piece in the call the docket is agenda number twenty one case number one eleven six eleven cross road crossroads ford truck sales inc versus sterling truck corp involves a circuit courts the original jurisdiction under both section thirteen of the motor vehicle franchise act and the constitution article six section nine crossroads is a local dealer own local dealership here in springfield we filed a fourteen count complaint for damages under section thirteen of the motor vehicle franchise act against erling truck corporation and other defendants alleging certain violations of the motor vehicle franchise act including one involving determination of the franchise of that implicated a section or d six claim that was also brought  section thirteen the elements in a forty six claim do include issues of good cause the circuit court dismissed twelve of the fourteen counts and made a rule zero for a finding out appeal the appellate court decided that it did not have jurisdiction under section thirteen or forty six or those counts involving forty six the appellate appellate court adopted the dissenting opinion of judge holdridge in a case that was decided well this case was on appeal it was the clark against airstream case the appellate court below here said that for crossroads to exercise its claim for damages under section thirteen or on full franchise determination or involving termination issues cross road should have filed its claim initially with the agency motor vehicle review board it was successful there and in the circuit court in order to pay some acknowledgement to section thirteen but section thirteen says that the dealer has the right to file a claim for any violation of the act and file a claim for damages in the circuit court there is nothing in the in the statute nothing in the motor vehicle franchise act that in any way outlines the process adopt the procedural process adopted by the appellate court in this case now the circuit court we begin with the premise of the circuit court has original jurisdiction of all just visual matters that's a that's the constitutional premise that we start with and section thirteen clearly the legislature passed folks and thirteen clearly says that any violation of the motor vehicle franchise act allows a dealer to bring an action for damages the circuit court relied on sorry the appellate court below relied on section well of the motor vehicle franchise act which says that a dealer should be in a protest with a review board when the claim is a certain type of claim and it involves a remedy other than damages well this is certainly a complaint multi county complaint seeking damages section twelve really doesn't apply at all here but well that's what the appellate court we believe wrongfully said that be determined is not a policy question well this case is really this case is really governed by this court's decision in an employee's mutual insurance against skilling the good cause  should be decided by the legislature or they in this case in the history of agency and not the court but looking to looking to skilling as as there is the real test here skilling says that it the legislature invests exclusive original jurisdiction in an administrative agency but it must do so explicitly explicitly test the same sort of test that this court uses and in constitutional  didn't say in any way implicate that there is an exclusive jurisdiction of crossroads forty six claim with the agency the motor vehicle review board so taking this analysis that the the jurisdiction of the circuit court is paramount so that doesn't mean that that's the end of the analysis flowing around the key difference in this case is the one that you're alluding to and that is that  c six planes do involve elements of good cause legislative sort of a matter but the but the appellate court below did not follow this killing test and in fact it didn't even mention skilling in its decision it just completely ignored skilling and that original jurisdiction issue that that skilling addressed in article six section section thirteen of the act provides that a dealer can go to circuit court or any violation of the act to seek damages equitable relief court and the same is true for damages damages there's what were sought here one cannot go to the motor vehicle review board to recover damages there's no statutory authority to do so but it clearly allows to the dealer to seek damages in circuit court in article thirteen or section thirteen of the motor vehicle franchise act we're sort of in a dilemma here where we seek seek damages and yet there's that the skilling test and there's this this feels this isn't where you've indicated your honor that you know there's certain legislative concerns would cause policy issues  this could cause determination not to the motor vehicle review board how could they do that if they don't have the current original jurisdiction will they do they do have concurrent original jurisdiction under skilling they have concurrent jurisdiction because the jurisdiction for damages claims does not lie with a motor vehicle review board it clearly lies with the circuit court under section thirteen and under skilling when there is a claim they could be decided either by an administrative agency or by the circuit court then the circuit court has the paramount jurisdiction that's not the end of the analysis as i said certainly the the doctrine of primary jurisdiction would allow the circuit court to refer the case to the ministry of agency for those good cause issues and once he decided he had ministr well