UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-60810
Summary Calendar
WILLIAM D. MANN AND DOROTHY MANN,
Plaintiffs-Appellants,
VERSUS
AMERICAN FEDERATED LIFE INSURANCE COMPANY,
A CORPORATION; AMERICAN FEDERATED INSURANCE
COMPANY, A CORPORATION; TOWER LOAN OF MISSISSIPPI,
INC., A CORPORATION; AND JACK R. LEE, AN INDIVIDUAL,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Mississippi,
Jackson Division
(3:96-CV-741-LN)
June 2, 1998
Before REYNALDO G. GARZA, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
The case before us is an appeal from a decision of the
United States District Court for the Southern District of
Mississippi, the Honorable Tom S. Lee, presiding. In this
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
decision, the district court granted summary judgment in favor of
the Defendants-Appellees (collectively, “the Appellees”),
American Federated Life Insurance Company (“AFLIC”), American
Federated Insurance Company (“AFIC”), Tower Loan of Mississippi
(“Tower Loan”), and Jack R. Lee (“Lee”). The Plaintiffs-
Appellants, William D. Mann and Dorothy Mann (“the Manns”),
timely appealed, and the matter now lies before this panel.
Background
The controversy underlying the case at bar stems from two
loans made by AFLIC and AFIC to the Manns. In February of 1994,
AFLIC loaned William Mann (“Mann”) $380,000 to purchase the Alta
Woods Apartments, and in July of that year, AFIC loaned Mann
$672,500 to purchase the Dolphin South Apartments (these
apartments will collectively be referred to as “the apartment
properties”). The instruments for these transactions were
drafted by the Manns’ attorney. During the early 1990s, the
Appellees made other transactions with the Manns, including a
residential loan. The loans for the Alta Woods and Dolphin South
properties are at issue in the suit at bar, though it is
undisputed that the Manns were in default under the terms of
certain other loans not at issue in this case.
By the spring of 1996, Mann was in default on the monthly
payments on the deed of trust covering the residence. Mann also
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failed to pay the 1995 ad valorem taxes on the apartment
properties, but he was current on his monthly payments to AFLIC
and AFIC for these properties. AFLIC and AFIC instituted
foreclosure on the apartment properties, and threatened
foreclosure on the residence. The Manns offered to deed the
house to AFLIC in lieu of foreclosure, and this offer was
refused. The Appellees asked that the Manns convey deeds in lieu
of foreclosure for the apartment properties and pay the property
taxes. The Manns did not meet the Appellees’ demands, and filed
for bankruptcy protection under Chapter 11 of the Bankruptcy
Code, in April of 1996.1 On August 26, 1996, the Manns filed
suit against the Appellees in the Circuit Court of the First
Judicial District of Hinds County. The Hinds County suit was
removed to the United States District Court for the Southern
District of Mississippi, and is the suit underlying the appeal at
bar.
The Manns alleged causes of action for breach of the implied
duty of good faith and fair dealing, breach of fiduciary duty,
intentional infliction of emotional distress, and negligent
infliction of emotional distress. The Manns claimed that these
causes of action are based on what they characterize as egregious
1
In the bankruptcy proceedings, the court permitted the stay
to be lifted so AFLIC could institute foreclosure proceedings on
the Alta Woods Apartments. That foreclosure has been accomplished.
The bankruptcy court denied AFIC’s motion to lift the stay so it
could foreclose on the Dolphin South Apartments, however.
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overreaching on the part of the Appellees with regard to the
transactions at issue.2
The Appellees moved for summary judgment in their favor.
Judge Lee granted summary judgment in favor of the Appellees on
October 20, 1997, and a Final Judgment of Dismissal was entered
on November 8, 1997. The Manns timely appealed. In addition to
their previous claims, the Manns claim that the district court
erred in failing to view the evidence in the light most favorable
to them, and improperly made determinations of credibility in
favor of the Appellees. The matter now lies before us.
Standard of Review
The standard of review for the granting of a motion for
summary judgment is de novo. BellSouth Telecommunications, Inc.
v. Johnson Bros. Group, 106 F.3d 119, 122 (5th Cir. 1997);
Guillory v. Domtar Industries, Inc., 95 F.3d 1320, 1326 (5th Cir.
1996). Summary judgment is warranted when “the pleadings,
depositions, interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue
as to any material fact.” FED.R.CIV.P. 56(c); Celotex v.
2
The Manns also sued Jack Lee and Tower Loan. Jack Lee was
the chief executive officer of First Tower Corporation, which owned
Tower Loan, which in turn owned AFLIC and AFIC. The Manns take the
position that the decisions of AFLIC and AFIC were ultimately those
of Lee and Tower Loan. We do not address this issue, and neither
did the district court.
4
Catrett, 477 US 317, 322 (1986).
Analysis
The Mississippi Supreme Court has stated that all contracts
contain an implied covenant of good faith and fair dealing in the
performance and enforcement of the terms of the contract. Morris
v. Macione, 546 So.2d 969, 971 (Miss. 1989); UHS-Qualicare v.
Gulf Coast Community Hospital, 525 So.2d 746, 757 (Miss. 1987).
The concept of good faith and fair dealing is based on notions of
fairness. It requires the “faithfulness of an agreed purpose
between two parties, a purpose which is consistent with the
justified expectations of the other party,” and may require
affirmative action on a party’s part. Cenac v. Murry, 609 So.2d
1257, 1272 (Miss. 1982). Bad faith is “characterized by some
conduct which violates standards of decency, fairness, or
reasonableness.” Id. The duty of good faith and fair dealing
has been applied to mortgages. Merchants & Planters Bank v.
