Hopewell Enterprises, Inc. v. Trustmark Natl Bk ( 1993 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 93-CA-00661-SCT
HOPEWELL ENTERPRISES, INC., BILLY E. HAMMONS AND BETTY P. HAMMONS
v.
TRUSTMARK NATIONAL BANK
DATE OF JUDGMENT: 05/10/93
TRIAL JUDGE: HON. DONALD B. PATTERSON
COURT FROM WHICH COPIAH COUNTY CHANCERY COURT
APPEALED:
ATTORNEY FOR PAUL ANDERSON KOERBER
APPELLANTS:
ATTORNEY FOR APPELLEE: OLEN C. BRYANT, JR.
NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND
PROPERTY DAMAGE
DISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN
PART - 9/12/96
MOTION FOR REHEARING
FILED:
MANDATE ISSUED: 10/3/96
BEFORE SULLIVAN, P.J., McRAE AND SMITH, JJ.
SMITH, JUSTICE, FOR THE COURT:
¶1. Trustmark National Bank, hereinafter (bank), brought a judicial foreclosure action against Billy
and Betty Hammons, hereinafter (Hammons), in the Chancery Court of Copiah County due to a
default on a note and deed of trust involving property which contained the Hammons' residence and a
1.5 acre adjoining tract of property upon which was located an artesian water well. The water well
became the primary subject of this dispute.
¶2. The Hammons filed a counterclaim for breach of fiduciary duties, interference with an
advantageous relationship, wrongful utilization of the bank's superior bargaining position, and
reckless disregard of their rights and for gross negligence.
¶3. The Chancellor found no actual damage by Trustmark, but awarded nominal damages of $100
and $25,000 punitive damages to the Hammons. He also awarded Trustmark a judgment of $41,512
for the principal and interest on the note and $18,252.79 attorneys fees and court costs on the judicial
foreclosure of the deed of trust. Aggrieved, the Hammons appeal to this Court and Trustmark cross
appeals with the following issues presented:
WHETHER A CONFIDENTIAL/FIDUCIARY RELATIONSHIP EXISTED BETWEEN THE
BANK AND THE HAMMONS, SO AS TO HAVE BEEN VIOLATED BY CERTAIN
DISCLOSURES MADE BY THE BANK?
WHETHER TRUSTMARK WRONGFULLY INTERFERED WITH ANY BUSINESS
RELATIONSHIP OF HAMMONS?
WHETHER TRUSTMARK ENTERED INTO AN ORAL LOAN AGREEMENT WITH THE
HAMMONS?
WHETHER TRUSTMARK HAD A DUTY TO FURNISH TO HAMMONS A COPY OF
THE ALLEGED APPRAISAL OF THE WATER WELL?
WHETHER HAMMONS SUFFERED ANY ACTUAL DAMAGE DUE TO TRUSTMARK'S
ALLEGED ACTIONS, AND IF NOT, WHETHER PUNITIVE DAMAGES MAY BE
SUPPORTED BY AN AWARD OF NOMINAL DAMAGES?
STATEMENT OF FACTS
¶4. In 1986, Billy and Betty Hammons purchased a certain tract of land which is the subject of this
dispute. In the course of building a dwelling, Billy successfully drilled a water well. Billy had the
water analyzed, and it was determined that the water was pure and drinkable straight from the well,
thus making it commercially marketable and valuable.
¶5. The Hammons then decided to market their new found treasure. However, lacking business
sophistication, they enlisted the help of Charles King and Tom Allain who purportedly promised to
put up the necessary funds to pursue the marketing of the artesian well. In January 1989, the
Hammons, King and Allain established Hopewell Enterprises, Inc. as the mechanism for selling the
bottled artesian water. The Hammons maintained a fifty-one percent ownership of the stock of the
corporation, and King and Allain collectively owned forty-nine percent. The well site was surveyed
into a 1.5 acre tract of land and was deeded to Hopewell. This was done with the intent to procure a
$250,000 loan from the Georgetown, Mississippi branch of Trustmark Bank, in order to market the
water.
¶6. On February 13, 1989, Hopewell obtained a loan of approximately $12,000 from the Bank, and
secured the indebtedness with a deed of trust on the 5500 gallon tank purchased with its proceeds.
This loan was payable in 365 days from the date of the loan origination.