the administrative agency has a certain type of jurisdiction under section twelve to decide good cos it says that it decides good paused and it refers to giving the agency the power to consider all relevant factors and influence the factor of public interest which fields found to be legislative in nature so certainly the case should start in the circuit court following the skilling analysis and there is concurrent jurisdiction based upon the statutory language in both twelve and thirteen what is missing for the agency here is that the agency cannot award damages and damages are exactly what crossroads is seeking in its complaint so there is concurrent jurisdiction certainly damages are not part of the case that the that the agency can can address so clearly there's concurrent jurisdiction certainly that's that's the argument we present and that's the resolution of the case is to take the case start the case the circuit court referred the good cause issues to the agency and then once decided there the damages phase of the case can be decided and so forth that does several things that that honors the  decision of this court in fields giving the appropriate acknowledgement to the legislative function of making those good cause determinations it preserves the original jurisdiction of the circuit court under the skilling test and as it is in article six section nine it avoids the problems and entanglements of race judicata which i heard earlier arguments involving race to a cot and those are certainly present here at crossroads gone to the strait of agency where there's where that agency has no jurisdiction for damages and sought damages one its case there i mean we're at the pleading stage in this case is soon for purposes of pleading that crossroads wins at the agency if crossroads would've then tried to follow this opinion and go to the circuit court and sue for damages  with all due respect the other side would be jumping up and down indicating that you can't have a second bite at the apple there's an identity of cause of action here under river park in the t and that the agency decision would be race judicata crossroads could not refile its claim in circuit court and seek damages a low clearly the legislature intended for cross s to have that right because it's expressed lee provided for in section thirteen so doing primary jurisdiction would harmonize and reconcile these competing constitutional piecemeal approach where you start at the agency and then refile is it makes two cases instead of one if one case if the case is filed initially in  it's one coherent unified case the piece of it that belongs to the agency gets referred to the agency that gets decided and then the second phase of it comes back to the court to be decide but it can't go from the bottom up with the agency starting first because most most of perswade simply there is absolutely nothing in the structure of the will of the statutes to allow for that this is pure judicial creation there's no way one could look at both section twelve and section thirteen and decide to do for my client and come to the conclusion that an action for damages should be first filed in an agency that doesn't decide damages question and then later on we'll have another shot at it on the damages  in circuit court no way one could foresee that we argue that that matters like this are for a dealer who clearly has the right to sue for damages should not be left to speculation injection or guesswork or chance but that's essentially what crossroads is faced here for saying that well circuit court didn't have jurisdiction you should start over at the agency and that that's completely contrary to the skilling decision in n l industries decision in this case and although fields the the legislature the legislative issues that are brought up in fields are present they can be harmonized by primary jurisdiction and sending the case that phase of the case to to the agency or its decision now there is a there's one other important pleading matter that i would like to raise and that is involving this could cause it the circuit court dismissed twelve of the counts and the fourth district held that it could not rule on those good because section four d six claims because it didn't have jurisdiction pleading standards of the motor vehicle review board are notice pleadings pretty light notice pleadings and they are provided for by rule i cite this in page twenty twenty one of my brief those pleading standards are being misapplied to the two six fifteen standards are being misapplied if this court decides that primary jurisdiction should be applied to those orson's of those counts of and various count but it seems by you asking us i believe to really change our rules with respect to whether or not we should entertain argument on things not an appeal way that you acknowledge we would have to change our rules and if we don't we're really relegated to the determination on the jurisdictional issue alone that there was you decide if you decide on the jurisdictional issue with respect to referring t case to the administrative agency as i've argued i think you don't reach a lot of them today right but i we also don't reach a lot of those issues if we  don't change our rules with respect to you can only argue with senior peel away you know reserving your brain you you could do with that i mean that's certainly possible i still like my argument about the with respect to the space limitations  between the l a and the in the brief because basically the p l a is a screening tool that this order uses to