PHILLIPS, Chief Judge.
This is an action by a franchised Chevrolet dealer under the Dealers' Day in Court Act, 15 U.S.C. § 1222,
Extensive pretrial depositions and interrogatories were prepared and comprehensive affidavits were filed. In an opinion reported at 304 F.Supp. 307, District Judge William K. Thomas granted the motion of General Motors for summary judgment. We affirm.
The dealer's place of business is located in Chardon, the County Seat of Geauga County, Ohio. The first selling agreement was between the Chevrolet Division of General Motors and Frank Chevrolet Company, a co-partnership. The expiration date of this agreement was August 20, 1963. This contract was replaced with a second selling agreement, effective November 1, 1960, which was executed by the partnership. It extended the term of the franchise to October 31, 1965.
Effective July 12, 1963, a new agreement was executed with Frank Finesilver, as individual owner of Frank Chevrolet Company, a sole proprietorship. Its expiration date also was October 31, 1965. This latter agreement was superseded by a new agreement, effective March 31, 1965, executed by Frank Chevrolet Dealer, a corporation.
By letter of July 11, 1965, General Motors notified Frank that:
Section 9 of the selling agreement provides as follows:
The refusal of the Chevrolet Division of General Motors to renew the agreement on the ground that the dealer's sales performance was substandard gave rise to the present litigation. The dealer contends that the refusal to renew was not an act of good faith within the meaning of the statute.
For the reasons and upon the authorities set forth in the comprehensive published opinion of the District Judge, which do not need to be repeated here, we agree that the sales performances of the dealer in this case consistently fell below acceptable standards in violation of the agreement between the parties and that the refusal to renew the contract did not constitute an act of bad faith under the statute. The record shows no genuine issue of material fact. We hold that the District Court did not err in granting summary judgment. Rule 56, Fed.R.Civ.P.
The District Judge further held, as narrated in detail in his opinion, that the dealer committed acts of misrepresentation and concealment which recurred during the life of the expiring franchise agreement and materially breached the agreement, and that the breaches were unknown to General Motors at that time.
All contentions made by appellant have been considered and found to be without merit. We find no reversible error in the record.
Honorable Henry L. Brooks, Chief Judge, United States District Court for the Western District of Kentucky, sitting by designation.
An automobile dealer may bring suit against any automobile manufacturer engaged in commerce, in any district court of the United States in the district in which said manufacturer resides, or is found or has an agent, without respect to the amount in controversy, and shall recover the damages by him sustained and the cost of suit by reason of the failure of said automobile manufacturer from and after August 8, 1956 to act in good faith in performing or complying with any of the terms or provisions of the franchise, or in terminating, canceling, or not renewing the franchise with said dealer: Provided, That in any such suit the manufacturer shall not be barred from asserting in defense of any such action the failure of the dealer to act in good faith. Aug. 8, 1956, c. 1038, § 2, 70 Stat. 1125.