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Strike Four, LLC v. Nissan North America

April 12, 2013

STRIKE FOUR, LLC
v.
NISSAN NORTH AMERICA, INC.



The opinion of the court was delivered by: Conboy, J.

Argued: October 11, 2012

The respondent, Nissan North America, Inc. (Nissan), appeals a decision of the Superior Court (Vaughan, J.) vacating a decision of the New Hampshire Motor Vehicle Industry Board (Board) and ruling that RSA chapter 357-C (Regulation of Business Practices Between Motor Vehicle Maufacturers, Distributors and Dealers) renders unenforceable a provision of a written settlement agreement between Nissan and the petitioner, Strike Four, LLC, a Nissan dealer (Dealer). Nissan also appeals the superior court's ruling that it was entitled to neither specific performance of the settlement agreement nor attorney's fees. We affirm in part, vacate in part, and remand.

The trial court found, or the record supports, the following facts. On July 8, 2005, Nissan issued to the Dealer a notice of termination of its dealership franchise. The Dealer filed a protest with the Board (the 2005 protest). See generally RSA 357-C:7 (2009 & Supp. 2012). The parties jointly moved to stay Board proceedings to allow for settlement negotiations. The Board granted this motion on October 12, 2005.

The settlement negotiations took place over two years, with both parties represented by counsel. On October 15, 2007, the parties entered into a settlement agreement that provided that the Dealer and Nissan would execute a new two-year term agreement, and the Dealer would withdraw its protest. The combined terms of the settlement agreement and the term agreement included relocation provisions (and a construction schedule for an exclusive Nissan sales facility), exclusivity provisions, and "Dealer Minimum Sales Performance" (MSP) requirements. The term agreement provided that if the Dealer failed to meet any of its obligations by the specified deadlines, or otherwise materially breached the agreements:

Dealer shall (a) within six (6) months after the relevant Term Agreement Deadline secure a buy/sell of its Nissan dealership assets to an unrelated third party acceptable to Nissan . . . and (b) within twelve (12) months after the relevant Term Agreement Deadline, consummate the sale of its Nissan dealership assets ("First Standstill Period").

. . . In no event shall Dealer be authorized to conduct Nissan Dealership Operations after the expiration of the First Standstill Period.

If the Dealer failed to meet MSP requirements, the same six-month and twelve-month benchmarks applied, but the interval was called the "Second Standstill Period." The term agreement further provided that in the event of failure to meet MSP requirements, "Dealer shall be issued a twelve (12) month term agreement for the sole purpose of achieving sale of the Nissan dealership assets," and "failure to obtain Nissan's approval for such sale or transfer within this twelve-month period shall constitute good and due cause for termination." Both parties expressly agreed that the terms of the settlement agreement and the term agreement were "fair and reasonable," and waived any right to challenge its "legality or enforceability" under RSA chapter 357-C.

On December 10, 2008, and January 14, 2009, the parties executed amendments to the term agreement, which extended its expiration date -- and the date by which the Dealer was required to achieve MSP requirements -- to March 11, 2011. The first amendment reiterated many of the terms of the settlement and term agreements: if the Dealer failed to achieve its sales requirements by the revised date, it would sell the dealership assets to a qualified buyer within one year thereafter; the terms of the agreement were "fair and reasonable"; and the Dealer waived the right to protest the agreements' provisions, including under RSA chapter 357-C. Hereinafter, we refer to the 2007 settlement agreement, term agreement, and the amendments collectively as the "Agreement."

By letter dated November 12, 2010, Nissan advised the Dealer that it was "highly unlikely" that the Dealer would be able to fulfill its MSP obligations under the Agreement by the March 11, 2011 deadline and suggested that the Dealer "begin now to actively [look] for potential buyers" for the dealership's assets, a search with which Nissan offered to assist. Interpreting the November 12 letter as a notice of termination, the Dealer filed a protest with the Board on December 29, 2010 (the 2010 protest). The Dealer argued that the sales performance obligations under the Agreement were unreasonable, and challenged the enforceability of the Agreement's provisions requiring the Dealer to voluntarily divest itself of the dealership assets as inconsistent with the protections of RSA chapter 357-C. On February 3, 2011, Nissan filed a counter-protest, alleging that the Dealer's actions -- including initiation of the 2010 protest challenging the enforceability of provisions contained in the Agreement, which Nissan had signed in reliance upon the Dealer's express agreement that the Dealer would not challenge its provisions -- constituted bad faith conduct in violation of RSA 357-C:3, I (2009).

While these proceedings were pending before the Board, on March 14, 2011, Nissan notified the Dealer that it had not met the MSP requirements and was therefore obligated to secure a buyer for the dealership within six months (that is, by September 11, 2011) and to complete the sale by March 11, 2012. On August 8, 2011, Nissan again wrote to the Dealer to reiterate its "contractual obligation to divest of its Nissan dealership by March 11, 2012."

As of September 11, 2011, the Dealer had not obtained a buyer for the dealership assets. By letter dated September 21, 2011, Nissan notified the Dealer of the material breach of the Agreement and called upon it to immediately present to Nissan an acceptable buyer, and to consummate the sale no later than March 11, 2012. Despite these notices, the Dealer did not sell the dealership assets.