determine what cases are appropriate for your attention ok our position is then that if this case goes should go back should be reversed and remanded to the circuit court with directions to send those good cause issues to be decided by the administrative agency and in that process those counts that were dismissed should be remains that were dismissed on a good cause issues those or d six counts and there  several of them they should be reinstated and decided by the administrative agency i noticed leading standards because to do so otherwise would be invading the problems of the ministry of agency would be applying more stricter standards and circuit court and i and that portion of the case that should be decided by the administrative agency may please the court my name is john christiansen thank you for the privilege of allowing a wisconsin lawyer to argue in this court and you are attorney for his from attorney i'm attorney for the apple east stirling truck corporation dima trucks north america and chris patterson the president of diameters thank you on october fourteenth two thousand and eight damage trucks in sterling decided that after ten years of unsuccessful operation they would withdraw the products from market and they announced this to their entire dealer network but told them that they could execute a release and obtain some benefits including a cash payment or they could elect to continue with their existing franchise agreement doing parts and services only and in a letter clarifying on october november twenty fourth crossroads and and all other dealers received crystal clear notification that they could continue operating in that fashion and that is what cost has done since a total fourteenth two thousand and eight including purchasing trucks out of corporate inventory in the summer of two thousand and nine after the of manufacturing the question of subject matter jurisdiction did not occur to me until i read the dissent in cark investments but since subject matter jurisdiction wasn't waived i took a run at it in the court of appeals and i thought there are good arguments for why that is the case and why this court should affirm the holding of the court of appeals seldom is a frequently amended statute paragon of clarity and i think even mr smith my friend would agree with that in this particular circumstance just as holmes said a page of history is worth a volume of logic and i think that observation applies here if we look at what this court concluded in fields by saying that the good cause requirements of the statute that were then to be applied by the circuit court were things that invaded the province of the legislature of the administrative body then we say what did the legislature attempt to do by rectifying that constitutional infirmity and what they did was to create the board and invest the board with specific circumstances not all of the violations of the motor vehicle franchise act but those for terminations non renewals ad point cases sale in succession type cases they said you know what we're going to send those to the board because we're going to create a tight timeline for the board to decide these issues and contrary to mr smith's assertion while all that's happening you have an automatic injunction because the terminations stayed while the period of this quick administrative process goes forward there has to be a protest that's filed within thirty days and has to be hearing within sixty days and what does that accomplish it accomplishes the fact that the dealers interests are not harmed in the manufactures interest are not harmed because the dealer who can make a case beating back on a showing of good cause and establish the manufacturers wrong gets to stay in business and the manufacturer that establishes good cause gets rid of an underperforming dealer now mr smith commenced to protest in this case and then voluntarily dismissed and instead went to circuit court i had knowledge that section thirteen creates the suggestion that you can f claim for damages anytime anywhere and it is difficult to harmonize all the elements of the statute in light of what the legislature was attempting to do but the goal of the protest process your determination that isn't what on earth where i think that's i think that's right but if we trace out what happens in either of those two circumstances i think it becomes clear which method the legislature intended and let's just say for example ask the question of what standard of good cause would apply if good cause were decided by the circuit court and this is where i have to say mr smith briefed attempts to finesse the issue because section twelve sets out the factors of good cause to be determined by the board it says by the board it doesn't say by the circuit court so if the circuit court were to use those multi five factor test of twelve v of whether were the investment was necessarily made the permanency of the investment in the public interest being served we'd be right back in the fields conundrum i think everybody agrees with that so that means that the circuit court looks to the definition of good cause under section two v which is the general standard saying facts establish in commercial lawful or privileged competition business practices to find a common law now the board applies that same standard but then the statute says plus the other ones among others creating an entirely different set of governing standards a general commercial reason was if you will versus the particular standards to be applied by the board so if mr smith for first position