                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2018-CC-00462-SCT

NISSAN NORTH AMERICA, INC.

v.

ANN C. TILLMAN AND GREAT RIVER NISSAN,
LLC d/b/a GREAT RIVER NISSAN


DATE OF JUDGMENT:                        03/19/2018
TRIAL JUDGE:                             HON. E. VINCENT DAVIS
TRIAL COURT ATTORNEYS:                   GLENN GATES TAYLOR
                                         CHRISTY M. SPARKS
                                         R. KENT HUDSON
                                         CHRISTOPHER C. GENOVESE
                                         S. KEITH HUTTO
                                         JASON H. STRONG
COURT FROM WHICH APPEALED:               ADAMS COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                 JASON H. STRONG
                                         S. KEITH HUTTO
                                         CHRISTOPHER C. GENOVESE
ATTORNEYS FOR APPELLEES:                 GLENN GATES TAYLOR
                                         CHRISTY M. SPARKS
                                         R. KENT HUDSON
NATURE OF THE CASE:                      CIVIL - OTHER
DISPOSITION:                             AFFIRMED - 06/06/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE KING, P.J., COLEMAN AND BEAM, JJ.

      COLEMAN, JUSTICE, FOR THE COURT:

¶1.   The present appeal involves a dispute between an automobile manufacturer and a

dealership. The Court must determine whether the dealer timely filed a complaint under

Mississippi Code Section 63-17-73(1)(d)(iii) after the dealer received the manufacturer’s
notice that it would terminate the applicable dealership agreement.             In determining

timeliness, the Court must decide whether the statute’s phrase “within the sixty-day notice

period” refers to the sixty days following a dealer’s receipt of its notice of termination or the

sixty days within the effective date of termination.

                               STATEMENT OF THE CASE

¶2.    The parties agree that Section 63-17-73(1)(d)(iii) requires an automobile manufacturer

seeking to terminate a dealership agreement to provide a notice of termination to its dealer

at least sixty days before the effective date of termination. The parties also agree that Section

63-17-73(1)(d)(iii) provides a dealer an opportunity to challenge a notice of termination by

filing a verified complaint with the Mississippi Motor Vehicle Commission. The parties

dispute, however, the period of time in which a dealer is required to file a complaint under

Section 63-17-73(1)(d)(iii) challenging the notice of termination. Section 63-17-73(1)(d)(iii)

provides that

       It is unlawful and a misdemeanor:

       ....

       (d) For a manufacturer, a distributor, a wholesaler, a distributor branch or
       division, a factory branch or division, or a wholesaler branch or division, or
       officer, agent or other representative thereof:

                (iii) To terminate or cancel the franchise or selling agreement of
                any dealer without due cause. The nonrenewal of a franchise or
                selling agreement, without due cause, shall constitute an unfair
                termination or cancellation, regardless of the terms or provisions
                of such franchise or selling agreement. “Due cause” shall be
                defined as a breach by the dealer of a material provision of the
                franchise agreement which breach has not been cured within a
                reasonable time after the dealer has been given written notice of


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             the breach. The burden of proving that due cause exists shall be
             upon the party attempting to terminate, cancel or not renew the
             franchise or selling agreement. The manufacturer, distributor,
             wholesaler, distributor branch or division, factory branch or
             division, or wholesaler branch or division, or officer, agent or
             other representative thereof shall notify a motor vehicle dealer
             in writing, and forward a copy of the notice to the commission,
             of the termination or cancellation of the franchise or selling
             agreement of the dealer at least sixty (60) days before the
             effective date thereof, stating the specific grounds for such
             termination or cancellation. The manufacturer, distributor,
             wholesaler, distributor branch or division, factory branch or
             division, or wholesaler branch or division, or officer, agent or
             other representative thereof shall notify a motor vehicle dealer
             in writing, and forward a copy of the notice to the commission,
             at least sixty (60) days before the contractual term of his
             franchise or selling agreement expires that the franchise or
             selling agreement will not be renewed, stating the specific
             grounds for the nonrenewal, in those cases where there is no
             intention to renew the franchise or selling agreement. In no
             event shall the contractual term of any franchise or selling
             agreement expire, without the written consent of the motor
             vehicle dealer involved, prior to the expiration of at least sixty
             (60) days following such written notice. Any motor vehicle
             dealer who receives written notice that his franchise or selling
             agreement is being terminated or cancelled or who receives
             written notice that his franchise or selling agreement will not be
             renewed, may, within the sixty-day notice period, file with the
             commission a verified complaint for its determination as to
             whether the termination or cancellation or nonrenewal is unfair
             within the purview of the Mississippi Motor Vehicle
             Commission Law, and the franchise agreement shall continue in
             effect until final determination of the issues raised in the
             complaint notwithstanding anything to the contrary contained in
             the law or in the franchise or selling agreement.

