 16, 1998, through February 27, 1998, inclusive, you were not open for business with the public for the purposes of selling Mazdas at the Approved Location specified for this purpose, 9007 South Highway 441.
Accordingly, in accordance with the terms of Section 320.641(4), Florida Statutes, Mazda intends to terminate your Mazda Dealer Agreement, effective at 12:01 a.m., on the 16th day following the day on which you receive this letter.
Termination for Material and Substantial Breach of Mazda Dealer Agreement. As the second independent ground for the intended termination, you have materially and substantially breached your Mazda Dealer Agreement, as specified hereafter. Accordingly, Mazda notifies you that, in accordance with Section 320.641(1)-(3), Florida Statutes, it intends to terminate your Mazda Dealer Agreement, effective 12:01 a.m., on the 91st day following the day on which you receive this letter.
Specific Grounds for Action. Mazda bases its intended termination of your Mazda Dealer Agreement on the following provisions of your Mazda Dealer Agreement, and your material and substantial breaches of each provision.
Failure to Conduct Business at Dealer's Approved Location. The clause titled "Dealership Location" on page 12 of the Mazda Dealer Agreement provides as follows:
DEALER's Approved Location. DEALER agrees to conduct DEALER's Business at Dealer's Approved Location and at no other location. DEALER acknowledges that DEALER's Approved Location is an integral part of MAZDA's network of MAZDA Dealers which promote, sell and service MAZDA Products and the continued conduct of DEALER's Business at DEALER's approved Location is essential to maintain an effective and efficient distribution system for MAZDA products. Accordingly, MAZDA will not require DEALER to relocate its facilities to another location unless such relocation is deemed reasonably necessary to meet changes in sales and service requirements of customers of MAZDA Products. In addition, DEALER shall not sell or transfer any interest of DEALER in DEALER's facilities or the underlying property of DEALER's Approved Location without the prior written consent of MAZDA.
You have failed to conduct the sale of Mazda vehicles at the sole Approved Location, which is specified in your Mazda Dealer Agreement at 9007 South Highway 441. This constitutes a material and substantial breach of your Mazda Dealer Agreement.
Conducting Mazda Sales at a Location Other Than the Approved Location. You have conducted the sale of Mazdas at a location other than the sole Approved Location specified in your Mazda Dealer Agreement. The location at which you have conducted the sale of Mazda new vehicles at 8925 South
Highway 441. This constitutes a material and substantial breach of your Mazda Dealer Agreement.
Failure to Maintain Facilities. Article I, Paragraph 2.(a), of the Mazda Dealer Agreement requires you to maintain your dealership facilities. You have failed to do this in that the outside of the Approved Location is overgrown with weeds and is littered with trash. Further, the facility at the authorized location is in disrepair, including clutter, file boxes, rotting
fascia, peeling paint and other indicators of lack of maintenance.
Failure to Maintain Inventory. Article I, Paragraph 2.(b), of the Mazda Dealer Agreement requires you to maintain and display an adequate inventory of Mazda products. You have failed to do this. As one indicator of your failure to maintain an adequate inventory, you ordered your first 1998 Mazda vehicle in late January 1998, whereas this product was made available for you to order beginning in August and September 1997.
Failure to Advertise and Promote Mazda products. Article I, Paragraphs 2.(d), 2(e), 2(f), 2(g), 2(h), and 2(I) of the Mazda Dealer Agreement require you to advertise Mazda Products and services in the local area where you are located, and to use various methods listed in the Dealer Agreement to promote Mazda products. You have failed to do this.
Failure to Provide Adequate Customer Satisfaction. Article III, Paragraph 3.(a) of the Mazda Dealer Agreement requires that your personnel at all times treat customers in a prompt, courteous and professional manner. As indicated by your low Customer Satisfaction Index scores compiled by surveys of your customers, you have failed to do this.
Violation of Conditions of the Letter of Intent, dated June 26, 1996, which are incorporated by reference as part of your Mazda Dealer Agreement. Article VI, paragraph 3 of your Mazda Dealer Agreement provides:
3. DEALER's Representations. DEALER represents and warrants and MAZDA enters into the MAZDA Dealer Agreement in reliance upon DEALER's representation that the information continued in the MAZDA Dealer Representations made to MAZDA by DEALER are true, complete and not misleading.
On or about June 26, 1996, Mazda transmitted to you a Letter of Intent, which is attached hereto as Exhibit A. You executed this Letter of Intent, on July 3, 1996, as indicated by your signature on Page 7 of the Letter of Intent.
The terms of this Letter of Intent are incorporated by reference in your Mazda Dealer Agreement, as indicated specifically in the last sentence of Page 5 of the Letter of Intent.
Exclusive Facilities. On Page 2 of the Letter of intent, in Paragraph 2.1, you agreed to maintain a separate showroom at 9007 South Highway 441 to be used exclusively for Mazda sales operations. You have failed to maintain the required address, as set forth above. You have also failed to maintain a separate showroom exclusively for Mazda sales operations because, to the extent Mazda sales operations are being carried on at this time, they are being carried on in a facility which is also used for the sales of other line make vehicles.
Sales. On Page 5 of the Letter of Intent, in Paragraph 4.1, Mazda agrees to evaluate your new vehicle sales performance as a percentage of the annual sales objective for the dealership. Your annual sales objective for the calendar year 1997, was established as 138 units in the 1997 Dealer Business Review, dated November 13, 1996. This document was mailed to you and reviewed with you. On or about October 20, 1997, the 1998 Dealer Business Review was mailed to you and revealed that, on the basis of your first nine months sales in 1997, your projected annual sales were 67 or 48.5% of your objective. On December 11, 1997, a representative of Mazda visited your dealership to review the Dealer Business Review with you. You told him that would be unnecessary because you are selling your dealership. Your actual annual sales for 1997 were 64 units, or 46.4% of your objective. Since the receipt of the Dealer
Business Reviews, and since the end of 1997, you have not taken steps to cure the sales deficiency. In fact, you have taken actions, such as those specified in this letter, which are detrimental to your ability to sell Mazda vehicles.
Working Capital. On Page 3 of the Letter of Intent, in Paragraph 2.4, you agree to maintain working capital at all times which meets Mazda's minimum working capital standards. As of January 1998, you have failed to do this, in that your current working capital is $159,216 below guide.
Personnel. Paragraphs 2.2, 2.5, 2.6 and
3.3 require the maintenance and training of certain personnel. You have failed to maintain the personnel specified in these paragraphs.
In response Nolette filed two petitions. A petition in what would become DOAH Case No. 98-1457 was filed in opposition to termination of the franchise agreement upon a claim of abandonment. A complaint was filed in opposition to the franchise termination related to alleged material and substantial breaches of the franchise agreement. That complaint was ultimately assigned as DOAH Case No. 98-2596. Both the petition and the complaint were filed with the Department of Highway Safety and Motor Vehicles (the Department). The petition was dated March 19, 1998. The complaint was dated June 3, 1998.
On March 25, 1998, the Division of Administrative Hearings received the Department's request for the assignment of an Administrative Law Judge to conduct a hearing to resolve matters in dispute described in the petition.
On June 9, 1998, the Division of Administrative Hearings received a request from the Department for the assignment of an Administrative Law Judge to conduct a hearing pursuant Section 120.57, Florida Statutes, in relation to the complaint case.
Larry J. Sartin, Administrative Law Judge, was assigned DOAH Case No. 98-1457, and set the matter for hearing to be heard on August 3 through 5, 1998. That notice was provided before the Division of Administrative Hearings received the request for assignment of an Administrative Law Judge in the complaint case that became DOAH Case No. 98-2596.
Once the complaint case was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge, Nolette moved to consolidate that case with the petition case. On July 7, 1998, Judge Sartin granted the motion to consolidate DOAH Case Nos. 98-1457 and 98-2596.
Nolette then moved to continue the hearing that had been established for August 3 through 5, 1998. That motion was granted on July 31, 1998.
A second notice of hearing was sent out setting January 19 through 21, 1999, as hearing dates to consider the consolidated cases.
Based upon a scheduling conflict, the cases were reassigned to be heard before Charles C. Adams, Administrative Law Judge, in substitution for Larry J. Sartin, Administrative Law Judge.
On January 14, 1999, Nolette filed a Motion to Dismiss Mazda's grounds for cancellation of the franchise agreement. The motion was based upon the argument that Mazda by a letter dated December 22, 1998, had offered a new franchise agreement to Nolette which was accepted by Nolette on January 11, 1999. By its acceptance Nolette contended that a new contract had been entered into between the parties rendering the issue of the intent to cancel under the preexisting franchise agreement moot, thereby promoting the dismissal of the proceedings. No decision was reached on the motion prior to hearing. At hearing, argument was entertained on the motion. Ultimately, the parties were granted the opportunity to offer concluding arguments concerning the motion to dismiss through proposed recommended orders.
Disposition of the motion is announced in the conclusions of law.
Pursuant to an order of prehearing instructions the parties prepared and filed a prehearing stipulation which has been considered in the preparation of this recommended order.
In accordance with the discussion held at hearing Mazda agreed to present its proof first in recognition of the fact that its notice of cancellation commenced this process. The issue of the ultimate burden of proof and the quality of that proof was unresolved at hearing. Again the parties were provided the opportunity through their proposed recommended orders to offer additional argument on those issues beyond the argument that had
been presented at hearing. Resolution of the burden of proof and the quality of proof is found in the conclusions of law.