is i can just go to the circuit court period recall that his referral back is only a backup point which is first point is i can just go to the circuit court and stay there if you really believe there was a referral back he should have pursued it in this case but of course he didn't he had every opportunity to do so and his suggestion that we didn't file an answer i don't think that makes much sense he if you really believe that there was a referral back he could have done it but he did his initial position is i get to go to the circuit court i get to stay there and in that circumstance we are presented with i think a very taxing due process question of having a manufacturer's conduct governed by two separate standards depending depending upon where mr smith sitting in his office decides he wants to go because if he goes to the circuit court it's commercial reasonable is if he files his protest with the administrative board they apply the much more complex and public policy based factor set forth in twelve d i can't imagine that  manufacturer should be required to run the risk of governing its conduct depending upon ate a separate standard in the dealer's decision making and then expects to be able to satisfy those standards i don't think that this court would logically set down that that would comply with a due process concern if on the other hand my suggestion the decision of the appellate court and the decision in cork investment's dissent were accepted the protest is made before the board then we're asking a body which has a built up process of expertise to analyze the question of the existence of good cause using the factors of twelve d and they can decide whether or not in fact there is a terminations which as the justices know is one of the princip underlying defenses that we make in that there is no terminations the triggers any of these claims because the dealer continues in operation as the court of appeals found in this case under a different cause of action not based on forty six so the board decides is there a terminations and if there's terminations is there good cause now i happen to agree with mr smith and there are very few things about which we do agree that there is a race  of that decision on the question of good cause and the existence of the terminations one being a mix question of law in fact and one being a question of fact and i believe that we would be bound by that determination had he proceeded with his initial presentation in the board instead of dismissing it and if he won he'd have the advantage in a subsequent damages action and if i won i'd have the advantage in the subsequent damages action but under his referral back question their full back theory that is his backstop argument here when would all this be done the statue of limitations in section fourteen of the act for actions in circuit court is four years the requirement of a proceeding before the board is a much shorter thirty days so ironically we would have to have a situation here in which three years in one day sharp shy of four years he files his damages proceeding having never gone to the board and then there would be this implicit referral back to the board wholly out of scale with the timetable set by the legislature for proceedings before the can only award what amounts to a decision that has precludes effect of an injunction in their words you can terminate all you can and if the circuit court can award injunctive relief or damages that's not wholly  i see nothing in the statute that would suggest that the circuit court could refer it back is no procedure called out for doing so and indeed under section twelve the board can only decide a case other than one for damages and if this if the circuit court action were commenced purely for damages that doesn't seem to flange up in terms of the grant of the jurisdiction to the agency those are my arguments on the subject matter jurisdiction issue i think we come to some fairly concrete decisions that provide a guidepost as to which way it ought to go even though we're dealing with a very big of a statu now i think the case is was clearly resolved and in the right way by the circuit court judge kelly made his determination that a terminations didn't reach the issue of whether there actually was a terminations ted what he said was even if there were terminations we have this section four d sixty that says if a manufacturer stops making or assembling motor vehicles that is good cause for terminations we don't have to go any further i don't know why mr smith did not at least allude to outline provide one sentence summarizing the arguments that he made in opposition to the non subject matter jurisdiction type claims before the court he made all those arguments they were they were all advance there but he did and under this court's decisions in sullivan from line transported mccarty i believe he's waived those alternate arguments but i want to proceed further and that is to the questions not reached by the court of appeals because of their conclusion on subject matter jurisdiction because i believe this court should reach those if you disagree with me on the question of severe measures stiction you should reach those decisions in order to affirm an alternate grounds the decision of the court of appeals on the issues that were reached because of the subject matter jurisdiction and that is the question of whether or not there was a terminations that would trigger these issues anyway to federal court cases have reached the issue and have decided that because the nov twenty fourth