[Cite as M6 Motors, Inc. v. Nissan of N. Olmsted, L.L.C.,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100684

M6 MOTORS, INC. PLAINTIFF-APPELLEE

vs.

NISSAN OF NORTH OLMSTED, LLC DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-808958

BEFORE: McCormack, J., S. Gallagher, P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: June 12, 2014 ATTORNEYS FOR APPELLANT

Robert A. Poklar Shawn W. Maestle Matthew C. Miller Weston Hurd L.L.P. The Tower at Erieview 1301 East 9th St., Suite 1900 Cleveland, OH 44114

Christopher M. Devito Morganstern MacAdams & Devito Co. 623 West St. Clair Ave. Cleveland, OH 44113-1204

ATTORNEYS FOR APPELLEE

James B. Niehaus Gregory R. Farkas Frantz Ward L.L.P. 2500 Key Center 127 Public Square Cleveland, OH 44114 TIM McCORMACK, J.:

{¶1} Defendant-appellant, Nissan of North Olmsted, LLC (“North Olmsted

Nissan”), appeals the trial court’s order granting declaratory judgment in favor of M6

Motors, Inc., d.b.a. Nissan of Middleburg Heights (“Middleburg Heights Nissan”). For

the reasons that follow, we affirm the decision of the trial court.

Procedural History and Substantive Facts

{¶2} This appeal stems from a dispute between two Nissan dealerships:

Middleburg Heights Nissan, which is located at 7168 Pearl Road, Middleburg Heights,

Ohio, and North Olmsted Nissan, which is located at 28500 Lorain Road, North Olmsted,

Ohio. Bernardo Moreno, Middleburg Heights Nissan’s principal, formed Middleburg

Heights Nissan for the purpose of acquiring a Nissan franchise from North Coast Nissan.

North Coast Nissan was operating out of the Pearl Road location at the time Moreno

signed the asset purchase agreement to acquire it. Moreno signed the purchase

agreement on March 5, 2012, and Nissan of North America, the Nissan manufacturer

(“Nissan Manufacturer”), approved the sale of North Coast Nissan to Middleburg Heights

Nissan on April 30, 2012.

{¶3} After signing the purchase agreement with North Coast Nissan, Moreno met

with Mike D’Amato, president of North Olmsted Nissan, and advised D’Amato that he

intended to relocate the Middleburg Heights Nissan’s dealership from its current location

on Pearl Road to 13960 Brookpark Road, Cleveland, Ohio (the “protest site”), in addition to 14080 Brookpark Road, purportedly for storage, which is located next door. Moreno

had obtained a survey that measured the distances between the dealerships, measuring in

a straight line from the closest point at each location, and forwarded the information to

D’Amato. The survey indicated that the distance from the closest point of the property

located at 28500 Lorain Road to the closest point of the property located at 7168 Pearl

Road is 7.43 miles. The survey also indicated that the straight-line distance between

28500 Lorain Road and 14080 Brookpark Road is 7.44 miles. Moreno testified that the

distance to the 14080 Brookpark Road property, rather than 13960 Brookpark Road, was

measured because the storage facility was the closest property to North Olmsted Nissan’s

property.

{¶4} Middleburg Heights Nissan sought and received approval from the Nissan

Manufacturer for its relocation to the protest site as well as to the proposed site located at

14080 Brookpark Road. On May 4, 2012, the Nissan Manufacturer advised North

Olmsted Nissan that it approved the sale of North Coast’s dealership assets to Middleburg

Heights Nissan. The Nissan Manufacturer also advised North Olmsted Nissan that it

approved the relocation of the dealership to the protest site and that upon relocation,

Middleburg Heights Nissan would also be maintaining an offsite storage location for new

vehicles at 14080 Brookpark Road.

{¶5} After learning of Middleburg Heights Nissan’s intent to relocate, North

Olmsted Nissan filed an administrative protest with the Ohio Motor Vehicle Dealers

Board (the “Board”) against the Nissan Manufacturer, protesting the relocation of Middleburg Heights Nissan’s franchise to the protest site. The protest was based on

Moreno’s expressed intent to relocate and the measurements indicated in Moreno’s

survey.

{¶6} On May 15, 2012, the Board accepted North Olmsted Nissan’s protest and

notified the Nissan Manufacturer of the protest. Upon receiving notification of North

Olmsted Nissan’s protest, the Nissan Manufacturer moved to dismiss the protest, arguing

that North Olmsted Nissan failed to timely protest the relocation and that a dealer has no

right of protest when a manufacturer proposes to relocate another dealer further from that

dealer. Middleburg Heights Nissan, who was not a party to the protest, filed a motion to

intervene in the proceedings as well as a motion to dismiss the protest. Middleburg

Heights Nissan argued that it has a right to intervene in the proceedings and that the

protest should be dismissed for lack of jurisdiction. On March 27, 2013, the hearing

examiner granted Middleburg Heights Nissan’s motion to intervene for the limited

purposes of attending the hearing and presenting evidence to be considered by the

examiner and the Board. The hearing examiner determined, however, that even though

Middleburg Heights Nissan was an “other interested individual,” it did not have the right

to engage in discovery or conduct cross-examination of the witnesses at the hearing. The

hearing examiner also denied Middleburg Heights Nissan’s motion to dismiss as “moot

and a legal nullity.”