In support of its case, Mazda presented the testimony of Norman Ramsey, a district sales manager for Mazda; Richard Pierce, a district sales manager for Mazda; John Cunningham, sales planning manager for Mazda southeast region; and John English, Southeast regional manager for Mazda. Mazda's Exhibits 1-5, 8, 10-15, 17, 20-24, 30-32, 34-36, 38 and 40 were admitted
consistent with rulings announced in the hearing transcript.
Nolette presented the testimony of Frank Barbaro, comptroller for Nolette Motors; Robert MacLeod, service manager for Plaza Mazda and Plaza Lincoln Mercury; Joseph Nolette, the owner and dealer principal for Nolette; and Daniel Tully, general sales manger for Plaza Mazda and Plaza Lincoln Mercury. Nolette Exhibits 1-10, 12, and 14-16 were admitted.
Requests for admissions propounded from Mazda to Nolette, Nos. 3-7, as admitted by Nolette, were received as part of the proof. Interrogatories Nos. 2-7, propounded from Mazda to Nolette, as answered by Nolette, were accepted as part of the proof.
In the absence of any amendment to the notice of cancellation of the franchise agreement dated March 5, 1998, it was determined that the scope of the inquiry would be limited to circumstances occurring on that date or before.
Nolette's petition in DOAH Case No. 98-1457 asked for the award of attorney's fees and costs. Consideration of that request is given in the conclusions of law.
A hearing transcript was filed on February 9, 1999.
Proposed recommended orders were due March 11, 1999. Before the expiration of the filing date a request was made to extend the time for filing proposed recommended orders. That request was granted. The parties filed their proposed recommended orders on March 16, 199. The proposed recommended orders have been considered in the preparation of this recommended order.
FINDINGS OF FACT
The Regulations
Mazda is a "licensee" within the meaning of the regulatory process described in Sections 320.61 through 320.70, Florida Statutes.
As a licensee Mazda manufactures motor vehicles which it distributes in Florida through its franchisees, motor vehicle dealers.
Nolette is a "motor vehicle dealer" within the context of the aforementioned regulatory process.
Mazda operates under the terms of the license granted from the Department in order to do business in Florida in the context of the aforementioned provisions, to include its business activities with Nolette.
In the context of the aforementioned provisions Mazda does business with Nolette in accordance with an "agreement" or "franchise agreement" as defined at Section 320.60(1), Florida Statutes.
Mazda may not unfairly cancel its franchise agreement with Nolette to promote Mazda products. See Section 320.641, Florida Statutes.
Letter of Intent
On June 26, 1996, Mazda provided Nolette a Letter of Intent for future dealer operations to be conducted by Nolette involving the sale and servicing of Mazda motor vehicles. On July 3, 1996, Nolette, in the person of Joseph H. Nolette, president, approved and accepted the Letter of Intent.
Mazda informed Nolette of the relationship between the Letter of Intent and the upcoming Mazda dealer agreement through the following language within the Letter of Intent:
We agree to enter into a Mazda Dealer Agreement with a Dealer Candidate entity ("Dealer" or "you") already existing or to be formed by you when all of the following conditions have been met by the deadlines indicated below.
* * *
By its approval and acceptance of the Letter of Intent drafted by Mazda, Nolette acknowledged the following obligations concerning Nolette's dealer location to sell and service Mazda motor vehicles:
You and/or the dealership corporation Nolette Motors, Inc. will do the following:
Provide property for Mazda dealership sales, service and parts operations at 9007 South Highway 441, Leesburg, Florida which will be no less than 56,750 square feet in size (the "proposed location"). You agree to construct or renovate all complete facilities and make the improvements with regard to the existing space to be dedicated for Mazda sales, service, parts, storage, display and parking so that the dealership will be operational on or before July 31, 1996.
By acceptance and approval of the Letter of Intent Nolette obligated itself to the following:
Upon Mazda's entering in to the Mazda Dealer Agreement, the dealership entity must satisfy the following conditions on a continuing basis during the initial term and any renewal or extension of that agreement:
The property specified in Condition No.
1.1 shall be used at all times exclusively for Mazda/Lincoln Mercury dealership operations. Dealer agrees to maintain a separate showroom at the address listed above to be used exclusively for Mazda sales operations. Dealer agrees to provide the facilities exclusively for Mazda even though it may exceed the minimum space requirements set forth below. The dealership facility shall meet Mazda's design and image standards and the showroom, parts and service departments shall be of the size set forth below.
SHOWROOM
(Interior New Car Display) 1,500 sq. ft.
(Minimum)
In addition, you agree to provide the following minimum service and parts
facilities at 9007 and 8925 South Highway 441, respectively, exclusive for Mazda:
* * *
On the issue of personnel, by approving and accepting the Letter of Intent Nolette committed to the following:
2.2 Dealer agrees to maintain at all times separate and exclusive sales management and representatives exclusively for Mazda products.
* * *
You agree to employ a qualified, full- time Mazda General Manager/General Sales Manager, with complete authority to manage all Dealer operations. Mazda shall have the right to approve or disapprove of this person in that capacity. Any change in the designated General Manager/General Sales Manager also requires the prior written approval of Mazda.
You further agree that at least one (1) service technician will be trained or hired having successfully completed all of the required service training classes prior to becoming operational. You also agree to ensure that a minimum of six, (6) service technicians will have successfully completed all required service training classes within six months of becoming operational and that such number of trained technicians will be maintained at all times. Our District Customer Support Manager will assist you in scheduling this necessary training.
* * *
3.3 Retain a customer relations manager who will function as a dealership representative designated to handle all dealership matters relating to customer relations.
Concerning the requirement for net working capital, Nolette approved and accepted the following conditions in the Letter of Intent:
2.4 The net working capital for the Mazda dealership operations needs to meet Mazda's minimum working capital standards at all times. The dealership entity's minimum working capital standard will meet or exceed Mazda's standard of 1.3:1.0 (current assets/current liabilities). We understand that the Mazda dealership entity will be capitalized at not less that $1,174,507, of which $1,174,507 is in owners equity ($100 in capital stock, $1,125,966 in Additional Paid- In Capital, $48,441 in Net Profit). The dealership entity's long-term debt (excluding dealership real property obligations) shall not, at any time, exceed its net worth, as determined by acceptable accounting principles.
The Letter of Intent goes on to describe the condition referred to as 4.1. which states the sales performance obligation of Nolette:
At least annually, Mazda will evaluate your Mazda new vehicle sales performance as a percentage of the annual sales objective for the dealership. You agree to sell Mazda new vehicles at a rate which equals or exceeds the average performance for all other Mazda dealers in the Southeast Region determined as a percentage of sales objective by Mazda.
If you fail to achieve this performance standard for any twelve (12) month period, as measured at the calendar year-end, you agree to take whatever steps are necessary to correct this sales deficiency within 60 days. If the deficiency is still not corrected to Mazda's satisfaction, you agree to work with Mazda to establish specific actions and timetables to remedy the deficiency.
Nolette approved and accepted that obligation.
Finally, the Letter of Intent contained the concluding language in reference to the correlation between the terms of the Letter of Intent and the upcoming Mazda dealer agreement.
By acceptance of this letter, you understand and agree that Mazda has relied upon your representations concerning ownership, management, capitalization, facilities, and service requirements, as set forth in your dealer application and related documents, and that they provide the inducement to issue this Letter of Intent and the Mazda Dealer Agreement, when all the conditions specified by Mazda are met. . . .
In the event that you fail to meet any of the deadlines set forth above, or fail to execute any Mazda dealer agreement offered to you as provided herein, this Letter of Intent shall terminate, without further notice, and shall have no further effect. . . .Accordingly, any misrepresentation or inaccuracy with respect to the foregoing or any failure to satisfy the above conditions, . . . will render this Letter of Intent, subsequent Mazda Dealer Agreement or any renewal or extension thereof voidable at the option of Mazda in which event Mazda has no further obligation to you of any kind. Because Mazda will rely on your representations made pursuant to this Letter of Intent whether or not it decides to enter into a Mazda Dealer Agreement with you, all of the provisions of this Letter of Intent shall be deemed to be part of the 'Mazda Dealer Representations' for purposes of the Mazda Dealer Agreement.
The Agreement
On August 30, 1996, Nolette and Mazda entered into the Mazda Dealer Agreement (the franchise agreement).
The initial franchise agreement was for the period October 30, 1996 through December 31, 1996. It can be inferred
that the terms of the franchise agreement entered into for that period extended to other times relevant to this inquiry.
Included within the franchise agreement was a set of requirements referred to as the "Basic Agreement."
The franchise agreement also incorporated "General Terms and Conditions" wherein it was stated:
This General Terms and Conditions document is an additional agreement under the Mazda Dealer Agreement between Mazda and Dealer,
and as such is incorporated by reference into the Mazda Dealer Agreement and is binding upon Mazda and Dealer as if executed by
each of them.
Under General Terms and Conditions, I. Definitions, is Definition I.7. which states:
'Mazda Dealer Representations' means the application, related documents and information, and representations previously submitted or made by Dealer to Mazda for the purpose of enabling Mazda to evaluate Dealer and to determine whether to enter into or renew the Mazda Dealer Agreement with Dealer including but not limited to the information set forth on any attachment hereto entitled Mazda Dealer Representations, which is incorporated herein by reference.