letter to all the dealers saying we are not turning your green meant you can go forward under the sales and service agreement if you wish that's not a terminations triggering  a the application of a terminations provision in the state motor vehicle dealer law the first case allonby in vermont and the second case long lewis of the district court in the northern district of alabama it's undisputed that cross road stayed in business doing parts and service work displaying the sign advertising even doing service sterling service serling specials long after the sation of manufacturing of the actual trucks themselves and in fact i think mr smith may have hoisted himself on his own petard here by the fact that he alleged that crossroads bought twelve more vehicles in the summer of two thousand and nine after that manufacturing ceased under the terms of the franchise and the franchise was alleged in the complaint to be the sterling sales and service agreement that's the only agreement under which they can display the trademark take orders for parts and perform warranty and other service we offered a renewal of that agreement in the summer of two thousand and nine a simple extension not a word was changed through the end of two thousand and eleven they never acted upon it so the question is whether there was a terminations a constructive terminations a constructive notice of terminations something i still don't understand what it is but none of that happened because they continued to operate under the sales and service agreement mr smith argues that it can't be a franchise unless you sell trucks or sell motor vehicles but the language defining what a franchise is in the end says that it can be for sale of vehicles or parts if you don't like it argument i have another one and that is that even if there were terminations which i believe with all my heart that reasoned then section four d sixty says that the cessation of manufacturing or simply is good cause for termina to that well the fact is i have to also note that the legislature changed its mind and it said in the spring of two thousand and nine we don't like that statute and so they took that off the books but it became effective on may twenty second and the complaint itself says that the secession of manufacturing occurred at the end of march in two thousand so the statute applies to the circumstances in this case if mr smith alleges the new statute applies then we're in argument of the con of the contracts cause of both on the united states and the illinois constitutions but i think we need to get there because the statute says that a manufacturer can go out of business in doing so and so mr smith's answer to that is no all you're going to do is create substantially the same trucks as made by sterling what he calls his rebranding argument he's arguing that what we'll do is take and he's pretty cagey about it we're not he doesn't say the exact both for both trucks he says substantial the same trucks and we're going to put them into the western star or freightliner lines of trucks a press release that diner agee the corporate parent of d t n a made saying the sterling brand will be discontinued effective in march of two thousand and nine additions to the freightliner western star product ranges will be made to address market what does it say to a reasonable person that is the essence of a conclusion rather than a never densher a fact and i might point out that mr smith's argument about the standard of pleading in this case was not raised before this court wasn't in the petition and it wasn't in his brief he did argue before the appellate court that we ought to and i don't understand how apply administrative pleading rules to a circuit court proceeding i have yet to be convinced how that could possibly be how that could possibly work but the circuit court in this case judge the pleading standard under any other circuit court case pleading standard said you need to plead evidentiary facts there are no evidentiary facts in this complaint that would allow you to say that even if there were an intent to rebranded bowled for bold that's what was going to be done the circuit court one went one step forward for further and said even if it were bold for bold you take a sterling trip trucks take off the nameplate put on a freight liner nameplate and so through the freightliner dealer body judge kelly said that's ok that's contemplated by the statute because it refers to the discontinuation of the line make and the line make means a brand as we can see by the countless other times line make is used in the statute so what i'm saying is we've got three ways to win so far but i'm not done yet because if that doesn't work then projecting the power of the state of illinois to a market withdraw for all fifty states does raise a very serious constitutional question of the dormant commerce clause because to charge what amounts to an exit tax to allow a claim for damages making franchising a risk free endeavor to a dealer would offend the commerce clause the dormant commerce clause of the united states you don't have to go with me on all those i'll just take one of any of those four and i suggest respectfully your honors that the decision of the court of appeals be affirmed but to the extent that you disagree with the court  sorry i'm used to a different reference but to the extent that you disagree with the rationale and subject matter jurisdiction reach the additional issues in order to affirm the appellate court rather than sending it back for a determination thank you very much thank