Miss. Code. Ann. § 63-17-73(1)(d)(iii) (Supp. 2018) (emphasis added).

                      FACTS AND PROCEDURAL HISTORY




                                             3
¶3.    Ann C. Tillman is the principal owner of Great River Nissan,1 a locally owned and

operated Nissan dealership in Natchez, Mississippi. On November 23, 2016, Nissan North

America, Inc., notified Great River that it would terminate its dealership agreement with

Great River based on unsatisfactory sales, among other reasons. Although at least sixty days’

notice is required before the effective date of termination under Section 63-17-73(1)(d)(iii),

Nissan and Great River’s dealership agreement required at least ninety days’ notice.

Accordingly, Nissan advised Great River that the dealership agreement would be terminated

effective ninety days from the date of Great River’s receipt of the notice; therefore, the

effective date of termination was set for February 21, 2017.

¶4.    On February 17, 2017, Great River challenged the notice of termination by filing a

verified complaint with the Commission under Section 63-17-73(1)(d)(iii). Nissan filed a

motion to dismiss the complaint as untimely, claiming that the deadline to file the complaint

with the Commission was within sixty days after Great River had received the notice of

termination, not within sixty days of the effective date of the termination. Great River

responded, arguing that its complaint was timely because it had been filed within sixty days

before the effective date of termination.

¶5.    The Commission held a hearing on the matter. The Commission found that Great

River had received a notice of termination letter on November 23, 2016, and that Great River

filed its complaint on February 17, 2017. The Commission found that Great River had “filed




       1
           The Court will refer to the Appellees collectively as Great River.

                                              4
its [v]erified [c]omplaint outside the statutory window of sixty (60) days to file a verified

complaint with the Commission” and dismissed Great River’s complaint.

¶6.    Great River appealed to the chancery court under Mississippi Code Section 63-17-99

(Rev. 2013). The chancery court, sitting as an appellate court, held oral argument and

accepted briefs from the parties. The chancery court reversed the Commission’s decision,

finding that the Commission had incorrectly interpreted the statute. The chancery court

wrote that it had been “presented with a narrow question of law: does the statutory language

‘within the sixty-day notice period’ refer to the earlier language in the statute that states that

the minimum statutory notice period for termination is ‘sixty (60) days before the effective

date’ of the termination, or does it mean sixty days after a dealer receives a notice of

termination[?]”

¶7.    The chancery court found that “the language ‘within the sixty-day notice period’

means, refers and was intended by the Legislature to refer to the sixty-day period before the

effective date of the threatened termination.” The chancery court found that the statute was

unambiguous and that “the best reading of the statute is that a dealer may file a complaint

within the sixty-day period before the effective date of the threatened termination of the

dealership agreement.”

¶8.    The chancery court explained,

       Sixty days before the effective date of termination is the only clearly stated and
       time-certain period that the Legislature used in the termination provisions of
       the statute. The best reading of the language in context is that the filing
       deadline the Legislature had in mind and intended was the sixty-day period
       prior to the effective date of the threatened termination.



                                                5
Therefore, the chancery court found that “Great River timely filed its verified complaint with

the Commission within the sixty days before the date of termination.” In the alternative, the

chancery court found that even were the statute ambiguous, it should be construed in favor

of Great River to fulfill legislative intent. The chancery court remanded the case to the

Commission for a determination on the merits of whether Nissan had due cause to terminate

the dealership agreement with Great River.

¶9.    Nissan appeals, framing the sole issue before the Court as follows:

       Mississippi law requires a motor vehicle manufacturer to provide a notice of
       termination to its dealer “at least sixty (60) days before” the effective date of
       termination, and permits the dealer to challenge the termination by filing a
       Complaint “within the sixty-day notice period.” The Mississippi Motor
       Vehicle Commission found that [Great River’s] Complaint, filed eighty-six
       days after receiving a notice of termination, was untimely[] and dismissed it.
       Did the Chancery Court err by determining that [Great River’s] Complaint was
       timely and reversing the Commission’s decision?

¶10.   Great River frames the issue as follows:

       The issue before the Court is whether the phrase “within the sixty-day notice
       period” refers to the earlier language in the statute that states that the minimum
       statutory notice period for termination is “sixty (60) days before the effective
       date” of the termination, or does it mean sixty (60) days after a dealer’s receipt
       of a notice of termination[?]

                                STANDARD OF REVIEW

¶11.   An administrative agency’s interpretation of a statute governing the agency’s

operation is a matter of law subject to de novo review. King v. Miss. Military Dep’t, 245 So.

3d 404, 407-08 (¶¶ 8-13) (Miss. 2018).