¶7. On April 3, 1989, the Hammons mortgaged their remaining land (i.e. not the 1.5 acres upon
which the well is situated) for a loan of approximately $24,000. This loan was payable in 35
installments of $288.00 a month, with a balloon payment on April 10, 1992.
¶8. During 1989 King and Allain failed to live up to their end of the bargain to market the water.
Their inaction resulted in a lawsuit in 1990 between the partners.
¶9. In the meantime, the Hammons began negotiations with Darryl Stripling in early 1990. Stripling
was interested in purchasing the artesian well. Stripling offered to purchase all of the water flowing
from the well at a price of five (.05) cents per gallon. On May 17, 1990, Stripling paid a visit to the
Hammons. According to the Hammons, Stripling was knowledgeable concerning the balance for the
amounts of monies due and owing by them to Trustmark, including interest and late fees. The
Hammons then contacted Robert Bounds, the President of the Hazelhurst branch of Trustmark
National Bank, whom the Hammons claimed apologized to them for having disclosed that
information. Bounds admits that he divulged information to Stripling about the approximate amount
of both the Hopewell debt, which was in default, and the Hammons debt, which was not in default.
However, Bounds did not believe that he had disclosed any confidential information as both debts
were a matter of public record. The Hammons further testified that Bounds challenged Stripling as to
"why buy the well from the Hammons, when he could buy it from the bank on the courthouse steps?"
Bounds denied making this statement. Robert Windham, a Trustmark Officer, testified that it was
bank policy not to discuss the business of its customers with third parties. In any event, the
discussions between the Hammons and Stripling never resulted in a contract.
¶10. On May 2, 1990, Trustmark had already filed suit against Hopewell, King, Allain and the
Hammons, on the $12,000 note which had matured in February 1990. A default judgment was taken
against Hopewell, King and Allain. Trustmark claims that in order to stall the collection of the
defaulted Hopewell note, Billy Hammons told the bank about his negations with Stripling. Thus,
Bounds became aware of the Stripling offer, and gave the debt status to Stripling in an effort to
consummate the deal between Stripling and the Hammons.
¶11. The Hammons sued King and Allain on March 13, 1990. The case between the Hammons, King,
and Allain was not adjudicated until September 7, 1990, wherein it was agreed that King and Allain
would transfer back their 49% interest to the Hammons in exchange for the amount of money they
had invested into Hopewell. It was also agreed that the Hammons would assume the previously
executed $12,000 note. The Hammons did not have sufficient funds to pay King and Allain and
therefore, they paid $15,000 immediately, with $5,000 to be paid within one year of the judgment.
King and Allain accepted the $15,000, and assigned the $5,000 amount to their attorney, Brent
Bourland. To facilitate this September 7, 1990 judgment, Trustmark offered to restructure the loans.
Trustmark claims that it did not resort to execution of the judgment on the Hopewell debt, because
the bank had obtained partial satisfaction of the judgment through execution or garnishment issued
against Allain and King.
¶12. A new loan which would pay off all amounts owed to King and Allain and consolidate any and
all other indebtedness they had with Trustmark into one note was proposed. Trustmark secured this
new indebtedness with deeds of trust on the tract of land containing the Hammons residence and
upon the tract of land holding the artesian well.
¶13. On October 26, 1990, the Hammons executed a promissory note to Trustmark confirming a
debt of $42,267.02, payable in 90 days. This note matured in January 1991. The Hammons
subsequently paid the interest and the note was renewed with a May 1991 maturity date. After the
note matured, the Hammons again paid the interest and the note was renewed for 116 days. On the
September 1991 maturity date, the Hammons were unable to pay, and the note was in default.
¶14. While the Hammons continued to extend the maturity and payoff date of the note they sold the
water on their own, while unsuccessfully attempting to strike deals with prospective buyers. In
October 1991, Trustmark commenced foreclosure of the Hopewell and Hammons deeds of trust with
sale scheduled for November 1991. However, foreclosure proceedings were interrupted by Hopewell
filing Chapter 11 bankruptcy and the Hammons Chapter 13 bankruptcy.
¶15. While the bankruptcy was pending, Trustmark elected to have the well appraised. Darrell W.
