*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this opinion should not be published and is not precedent except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.

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
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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 PlaintiffsAppellants, 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
 

1In 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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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
 

2The 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.

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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.
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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.,
 

3The 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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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]
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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
9

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.