dissenting:
I would remand this matter to the circuit court with instruction that the cause be dismissed for lack of jurisdiction over the subject matter. Subject matter jurisdiction cannot be waived, conferred by stipulation, or consented to by the parties. City of Marseilles v. Radke, 287 Ill. App. 3d 757, 761 (1997). Subject matter jurisdiction can be raised any time, even on appeal, and may be raised by a court of review sua sponte. Jones v. Industrial Comm’n, 335 Ill. App. 3d 340, 343 (2002).
Here, plaintiff, Clark Investments, Inc., filed a complaint in the circuit court of Iroquois County alleging that defendant, Airstream, Inc., violated sections 4(d)(6) and 4(e)(8) of the Illinois Motor Vehicle Franchise Act (Franchise Act) (815 ILCS 710/1 et seq. (West 2008)). Section 4(d)(6) of the Franchise Act prohibits a manufacturer from doing any of the following three acts without proper notice:
(1) “to cancel or terminate the franchise or selling agreement of a motor vehicle dealer without good cause”;
(2) “to fail or refuse to extend the franchise or selling agreement of a motor vehicle dealer upon its expiration without good cause”; or
(3) “to offer a renewal, replacement or succeeding franchise or selling agreement containing terms and provisions the effect of which is to substantially change or modify the sales and service obligations or capital requirements of the motor vehicle dealer arbitrarily and without good cause.” 815 ILCS 710/4(d)(6) (West 2008).
Section 4(d)(6) further provides that the manufacturer’s proposed changes will be subject to review for good cause by the Illinois Motor Vehicle Review Board (Review Board). See 815 ILCS 710/4(d)(6)(B), (d)(6)(C) (West 2008). Likewise, section 4(e)(8) prohibits a manufacturer from granting “an additional franchise in the relevant market area of an existing franchise of the same line make” or from relocating “an existing motor vehicle dealership within or into a relevant market area of an existing franchise of the same line make” without providing the required statutory notice to the existing franchise. 815 ILCS 710/4(e)(8) (West 2008). The purpose of these prohibitions is to allow the existing franchise to challenge the proposed changes before the Review Board, at which time the manufacturer would be required to establish good cause for the proposed changes. See 815 ILCS 710/ 4(e)(8) (West 2008).
Moreover, disputes between a manufacturer and a franchisee regarding compliance with the Franchise Act are adjudicated pursuant to section 12 of the Franchise Act, which provides that the franchiser and franchisee must agree to submit a dispute involving section 4, 5, 6, 7, 9, 10.1 or 11 of the Franchise Act to arbitration or to the Review Board. 815 ILCS 710/12(a), (b) (West 2008). More specifically, section 12(e) of the Franchise Act limits direct action in the circuit court as follows:
“(e) If the franchiser and the franchisee have not agreed to submit a dispute to arbitration, and the dispute did not arise under paragraph (6) of subsection (d) or paragraph (6), (8), (10), or (11) of subsection (e) of Section 4 of this Act, then a proceeding for a remedy other than damages may be commenced by the objecting franchisee in the circuit court of the county in which the objecting franchisee has its principal place of business, within 60 days of the date the franchisee received notice in writing by the franchiser of its determination under any provision of this Act other than paragraph (6) of subsection (d) or paragraph (6), (8), (10), or (11) of subsection (e) of Section 4 of this Act.” (Emphasis added.) 815 ILCS 710/12(e) (West 2008).
The Franchise Act clearly provides that disputes involving section 4 of the Franchise Act “may” be submitted to arbitration under section 12(a) or otherwise “shall” be commenced by the Review Board under section 12(b). More specifically, only disputes under the Franchise Act not involving section 4(d)(6) or 4(e)(8) may be commenced in the circuit court. Moreover, sections 4(d)(6) and 4(e)(8) both specifically mention the Review Board as the forum for adjudication of disputes involving those specific sections of the Franchise Act.