Schmitz, a geologist at Mississippi State University, conducted an investigation/appraisal, and
approximated the value of the well at roughly $3.5 million dollars. However, the bank did not
consider the appraisal reliable because it failed to consider development and marketing costs
associated with the well. Bounds testified that the evaluation was made for foreclosure purposes
only. The Hammons made several requests for a copy of the Schmitz evaluation, but Trustmark
refused to produce a copy because it considered the report to be bank property. The bankruptcy
petitions filed by Hopewell and the Hammons were dismissed in January 1992, and thus, Trustmark
was able to file the present suit on January 24, 1992.
¶16. The Chancellor found the facts to be essentially the same as stated above. Specifically the
Chancellor found that the Hopewell-Hammons note was in default, and awarded Trustmark $41,512
on the principal of the note, and $18,252.79 in attorneys fees. The trial court also found that
Trustmark was also entitled to foreclose on the Hopewell-Hammons deed of trust. The lower court
held that there was no fiduciary relationship, but did find that the bank breached its duty not to
disclose confidential information. Moreover, the trial court held that Trustmark should have furnished
a copy of the appraisal to the Hammons. The court found no actual damages by Trustmark, but
nevertheless, awarded $100.00 nominal damages and $25,000.00 punitive damages.
DISCUSSION OF LAW
A. Fiduciary Relationship
¶17. This Court has never held that the relationship between a mortgagor and mortgagee is a
fiduciary one. First American National Bank of Iuka v. Mitchell, 359 So. 2d 1376 (Miss. 1978);
First National Bank of Vicksburg v. Caruthers, 443 So. 2d 861 (Miss. 1983). At best, we have held
that a mortgagor and mortgagee are in a relationship of trust and that a mortgagee should not be
allowed to abuse that relationship. First American National Bank of Iuka v. Mitchell, 359 So. 2d
1376 (Miss. 1978) (involving fraud committed by a bank officer when forcing the mortgagor to sell
the farm under threat of foreclosure to a purchaser selected by the bank officer); Accord Lowery v.
Guaranty Bank and Trust Co., 592 So. 2d 79 (Miss. 1991) (in credit life insurance cases, a fiduciary
relationship between bank and consumer borrower may be established on basis of contract, agency,
or reposing of trust and confidence). This Court has implied "that there may be a fiduciary
relationship between the bank and its mortgagor due to the character [of the relationship] over the
years . . . . [However, w]e hold here that FANB at least owed a duty of fairness which it violated."
Mitchell, 359 So. 2d at 1380.
¶18. Mitchell does not establish that banks and its debtors are in a "fiduciary" relationship as a matter
of law, since the Court noted that generally the relationship between a debtor and creditor is a
contractual one, and "not a confidential or fiduciary one." Id. at 1380; First National Bank of
Vicksburg v. Caruthers, 443 So. 2d 861, 864 (Miss. 1983) ("right of persons to contract is
fundamental to our jurisprudence, and absent mutual mistake, fraud and/or illegality, the courts do
not have the authority to modify, add to, or subtract from the terms of a contract validly executed
between two parties").
¶19. Nonetheless, we have previously stated that [f]iduciary relationship is a very broad term
embracing both technical fiduciary relations and those informal relations which exist wherever one
person trusts in or relies upon another." Lowery v. Guaranty Bank and Trust Co., 592 So. 2d 79,83
(Miss. 1991).
Whenever there is a relation between two people in which one person is in a position to exercise
a dominant influence upon the other because of the latter's dependency upon the former, arising
either from weakness of mind or body, or through trust, the law does not hesitate to
characterize such relationship as fiduciary in character. The basis of this relationship need not be
legal; it may be moral, domestic, or personal. Nor is the law concerned with the source of such
relationship. These principles are universally affirmed by courts.
Hendricks v. James, 421 So. 2d 1031, 1041 (Miss. 1982) (citations omitted)(does not deal with
banks, with fiduciary character of family relationships). Nor is Merchants & Planters Bank v.
Williamson, No. 91-CA-00615 (Miss. January 12, 1995), of any aid to the Hammons argument. The
actions of the bank officers in Williamson are clearly distinguishable from those of the Trustmark
loan officers, who conducted themselves in accordance with customary business practices.
