03-002844 Sterling Truck Corporation, F/K/A Hn80 Corporation vs. Lynch-Davidson Motors, Inc.; Tom Nehl Gmc Truck Co., D/B/A Tom Nehl Truck Co.; And Steven N. Bacalis Status: Closed Recommended Order on Tuesday, September 30, 2003.

Summary: Petitioner requested the Judge to rule on the applicability of Sections 320.643 and 320.644 F.S., to a transfer of a truck dealership. However, the contract providing for the transfer terminated prior to the hearing. DOAH is without jurisdiction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STERLING TRUCK CORPORATION, )

f/k/a HN80 CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 03 - 2844

)

LYNCH - DAVIDSON MOTORS, INC.; )

TOM NEHL GMC TRUCK CO., d/b/a )

TOM NEHL TRUCK CO.; AND STEVEN )

N. BACALIS, )

)

Respondents. )

)

RECOMMENDED ORDER OF DISMISSAL

Notice was provided, and a formal hearing was held on

August 28, 2003, in Tallahassee, Florida, and conducted by

Harry L. Hooper, Administra tive Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Dean Bunch, Esquire

Sutherland, Asbill & Brennan, LLP

2282 Killearn Center Boulevard

Tallahassee, Florida 32309

For Respondent Lynch - Davison Motors, Inc.:

J. Martin Hayes, Esquire

Myers & Fuller

402 Office Plaza Drive

Tallahassee, Florida 32301

For Respondent Tom Nehl GMC Truck Company, d/b/a Tom Nehl

Truck Company, and Steven M. Bacalis:

Walter E. Forehand , Esquire

Lewis, Longman & Walker

125 South Gadsden Street, Suite 300

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether a proposed transfer of a Sterling truck dealership

from Lynch - Davidson Motors to Tom Nehl GMC Truck Co., d/b /a Tom

Nehl Truck Co., and Steven N. Bacalis, falls within the ambit of

either Section 320.643(1), Florida Statutes (2000), or Section

320.643(2)(a) (2000), or Section 320.644 (2000), or whether the

file should be returned to the Department of Highway Safe ty and

Motor Vehicles with a recommendation that the Verified Complaint

be dismissed because there is no extant case or controversy

pursuant to Sections 320.61 through 320.70, Florida

Statutes(2000), or Chapter 120, Florida Statutes (2000).

PRELIMINARY STA TEMENT

Subsequent to a Motion for Recommended Order filed by

Sterling Truck Corporation (Sterling) and a Motion to Dismiss as

Moot, filed by Lynch - Davidson Motors (Lynch), a hearing was held

on August 28, 2003. A Transcript was filed September 5, 200 3.

Proposed Recommended Orders were filed as directed on

September 4, 2003, by Petitioner, and on September 19, 2003, by

Respondents. Both were considered in the preparation of this

Recommended Order.

Citations are to Florida Statutes (2000), unles s otherwise

stated, because the Dealer Agreement in question was effective

January 1, 2001. See Yamaha Parts Distributors Inc. v. Ehrman ,

316 So. 2d 557 (Fla. 1975).

FINDINGS OF FACT

1. On April 8, 2003, Lynch entered into an agreement

(Agreement) with Tom Nehl GMC Truck Co., d/b/a Tom Nehl Truck

Co., and Steven N. Bacalis (Nehl), whereby Lynch would sell the

assets of its Sterling truck dealership, to Nehl. The Agreement

provided for the transfer to Nehl of the right to sell Sterling

trucks in acc ordance with a January 1, 2001, Dealer Agreement,

between Sterling and Lynch. The Agreement further stated that

the sales lot would be moved from its current location to

another location. It also provided for the transfer of

executive management to Nehl. It further recited, at paragraphs

5.2.3 and 5.3.3, that execution was predicated on the approval

of the sale by Sterling.

