664 S.E.2d 196 (2008)
UPTON
v.
PARKS.
No. S08A0326.
Supreme Court of Georgia.
July 7, 2008.
Reconsideration Denied July 25, 2008.
*198 Thurbert E. Baker, Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., for Appellant.
Tony L. Axam, Atlanta, for Appellee.
HUNSTEIN, Presiding Justice.
Warden Steve Upton appeals an order of the Superior Court of Chattooga County granting Deunte Quintellas Parks' petition for the writ of habeas corpus. Finding that the habeas court erred on all three of its grounds for granting the writ, we reverse.
Parks was convicted in 1999 of two counts of malice murder and related crimes in connection with a July 1996 shooting. Through his trial counsel, Parks filed a motion for new trial, which was denied, and then appealed to this Court, which affirmed his convictions and sentences. Parks v. State, 275 Ga. 320, 565 S.E.2d 447 (2002). Subsequently, through new counsel, Parks filed a petition for habeas corpus. An evidentiary hearing was held on Parks' amended habeas petition on June 28, 2005 and continued on December 2, 2005, during which a total of eight witnesses testified, including Parks himself and both of his trial attorneys. On August 23, 2007, the habeas court granted Parks' petition, finding (1) that the State had violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose a Georgia Bureau of Intelligence (GBI) report that may have been helpful to Parks' defense; (2) that Parks' Sixth Amendment rights were violated by his trial counsel's failure to call alibi witnesses at trial despite Parks' repeated requests that they do so; and (3) that Parks did not knowingly and voluntarily waive his right to testify. This appeal ensued.
1. The habeas court held that the State suppressed a GBI report that created reasonable doubt as to whether Parks was in fact the shooter. This report, referred to as the "NIBIN report"[1] recorded a match between the shell casings recovered from the July 1996 shooting and those recovered from another unsolved "walk-by" shooting that had occurred the previous month. The NIBIN report also states that police had interviewed a witness to the prior shooting "who described the suspects." Though the NIBIN report was generated in November 1996, Parks did not obtain a copy of the report until habeas proceedings.[2]
Because Parks did not pursue his Brady claim until habeas proceedings, the initial question is whether Parks can establish sufficient cause and prejudice to overcome his procedural default. See OCGA § 9-14-48(d). While the parties argue vigorously over the "cause" element, we need not decide whether defense counsel's lack of knowledge of the NIBIN report constitutes sufficient cause to avoid procedural default, because we are satisfied that Parks has failed to establish the *199 requisite prejudice. See Schofield v. Meders, 280 Ga. 865, 869-870(4), 632 S.E.2d 369 (2006) (rejecting petitioner's attempt to avoid procedural default regarding certain alleged Brady materials because prejudice not established).
In assessing prejudice for purposes of procedural default with respect to an alleged Brady violation, we have held that "`the underlying claim and the prejudice analysis necessary to satisfy the cause-and-prejudice test are coextensive.'" (Citation omitted.) Walker v. Johnson, 282 Ga. 168, 169(1), 646 S.E.2d 44 (2007). In other words, the question of prejudice turns on whether the suppression of evidence was significant enough to constitute a Brady violation. See Waldrip v. Head, 279 Ga. 826, 829(II)(B), 620 S.E.2d 829 (2005) (insufficient prejudice shown to sustain successful Brady claim or overcome procedural default).
To establish a Brady violation, the defendant must show, inter alia, that the evidence allegedly suppressed by the State was material to his defense.
"The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." [Cit.]
Rogers v. State, 257 Ga. 590, 592(3), 361 S.E.2d 814 (1987). Here, Parks' Brady claim fails for the simple reason that he has not shown that the NIBIN report, and, specifically, its reference to a witness description in the earlier shooting, was actually exculpatory in any way. Parks argues that, had defense counsel known about the witness to the earlier incident, they could have sought to get the witness' description of the perpetrator to evaluate whether it matched Parks' appearance; had the description not matched, Parks contends, this revelation would have been powerfully exculpatory and may also have led to a shift in defense counsel's strategy, as discussed in Division 2, infra, of focusing Parks' defense on illuminating the deficiencies in the State's case rather than presenting Parks' alibi defense. The flaw in Parks' position, however, is that he has presented no evidence that the witness description did not match Parks and thus ignores the equally likely scenario that the witness' description would have been consistent with Parks' appearance, a fact that would have been highly damaging. "The mere possibility that an item of undisclosed information might have helped the defense... does not establish `materiality' in the constitutional sense." United States v. Agurs, 427 U.S. 97, 109-110(III), 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Parks' failure on habeas to present any evidence[3] supportive of his notion that the description would have been inconsistent with Parks' appearance renders purely speculative his characterization of the NIBIN report as exculpatory. See Walker v. State, 264 Ga. 79, 81(4), 440 S.E.2d 637 (1994) (no Brady violation where undisclosed witness statement contained only "speculations to the police that some unnamed person (presumably other than appellant) was the perpetrator of the crimes"). Accordingly, Parks has failed to carry his burden to prove materiality, which defeats both his Brady claim and his attempt to overcome procedural default. The trial court thus erred by granting habeas relief on this claim.
2. The habeas court also held that Parks' Sixth Amendment right to compulsory process was violated when his trial counsel made the decision, over Parks' alleged objection, not to call at trial two witnesses, Glen and Moriah Griffin, who would have testified that Parks was asleep at their home at the time of the shooting. Although the State argues that this claim was procedurally defaulted because it was not raised post-trial or on appeal, see OCGA § 9-14-48(d), Parks raised the issue on habeas in the context of a claim for ineffective assistance of trial counsel, which, due to the fact that his trial counsel represented him through appeal, was *200 clearly not defaulted. See generally Hood v. State, 282 Ga. 462, 463, 651 S.E.2d 88 (2007). Thus, the issue for resolution is whether counsel's decision not to present Parks' alibi witnesses amounted to a Sixth Amendment violation or otherwise constituted ineffective assistance of counsel.
The habeas court held that "[u]nder the 6th amendment, Petitioner is entitled to decide whether or not to call witnesses in his favor." This holding misapprehends the nature of the Sixth Amendment's right to compulsory process, which encompasses the accused's right to compel production of evidence in his favor, see Dean v. State, 267 Ga. 306, 477 S.E.2d 573 (1996), but does not speak to the allocation of decision-making authority regarding the calling of witnesses and other trial strategy as between the accused and his counsel. On the latter issue, this Court has quoted with approval the American Bar Association Standards, relating to the Administration of Criminal Justice:
"Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel are: (I) what plea to enter; (ii) whether to waive jury trial; (iii) whether to testify in his own behalf.... The decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client."
(Emphasis supplied.) Reid v. State, 235 Ga. 378, 379(1), 219 S.E.2d 740 (1975). Accord McDaniel v. State, 279 Ga. 801(2)(c), 621 S.E.2d 424 (2005). Given that the authority to decide which witnesses to call ultimately rests with defense counsel, counsel's exercise of that authority, even in a manner with which the accused disagrees, cannot form the basis for a Sixth Amendment compulsory process violation.
Whether counsel's decision not to present the alibi witnesses constituted ineffective assistance of counsel is a separate issue. To establish ineffective assistance, Parks must show both deficient performance by trial counsel and prejudice to his defense resulting therefrom. McDaniel v. State, supra, 279 Ga. at 801(2), 621 S.E.2d 424. Decisions based on counsel's reasonable trial strategy do not constitute deficient performance, and "this Court does not evaluate trial counsel's tactics and strategic decisions in hindsight." (Footnote omitted.) Fielding v. State, 278 Ga. 309, 311(3), 602 S.E.2d 597 (2004). In this case, both of Parks' trial counsel testified at the habeas hearing that the issue of whether to call Parks' alibi witnesses was debated between them and discussed with Parks. Parks' lead counsel, Dwight Thomas, testified that he decided not to present Parks' alibi witnesses because (1) he believed Parks' defense of misidentification, based on challenges to the credibility of the eyewitnesses and the lack of any physical evidence linking Parks to the crime, was strong enough on its own; and (2) his concerns about the credibility of Parks' two alibi witnesses.[4] Thomas testified further that, in his opinion,
sometimes it's best to try the case in such a way where you attack the State's case, you put the burden on them and you don't have the jury focusing on your evidence, you have them focusing on the lack of their's [sic].... I explained to [Parks] that if those alibi witnesses got on that stand and fell apart he was through for sure.
Thomas' testimony clearly demonstrates that the decision not to call Parks' alibi witnesses was a fully considered and well reasoned decision under the circumstances. Accordingly, Parks has failed to establish deficient performance in this respect on the part of defense counsel. The habeas court thus erred by granting habeas relief on the basis of the failure to present alibi witnesses.
*201 3. The habeas court also granted relief based on its finding that "the record is silent" on the issue of whether Parks knowingly and voluntarily waived his right to testify at trial. However, the trial transcript reveals a colloquy among the trial court, defense counsel and Parks on this very issue, in which the trial court explained in unequivocal terms that Parks had the right to testify, that the decision was Parks' alone to make, and that he was not required to follow his counsel's advice in making his decision. At the conclusion of that colloquy, Parks affirmed to the court that he did not wish to testify. In addition, at the habeas hearing, Parks admitted that he had agreed with his counsel on the decision not to testify. Accordingly, the habeas court's finding on this issue was clearly erroneous, see Upton v. Johnson, 282 Ga. 600, 602, 652 S.E.2d 516 (2007), and we reverse the granting of the writ on that basis.
Judgment reversed.
All the Justices concur.
NOTES
[1]  "NIBIN" is the acronym for the National Integrated Ballistics Identification Network, which is comprised of jurisdictions which deploy the National Integrated Ballistics Identification System, a computerized database developed by the United States Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to identify links between ballistics evidence from crimes within the network.
[2]  The record reflects, however, that defense counsel did learn during trial of the possibility that some ballistics link with another crime had been identified.
[3]  This evidence could have been presented in the form of the police report from the prior incident with the actual witness description or the testimony of the witness himself, either in person or by some other legally acceptable substitute. See Dickens v. State, 280 Ga. 320(2), 627 S.E.2d 587 (2006).
[4]  These concerns included the fact that the witnesses were siblings of one another and friends of Parks; that they told different versions of their stories to Parks and to defense counsel; that, because both claimed to have been asleep at the exact time of the shootings, neither could state definitively that Parks too was asleep in their home at that time; and that one of the witnesses was a fugitive and was implicated in prior difficulties with one of the victims.


                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________

No. 15-2011
JULIA EGAN,
                                                                Plaintiff,

                                 v.