{¶7} Finally, the hearing examiner denied the Nissan Manufacturer’s motion to

dismiss the protest, finding that North Olmsted Nissan has standing to protest the relocation. It also determined that the issue of the distance between the dealership and

the protest site, whether it is 13960 Brookpark Road or 14080 Brookpark Road, is an

issue of fact and was, therefore, not ripe for review under a motion to dismiss. It then

ordered the matter to proceed to a hearing in order to determine whether the Nissan

Manufacturer has good cause to relocate Middleburg Heights Nissan’s dealership within

North Olmsted Nissan’s relevant market area.

{¶8} Middleburg Heights Nissan states that due to the delay of approximately

one year from the date of the protest to the hearing examiner’s order denying the Nissan

Manufacturer’s motion to dismiss, Middleburg Heights Nissan lost the ability to acquire

the protest site. It therefore withdrew its request to the Nissan Manufacturer to relocate

its dealership to that location on May 31, 2013.1

{¶9} At the same time, Middleburg Heights Nissan sought approval from the

Nissan Manufacturer for relocation to 13930 Brookpark Road, Cleveland, Ohio (the

“proposed site”). Middleburg Heights Nissan obtained a survey that showed the distance

from the closest point of the property located at 28500 Lorain Road to the closest point of

Following Middleburg Heights Nissan’s withdrawal of its request to relocate its dealership 1

to 13960 Brookpark Road, the Nissan Manufacturer filed with the Board a motion to dismiss as moot North Olmsted Nissan’s protest of the relocation to this property. North Olmsted Nissan opposed Middleburg Heights Nissan’s motion and filed its own cross-motion to dismiss and motion for summary judgment for failure to prosecute. On February 13, 2014, the hearing examiner determined in its report and recommendation that North Olmsted Nissan may not maintain a protest concerning the property located at 13960 Brookpark Road since that relocation by Middleburg Heights Nissan has been abandoned, and it recommended North Olmsted Nissan’s protest be dismissed as moot. On March 20, 2014, the Board approved the report and recommendation of the hearing examiner and dismissed the protest. North Olmsted Nissan subsequently appealed the Board’s dismissal to the trial court. the property located at 13930 Brookpark Road is 7.61 miles. In his request on behalf of

Middleburg Heights Nissan, Moreno provided that while the proposed site is currently

occupied as an Acura dealership, he has control of the property and the facility and he has

plans to sell the Acura dealership. The Nissan Manufacturer declined to approve the

proposed relocation on June 12, 2013, stating as follows:

[Middleburg Heights Nissan’s] proposal to relocate to 13930 Brookpark

Road presents [the Nissan Manufacturer] with the prospect of more of the

same delays and failure by the Board to determine its own jurisdiction.

[North Olmsted Nissan] has already threatened to protest any proposed

relocation by [Middleburg Heights Nissan], presumably because it believes

it can materially delay any approved relocation proposal by simply initiating

a protest proceeding, regardless of whether it has any legal right to protest

the relocation. The hearing examiner is apparently unwilling to address

this standing question. Accordingly, because the Board failed to address

the standing and jurisdiction issues in a timely way, [the Nissan

Manufacturer] cannot and does not approve your request to relocate to

13930 Brookpark Road.

{¶10} On June 13, 2013, Middleburg Heights Nissan, filed a declaratory judgment

action asking the trial court to declare that (1) the proper statutory interpretation of

“further” as used in R.C. 4517.50(C)(3) requires the use of the straight line, or “as the

crow flies,” method of measuring distance, from closest point to closest point; and (2) 13930 Brookpark Road, the proposed site, is further from North Olmsted Nissan’s

dealership than the current dealership location at 7168 Pearl Road.

{¶11} North Olmsted Nissan moved to dismiss Middleburg Heights Nissan’s

complaint, stating that the trial court lacked jurisdiction to entertain the complaint

because there was no controversy between the parties, Middleburg Heights Nissan had

failed to exhaust its administrative remedies, and the Nissan Manufacturer was a

necessary party to the dispute. Thereafter, Middleburg Heights Nissan filed a motion for

summary judgment on Count 1 of the complaint, to which North Olmsted Nissan

responded with a cross-motion for summary judgment.

{¶12} On August 7, 2013, the trial court issued an order denying North Olmsted

Nissan’s motion to dismiss. The trial court found that there is a justiciable controversy

between two parties that the legislative scheme did not contemplate the Board having

jurisdiction to review. The trial court further held that the Nissan Manufacturer was not

a necessary party to the action because North Olmsted Nissan does not seek any relief

from the Nissan Manufacturer and the Nissan Manufacturer has no “legally protectable

rights” relating to either count of Middleburg Heights Nissan’s complaint. On August

15, 2013, North Olmsted Nissan filed a motion for reconsideration, or alternatively,

motion to stay, which was denied.2

On August 26, 2013, North Olmsted Nissan filed a complaint for writ of mandamus and 2

prohibition with the Ohio Supreme Court concerning the trial court’s jurisdiction over Middleburg Heights Nissan’s complaint, which the supreme court dismissed. {¶13} On October 10, 2013, the court held a hearing on Counts 1 and 2 of the

complaint, during which time it heard arguments on summary judgment. On November

25, 2013, the court entered judgment in favor of Middleburg Heights Nissan and against

North Olmsted Nissan on all counts of the complaint. It declared that the straight line

method of measurement is the appropriate method of measuring the distance between the

properties for purposes of enforcing R.C. 4517.50(C)(3). The court further declared that

the property located at 13930 Brookpark Road, Cleveland, Ohio, is “further” as that term

is used in R.C. 4517.50(C)(3) from North Olmsted Nissan’s dealership at 28500 Lorain

Road, North Olmsted, Ohio, than Middleburg Heights Nissan’s current dealership at 7168

Pearl Road, Middleburg Heights, Ohio.