¶20. In this case, the Chancellor held that a fiduciary relationship did not exist, nor did the Hammons
establish that a trust was created. The Hammons also failed to prove that they established a trust in
the bank or that the bank was aware that a trust was being reposed. We agree with the Chancellor. A
mortgagee-mortgagor relationship is not a fiduciary one as a matter of law, nor are there sufficient
facts in the case sub judice to create a fiduciary relationship.
¶21. Although every contractual agreement does not give rise to a fiduciary relationship, such
relationship may exist under the following circumstances: (1) the activities of the parties go beyond
their operating on their own behalf, and the activities for the benefit of both; (2) where the parties
have a common interest and profit from the activities of the other; (3) where the parties repose trust
in one another; and (4) where one party has dominion or control over the other. Carter Equipment
Co. v. John Deere Industrial and Equipment Co., 681 F.2d 386 (5th Cir. 1982).
¶22. The record below establishes that the relationship between the Hammons and Trustmark was
simply an arms length business transaction involving a normal debtor-creditor relationship. Moreover,
Trustmark had nothing to gain from the success or failure of Hopewell, as the loan agreement fixes
the contractual terms, nor did the Hammons repose any trust in the Trustmark officers. Lastly, the
record does not indicate that Trustmark exercised dominion and control over the Hammons. Simply
put, the Hammons failed to satisfy the requisite elements of a fiduciary relationship. Therefore, we
hold that the Chancellor was not erroneous in finding that a fiduciary relationship did not exist.
B. Breach of Duty of Confidentiality
¶23. The Chancellor held that Trustmark owed a duty of confidentiality to the Hammons. In so far,
the trial court relied upon, Mitchell, supra, and Rubenstein v. South Denver National Bank, 726
P.2d 755 (Colo.App. 1988). Essentially, the Chancellor believed Trustmark could not disclose
information found regarding the Hammon's loan to a third party (Stribling) simply because that
information was a matter of public record.
¶24. We hold that Mitchell does not impose a duty of confidentiality in a debtor-creditor relationship.
At most, a duty of trust may arise in some circumstances. Mitchell, supra. Here, such circumstances
are not present and therefore no duty of confidentiality existed. While Rubenstein imposes a duty of
confidentiality upon banks, it only does within the bank-depositor relationship. Moreover,
Rubenstein does not impose an absolute duty of confidentiality. Thus, Rubenstein stands only for
the proposition that information regarding deposits made by a bank customer are to remain
confidential. Because the case sub judice involves a bank-borrower relationship no duty of
confidentiality exists.
¶25. Trustmark asserts that either there is an absolute duty of confidentiality, or there is none.
Essentially, the bank argues that all mortgagors know and that mortgages are a matter of public
record and thus, there is no expectation of confidentiality regarding the amount of the debt, the
amount of the payments, or the term of the loan payout. Again, this situation is clearly distinguishable
from one involving customer deposits in a bank where the amounts deposited are expected to remain
confidential.
¶26. We agree with Trustmark. We note that holding a bank liable for divulging information that is a
matter of public record places a bank in a precarious situation when giving credit information to
credit reporting agencies. We also note that disclosures by Trustmark were made only to Stripling, an
individual who had previously been identified to the bank by Billy Hammons as a party with whom
the Hammons were engaged in business negotiations, which included the assumption of the bank's
debt. Furthermore, the Hammons were in default, and suit had been filed by the bank, therefore the
note itself was a matter of public record. Moreover, the Hammons' own suit against King and Allain
stated the amount of the debt to Trustmark. Both lawsuits and the information contained therein
were on file with the Chancery Clerk and were matters of public record. The record establishes, that
Bounds' motivation for disclosing the loan information to Stripling was the desire to collect the debt
via the consummation of a contract for the sale of water. Therefore, Trustmark has presented a
strong argument against the Chancellor's holding.
¶27. Because of the lack of case law in Mississippi regarding the issue involved, this Court is
compelled to examine case law from other jurisdictions which are on point and thus persuasive.