DAVID PINEDA,
                                                 Defendant-Appellee.

APPEAL OF LEWIS G. SPICER,
                                                 Attorney-Appellant.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
            No. 12 C 9034 — Gary S. Feinerman, Judge.
                     ____________________

SUBMITTED NOVEMBER 13, 2015 — DECIDED DECEMBER 23, 2015
                ____________________

   Before POSNER, RIPPLE, and SYKES, Circuit Judges.
   POSNER, Circuit Judge. The district judge imposed a $5,000
sanction on lawyer Lewis Spicer for misconduct in repre-
senting plaintiff Egan in this case, which alleged sex discrim-
2                                                  No. 15-2011

ination and the creation of a hostile work environment. The
judge imposed the sanction pursuant to the inherent authori-
ty of federal judges to sanction attorneys for actions taken
“in bad faith.” Chambers v. NASCO Inc., 501 U.S. 32, 45–46
(1991); Johnson v. Cherry, 422 F.3d 540, 548–49 (7th Cir. 2005).
Bad faith can be “recklessly making a frivolous claim,” Mach
v. Will County Sheriff, 580 F.3d 495, 501 (7th Cir. 2009), which
is an accurate description of the conduct for which Spicer
was sanctioned. And the claim he advanced on behalf of his
client, the plaintiff, was not only frivolous but also damag-
ing to the defendant.
    The 75th paragraph of a complaint of more than 100 par-
agraphs, drafted by Spicer, alleges that Egan “was repeated-
ly caused to be subjected to unwelcome verbal and physical
actions of a sexual nature and was further victimized by acts
of sexual assault by the defendants’ male employees in her
work environment throughout her employment tenure with
defendants.” The defendants included her employer, Hun-
tington Copper, LLC, and one of its former owners, David
Pineda. The paragraph we quoted could thus be understood
to be accusing Pineda of having subjected the plaintiff to
unwelcome “physical actions of a sexual nature” and of hav-
ing been responsible for sexual assaults on her by male em-
ployees of Huntington. Yet at her deposition Egan emphati-
cally denied having been sexually assaulted (or otherwise
subjected to unwanted physical contact) by Huntington per-
sonnel during her employment by the firm. When asked
why she had alleged such conduct in her complaint she said
she hadn’t written or even seen the quoted passage or signed
the complaint. Spicer concedes that the allegations in the
paragraph were false. Pineda filed a motion for sanctions
No. 15-2011                                                  3

against Spicer for filing a false, and very damaging, com-
plaint against him.
    After dismissing the complaint against Pineda for lack of
personal jurisdiction (a dismissal not contested by either
Egan or Spicer on appeal), the judge held a hearing at which
he asked Spicer to explain how the phony allegation of sexu-
al assault had gotten into the complaint. Spicer said “it was
an error,” but when asked by the judge “how did that error
occur?” he answered only that “it was not supposed to be in
there … . It was an oversight on our part … .” The judge was
not satisfied. At the next status hearing he asked Spicer
“What happened that allowed that allegation, which every-
body now agrees was false, how did that allegation make its
way into a complaint that you signed and filed?” Again
Spicer was unresponsive—and worse. He said “I don’t know
what to tell you, other than it was an error and an oversight
on my part. … [I]t was a simple error in proofreading on my
part.” How could it have been a “simple” error, let alone a
proofreading error? Proofreading means carefully reading a
text to find and correct typographical, grammatical, stylistic,
and spelling errors. Maybe Spicer meant that someone else
had written paragraph 75 and that he (Spicer) in proofread-
ing it had failed to catch the errors. But the errors were not
typographical, grammatical, etc.; the paragraph was clearly
written; a perfect proofread would not have discovered that
the paragraph was asserting a falsehood. Spicer’s brief in
this court offers no alternative to “oversight” and “proof-
reading error” as excuses for paragraph 75. Those excuses
are pathetic and leave us in the dark about how or why he
falsified the complaint.
4                                                 No. 15-2011

    Moreover, the record contradicts his claim that “when
the errant allegation was brought to the attention of Mr.
Spicer, he promptly sought to have it withdrawn and stipu-
lated that Paragraph 75 contained incorrect and untrue alle-
gations.” The error was discovered during Egan’s deposi-
tion. That took place in January 2014. Not until July 2014, six
months later, did Spicer file a stipulation stating that “Para-
graph 75 of the Complaint contains an incorrect and untrue
allegation regarding sexual assault.”
    The district judge’s imposition of the $5,000 sanction on
attorney Spicer was amply justified.
                                                    AFFIRMED


70 B.R. 888 (1987)
In re STARDUST INN, INC., Jointly administered with E & G Restaurant, Debtors.
STARDUST INN, INC. and E & G Restaurant/Lounge, Inc., Plaintiffs,
v.
Rajnikant A. DOSHI, Defendant.
Bankruptcy Nos. 82-02849G, 82-03583G, Adv. No. 83-0396G.
United States Bankruptcy Court, E.D. Pennsylvania.
March 9, 1987.
*889 Nelson J. Sacks, Media, Pa., for the debtors/plaintiffs, Stardust Inn, Inc. and E & G Restaurant/Lounge, Inc.
George M. Bobrin, The Jefferson Law Center, Philadelphia, Pa., for defendant, Rajnikant A. Doshi.

OPINION
BRUCE I. FOX, Bankruptcy Judge:
This is an action for breach of contract brought by two bankruptcy debtors, Stardust Inn, Inc. and E & G Restaurant Lounge, Inc., against Rajnikant A. Doshi. Although the case is a related proceeding, at trial the parties consented to the entry of a final judgment by the bankruptcy court. See 28 U.S.C. § 157(c)(2). For the reasons set forth below, judgment will be entered in favor of the debtors in the amount of $15,000.00.[1]

I.
Before discussing either the facts or the merits, I must address a jurisdictional issue. The debtors filed their voluntary chapter 11 bankruptcy petitions on June 18, 1982 and July 30, 1982 respectively.[2] This adversary proceeding was commenced by the debtors on February 10, 1983. After considerable activity in their bankruptcy cases, including the approval of a disclosure statement and the scheduling of a confirmation hearing, the debtors requested that their bankruptcy cases be dismissed pursuant to 11 U.S.C. § 1112(b). After notice and hearing, this court entered an order on March 31, 1985, granting the debtors leave to dismiss their petitions and in July 1985, these cases were closed. See 11 U.S.C. § 350.
*890 Although the underlying bankruptcy cases were dismissed, this adversary proceeding went to trial, neither plaintiffs nor defendant noting to the court the fact of the bankruptcy dismissal. After trial and post-trial filings, this court discovered, sua sponte, that plaintiffs had no pending bankruptcy cases and requested memoranda from the parties addressing my power to decide this proceeding. The defendant declined to file any memorandum and the plaintiffs submitted one of extreme brevity without case citation.[3]
As a general rule, the dismissal of a bankruptcy case should result in the dismissal of all remaining adversary proceedings. In re Pocklington, 21 B.R. 199, 202 (Bankr.S.D.Cal.1982); accord, In re Rush, 49 B.R. 158 (Bankr.N.D.Ala.1985). This is particularly true of adversary proceedings which are "related" to the bankruptcy case, 28 U.S.C. § 157(c)(1), for the related proceedings can only be heard by a bankruptcy court because of their nexus to the debtor's bankruptcy case. See generally Pacor v. Higgins, 743 F.2d 984 (3d Cir. 1984).
The question then is whether dismissal of a bankruptcy case must always result in the dismissal of pending related adversary proceedings. If not, one must identify the relevant factors in determining whether dismissal is warranted.
The few courts which have considered the issue have concluded that dismissal of the bankruptcy case does not mandate dismissal of all pending adversary proceedings. See, e.g., In re Pocklington; In re Lake Tahoe Land Co., 12 B.R. 479 (Bankr.D.Nev.1981).[4] Even In re Rush, which contains dictum to the contrary, holds only that a bankruptcy court should not undertake to enforce a settlement agreement, never approved by the bankruptcy court itself, after the bankruptcy case and adversary proceedings are voluntarily dismissed.[5] Where dismissal would cause prejudice to one of the parties, the bankruptcy court has the power to retain jurisdiction. In re Pocklington.
This power to retain jurisdiction over adversary proceedings may be analogized[6] to a federal court's retention of jurisdiction over state pendent or ancillary claims subsequent to the dismissal of the federal claim giving rise to subject matter jurisdiction.[7] Even though the federal claims may have been dismissed prior to trial, the district court is not required to dismiss the state law claims, see Nationwide Mutual Fire Insurance Co. v. T & D Cottage Auto Parts and Service, Inc., 705 F.2d 685 (3d Cir.1983); Rogin v. Bensalem Township, 616 F.2d 680 (3d Cir.1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981), although dismissal of such claims is the norm. National Research Bureau, Inc. v. Bartholomew, 482 F.2d 386 (3d Cir. 1973). See generally Financial Bankshares Inc. v. Metzger, 680 F.2d 768 (D.C. Cir.1982). Rather, the district court has the power to retain jurisdiction and decide the state law claim if such retention is an *891 appropriate exercise of discretion. In determining whether to hear the pendent or ancillary claim, courts have identified various factors such as judicial economy, fairness and convenience to the parties and the degree of difficulty of the state law issues involved. See, e.g., United States v. Zima, 766 F.2d 1153 (7th Cir.1985); Financial General Bankshares, Inc. v. Metzger; Lentino v. Fringe Employee Plans, Inc., 611 F.2d 474 (3d Cir.1979). Judicial economy looks to preserve energies already invested by the parties and the court in the proceedings; fairness to the litigants considers whether the parties would be prejudiced by dismissal (such as, for example, if the state statute of limitations has run). L.A. Draper & Son v. Wheelabrator-Frye, Inc., 735 F.2d 414 (11th Cir.1984).
I believe these same factors are relevant in my determination of the jurisdictional issue sub judice, and that my discretion would be better exercised by retaining jurisdiction and deciding this adversary proceeding on its merits. First, the matter has already been fully tried with all parties simply awaiting the decision of this court. This is significant since dismissal of the action would require that the matter be refiled and relitigated in state court. Second, this matter involves no difficult or unsettled issues of state law. Third, the fact that both parties consented to my entering a final, binding decision (rather than a recommendation) leads me to believe that they were interested in bringing this matter to a close after more than three years.[8] While I recognize that were I to dismiss this matter, plaintiffs could probably refile in state court because the statute of limitations has not yet run, see 42 Pa.C.S.A. § 5526(2) (five year limitation period), this is outweighed by the factors mentioned above, particularly the fact that this case has been fully tried. See generally Lentino v. Fringe Employee Plans, Inc. Moreover, I have no reason to believe that the parties were aware of the jurisdictional significance of the dismissal of the underlying bankruptcy case and were attempting to have this court retain jurisdiction by their silence.
This is not to say that this court would have retained jurisdiction had it known in July 1985 that there was a pending adversary proceeding. Generally, when the debtor dismisses his bankruptcy case, all pending adversary proceedings brought by the debtor should be dismissed as well. However, here I conclude that significant events have occurred since the bankruptcy dismissal warranting retention of the adversary proceeding. I therefore proceed to a discussion of the underlying merits.