you mr christians n your honor i do agree that where we start is an important matter that this court has to decide in this case and that is justice thomas what we do disagree on where where this case should start i think was what probably so some of these matters have been raised through changes in the opinion process on the on the way up on appeal so where we start is clearly in the circuit court matters have been raised by  the the sitting opinion of judge holdridge and by the fourth district here implicating these good cause issues as legislative in nature on your fields i think a process that i've outlined in the brief in outline this morning it hears to those constitutional principles there is literally concurrent jurisdiction of the agency and of of the circuit court action thirteen clearly says any violation even mr outlined sets forth certain good cause principles that the agency can decide on an issues of good cause you know all relevant considerations public policy matters and the in the litany of the list in section twelve there is concurrent jurisdiction just by reading the statute over the type of claim that crossroads asserting here but certainly damages have to have to begin the analysis of this case in the circuit court mr christianson talked about the term a nation determination is not an issue this is that's something that needs to be decided on the evidence we're at the pleading stage still in this case the motor vehicle franchisee act provides that the dealers cause of action basically arises when he receives notice of terminations yet to come they don't have to wait until you're shut down or terminated or harm so that's what's happened here and crossroads quite frankly has filed its action for damages because going to the administrative area the remedy that the in is treated agency could could give here would be something of the nature of reinstating or continuing its franchise but the franchise is going to come to a crashing halt when the dealer i'm sorry when the manufacturer sterling  stop manufacturing trucks there won't be a motor vehicle franchise at that point because there won't be any motor vehicles under the motor vehicle franchise or crossroads to sell will be the will be  just a regular franchise under entirely different statutory scheme that will evolve by default so crossroads feeling that it's getting the wrongful terminations of its franchise sued under section thirteen in the circuit court where it could get the remedy that the motor vehicle for the motor vehicle franchise or more vehicle review board could not a war so good cause issues implicate the fact that it's legislative in nature to decide good cause and that's not the appropriate role for the sort or to do that primary jurisdiction is the answer and all mr persons and says that it's not in the statute it is a well known well recognized procedure by this court in the appellate courts primary jurisdiction and i mean the conditions under which it occur courts have the authority to do that but the bottom up process that the appellate court decided in this case where you go through a bifurcated filing procedure the start of the agency and if you're successful there run down the street to the circuit or file again that's not going to wash that is not recognized anywhere it's not expressed anywhere in the statute and had crossroads done that it would it would have based race judicata implications all day long that case would have been decided at the agency that would have been the end of it basically crossroads would have elected it it's it's remedy by staying at the agency and now and it had it would have no right to sue a second time in circuit court the most certainly could he would say this case has already been decided under the by the administrative agency and that crossroads under the transactional analysis test you get to do everything that you you can you know all possible claims and by going to the agency what defendants would say is you waived your right you you are precluded from now going to circuit court under section thirteen because if you because section thirteen clearly says in plain plain language they do then sued for any violation and seek damages and by going to the agency and seeking the agency's powers and the and the remedies other way although there's no guide post for guideline to indicate that as i said earlier this and this would put crossroads in the guesswork framework of a catch twenty two position basically catch twenty two shouldn't be the well if the franchise is going to be sherman aided and the dealer wanted the remedy of heaping the franchise going in staying in business that's why it would go to the board mr christensen pointed to the expedited proceed jer's for decision making that would protect those are really for dealer protection so that the dealer dealers usually given a date by which this terminations going to take place there is case law in general motors that this court decided only a few years ago that says the purpose of the act is among other protection of the public and protection of the dealers and is to be liberally construed in the dealer's favor so it doesn't exactly say that in section twelve but in the in the prefatory portion of the statute in the previous case law yeah it's really for dealer protection and i think it should be interpreted in that  claims and if the matters need to be referred to the administrative agency that they be referred to the agency and under notice please and thank you mr smith mr christianson for your arguments today case number one eleven