Assignments of Error

I. Because Middleburg Heights Nissan lacks standing, the trial court did not have jurisdiction to issue its November 25, 2013 declaratory judgment and the order is void ab initio as a matter of law and the trial court erred in not declaring same.

II. Assuming arguendo that this court determines that Middleburg Heights Nissan had the requisite standing, the trial court erred by declaring the word “further” as used in R.C. 4517.50(C)(3) is defined as measured by a straight line from the closest point of an existing line-make new motor vehicle dealer to the closest point of a relocating line-make new motor vehicle dealer.

III. Because Middleburg Heights Nissan failed to exhaust its administrative remedies, the trial court erred in not dismissing the action.

IV. Because the board has exclusive jurisdiction, the trial court erred in not dismissing the action. Standing

{¶14} For ease of discussion, we will address North Olmsted Nissan’s assignments

of error out of order.

{¶15} In North Olmsted Nissan’s first assignment of error, it claims that the trial

court did not have jurisdiction to review the complaint for declaratory judgment because

Middleburg Heights Nissan did not have standing. As a result, North Olmsted Nissan

argues that the court’s order of November 25, 2013, granting declaratory judgment in

favor of Middleburg Heights Nissan is void.

{¶16} Standing is a jurisdictional prerequisite that must be resolved in order for a

trial court to adjudicate an action. Belvino L.L.C. v. Empson United States, 8th Dist.

Cuyahoga No. 97305,

, citing State ex rel. Jones v. Suster,

, 77,

(1998). It is “‘part of the common understanding of what

it takes to make a justiciable case.’” Fed. Home Loan Mtge. Corp. v. Schwartzwald,

,

,

, ¶ 21, quoting Steel Co. v. Citizens for

a Better Environment,

,

,

(1998).

“[S]tanding is not a technical rule intended to keep aggrieved parties out of court.”

Moore v. Middletown,

,

,

.

Rather, it is a “practical concept” that is utilized to prevent the litigation of nonjusticiable

interests and to ensure that a real controversy is adjudicated.

citing Fort Trumbull

Conservancy, L.L.C. v. Alves,

,

(2003), quoting Maloney v. Pac,

,

(1981). Courts are typically

“generous” in determining whether a party has standing.

{¶17} A justiciable matter is an actual controversy between parties. Pointe at

Gateway Condo. Owner’s Assn. v. Schmelzer, 8th Dist. Cuyahoga Nos. 98761 and 99130,

, citing State ex rel. Barclays Bank PLC v. Hamilton Cty. Court of

Common Pleas,

,

(1996). Declaratory judgment

actions may be filed for the purposes of deciding an actual controversy. Mid-Am. Fire &

Cas. Co. v. Heasley,

,

,

, ¶ 9. In

order for a justiciable question to exist, the “threat” to a party’s position “‘must be actual

and genuine and not merely possible or remote.’”

citing League for Preservation of

Civil Rights v. Cincinnati,

,

(1st Dist. 1940), quoting

Borchard, Declaratory Judgments (1934) 40.

{¶18} The purpose of a declaratory judgment action is “to serve the useful end of

disposing of uncertain or disputed obligations quickly and conclusively.”

,

quoting Ohio Farmers Indemn. Co. v. Chames,

, 213,

(1959). To that end, courts construe the declaratory judgment statute liberally.

Issues of statutory interpretation can be properly presented in a complaint for declaratory

judgment. See R.C. 2721.03.

{¶19} In order to obtain relief under the Declaratory Judgment Act, R.C. 2721.01,

et seq., a party must establish: (1) a real controversy exists between the parties; (2) the

controversy is justiciable; and (3) speedy relief is necessary to preserve the rights of the parties. Burger Brewing Co. v. Ohio Liquor Control Comm.,

,

(1973). A trial court may dismiss a complaint for declaratory judgment

without addressing the merits of the case if there is (1) neither a justiciable issue nor an

actual controversy between the parties requiring speedy relief, or (2) the declaratory

judgment will not terminate the uncertainty or controversy. Haley v. Bank of Am., 8th

Dist. Cuyahoga No. 98207,

. For purposes of a declaratory

judgment action, a controversy exists “when there is a genuine dispute between the

parties having adverse legal interests of sufficient immediacy and reality to warrant the

issuance of a declaratory judgment.” Wagner v. Cleveland,

,

(8th Dist. 1988), citing Burger Brewing Co.

{¶20} A trial court’s determination regarding the justiciability of a declaratory

judgment action is reviewed for an abuse of discretion. Arnott v. Arnott,

,

,

, ¶ 13. An abuse of discretion suggests that a trial

court’s judgment is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore,

,

(1983). Once a trial court determines

that a matter is appropriate for declaratory judgment, its decision regarding the questions

of law are reviewed de novo. Arnott.

{¶21} North Olmsted Nissan contends that Middleburg Heights Nissan does not

have a justiciable controversy with North Olmsted Nissan because Middleburg Heights

Nissan has admitted that the Nissan Manufacturer denied its request to relocate to 13930

Brookpark Road. North Olmsted Nissan argues that because there has already been a denial by the manufacturer, any threat by North Olmsted Nissan to protest relocation is

not a present dispute, rather the dispute is a possible controversy in the future, which is

contingent upon events that have not occurred and may not occur.