II.
The debtors, prior to their bankruptcy filings, were the owners of a restaurant, bar and motel located in Chester, Pa. On September 26, 1982, the debtors entered into a written agreement granting defendant Doshi (hereinafter "the buyer") an exclusive option to purchase a bar, restaurant, a motel and related personalty. The option agreement provided that the purchase price would be $200,000.00 to be paid as follows:

  $ 10,000.00 on September 26, 1982
     5,000.00 on October 4, 1982
    25,000.00 on November 1, 1982
   100,000.00 on November 15, 1982
              (through the assumption of the
              existing mortgage on the real
              property)

At the time of the execution of the option agreement, the buyer paid the debtors $10,000.00. The option agreement also provided, inter alia that:
(a) the option had to be exercised no later than 5 P.M. on October 4, 1982 by the exercise of a formal agreement of sale;
(b) if the option were not exercised, the option would expire and the $10,000.00 paid *892 by the buyer on September 26, 1982 would be retained by the debtors; and
(c) if the option agreement were exercised, the $10,000.00 paid by the buyer would be credited toward the $200,000.00 purchase price.
Notwithstanding the expiration of October 4, 1982 deadline for exercise of the option, the buyer exercised the option by entering into a written agreement of sale with the debtors dated October 21, 1982. Upon the execution of the agreement of sale, the buyer paid the debtors another $5,000.00. The October 21, 1982 agreement of sale:
(a) acknowledged that the buyer had exercised his exclusive option to purchase;
(b) provided for the sale of the bar, restaurant, motel and related personalty referred to in the September 26, 1982 option agreement and specifically provided for the sale of the debtors' liquor license to the buyer;
(c) acknowledged receipt of $15,000.00 from the buyer;
(d) provided for payments by the buyer of $25,000.00 on November 1, 1982, $60,000.00 at settlement and for assumption of the existing mortgage on the property (not to exceed $100,000.00) at the time of settlement;
(e) provided that the agreement was contingent upon approval of the buyer by the holder of the existing mortgage, approval of the sale by the bankruptcy court and approval of the transfer of the liquor license by the Pennsylvania Liquor Control Board (hereinafter "the LCB") and that in the event any of the foregoing approvals were not obtained, the agreement would be null and void and all deposit monies would be returned to the buyer;
(f) provided for settlement on or before November 18, 1982, but also that in the event the LCB had not approved the transfer of the liquor license by that date, settlement would be held within one week after receipt by the buyer of such approval.
The buyer did not make the $25,000.00 payment due, under the agreement, on November 1, 1982. Some time shortly before November 12, 1982, the buyer's attorney informed the debtors' attorney by telephone that the buyer would not be able to go to settlement to complete the purchase. This conversation was confirmed by letter dated November 12, 1982. In a subsequent letter to the debtors' counsel, dated November 22, 1982, the buyer's attorney explained that the buyer did not complete the deal because he did not receive money he was expecting from friends or relatives and that he could not afford to borrow the necessary funds. In addition, the buyer's attorney also advised the LCB, by letter dated November 8, 1982, that the buyer was withdrawing his previously filed request for approval of the transfer of the liquor license.
On February 3, 1983, the debtors entered into an agreement of sale with William R. McGonigal and Barbara L. McGonigal for the sale of the same property, including the liquor license, which was the subject of the October 21, 1982 agreement of sale. The February 3, 1983 agreement also provided for the conveyance, by Township Holding Corp., to the McGonigals of a parking lot adjacent to the motel. The agreed purchase price was $170,000.00. The agreement contained a standard mortgage contingency clause in favor of the McGonigals. On June 13, 1983, the debtors and the McGonigals went to settlement and completed the sale of the subject property for a sale price of $170,000.00. The sale was approved by this court.

III.
The debtors have brought this action on the theory that the buyer committed an anticipatory breach of the October 21, 1982, agreement of sale. The parties agree that, if the debtors prevail, damages should be assessed at $15,000.00.[9]
*893 In In re Silberman, 30 B.R. 219, 226-27 (Bankr.E.D.Pa.1983), Chief Judge Goldhaber set forth the test for determining whether an anticipatory breach of contract has occurred:
Under Pennsylvania law, in order for the renunciation of a contract to rise to the level of an anticipatory breach, "there must be an absolute and unequivocal refusal to perform or a distinct and positive statement of an inability to do so." McClelland v. New Amsterdam Casualty Co., 322 Pa. 429, 433, 185 A. 198, 200 (1936), quoted in McCloskey & Co. v. Minweld Steel Co., 220 F.2d 101, 104 (3d Cir.1955).
Accord, Restatement (Second) of Contracts § 250 (1979) (hereinafter "Restatement").
In this case, I find that the buyer's oral notification to the debtors shortly before November 12, 1982, of his intent not to perform his obligations under the agreement of sale, which was promptly confirmed in writing, constituted an absolute and unequivocal refusal to perform his obligations. It rose to the level of an anticipatory breach of contract, entitling the debtors to damages.[10]See Restatement § 253(1).
The buyer seeks to avoid the consequences of his breach asserting that he is entitled to judgment because the debtors did not establish at trial that they would have been able to comply with the terms of the agreement of sale. Specifically, the buyer argues that the debtors did not prove that (a) they had obtained the existing mortgagee's approval for the assumption of the mortgage by the buyer; (b) they had applied in time for the bankruptcy court's approval of the sale; and (c) the transfer of the liquor license would have been received prior to November 18, 1981. See Defendant's Proposed Conclusions of Law ¶ 1.
Although the buyer has cited no authority, there is support for the proposition that a party who anticipatorily breaches a contract is not liable for damages if it appears, notwithstanding the breach, that there would have been a total failure by the other party to perform its return promise. E.g., Restatement § 254; 4 Corbin on Contracts § 978 (1951) (hereinafter "Corbin"). As Corbin states:
[I]f the buyer of land repudiates the contract and refuses to pay, it is unnecessary for the vendor to make a tender of a conveyance before bringing suit;[11] but he cannot win his suit if it appears that he himself could not or would not have substantially performed on this own part.
4 Corbin § 978, at 925 (footnotes omitted).
In the case at bar, the debtors established that they could have performed their *894 obligations under the agreement of sale absent the buyer's breach. Therefore, the buyer's argument fails.
In analyzing the buyer's argument, it is helpful to first distinguish among the third party approvals upon which the agreement of sale was conditioned. With respect to the LCB's approval of the transfer of the liquor license, the buyer errs in suggesting that failure to obtain the approval by November 18, 1982 would have terminated the agreement of sale and entitled the buyer to the return of his deposit monies. Paragraph 15 of the agreement provided only that if approval of the transfer of the liquor license were not obtained by November 18, 1982, setlement would take place within one week after receipt of the buyer's receipt of the approval. Moreover, it was the buyer's own action in withdrawing the LCB application which rendered it impossible for the parties to complete performance. The buyer cannot claim that his failure to perform was excused on the ground that approval of the liquor license would not have been timely obtained where it was his own conduct which caused the failure. See Jonnet Development Corp. v. Dietrich Industries, 316 Pa.Super. at 542-46, 463 A.2d at 1031-33; Nationwide Resources Corp. v. Massabni, 134 Ariz. 557, 658 P.2d 210 (Ariz. App.1982); Restatement § 255. In short, the possibility that the liquor license transfer approval would not have been obtained by November 18, 1982, does not defeat the debtors' claim.
With respect to the mortgagee and bankruptcy court approvals, I conclude that the debtors produced sufficient evidence to establish that they could have obtained those approvals in a timely fashion. At the time of the buyer's breach, there was still adequate time before settlement for the approvals to be obtained. There was also evidence to show that the mortgagee's approval of the buyer's assumption of the mortgage was forthcoming. (See Exhibit P-10). The consummation of the sale to the McGonigals several months later, on somewhat less favorable terms, also suggests that bankruptcy court approval of the sale was likely.
In addition, I note that the agreement of sale does not contain a clause providing that "time is of the essence." In the absence of such a clause, the failure to obtain a mortgage committment by the contractual deadline will not terminate an agreement of sale. E.g., In re Flannery, 11 B.R. 974 (Bankr.E.D.Pa.1981) (agreement of sale not terminated where buyer obtained financing committment seven days late). The same principle should apply to contingency clauses based on mortgagee approval of the assumption of the existing mortgage by the buyer and bankruptcy court approval. The fact that time was not of the essence in this agreement and that the approvals could have been obtained within a reasonable period after November 18, 1982 bolsters my finding that the debtors could have performed their obligations had the buyer not repudiated the contract.

