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Nissan North America, Inc. v. Walker-Jones Nissan, LLC

Court of Appeals of Georgia, Fifth Division

March 8, 2018


          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          Branch, Judge.

         Under Georgia law, generally speaking, car dealership franchisors, such as appellant Nissan North America, Inc., may refuse to agree to a change of ownership or a sale of dealership assets so long as the franchisor shows that the refusal is not arbitrary and that the proposed transferee is unfit or unqualified. Franchisors also have a statutory "right of first refusal" (ROFR) to intervene in a proposed ownership change or sale and thereby acquire the dealership so long as, among other things, the original owner receives the same or better terms as the proposed transaction and the proposed buyer is reimbursed for the expenses of having negotiated to purchase the dealership. The question raised herein is whether these two franchisor powers operate independently. In other words, we must determine whether a franchisor exercising its ROFR is required to show that its actions are not arbitrary and that the proposed transferee is unfit or unqualified. For the reasons shown below, we hold that the trial court erred by so concluding. We therefore reverse the trial court's grant of an interlocutory injunction and remand for further action consistent with this opinion.

         With regard to the proceedings below, the record shows that on February 16, 2017, Walker-Jones Nissan, LLC filed a verified complaint against Nissan and others and sought a temporary restraining order asking the court to block Nissan's attempt to exercise its ROFR in connection with a proposed sale of a Nissan dealership to Walker-Jones. In Counts 1 and 2, Walker-Jones asserted that in attempting to exercise its ROFR, Nissan failed to prove that its decision was not arbitrary and failed to prove that Walker-Jones was unfit or unqualified to be a dealer based on Nissan's prior written standards or qualifications relating to Walker-Jones's business experience, moral character, and financial qualifications as required by OCGA § 10-1-653 (the Transfer Statute). In Count 3, Walker-Jones asserted that in exercising its ROFR, Nissan failed fully to pay Walker-Jones its reasonable expenses incurred in connection with its negotiation and preparation to purchase the dealership as required by the ROFR statute. See OCGA § 10-1-663.1. In Count 4, Walker-Jones asserted a claim of breach of legal and private duties arising out of the Transfer Statute and the ROFR statute. In Counts 5 and 6, it asserted claims of tortious interference. In the remaining counts, Walker-Jones requested temporary and permanent injunctive relief, declaratory relief, and attorney fees and costs.

         Walker-Jones moved for a temporary restraining order on the ground that Nissan was required to comply with the Transfer Statute as a part of exercising its ROFR. The trial court granted the TRO the same day and required Walker-Jones to provide a $10, 000 bond. Three weeks later, the court held a hearing to determine whether to extend the TRO, and on March 24, 2017, the court granted an interlocutory injunction in favor of Walker-Jones. The court held, among other things, (1) that Walker-Jones was likely to succeed on the merits because Nissan's contractual[1] and statutory ROFR were subject to the Transfer Statue, (2) that Walker-Jones would suffer irreparable injury absent injunctive relief, (3) that injunctive relief would not disserve the public interest, and (4) that the $10, 000 bond previously accepted by the court was sufficient security for the interlocutory injunction. Nissan appeals this order and contends that the trial court erred as a matter of law in making these four rulings.

         Nissan does not challenge the trial court's findings of fact. See generally OCGA § 9-11-52 (a) (the findings of a trial court in ruling on interlocutory injunctions "shall not be set aside unless clearly erroneous"). The trial court's undisputed findings of fact show that on November 30, 2016, Walker-Jones and certain legal entities referred to as Crosby Nissan entered into an asset purchase agreement concerning the existing Crosby Nissan dealership located in Waycross, as well as agreements regarding the Crosby dealership property and Crosby Nissan's General Motors branded dealership. In furtherance of the transaction, Crosby Nissan and Walker-Jones provided a copy of the asset purchase agreement and the related real estate agreement to Nissan. Nissan thereafter requested that Walker-Jones and Crosby Nissan amend both agreements to separate the acquisition of the GM dealership from the acquisition of Crosby Nissan, and the two parties complied. Nissan then informed Walker-Jones that its ownership structure was unacceptable, after which Walker-Jones made changes thereto and resubmitted to Nissan its application to purchase Crosby Nissan. Nissan did not thereafter provide any further criticism of the ownership or management structure of Walker-Jones.