{¶22} Middleburg Heights Nissan alleges, on the other hand, that (1) the Nissan

Manufacturer’s denial of its request to relocate to the proposed site was based upon North

Olmsted Nissan’s threat to protest, (2) North Olmsted Nissan’s threat to continue to

protest any relocation attempts made by Middleburg Heights Nissan creates a present

and on-going dispute and is therefore an actual controversy, and (3) the matter can be

resolved by the court’s interpretation of “further” as defined in R.C. 4517.50(C)(3) and its

application of that definition to the proposed site.

{¶23} On August 7, 2013, the trial court denied North Olmsted Nissan’s motion to

dismiss Middleburg Heights Nissan’s complaint for declaratory judgment, finding a

substantive and justiciable controversy between the parties. The court determined that

North Olmsted Nissan’s “threatened protest can be resolved by [the] court defining [the]

statutory meaning of ‘further’ and applying that definition to [Middleburg Heights

Nissan’s] new property in comparison to [North Olmsted Nissan’s] property.” The court

also found that the “real and substantial controversy [ ] will admit a decree conclusive in

character.”

{¶24} R.C. 4517.50(A) requires a franchisor who intends to relocate a dealership

to disclose its relocation plans to any dealers of the same line-make of vehicle under

certain circumstances. Specifically, R.C. 4517.50(A) provides that: Except as provided in division (C) of this section, when a franchisor seeks

to * * * relocate an existing new motor vehicle dealer at a location in a

relevant market area where the same line-make of motor vehicle is then

represented, the franchisor shall first give notice in writing, by certified

mail, to the motor vehicle dealers board and to each franchisee of such

line-make in the relevant market area of the franchisor’s intention to * * *

relocate an existing new motor vehicle dealer at a location in that relevant

market area. * * * Within fifteen days after receiving the notice, or within

fifteen days after the conclusion of any appeal procedure provided by the

franchisor, whichever is later, the franchisee of the same line-make may file

with the board a protest against the * * * relocation of the proposed new

motor vehicle dealer. When such a protest has been filed, the board shall

inform the franchisor that a timely protest has been filed and that a hearing

is required pursuant to section 4517.57 of the Revised Code. * * *

{¶25} The notification requirement outlined above does not apply, however, when

“[t]he relocation of an existing new motor vehicle dealer * * * relocates further from an

existing line-make new motor vehicle dealer although the relocation is within the same

line-make new motor vehicle dealer’s relevant market area.” (Emphasis added.) R.C.

4517(C)(3). Therefore, if the proposed relocation site is “further” from the existing

dealership, notification is not required, and as a result, there is no protest. {¶26} Here, Middleburg Heights Nissan notified the Nissan Manufacturer that it

wished to relocate its Nissan dealership to 13930 Brookpark Road, after Middleburg

Heights Nissan had lost its ability to relocate to the original protest site of 13960

Brookpark Road. Middleburg Heights Nissan maintains that the proposed site is

“further” from North Olmsted Nissan than its existing dealership. According to the

statute, if the proposed site is “further” than the existing location, then North Olmsted

Nissan could not protest the relocation. Previously, the Board determined at the hearing

on the original protest (to relocation to 13960 Brookpark Road) that North Olmsted

Nissan did, in fact, have standing to bring the protest. It failed, however, to make a

determination of the meaning of “further” as used in R.C. 4517.50(C)(3).

{¶27} The Nissan Manufacturer denied Middleburg Heights Nissan’s request to

relocate to 13930 Brookpark Road, based upon North Olmsted Nissan’s threatened

protest, stating that North Olmsted Nissan has already threatened to protest any proposed

relocation by Middleburg Heights Nissan, “regardless of whether it has any legal right to

protest the relocation.” The Nissan Manufacturer further stated that because the Board

is unwilling to address the issue of whether North Olmsted Nissan has standing to protest

Middleburg Heights Nissan’s relocation request, “[The Nissan Manufacturer] cannot and

does not approve [Middleburg Heights Nissan’s] request to relocate to 13930 Brookpark

Road.”

{¶28} Through this denial, the Nissan Manufacturer has made it clear that it will

not approve any relocation requests made by Middleburg Heights Nissan because of North Olmsted Nissan’s threatened protest and the unsettled matter of whether the

proposed relocation site is “further” from North Olmsted Nissan than Middleburg Heights

Nissan’s existing dealership. As such, as Moreno testified, Middleburg Heights Nissan

is effectively prevented from relocating. The threat to Middleburg Heights Nissan is

therefore an actual controversy that is presently occurring. Moreover, without a

determination of the statutory meaning of “further,” the Nissan Manufacturer will not

approve any requests for relocation made by Middleburg Heights Nissan for fear of

another protest by North Olmsted Nissan.

{¶29} North Olmsted Nissan provides that Middleburg Heights Nissan’s claims of

North Olmsted Nissan’s “threatened protest” are merely hypothetical or speculative and

are based on contingent events that have not occurred. As an example, it states that the

proposed relocation site is currently occupied by another dealership, and therefore, 13930

Brookpark Road is not available to Middleburg Heights Nissan. North Olmsted Nissan

further states that even if the site becomes available, Middleburg Heights Nissan must

still seek and obtain approval from the Nissan Manufacturer for its relocation to that site

once it becomes available, and there is no evidence that the Nissan Manufacturer would

approve the relocation.