IV.
For the reasons set forth above, I find that the buyer committed an anticipatory breach of contract and that the debtors are entitled to recover damages in the amount of $15,000.00. An appropriate order will be entered.
NOTES
[1]  This opinion constitutes the court's findings of fact and conclusions of law pursuant to Bankr. Rule 7052.
[2]  The debtors' bankruptcy cases were ordered jointly administered on March 31, 1983.
[3]  Plaintiffs' suggestion that there is federal jurisdiction under 28 U.S.C. § 1332 seems undercut by the lack of diversity of citizenship at the time of filing the complaint. (See plaintiffs' complaint ¶¶ 3-5).
[4]  Obviously, the Bankruptcy Code itself contemplates that the bankruptcy court will have the jurisdiction to consider certain matters even after the case is closed (e.g., the section 524 injunction granted upon discharge). See In re Funket, 27 B.R. 640 (Bankr.M.D.Pa.1982); H.R. Rep. No. 95-595, 95th Cong., 1st Sess. 445 (1977).
[5]  The holding in Rush is similar to the conclusion reached in Bryan v. Smith, 174 F.2d 212, 215 (7th Cir.1949) ("There can be no ancillary proceeding to enforce an interlocutory order made in a suit that has been dismissed. . . . ").
[6]  This analogy is not exact for the district courts have the discretion to decline to hear pendent state law claims in general, see United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), while bankruptcy courts do not possess such broad discretion over related proceedings. See 28 U.S.C. § 1334(b), (c).
[7]  A clear explanation of pendent and ancillary jurisdiction and their differences is provided in Ambromovage v. United Mine Workers of America, 726 F.2d 972 (3d Cir.1984); accord, Federman v. Empire Fire and Marine Insurance Co., 597 F.2d 798 (2d Cir.1979).
[8]  Even if I had the power under state law, 42 Pa.C.S.A. § 5103, to transfer the proceeding to state court, see Weaver v. Marine Bank, 683 F.2d 744 (3d Cir.1982), (as opposed to recommending to district court to transfer the case), I think it would be wasteful to have the parties await the call of the state court trial list and retry this matter.
[9]  This figure was determined as follows: the sale price in the October 21, 1982 agreement ($200,000.00) minus the sale price in the February 3, 1982 agreement ($170,000.00) minus the deposit paid by the buyer ($15,000.00). Accord, Harris v. Dawson, 479 Pa. 463, 388 A.2d 748 (1978); Comment, The Uniform Land Transactions Act: Pennsylvania Property Law and Sellers' Remedies for Breach of Contract for Sale of Real Estate, 55 Temple L.Q. 577, 591 & authorities cited therein (1982); 32 Pennsylvania Law Encyclopedia, Sales of Real Property § 171 (1960).
[10]  In his testimony at trial, the buyer made some effort to suggest that he did not want to go forward with the transaction because he learned that an alleged representation made by the debtors' agent during their negotiations (i.e., that an exit ramp from a nearby interstate highway was going to be built) was not true. Nothing in the agreement of sale or the buyer's answer to the complaint made any reference to the alleged representation or the buyer's reliance thereon. The debtors' motion to strike this testimony was not opposed. (N.T. 51-52). The buyer also suggested that his decision was based on the debtors' failure to provide him with certain financial information relating to the motel, bar and restaurant that debtors' allegedly failed to supply him as agreed. I resolve any conflict in the evidence in favor of the debtors and find that the reason the buyer declined to proceed with the sale was, as his attorney advised the debtors, because his expected financing did not materialize. This was not a contingency allowed for under the agreement of sale.
[11]  In Pennsylvania, the rule is that a party is discharged from actual performance of his contractual promises after anticipatory breach by the other party. See City of Farrell v. H. Platt Co., 142 Pa.Super. 242, 15 A.2d 718 (1940); Restatement § 253(2), cited with approval in Jonnet Development Corp. v. Dietrich Industries, 316 Pa.Super. 533, 542, 463 A.2d 1026, 1031 (1983). See also In re Silberman, 30 B.R. at 227 n. 25.


752 F.2d 644
*Kiddv.Procunier
84-2395
United States Court of Appeals,Fifth Circuit.
1/10/85

1
S.D.Tex.

AFFIRMED

2
---------------

* Fed.R.App.P. 34(a);  5th Cir.R. 34.2.


830 F.Supp. 1053 (1993)
BILL CALL FORD, INC., et al., Plaintiffs,
v.
FORD MOTOR COMPANY, Defendant.
No. 5:91 CV 242.
United States District Court, N.D. Ohio, E.D.
August 18, 1993.
*1054 *1055 Timothy A. Shimko, Sr., Shimko & Associates, Cleveland, OH, Edward C. Baran, Jr., Baran, Piper, Tarkowsky & Fitzgerald, Mansfield, OH, John P. Calandra, Jr., Baran, Piper, Tarkowsky & Fitzgerald, Thomas G. Lobe, John F. King, Hofelich & King, Cleveland, OH, for plaintiffs.
James B. Niehaus, Daniel W. Hammer, Sr., Michael E. Smith, Thompson, Hine & Flory, Cleveland, OH, for defendant.

ORDER ADDRESSING COUNTS ONE, TWO, THREE, FOUR, FIVE, AND SEVEN
SAM H. BELL, District Judge.
PREFACE
The parties have moved for summary judgment on all counts of the complaint. The court has addressed each motion by separate opinion. They are, in essence, a trilogy. Because some orders, for the sake of efficiency, reference others made in this matter, the court suggests that a reader peruse them in the order they were prepared. The order of drafting is this: (1) opinion addressing count eight, 830 F.Supp. 1034, (2) opinion addressing count six, 830 F.Supp. 1045, (3) opinion addressing counts one, two, three, four, five and seven, 830 F.Supp. 1053.

I. Introduction
Currently before the court is defendant's motion for summary judgment on counts one, two, three, four, five, and seven of plaintiffs' complaint, Docket # 44. Plaintiffs have responded to this motion, to which the defendant has replied. These documents are the subject of the following opinion. We begin with a brief summary of the relevant allegations contained in plaintiffs' complaint.
In their amended complaint, the plaintiffs allege that they were franchised by defendant Ford commencing in 1980 and operated as such at a location in Mansfield, Ohio until mid-1990. (Amended Complaint at ¶ 4) In February of 1989, the plaintiffs purportedly entered into a contract with James Graham, already a Ford dealer in Zanesville, Ohio, for the sale of its franchise to Graham. (Id. at ¶ 5) Plaintiffs allege that they provided Ford with all necessary documentation and requested that defendant approve James Graham as a prospective purchaser. Plaintiffs, in count one, claim that Ford, by failing to approve Graham as the successor franchisee, breached a sales and service agreement entered into by the parties, damaging plaintiffs in the sum of two million dollars. For this same act, plaintiffs in count two allege that the defendant "breached the requirements of good faith and fair dealing in performance of its duties with Plaintiff, its franchisee, as required by the laws of the State of Michigan and the laws of the State of Ohio." (Amended Complaint at ¶ 11) In count three, plaintiffs claim that Ford "tortiously, maliciously and intentionally interfered with the contractual arrangements between Plaintiff and Graham." (Id. at ¶ 13) In their fourth count, plaintiff alleges that the defendant's actions were "wilful, wanton and malicious and are such that they to as (sic) entitle the Plaintiff to treble damages." (Id. at ¶ 15) In count five, plaintiffs aver that the "acts and omissions of the Defendant, in tort and in breach of contract and violation of statutes is such as to entitle the Plaintiff double damages, treble damages, punitive damages and/or attorneys fees in a sum to be *1056 determined at trial." (Id. at ¶ 17) In count seven, plaintiffs contend that Ford's failure to timely approve the sale of the franchise to Graham violated Section 4517.56 of the Ohio Revised Code and other provisions of Chapter 4517 of the Code. (Id. at ¶ 22)

II. Standard of Review
The court has previously addressed the summary judgment standards applicable to the instant matter. (See Order Addressing Count Eight). To avoid needless repetition, those standards have been omitted in this opinion although they are, of course, a pertinent guide for review of the instant motion. If particularly germane, the court shall revisit the dictates of Rule 56 in the legal analysis which follows.

III. Law and Analysis

A. Count One
As noted above, plaintiffs' first count alleges that Ford "breached its agreement with Plaintiff by failing to approve Graham as the successor franchisee in a timely manner to the damage of Plaintiff in the sum of Two Million Dollars". (Amended Complaint ¶ 9) Plaintiffs ground this claim on paragraph 17(b)(1) of the Franchise Agreement between the plaintiffs and the defendant. (See Defendant's Motion, Docket # 46 at 8-9 and Appendix Exhibit 12; Plaintiffs' Opposition to the Defendant's Motion, Docket # 74 at 3, 7) Plaintiffs argue:
The Sales and Service Agreement specifically states at 17(b)(1) "any transfer or attempted transfer by the Dealer ... which consent [by Ford] shall not be unreasonably withheld." (Ex. 6, p. 15, para. 17(b)(1)) This contract's express language states that Ford cannot unreasonably withhold consent.
(Plaintiffs' Opposition, Docket # 74 at 7) The court disagrees with plaintiffs' construction of the contract at issue. In point of fact, the court believes the language regarding "consent", does not even modify the term "transfer or attempted transfer", which plaintiffs suggest occurred in the case at bar. In other words, even if this court assumed as fact that there was a "transfer or attempted transfer" of the Franchise Agreement, paragraph 17(b)(1) simply does not state that the company cannot unreasonably withhold its consent to such a transfer.[1]
Paragraph 17(b)(1) of the Franchise Agreement provides, in pertinent part, the following:
TERMINATION OR NONRENEWAL OF AGREEMENT
.   .   .   .   .

*1057 17.(b) By Company Due to Events Controlled by Dealer. The following represent events which are substantially within the control of the Dealer and over which the Company has no control, and which are so contrary to the intent and purpose of this agreement as to warrant its termination or nonrenewal:
(1) Any transfer or attempted transfer by the Dealer of any interest in, or right, privilege or obligation under this agreement; or transfer by operation of law or otherwise, of the principal assets of the Dealer that are required for the conduct of DEALERSHIP OPERATIONS; or any change, however accomplished, without the Company's prior written consent, which consent shall not be unreasonably withheld, in the direct or indirect ownership or operating management of the Dealer as set forth in paragraph F.
(Defendant's Appendix, Exhibit 1 at 15 ¶ 17(b)(1)) (non-titular bold type added for emphasis). The significance of the semi-colons and conjunctions separating the three phrases contained in subparagraph (1) should not and cannot be ignored. The very definition of semi-colon is:
a punctuation mark; that is usu. used to separate the independent clauses of a compound sentence when the clauses are joined by no connective, when the clauses are joined by a conjunctive adverb, or when the clauses are joined by a coordinating conjunction but are long and contain internal punctuation and that is often used to separate long items in a series.
Webster's Third New Int'l Dictionary (unabridged) 2063 (1986). The court firmly believes and here holds that the use of the semi-colon in combination with the disjunctive conjunction "or" separates the three clauses in subparagraph (1) and renders them independent of one another.[2] Thus, the admonition that "consent shall not be unreasonably withheld" only applies when there is "any change, however accomplished, without the Company's prior written consent ... in the direct or indirect ownership or operating management of the Dealer as set forth in paragraph F." Consequently, the first clause in subparagraph (1), relating to "transfer or attempted transfer" is simply not subject to consent, reasonable or otherwise  such an action on the dealer's part simply warrants termination or non-renewal of the Franchise Agreement. Plaintiffs may not, therefore, claim that the defendant unreasonably withheld its consent to a purported transfer. Count one is, in other words, without contractual predicate and summary judgment on that count is appropriate and shall be granted.[3]

