State ex rel. Fred Stecker Lincoln-Mercury, Inc. v. Ohio Motor Vehicle Dealers Board

Per Curiam. It is by now firmly established in this state that entitlement to the extraordinary writ of mandamus is contingent upon a finding that “relator has a clear legal right to the relief prayed for, that respondent is under a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law.” State, ex rel. Heller, v. Miller (1980), 61 Ohio St. 2d 6 [15 O.O.3d 3], paragraph one of the syllabus; State, ex rel. Westchester, v. Bacon (1980), 61 Ohio St. 2d 42 [15 O.O.3d 53]; State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St. 3d 28, 29, certiorari denied (1983),_U.S._, 78 L. Ed. 2d 723. Respondents contend relator has failed to satisfy the necessary conditions precedent to the issuance of the writ. We agree and for the reasons which follow hereby deny the writ. Initially, relator has failed to identify its clear legal right to be issued a new motor vehicle dealer’s license as well as respondents’ clear legal duty to issue the license. An examination of the pertinent portions of R.C. Chapter 4517 demonstrates that any right relator may have possessed to obtain the dealership license was first contingent upon the approval of Ford’s franchise proposal. Pursuant to R.C. 4517.50,2 when a franchisor (in this case Ford) [393] desires to establish an additional dealership, notice must be forwarded to the Dealers Board and to each franchisee or dealership marketing the same line of vehicles in the relevant market area. Ford complied with this statutory requirement and, after three Lincoln-Mercury dealers filed protests, a hearing was conducted as required by R.C. 4517.57. Ultimately, the Dealers Board denied Ford’s franchise proposal, thus prohibiting Ford from establishing a new Lincoln-Mercury dealership in the proposed market area pending further review. See R.C. 4517.50(C). When the Registrar received notification of the denial of Ford’s franchise proposal, he was, in effect, legally precluded from issuing a dealership license to relator pursuant to R.C. 4517.12(I).3 That section imposes on the Registrar a duty to deny an application for a motor vehicle dealership license if the applicant “[h]as no established place of business that * * * will be used for the purpose of selling * * * motor vehicles at the location for which application is made.” Thus, pending appeal, the denial of [394] Ford’s franchise proposal by the Dealers Board effectively extinguished any clear legal duty owed to relator by the Registrar to issue a dealership license. Stated somewhat differently, relator’s clear legal right to a dealership license was contingent upon Ford’s having first secured franchise approval from the Dealers Board. When Ford failed to succeed in its effort, R.C. 4517.12(1) mandated that the Registrar deny relator a dealership license. Accordingly, if the Registrar was under any clear legal duty, it was to deny relator the license.4 We therefore conclude that in the absence of a showing by relator of a clear legal right to the relief sought or respondents’ clear legal duty to perform the requested act the writ prayed for must be denied. Cf. State, ex rel. Taxpayers League of North Ridgeville, v. Noll (1984), 11 Ohio St. 3d 190; State, ex rel. Sheppard, v. Koblentz (1962), 174 Ohio St. 120 [21 O.O.2d 384]. Moreover, relator’s complaint is, in reality, a collateral attack upon the decision ,of the Dealers Board denying Ford’s franchise proposal, which asserts as grounds for the issuance of the writ two of the precise errors assigned by Ford in its appeal to the court of common pleas.5 It is well-settled, however, that such collateral attacks cannot be maintained by an action in mandamus. Accord State, ex rel. Stanley, v. Cook (1946), 146 Ohio St. 348 [32 O.O. 419]; State, ex rel. Holland, v. Struble (1937), 132 Ohio St. 431 [8 O.O. 281]. For the foregoing reasons, relator’s request for the issuance of a writ of mandamus is denied. Writ denied. [395] Sweeney, Locher, Holmes, C. Brown, Douglas and Wright, JJ., concur. Celebrezze, C.J., concurs in judgment only. Footnotes [2] R.C. 4517.50 provides: “(A) Except as provided in division (D) of this section, when a franchisor seeks to enter • into a franchise to establish an additional motor vehicle dealership in, or relocate an existing [393] motor vehicle dealership 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 to the motor vehicle dealers board and to each franchisee in such line-make in the relevant market area of the franchisor’s intention to establish an additional dealership in, or relocate an existing dealership at a location in, that 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 establishment or relocation of the dealership. When such a protest has been filed, the board shall inform the franchisor that a timely protest has been filed, that a hearing is required pursuant to section 4517.57 of the Revised Code, and that the franchisor shall not establish or relocate the dealership until the board has held the hearing required by that section, nor establish or relocate the dealership thereafter if the board determines there is good cause for not permitting the dealership to be established or relocated. When more than one protest is filed against the establishment or relocation of the same dealership, the board may consolidate the hearings to expedite disposition of the issue. “(B) For the purposes of this section, the reopening in a relevant market area of a motor vehicle dealership that has not been in operation for one year or longer shall be considered to be the establishment of an additional motor vehicle dealership. “(C) No franchisor shall establish an additional motor vehicle dealership or relocate an existing dealership before the holding of a hearing on any protest filed under this section, and no franchisor shall establish or relocate such a dealership after the hearing if the board determines there is good cause for not permitting the dealership to be established or relocated. “(D) Division (A) of this section does not apply to the relocation of an existing dealership when the new location is less than one mile from the existing location and is in the same relevant market area as that location.” [3] R.C. 4517.12 provides in part: “The registrar of motor vehicles shall deny the application of any person for a license as a motor vehicle dealer, motor vehicle leasing dealer, or motor vehicle auction owner and refuse to issue him the license if the registrar finds that the applicant: (<* * * “(I) Has no established place of business that, where applicable, is used or will be used for the purpose of selling, displaying, offering for sale, dealing in, or leasing motor vehicles at the location for which application is made * * *.” [4] The thrust of relator’s complaint centers not upon the denial of the dealership license, but instead upon the decision of the Dealers Board on reconsideration denying Ford’s franchise proposal. Specifically, relator maintains the decision of the Dealers Board was unlawful since (1) the time period for exercising reconsideration had expired, and (2) David Mainwaring’s prior involvement with automobile dealers statewide caused him to be biased in favor of the protesting dealers. These precise issues, however, were assigned as error by Ford in its appeal to the court of common pleas taken pursuant to R.C. 119.12. On April 16, 1985, the court of common pleas concluded that the Dealers Board had lost jurisdiction to reconsider its initial decision approving Ford’s proposed franchise, and that the case should be remanded to the board with instructions to reinstate the March 30, 1984 order denying the protests. A stay of execution was subsequently sought and received, and the case, having been appealed on April 23,1985, to the Court of Appeals for Franklin County, is currently before that court for consideration in case No. 85AP-327. The question necessarily arises that if Ford was limited to an appeal under R.C. 119.12 to contest the lawfulness of the reconsideration exercised by the Dealers Board and its subsequent decision to deny the franchise, should relator be allowed to maintain an action in mandamus in an attempt to thwart the avenue of review provided under R.C. 119.12 and have this court outrun the lower court to a decision on the propriety of the actions of the Dealers Board? Clearly, this question must be answered with the negative, for to sustain relator’s contentions would be to sustain collateral attacks upon proceedings properly instituted in the court of common pleas pursuant to R.C. 119.12, whether by the party initiating such a proceeding or, as in this case, by an entity which is not a party to the pending proceeding. [5] See fn. 4.