{¶30} As Middleburg Heights Nissan correctly notes, however, the controversy at

issue in this matter is not whether Middleburg Heights Nissan may move to the proposed

relocation site, as Middleburg Heights Nissan did not ask the trial court to approve its

relocation. Rather, the controversy involves the interpretation and application of R.C. 4517.50(C)(3), which is a proper basis for a declaratory judgment action. Without the

timely resolution of the statutory meaning of “further,” Middleburg Heights Nissan

cannot take the very first step in relocating, which is seeking approval from the Nissan

Manufacturer. Middleburg Heights Nissan is therefore effectively prevented from

relocating its dealership. As such, absent a declaratory judgment on this issue,

Middleburg Heights Nissan will have no available remedy.

{¶31} North Olmsted Nissan also argues that a declaratory judgment will not

terminate the uncertainty or any controversy because the Nissan Manufacturer is not a

party to the action. In its order denying North Olmsted Nissan’s motion to dismiss, the

trial court held that the Nissan Manufacturer was not a necessary party because

Middleburg Heights Nissan is not seeking relief from the Nissan Manufacturer and this

action would not bind the Nissan Manufacturer in any way, stating that “[the Nissan

Manufacturer] has no legally protectable rights relating to either count [for] which

[Middleburg Heights Nissan] has sought relief.”

{¶32} Under R.C. 2721.12(A), when declaratory relief is sought, “all persons

who have or claim any interest that would be affected by the declaration shall be made

parties to the action or proceeding.” The failure to join a necessary party “is a

jurisdictional defect” and declaratory judgment is therefore precluded. Bretton Ridge

Homeowners Club v. DeAngelis,

,

(8th

Dist. 1988), citing Cincinnati v. Whitman,

,

(1975). {¶33} In the context of a declaratory judgment action, “only those persons who are

legally affected are proper parties to a lawsuit.” Driscoll v. Austintown Assoc.,

,

(1975), quoting Schriber Sheet Metal & Roofers v. Shook,

,

(2d Dist. 1940). A party is “legally affected” if

the party has a legal interest in rights that are the subject matter of the cause of action.

Rumpke Sanitary Landfill, Inc. v. State,

,

,

, ¶ 14. A “legal interest” is an interest that is “legally protectable.”

{¶34} Here, Middleburg Heights Nissan’s complaint for declaratory judgment does

not seek any relief from the Nissan Manufacturer. Middleburg Heights Nissan is not

asking the trial court to approve its relocation or to direct the Nissan Manufacturer to

perform in any manner. Rather, Middleburg Heights Nissan is asking the trial court to

interpret R.C. 4517.50(C)(3) and to apply that interpretation to its proposed relocation

site. Although the Nissan Manufacturer likely has a practical interest in the outcome of

the action — the court’s interpretation will ultimately determine whether North Olmsted

Nissan has standing to protest, thus establishing whether the Nissan Manufacturer

becomes involved in the proposed relocation — it has no legally protectable interest in

the court’s interpretation and application of the statute. In other words, the trial court’s

judgment would not legally bind the Nissan Manufacturer. The Nissan Manufacturer is

therefore not a necessary party to Middleburg Heights Nissan’s complaint for declaratory

judgment. {¶35} In light of the foregoing, we do not find that the trial court abused its

discretion in finding a real and justiciable controversy that will be effectively resolved by

the quick and conclusive relief obtained through a declaratory judgment.

{¶36} North Olmsted Nissan’s first assignment of error is overruled.

Administrative Remedies and Board’s Exclusive Jurisdiction

{¶37} In its third and fourth assignments of error, North Olmsted Nissan claims

that the trial court erred in not dismissing Middleburg Heights Nissan’s complaint

because the Board has exclusive authority to determine relocation protests and

Middleburg Heights Nissan failed to exhaust its administrative remedies. Because North

Olmsted Nissan’s third and fourth assignments of error address the trial court’s alleged

error in not dismissing Middleburg Heights Nissan’s complaint and the claims are related,

we will address them together.

{¶38} In its order denying North Olmsted Nissan’s motion to dismiss Middleburg

Heights Nissan’s complaint, the trial court determined that Middleburg Heights Nissan’s

declaratory judgment action did not circumvent the administrative proceedings. The

court found that the current action “relates to a different property[] and involves a

controversy between two parties which the legislative scheme did not contemplate the

[Motor Vehicle Dealers Board] having jurisdiction to hear.”

{¶39} A party filing a complaint for declaratory judgment must first exhaust any

administrative remedies before invoking the jurisdiction of the common pleas court.

Jones v. Chagrin Falls,

,

(1997). The failure to exhaust administrative remedies is not a jurisdictional defect to a declaratory judgment

action; rather, it is an affirmative defense.

Where a party fails to exhaust available

administrative remedies, allowing declaratory relief would serve “only to circumvent an

adverse decision of an administrative agency and to bypass the legislative scheme.”

Fairview Gen. Hosp. v. Fletcher,

,

(1992).

{¶40} A party is not required to exhaust administrative remedies, however, where

there is no administrative remedy available. Kaufman v. Newburgh Hts.,

,

(1971). An administrative remedy would not be available, for

instance, where an administrative body “lacks the authority to grant the relief sought.”

State ex rel. Teamsters Local Union No. 436 v. Bd. of County Commrs.,

,

,

, ¶ 24, quoting Nemazee v. Mt. Sinai Med. Ctr.,

,

(1990).

{¶41} An administrative agency can exercise only the jurisdiction conferred upon

it by statute. Time Warner AxS v. Pub. Util. Comm.,

,

(1996). In other words, an administrative agency has no authority beyond its

statutorily delegated powers and may only exercise those powers the General Assembly

expressly granted to it. Shell v. Ohio Veterinary Med. Licensing Bd.,

,

,

, ¶ 32.