                                         ANALYSIS




                                               6
Whether Great River’s complaint was timely under Mississippi Code Section 63-17-
73(1)(d)(iii).

¶12.   Section 63-17-73 was enacted, in part, to regulate certain conduct in the motor vehicle

distribution industry, including the termination of a dealership agreement between a

manufacturer and dealer. Section 63-17-73 imposes a notice obligation on a manufacturer

seeking to terminate a dealership agreement, and it creates an administrative avenue for a

dealer to seek recourse from the Commission upon receipt of a notice of termination.

¶13.   Nissan advances two chief arguments in support of its assignment of error. First,

Nissan argues that the Commission correctly interpreted and applied the unambiguous

language of the statute. Second, and in the alternative, Nissan argues that even if the statute

is ambiguous, the Commission’s interpretation is the best reading of the law.

¶14.   “When a statute is unambiguous and conveys a clear and definite meaning, th[e] Court

follows its plain terms.” Lutz Homes, Inc. v. Weston, 19 So. 3d 60, 62 (¶ 9) (Miss. 2009)

(citing Nat’l Union Fire Ins. Co. v. Miss. Ins. Guar. Ass’n, 990 So. 2d 174, 180 (¶ 21)

(Miss. 2008)). “Th[e] Court resorts to the canons of statutory interpretation only where a

statute is ambiguous or silent on a specific issue.” Id. (citing Nat’l Union Fire Ins. Co., 990

So. 2d at 180 (¶ 21)). Stated differently, “[w]hen the language used by the legislature is plain

and unambiguous . . . and where the statute conveys a clear and definite meaning . . . the

Court will have no occasion to resort to the rules of statutory interpretation.” Miss. State &

Sch. Emps.’ Life & Health Plan v. KCC, Inc., 108 So. 3d 932, 936 (¶ 10) (Miss. 2013)

(alterations omitted) (quoting Miss. Ethics Comm’n v. Grisham, 957 So. 2d 997, 1001 (¶

12) (Miss. 2007)).


                                               7
¶15.   “Courts have a duty to give statutes a practical application consistent with their

wording, unless such application is inconsistent with the obvious intent of the legislature.”

Id. (quoting Grisham, 957 So. 2d at 1001 (¶ 12)). “Whether the statute is ambiguous, or not,

the ultimate goal of this Court in interpreting a statute is to discern and give effect to the

legislative intent.” Wayne Cty. Sch. Dist. v. Morgan, 224 So. 3d 539, 542 (¶ 8) (Miss. 2017)

(quoting Miss. Dep’t of Transp. v. Allred, 928 So. 2d 152, 154 (¶ 12) (Miss. 2006)).

¶16.   While Nissan and Great River contend that the statute is plain and unambiguous, each

contends that the opposing party’s interpretation is contrary to the plain and unambiguous

meaning of the statute. Nissan urges the Court to focus on the word notice in the phrase “the

sixty-day notice period.” (Emphasis added.) By focusing on the word notice, Nissan

suggests that the sixty day time period in the statute consists of the sixty days immediately

following notice. We disagree.

¶17.   The statute plainly provides that the dealer may file a verified complaint “within the

sixty-day notice period.” Miss. Code Ann. § 63-17-73(1)(d)(iii). The only defined sixty day

notice period involving the termination of a dealership agreement is the minimum sixty days

preceding the proposed termination date. The sixty day notice period is plainly tethered to

the effective date of termination, not the date the dealer receives notice. Thus, “the sixty-day

notice period” must mean the sixty days preceding the effective termination date. (Emphasis

added.) We agree with Great River and the chancery court that the sixty day notice period

refers to the sixty days prior to the effective termination date, not the sixty days immediately

following the receipt of the notice of termination.



                                               8
¶18.   In the same statute at issue, the Legislature used the following language:

       Upon receipt of written notification, a motor vehicle dealer shall have sixty
       (60) days to file a protest with the commission, and the manufacturer shall
       demonstrate to the commission the need for the demand in view of the need to
       service the public and the economic conditions existing in the motor vehicle
       industry and the market area served by the motor vehicle dealer at the time the
       action would be required of the motor vehicle dealer.

Miss. Code. Ann. § 63-17-73(1)(d)(ix) (Supp. 2018) (emphasis added). Certainly, the

Legislature was capable of tying “the sixty-day notice period” to the receipt of written notice

as evidenced by the language used in a different subsection of the same statute. Instead, the

Legislature chose to tie “the sixty-day notice period” to the effective date of termination.

¶19.   We conclude that the statute is unambiguous, and its plain meaning provides that a

dealer may file its verified complaint within the sixty day notice period, i.e., the sixty days

preceding the effective date of termination. Because the statute is unambiguous and conveys

a clear and definite meaning, resorting to the rules of statutory construction is not necessary.

Accordingly, Great River’s complaint was timely filed within the sixty days immediately

preceding the effective date of termination. We thus affirm the chancery court’s judgment

remanding the case for further proceedings with the Commission.

