good morning judge posner judge easterbrook judge sykes may please the court counsel this appeal rises out of a summary judgment decision and entered by the honorable william very spock in the northern division of the eastern district of wisconsin granting summary judgment in favor of dana and dismissing my client's claims arising out of the texas fair practices of the equipment manufacturers distributors wholesalers and dealers chapter fifty seven of texas business and commerce code your honor this case raises the question that believe they did in effect say that using those precise words and this calls to the definition of it to a dealer agreement under fifty seven point zero zero two sub four it is an oral or written agreement definite november of two thousand and twelve when my client had acquired the business many months earlier and dana who only has six of these authorized dealers for the entire country and canada they are their manager in charge of distributor relations was already aware that my client had acquired the business before he even had a personal face to face meeting with them he knowledge that there not only was a new business but there had been a change in ownership and he recognizes through various science my climb made no attempt to conceal or hide that fact and in fact in their first meeting they directly confirmed for dana's manager that in fact they had acquired the business in a business a difference between  and whether there is an agreement when there's a dispute over a line is generally considered to be a question of fact in this case but i don't see what's the evidence that there is an agreement a commitment a pro commitment was made on november two thousand and twelve when in response to being told we've acquired this dealership mr towne behave in that the manager in charge for they and i said i don't care what you do you can do this as long as you maintain this longtime employee who we've had a long relationship with my client accepts it and they move on not only does that occur in november but that and the subsequent actions confirm the acceptance of this transfer there was an introduction to  let the nice thing about it from day standpoint there isn't any commit your it is so the contrary when they have no dealings with the district court i think  correctly interpreted dealer agreement to require some manifest assent to the relationship in the form of an agreement or an arrangement which is the words in fifty seven point zero zero one to define any deal or agreement it include those not just a contract but i don't agree ment or an arrangement showing exactly the type of relationship that is customary in ordinary and in this industry and in fact for over fifty years saw the client that my client acquired the assets of had been a dealer of dana without any written agreement and had only had in place and the judge priest properly determined that because  recognised ice flow as an authorized dealer it in fact and continue to sell and give the right to buy and acquire the product from dana will long with the standard terms and conditions for doing so which  limit the ability to acquire the equipment described how it had to be installed provided for specialty equipment to actually install and manufacture the product quired and so i put the predecessor with the dealer as that term is understood in texas and the question is whether texas u joints was a dealer and if it's by virtue of having acquired the as an acquired dealership dana had the absolute right to terminate it based on the acquisition without its consent and the sale of all the assets without any notice and cuellar or if we look at it as a new agreement then it has to be analyzed based on the context of what was going on after november and before the terminations in june and that was sort of getting to know each other phase as into a more formal arrangement under the act or even in more colloquial business terms you're ever respectfully disagree when you look at the facts in the light most favorable my client the various forms and paperwork to fill out to become a dealer right well actually they were given everything that dana makes and puts in place for every one of its authorized dealers was put in place for my client there was nothing that da had left to do to make my client an authorized distributor that it hadn't done six months prior determination it had put in place all of the standard terms and conditions it had put in place the requirements for acquiring specially quite meant it had bought and sold product to my client which it only does through authorized distributors in fact they had done absolutely everything that up that they always did with all their six other distributors with my client they did that intentionally they did it after they did it in diligence in october and twelve they made it determination at the november meeting that they were fine with the assignment and they confirmed that in specific words to that effect we don't care what you do as long as you keep this man on board and then they continued to  treat us in the ordinary course of dealing as they did all their distributors and in the case of reindeer versus rainbird those factors were sufficient for this court to hold that a dealer who had an agreement that terminated every year and  stated that that it was renewed even after that dealer had been acquired by a competitor and therefore there was concern by the supplier in a multi line dealer just like we have here that the dealer would not be using its best effort fact in the litigation and the district court in this court held that you can't do that you can't come into litigation later and cited that have to do with texas with all well it has one thing i've noticed about trickery you don't interprets this chapter fifty seven i will suggest that this court interpreted texas law and sally beauty and concluded that distributor agreements why didn't you bring this lawsuit in texas well my clients  terminated and and i had to leave texas they had no real ability to have to leave texas it was tarred and feathered and thrown out of the state while they had no they had no business to run there unfortunately and this was the reason why they were but if you've got an open question of texas law all the federal court can't do anything for you about it we can construe the texas law to mean what it says if you want any and your argument is w seventh circuit interpreted the texas distributor agreement and found that it was covered by the u c c which allows for assignment absent a substantial interest against it which again so this this is a contract in free fall provision in this case is texas business and commercial code fifty seven point one five four four not the u c c right the district court originally thought it meant one thing and not a reconsideration thought it meant a different thing acquires that has been understood to mean that that is got to be the actual reason for terminations dana never gave that as the reason for terminations it never had any interest and whether this was an asset or stock sale which they could have terminated underwent in texas for requires fifty seven point one fifty three which states that there can be no terminations without that cause and then the notice requirement which judge sykes just referred to and states that if you notice doesn't he seven point one five for a fo that when a dealership is sold or transferred that's an automatic ground for germany now you want us to say that that just doesn't mean what it says that's why i say you need to be in texas you might be able to persuade a texas court that but here we are with all the language of the texas statute in front