{¶42} The statute at issue in this case is R.C. 4517.50, of the Ohio Motor Vehicle

Dealers Act. This statute governs the jurisdiction of the Ohio Motor Vehicle Dealers

Board over relocation disputes. It provides that a dealer may protest a relocation approved by a manufacturer under certain circumstances. See R.C. 4517.50(A). The

Board’s jurisdiction over such relocation disputes is limited to that statute. See Jack

Matia Chevrolet, Inc. v. GMC, 10th Dist. Franklin No. 06AP-360,

.

{¶43} North Olmsted Nissan’s argument fails for several reasons. First,

Middleburg Heights Nissan’s complaint for declaratory judgment does not concern an

ongoing relocation dispute. Rather, it seeks the trial court’s interpretation of the meaning

of “further” as stated in R.C. 4517.50(C)(3) and its application to a proposed site of

relocation in order that Middleburg Heights Nissan may relocate its dealership. Second,

R.C. 4517.50 governs when there is a dispute between a manufacturer and a dealer. It

does not govern disputes between two dealers, such as North Olmsted Nissan and

Middleburg Heights Nissan. Moreover, the record shows that Middleburg Heights

Nissan was not a party to the original relocation dispute. Middleburg Heights Nissan’s

motion to intervene in the dispute was essentially denied by the hearing examiner,

allowing only Middleburg Heights Nissan’s presence and strictly limiting involvement at

the hearing.

{¶44} Finally, as the trial court states in its order denying North Olmsted Nissan’s

motion to dismiss, the original relocation protest concerned the property located at 13960

Brookpark Road. The protest concerning that property has been dismissed for mootness

because the site is no longer available for a Nissan franchise. The current proposed site,

however, which is the property at issue in Middleburg Heights Nissan’s complaint, is

13930 Brookpark Road. The Nissan Manufacturer has stated that it will not approve this site unless and until the proper meaning of “further” is addressed by the court. The

proposed site is therefore not the subject of a protest and is likewise not the subject of an

administrative proceeding.

{¶45} In light of the foregoing, we find that the trial court did not abuse its

discretion in finding that Middleburg Heights Nissan did not fail to exhaust its

administrative remedies because Middleburg Heights Nissan had no administrative

remedy available to it. The Board therefore had no statutorily provided jurisdiction over

Middleburg Heights Nissan’s complaint for declaratory judgment.

{¶46} North Olmsted Nissan’s third and fourth assignments of error are overruled.

Statutory Interpretation of R.C. 4517.50(C)(3)

{¶47} In its second assignment of error, North Olmsted Nissan claims that the trial

court erred in declaring the word “further” as used in R.C. 4517.50(C)(3) is defined as

measured by a straight line from the closest point of an existing line-make new motor

vehicle dealer to the closest point of a relocating line-make new motor vehicle dealer.

North Olmsted Nissan contends that the appropriate method of measurement is distance

traveled.

{¶48} Statutory interpretation is a question of law that we review de novo. State

v. Lindstrom, 8th Dist. Cuyahoga No. 96653,

, citing State v.

Sufronko,

,

(1995).

{¶49} The principal consideration with respect to the interpretation of a statute is

the legislative intent. State v. Garner, 8th Dist. Cuyahoga Nos. 97948 and 97949,

, citing State v. Jordan,

,

(2000). Courts must first look to the language of the statute itself in order to determine

the legislative intent. Provident Bank v. Wood,

,

(1973). When examining the actual language of a statute, words should be given

their common and ordinary meaning unless the legislature has clearly expressed a

contrary intention. Youngstown Club v. Porterfield,

,

(1970); R.C. 1.42.

{¶50} If a statute is clear and unambiguous, the statute must be applied as written

and no further interpretation is necessary. State ex rel. Savarese v. Buckeye Local School

Dist. Bd. of Edn.,

,

, 465 (1996). The court must

give effect to the words used in a statute, while avoiding “‘delet[ing] words used or

insert[ing] words not used.’” Bernardini v. Conneaut Area City School Dist. Bd. of Edn.,

,

(1979), quoting Columbus-Suburban Coach Lines v.

Pub. Util. Comm.,

,

(1969). A court may therefore

interpret a statute only where the words of the statute are ambiguous. State ex rel.

Celebrezze v. Allen Cty. Bd. of Commrs.,

,

(1987).

{¶51} A statute is ambiguous if the language is susceptible to more than one

reasonable interpretation. Cleveland Clinic Found. v. Bd. of Zoning Appeals, 8th Dist.

Cuyahoga No. 98115,

; State ex rel. Toledo Edison Co. v. Clyde,

,

(1996). If a statute is ambiguous, the court may

consider several factors, including the object sought to be obtained, the legislative history, other laws upon the same or similar subjects, and the consequence of a particular

construction. R.C. 1.49;

.

{¶52} In order to clarify an ambiguity, statutory provisions must be read together

in order to “‘provide[] the proper effect to each statute.’” Blair v. Bd. of Trustees of

Sugarcreek Twp.,

,

,

, ¶ 18, quoting

State ex rel. Cordray v. Midway Motor Sales, Inc.,

,

,

. In that regard, “[a]ll provisions of the Revised Code bearing upon

the same subject matter should be construed harmoniously unless they are irreconcilable.”