Williamson, 691 So.2d 398, 404 (Miss. 1997).
The Manns argue that the Appellees breached the duty of good
faith and fair dealing by their actions in this matter. We
disagree. First of all, any discussion of the Appellees’ pattern
of conduct is irrelevant because the terms of the contracts
(which were drafted by the Manns’ attorney) were unambiguous.
See Cunningham & Co., Inc. v. Consolidated Realty Mgmt., Inc.,
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803 F.2d 840, 843 (5th Cir. 1986). Also, there is no evidence of
a course of conduct on the part of the Appellees which would
reasonably allow the Manns to think that the Appellees would not
foreclose on the apartment properties if the Manns failed to pay
their taxes.3 Further, there is a Non-Waiver Provision in each
of the Deeds of Trust for the apartment properties which states
that forbearance by the secured party in exercising a privilege,
option, or remedy does not constitute waiver of such privileges,
options, or remedies.
Also, the Appellees’ actions were hardly the sort of
unreasonable, indecent, and unfair actions which would constitute
a breach of the duties of good faith and fair dealing. In Cenac,
the case relied on by the Manns, the defendant Murry embarked on
a bizarre, abusive, aberrant, and intimidating pattern of
behavior after selling a country store to the Cenacs which “made
their life a living hell.” Cenac, 609 So.2d at 1272. Murry’s
behavior included firing guns at the Cenacs, insulting and
mocking them and their prospective customers, following and
videotaping the Cenacs, and roaming shirtless in the neighboring
yard while pounding his chest in an ape-like manner and engaging
“in a boisterous ‘ho, ho, ho’ laughter which [had become Murry’s]
3
The Manns discuss certain transactions which preceded the
transactions at issue in this case at some length in their briefs.
These transactions are irrelevant to the case at bar, and we saw no
pattern or course of conduct on the part of the Appellees in the
transactions described by the Manns.
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trademark.” Id. at 1262-66. All of this was done to drive the
Cenacs from the store they’d purchased from Murry, allowing him
to foreclose after pocketing the up-front payments. Id. at 1272-
73.
The Appellees’ behavior was not even close to that of Murry
in Cenac. In fact, their behavior was reasonable, and not
uncommon. They were acting as typical creditors would when a
debtor defaults on the terms of a loan. They were not obligated
to take the Manns’ offers, and the dicta in Williamson which
states that a bank is “not permitted to act in whatever manner it
deems to be in its best interests” does not help the Manns.
Williamson, 691 So.2d at 404. Indeed, in Williamson, the court
held that the bank did not breach the duty of good faith and fair
dealing in its foreclosure activities. Id. at 406. The
Appellees acted reasonably and in accordance with the terms of
the arrangements they had made with the Manns.
The Manns also made a claim of breach of fiduciary duty by
the Appellees. This claim fails as well. There was no fiduciary
duty to begin with. The terms of the promissory notes did not
create such an arrangement, and the terms employed in a contract
are the best source for ascertaining the intent of the parties.
See Newell v. Hinton, 556 So.2d 1037, 1042 (Miss. 1990). The
Manns’ argument that these transactions were joint-ventures is
not supported by the terms of the agreements. Also, the
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Appellees had no “dominion and control” over the Manns which
might create such a fiduciary relationship. See Williamson, 691
So.2d at 404. There was no fiduciary duty to begin with in this
matter, so there was no breach of fiduciary duty.
The Manns’ claims of intentional infliction of emotional
distress also fail, and the district court was correct in not
sending this issue to the jury. For this claim to succeed, the
Manns must show that the Appellees’ conduct was “so outrageous in
character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.” White v. Walker, 950 F.2d
972, 978 (5th Cir. 1991) (citing Lyons v. Zale Jewelry Company,
150 So.2d 154, 158 (Miss. 1963). Mann has failed to show how the
Appellees’ decision to follow the terms of a legitimate contract
constitutes an intentional infliction of emotional distress.
This claim fails.
The Manns also argue, both in separate sections of their
briefs and as a general background to this appeal, that the
district court erred in making credibility determinations against
them, and that it generally did not look upon the issues in the
best light to them. They do not cite much caselaw in support of
their contentions, and essentially, they are complaining that the
district court, upon review of the information at hand, erred in
holding that there were no genuine issues of material fact
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because of an alleged lack of information before the court.
Under the Manns’ rather unique interpretation of the proper role
of the judiciary in matters such as this, few, if any summary
judgment motions would pass muster. All one would have to do is
utter a few talismanic phrases like “fiduciary duty” to create a
fact issue, and prevent summary judgment. We will not fall into
this trap. We see no evidence of error or improper behavior on
Judge Lee’s part with regard to how he arrived at his decision.
The Manns did not address certain issues in their original
brief, including the claim for negligent infliction of emotional
distress, any individual claims of Dorothy Mann, or the liability
of Lee or Tower Loan. Failure to brief issues constitutes waiver
and abandonment of such issues. See Johnson v. Sawyer, 120 F.3d
1307, 1315 (5th Cir. 1996).
Conclusion
Based on the foregoing, we find no reversible error in the
decision of the district court, which granted summary judgment in
favor of the Defendants-Appellees. Therefore, we AFFIRM the
decision of the district court.
AFFIRMED.
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