FIFTH DIVISION
MARCH 28, 2003

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Plaintiff Ford Motor Company (Ford) appeals an order of the circuit court of CookCounty in administrative review, affirming the decision of the defendant Motor Vehicle ReviewBoard that Ford did not have good cause to terminate its Ford Sales and Service Agreement(Agreement) with Village Ford Sales, Inc (Village Ford).

The record on appeal discloses that in March 1984, Ford and Village Ford entered intothe Agreement, which sets forth various new sales, parts sales and personnel obligations thatVillage Ford was required to meet as a dealer for Ford. The Agreement allowed for either partythereto to terminate the relationship under a variety of circumstances, including a failure to meetthe new sales, parts sales and personnel obligations. The Agreement also provided that anyprotest or claim by Village Ford with respect to termination of the Agreement by Ford shall beappealed to Ford's policy board (the Policy Board) within 15 days of notice of termination as acondition precedent to Village Ford's right to pursue any other remedy under the Agreement orthe law. The Agreement further provided that the Policy Board's decisions were binding on Ford,but not on Village Ford.

The Agreement also appears to have been amended from time to time. Some of theseamendments appear to be amendments to the basic form Agreement that were implemented byFord prior to the relationship with Village Ford. On at least two occasions, amendments weresigned by the president of Village Ford. In other cases, Ford waived formal acceptance on theground that the amendment worked to the benefit of Village Ford.

Ford assigned Village Ford a "primary market area" (PMA), which is a geographicalgrouping of census tracts designating the dealership's main sales territory. In developing PMAsfor its dealerships, Ford is supposed to consider: the proximity of each tract to actual dealerlocations; natural and man-made barriers that would tend to restrain customers in a tract fromgoing elsewhere for Ford service and products, such as rivers and freeway systems; traffic flowbetween the tract and the dealership; sales patterns of other Ford dealers; and trading habits ofpeople in the tract. Village Ford consistently took issue with being assigned to a PMA within theChicago multiple point region, as all other dealerships in Will County were assigned to singlepoint markets with less stringent sales requirements.

In 1986, Ford began encouraging Village Ford to relocate from Romeoville to theBolingbrook area, due to expected growth in that area, including an auto mall. Ford suggested arelocation site that already had four foreign car dealerships and a Chevrolet dealership in thearea; Buick and Toyota dealerships were anticipated to move into this area also. In July 1989,due in part to Ford's promises of assistance with advertising and lease payments, Village Fordrelocated to Bolingbrook. This location is at an intersection with I-55, but is not visible from I-55.

In 1990, Village Ford had its best year, with 13.1% market penetration. In September1990, the 135th Street Bridge, which spanned the Illinois River and connected the north andsouth portions of the PMA, was removed and never replaced. The auto mall never materialized;four of the dealerships in the area relocated. The area took on an industrial character. Retailtraffic patterns shifted to developments north of I-55. Village Ford, which sold 713 new cars in1990, sold only 353 new cars in 1998. However, in 1998 Village Ford ranked in the top 15% oftotal sales in the Chicago region, ranking 45th out of 322 dealerships.

Ford first notified Village Ford of its concerns regarding deficiencies in vehicle sales,parts sales and personnel in November 1992. Further letters followed in January and July 1996,January, July and October 1997, notifying Village Ford of the deficiencies and giving VillageFord an opportunity to cure them. Village Ford also corresponded with Ford during this period,seeking explanations and assistance to meet Ford's numerical goals. Village Ford alsocommunicated its concerns regarding the designation of its PMA, its location, and the changingnature of the area. Village Ford requested relocation to a more modern facility north of I-55, butFord denied these requests because a study commissioned by Village Ford, while notingproblems with the current location, described the location as adequate.

In June 1998, Village Ford sent Ford a package of materials detailing its concerns andagain requesting relocation and the opportunity to build a new facility. Ford agreed, on thecondition that Village Ford enter into a limited two-year agreement with Ford under which thedealership would be sold if the sales targets were not met. Village Ford's owner declined toinvest in a new facility under that condition.

On April 23, 1999, Ford sent Village Ford a notice of termination, citing below averagecar and truck retail shares in 1996, 1997 and 1998 as the basis for the termination. The noticealso reminded Village Ford that Ford had established a Policy Board to review terminationdecisions and that a request for review had to be submitted in writing within 15 days of thereceipt of the notice. Village Ford did not submit a request for review to the Policy Board.

Village Ford filed a notice of protest with the Motor Vehicle Review Board, stamped asreceived on May 10, 1999, claiming that Ford lacked good cause to terminate the Agreement. The Motor Vehicle Review Board sent notice to Ford on May 14, 1999. Following preliminarymotions and hearings on the matter, a hearing officer for the Motor Vehicle Review Board issueda recommended decision in favor of Village Ford on September 29, 2000. The Motor VehicleReview Board adopted that decision and granted Village Ford's protest on November 17, 2000.

On December 18, 2000, Ford filed a complaint for administrative review by the circuitcourt of Cook County. The circuit court affirmed the decision of the Motor Vehicle ReviewBoard in an order dated June 20, 2001. Ford filed a timely notice of appeal to this court.

Initially, Ford purports to raise a question of jurisdiction. Ford contends that the MotorVehicle Review Board "acted beyond its jurisdiction" in applying a common law standard of"good cause" in this case, instead of the factors set forth in the Illinois Motor Vehicle FranchiseAct (Act) (815 ILCS 710/1 et seq. (West 2000). However, the question of whether the MotorVehicle Review Board had jurisdiction differs from the question of whether it erred in thestandard it applied. See, e.g., In re Marriage of Mitchell, 181 Ill. 2d 169, 692 N.E.2d 281 (1998). It is true that an administrative agency is a statutory creature with no general or common lawpower, and is powerless to act unless statutory authority exists. See Steinbrecher v. Steinbrecher,197 Ill. 2d 514, 530, 759 N.E.2d 509, 519 (2001). However, Ford has not argued that the MotorVehicle Review Board lacked personal jurisdiction over the parties, or lacks the power generallyto make good cause determinations under the Act. Rather, Ford raises questions regarding theretroactive application of the Act in this case.

Issues involving the retroactive application of the Act are constitutional in nature. Acourt should avoid constitutional issues, unless addressing them is necessary to dispose of a case. See, e.g., East St. Louis Federation of Teachers, Local 1220 v. East St. Louis School Dist. No.189, 178 Ill. 2d 399, 408, 687 N.E.2d 1050, 1056-57 (1997). Accordingly, this court will turn toaddress a non-constitutional threshold issue raised by Ford in this appeal.

Ford next argues that the Motor Vehicle Review Board should have dismissed VillageFord's protest because Village Ford failed to comply with the condition precedent in theAgreement requiring that such disputes be reviewed in the first instance by Ford's Policy Board. Ford correctly notes that a similar condition precedent was enforced in Illinois in the context of aconstruction contract requiring disputes be submitted in the first instance to the architect. Mayfair Construction Co. v. Waveland Associates Phase I Ltd. Partnership, 249 Ill. App. 3d 188,619 N.E.2d 144 (1993). Ford also notes that the United States Court of Appeals for the SeventhCircuit enforced a mediation clause identical to that in the Agreement here in DeValk LincolnMercury, Inc. v. Ford Motor Co., 811 F.2d 326, 336 (7th Cir. 1986), albeit applying Michiganlaw.

Ford overlooks, however, that in DeValk Lincoln Mercury, Inc., the dealership brought asuit alleging "violations of the Automobile Dealers Day in Court Act, 15 U.S.C.