{¶53} R.C. 4517.50(A) provides that a dealer may protest a manufacturer’s

approval of the relocation of another dealership “[w]ithin fifteen days after receiving the

notice [of the relocation], or within fifteen days after the conclusion of any appeal

procedure provided by the franchisor, whichever is later * * *.” This section does not

apply to “[t]he relocation of an existing new motor vehicle dealer that relocates further

from an existing line-make new motor vehicle dealer although the relocation is within the

same line-make new motor vehicle dealer’s relevant market area.” (Emphasis added.)

R.C. 4517.50(C)(3). “Relevant market area” is defined as “any area within a radius of

ten miles from the site of a potential new dealership.” R.C. 4517.01(DD).

{¶54} The statute does not define the word “further.” The ordinary meaning of

“further” has been defined in terms of distance. Webster’s Unabridged Dictionary (2d

Ed. 1998) (defining “further” as “at or to a greater distance”). We must therefore determine the proper measurement of the distance between the locations identified in R.C.

4517.50(C)(3). According to North Olmsted Nissan, “further” should be defined as

measured by the distance traveled. Middleburg Heights Nissan, on the other hand, states

that “further” is properly defined as measured using a straight-line method, or “as the

crow flies.”

{¶55} Courts have generally favored the straight-line method of measurement in

statutes that require distance to be measured but do not specify the method of

measurement. In a case involving the interpretation of the proper measure of distance in

a statute governing the weighing of motor vehicles, the Ohio Supreme Court reversed the

court of appeals’ ruling that the phrase “within three miles” meant “road miles,” or drive

distance. State v. Shepherd,

,

(1980). In that case,

R.C. 4513.33 permitted a police officer to require motor vehicles to proceed to the nearest

available scales to be weighed, “provided such scales are within three miles of the point

where such vehicle is stopped.” The defendant had been stopped and ordered to have his

truck weighed. The scales, when measured by a straight line, were less than one mile

from the point at which the defendant had been stopped. When measured in “road

miles,” they were approximately seven miles from the stopping point.

{¶56} Looking at the statute, the supreme court found the General Assembly’s

intent to be controlling, finding that the legislature deliberately chose the language

“within three miles,” rather than the “use of an inflexible road mileage limitation” to allow the police to effectively enforce load limitations.

. In reversing

the court of appeals, the court stated:

If the General Assembly had intended to require the use of road miles, it

would have surely used a phrase more explicitly indicating that intent. The

common understanding of the phrase “within three miles” is that it refers to

straight-line distance.

.

{¶57} More recently, lower courts have adopted the straight-line method of

measurement. In a case involving the interpretation of the phrase “within one thousand

feet” contained within the residency restriction in R.C. 2950.034, the Tenth District Court

of Appeals applied the ordinary meaning of the term “within” and determined that the

straight-line approach is the proper method of measurement. State ex rel. O’Brien v.

Messina, 10th Dist. Franklin No. 10AP-37,

, ¶ 16. The court reasoned

that the straight line approach “provides more predictability and more uniform application

than does the navigable distance approach, which would put the distance between the two

locations in flux depending on the construction or destruction of infrastructure.”

The

court further found that the straight line should be measured “from property line to

property line.” Id. at ¶ 18; see also State ex rel. O’Brien v. Heimlich, 10th Dist. Franklin

No. 08AP-521,

(the court approving the straight-line measurement

through global imaging software to calculate the distance between an offender’s residence

and a school premises for the purposes of interpretation of R.C. 2950.034(A)); State v. Franklin,

,

,

(holding the court

could rely on global imaging software to compute the distance between two locations

using a straight line approach for drug trafficking charges enhanced for occurring within

1,000 feet of a school premises); Drs. Guren, Jaffe & Assoc, Inc. dba Am. Dental Ctrs.

v. Phillip, 11th Dist. Lake No. 10-112,

(Oct. 5, 1984)

(finding the plain and ordinary meaning of the phrase “in or within five (5) miles”

unambiguously requires a straight-line distance in the interpretation of an employment

contract).

{¶58} This court has also adopted the straight-line measurement with respect to a

non-competition agreement. Frederick D. Harris, M.D., Inc. v. Univ. Hosps., 8th Dist.

Cuyahoga Nos. 76724 and 76785,

. In that case, where the

non-competition agreement did not specify the manner in which to measure the distance,

we rejected the drive distance method of computing distance between two office

locations, stating that “[c]ase law has been historically uniform in rejecting this theory

and in holding that the correct way to measure the distance between locations is as the

crow flies, or the straight-line approach used by a surveyor. Id. at ¶ 20.

{¶59} Significantly, an appellate court impliedly adopted the use of a straight-line

method of measurement as it applied to a relocation protest under R.C. 4517.50.

Fleisher v. Ford Motor Co., 10th Dist. Franklin No. 09AP-139,

. In that

case, the section of the statute at issue was R.C. 4517.50(C)(1), which provides that the notice requirements outlined in R.C. 4517.50(A) do not apply to “[t]he relocation of an

existing new motor vehicle dealer within one mile from the existing location.”

{¶60} In Fleisher, Rouen Lincoln Mercury sold its dealership to Brondes Ford.

Brondes then moved the Lincoln Mercury dealership to the Brondes Ford location. Both

dealerships were within the relevant market area of another Lincoln Mercury dealership,

which was owned by Robert Fleisher. Fleisher protested the relocation, alleging that

Ford violated the statute by failing to provide Fleisher notice of the relocation. Ford

obtained a straight-line measurement of the distance between Rouen Lincoln Mercury

location and Brondes Ford, which revealed that the distance was .54 miles.