of us and it's our job to enforce your honor i see my white light is on mike mice response to that is that mike my belief is that the evidence such as in a light most favorable to my client that not only did dana assent to this transfer but it treated us as a dealer for over six months and then it did not give the reason that you're the court of citing and for the  out reserve the rest of my time you know i have a question for you i think i think your position would really screw up distribution i'm thinking of many years ago the supermarket  so finally it was bought by treasure island which is correct now i'm sure that in the first six months eight months what have you heard of treasure islands ownership it was still buying from the have have to continue our business so here's just been a change of ownership maybe the new owners will be fine so we'll let it ruin it but if you treat that as a commitment it client was the reason why i was termes it was doing too well it wasn't doing too poorly it had been acquired by a competitor it was doing so well that other distributors started complaining about that one of the reasons behind the law itself is to protect the dealer that starts to do bad at that is the basis of this statute to prevent a grant or that has a superior power and taking away the product from doing so for an improper reason here that's what happened and we submit that that district complaining that we have that in the record your honor and so that is part of the ad evidence that needs to be viewed as a lesser perfectly good reason well that's not a good reason when you're talking about when you were looking at market factors and whether it's good to have open competition and promoting a healthy dealer in texas so i would submit that under those rationales of the legislature texas was well within its purview to adopt a statute that doesn't have a community of interest type requirement that wisconsin does that takes into account for example how long a new dealer might have had this relationship ongoing thank you ok thank you mis and the dana at no time made any promises of any kind to texas u joints about if you chair ongoing business relationship and then nobody from dana at any time promised the data would continue doing business with them what an oral or written agreement get to then a second but perhaps more importantly texas u joints had acquired the assets of ice some months earlier in fact there was there were two transactions in august of two thousand he in discussions with the ice go home ownership said that he understood and knew that he was taking the risk the dana could choose not to sell to him once dana detects the change in ownership and i think so that's something where this is not the way you start a business relationship with somebody and so what's also under spirit about this november meeting from the testimony of both mr zanna mr brown is that they did not disclose the separate corporate existence of texas new joints at the november meeting and also mr zappa testified no promises were made by dan at the november meeting the purpose was to discuss their business plans but the fact that they don't disclose it's under subpoena that they don't disclose there had been a sale of assets which would have given dana good cause to terminate any deal or agreement that might have existed but they also don't disclose the existence of texas future and so it's hard to fathom how at that point what seems to be an off the cuff and perhaps disputed statement made by a dana dana to texas he joins about an ongoing relationship and despite the lack of evidence you know what is the agreement the texas new joint is asking this court to infer exists and mr  testified himself that he was aware of nothing that would prohibit dana from refusing to sell g w b products to either high school or texas future and it was dana's prerogative now to make any sale so they're really they're really the record is devoid of evidence of any not that dana told them they were dealing with it dana didn't tell them they weren't and this is simply insufficient as a matter of law to create a protectable dealer agreement under the texas act a dealer agreement is defined under the act as a written or oral agreement or arrangement and arrangement defined in websters as as noted by just greased back in his initial opinion on the summary judgment motions is defined as an informal agreement so you need an oral or written agreement in other words an express agreement and here texas u joints is not even arguing that there was an expressive agreement they're arguing that danish should be forced into a perpetual business relationship based on an implied agreement dana giving them forms and that kind of thing conduct while admitting they never made any promises oral or written for an ongoing relationship and the statute doesn't allow that to occur and there's a good reason for that because of the the extremely broad protection that a dealer would get under the act i wanted to talk about the renters case since you took a while discussing that with with mr w entity and was still the same dealer there was no new ownership at the dealer and in any event that case has no application i think primarily because here the texas legislature has stated that the sale of assets is a good pass and it's good cause to terminate any agreement that might have existed without notice or opportunity to cure to the dealer as as to what judge posner was alluding to i think that this would really come as a surprise to the business community if when attempting to evaluate whether enter into a long term relationship with a potential business partner you could get into a perpetual relationship by just making a few isolated sales or giving them standard terms and conditions and price list without a promise of an ongoing relationship and judge priest back noted that in his opinion this would come as a surprise to suppliers and dealers alike and would be an extraordinary result and i think that it's there it's that result that has been avoided by the correct decision by judge greece back in this case to find seeking to i'm sorry the answer is the same then i don't manifest as an assent to approve an assignment nor do they enter into a direct agreement and i think that the analysis there is the same  respect to not approving an assignment dana throughout this audition period where they were dealing with a new start up company was telling them to they're going to grow the business from from zero to five million dollars a year were smart to listen to that to hear them out to look for a business plan before before cutting them off and they thought they were dealing with a skull and so the very first notice that dana had that there had been an to address the last point made by counsel it is a question of fact what dana knew in october of two thousand and twelve more than seven eight months before the date that he's just indicated was their first knowledge that there was an asset sale we have evidence in the record that their manager by the competitor that was the sally beauty case reindeers involved acquiring a competing line and in that case the this court held that the action of continuing to deal with the plaintiff as a dealer constituted the renewable of the agreement by action it was the year to year conduct of the parties that represented a sufficient act of renewal to bring the agreement within the act and again the choosing to deal with one another in the usual terms those were those this court's words in the ranger case and they apply equally here just as judge priest box found that the conclusion with respect to the dealer agreement applied to the former it does apply to