These decisions establish that confidentiality is owed to a depositor, but the same duty is not
extended to a borrower. Graney Development Corp. v. Taksen, 400 N.Y.S.2d 717 (Supp. 1978);
Young v. United States Department of Justice, 882 F.2d 633 (2d Cir. 1989); Schonweis v. Dando,
435 N.W.2d 666 (Neb. 1989). In distinguishing a case of a bank-depositor relationship from a bank-
borrower relationship, the New York court held:
In this case, however, the information revealed by the bank did not concern the plaintiff's
deposit with the bank; it concerned a loan made by the bank. As to that loan, the relation
between the bank and the plaintiff was solely that of creditor and debtor. The information the
bank imparted about the state of the plaintiff's loan was not information it received in its
capacity as agent for a depositor; it was information it obtained as a party to the loan
agreement. It was not information that the borrower would normally expect would be kept
confidential. One who defaults on his debts owed to a merchant cannot expect that his default
will be kept a secret. While a creditor, who publishes his debtors defaults to the public at large
may be liable for breach of privacy, he will not be liable (in the absence of malice) if he divulges
the default not to the public at large, but privately to selected individuals. The bank in its
capacity as lender is in no different position than that of any other lender or creditor. I see no
basis, therefore, for implying an agreement of confidentiality to the relations of a bank with its
borrowers. The cause of action based upon a breach of implied contract of confidentiality is,
therefore, dismissed.
Graney Development Corp. v. Taksen, 400 N.Y.S.2d 717, 720 (Supp. 1978).
¶28. In the case sub judice, Trustmark , is a party to the loan agreement, not an agent for a
depositor. We find that the information relayed to Stripling was not that which would ordinarily be
kept confidential. Moreover, the same information was a matter of public record. The bank never
published this information, but rather, selectively gave it to a potential buyer, Stripling, whom the
bank first learned about from the Hammons. We find nothing out of the ordinary in attempting to
locate potential bidders at foreclosure, for it is much better than the situation where the bank is the
only bidder present on the courthouse steps. The Chancellor erred in holding that a duty was
breached, and that the duty of confidentiality exists between a bank-borrower. In the absence of such
a duty, there can be no breach.
C. Interference with Business Relationship
¶29. The elements for the tort of interference with business relationship are: (1) the act was
intentional and willful; (2) that they were calculated to cause damage to the claimants in their lawful
business; (3) that they were done with the unlawful purpose of causing damage and loss without right
or justifiable cause; and (4) that actual damage and loss resulted. Irby v. Citizens National Bank of
Meridian, 121 So. 2d 118 (Miss. 1960).
¶30. The Hammons argue that May 1990 conversation between Bounds and the contact of Stripling
by Mr. Hux, the loan officer, in the Fall of 1991, to attend the foreclosure sale constitute interference
with a business relationship. There is no dispute that the bank officers' actions were intentional.
However, there is considerable doubt as to whether they were intended to cause damage or loss to
the plaintiff, and whether loss or damage actually occurred.
¶31. Bounds' statements to Stripling, disclosed the existence of the Hammons' debts and amount of
those debts. At the time of the statements the Hammons were in default on one note, and therefore,
the debts were a matter of public record. Although Stripling may have made an offer of five cents per
gallon, the record indicates that the Hammons never accepted that offer. Moreover, the record
indicates that a contract between Stripling and the Hammons never transpired, not because of
Bounds' statements, but because the last offer made to the Hammons was conditioned upon all
shareholders selling-- a condition that the Hammons could not fulfill due to Allain and King's 49%
ownership of the Hopewell stock. Bounds testified that he disclosed the amounts of the debt in an
effort to help Stripling make an offer on the water, thus enabling the Hammons to have sufficient
funds with which to pay their debt note. The record simply does not establish that the actions of
Trustmark officers were calculated to cause malice.
¶32. In regards to Hux's contact with Stripling, the record indicates that such a maneuver was done
to promote the foreclosure. It appears that Bounds and Hux's made their statements in order to
recover the money owed to the bank. We again find nothing out of the ordinary and normal course of
doing business here. This Court has stated:
It is equally well established that the interference complained of must be wrongful in order to be
actionable and that any interference is not wrongful and actionable if undertaken by someone in
the exercise of legitimate interest or right, which constitutes "privileged interference." . . . The
general rule in this state is that there is no tortious interference when one has a justifiable
interest and reason for acting.
Vestal v. Oden, 500 So. 2d 954, 956 (Miss. 1986) (citations omitted).