On May 5, 2011, the Board held a hearing on the Dealer's 2010 protest and Nissan's counter-protest, at which both parties argued legal issues based upon their briefs, but neither party presented testimony or documentary evidence. On May 31, 2011, the Board dismissed the Dealer's protest and sustained Nissan's counter-protest. The Board found that both parties had entered into the Agreement in good faith and that Nissan had not cancelled or failed to renew the franchise agreement. It reasoned that the Agreement resolved a previous dispute, and therefore did not violate RSA 357-C:6 (2009), which provides that all agreements between a manufacturer and dealer are "subject to the provisions of the chapter, and provisions of such agreements which are inconsistent with this chapter shall be void as against public policy and unenforceable." See RSA 357-C:6. The Board specifically found that the Agreement did not deny the Dealer its right to file a termination protest if Nissan were to issue a new notice of termination. As to Nissan's counter-protest, the Board found that the Dealer's filing of the 2010 protest despite the waiver provisions of the Agreement constituted bad faith in violation of RSA 357-C:3, I. It also found that the Dealer's underperformance caused Nissan to suffer harm in the form of lost sales, but itdid not award damages. The Board denied the Dealer's motion for rehearing on August 15, 2011.

On September 13, 2011, the Dealer appealed to the superior court. Nissan filed an answer and a two-count counterclaim, seeking: (1) recovery of its attorney's fees and costs pursuant to RSA 357-C:12, X (2009) based upon the Board's finding of the Dealer's bad faith; and (2) specific performance of the dealer's contractual obligation to sell the dealership assets by March 12, 2012. Nissan moved for summary judgment on both claims on January 4, 2012. The Dealer had not yet responded to the motion when the superior court issued its order, dated January 31, 2012, vacating the Board's decision, granting the Dealer's petition, denying Nissan's motion for summary judgment, and dismissing Nissan's counterclaims. The court denied Nissan's motion for reconsideration and this appeal followed.

On appeal, Nissan first argues that the superior court erred in declining to give effect to the Dealer's express waiver of its right to challenge either the legality of the Agreement or the reasonableness of the MSP requirements, asserting that the waiver was freely and voluntarily given, that it was based upon valuable consideration, and that Nissan had relied to its detriment upon the waiver. Nissan further contends that the superior court misconstrued RSA chapter 357-C when it read the statute to invalidate certain provisions of the Agreement, and that such a reading of the statute is inconsistent with both the statutory purpose and New Hampshire's public policy favoring settlement. Nissan also appeals the superior court's denial of its petition for specific performance and request for attorney's fees. We address each argument in turn.

I. Standard of Review

"All findings of the [B]oard upon all questions of fact properly before the court shall be prima facie lawful and reasonable," and "[n]o additional evidence shall be heard or taken by the superior court on appeals from the [B]oard." RSA 357-C:12, VII (2009). The Board's decision shall not be set aside or vacated except for errors of law. Id.

We review the trial court's statutory interpretation de novo. Fog Motorsports #3 v. Arctic Cat Sales, 159 N.H. 266, 267 (2009). In matters of statutory interpretation, we are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. Id. at 268. When examining the language of the statute, we ascribe the plain and ordinary meaning to the words used. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. We also interpret a statute in the context of the overall statutory scheme and not in isolation. Id.

II. Estoppel

Nissan first argues that the Dealer should be estopped from arguing that the Agreement is not valid. The Dealer counters that Nissan did not raise estoppel in its answer and counterclaim before the superior court, and therefore waived the issue. It further asserts that, to the extent Nissan preserved the issue, it has failed to establish the elements of estoppel.

Assuming, without deciding, that the estoppel issue was preserved, we conclude that estoppel does not preclude the Dealer from challenging the enforceability of the Agreement. "As a general rule, a party is not estopped from asserting the illegality of a contract because of his participation in or encouragement of the illegality." Sumner Development Corporation v. Shivers, 517 P.2d 757, 762, 762 n.14 (Alaska 1974) (collecting cases); see also City Lincoln-Mercury Company v. Lindsey, 339 P.2d 851, 856 (Cal. 1959) ("A party to an illegal contract cannot ratify it, cannot be estopped from relying on the illegality, and cannot waive his right to urge that defense."). Accordingly, estoppel does not bar the Dealer from contesting the legality of the Agreement under RSA chapter 357-C.

III. Interpretation of RSA chapter 357-C

Nissan, joined by amicus Association of Global Automakers, Inc. (AGA), argues that RSA chapter 357-C does not preclude enforcement of the Agreement as written, and that the superior court erred when it invalidated portions of the Agreement as contradicting the statutory scheme. They assert that RSA chapter 357-C was not intended to regulate settlement agreements, but rather to promote settlement in accordance with New Hampshire's common law and public policy favoring voluntary resolution of disputes. Nissan further maintains that the Agreement is not inconsistent with RSA 357-C:7, governing the discontinuance of a franchise, because the voluntary sale of a franchise is not a termination and therefore is not subject to the statutory discontinuance procedures. It alternatively contends that, even if RSA 357-C:7 does apply, the Agreement satisfies all of the statutory requirements.

The Dealer, joined by amici National Automobile Dealers Association and New Hampshire Automobile Dealers Association, responds that the superior court correctly interpreted RSA chapter 357-C to establish a dealer's right to procedural protections that cannot be waived in advance, and that the portions of the Agreement providing otherwise -- i.e., providing for a severance of the manufacturer-dealer relationship without the statutory discontinuance procedures -- are therefore unenforceable. We agree.

RSA 357-C:7, entitled "Limitations on Cancellations, Terminations and Non-renewals," provides in part:

I. Notwithstanding the terms, provisions, or conditions of any agreement or franchise, and notwithstanding the terms or provision to any waiver, no manufacturer, distributor, or branch or division thereof shall cancel, terminate, fail to renew, or refuse to continue any franchise relationship with a licensed new motor vehicle dealer unless:

(a) The manufacturer, distributor, or branch or division thereof has satisfied the notice ...


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