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Jerry Ulm Dodge, Inc. v. Chrysler Group LLC

Florida Court of Appeal, First District

December 9, 2011

JERRY ULM DODGE, INC. d/b/a Jerry Ulm Dodge Chrysler Jeep, and Ferman on 54, Inc. d/b/a Ferman Chrysler Dodge at Cypress Creek, Appellants,
v.
CHRYSLER GROUP LLC, Appellee.

Rehearing Denied Jan. 31, 2012.

Page 21

John W. Forehand and R. Craig Spickard of Kurkin Forehand Brandes LLP, Tallahassee, for Appellants.

Dean Bunch and Andy Bertron of Nelson Mullins Riley & Scarborough LLP, Tallahassee; Robert D. Cultice of Wilmer Cutler Pickering Hale & Door, pro hac vice, Boston, MA, for Appellee.

LEWIS, J.

Appellants, Jerry Ulm Dodge, Inc. d/b/a Jerry Ulm Dodge Chrysler Jeep (" Ulm" ), and Ferman on 54, Inc. d/b/a Ferman Chrysler Dodge at Cypress Creek (" Ferman" ), seek review of a final order issued by the Department of Highway Safety and Motor Vehicles (" Department" ), which concluded that the establishment by Chrysler Group LLC (" Chrysler Group" ) of North Tampa Chrysler Jeep Dodge, Inc. (North Tampa), a successor motor vehicle dealer, was exempt under section 320.642(5)(a)1, Florida Statutes (2010), from the notice and protest requirements in sections 320.642(1)-(3), Florida Statutes (2010). Because we conclude that Chrysler Group's establishment of North Tampa is not exempt from the notice and protest requirements, we reverse and remand for further proceedings.

Page 22

I. Background and Procedural History

Chrysler Group, the successor in interest to Chrysler Motors, LLC (" Chrysler Motors" ), manufactures and sells Chrysler, Dodge, and Jeep vehicles to authorized Chrysler, Dodge, and Jeep motor vehicle dealers. Ulm and Ferman are licensed " motor vehicle dealers" as defined in section 320.60(11), Florida Statutes (2010), in Tampa, Florida, who possess franchise and dealer agreements (" dealer agreements" ) with Chrysler Group for the sale of Dodge, Chrysler, and Jeep motor vehicles. Before April 2008, Bob Wilson Dodge Chrysler Jeep, LLC (" Wilson" ), operated a Dodge, Chrysler, and Jeep dealership in Tampa, Florida, under dealer agreements with Chrysler Motors. However, in April 2008, Wilson filed a Chapter 11 petition in the United States Bankruptcy Court in the Middle District of Florida (" Bankruptcy Court" ). At about the same time, Wilson closed its doors for business and ceased selling and servicing Dodge, Chrysler, and Jeep vehicles.

Upon the filing of Wilson's bankruptcy petition, the automatic stay under section 362 of the Bankruptcy Code went into effect, thereby preventing Chrysler Motors from terminating Wilson's Dodge, Chrysler, and Jeep dealer agreements. See 11 U.S.C. ยง 362 (2010). On July 30, 2008, Chrysler Motors filed a motion with the Bankruptcy Court seeking relief from the automatic stay in order to terminate Wilson's dealer agreements. On January 8, 2009, Wilson's motor vehicle dealer license issued by the Department expired. On January 30, 2009, the Bankruptcy Court entered an order dismissing Wilson's bankruptcy proceeding effective February 20, 2009. On February 9, 2009, the Bankruptcy Court entered an order granting Chrysler Motors' motion for relief from the automatic stay for the purpose of allowing Chrysler Motors to terminate Wilson's dealer agreements. On March 10, 2009, Chrysler Group terminated Wilson's dealer agreements.

Subsequently, Chrysler Group established North Tampa as a replacement dealer for Wilson. The location of North Tampa is within two miles of Wilson's former location. Chrysler Group received confirmation from an employee of the Department via email, based on information Chrysler Group provided the employee via email on February 5, 2010, that North Tampa would be exempt from the notice and protest requirements of section 320.642(5)(a)1, Florida Statutes (2010). On February 24, 2010, North Tampa applied for a motor vehicle dealer license from the Department to operate a Chrysler, Dodge, and Jeep dealership. The Department issued the dealer license to North Tampa.

Ulm and Ferman filed a petition with the Department for determination that Chrysler Group had established an additional motor vehicle dealership in violation of section 320.642. The Department forwarded the petition to the Division of Administrative Hearings. After an evidentiary hearing, the administrative law judge (" ALJ" ) entered a Recommended Order concluding that the establishment of North Tampa is exempt from the notice and protest requirements of section 320.642. The ALJ found that the doctrine of equitable tolling applied to the facts of this case to toll the start of the twelve-month exemption period under section 320.642(5)(a) until March 10, 2009, the date Chrysler Group terminated Wilson's dealer agreements. The Department adopted the ALJ's Recommended Order as its Final Order. This appeal follows.

II. Analysis

An appellate court reviewing an agency action may not " substitute its judgment for that of the agency as to the weight ...


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