concurring in part and dissenting in part: I respectfully concur in part and dissent in part.
I concur with the majority’s opinion affirming the trial court’s dismissal of the tortious interference with contract claim.
I dissent from tire majority’s reversal of summary judgment on the breach of fiduciary claim. The majority claim that a fiduciary relationship existed between Stanley Bank (Bank) and Linden Place because “Linden Place, though not a customer of the bank, was told by its executive vice president that Linden Place should not be alarmed about the situation and that expenditures would be monitored carefully in the future.”
The majority rely on Dugan v. First Nat’l Bank in Wichita, 227 Kan. 201, 208, 606 P.2d 1009 (1980), claiming that a fiduciary *515relationship may arise “in situations in which ‘the bank had dealt directly with the customer regarding the matters involved in the litigation, and the bank had knowledge of the reliance and confidence of the customer; in some instances the bank stood to profit from non-disclosure to the customer.’ ” Here we are not dealing with a bank and its own customer. We are dealing with a bank and a third party that had no relationship with the Bank. There is no fact or legal basis for the conclusion that a fiduciary relationship existed between Linden Place and the Bank.
Linden Place argues that the Bank promised to monitor Williams’ loan proceeds for Linden Place. However, the Bank never said that; it said it would investigate the matter and report back to Linden Place. Linden Place contends a fiduciary relationship was created between it and the Bank when the Bank said it would monitor Williams’ loan proceeds. They further contend that a breach of that relationship occurred when the Bank failed to stop Williams from spending tire loan proceeds on projects other than Linden Place’s model homes.
Before a determination can be made on whether the Bank breached a fiduciary duty to Linden Place, we must establish whether there was a fiduciary relationship between the Bank and Linden Place. A fiduciary relationship exists where there has been a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one reposing the confidence. Reebles, Inc. v. Bank of America, N.A., 29 Kan. App. 2d 205, 208, 25 P.3d 871, rev. denied 272 Kan. 1419 (2001).
Some indicia of a fiduciary relationship include the acting of one party for another, the exercising of influence by one party over another, the reposing of confidence by one party in another, the inequity of the parties, and the dependence of one party on another. Morrison v. Watkins, 20 Kan. App. 2d 411, 422, 889 P.2d 140, rev. denied 257 Kan. 1092 (1995).
The existence or nonexistence of a fiduciary relationship is an evidentiary question or finding of fact which must be determined from the facts in each case; therefore, the scope of appellate review is to ascertain only whether there is substantial competent evidence *516to support the finding of the trial court. In re Estate of Bennett, 19 Kan. App. 2d 154, 166-67, 865 P.2d 1062 (1993), rev. denied 254 Kan. 1007 (1994).
First of all, Linden Place never reposed confidence in the Bank. All the contacts and contracts the Bank had were with Williams. The real estate contract between Linden Place and Williams never mentions the Bank. None of the mortgages obtained by Williams from the Bank ever mention Linden Place.
The only evidence in the record on appeal even tangentially related to an agreement between Linden Place and the Bank is Harder s affidavit. Even if we take every statement in Harder’s affidavit as true, as we are required to do, there is nothing in the affidavit to indicate that Linden Place had any agreement with the Bank. Instead, the evidence is that Harder phoned the Bank and was told that the Bank would investigate. Nothing about that assurance from the Bank implies that the Bank agreed to protect Linden Place’s interest in the properties.
There is no evidence in the record on appeal which would lead any reasonable observer to determine that the Bank had any fiduciary duty to Linden Place. Linden Place was not a party to any of the dealings between the Bank and Williams. Accordingly, it is difficult to imagine how the Bank could owe Linden Place any duty. For that reason, the trial court did not err by granting the Bank’s motion for summary judgment on the issue of breach of a fiduciary relationship, and I would affirm the trial court on this issue.