B. Count Two
As noted above, in count two plaintiff alleges that Ford breached the requirements of good faith and fair dealing in performance of its duties with plaintiffs, as required by *1058 the laws of Michigan and Ohio by failing to grant its timely consent to the transfer of the franchise from plaintiffs to Graham. (See Amended Complaint at ¶ 11) The defendant challenges this claim. In their brief, plaintiffs acknowledge that Ford's motion asserts that "[p]laintiffs have not obtained or produced any evidence to support the claims in counts one, two, three, four, five and seven," a perfectly acceptable contention when the moving party does not, as is the case here, bear the burden of proof.[4] (Plaintiffs' Opposition, Docket # 74 at 5). The court shall begin by determining the law applicable to this case, and then apply that law to the proof at hand.
At the outset, the court notes that Michigan law is inapplicable to the instant suit. See Mich. Comp. Laws § 445.1582 (providing that the Michigan dealer's statute "shall have no application to dealers outside the State of Michigan.") Thus, we are limited to Ohio law. Although plaintiffs have nowhere articulated the foundation for this claim, the court presumes our starting place is § 4517.59 of the Ohio Revised Code. That section provides:
Notwithstanding the terms, provisions, or conditions of any agreement, franchise, or waiver, no franchisor shall:
(A) In acting or purporting to act under the terms, provisions, or conditions of a franchise or in terminating, canceling, or failing to renew a franchise, fail to act in good faith.
Ohio Rev.Code § 4517.59(A). This statute has held substantially the same form since 1980. (See Defendant's Revised Motion for Partial Summary Judgment as to Count Six, Docket # 46, Exhibit # 4) A plaintiff/dealer bears the burden of proving bad faith. Earl Evans Chevrolet v. Gen'l Motors Corp., 74 Ohio App.3d 266, 277, 598 N.E.2d 1187 (Lake Cty.App.1991), motion overruled, 62 Ohio St.3d 1455, 579 N.E.2d 1394 (1991) ("appellees [the dealer] produced more than a mere `scintilla' of evidence upon which reasonable minds could differ....")[5]
Good faith is currently, under 1987 amendments to the Code, defined as follows:
"Good faith" means honesty in the conduct or transaction concerned and the observance of reasonable commercial standards of fair dealing in the trade as is defined in division (S) of section 1301.01 of the Revised Code, including but not limited to the duty to act in a fair and equitable manner so as to guarantee freedom from coercion, intimidation, or threats of coercion or intimidation; provided, however, that recommendation, endorsement, exposition, persuasion, urging, or argument shall not be considered to constitute a lack of good faith.
Ohio Rev.Code § 4517.01(BB) (1987).[6] This law guides our inquiry.
*1059 Section 1301.01(S) of the Revised Code (UCC 1-201), until recently, has received surprisingly little Ohio caselaw interpretation. Nevertheless, the Ohio Code and pertinent Ohio cases are sufficient for present purposes. That section states, in pertinent part, that "`[g]ood [f]aith' means honesty in fact in the conduct or transaction concerned." Ohio Rev.Code § 1301.01(S). Thus, Ford was duty bound to be honest in fact, and observe reasonable commercial standards in a manner so as to guarantee freedom from coercion, intimidation or the threat thereof. Ohio Rev.Code §§ 4517.59(A), 4517.01(BB), 1301.01(S). The term coercion, as used herein, means "to compel or attempt to compel by failing to act in good faith or by threat of economic harm, breach of contract, or other adverse consequences." Ohio Rev.Code § 4517.01(CC). It "does not mean to argue, urge, recommend, or persuade." Id. With this established, we turn to the case at bar.
The fundamental premise of plaintiffs' claim in count two is that Ford failed to "grant its timely consent to the transfer of the Ford Franchise from Plaintiff to Graham." (Amended Complaint at ¶ 11) Ford disputes the truth of this premise. The evidence clearly establishes that there was a significant period of time between the execution of the Buy/Sell Agreement and Mr. Graham's assumption of franchisee status in Mansfield. Plaintiff and Graham entered into a Buy/Sell Agreement on February 3, 1989. (Plaintiffs' Opposition, Docket # 74, Exhibit # 5) On February 14, 1989, Plaintiff Call received the following letter from Ford:
We are in receipt of your buy/sell with Mr. James F. Graham dated February 3, 1989 and received on February 9, 1989.
It is unlikely that we will be able to approve Mr. Graham's application as the replacement dealer in Mansfield, Ohio prior to March 8, 1989, because we do not have all the information necessary to evaluate the application. Despite increased activity in the Market Representation Department we will endeavor to obtain the necessary information as quickly as possible. Therefore, for the purpose of Section 4517.56 of the Ohio Revised Code, the Company objects to Mr. Graham's application to be the replacement dealer in Mansfield, Ohio. However, upon receipt of all requested information, we will complete our review and inform you of the status of the application.
(Id. at Exhibit # 10) Plaintiffs aver, and defendant denies, that Mr. Graham received a similar letter from Ford.[7] On March 17, 1989, Ford sent a letter to James Graham *1060 provisionally approving his assumption of franchisee status in Mansfield subject to various conditions. It suffices to say that after various appeals and disputes, Graham, over a year later, entered into a franchise agreement with Ford which differed from that enjoyed by Bill Call Ford. There was a significant delay.
The court must note, however, that no "transfer" (whatever that means) of the franchise occurred. The record evidence in this matter overwhelmingly indicates that Mid-Ohio resigned its franchisee status and Graham Ford applied to become and became a distinct franchisee  matters varying significantly from mere assignment of Call Ford's rights under its Franchise Agreement with Ford. (See Court's Order disposing of count eight). Thus, what plaintiffs really argue is that Ford breached its duty of good faith by unreasonably delaying the award of franchise status to Graham once the Buy/Sell Agreement between Call Ford and Graham was signed. It is indisputable that the "delay" of which plaintiffs complain was caused by Ford's imposition of various conditions on the franchise it awarded to Graham which varied from the terms of Franchise Agreement between Ford and Bill Call Ford. Indeed, it seems clear that this is where plaintiffs' claim lies.
In their brief, the plaintiffs claim that the defendant's acts were coercive and intimidating and breached the duty of good faith by "imposition of condition after condition on the Call/Graham transfer," and by "purposefully, maliciously and wantonly withh[olding] its approval for fourteen months." (Plaintiffs' Opposition, Docket # 74 at 14, 16) Plaintiffs' brief on these issues is divided into three segments which the court shall discuss seriatim. Although not articulated, these three segments apparently are divided into motive or goal, conduct to achieve that goal, and the result of that conduct.
As for the first proposition, relating to motive or goal, plaintiffs' thesis fails, it is believed, for lack of proof. Plaintiffs' brief on coercion, while quite persuasively written, simply finds no support in the record. Plaintiffs cite this court to a 10th Circuit case dealing with the federal Automobile Dealer's Day in Court Act[8], and assert that:
in the instant case Ford had a favored person, Ford really wanted to put a minority dealer into William Call's dealership (Ex. 4, p. 13, lines 5-19, p. 20, lines 20-25, p. 21, lines 1-3). Ford exerted such coercion and intimidation on the William (sic) Call and Mr. Graham (sic), trying to convince Mr. Graham to back out. Defendant did this through its constant demands on Mr. Graham. Defendant ensured that William Call would be so desperate to sell, that in order to cut his losses, he would sell to anyone at any price. Ford was trying to meet its minority candidate commitment (Ex. 4, p. 13, lines 5-19, p. 20, lines 20-25, p. 21, lines 1-3). While this still may be an admirable goal on Ford's part, this is still America, where free enterprise is encouraged and the Plaintiffs are allowed to sell the franchise for what it's worth, based on William Call's ten years of hard work, and the good will he had established in building up the franchise.
(Plaintiffs' Opposition, Docket # 74 at 10-11) The court agrees with Ford's characterization of this reasoning and proof:
the only evidence is that Ford had announced a goal of establishing more minority dealerships, that the Cleveland District had not met its minority dealership goal and that Ford had discussed with Call Ford the possible sale of its assets to a Dealer Development Corporation that would serve as a vehicle for establishing a minority dealer. Call Ford would then have this Court infer that because Call Ford did not sell to a Dealer Development corporation, Ford sought to "punish" Call Ford by delaying Graham's approval. The inference Call Ford asks this Court to make is not supported by the record. Nevertheless, even if Ford had told Call Ford that it would not approve the application of any dealer in Mansfield other than a minority, Ford's conduct would not be "a *1061 failure to exercise good faith" nor would it be "coercive".
(Defendant's Reply Brief, Docket # 73 at 7). There is no proof to justify the inference that Ford withheld its consent to Graham's application because Ford wanted Call Ford to sell to a minority dealer.
The second portion of plaintiffs' brief deals with the conduct engaged in by Ford, the true focus of inquiry for the claimed breach of the duty of good faith. Plaintiffs claim that Ford unreasonably delayed Graham's assumption of a franchise by imposing "condition after condition on the Call Graham transfer" (Plaintiffs Opposition, Docket # 74 at 14) Plaintiff argues:
Ford put pressure on Graham to accept their demands or they would not approve the transfer of the franchise. This put pressure on William Call to lower his price to Graham because the numerous demands by Ford made the franchise less valuable. Additionally, Plaintiffs suffered losses of approximately Fifty Thousand Dollars ($ 50,000.00) a month because of the dilatory tactics of Ford. (Ex. 16) The approval should have taken a little over one month and instead took over fourteen months. This pressure put William Call in fear of his property (increased losses each month) and injury to his business. Once customers knew the dealership is in the midst of being sold, fewer customers buy for fear of not getting serviced. (Ex. 17, p. 155, lines 14-20)
(Id. at 15-16) Plaintiffs' reasoning and proof, while persuasive in style, do not, it is believed, constitute proof of the breach of the duty of good faith.
It is true that Ford imposed conditions on its approval of Graham. It is true that delay resulted from these conditions. The court also accepts as true plaintiffs' assertion that this delay had a deleterious effect on Bill Call Ford/Mid-Ohio and on its contract with Graham. These, however, are not the sole focus of our inquiry. Plaintiffs give the court a selective context for this claim. The Franchise Agreement clearly states that:
In view of the personal nature of this agreement and its objectives and purposes, the Company expressly reserves to itself the right to execute a Ford Sales and Service Agreement with individuals or other entities specifically selected and approved by the Company. Accordingly, this agreement and the rights and privileges conferred on the Dealer hereunder are not transferable, assignable or salable by the Dealer and no property interest, direct or indirect, is sold, conveyed or transferred to the Dealer under this Agreement.
(Defendant's Appendix, Exhibit # 1, Preamble at iii ¶ F) The Franchise Agreement also provided that it "any transfer or attempted transfer by the Dealer of any interest in, or right, privilege or obligation under this agreement" would warrant its termination. (Defendant's Appendix, Exhibit # 1 at 15 ¶ 17(b)(1)). It is also therefore beyond argument that franchise rights were not freely transferrable under this Agreement. It is also indisputable that the contract (and the common law) give Ford the right to enter into and negotiate the terms of its own contract with third parties. Call Ford cannot, under Ohio law, complain that Ford exercised its rights under the contract and harmed it thereby. As was recently noted by one Ohio appeals court:
Firms that have negotiated contracts are entitled to enforce them to the letter, even to the great discomfort of their trading partners, without being mulcted for lack of "good faith". Although courts often refer to the obligation of good faith that exists in every contractual relation, e.g. UCC 1-201; Jordan v. Duff & Phelps, Inc., 815 F.2d 429, 438 (7th Cir.1987), this is not an invitation to the court to decide whether one party ought to have exercised privileges expressly reserved in the document. "Good faith" is a compact reference to an implied undertaking not to take advantage in a way that could not have been contemplated at the time of drafting, and which therefore was not resolve explicitly by the parties.
Bennco Liquidating Co. v. Ameritrust Co. Nat'l Ass'n., 1993 WL 51271, *3 (Cuyahoga Cty.1993). See also Gaul v. Olympia Fitness Center, Inc., 1993 WL 204546 (Cuyahoga Cty.1993) (so holding). Here, of course, the parties did contemplate that Ford could negotiate *1062 its own contract with a successor on its own terms. Call Ford may not, therefore, complain that Ford's doing so breached the duty of good faith. Summary judgment must be granted on this claim.[9]

