The Peabody Corp v. Merchants and Marine ( 1998 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-60165
No. 97-60295
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THE PEABODY CORPORATION, doing business as
Reilly-Benton Co. Inc.,
Plaintiff-Appellant,
versus
MERCHANTS AND MARINE BANK,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
(1:96-CV-255-RR & 1:96-CV-255-FF)
January 14, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
On the unopposed motion of Merchants and Marine Bank (“M&M”),
we have consolidated appeal numbers 97-60165 and 97-60295. In 97-
60165, the Peabody Corporation (“Peabody”) appeals the district
court’s grant of summary judgment to M&M on Peabody’s claims of
fraud and negligent misrepresentation arising out of a brief
telephone conversation between a representative of Peabody’s bank
*
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that this opinion should not be published and is not precedent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.
and the Chief Executive Officer of M&M. We affirm this judgment
for substantially the reasons set out by the district court in its
Memorandum Order of November 25, 1996, finding particularly
persuasive the district court’s discussion of M&M’s lack of duty to
Peabody. See, e.g., Foster v. Bass, 575 So. 2d 967, 972 (Miss.
1990) (“duty and breach of that duty are essential to a finding of
negligence”).
In appeal number 97-60295, M&M appeals the district court’s
denial of attorney’s fees. We find no abuse of discretion in the
district court’s order and therefore affirm. See Wegner v.
Standard Ins. Co., 129 F.3d 814, 820-821 (5th Cir. 1997) (“We
review the district court’s decision to award attorneys’ fees only
for an abuse of discretion.”).