As a consequence, the information provided in the Letter of Intent which set forth Nolette's responsibilities under the terms of the Letter of Intent constituted information under the heading "Mazda Dealer Representations" compelling Nolette to meet its obligations in the Letter of Intent.
The relationship between Nolette's Dealer Representations occasioned by Nolette's approval and acceptance
of its obligations under the Letter of Intent is also carried forward under the franchise agreement, Basic Agreement, VI. Reasonable Expectations of Dealer and Mazda, 3. DEALER's Representations, wherein it is stated:
DEALER represents and warrants and MAZDA enters into the MAZDA Dealer Agreement in reliance upon DEALER's representation that the information contained in the MAZDA Dealer Representations made to MAZDA by DEALER are true, complete and not misleading.
In relation to the effect of the requirements incumbent upon Nolette announced in the Letter of Intent, when considered in the context of the requirements related to Nolette set forth in the franchise agreement, under General Terms and Conditions,
II. GENERAL PROVISIONS, 13. Entire Agreement, it was further stated:
The MAZDA Dealer Agreement, including all additional provisions described in SECTION VIII of the Basic Agreement, constitutes the entire agreement and understanding between DEALER and MAZDA with respect to the subject matter hereof and supersedes all prior or present agreements and understandings, written or oral, between the parties with respect to the subject matter hereof. The MAZDA Dealer Agreement may be amended, modified, supplemented or interpreted only by a written instrument signed by DEALER and the President or any of the Vice Presidents of MAZDA.
Taking into account those provisions within the franchise agreement which create Nolette's obligations under the terms of the Letter of Intent, both documents would pertain, other than in the instance where conflicts might exist, in which
case those conflicts would be resolved in favor of the use of the franchise agreement to the exclusion of the Letter of Intent.
Under the General Terms and Conditions,
DEFINITIONS, it states:
* * *
'DEALER's Approved Location' means the address of DEALER set forth on the signature page of the Mazda Dealer Agreement.
'DEALER's Business' means all activities of DEALER relating to the promotion, sale and service of MAZDA Products and all other activities of DEALER under the MAZDA Dealer Agreement.
The signature page for the franchise agreement signed by Joseph H. Nolette, refers to the dealer's approved location as 9007 South Highway 441, Leesburg, Florida, with the exception that service is provided at 8925 South Highway 441.
Dealership Location is a category within the franchise agreement, a separate document, and it is defined as:
DEALER agrees to conduct DEALER's Business at Dealer's Approved Location and at no other location. DEALER acknowledges that DEALER's Approved Location is an integral part of MAZDA's network of MAZDA Dealers which promote, sell and service MAZDA Products, and the continued conduct of DEALER's Business at DEALER's Approved Location is essential to maintain an effective and efficient distribution system for MAZDA Products.
Accordingly, MAZDA will not require DEALER to relocate its facilities to another location unless such relocation is deemed reasonably necessary to meet changes in sales and service requirements of customers of MAZDA Products. In addition, DEALER shall not sell or transfer any interest of DEALER in DEALER's facilities or the underlying
property of DEALER's Approved Location without the prior written consent of MAZDA.
Pertinent to this case the franchise agreement under the Basic Agreement, I. SALES AND SERVICE OBLIGATIONS OF MAZDA AND DEALER, 2. DEALER'S OBLIGATIONS states:
DEALER agrees to energetically and effectively promote, sell and service MAZDA Products at DEALER's Approved Location.
Accordingly, and without limitations, DEALER shall perform the following obligations in addition to those provided elsewhere in the MAZDA Dealer Agreement.
maintain dealership facilities for sales, service, parts and other operations with reference to MAZDA's evaluation of DEALER, including but not necessarily limited to showroom, sales, business office, outside vehicle display, vehicle storage, service, parts and customer parking facilities,
maintain and display an adequate inventory of MAZDA Products which are offered to DEALER by MAZDA,
* * *
advertise MAZDA Products and services in the local area where DEALER is located, using media selected by DEALER,
participate in local auto shows and product exhibitions,
use retail sales promotion materials prepared by MAZDA for use by MAZDA for use by MAZDA Dealers, such as catalogs, banner, product information centers and other point- of-sale materials,
use sales aids prepared by MAZDA for use by sales, service and parts personnel of MAZDA Dealers,
encourage DEALER's sales, service, parts and administrative personnel to participate in incentive programs offered by MAZDA,
cause DEALER's eligible employees to fully participate in training programs conducted by MAZDA for sales, service, parts administrative and management personnel of MAZDA Dealers,
Pertinent to this case, the franchise agreement under the Basic Agreement, III. Customer Satisfaction, 3. Dealer's Obligations it states:
DEALER shall:
(a) ensure proper training in customer satisfaction matters for sales, service, parts and administrative personnel, and cause DEALER's personnel at all times to treat customers in a prompt, courteous and professional manner,
The franchise agreement included a document referred to as Renewal and Termination which was incorporated by reference into the franchise agreement. Within the document is the heading
Termination, 4. Termination for Cause by MAZDA,
Immediate. Under the immediate termination clause of the franchise agreement is the reference to immediate termination for part (iii) which states:
The conduct of DEALER's Business at other than DEALER's Approved Location
without the prior written approval of MAZDA.
A related basis for immediate termination under the franchise agreement is at (vii) which states:
The failure of DEALER to be open for business at DEALER's Approved Location for seven or more consecutive days (excluding Sundays).
The expectation of the latter provision contrasts with the requirements set forth in Section 320.641(4) and (5), Florida Statutes, allowing the cancellation of the franchise agreement for a dealer's failure to be engaged in business with the public for ten consecutive business days as described in that law.
Another basis for termination for cause by Mazda is set forth within the requirement for giving 60 days' notice under II. Termination, 4. Termination for Cause by Mazda, (b) Within Sixty Days where it states:
The following events are so contrary to the spirit, nature and purposes of the MAZDA Dealer Agreement that if any of them continue to exist sixty days after MAZDA has sent to DEALER a written notice of the existence of any such event listed below and MAZDA's intention to terminate if such event is not remedied, MAZDA may terminate the MAZDA Dealer Agreement, effective immediately, by sending final notice of termination to DEALER by registered or certified mail or telegram:
* * *
The notice of termination does not refer to attempts to comply with the 60-day requirement in the franchise agreement. No proof was offered to show compliance with the 60-day notice allowing the opportunity for correction. To properly comply with this provision it would have been necessary for Mazda to send notification of the series of breaches that are referred to in the second part of the Notice of Intended Termination, then allow
60 days for correction, and failing which to notify Nolette that Mazda intended to terminate or cancel. It would have been upon
the occasion of the second notification that Mazda would have been expected to comply with the notification requirements under Section 320.641(1) through (3), Florida Statutes. That is not what happened here. Mazda was premature in its action under the second part of its Notice of Intended Termination in that Mazda may not reasonably ignore the procedural expectations of the dealer agreement in carrying out its decision to terminate.
The specific reference to an event involving this clause is at (vi) which states:
Any other material breach by DEALER of DEALER's warranties, obligations or performance under the MAZDA Dealer Agreement.
The above-referenced basis for termination corresponds to cancellation under the 90-day notice provisions of Section 320.641(1) through (3), Florida Statutes, for that form of alleged misconduct on the part of the dealer.
Within the franchise agreement is the hierarchy of approaches to the process of dispute resolution. There is a separate document entitled DISPUTE RESOLUTION. It calls for resolving issues of dealer compliance with the agreement by:
I. Non-Judicial Resolution, II: Third Party-Non Judicial Resolution and III. Judicial Resolution. In this case the model for dispute resolution incorporated into the franchise agreement was not followed.
History of the Franchise
Nolette moved dealer operations related to sale of Mazda motor vehicles from a location on the south side of U.S. Highway 441 in Leesburg, Florida, to the north side of that roadway. With the move, the dealership sales operation was located at 9007 South Highway 441, with parts and service being provided at that location and at 8925 South Highway 441.
Most of the parts and service functions performed by Nolette for Mazda were done at the 8925 South Highway 441 address. That address was principally for the benefit of Plaza Lincoln-Mercury, sales, service, and parts. Plaza Lincoln- Mercury is part of the Nolette group of dealer franchises. The Plaza Lincoln-Mercury franchise is in association with the sale of Lincoln-Mercury products. The Plaza Lincoln-Mercury facility at 8925 South Highway 441, was adjacent to the Nolette facility for Mazda located at 9007 South Highway 441.
Norman Ramsey, district manager for Mazda was assigned the task of ensuring customer satisfaction and promoting sales of Mazda motor vehicles, having in mind profitability of the respective Mazda franchise dealers. Nolette was one of the dealers Mr. Ramsey served. He performed that function in relation to Nolette from its inception through the end of June 1997.
Following approval of the move of the Mazda operation to the 9007 address, Mr. Ramsey called upon Nolette. At that
time the process of moving had not been completed. Mazda motor vehicles were not fully displayed. Mr. Ramsey brought this to the attention of Mr. Colby who was the general manager for "the entire facility." Mr. Colby arranged for an acceptable display of the Mazda motor vehicles and removed used cars that were at the 9007 location that were infringing upon the display area that was allotted for new Mazda motor vehicles.