C. Count Three
In count three, plaintiffs allege that the defendant tortiously interfered with its asset-purchase agreement with Graham. Plaintiffs claim that such interference took the form of correspondence to Mr. Graham informing him that his purchase price was excessive, and by virtue of the defendant's violation of § 4517.57(F)[10] which purportedly prohibited the defendant from failing to transfer a "like" franchise to the purchaser. (See Plaintiff's Opposition, Docket # 74 at 18-21, 21-22).
As the undersigned noted in Juhasz v. Quik Shops, Inc., 55 Ohio App.2d 51, 57, 379 N.E.2d 235 (Summit Cty.1977):
The basic principle of such an action is that one who, without privilege to do so, induces or otherwise purposely causes a third party not to enter into or continue, a business relationship with another, or perform a contract with another is liable to the other for the harm caused thereby.
.   .   .   .   .
We hold that to conclude that the defendant is liable for business interference, a finder of facts must find that:
(1) defendant's conduct interfered with the business rights of plaintiffs, and
(2) taking into consideration the situation and relationship of the parties, such conduct on the part of the defendant lacked any privilege as defined above.... The issue of business interference, including the question of privilege, should be submitted to the jury.[11]
This summary maintains vitality to this day. See, e.g., 88 Ohio Jur.3d § 16 (1989); Dougherty v. Parsec, Inc., 872 F.2d 766, 769 (6th Cir.1989) (following Juhasz, supra,); Siegel v. D'Eramo, 80 Ohio App.3d 72, 608 N.E.2d 842 (Cuyahoga Cty.1992); Scanlon v. Gordon F. Stofer & Bro. Co., 1989 WL 69400 (Ohio App.1989).
Although the parties have not couched their analysis in such terms, the court believes the question presented on the first alleged act of interference is one of privilege. Defendant claims that the Franchise Agreement gave it the right, and hence the privilege, to counsel Graham concerning the purchase of Bill Call Ford. This is surely the case, for the Franchise Agreement between plaintiff and defendant provides:
If, in the opinion of the Company, the price to be paid for such assets appears, on the basis of the average operating results of other dealers, to result in an unsatisfactory return on investment so that such prospective purchaser (1) may not remain as a dealer, or (2) may be impelled to sell COMPANY PRODUCTS at high noncompetitive prices with a probable reduction in sales volume, the Company may, without liability to the Dealer, counsel with such prospective purchaser regarding such opinions.
(Franchise Agreement, Defendant's Appendix, Exhibit 1 at 27 ¶ 24). As the undersigned noted in Juhasz, the following factors are considered in determining the existence of privilege:
(a) the nature of the actor's conduct,
(b) the nature of the expectancy with which his conduct interferes,
(c) the relations between the parties,

*1063 (d) the interest sought to be advanced by the actor and
(e) the social interest in protecting the expectancy on the one hand and the actor's freedom of action on the other hand.
Juhasz, 55 Ohio App.3d at 57, 379 N.E.2d 235. As this court has noted in other opinions addressed to the motions in the matter, Ford and plaintiffs' Franchise Agreement gives Ford the right to pick and choose its successor franchisee, and the unquestionable right to counsel the prospective successor on the price paid for the assets of the terminating dealer. The relation between the parties is therefore of paramount consideration. Ford had a contractual right, in order to protect its indisputable interests, to engage in the conduct complained of herea right clearly deserving of society's protection. It therefore seems quite clear the Ford possessed a privilege to engage in the communication complained of. See, e.g., Bennco Liquidating Co. v. Ameritrust Company Nat'l Assoc., 1993 WL 51271, *4 (Cuyahoga Cty. App.1993) ("As previously noted, the bank had a contractual right to take the challenged actions ... Thus, it cannot be held liable for tortious interference with the Seaway contract and summary judgment was also proper on this claim."); McCartney v. Dunn & Conner, Inc., 386 Pa.Super. 563, 572, 563 A.2d 525, 530 (1989) ("Enforcing or complying with one's own valid contract does not constitute unjustifiable interference with another's contract."); Maynard v. Caballero, 752 S.W.2d 719, 721 (Texas App.1988).
Despite the rather obvious conclusion we reach here, it is made more significant when viewed in light of the burden of proof applicable to this claim. In Ohio, when the issue of privilege is raised, the plaintiff bears the burden of proving the absence of such privilege. See Bell v. Le-Ge, Inc., 20 Ohio App.3d 127, 132, 485 N.E.2d 282 (Cuyahoga Cty.App.1985) (Markus, J.,) ("The trial court had ample basis to rule against the counterclaim, since defendants failed to show that plaintiffs acted beyond their privilege by the reported communication."); Billingsley Box Co. v. Miami Systems Corp., 1988 WL 6531, *2 (Hamilton Cty.App.1988) ("To prove tortious interference, the plaintiff must show that the defendant, without privilege, intentionally caused the third party not to perform a contract with the plaintiff...."); Scanlon v. Gordon F. Stofer & Bro. Co., 1989 WL 69400 (Cuyahoga Cty.App.1989) (Matia, J.,) ("We find, however, that no substantial probative evidence was adduced at trial to demonstrate an absence of justification and/or privilege on the part of the defendant-appellant Stofer to advise for the termination of plaintiff-appellee Scanlon."). In an attempt to fulfill this duty, plaintiffs state:
Ford claims that the Plaintiffs are barred from asserting that Ford interfered in a contractual relationship with Graham and the Plaintiffs are basing this on language in the Sales and Service Agreement. This language states that the Defendant may "counsel" if the price to be paid appears to be too high. (Ex. 6) However, counseling is not blatantly coming out and stating "you are paying too much." It is counseling the buyer in the situation.
Ford's alleged reason for stating that the blue sky is excessive is that this could result in an unsatisfactory return on investment (Ex. 19, p. 115, lines 1-17) However, Ford knew that Mr. Graham's personal net worth approached $23,000,000, (Ex. 20). Additionally, Mr. Graham was not a newcomer to this business. He has operated a Ford dealership and car dealerships for over 30 years. (Ex. 20) Furthermore, Mr. Graham is very well educated as he has a BA in accounting and is an attorney as well. (Ex. 20) Mr. Graham is certainly a well educated consumer especially of this type of transaction.
This conduct by Ford clearly rises to the level of breach of fiduciary duty, as well as a tortuous (sic) interference with a contract and a breach of the implied warranty of good faith and fair dealing. Ford was deliberately attempting to discourage Mr. Graham from purchasing William Call's franchise.
(Plaintiff's Opposition, Docket # 74 at 19-20) This argument and proof, when viewed in a light most favorable to plaintiff, simply does not tend to prove the absence of privilege or action beyond the scope of the privilege. Contrary to plaintiffs' argument, the court *1064 believes that the Franchise clearly permits the disputed communication. It provides:
If, in the opinion of the Company, the price to be paid for such assets appears, on the basis of the average operating results of other dealers, to result in an unsatisfactory return on investment so that such prospective purchaser (1) may not remain as a dealer, or (2) may be impelled to sell COMPANY PRODUCTS at high noncompetitive prices with a probable reduction in sales volume, the Company may, without liability to the Dealer, counsel with such prospective purchaser regarding such opinions.
(Franchise Agreement, Defendant's Appendix, Exhibit 1 at 27 ¶ 24) The court must agree with Ford's statement that "to suggest that Ford has the right to `counsel', but not to speak candidly and forthrightly with a prospective purchase is absurd." (Defendant's Reply Brief, Docket # 73 at 10) Plaintiffs have presented no evidence that Ford's statements were untruthful, malicious, and did not fall within the plain language of the Franchise Agreement. As such, summary judgment, to the extent this claim is grounded on Ford's counselling, is appropriate. See e.g., Pierce Ford Sales, Inc. v. Ford Motor Co., 299 F.2d 425, 429 (2nd Cir.1962), cert. denied, 371 U.S. 829, 83 S.Ct. 24, 9 L.Ed.2d 66 (1962).
The second grounds for plaintiffs' tortious interference claim is the defendant's failure to transfer a like franchise to Graham. Plaintiff claims that the right to such a transfer arises from both Ohio Rev.Code § 4517.56(F) and from paragraph 17(b)(1) of the Franchise Agreement. On both points, plaintiffs are in error. As noted in the court's opinion disposing of count eight, § 4517.56(F) is not applicable to the instant matter. Similarly, in the instant opinion, the court has determined that plaintiffs' construction of paragraph 17(b)(1) is in error. As noted above, plaintiffs must prove, as an element of their claim, that the "defendant's conduct interfered with the business rights of plaintiffs". Juhasz, 55 Ohio App.2d at 58, 379 N.E.2d 235. Inasmuch as the business right claimed by plaintiffs has no basis in statute or in paragraph 17(b)(1) of the Franchise Agreement, Ford's conduct could not illegally interfere with that "right". The court further notes that, in the absence of such a right, Ford's conduct is unquestionably privileged. As noted by the New Mexico Court of Appeals:
The mere refusal to deal with a party cannot support a claim for tortious interference with contractual relations. Restatement (Second) of Torts § 766 comment b (1979). As long as the Bank merely refused to enter into business relations with plaintiffs and left Guardian to make its own decision on what to do about the Bank's refusal, plaintiffs have no cause of action. Restatement, supra, comment 1. As stated in Restatement of Torts § 762 (1939): One who causes intended or unintended harm to another merely by refusing to enter into a business relations with the other or to continue a business relation terminable at his will in not liable for that harm if the refusal is not (a) a breach of the actor's duty to the other arising from the nature of the actor's business or from a legislative enactment, or (b) a means of accomplishing an illegal effect on competition, or (c) part of a concerted refusal by a combination of persons of which he is a member.
This section was omitted from the Restatement, supra, Section 766, because the American Law Institute felt that the principles stated were more appropriately located in the field of trade regulation than in tort. Restatement, supra, Division 9, Introductory Note, at 2. It is still a viable statement of the law and continues to be cited by courts. E.g. Vermont Nat'l Bank v. Dowrick, 144 Vt. 504, 512, 481 A.2d 396, 400 n. 1 (1984), and cases cited therein.
In our case, none of the above three conditions can be met, and the Bank was free to reject plaintiffs as mortgagors. The Supreme Court of Vermont, in Dowrick, referring to Restatement, supra, Section 762, said: "The rationale for this rule `rests upon fundamental assumptions in free business enterprise. Each business enterprise must be free to select its business relations in its own interest.'" Id, comment a.
*1065 Quintana v. First Interstate Bank of Albuquerque, 105 N.M. 784, 786, 737 P.2d 896, 898 (1987), cert. denied, 105 N.M. 781, 737 P.2d 893 (1987). The same observation is germane to the case at bar.