2. On July 22, 2003, a Verified Complaint was filed by

Sterling, with the Florida Department of Highway Safety and

Motor Vehic les, which contested the transfer and asserted that

Sections 320.643 and 320.644, did not apply to the Agreement.

Section 320.643(1), states generally that a approval of a

transfer of assets may not be unreasonably withheld by a

licensee, and Section 320. 643(2)(b) states generally that a

transfer of an equity interest may not be unreasonably withheld.

Section 320.644 states generally that a transfer of executive

management control may not be unreasonably withheld.

3. On or about July 21, 2003, Ster ling also provided Lynch

and Nehl a letter informing them that Sterling rejected the

Agreement.

4. In a letter dated August 13, 2003, Lynch notified

Nehl's counsel that because Sterling objected to the Agreement

of April 8, 2003, the Agreement failed under its own terms,

pursuant to paragraph 5.3.3 of the Agreement.

5. A Motion to Dismiss as Moot was filed by Lynch and a

Motion for a Recommended Order was filed by Sterling. Various

supporting documents were also filed. At a hearing on

August 28, 2003, in Tallahassee, Florida, the parties agreed

that on or about August 13, 2003, or at a time earlier, the

Agreement became inoperative.

CONCLUSIONS OF LAW

6. Sterling asserted that despite the lack of disputed

facts in this case, it was neces sary for the Administrative Law

Judge to rule that Section 320.643, did not apply to the

transaction so that Sterling would not be exposed to collateral

legal consequences, based in part on the holding in Godwin v.

State , 593 So. 2d 211 (Fla. 1992). This assertion has been

proffered before the Division of Administrative Hearings on

several occasions. On each prior occasion the Administrative

Law Judge refused to rule on the meaning and effect of the law

in the absence of disputed facts. See Jaguar Cars v . United

States Marshal's Service , Case No. 94 - 1698 (DOAH June 9, 1994),

Final Order, HSMV - 94 - 0743 - FOF - DMV (HSMV October 4, 1994);

General Motors Corp. v. Strickland , Case No. 96 - 5780 (DOAH

January 14, 1997), Final Order, Case No. HSMV - 97 - 0273 - FOF - DMV

(HSM V February 5, 1997); and American Honda Motor Co. v. Angus

Motors, Inc. , Case No. 97 - 1889 (DOAH August 20 1997), Final

Order, HSMV - 97 - 1008 - FOF - DMV (HSMV September 26, 1997). No

reason has been provided in this case which would require a

different outcome.

7. Because the alleged factual dispute has been

eliminated, the subject matter jurisdiction of the Division of

Administrative Hearings has also been eliminated. See Sections

120.569 and 120.57(1).

8. Because this matter is being addressed as a recommended

order of dismissal, the Motion to Dismiss as Moot does not

require a ruling.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED:

That a final order be entered which dismisses the Verified

Complai nt of Petitioner.

DONE AND ENTERED this 30th day of September, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apala chee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of September, 2003.

COPIES FURNISHED :

Michael J. Alderman, Esquire

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building, Room A432

2900 Apalachee Parkway

Tallahassee, Florida 32399

Dean Bunch, Esquire

Sutherland, Asbill & Brennan, LLP

2282 Killearn Center Boulevard

Tallahassee, Flor ida 32309 - 3576

Walter E. Forehand, Esquire

Lewis, Longman & Walker, P.A.

125 South Gadsden Street, Suite 300

Tallahassee, Florida 32301

J. Martin Hayes, Esquire

Myers & Fuller

402 Office Plaza Drive

Tallahassee, Florida 32301

Fred O. Dickinson, III, Executive Director

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

2900 Apalachee Parkway

Tallahassee, Florida 32399 - 0500

Enoch Jon Whitney, General Counsel

Department of Highway Safety

and Motor Vehicles

Neil Kirkman Building

2 900 Apalachee Parkway

Tallahassee, Florida 32399 - 0500

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should b e filed with the agency that

will issue the Final Order in this case.