After bringing the problem to the attention of the general sales manager new Mazda vehicles were displayed along the side of the facility at 9007, as well as across the front of that building. Part of the reason for not displaying the new Mazda motor vehicles at the inception of the relocation of the dealership to the 9007 address was the need for renovation involving painting, so the dealer was unable to display the cars at the front of the facility under an overhang until those activities were complete.
Upon his initial visit to the 9007 address where the facility was being renovated, Mazda signs were not in place at the facility. Eventually the signs were installed.
Upon the initial visit by Mr. Ramsey to the new location at 9007 South Highway 441, the Mazda business computer for the benefit of Nolette was not in place, a sales force was not in place, and a sales manager for Nolette was not assigned exclusively to Mazda sales functions. All these matters that
were incomplete were brought to the attention of Nolette through remarks by Mr. Ramsey.
Subsequently, Nolette provided sales management that was exclusive to Mazda and exclusive sales persons were hired to sell Mazda motor vehicles through Nolette.
During Mr. Ramsey's tenure as the district manager serving Nolette, the Nolette sales manager exclusive to Mazda had an office in the facility at 9007 South Highway 441, and the sales persons had offices in that facility.
During the course of the time that Mr. Ramsey served Nolette, Joseph Nolette, President of the Nolette operation for Mazda, never expressed any confusion about the requirement for having an exclusive sales manager for Mazda and sales force for Mazda in the facility at 9007 South Highway 441.
The computers for conducting business between Nolette and Mazda in the sales, servicing, and parts provision of Mazda products was located at the Plaza Lincoln-Mercury address at 8925 South Highway 441, at all times.
Mr. Ramsey's attempts to have the computer moved from the Plaza Lincoln-Mercury address at 8925 South Highway 441 to the Nolette operation at 9007 South Highway 441 for Mazda were unsuccessful. Mr. Ramsey expressed the opinion that if the computers in relation to Mazda and its dealer, Nolette, had been located at the 9007 South Highway 441 facility, it would have
made the sales function easier for the Nolette sales staff. That opinion is credited.
The computer system between Mazda and its respective dealers is referred to as the Mazda Dealer Communication System. The system allows dealers to order vehicles, to report information about dealer operations, to download reports from Mazda to its dealers, and to communicate through e-mail. More specifically, the computer communications between Mazda and its dealers allow for publication of bulletins, notification of dealer incentives, notification of the training register, dealer communication of financial statements to Mazda, and warranty inquiries concerning maintenance of Mazda motor vehicles under warranty.
When Mr. Ramsey made periodic visits to the Nolette operation for Mazda he observed business being conducted at the 9007 South Highway 441 facility. That is the location where he met the sales manager for Nolette exclusive to Mazda. Mr. Ramsey held training sessions in that location. Only on one occasion did Mr. Ramsey not find the facility at 9007 South Highway 441, staffed with sales persons or their sales manager. That occasion was May 28, 1997. After waiting for about 40 minutes on that date, Mr. Ramsey went to the adjacent Lincoln-Mercury facility and was told that the sales manager was out for personal reasons and the Nolette sales staff for Mazda were at lunch.
During his tenure as the district manager for Mazda, in coordination with the Nolette operation for Mazda, Mr. Ramsey would make telephone calls to Nolette that would be transferred to the facility at 9007 South Highway 441.
During Mr. Ramsey's tenure as the district manager for Mazda, in relation to Nolette, he encouraged Nolette to advertise more than Nolette had advertised in the past. Mr. Joseph Nolette asked for advertising funds from Mazda to assist in promoting the Mazda products. Mr. Ramsey secured a $2500 commitment as part of matching funds for advertising. Nolette never spent that money. Nolette made a second request for funds in the amount of $2500. Mazda did not approve this request given the nature of the request. It was a request for reimbursement of a direct mail program by Nolette.
During Mr. Ramsey's tenure as the district manager for Mazda and liaison to Nolette, he found that the Nolette sales were below the sales objective he had in mind. He describes the circumstance as being one in which Nolette had "room for growth." In furtherance of this opinion Mr. Ramsey pointed out that 20 percent of the Mazda sales in the Nolette market area were made by other Mazda dealers. Mr. Ramsey met with Mr. Joseph Nolette concerning the question of sales. Mr. Nolette offered no protest concerning the question of sales objectives for Nolette.
Mr. Nolette remarked that he realized the problem with sales and that Nolette was going to do better.
Mazda conducts a Dealer Business Review with its dealers at the end of each year in anticipation of the upcoming calendar year. Mr. Ramsey held a meeting to discuss the 1997 Dealer Business Review prepared by Mazda for Nolette. The discussion was held at the end of 1996. The Dealer Business Review had been mailed to Nolette prior to a meeting between Mr. Ramsey, Mr. Joseph Nolette, a Mazda service representative, and possibly a Mazda zone manager. The future sales objectives that are discussed in the Dealer Business Review and that were
discussed with Mr. Joseph Nolette on the occasion of the meeting held in latter part of 1996 are premised upon past sales. Mr.
Joseph Nolette did not disagree with the sales objectives set forth in the Dealer Business Review associated with Nolette held at that time in anticipation of the calendar year 1997. The discussion also included recommendations, that in the opinion of officials with Mazda, would assist the dealer in meeting the objectives discussed in the Dealer Business Review. The Dealer Business Review formed the basis for follow-up meetings in the calendar year 1997 to see what progress had been made toward meeting sales objectives.
The Dealer Business Review that Mazda prepared for Nolette, and other dealers, referred to care of customers, Mazda vehicle sales, Mazda service and labor, Mazda parts and accessories, customer satisfaction, and personnel, among other topics.
Mr. Joseph Nolette signed as having reviewed the planning objectives for 1997 in relation to the Nolette dealership.
In the course of the Dealer Business Review for 1997, Mazda noted that Nolette had been approved for its new location at 9007 South Highway 441, 60 days ago and took this into account in terms of the expectations of some of the dealer performance issues related to dealer facilities and requirements for capital. The Dealer Business Review for that period noted the need to upgrade training for personnel in some respects.
The stated objectives for Mazda motor vehicle sales by Nolette for 1997, were 82 car sales and 56 pick-up sales.
To the point in time that the 1997 Dealer Business Review was prepared, issues in relation to customer satisfaction had been met by Nolette when comparing the actual experience with the guidelines for those items. The guidelines were premised upon a comparison to the regional index.
In spite of the favorable showing in the 1997 Dealer Business Review for Nolette, the experience in the succeeding calendar year 1997 was not as positive in relation to customer satisfaction as noted by Mr. Ramsey in his contact reports for Nolette.
Mr. Ramsey documented in his contact reports for Nolette, the importance of moving the computer so that sales persons would not have to go to the Plaza Lincoln-Mercury
facility to use the computer in transacting business with Mazda. Although Nolette had promised to relocate the computer, it was not moved.
Mr. Ramsey in his tenure noted problems with sufficient levels of inventory by Nolette to succeed in meeting the sales objectives that Mazda and Nolette had agreed upon.
Mr. Ramsey was replaced as the Mazda district sales manager for the district that served Nolette. His replacement as district manager was Richard Pierce. Mr. Pierce served in the capacity of district sales manager for Nolette from the summer of 1997 into March 1998.
In serving Mazda dealerships at the time in question Mr. Pierce would visit a dealership of the size of Nolette about once a quarter.
Mr. Pierce perceived his job as the implementation and promotion of Mazda programs in relation to marketing of Mazda products and the administration of business standards pertaining to the franchisees.
Mr. Pierce first visited Nolette in September 1997. Before the visit, it had been reported that Mr. Joseph Nolette had expressed the desire to speak to Mr. Pierce about moving the facility from 9007 South Highway 441.
The initial meeting between Mr. Pierce and Mr. Joseph Nolette took place on September 15, 1997. Before the meeting Mr. Pierce observed that the appearance of the Nolette facility at
9007 South Highway 441, in terms of automobile product display, was in good order. The dealership was operating at that location.
At the September 15, 1997 meeting, Mr. Joseph Nolette described to Mr. Pierce the desire to move the Mazda operation into another facility on the property held by the overall Nolette operations. That other facility was a couple of doors down from the 9007 South Highway 441 location, on the other side of the Plaza Lincoln-Mercury dealership 8925 location. The facility where Mr. Joseph Nolette wanted to move the Mazda operation was being used to sell Jeep/Eagle motor vehicles. In the discussion of the intention to move the facility for Mazda from its current location to the Jeep/Eagle facility, Mr. Nolette explained his belief that this arrangement would make the Mazda dealership more viable, or as he described it, this should be done so that "he could make a good run at Mazda." Mr. Nolette explained that the Eagle line was being phased out and that he believed the remaining Jeep products would make a good match with Mazda products, in that at that point in time Mazda did not have a sports utility vehicle for sale and Jeep did offer those products. Mr. Joseph Nolette then took Mr. Pierce to see the Jeep/Eagle facility on the property.
The response by Mr. Pierce to the proposal was that he thought it had some merit. Mr. Pierce told Mr. Joseph Nolette he would take the proposal back to the Mazda headquarters in
Jacksonville, Florida. In the interim Mr. Pierce explained to Mr. Joseph Nolette that Mr. Nolette needed to put together a business plan for the move because several areas needed to be addressed before Mazda would be willing to consider the move; those areas included low customer satisfaction, poor retail sales, and other related matters.