D. Counts Four and Five
The defendant has moved for summary judgment on counts four and five on the basis that those counts fail to state a claim upon which relief may be granted. The complaint provides:
COUNT FOUR
14. The Plaintiff restates all of its foregoing allegations.
15. The acts and omissions of the Defendant wilful, wanton and malicious and are such that they to as entitle the Plaintiff to treble damages.
COUNT FIVE
16. The Plaintiff restates all of its foregoing allegations.
17. The acts and omissions of Defendant, in tort and in breach of contract and violation of statutes is such as to entitle the Plaintiff double damages, treble damages, punitive damages and/or attorneys fees in a sum to be determined at trial.
(sic) (Amended Complaint at ¶¶ 14-17) While the court surmises that plaintiffs have not stated a claim in these counts, the sufficiency of the allegations contained therein has been effectively rendered moot.
In its opposition to the defendant's motion, plaintiffs state:
Count four, paragraph fourteen restates all of the allegations in paragraphs one through thirteen. (Ex. 21) Similarly, count five, paragraph seventeen, restates all of the allegations in paragraph one through sixteen. Therefore count four states that all of the allegations in paragraphs one through thirteen were willful, wanton and malicious, and count five states that all of the allegations in paragraphs one through fifteen are tort, contract or statute violations. Based on this the Plaintiffs are entitled to double, treble, punitive and/or attorney fees. Therefore Defendant's Motion for Summary Judgement (sic) must be denied.
(Plaintiffs' Opposition, Docket # 74 at 22) This statement makes clear that no independent cause of action is alleged in these counts; they are simply additional allegations purportedly warranting enhanced damages under the substantive claims advanced in the prior counts. Inasmuch as the prior counts have been found meritless, plaintiffs "claims" in counts four and five are rendered equally ineffective. For the sake of simplicity, the court shall grant summary judgment on these "claims".

E. Count Seven
In count seven, as noted above, plaintiffs contend that Ford's failure to timely approve the sale of the franchise to Graham violated Section 4517.56 of the Ohio Revised Code and other provisions of Chapter 4517 of the Code. The parties have hotly disputed general issues, such as notice and the statute of limitations, which relate to § 4517.56matters which the court has indicated lie in defendant's favor. (See Order Addressing Count Eight at 23-25). Nevertheless, the court's further examination of these documents is rendered moot by its reading of § 4517.56. This court can find no language in that section which could support a claim for tardy failure to approve the sale of a franchise.[12] Indeed, the court can find *1066 no language in chapter 4517 which could support such a claim. As such, the court believes summary judgment on this final claim is appropriate.

IV. Conclusion
As the foregoing discussion indicates, no evidentiary presentation on the part of plaintiffs precludes summary judgment on counts one, two, three, four, five and seven. Accordingly, the defendant's motion for summary judgment on these counts, Docket # 44, is GRANTED in its entirety.
IT IS SO ORDERED.
NOTES
[1]  The Court must note that plaintiffs rely upon no other portion of the Franchise Agreement for their breach of contract claim. Nevertheless, the court must note that it has considered and rejected another clause cited in plaintiffs' briefs. As indicated in the Order Addressing Count Eight, the Agreement's preamble, after explicitly stating that the contract was personal, not assignable, and is valid as between Ford and signatory dealer only, concludes with the following paragraph:

The Dealer shall give the Company prior notice of any proposed change in the said ownership or managerial authority, and immediate notice of the death or incapacity of such person. No such change or notice, and no assignment of this agreement or any right or interest herein, shall be effective against the Company unless and until embodied in an appropriate amendment to or assignment of this agreement, as the case may be, duly executed and delivered by the Company and the Dealer. The Company shall not unreasonably withhold its consent to such change.
(Franchise Agreement, at iv ¶ F) The court does not believe this paragraph gives foundation for plaintiffs' claim for several reasons.
First, the intent of paragraph F is clearthe agreement was personal between the parties. Second, the Company may not unreasonably withhold its consent to "such change". A plain reading of foregoing quote indicates that the "change" must be in the ownership or managerial authority of the Dealer. The term "such change" is twice used in the foregoing clause. The term "such" is "used to avoid repetition of descriptive term" Webster's Third New Int'l Dictionary (unabridged) 2283 (1986) Thus, "such change" must be the "change" previously described, to wit: change in the ownership or management. Third and finally, this construction is harmonious with a plain reading of ¶ 17(b)(1) which, as noted infra, only prohibits unreasonable consent to change in the ownership or management "as set forth in paragraph F" (Franchise Agreement at 15 ¶ 17(b)(1)). Thus, at best, the contract's preamble only permits assignment with Ford's consenta consent which is solely reserved to Ford's discretion, and which could not support a breach of contract claim.
[2]  The court notes that this is not a preferred method of writing disjunctively. If a writer uses a conjunction such as "or", only a comma need be inserted. If the writer wishes to dispense with the conjunction, a semi-colon is inserted between the independent phrases. See W. Strunk & E.B. White, Elements of Style 5-6 (3d. ed. 1979). Despite some problems with style, however, the court believes it cannot ignore the obvious intent of the use of both the disjunctive conjunction "or" and the use of a semi-colon. They are a veritable declaration of independent clauses.
[3]  Even if plaintiffs were to claim, contrary to their discovery and motion position, that they base their claim upon the third clause of subparagraph (b)(1), it seems clear that summary judgment on such a claim would necessarily be compelled. The third clause only applies to "any change ... in the direct or indirect ownership or operating management of the Dealer as set forth in paragraph F". Paragraph F states that the principal owner of the "Dealer" (defined at page i of the Agreement as "Bill Call Ford, Inc.") is William J. Call and that full managerial authority for the operation of the dealership would be held by him. In December 1983, the name of the dealership was changed to Mid-Ohio Ford, Inc., with prior approval of Ford. (Call Affidavit, Docket # 65 Exhibit A at ¶ 4) Mid-Ohio Ford's sole shareholder is Call Investments, whose sole shareholder is William Call. (Call Depo. at 10-11) Thus, there has been no change in the direct or indirect ownership or operating management of the Dealer as set forth in paragraph F of the Franchise Agreement. The transaction between plaintiffs and Graham was not a stock transaction but was, on its face, a simple asset purchase. (See Plaintiffs Opposition, Docket # 74, Exhibit 6). In other words, the third clause of subparagraph (1) is simply not applicable to the transaction plaintiffs characterize as a "transfer".
[4]  See infra footnote 5.
[5]  The parties have devoted many pages of brief to the issue of who bears the burden of proof on the alleged violations of the Ohio Revised Code. That issue arises due to Ford's anticipation of such an argument by Call Ford based upon the language of § 4517.65(D) of the Ohio Revised Code. That section provides:

The burden of proof to establish the franchisor's good cause shall be on the franchisor in protests and actions instituted under this section and sections 4517.50, 4517.54, and 4517.56 of the Revised Code.
Ohio Rev.Code § 4517.65(D) (emphasis added). This section is irrelevant to plaintiffs' second cause of action. The issue here is "good faith", not "good cause" and the only place the burden is shifted to the franchisor is in relation to actions necessitating proof of "good cause" brought pursuant to the substantive provisions of §§ 4517.65(B), 4517.50, 4517.54, and 4517.56  none of which are implicated in plaintiffs' second count. The burden of proof, as indicated in Earl Evans, remains on the plaintiffs to prove their case.
[6]  Ford argues that the court should apply the definition of "good faith" in effect at the time the parties entered into the Franchise Agreement. The court believes Ford is mistaken. The Lake County Court of Appeals has held (well before the instant motion) that the 1987 definition applicable via § 4517.59(A) "applies prospectively to all existing franchises". Earl Evans Chevrolet v. Gen'l Motors Corp., 74 Ohio App.3d 266, 272, 598 N.E.2d 1187 (1991). As this court has previously noted, when:

