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Ed Houser Enterprises Inc. v. General Motors Corp.

*fn*: December 21, 1978.

ED HOUSER ENTERPRISES, INC., PLAINTIFF-APPELLANT,
v.
GENERAL MOTORS CORPORATION, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Southern District of Illinois, Northern Division. No. P-CIV-75-0007 - Robert D. Morgan, Judge .

Before Sprecher, Bauer, and Wood, Circuit Judges.

Author: Per Curiam

The plaintiff-appellant, Ed Houser Enterprises, Inc., appeals from the district court orders granting summary judgment in favor of the defendant-appellee, General Motors Corporation, as to Count I of its complaint, and further denying the plaintiff's motions for reconsideration. Plaintiff also appeals from the judgment entered on the jury verdict in favor of the defendant as to Count II of its complaint. The appellant presents numerous issues for review in its appeal, which may be summarized as follows:

(1) whether a genuine issue of material fact was raised in Count I of the complaint on the question of whether the defendant violated the "Automobile Dealers' Day in Court Act", 15 U.S.C. § 1221 Et seq.;

(2) whether the jury verdict on Count II in favor of the defendant was against the manifest weight of the evidence; and

(3) whether the court committed reversible error during the trial of Count II of the complaint by certain of its instructions to the jury, and by allowing certain of the defendant's witnesses to testify, and by admitting into evidence certain of the defendant's exhibits.

We are not persuaded by the arguments advanced in support of these contentions, and accordingly, we affirm the judgments appealed from for the reasons set forth below.

I.

Plaintiff, Ed Houser Enterprises, Inc., was a franchised dealer of Chevrolet automobiles and trucks in Peoria, Illinois, from June, 1970 to May, 1973. In February, 1975, the plaintiff filed its complaint in two counts against the defendant, General Motors Corporation (hereinafter "GM"), seeking damages for the defendant's alleged failures to perform certain terms and provisions of the written automobile dealer franchise agreement in force between the parties during the period of the plaintiff's franchise. Count I of the complaint alleged that the defendant violated the "Automobile Dealers' Day in Court Act", 15 U.S.C. §§ 1221-1225 (hereinafter "Dealer Act"), due to the failure of the defendant to act in good faith in performing or complying with the terms and provisions of the franchise dealer contracts. Count II of the complaint alleged that the defendant committed a breach of contract by failing to perform or to comply with the terms and provisions of the franchise contracts.

In December, 1975, the defendant moved for a partial summary judgment as to Count I of the complaint. Following a hearing on the defendant's motion, the district court granted summary judgment for the defendant on Count I, holding that the plaintiff had failed, as required under Rule 56(e) of the Federal Rules of Civil Procedure, to set forth specific facts raising a genuine issue that it had been coerced, threatened, or intimidated by the defendant. Further, the court held there were no facts showing any coercion in respect of the defendant's alleged practice of discriminatory distribution. The court also held that the uncontroverted facts plainly refuted the allegation that the plaintiff was threatened or coerced to build new facilities or to sell its dealership. The plaintiff's motions for reconsideration on the judgment rendered on Count I of its complaint were subsequently denied by the court.

In September, 1977, the plaintiff's breach of contract claims under Count II of its complaint were litigated at a jury trial. Following a three week trial, the jury returned a verdict in favor of the defendant as to Count II. The plaintiff's motion for a new trial was denied.

II.

The appellant first challenges the district court's order granting summary judgment in favor of the defendant as to Count I of its complaint. It is settled that the standard of appellate review of a summary judgment order is the same as that applied by the trial court under Rule 56: whether the plaintiff presented a genuine issue of fact. See, e. g., United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962). The appellant contends that it met its burden in this regard, alleging there is sufficient evidence in the record creating a genuine issue of material fact that GM's conduct violated the Dealer Act. We disagree.

The Dealer Act provides automobiles dealers with a cause of action for treble damages caused by a manufacturer's failure to act in "good faith" in performing or complying with the terms of a written franchise agreement, or in terminating, canceling, or ...


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