Hal Artz Lincoln-Mercury v. Ford Motor Co., Lincoln-Mercury Division

• Decision Date: 26 November 1985
• Docket Number: 85-LW-0315,85 AP-327
• Parties: HAL ARTZ LINCOLN-MERCURY et al., Appellees-Appellees, (Cross-Appellants), v. FORD MOTOR COMPANY, LINCOLN-MERCURY DIVISION, Appellant-Appellee. (Ohio Motor Vehicle Dealers Board, Intervenor-Appellant.)
• Court: Ohio Court of Appeals

HAL ARTZ LINCOLN-MERCURY et al., Appellees-Appellees (Cross-Appellants), v. FORD MOTOR COMPANY, LINCOLN-MERCURY DIVISION Appellant-Appellee. (Ohio Motor Vehicle Dealers Board Intervenor-Appellant.)

No. 85 AP-327.

85-LW-0315 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

November 26, 1985

Baker & Hostetler, George W. Hairston, Richard W. Siehl; Friedman & Chenette and Jeffrey H. Friedman, for cross-appellants Hal Artz Lincoln-Mercury et al.

Porter, Wright, Morris & Arthur, Earl F. Morris, Joseph W. Ryan, Jr.; and David Larrouy, for appellee Ford Motor Company.

Anthony J. Celebrezze, Jr., Attorney General, Luis M. Alcalde, William W. Pfeiffer and Perry R. Silverman, for intervenor-appellant.

Appeal from the Franklin County Common Pleas Court.

OPINION

STRAUSBAUGH Judge.

Appellants appeal a decision of the Court of Common Pleas of Franklin County, which held that Ohio Motor Vehicle Dealers Board ("board") was without jurisdiction to grant a reconsideration of a previous order.

On March 1, 1983, appellee gave notice to appellant Lincoln-Mercury dealers ("dealers") of its intention to establish a new dealership in their area. Appellant dealers timely filed protests in accordance with R.C. Chapter 4517. A hearing examiner recommended that the protests be sustained; the board rejected that recommendation and denied the protests.

Subsequently, on April 16, 1984, the board granted a rehearing in response to the dealers' motion for reconsideration and over objection of appellee. Appellee requested an extension of time in which to argue the merits. Following a hearing on the merits, the board sustained the dealers' protest.

Appellee appealed the decision to the court of common pleas, which held that the board lost jurisdiction over the action on April 16, 1984 (this was the last day within the statutory time limit to appeal). Therefore, the board's reconsidered order was null and void.

Appellant board asserts the following assignment of error:

"The court of common pleas erred in holding that the Ohio Motor Vehicle Dealers Board lacked jurisdiction to issue its decision and order of April 27, 1984."

Appellant dealers assert the following assignments of error:

"I.The lower court's judgment that the Motor Vehicle Dealers Board lost jurisdiction over these protests on April 16, 1984, and consequently the Board's April 27, 1984 reconsidered order sustaining the protests was null and void, is contrary to controlling Ohio Supreme Court precedent and therefore erroneous.

"II.The lower court's judgment that the Motor Vehicle Dealers Board lost jurisdiction over the protests on April 16, 1984, and consequently the Board's April 27, 1984, reconsidered order sustaining the protests was null and void, is erroneous because the Board's action, if improper at all, merely constituted error which Ford invited, and to which Ford waived any objection."

In appellant dealers' first assignment of error and in appellant board's single assignment of error, appellants urge that the board retained jurisdiction for a period of fifteen days for any rehearing or reconsideration and that, as long as the board asserted that jurisdiction in a timely fashion, it was permitted to reconsider its decision.

Appellee counters that the board could not reconsider a decision and the only method of appeal in the Administrative Procedure Act (R.C. 119.01 et seq. ) was an appeal, within fifteen days, to the court of common please; that, in the alternative, if the board had the authority to reconsider a decision, that reconsideration had to be issued no later than the fifteenth day after the original order.

While it is true that this court's holding in In re Appeal of Bidlack (1982), 3 Ohio App.3d 351, seems to support appellee's position, Bidlack has been superseded by the Supreme Court's holding in State, ex rel. Baker, v. Dayton Malleable, Inc. (1983), 6 Ohio St.3d 1, wherein the court stated:

"Neither Prayner nor Todd precluded the [Industrial] commission from retaining jurisdiction over the instant case. * * * [T]he commission must assert its jurisdiction within the * * * [time] period in order to retain it. The commission asserted its jurisdiction with regard to the instant case when it granted * * * [the] motion for reconsideration." Id., at 2.

The Supreme Court has therefore held that an administrative agency retains jurisdiction in a case when it agrees to reconsider an order within the statutory time limit.

Here, the action by the board on April 16, granting the motion to reconsider, nullified the original order, even if the grant did not specifically vacate that order. When the motion was granted, appellee thereafter requested a continuance as it was not prepared to proceed. The granting of this request did not divest the board of jurisdiction over the merits. This result is mandated by the holding in Baker, supra.

Appellee urges that the subsequent ...