UNITED STATES COURT OF APPEALS

For the Fifth Circuit

______________________________

No. 95-11209

Herb Marchman, Individually and as Assignee of American Nut Corp.,

Plaintiff/Appellant/Cross-Appellee,

versus

NationsBank of Texas, N.A., formerly known as NCNB Texas National

Bank,

Defendant/Appellee/Cross-Appellant.

* * * * * * *

______________________________

No. 96-10593

Herb Marchman, Individually and as Assignee of American Nut Corp.,

Plaintiff-Appellant,

versus

NationsBank of Texas, N.A., formerly known as NCNB Texas National

Bank,

Defendant-Appellee.

Appeal from the United States District Court

For the Northern District of Texas
* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

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(3:94-CV-0590-H)

January 24, 1997

Before POLITZ, Chief Judge, REAVLEY and DENNIS, Circuit Judges.

PER CURIAM:*

In this case consolidated on appeal,

Plaintiff/Appellant/Cross-Appellee Herb Marchman (individually and

as assignee of American Nut Corporation (“ANC”)) appeals a final

judgment entered by the district court on November 29, 1995,

dismissing his suit with prejudice. In addition, Marchman appeals

three specific orders of the district court: (1) an order of

September 11, 1995, to the extent that it granted summary judgment

dismissing all of Marchman’s claims which the New Mexico supreme

court had previously dismissed for lack of standing; (2) an order

of November 29, 1995, which granted summary judgment in favor of

the defendant on Marchman’s claims of negligence, fraud and

intentional misrepresentation, and breach of the duty of good faith

and fair dealing; and, (3) an order of May 9, 1996, denying

Marchman’s objection to an award of costs against him as untimely.

Defendant/Appellee/Cross-Appellant NationsBank of Texas, N.A.,

f/k/a NCNB Texas National Bank (“NationsBank”), appeals the ruling

of September 11 claiming that the district court erred to the

extent that it found Marchman’s claims as assignee of ANC were not
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barred.

NationsBank moved for summary judgment on June 22, 1995,

asserting that the entire action in Texas was barred by the

doctrine of res judicata as a result of a suit that had previously

been filed against NationsBank in New Mexico state court. On

September 11, 1995, the district court denied summary judgment

based on res judicata but held that Marchman, as an individual, was

precluded from suing NationsBank “on all claims as to which the New

Mexico Supreme Court ruled that Marchman lacked standing to sue

NationsBank.” However, the district court held that the New Mexico

decision would not affect Marchman’s standing to sue as assignee of

ANC.

In its order signed November 29, the court granted

NationsBank’s motions for summary judgment on Marchman’s tort

claims. The court did not elaborate on its rationale in the order

itself but did indicate that it was ruling “for reasons stated from

the bench.”

During the summary judgment proceeding, the district court

denied the negligence claims based in part on its finding that

NationsBank did not owe a common law duty outside of the

contractual relationship between the parties. The court also

concluded that even had it found a duty, it saw no evidence of

breach and no causal relationship between a breach and the damages

suffered.
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Regarding the claims of fraud or intentional

misrepresentation, we agree with the district court’s implicit

finding that there was no evidence from which a reasonable judge or

juror could infer that the representations were known to be false

when made or that they were made recklessly without regard to

truth. Furthermore, the court found that Marchman failed to

present evidence from which a reasonable trier could conclude that

ANC justifiably relied on NationsBank’s representations. We

believe that the district court correctly applied the “justifiable

reliance” standard although the judge did refer at one point to

“reasonable reliance.” Moreover, we conclude that there was no

submissible issue of justifiable reliance from our de novo review

of the record. The district court’s finding and our own

effectively dispose of Marchman’s negligent misrepresentation

claims also, because a finding of unjustifiable reliance on a claim

of fraudulent conduct “precludes a negligent misrepresentation

claim based on the same conduct.” Haralson v. E.F. Hutton Group,

Inc., 919 F.2d 1014, 1026 n.5 (5th Cir. 1990). 

Finally, the court rejected the claim based on breach of the

duty of good faith and fair dealing. Marchman alleged in his

second amended complaint that NationsBank owed ANC a duty due to

their “special relationship.” Citing Hall v. Resolution Trust

Corp., 958 F.2d 75 (5th Cir. 1992), the district court determined

that no duty of good faith and fair dealing existed between the
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parties. Hall ruled that, under Texas law, there is no special

relationship which would lead to an implied duty of good faith and

fair dealing in the lender-borrower context. Id. at 79. The

district court also remarked that there was not a sufficient

imbalance of power to imply such a duty.

Under Texas law, the duty of good faith and fair dealing

arises in two circumstances. The parties can create the duty with

express contractual language or a special relationship of trust and

confidence may exist between the parties. Jhaver v. Zapata OffShore Co., 903 F.2d 381, 385 (5th Cir. 1990)(citations omitted).

This case presents neither circumstance. The creation of such a

duty was not expressed in any of the agreements between the

parties. Marchman did not demonstrate that a special relationship

of trust and confidence existed.

On December 19, 1995, NationsBank filed its Bill of Costs

with the Court. A copy was sent to Marchman, and he concedes that

he received it about the time of its filing. Costs were entered

against Marchman on January 4, 1996, in the amount of $37,136.57.

Marchman filed an objection on April 15, 1996, which was denied by

the district court as untimely. Marchman asserts that the district

court erred in denying his objection because his motion was timely

given that he did not receive actual notice of costs entered

against him until April 8, 1996. 

In its order, the district court noted that pursuant to the
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Attorney Handbook for the Northern District of Texas Marchman could

have objected to the Bill of Costs up to 10 days after it was filed

by NationsBank. The district court also indicated that under

Federal Rule of Civil Procedure 54(d) Marchman could have objected

to the Bill of Costs up to five days after the clerk signed it.

Rule 54 states that “costs may be taxed by the clerk on one day’s

notice” and provides for review by the court if a motion is served

“within 5 days thereafter.” Fed. R. Civ. P. 54(d)(1). The court

considered Marchman’s receipt of the Bill of Costs to have been

adequate notice.

We have heard oral argument and reviewed the record and the

briefs filed by the parties in this matter. We find no reversible

error in the district court’s orders. Accordingly, for essentially

the reasons articulated by the district court, we AFFIRM.