The majority maintains that section 13 of the Franchise Act (815 ICLS 710/13 (West 2008)) permits a franchisee to file a complaint in circuit court seeking money damages for any violation of the Franchise Act. In support of the proposition that the circuit court has jurisdiction over any claims for damages under the Franchise Act, the majority cites Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325 (2002). I would find that neither section 13 nor Belleville Toyota supports the holding that a franchisee can bypass the Review Board and raise alleged violations of sections 4(d)(6) and 4(e)(8) in an action for damages in the circuit court.4
The Franchise Act underwent extensive revision in 1995 after our supreme court declared former sections 4(e)(8) and 12(c) (815 ILCS 710/4(e)(8), 12(c) (West 1992)), which left good-cause determinations to the trial court, unconstitutional violations of the doctrine of separation of powers. Fields Jeep-Eagle, Inc. v. Chrysler Corp., 163 Ill. 2d 462, 473 (1994); Yakubinis v. Yamaha Motor Corp., 365 Ill. App. 3d 128, 132 (2006). The new statute, which became effective July 14, 1995, created the Review Board and gave it jurisdiction to determine whether good cause existed under amended section 4(e)(8) of the Franchise Act. Yakubinis, 365 Ill. App. 3d at 132-33; General Motors Corp. v. Motor Vehicle Review Board, 361 Ill. App. 3d 271, 277 (2005). Likewise, the good-faith determination required under section 4(d)(6) was given to the Review Board under the revised statute. Yakubinis, 365 Ill. App. 3d at 139; Ford Motor Co. v. Motor Vehicle Review Board, 338 Ill. App. 3d 880, 889 (2003).
The majority points out that section 13 of the Franchise Act appears to provide for direct access to the circuit court for a franchisee seeking monetary damages for any “unfair method of competition or an unfair or deceptive act or practice declared unlawful by this Act, or any action in violation of this Act.” 815 ILCS 710/13 (West 2008). However, to allow a cause of action in the circuit court where the court would have to address the question of good cause under sections 4(d)(6) and 4(e)(8) would ignore the purpose of the 1995 amendments, which created the Review Board. I would further note that section 13 was also amended in 1995, when the following provision was added:
“The changes to this Section made by this amendatory Act of the 92nd General Assembly (i) apply only to causes of action accruing on or after its effective date and (ii) are intended only to provide an additional venue for dispute resolution without changing any substantive rights under this Act.” Pub. Act 92 — 0272, eff. January 1, 2002 (amending 815 ILCS 710/13).
The 1995 amendments provided that allegations of violations of sections 4(d)(6) and 4(e)(8) would be resolved by a new venue (the Review Board). Claims for damages or injunctive relief would have to wait until the Review Board had made a determination that sections 4(d)(6) and 4(e)(8) had been violated. If a court were to determine that a violation of these sections had occurred, it would be infringing upon the jurisdiction of the Review Board.
Here, plaintiffs complaint sought relief from defendant’s alleged violations of sections 4(d)(6) and 4(e)(8) of the Franchise Act. Clearly, the circuit court lacked subject matter jurisdiction over the claims at issue as the matter should have either been submitted to arbitration or commenced by the Review Board. The Franchise Act provides for jurisdiction over the instant dispute only by submission to arbitration or commencement before the Review Board, with administrative review only by the circuit courts of Sangamon or Cook County. See General Motors Corp. v. Motor Vehicle Review Board, 224 Ill. 2d 1, 19 (2007).
Because the Iroquois County circuit court lacked subject matter jurisdiction, its order granting summary judgment to defendants was void. The matter should be remanded to the circuit court with direction to dismiss the complaint for lack of subject matter jurisdiction.
Although Belleville Toyota was decided by our supreme court in 2002, the litigation began with the franchisee filing a complaint in the circuit court in 1989 and the matter was resolved under the pre-1995 statute. Thus, it did not involve a question of the Review Board’s jurisdiction. See Belleville Toyota, 199 Ill. 2d at 330.