¶20.   AFFIRMED.

     RANDOLPH, C.J., KITCHENS AND KING, P.JJ., BEAM, CHAMBERLIN
AND ISHEE, JJ., CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY MAXWELL, J.

       GRIFFIS, JUSTICE, DISSENTING:




                                               9
¶21.   This case turns on the interpretation of the phrase “within the sixty-day notice period.”

The majority reads this language as “tethered to the effective date of termination, not the date

the dealer receives notice.” (Maj. Op. ¶ 17). I disagree.

¶22.   Two provisions of Mississippi Code Section 63-17-73(1)(d)(iii) govern this case.

First, Section 63-17-73(1)(d)(iii) requires that a manufacturer give a dealer notice of

termination “at least sixty (60) days before the effective date thereof . . . .” Miss. Code Ann.

§ 63-17-73(1)(d)(iii) (Supp. 2018). Nissan notified Great River in writing of its intent to

terminate the dealer agreement at least sixty days before the effective date of the termination

and sent a copy of the notice to the Commission. Nissan stated the specific grounds for such

termination. Nissan complied with the notice requirement of the Section 63-17-73(1)(d)(iii).

¶23. Second, Great River’s receipt of the notice to terminate gave Great River a statutory

right to challenge the termination. Section 63-17-73(1)(d)(iii) reads,

       Any motor vehicle dealer who receives written notice that his franchise . . . is
       being terminated . . . [Great River], may, within the sixty-day notice period,
       file with the commission a verified complaint for its determination as to
       whether the termination . . . is unfair within the purview of the Mississippi
       Motor Vehicle Commission Law, and the franchise agreement shall continue
       in effect until final determination of the issues raised in the complaint
       notwithstanding anything to the contrary contained in the law or in the
       franchise or selling agreement.

Id. (emphasis added). The question here is how do we interpret (i.e., calculate) the phrase

“within the sixty-day notice period.”

¶24.   In my opinion, we must consider the language used in construing what is meant by

“sixty-day notice period.” It clearly contemplates “notice.” The first part of Section

63-17-73(1)(d)(iii) quoted above requires a manufacturer to give a dealer notice of

                                              10
termination “at least sixty (60) days before the effective date of the termination.” This

clearly contemplates that a dealer may give more than sixty days’ notice, as Nissan did here.

More importantly, the operative event is the giving of “written notice,” which starts the count

down before the finality of the termination.

¶25.   The second part of Section 63-17-73(1)(d)(iii) quoted above established the period

within which the challenge must be filed. Great River “may, within the sixty-day notice

period, file with the commission a verified complaint.” Great River’s statutory right to

challenge the termination accrued and began to run when notice was given. Just as we

interpret a limitations period, it is the notice that set in motion the right to challenge.

¶26.   Section 63-17-73(1)(d)(iii) created a statutory dispute-resolution procedure that Great

River may initiate upon the receipt of notice of Nissan’s intent to terminate.2 During the

pendency of the dispute, the statute mandates that “the franchise agreement shall continue

in effect until final determination of the issues raised in the complaint . . . .” Id. In my

opinion, this contemplates a timely resolution of the dispute.

¶27.   The majority’s reasoning would defeat the timely resolution of the dispute; instead,

it would encourage unfair manipulation and unreasonable delay. For example, under the

majority’s interpretation, a dealer who disputes the termination could, and should, wait until

the day before the intended termination to file the complaint and automatically extend the

dealer agreement. A commercially reasonable interpretation would require the parties to

       2
        There is no dispute that Nissan had the right to terminate the Dealer Agreement.
The only question to be resolved by the Commission is “whether the termination . . . is
unfair within the purview of the Mississippi Motor Vehicle Commission Law.” Miss.
Code Ann. § 63-17-73(1)(d)(iii).

                                               11
challenge the termination as soon as possible and to allow the Commission adequate time to

resolve the dispute so that, if it is proper, the termination may be effective on the intended

date of termination.

¶28.   Consider a scenario in which Nissan had provided twelve months’ notice of

termination. Under the majority’s interpretation, Great River would have to wait until the

eleventh month to file the complaint with the Commission, or it could file the day before the

effective date. Great River would then be able to extend the contract without reason. The

majority’s interpretation would essentially ensure that the dispute was not resolved in a

timely or commercially reasonable manner. Under my interpretation, Great River would

have sixty days from the date of notice, leaving the Commission a minimum of ten months

to consider whether the termination was fair under the law.

¶29.   I am of the opinion that the Commission properly determined that Great River’s right

to file a complaint accrued upon its receipt of the notice of termination and that Great River’s

deadline to file a complaint ran sixty days from that date. Accordingly, I would reverse the

chancellor’s judgment and reinstate the Commission’s decision. Therefore, I respectfully

dissent.

       MAXWELL, J., JOINS THIS OPINION.




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