In the September 15, 1997 meeting, between Mr. Pierce and Mr. Joseph Nolette, Mr. Pierce indicated his acceptance of having Mazda vehicles displayed at the Lincoln-Mercury location at 8925 South Highway 441, but the unacceptability of having Mazda motor vehicles displayed at the Jeep/Eagle Nolette location. Prior to the visit Mazda motor vehicles had been displayed at both the Lincoln-Mercury and Jeep/Eagle Nolette dealerships.
Mr. Pierce told Mr. Joseph Nolette that a package explaining what would be required for a move would be sent from Mazda to Nolette containing forms that must be completed and submitted to the Mazda region for consideration of the move. That package of materials was sent from Mazda to Nolette. Those items were not executed by Nolette and returned to Mazda for consideration.
Pending the execution of the application for a move by Nolette, Mr. Pierce had spoken with a Nick White, the dealer development manager for Mazda in the region. Mr. White expressed the opinion that Mazda did not wish to have its products moved
from the existing facility at 9007 South Highway 441 to the Jeep/Eagle facility on the property. This conversation was followed by a telephone conversation between Mr. Pierce and Mr. Joseph Nolette that took place on September 29, 1997, in
which Mr. Pierce told Mr. Joseph Nolette "absolutely don't mess this up. Don't move any vehicles. Don't move anything, you know, Mazda, don't move it," to which Mr. Joseph Nolette replied "No problem." By this Mr. Joseph Nolette meant that he was not going to move the Mazda dealership from the existing location to the Jeep/Eagle location without permission. Such a move without permission was considered by Mr. Pierce to be a violation of the dealer agreement. The move of any product, including equipment, would constitute that violation.
During the September 15, 1997 meeting, Mr. Joseph Nolette made no mention to Mr. Pierce of any problems with maintaining sufficient sales personnel at the Nolette location at 9007 South Highway 441, to include the ability to maintain an exclusive sales manager for the Mazda dealer operation.
On October 24, 1997, when Mr. White sent material to Mr. Joseph Nolette concerning the possible move of the dealership, those forms for requesting the relocation were sent under cover letter which said, "please ensure no relocation of the Mazda Franchise takes place without Mazda's formal written authorization."
The next contact between Mr. Pierce and Nolette was in the interest of conducting the Dealer Business Review for the upcoming 1998 calendar year. Before going to a meeting concerning that Dealer Business Review, Mr. Pierce called
Mr. Joseph Nolette on December 9, 1997, to arrange the meeting. Mr. Joseph Nolette agreed to the meeting.
The 1998 Dealer Business Review meeting commenced on December 11, 1997. Mr. Pierce was accompanied by Mike Von Balson, district customer support manager for Mazda. Mr. Joseph Nolette met those persons unaccompanied. At the meeting
Mr. Pierce inquired about the state of the paperwork necessary to move from 9007 South Highway 441 to the Jeep/Eagle location on the property. Mr. Joseph Nolette responded that there would not be a move to that new location in that Mr. Joseph Nolette had a potential buyer for the Mazda franchise. The name of the potential buyer was not revealed. The issue of whether the potential buyer would wish to relocate the dealership was not discussed.
Under the circumstances the 1998 Dealer Business Review meeting was not conducted because Mr. Joseph Nolette was contemplating the sale of the franchise. When Mr. Pierce indicated that the meeting would not take place, Mr. Joseph Nolette did not indicate any desire to have the 1998 Dealer Business Review meeting conducted under the circumstances. Instead Mr. Pierce asked Mr. Joseph Nolette to write a buyer's
assistance letter pertaining to the prospective purchaser of the franchise. The buyer's assistance letter was designed to notify Mazda of the intent of Nolette to sell the franchise. Mr. Joseph Nolette provided the buyer's assistance letter requested.
At this juncture Mr. Joseph Nolette offered no indication that he had taken action in furtherance of moving the dealership from 9007 South Highway 441, nor had he obtained permission from Mazda to do so. Within Mr. Pierce's experience Mr. Joseph Nolette never officially asked to relocate from 9007 South Highway 441 or to change the business operation.
No discussion was held in the December 11, 1997 meeting, about any problems that Mr. Joseph Nolette may have had in retaining a sales force at the 9007 South Highway 441 location, to include a sales manager. Generally stated, in that meeting, Mr. Joseph Nolette did not express the opinion that he was experiencing any difficulties in association with the conduct of the dealership at the 9007 South Highway 441 location. Finally, Mr. Joseph Nolette gave no explanation of why he intended to sell the dealership.
On January 16, 1998, in conversation between Mr. Pierce and Mr. Joseph Nolette, Mr. Nolette informed Mr. Pierce that
Mr. Nolette "wants to make a go with Mazda." This is taken to mean that, at that point, Mr. Joseph Nolette no longer desired to sell the dealership.
Around this time, Mr. Pierce had telephone contact with Daniel Tully in which it was agreed that Mr. Pierce would come for a visit to the Nolette dealership for Mazda. At that time Mr. Tully was the general sales manager for Plaza Lincoln-Mercury and Nolette's Mazda dealership.
The Abandonment
The meeting that had been arranged was held on February 13, 1998, between Mr. Pierce and Mr. Tully, at the location of the Plaza Lincoln-Mercury dealership. In conversation, Mr. Pierce determined that there was no exclusive sales manager working for Nolette in its Mazda operation at 9007 South Highway 441.
On this date Mr. Pierce had gone to the Nolette dealership at 9007 South Highway 441, to observe the conditions. The door was locked. There were no Mazda products being displayed, that is new Mazdas being displayed in the traditional Mazda sales area at that facility. The lights were off in the building; file boxes were stacked around inside the building; and the offices in the building were in disarray. Trash was piled on the floors in the facility. The exterior of the facility was overgrown with weeds; trash was found outside the building; the building facade had rotten wood in it; and the building needed painting and cleaning.
Service technicians were working at the back of the facility at 9007 South Highway 441.
Mr. Pierce waited around for 15 or 20 minutes to see if he was going to be assisted. When no one came to greet him,
Mr. Pierce went over to the Plaza Lincoln-Mercury facility at 8925 South Highway 441, and met Mr. Tully.
Upon entering into conversation with Mr. Tully,
Mr. Pierce told Mr. Tully that Mr. Pierce had come from the 9007 South Highway 441 facility and found it closed, filthy, and unattended. Mr. Tully responded that he was aware of the conditions at 9007 South Highway 441; however, Mr. Tully stated that sometime by the end of February 1998 the facility at 9007 South Highway 441 was to be refurbished and fully staffed and put in operation. No other explanation was made. Mr. Pierce responded that the conditions at the facility were unacceptable.
At some point in the conversation with Mr. Tully,
Mr. Pierce decided that he needed to talk to Mr. Joseph Nolette to ascertain the reason for the conditions of the dealership at 9007 South Highway 441. Mr. Pierce was unable to speak to
Mr. Joseph Nolette at that time.
Eventually Mr. Pierce spoke to Mr. Joseph Nolette by telephone on February 18, 1998. Mr. Pierce began the conversation by stating, "I don't know if you are aware or not, but I was in the dealership last Friday, spoke with Danny Tully, met with Danny Tully. The facility was closed. It was in deplorable condition, weeds growing up, no product. The new cars, Mazda new cars were over in front of the Lincoln-Mercury
facility." Mr. Pierce then told Mr. Joseph Nolette that
Mr. Pierce could not allow the Mazda customers to "go through that." Mr. Joseph Nolette became agitated and raised his voice. Mr. Joseph Nolette told Mr. Pierce that he could not monitor and supervise the sales staff over there, that is, at 9007 South Highway 441. Mr. Joseph Nolette said that the sales people were not interested in selling just Mazdas out of the facility at 9007 South Highway 441, and for that reason Mr. Joseph Nolette had moved the facility. Mr. Joseph Nolette said he wasn't going to be in a facility where he could not get anyone to sell Mazdas.
Mr. Joseph Nolette concluded his remarks by stating, "find me a buyer."
Mr. Pierce let Nick White, the dealer development manager for Mazda, know the details of Mr. Pierce's findings about the condition of the Nolette dealership at 9007 South Highway 441.
Following a meeting between Mr. Pierce and other officials for Mazda, Mr. Pierce was requested to return to the 9007 South Highway 441 location and survey the operation. He did return on February 24, 1998, took pictures of the conditions, and made an observation of the conditions. All together, his return involved several visits on February 24, 26, and 27, 1998, during which he took photographs. Mr. Pierce observed, and photographs depict, the location of new Mazda products in front of the 8925 South Highway 441 facility for Plaza Lincoln-Mercury. He
observed, and the photographs portray, service technicians working in the service area of the facility at 9007 South Highway
441. In front of the Mazda facility at 9007 South Highway 441, where new Mazda cars were supposed to be displayed, there were a number of used cars as he observed and photographed. The used cars that were displayed in front of the facility at 9007 South Highway 441 included other manufacturers products and a Mazda product. The other products included Cadillac, Ford, and Lincoln.
The 9007 South Highway 441 facility was not open on February 24, 26, and 27, 1998. The circumstances which Mr. Pierce saw on February 24, 26, and 27, 1998, were essentially the same as he had observed on February 13, 1998, concerning sales staffing, the condition of the facility and grounds at 9007 South Highway 441, and the placement of motor vehicles.