we are the beneficiaries of an opinion by an Ohio appellate court ... [we] are obligated to follow its precedent absent persuasive countervailing arguments which convince this court that the state's highest court would rule to the contrary.
New York Life Ins. Co. v. Wittman, 813 F.Supp. 1287, 1295 (N.D. Ohio 1993) (findings of fact and conclusions of law). Inasmuch as the Ohio appeals court based its conclusion on the retroactive language contained in § 4517.59, the court believes that any argument that the judges were incorrect, even if one had been presented, would be quite unpersuasive. Nevertheless, the Earl Evans opinion teaches that the definitional change engendered by the '87 amendment, while superficially dramatic, was not so in fact. The 1980 version of the Code defined "good faith" as:
the duty of any party to any franchise, and all officers, employees, or agents thereof, to act in a fair and equitable manner toward each other so as to guarantee the one party freedom from coercion, intimidation, or threats of coercion or intimidation from the other party; provided, however, that recommendation, endorsement, exposition, persuasion, urging, or argument shall not constitute a lack of good faith.
Ohio Rev.Code § 4517.01(BB) (1980). In Earl Evans, the trial court erred by giving the '87 definition to the jury. On appeal, General Motors argued that under the '80 definition, one could only breach the duty of good faith by coercion and/or intimidation, and that the '87 amendment lowered this standard to its prejudice. While the appeals court agreed that coercion was a necessary element under the 1980 definition, the court disagreed with GM's argued result. The court noted that, unlike the federal law, Ohio's 1980 law provided a broad definition of coercion, to wit: "the failure to act in a fair and equitable manner in performing or complying with any terms or provisions of the franchise or agreement" Ohio Rev.Code § 4517.01(CC) (1980) Thus, the appeals court concluded that "there is no substantive difference between the appropriate definition of `good faith' which was in effect at the time of the alleged conduct and the 1987 amendment's definition of `good faith' which was erroneously given to the jury." Earl Evans, 74 Ohio App.3d at 274, 598 N.E.2d 1187. The Earl Evans opinion teaches us another lesson about the Ohio law, to wit: while the Ohio act and the federal act are analogous, they are clearly not identical in form or substance. This court will therefore follow Ohio law relating to good faith.
[7]  Although the court accepts the mailing of this letter as a disputed issue of fact, the undersigned must note that Ford's position, in light of conditional approval it granted only a week or so later, is logically probable.
[8]  Colonial Ford, Inc. v. Ford Motor Co., 592 F.2d 1126 (10th Cir.1979), cert. denied, 444 U.S. 837, 100 S.Ct. 73, 62 L.Ed.2d 48 (1979).
[9]  The court would note, that even in the absence of Ford's contractual rights, plaintiffs have presented no evidence that Ford was not honest in fact or acted in a manner contrary to reasonable commercial standards. Thus, summary judgment would also be appropriate on that ground.
[10]  This citation is erroneous, plaintiffs' quoted language is found in § 4517.56(F) of the Ohio Revised Code.
[11]  The plaintiffs argue that because the Juhasz opinion stated that these issues "should be submitted to the jury", "[d]efendant's Motion for Summary Judgment must be denied." (Plaintiffs' Opposition, Docket # 74 at 20). The court disagrees. Plaintiffs confuse the concepts of questions of fact with issues of fact. Questions of fact, such as those presented here, as opposed to questions of law, are submitted to the jury. On summary judgment, however, when there is no genuine issue as to the facts, or no evidence offered to support a finding of or dispute as to a material fact, submission to the jury is unnecessary.
[12]  The only time-frame for an approval is found in Section 4517.56. That section provides, in pertinent part, the following:

The franchisor shall provide the franchisee and the prospective transferee with written notice by certified mail of any refusal to approve a sale or transfer of the business and assets or all the business and assets or a controlling interest in the capital stock of a new motor vehicle dealer within thirty days of receipt of the written notice advising of the proposed transfer. The notice shall specify the objective criteria used to evaluate the prospective transferee and the criteria which the transferee failed to meet.
Ohio Rev.Code § 4517.56(B) It is not disputed that plaintiff did not give the defendant the written notice specified in § 4517.56(A). (See Defendant's Motion, Docket # 44 at 19; Plaintiff's Opposition, Docket # 74 at 23-25). Regardless, within thirty days of learning of the Buy/Sell agreement between Bill Call Ford and Graham, both plaintiff and Graham received a letter which stated that "for the purpose of Section 4517.56 of the Ohio Revised Code, the Company objects to Mr. Graham's application to be the replacement dealer in Mansfield." (Plaintiff's Opposition, Docket # 74, Exhibits 22, 23).
Further, if plaintiff in fact contends that § 4517.56 somehow engrafts substantive duties which contravene its contract with Ford, that section may not be applied to effect such a contravention. (See Court's Order Addressing Count Eight).


563 So.2d 824 (1990)
Felicia BLAIR, Appellant,
v.
STATE of Florida, Appellee.
No. 87-03264.
District Court of Appeal of Florida, Second District.
July 6, 1990.
James Marion Moorman, Public Defender and Kevin Briggs, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
*825 RYDER, Acting Chief Judge.
Felicia Blair challenges the trial court's order denying her motion to suppress the cocaine found on her. Because we hold that the police officer had no founded suspicion to detain and search Blair, we reverse.
Blair was charged with possession of cocaine. She filed a motion to suppress, arguing that an illegal search uncovered the seized cocaine. The trial court denied this motion. Blair entered a no contest plea reserving the right to appeal the motion to suppress. The trial court adjudicated Blair guilty and sentenced her to two years of community control.
On March 31, 1987, Officer David Livingston stopped a motor vehicle for speeding. Blair was a passenger in the car. When the driver failed to produce the registration for the vehicle, Livingston asked for permission to search the automobile. The driver consented to the search. All occupants of the vehicle were ordered to exit the car. As Blair got out of the automobile, Livingston noticed a bulge in the front of her pants. Livingston found no contraband in the car.
After searching both male occupants of the car, Livingston read Miranda rights to Blair and explained the interdiction program to her. Livingston later testified that he did not believe that Blair was armed or dangerous and added that he did not ask for Blair's consent to a search of her person. Livingston testified he told Blair, "If you have rock cocaine, go ahead and pull it out." He further advised Blair that if she did not pull the cocaine out, he would have a female officer search her. After Livingston asked Blair to explain the bulge in her pants, she pulled out two bags containing cocaine.
In order for the temporary detention of Blair to be lawful, the officer must have a "founded" suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Livingston found no contraband in the stopped vehicle or on the other occupants. A "bare" suspicion of illegal activity cannot support a stop. Freeman v. State, 433 So.2d 9 (Fla. 2d DCA 1983). Livingston did not have a "founded" suspicion that Blair was involved in criminal conduct, possessed a weapon or was, in fact, dangerous. Thus, the detention of Blair after searching the car was illegal.
Livingston's conduct in demanding Blair to pull the cocaine out of her pants constituted a search. See Wallace v. State, 540 So.2d 254 (Fla. 4th DCA 1989). The situation confronting Livingston had stabilized, and he did not feel he was in danger, therefore, he had no probable cause to conduct a search. Thomas v. State, 533 So.2d 861 (Fla. 2d DCA 1988). Observing the bulge in Blair's pants does not amount to probable cause which would justify a search. See Gray v. State, 550 So.2d 540 (Fla. 4th DCA 1989). Because Livingston had no probable cause to search Blair and she did not consent to the search, the cocaine was illegally seized. The judgment and sentence are reversed and set aside and the case is remanded for entry of an order granting the motion to suppress and for further proceedings consistent with this opinion.
Reversed and remanded.
HALL and ALTENBERND, JJ. concur.


361 F.2d 74
Roy A. SMITH, Jr., Appellant,v.UNITED STATES of America, Appellee.
No. 19663.
United States Court of Appeals District of Columbia Circuit.
Argued February 16, 1966.
Decided May 6, 1966.

Mr. John T. Miller, Jr., Washington, D. C. (appointed by this court) for appellant.
Mr. Henry J. Monahan, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and David Epstein, Asst. U. S. Attys., were on the brief, for appellee.
Before BAZELON, Chief Judge, and FAHY and McGOWAN, Circuit Judges.
BAZELON, Chief Judge:

1
Appellant was convicted of housebreaking and sentenced to imprisonment from two to eight years. Fourteen days after the jury announced its verdict, appellant filed, pro se, a motion for new trial on the basis of newly discovered evidence. The trial judge summarily denied this motion.

2
Appellant was convicted on the testimony of two police officers who testified that on December 21, 1964, they noticed a red Chevrolet convertible with white top "just driving around." They followed the car into a service station where both recognized appellant as one of the passengers. At about 10 a. m. the following morning, they noticed this car parked in front of an apartment house. Upon investigation, one officer encountered a man he identified as appellant who "had opened the door [of one of the apartments] and was coming out and pulled the door shut behind him." Both officers testified that appellant then got into the red Chevrolet and drove away. The officers subsequently discovered that the apartment appellant left had been forcibly entered and ransacked.

3
Appellant and his wife testified that they spent the morning of the 22d waiting for appellant's friend — the owner of the red Chevrolet — to return to his home so that they could borrow his car. At about noon, appellant and his wife allegedly left the house, appellant's friend not having returned.

4
One week before trial appellant filed an affidavit in support of his motion for issuance of subpoenas for two witnesses, alleging that they would testify "that I was not at the scene of the crime" and that their evidence would prove "that I could not have committed the crime." One of the witnesses sought was the owner of the red Chevrolet. On the morning of trial, the trial judge, at the request of appellant's counsel, issued a forthwith subpoena against the owner of the car. The subpoena was returned with the notation "tried residence — no response" and the trial took place without either of appellant's witnesses testifying.

5
Two weeks after his conviction, appellant filed his pro se motion for new trial under Rule 33 alleging: "I have two whom I have just located. Who will testify and give my wife [sic] testimony more wait [sic] than the Court did. * * * I have informed my lawyer of this action and he failed to reply to any of my letters." From the record it appears that the motion was denied without further inquiry on the same day.

6
A trial judge is not required in every case to hold a hearing before ruling on a motion for new trial.1 Nor will denial of such a motion be disturbed on appeal except for an abuse of discretion or an erroneous application of law.2 The Supreme Court has stated:

7
While the appellate court might intervene when the findings of fact are wholly unsupported by evidence, * * * it should never do so where it does not clearly appear that the findings are not supported by any evidence. [United States v. Johnson, 327 U.S. 106, 111-112, 66 S.Ct. 464, 466, 90 L.Ed. 562 (1946).]

8
But this limited review requires in this case a record upon which such review can be had. The record does not show who appellant's witnesses were or what led the trial judge to deny appellant's motion without further inquiry. Appellant was then proceeding pro se. Moreover on the basis of representations to us by counsel appointed by this court, after investigation by him, it clearly appears that the case should be remanded to the trial court3 for a consideration de novo of appellant's motion.4

9
So ordered.

Notes:

1
 Ewing v. United States, 77 U.S.App.D.C. 14, 19, 135 F.2d 633, 638 (1942), cert. denied, 318 U.S. 776, 63 S.Ct. 829, 87 L. Ed. 1145 (1943); Lyles v. United States, 272 F.2d 910, 912 (5th Cir. 1959)

2
 Thompson v. United States, 88 U.S.App. D.C. 235, 188 F.2d 652 (1951); McDonnel v. United States, 81 U.S.App.D.C. 123, 155 F.2d 297

3
 The writer of this opinion would remand without resort to the representations of counsel

4
 Appellant also urges reversal on the grounds that instructions given were erroneous and he was denied his sixth amendment right to compulsory process. Since a new trial may be granted, and these claims may not arise again, we do not consider them now. We are constrained, however, to caution the government concerning its use of appellant's police record to establish a prior conviction which was later reversed on appeal