{¶61} Based upon this measurement, Ford moved to dismiss the protest. Relying

on Ford’s measurement and R.C. 4517.50(C)(1), the hearing examiner found that because

the relocation was less than one mile, the notice requirement of R.C. 4517.50 did not

apply, and as a result, Fleisher had no right to protest. Id. at ¶ 7. The Board adopted the

hearing examiner’s report and recommendation that Fleisher’s protest be dismissed. Id.

at ¶ 8. Fleisher then appealed the Board’s decision, which was upheld by the trial court.

Upon further appeal, the Tenth District Court of Appeals affirmed the trial court’s

decision, stating that “it is undisputed that the new Brondes dealership was less than one

mile away from the existing Brondes dealership” and, therefore, R.C. 4517.50(C)(1)

exempted Ford from the notice requirements.

. It is therefore clear from

this decision that the Tenth District relied on Ford’s straight-line measurement between locations in order to find that the exception to the notice requirements of R.C. 4517.50

applied to Ford’s relocation.

{¶62} Additionally, in looking at the statute itself, we do not find that the language

in the statute expressly indicates an intent to define “further” as measured by distance

traveled, rather than straight-line measurement. And if the legislature had intended to

require the use of road miles for purposes of applying the exception outlined in R.C.

4517.50(C)(3), it would have used a phrase more explicitly indicating that intent. See

Shepherd,

,

.

{¶63} Moreover, the language in other parts of the statute suggests a straight-line

measurement for distances between two locations. R.C. 4517.50 (DD) defines “relevant

market area” as an area within a radius of ten miles from the site of the existing dealer.

As previously outlined, courts have applied the ordinary meaning of the term “within”

and determined that the straight-line approach is the proper method of measurement

where that term is used. Reading R.C. 4517.50(DD) in conjunction with R.C.

4517.50(C)(3), as we are required to do, we find that the legislature intended “further” to

be defined in the same manner. See Sims v. Nissan North Am., Inc., 10th Dist. Franklin

Nos. No. 12AP-833, 12AP-835,

, ¶ 32 (where statutes relate to one

another, they should be read together); Chrysler Corp. v. Bowshier, 10th Dist. Franklin

No. 01AP-921,

(because R.C. 4517.65(A) and (B) relate to one another,

they must be read together); R.C. 1.42 (words and phrases must be read in context and

construed according to the rules of grammar and common usage). {¶64} In support of its argument that “further” should be defined by the distance

traveled, North Olmsted Nissan cites to Bd. of Edn. v. Bd. of Edn.,

,

(1898). In that case from 1898, the Ohio Supreme Court defined “further” as

requiring a measurement by the nearest practical traveled route as applied to a statute that

permitted kindergarten students to attend a school outside of their district if the closest

school in their district was “further.” The court reasoned that because the legislation

“provides for the convenience of children,” the distance “is to be taken as they travel

along the most direct public highway.” Id. at 394. In reaching its decision, the court

determined that the statute demonstrated an intent that a measurement other than a

straight line be used. And the intent of a statute is, in fact, controlling. Jordan,

,

,

. By contrast, R.C. 4517.50(C)(3) does not

express such an intent, and therefore, we apply the straight-line measurement in defining

distance. Shepherd,

,

; Messina, 10th Dist.

Franklin No. 10AP-37,

.

{¶65} Finally, North Olmsted Nissan argues that industry standards establish that

drive distance or travel time is the preferred method of measurement in the motor vehicle

industry. In support of its argument, North Olmsted Nissan provided the expert

testimony of John Matthews. This testimony, however, is irrelevant to the court’s

interpretation of R.C. 4517.50(C)(3). Statutory interpretation of undefined terms in a

statute is a question of law, not of fact. Hewitt v. L.E. Myers Co.,

,

;

, citing Akron Centre Plaza, L.L.C. v. Summit Cty. Bd. of Revision,

,

,

. Moreover,

it is error for a court to allow an expert “to interpret for the jury what the statute requires.”

Kraynak v. Youngstown City Sch. Dist. Bd. of Edn.,

,

;

.

{¶66} Based upon the foregoing, we find that the trial court correctly interpreted

R.C. 4517.50(C)(3) in defining “further” as measured by a straight line from the closest

point of an existing line-make new motor vehicle dealer to the closest point of a

relocating line-make new motor vehicle dealer. North Olmsted Nissan’s second

assignment of error is therefore overruled.

{¶67} Applying this definition to Middleburg Heights Nissan’s proposed

relocation site of 13930 Brookpark Road, we find that the trial court correctly concluded

that the property located at 13930 Brookpark Road, Cleveland, Ohio, is “further” from

North Olmsted Nissan’s dealership at 28500 Lorain Road, North Olmsted, Ohio, than

Middleburg Heights Nissan’s current dealership located at 7168 Pearl Road, Middleburg

Heights, Ohio. Middleburg Heights Nissan offered evidence that the distance, as

measured by a straight line, from the closest point of the property located at 28500 Lorain

Road to the closest point of the property located at 7168 Pearl Road is 7.43 miles. The

evidence also showed that the distance from the closest point of the property located at

28500 Lorain Road to the closest point of the property located at 13930 Brookpark Road

is 7.61 miles. North Olmsted Nissan did not dispute this evidence. {¶68} Accordingly, this court affirms the declaratory judgment of the trial court on

Counts 1 and 2 of the complaint.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

______________________________________________ TIM McCORMACK, JUDGE

SEAN C. GALLAGHER, P.J., and PATRICIA ANN BLACKMON, J., CONCUR