From the evidence presented at hearing it is found that Nolette was not engaged in its overall business, in particular for purposes of selling Mazda products at the 9007 South Highway
441 facility for the period February 16, 1998, through
February 27, 1998, as alleged in the notice of intent to cancel the franchise, taking into account that Nolette was not typically open for sales on Sundays. February 22, 1998, was a Sunday.
Instead of the appropriate dealer operations for sales of Mazda products, they were being conducted at the Plaza Lincoln-Mercury
facility at 8925 South Highway 441, where the dealer sales staff was located and new Mazda cars were being displayed.
Mr. Joseph Nolette concedes that in February 1998, Nolette was not running its sales operations out of the 9007 South Highway 441 facility. The sales staff was at the Lincoln- Mercury location at 8925 South Highway 441.
Mr. Joseph Nolette acknowledged that in February 1998 some of the Mazda products were being displayed for sale in front of the Lincoln-Mercury location at 8925 South Highway 441.
Mr. Pierce subsequently returned to the dealership on March 5, 1998, to deliver the notice of intended termination. Service of that notice was made on Mr. Louis Nolette, son of
Mr. Joseph Nolette. Mr. Pierce reminded Mr. Louis Nolette of the importance of the notification and asked that Mr. Louis Nolette make sure that Mr. Joseph Nolette received the notice. The details of the notice of intended termination that have been described in the preliminary statement are incorporated by reference in the fact-finding.
Material Breaches
Concerning other allegations of Nolette's non- compliance with its dealer obligations, Mr. Ramsey identified the expectation for maintenance and display of adequate Mazda inventory under the franchise agreement, Basic Agreement, I. Sales and Service Obligations of Mazda and Dealer, 2.(b) DEALER's Obligations. He established the number would be a minimal 60-day
supply based upon the forecast of sales as set forth in the Dealer Business Review, in addition to another 30-day supply of cars that were on order.
To accommodate the process of establishing adequate inventory, the Mazda ordering procedure is conducted bi-weekly; this according to Mr. John Cunningham, regional sales planning manager for Mazda. The orders for the motor vehicles are placed through the Mazda Dealer Computer System. That system shows the number of vehicles that the dealer physically has in the inventory and the number that are in-transit to the dealer. If need be, the dealer may pull up inventory information daily. The same computer tells the dealer the number of vehicles that the dealer has earned through an allocation system. This is referred to as the initial earnings. That earnings statement is based on past sales by the dealer. The earnings are subject to being changed once the dealer begins to place orders. The initial earnings are also subject to changes in availability of motor vehicles from Mazda through the provision of more motor vehicles than was first anticipated in the allocation.
In the allocation system, dealers do not always accept the motor vehicles that they have earned. This makes those vehicles, earned but not accepted, available to other dealers through the allocation process. Any additional motor vehicles over and above the initial allocation which are ordered by a
dealer would be reflected in the dealer's final earnings in the allocation process.
As established by Mr. Cunningham, within the time pertinent to this inquiry, Mazda dealers did not generally have difficulty in obtaining motor vehicles ordered from Mazda, to include additional motor vehicles ordered. Therefore, Nolette did not experience difficulty in obtaining motor vehicles it had ordered from Mazda in the relevant time period.
During the period in question, Nolette and other Mazda dealers would be sent only motor vehicles from Mazda that were exact matches to the orders placed. The remaining categories of motor vehicles that would be available to Nolette and other dealers would be sent to a dealer upon query from the district sales manager to the dealer about the interest that the dealer would have in receiving the other categories. Those other categories were different from what the dealer had requested, with the last of those categories being one in which none of the details of the request by the dealer were being honored.
Mr. Ramsey, in responding to orders from Nolette during his tenure as district manager for Mazda, carried forward the normal process for conducting business with Nolette concerning orders of Mazda motor vehicles. This process included the placement of orders by Nolette for motor vehicles that were not the exact matches that Nolette had requested.
Any problems which Nolette experienced in its motor vehicle product-mix from Mazda were based upon shortcomings within the Nolette organization and were not attributable to actions by Mazda. From the inception Mazda made reasonable efforts to make certain that adequate inventory was available to Nolette to succeed at the 9007 South Highway 441 address.
In the period July 1, 1997 through March 1, 1998, Nolette placed one order and accepted four vehicles through the ordering process reflected on the report dated November 4, 1997, maintained by Mazda. No other subsequent orders were placed. This lack of activity in ordering additional product constitutes a failure to maintain and display adequate inventory contemplated by the franchise agreement, Basic Agreement, I. Sales and Service Obligations of Mazda and Dealer, 2.(b) Dealer's Obligations.
Under terms of the franchise agreement, Basic Agreement, I. Sales and Service Obligations of Mazda and Dealer, Dealer's Obligations. 2.(d)-(i) are stated the expectations that Nolette will advertise and promote Mazda products energetically and effectively. In particular, the Mazda Southeast regional manager, John English, identified the importance of advertising in that it brings prospective customers into the showrooms to buy Mazda products. By comparison to standards within the region, constituted of states including Florida and extending North to Virginia and West to Alabama, Nolette expended substantially less money in advertising compared to the regional experience in the
period in question. Moreover, as Mr. English established in his testimony, the nature of the advertising that was conducted by Nolette failed to distinguish the advertisement of Mazda products from that of Lincoln-Mercury products in a February 1998 newspaper advertisement. That advertisement did not reference the part of the Nolette family of dealerships that was associated with Mazda. The advertisement only showed two photographs of Mazda motor vehicles in the midst of a number of photographs of used motor vehicles. Under those circumstances it was less-than- effective advertising.
Mr. English pointed out that the experience of the Nolette sales staff in participating in certified training programs offered by Mazda was non-existent as of February 13, 1998. Reports of participation or lack of participation were available to Nolette in relevant time periods.
Mr. English pointed out that only one of the two Nolette technicians servicing Mazda products had completed necessary required courses to be certified as a master technician for Mazda based upon a January 30, 1998 report generated by Mazda.
Mr. English identified the importance of receiving training for sales and service from Mazda, in that it had an impact on customer satisfaction.
Within the franchise agreement, Basic Agreement, III. Customer Satisfaction, 3.(a) Dealer's Obligations, there is the
expectation that the dealer provide adequate training for staff to promote customer satisfaction in matters of sales, service, parts, and related administration to ensure that its dealers understand the level of performance of staff. In the area of customer satisfaction Mazda provides monthly reports. The annual Dealer Business Review also reflects performance in customer satisfaction by dealers.
The basis for rating Mazda dealers for customer satisfaction is customer surveys. A comparison of the 1997 Dealer Business Review for Nolette to the 1998 Dealer Business Review for that dealer reflects a decline in performance related to customer satisfaction.
As with the franchise agreement, the Letter of Intent contemplated in paragraph 2.1, as that provision referred to paragraph 1.1, that the Mazda show room should be separate and located at 9007 South Highway 441. This was in relation to exclusive Mazda sales operations. The provision of service and parts would be at both the 9007 South Highway 441, and 8925 South Highway 441 locations. Mr. English in his testimony established the importance of having a separate facility based upon the Mazda experience in the Southeast region where those exclusive show rooms created higher volumes of traffic per outlet, leading to higher profitability.
As explained before, Nolette failed to maintain a separate show room at 9007 South Highway 441 in the period February 16 through February 27, 1998.
Paragraph 4.1 in the Letter of Intent emphasizes the need for Nolette to meet sales' objectives and for Mazda to examine the actual sale's performance against the projected sales objective. Nolette was obligated to sell Mazda motor vehicles at a rate equal to or in excess of the average performance of Mazda dealers in the Southeast region, based upon the percentage of actual sales compared to the sales objective forecast. The performance standard was to be examined annually with corrections made to the performance within 60 days, failing which Nolette was to work with Mazda to remedy the deficiencies in sales.
Although Nolette had not met the sales objectives forecast in the 1997 Dealer Business Review when considering the actual sales performance for the 1997 calendar year, its performance was comparable to other dealers within the region for the 1997 calendar year. Thus, Nolette did not offend the expectations of paragraph 4.1 in the Letter of Intent when considered in the context of the allegations set forth in the notice of intended termination. This finding is confirmed on the basis of a statistical analysis offered in the 1999 Dealer Business Review for Nolette which reflects the Nolette performance in car sales and pick-up truck sales for the calendar year 1997, when compared to the regional experience for Mazda
dealers. This shows that Nolette holds 6.6 percent of car sales as a part of the import motor vehicle industry in that reporting period, whereas the regional experience for Mazda dealers was 6.8 percent of the import car sales. The Nolette experience for
pick-up trucks in the 1997 calendar year was 6.4 percent compared to total import sales. The regional experience for Mazda dealers was 4.4 percent of the import sales for pick-up trucks. Under the circumstances the fact that Nolette could have done better had it not chosen to remove its dealer operations from 9007 South Highway 441 to 8925 South Highway 441, had made the Mazda computer available at 9007 South Highway 441, had maintained a better inventory, and had offered more advertising, is irrelevant to consideration of the alleged violation of the terms of paragraph 4.1 in the Letter of Intent when performance results have been determined for the calendar year 1997 for Nolette and other Mazda Southeast regional dealers.
