Nissan Division v. Nissan

445 S.E.2d 600, 337 N.C. 424, 1994 N.C. LEXIS 427
CourtSupreme Court of North Carolina
DecidedJuly 29, 1994
DocketNo. 422PA93
StatusPublished
Cited by3 cases

This text of 445 S.E.2d 600 (Nissan Division v. Nissan) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nissan Division v. Nissan, 445 S.E.2d 600, 337 N.C. 424, 1994 N.C. LEXIS 427 (N.C. 1994).

Opinions

MITCHELL, Justice.

The controlling facts in this case are not in dispute. In December of 1981, Fred Anderson Nissan (hereinafter “Anderson”) entered into a “Nissan Dealer Sales and Service Agreement” (hereinafter “agreement”) with the Nissan Division of Nissan Motor Corporation. Under the terms of the agreement, Anderson was to obtain written consent from Nissan prior to relocating the dealership.

In March of 1991, Anderson learned that Paul Meeker, the owner and sales operator of Meeker Lincoln-Mercury, Inc., was interested in selling his facility located at 252 Patton Avenue in Asheville, North Carolina. On 24 May 1991, Anderson, having outgrown its location at 585 Tunnel Road in Asheville, entered into an “Asset Sales Agree-[426]*426merit” with Meeker, which would have enabled Anderson to move to the Patton Avenue site. This agreement was conditioned on Anderson’s ability to obtain approval from Nissan for the relocation. Nissan, having heard of Anderson’s relocation plans, sent Anderson a letter dated 24 May 1991 informing the dealership that it opposed the move. Anderson replied by letter dated 29 May 1991 that it was merely considering the relocation. Then, on 3 July 1991, Nissan again informed Anderson by letter that it opposed the relocation.

On 3 October 1991, pursuant to N.C.G.S. § 20-305(4), Anderson’s general manager personally delivered written notice to Nissan of Anderson’s intention to relocate. Nissan continued to oppose the relocation. Nissan sent its notice of objection by Federal Express within the 30-day period prescribed by N.C.G.S. § 20-305(4).

On 27 November 1991, Anderson filed a petition for a hearing with the Commissioner of Motor Vehicles. See N.C.G.S. § 20-305(4) (1993). In its petition, Anderson alleged that Nissan’s objection to Anderson’s proposed dealership relocation was invalid under N.C.G.S. § 20-305(4) since it was delivered by private delivery service rather than U.S. Mail. Anderson also moved for summary judgment, contending that Nissan had waived any objection to the relocation by failing to serve Anderson with proper notice. The hearing officer granted Anderson’s motion for summary judgment on the basis that Nissan’s service of notice by private delivery service was insufficient. Nissan appealed to the Superior Court, Wake County, and on 13 April 1992 Judge Donald W. Stephens affirmed the hearing officer’s decision granting Anderson’s motion for summary judgment.

Nissan appealed to the Court of Appeals which reversed the decision of the Superior Court. The majority concluded that “where the controlling statute does not specifically require United States mail, delivery by Federal Express, which provides a signed receipt verifying delivery, is registered mail within the meaning of the statute.” Nissan Motor Corp. v. Fred Anderson Nissan, 111 N.C. App. 748, 756, 434 S.E.2d 224, 229 (1993). Judge Wells did not “agree that the General Assembly intended to include Federal Express mail” under N.C.G.S. § 20-305(4). Id. at 757, 434 S.E.2d at 229. Judge Wells nevertheless concurred, reasoning that it was unnecessary even to consider that question since he could not “discern any harm or prejudice to [Anderson] from [Nissan’s] failure to follow the statutory directive in sending its letter.” Id. We reverse.

[427]*427Anderson contends that the Court of Appeals erroneously concluded that notice by a private delivery service that provides a signed receipt constitutes “registered or certified mail, return receipt requested” in accordance with N.C.G.S. § 20-305(4). We agree.

Only a few courts in other jurisdictions have considered whether Federal Express constitutes mail. The United States Courts of Appeal for the Fifth and Seventh Circuits have held that it does not. Audio Enterprisers v. B & W Loudspeakers, 957 F.2d 406 (7th Cir. 1992); Prince v. Poulos, 876 F.2d 30 (5th Cir. 1989). Further, we have found no appellate decision, other than the decision filed by the Court of Appeals in this case, that has held that Federal Express or any other private delivery service constitutes “registered or certified mail.”

Traditionally, we have strictly construed notice statutes. See, e.g., Guthrie v. Ray, 293 N.C. 67, 235 S.E.2d 146 (1977); In re Harris, 273 N.C. 20, 159 S.E.2d 539 (1968); S. Lowman v. Ballard & Co., 168 N.C. 16, 84 S.E. 21 (1915). N.C.G.S. § 20-305(4) provides, in pertinent part:

No franchise may be... relocated... unless the franchisor has been given at least 30 days’ prior written notice as to the ... location and site plans of any proposed relocation. The franchisor shall send the dealership notice of objection, by registered or certified mail, return receipt requested, to the proposed . . . relocation . . . within 30 days after receipt of notice from the dealer .... Failure by the franchisor to send notice of objection within 30 days shall constitute waiver by the franchisor of any right to object to the proposed ... relocation ....

(Emphasis added.) We conclude that the General Assembly intended for the phrase “registered or certified mail, return receipt requested” to refer exclusively to the delivery service offered by the U.S. Mail and not to notice delivered by any private delivery service. Strictly construing the above statute, we conclude that Nissan has waived any objection to Anderson’s proposed relocation.

Nissan directs our attention to what it deems to be the “first sentence” of the notice requirement of N.C.G.S. § 20-305(4) — “The franchisor shall send the dealership notice of objection, by registered or certified mail, returned receipt requested, to the proposed . .. relocation . . . within 30 days after receipt of notice from the dealer . . . .” Nissan contends that this “first sentence” does not expressly require that notice be sent through the U.S. Mail and, therefore, notice sent through private delivery services is proper under the statute. Nissan [428]*428argues that the General Assembly easily could have inserted language that would have provided for exclusive use of the U.S. Mail if it had intended for franchisors to send notice exclusively in this manner.

Nissan cites the opinion of the Court of Appeals in Warzynski v. Empire Comfort Systems, 102 N.C. App. 222, 401 S.E.2d 801 (1991), which held that the phrase “any form of mail,” as used in N.C.G.S. § 1A-1, Rule 4(j3) relating to service of process in foreign countries includes Federal Express. But this decision does not alter our conclusions in the present case.

It is clear that, in adopting N.C.G.S. § 20-305(4), our legislature intended for “mail” to refer solely to U.S. Mail. The phrase “registered or certified mail, return receipt requested” specifically denotes a mailing privilege offered by the U.S. Mail for a certain fee. One reasonable purpose for requiring notice by registered or certified mail is to distinguish the manufacturer’s notice of objection from the correspondence that dealers receive daily from their franchisors by Federal Express and regular U.S. Mail.

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Bluebook (online)
445 S.E.2d 600, 337 N.C. 424, 1994 N.C. LEXIS 427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nissan-division-v-nissan-nc-1994.