Smith's Cycles, Inc. v. Alexander

219 S.E.2d 282, 27 N.C. App. 382, 1975 N.C. App. LEXIS 1857

• Court: Court of Appeals of North Carolina
• Decided: November 5, 1975
• Docket: 7510SC411
• Status: Published

Opinion

CLARK, Judge.

The Commissioner of Motor Vehicles and American Honda, Intervenor, apparently have taken the position that when American Honda, on 25 July 1973, notified plaintiff that it would grant a new franchise in the Greensboro area before 1 September 1973, the plaintiff should have requested a hearing and determination by the Commissioner; that his request or petition should have been made within 30 days after notice; and that upon plaintiff’s failure to do so, American Honda had the right to grant a new franchise at any time in the future, even more than a year later, without giving plaintiff any further notice under G.S. 20-305. This is an improper interpretation of the statute. The notice provision contemplates an analysis of relevant market conditions within the trade area at or about the time that the notice of the new dealership is made, not the distant past or future. Market and economic conditions change from time to time and place to place. In construing a statute the courts always look to its purpose and presume that the legislature acts with reason and common sense and that it did not intend an unjust or absurd result. King v. Baldwin, 276 N.C. 316, 172 S.E. 2d 12 (1970). When American Honda chose not to grant a new franchise before 1 September 1973, in accordance with its notice to plaintiff, a new notice should have been sent to plaintiff and other dealers in the area. Since it did not send a new notice, the 30-day time limitation under the statute never began to run, and the plaintiff has not violated it.

Appellate review of an administrative decision is provided for under G.S. 20-300 and G.S. 143-309 by the filing of the petition in the Superior Court of Wake County, not later than 30 days after service of the administrative decision. The plaintiff sought appellate review by filing in the Superior Court of Wake County a “Complaint and Petition for Writ of Mandamus,” in which plaintiff “complains and petitions” for an order to the defendant to hold the hearing as required by statute. In Snow v. Board of Architecture, 273 N.C. 559, 160 S.E. 2d 719 (1968), it was held that an action for mandamus may not be used as. a substitute for appellate review. In that case plaintiff did not appeal from a decision of the Board of Architecture as provided by G.S. 150-24, but fourteen months later instituted in an action for mandamus to compel the renewal of his certificate to practice.

Sub judice, plaintiff’s “Complaint and Petition” was filed in apt time under G.S. 143-309. It complained of the order of the Commissioner of Motor Vehicles which dismissed his petition and refused to conduct a hearing; it sought the determination of the question of law which is a proper subject of judicial review. Foster v. Medical Care Comm., 283 N.C. 110, 195 S.E. 2d 517 (1973). Superior Court Judge Smith, in a stay order of 12 December 1974, treated plaintiff’s “Complaint and Petition” as a petition for review under G.S. 143-309, and it is our opinion that under the facts of this case, he acted properly. G.S. 143-309 must be liberally construed to preserve and effectuate the right of appellate review of a decision of a state agency. In re Appeal of Harris, 273 N.C. 20, 159 S.E. 2d 539 (1968).

The order of the Superior Court dismissing the plaintiff’s appeal is reversed and this cause is remanded to the Superior Court with direction that it be remanded to the Commissioner of Motor Vehicles for a hearing and determination as provided by G.S. 20-305.

Reversed and remanded.

Judges Britt and Parker concur.