To the extent that the allegation set forth in the notice of termination pertaining to the Nolette's alleged non- compliance with the expectations of paragraph 4.1 of the Letter of Intent would extend to performance in the 1998 calendar year, the 1999 Dealer Business Review for Nolette reflecting the experiencing within the first three quarters of calendar year 1998 show Nolette at 6.9 percent of car sales compared to overall imports. The regional performance for car sales compared to the overall imports was 6.6 percent. The Nolette sales of pick-up
trucks compared to the overall imports was 4.5 percent. The regional experience for Mazda dealers compared to overall imports was 4.9 percent. These figures reflect Nolette's performance compared to the region as equivalent to that for the region.
Paragraph 2.4 within the Letter of Intent speaks to the expectations of working-capital for Nolette at a ratio of 1.3: 1.0 current assets to current liabilities. As of January 1998, Nolette had total current assets of $362,289. and total current liabilities of $370,884, substantially in violation of the standard for ratios.
Within the Letter of Intent are found the aforementioned paragraphs 2.2, 2.5, 2.6, and 3.3 dealing with the personnel requirements for Nolette. In February 1998, Nolette did not have separate and exclusive sales management as contemplated by paragraph 2.2 for the Mazda products or a full- time Mazda general manager/general sales manager for dealer operations in Mazda products contemplated by paragraph 2.5. The person in charge, Mr. Tully, as manager for Nolette's operation for Mazda had the additional duties of serving as general sales manager for Nolette's Lincoln-Mercury operation.
Mr. English described the importance of having the exclusive management for Mazda at the Nolette dealership. He established that the person is the principal liaison between the dealership and Mazda. The sales manager approves deals, oversees
operations of sales persons, and ensures customer satisfaction in accordance with recognized procedures.
Contrary to paragraph 2.6 within the Letter of Intent, as of January 30, 1998, Nolette had failed to ensure that six service technicians had completed all required service training classes within six months of Nolette's becoming operational in the servicing of Mazda products.
Based upon the answer which Nolette provided to Mazda through interrogatory no. 5 propounded by Mazda, Nolette did not retain a customer relations manager for Mazda products as required by paragraph 3.3 of the letter of intent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties thereto in this proceeding in accordance with Sections 120.569 and 120.57(1), Florida Statutes.
Motion to Dismiss
Nolette has moved to dismiss this case. As grounds, Nolette alleges that the issues framed by the notice of intended termination sent out on March 5, 1998, from Mazda to Nolette, have been rendered moot. The basis for Nolette's claim of mootness concerns the December 22, 1998 issuance of notice pursuant to Section 320.641, Florida Statutes, by Mazda to Nolette concerning a new Mazda dealer agreement. The notification contained provisions of the new dealer agreement
intended to replace and supercede the old dealer agreement, according to the notice. Nolette responded to the notice. The Nolette response was made on January 11, 1999, notifying Mazda that Nolette accepted the new dealer agreement. Under those circumstances Nolette argues that Mazda and Nolette have entered into a franchise agreement under the terms of what is described in the notice as the new dealer agreement. Mazda argues in opposition to the motion to dismiss, contending that it was obligated to give notification to Nolette of the pendency of the new dealer agreement in the same manner as its obligation to provide notice to its other dealers of the pendency of the new dealer agreement. Mazda further argues that this notification was not intended and did not by its terms set aside the pending administrative case to consider cancellation of Nolette's current franchise with Mazda for the reasons stated in the March 5, 1998 notice of intended termination.
Section 320.641(1), Florida Statutes, makes it incumbent upon Mazda to give written notice of its intent to cancel the Nolette franchise by providing 90-days' notice. That same provision makes it necessary for Mazda to given written notice of Mazda's intent to modify a franchise when that modification could be considered as adversely altering the rights or obligations of Nolette under the preexisting franchise agreement. The same timeline for notice of the modification pertains as with the notification of cancellation. Arguably,
Mazda was not obligated to provide notice to Nolette concerning its intended modification of the franchise agreement when recognizing the pendency of the attempt to cancel the existing franchise agreement. An equally valid argument could be made that Mazda is not allowed to be disparate in its treatment of Nolette compared to other dealers in its business dealings which contemplate changes to the dealer agreement as announced in notification to Nolette on December 22, 1998, and pertaining to other Mazda dealers. Within that reasoning, should Nolette be successful in the present litigation, Nolette would be entitled to the same opportunity as other dealers. Mazda took the cautious view in providing Nolette notification of the pendency of a new dealer agreement that was comparable to the notice given to Mazda's other dealers. In an attempt to treat its respective dealers equally, nothing in the form of notification given by Mazda to Nolette explicitly set aside the pending case calling for cancellation of the preexisting franchise held by Nolette.
Consequently, Nolette's acceptance of provisions of the new dealer agreement are conditioned upon Nolette's successful resolution of the present case calling for cancellation of the preexisting franchise agreement. Just as importantly, the necessary execution and approval of the new dealer agreement by Mazda has not been accomplished. Absent the execution and approval by Mazda, the new dealer agreement has not been entered into with finality. Moreover, the length of the agreement has
not been established between the parties. Specific information to be provided by the dealer under terms of the new dealer agreement has not been provided by Nolette. Without this information concerning the length of the dealer agreement and the specific information concerning the Nolette operation, the new dealer agreement has not been executed. In summary, there has not been a substitution of a new dealer agreement in replacement of the existing dealer agreement under consideration in this case; the conflict concerning compliance with the existing dealer agreement has not been resolved, has not been made moot, and the motion to dismiss should be denied.
Abandonment
The initial count in the notice of intended termination refers to action against Nolette's franchise agreement for alleged abandonment of that agreement. The statutory provisions pertaining to abandonment set forth at Section 320.641(4) and (5), Florida Statutes, states:
Notwithstanding any other provision of this section, the failure of a motor vehicle dealer to be engaged in business with the public for 10 consecutive business days constitutes abandonment by the dealer of his or her franchise agreement. If any motor vehicle dealer abandons his or her franchise agreement, he or she has no cause of action under this section. For the purpose of this section, a dealer shall be considered to be engaged in business with the public if a sales and service facility is open and is performing such services 8 hours a day, 5 days a week, excluding holidays. However, it will not be considered abandonment if such failure to engage in business is due to an
act of God, a work stoppage, or a delay due to a strike or labor difficulty, a freight embargo, or other cause over which the motor vehicle dealer has no control, including any violation of ss. 320.60-320.70.
Notwithstanding any other provision of his section, if a motor vehicle dealer had abandoned his or her franchise agreement as provided in subsection (4), the licensee may give written notice to the dealer and the department of the licensee's intention to discontinue, cancel, or fail to renew the franchise agreement with the dealer at least
15 days before the effective date thereof, specifying the grounds for such action. A motor vehicle dealer receiving such notice may file a petition or complaint for determination of whether in fact there has been an abandonment of the franchise.
In accordance with Section 320.641(5), Florida Statutes, Nolette timely filed a petition or complaint for determination of the issue of the alleged abandonment of the franchise. This pleading formed the basis for considering the dispute. The statutory obligation to timely challenge the notification of abandonment did not place the burden on Nolette to prove that it had not abandoned its franchise. Mazda bore the burden to prove the affirmative, that is, Nolette's abandonment of the franchise agreement under terms set forth in Section 320.641(4) and (5), Florida Statutes.
Consistent with the procedures set forth in the statute, Mazda provided Nolette appropriate notice of the intent to cancel for abandonment. Additionally, that notice did not depart from the procedural expectations set forth in the franchise agreement having to do with the immediate opportunity
to proceed against a franchisee for alleged abandonment. Given that the franchise agreement contemplated a less stringent requirement, 7 or more consecutive days, compared to the statutory requirement of 10 consecutive business days to demonstrate abandonment, the statutory provision which is less advantageous to the accuser pertains. Only in an instance where the statute required a lesser showing to prove abandonment compared to the expectations of a franchise agreement would the franchise agreement take precedence in terms for the proof of the number of days in which a dealer was not engaged in business.
Under language in the statute at Section 320.641(4) and (5), Florida Statutes, Mazda must prove that Nolette failed to engage in business with the public for 10 consecutive days, consistent with the allegation that Nolette was not engaged during the period February 16, 1998 through February 27, 1998. Mazda has made that showing by the required preponderance of evidence. Under its business operations Nolette was entitled to be closed on February 22, 1998. It was not entitled to be disengaged on the other dates that have been described.
Nolette's obligation was to operate at the 9007 South Highway 441 location on those dates. Instead the facility at 9007 had been closed precluding engagement in the business with the public upon those dates. The closure was by Nolette's choice, unauthorized by Mazda and not due to any act recognized within the statute as constituting good and sufficient cause for failing to be engaged
in business on those dates. Specifically, the failure to be engaged in business was in relation to the sales function to be performed for the benefit of the public. The fact that service functions were being performed at the 9007 location does not defend Nolette from the claim of abandonment. Both sales and service must be conducted for the dealer to be considered as engaged in business with the public during the timeframe at issue.
Finally, neither the statute nor the franchise agreement contemplate the use of alternate forms of dispute resolution for this type of dealer violation of its contract obligations given the immediacy of the problem.