         Meanwhile, beginning in mid-January 2017, Nissan contacted and began negotiating with Edgar "Woody" Folsom about a "potential business opportunity, " and the two parties entered into a confidentiality agreement related thereto; Folsom also provided Nissan with his personal financial statements and those of his non-Nissan dealerships. On January 25, Folsom submitted an application to become a Nissan dealer, and he and Nissan entered into an "Assignment and Assumption of Right to Purchase Agreement" regarding the Crosby Nissan Dealership and related property. Woody Folsom Nissan of Waycross, Inc. was incorporated shortly thereafter. Therefore, as the trial court found, "while Walker-Jones Nissan was preparing its application and submittals, Nissan was talking with Mr. Folsom regarding his purchase of the Crosby Nissan Dealership."

         On or about January 27, 2017, Nissan notified Walker-Jones and Crosby Nissan that it was exercising its ROFR in accordance with its Crosby Nissan dealership agreement and Georgia law. Nissan did not provide any reason in these letters for not agreeing to the proposed sale between Crosby Nissan and Walker-Jones. Nor did Nissan attempt to satisfy the requirements of the Transfer Statute by providing non-arbitrary reasons for its refusal to agree to the sale to Walker-Jones or evidence that Walker-Jones was unfit or unqualified to be a dealer. In fact, the trial court found as a matter of fact that Walker-Jones is both fit and qualified to serve as a Nissan dealer under "any conceivably-applicable objective standards or criteria, " and that Nissan did not fully evaluate Walker-Jones nor determine that Walker-Jones or its principals were unfit or unqualified, lacking in business experience or moral character, or financially unqualified.

         The court then found as a matter of law that the Transfer Statute was applicable to a franchisor exercising its ROFR and, accordingly, that Walker-Jones had shown a substantial likelihood that it would prevail on the merits. The court also found that Walker-Jones had shown that there was a substantial threat that it would suffer irreparable injury if an injunction was not granted; that the threatened injury outweighed the threatened harm that an injunction might do to Nissan; and that granting the interlocutory injunction would not disserve the public interest. The court therefore granted an interlocutory injunction restraining Nissan from exercising its ROFR. Nissan appealed.

         Our Supreme Court has specified that four factors should guide a trial court's decision to impose an interlocutory injunction:

(1) [whether] there is a substantial threat that the moving party will suffer irreparable injury if the injunction is not granted; (2) [whether] the threatened injury to the moving party outweighs the threatened harm that the injunction may do to the party being enjoined; (3) [whether] there is a substantial likelihood that the moving party will prevail on the merits of her claims at trial; and (4) [whether] granting the interlocutory injunction will not disserve the public interest.

Bishop v. Patton, 288 Ga. 600, 604 (3) (a) (706 S.E.2d 634) (2011), disapproved on other grounds, SRB Inv. Servs., LLLP v. Branch Banking & Tr. Co., 289 Ga. 1 (709 S.E.2d 267) (2011). The moving party, however, is not required to prove all four factors. SRB Inv. Servs., 289 Ga. at 5 n. 7. Rather, the trial court must balance the relative equities of the parties, and accordingly, the court has broad discretion in deciding whether injunctive relief is proper. See OCGA § 9-5-8 ("The granting and continuing of injunctions shall always rest in the sound discretion of the judge."); Bernocchi v. Forcucci, 279 Ga. 460, 461 (614 S.E.2d 775) (2005). Thus, "[w]e will not reverse the decision to grant an interlocutory injunction unless the trial court made an error of law that contributed to the decision, there was no evidence on an element essential to relief, or the court manifestly abused its discretion." TMX Finance Holdings, Inc. v. Drummond Financial Svcs., 300 Ga. 835, 837 (797 S.E.2d 842) (2017) (citation and punctuation omitted).

         1. Nissan first contends the trial court committed plain legal error when it ruled that Walker-Jones was likely to succeed on the merits because Nissan's contractual and statutory rights of first refusal were subject to the Transfer Statute. Based on the plain language of the Transfer Statute and the ROFR Statute as well as sound rules of construction, we agree.

         When construing a statute, "we must presume that the General Assembly meant what it said and said what it meant." Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 S.E.2d 337) (2013) (citation and punctuation omitted). Thus if the language of the statute "is plain and unambiguous, judicial construction is not only unnecessary but forbidden." Six Flags Over Ga. II v. Kull, 276 Ga. 210, 211 (576 S.E.2d 880) (2003) (citation omitted). Where terms of art are not involved, we look to the common and customary usages of the words and their context. Zaldivar v. Prickett, 297 Ga. 589, 591 (1) (774 S.E.2d 688) (2015). "For context, we may look to other provisions of the same statute, the structure and history of the whole statute, and the other law - constitutional, statutory, and common law alike - that forms the legal background of the statutory provision in question." Id. (citation and ...

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