Alleged Material and Substantial Breaches
Count II to the notice of intended termination alleges that Nolette committed material and substantial breaches of the franchise agreement within the meaning Section 320.641(1) through (3), Florida Statutes, which states:
(1)(a) An applicant or licensee shall give written notice to the motor vehicle dealer and the department of the licensee's intention to discontinue, cancel, or fail to renew a franchise agreement or of the licensee's intention to modify a franchise or replace a franchise with a succeeding franchise, which modification or replacement will adversely alter the rights or obligations of a motor vehicle dealer under an existing franchise agreement or will substantially impair the sales, service obligations, or investment of the motor vehicle dealer, at least 90 days before the
effective date thereof, together with the specific grounds for such action.
The failure of the licensee to comply with the 90-day notice period and procedure prescribed herein shall render voidable, at the option of the motor vehicle dealer, any discontinuation, cancellation, nonrenewal, modification, or replacement of any franchise agreement. Designation of a franchise agreement at a specific location as a "nondesignated point" shall be deemed an evasion of this section and constitutes an unfair cancellation.
Franchise agreements are deemed to be continuing unless the applicant or licensee has notified the department of the discontinuation of, cancellation of, failure to renew, modification of, or replacement of the agreement of any of its motor vehicle dealers; and annual renewal of the license provided for under ss. 320.60-320.70 is not necessary for any cause of action against the licensee.
Any motor vehicle dealer whose franchise agreement is discontinued, canceled, not renewed, modified, or replaced may, within the 90-day notice period, file a petition or complaint for a determination of whether such action is an unfair or prohibited discontinuation, cancellation, nonrenewal, modification, or replacement. Agreements and certificates of appointment shall continue in effect until final determination of the issues raised in such petition or complaint by the motor vehicle dealer. A discontinuation, cancellation, or nonrenewal of a franchise agreement is unfair if it is not clearly permitted by the franchise agreement; is not undertaken in good faith; is not undertaken for good cause; or is based on an alleged breach of the franchise agreement which is not in fact a material and substantial breach.
In response to the notice of intended termination for alleged material breaches, Nolette timely filed a complaint in opposition to the notice.
In the language set forth in Section 320.641(1) through (3), Florida Statutes, Mazda bore the burden to establish the facts supporting its notice of intended termination. Once that proof was made, Nolette bore the burden to prove that the grounds shown were unfair, in that they were not clearly permitted by the franchise agreement; not undertaken in good faith; not undertaken for good cause or not based upon conduct which in fact constituted a material and substantial breach.
With the exception of the allegations of material breaches in relation to the failure to comply with paragraph 4.1 of the Letter of Intent concerning sales, Mazda has made its case concerning a prima facie showing of material and substantial violations alleged in the notice of intent to terminate. Nonetheless, Nolette has successfully defended those allegations by showing a lack of good faith by Mazda in carrying forth the procedures in the franchise agreement that would lead to prosecution of alleged material and substantial breaches of the franchise agreement by Nolette. The failure by Mazda concerns the expectation of the franchise agreement in the Renewal and Termination, II. Termination, No. 4. Termination for Cause by Mazda 4.(b). That provision makes it necessary for Mazda to notice Nolette of the alleged substantial breaches under the
Mazda dealer agreement as referred to at (vii). Under the language in the franchise agreement Mazda was obligated to provide written notice to Nolette that Nolette had 60 days following that notice of the existence of the material breaches and to remedy those circumstances. If not remedied, Mazda under the franchise agreement is allowed to give further notice of its intent to terminate immediately following that second notice.
Then Mazda would be allowed to exercise the terms of the regulatory process identified in Section 320.641(1) through (3), Florida Statutes, by complying with the notice requirements in the statute. However, Mazda may not avail itself of the opportunities set forth in the statutory notice of intended termination, if, as here, Mazda has failed to comply with the preliminary notice requirements of the franchise agreement.
With this outcome Nolette's attorney is not entitled to attorney's fees and costs as requested.
Upon consideration of the facts found and conclusions of law reached, it is
RECOMMENDED:
That a final order be entered canceling the Nolette franchise agreement with Mazda based upon abandonment.
DONE AND ENTERED this 12th day of May, 1999, in Tallahassee, Leon County, Florida.
CHARLES C. ADAMS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1999.
COPIES FURNISHED:
Hugh A. Davis, II, Esquire
D. Robuck, Jr., P.A. 610 East Main Street Leesburg, Florida 34748
Dean Bunch, Esquire
Kelly A. O'Keefe, Esquire Southerland, Asbill & Brennan, L.L.P. 2282 Killearn Center Boulevard Tallahassee, Florida 32308
Charles J. Brantley, Director Division of Motor Vehicles Department of Highway Safety
and Motor Vehicles
Neil Kirkman Building, Suite B439 Tallahassee, Florida 32399-0500
Enoch Jon Whitney, General Counsel Department of Highway Safety
and Motor Vehicles Neil Kirkman Building
Tallahassee, Florida 32399-0500
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Aug. 16, 1999 | Final Order filed. |
| May 12, 1999 | Recommended Order sent out. CASE CLOSED. Hearing held 01/19-29\99. |
| Mar. 16, 1999 | Respondent Mazda Motor of America, Inc.`s Proposed Recommended Order filed. |
| Mar. 16, 1999 | (H. Davis) Proposed Recommended Order (For Judge Signature) filed. |
| Mar. 08, 1999 | Motion for Extension of Time (Petitioner) (filed via facsimile). |
| Feb. 09, 1999 | (2 Volumes) Transcript filed. |
| Jan. 19, 1999 | CASE STATUS: Hearing Held. |
| Jan. 14, 1999 | Petitioner Nolette Motors, Inc. d/b/a Plaza Mazda`s Response to Respondent Mazda Motor of America, Inc.`s Request for Production of Documents filed. |
| Jan. 14, 1999 | (Petitioner) Motion to Dismiss; Petitioner`s Notice of Serving Answers to Interrogatories filed. |
| Jan. 13, 1999 | Petitioner Nolette Motors, Inc. d/b/a Plaza Mazda`s Objection to Respondent Mazda Motor of America, Inc.`s Notice of Taking Deposition (filed via facsimile). |
| Jan. 12, 1999 | Order Granting Motion to Compel sent out. |
| Jan. 11, 1999 | (H. Davis, K. O`Keefe) Prehearing Stipulation filed. |
| Dec. 29, 1998 | Letter to LJS from K. O`Keefe (RE: request for ruling) (filed via facsimile). |
| Dec. 15, 1998 | Petitioner Nolette Motors, Inc.d/b/a/ Plaza Mazda`s Notice of Taking Depositions Duces Tecum filed. |
| Dec. 15, 1998 | Respondent Mazda Motor of America, Inc.`s First Set of Interrogatories to Petitioner Nolette, Motors d/b/a Plaza Mazda (filed via facsimile). |
| Dec. 15, 1998 | Respondent Mazda Motor of America, Inc.`s Motion to Compel Discovery (filed via facsimile). |
| Dec. 07, 1998 | Petitioner Nolette Motors, Inc. d/b/a Plaza Mazda`s Answers to Respondent Mazda Motor of America, Inc.`s First Request for Admissions; Cover Letter filed. |
| Dec. 07, 1998 | Petitioner Nolette Motors, Inc. d/b/a Plaza Mazda`s Objection to Respondent Mazda Motor of America, Inc.`s First Set of Interrogatories filed. |
| Dec. 07, 1998 | Petitioner Noletter Motors, Inc. d/b/a Plaza Mazda`s Response to Respondent Mazda Motor of America, Inc.`s Request for Production of Documents filed. |
| Sep. 09, 1998 | Second Notice of Hearing sent out. (hearing set for Jan. 19-21, 1999; 9:30am; Jacksonville) |
| Aug. 24, 1998 | (Respondent) Report of Dates Unavailable for Final Hearing (filed via facsimile). |
| Aug. 14, 1998 | Order Granting Motion to Extend Time sent out. (parties to file unavailable hearing dates by 8/24/98) |
| Aug. 10, 1998 | Motion to Extend Time for Filing Report of Dates Unavailable for Final Hearing (filed via facsimile). |
| Jul. 31, 1998 | Order Granting Motion for Continuance sent out. (hearing cancelled; parties to file unavailable hearing dates by 8/14/98) |
| Jul. 29, 1998 | (Respondent) Response to Petitioner`s Motion for Continuance (filed via facsimile). |
| Jul. 27, 1998 | Petitioner`s Motion for Continuance; Order (for judge signature); Cover Letter filed. |
| Jul. 07, 1998 | Order Granting Motion to Consolidation sent out. (98-1457 & 98-2596 consolidated) |
| Jun. 25, 1998 | (Petitioner) Motion to Consolidate (Cases requested to be consolidated: 98-2596, 98-1457) filed. |
| Jun. 04, 1998 | (Petitioner) Complaint in Opposition to Franchise Termination Re: Abandonment filed. |
| May 05, 1998 | Notice of Hearing sent out. (hearing set for Aug. 3-5, 1998; 9:00am; Jacksonville) |
| May 05, 1998 | Order of Prehearing Instructions sent out. |
| Apr. 06, 1998 | Response to Initial Order (Petitioner) (filed via facsimile). |
| Mar. 27, 1998 | Initial Order issued. |
| Mar. 25, 1998 | Agency Referral Letter; Petition Of Opposition To Franchise Termination Re: Abandonment (exhibits) filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 13, 1999 | Agency Final Order | |
| May 12, 1999 | Recommended Order | Petitioner, Nolette Motors, Inc., abandoned its franchise with Mazda Motors. |