¶33. Because this case involves a default, and the bank's conduct was justifiable when considering
that it was concerned with getting paid on the note, we find that the bank enjoyed a privileged
interference. If anything, the interference by the bank aided the Hammons by locating bidders for the
foreclosure sale. See Federal Land Bank v. Collom, 28 So. 2d 126 (Miss. 1946) (banks are to
refrain from action which might deter bidders or suppress offers at a foreclosure). Here, there was
clearly a justifiable interest and reason the actions of Trustmark officers. Vestal, 500 So. 2d at 956.
Having failed to establish the tort of interference in business relationships, the Chancellor was not in
error in finding that there was no interference with business relationships.
D. Oral Loan Agreement
¶34. The Hammons next argue that Trustmark made an oral loan by representing to them that the
indebtedness could be paid over a period of several years, if the valuation of the well was as much or
more than the indebtedness owed to the bank and that such note would be affordable to them. The
Chancellor's opinion found no breach of contract to make an installment loan, mainly because no
contract existed where the parties intended to continue negotiating but had not yet reached a mutual
agreement. J. Russell Flower, Inc. v. Itel Corp., 495 F. Supp. 88 (N.D.Miss. 1980). We agree.
¶35. In the case at bar, the Hammons did not establish the terms of the alleged loan, i.e., the terms of
the repayment, the interest rate, and other essentials needed to form a contract. In other words, the
appellants have failed to prove that there was a meeting of the minds. We hold that there was no
contract and hence no error by the Chancellor.
E. Refusal to Furnish the Schmitz Report
¶36. The Chancellor, found that under Mitchell, the bank's failure to disclose the Schmitz report
violated the duty of fairness which requires a mortgagee to furnish the mortgagor with a copy of the
appraisal when it is requested. Trustmark argues that the Schmitz evaluation is simply a report on the
geothermal activities of the well, and that the monetary value established by that report is worthless
and does not constitute an appraisal. Furthermore, the bank contends that Mitchell addressed the
issue of fraud, which is not asserted in this case. In essence, the bank argues that it does not have to
reveal the contents of the Schmitz evaluation, as its purpose for procuring that document was not to
seek an unfair advantage over the Hammons, as FANB had attempted to do in Mitchell.
¶37. At first glance, Mitchell may appear to be analogous to the case at bar. There, the Court held
that where the mortgagee advised the mortgagors to sell land under threat of foreclosure, the
mortgagee owed a duty to mortgagors to disclose a higher price available for the farm. Even though
the relationship of the mortgagors to the mortgagee was adverse in regard to the payment of debt,
the mortgagee was under duty to disclose facts peculiarly within its knowledge, such a higher
available price for the sale of the mortgagor's real property. 359 So. 2d at 1379-80. After all, "banks
are seeking people's trust and confidence and therefore may owe clients a high degree of care." Id. at
1380.
¶38. A broad reading of this duty would result in a breach by Trustmark due to the refusal to provide
the Schmitz report to the Hammons. Although Trustmark appears to be making a highly technical
argument in contending the evaluation was simply a report and not an appraisal, the record reveals
that the Chancellor did in fact find that the Schmitz report was deficient in approximating the value of
the well, as it did not include the costs of production and other measures usually taken into account
when valuing a well.
¶39. It is thus apparent that Mitchell does not apply to facts at bar. In Mitchell, the facts indicate
that there was a "threat of foreclosure." Here, the foreclosure proceedings were triggered by the
Hammons' default. Thus, we find that Mitchell does not apply, and as a result, there is no duty of
disclosure owed by the bank to the Hammons. In addition, the bank's "evaluation/ report/ appraisal"
is the property of the bank, as there is no indication that the bank knew of a "better price," and the
Hammons were in substantial default at the time of the evaluation. We hold that there is no violation
of "fairness" by Trustmark. Accordingly, there is no merit to this issue.
F. Damages
¶40. The Chancellor found no actual damages, but rather awarded $100 nominal damages. However,
the Chancellor then awarded $25,000 punitive damages. Essentially, the lower court found that the
Hammons were entitled to monetary vindication for an invasion which produced no loss. The trial
court found that the bank wrongfully disclosed the Hammons' debts to Stripling, violating a duty of
confidentiality, and further, by failing to furnish the Schmitz evaluation, violated a duty of fairness.
However, because the Hammons suffered no actual damages the trial court awarded nominal
damages. In addition, the Chancellor awarded $25,000 in punitive damages to prevent this type of
conduct in the future.
¶41. However, having held that the bank did not owe an absolute duty of confidentiality in a bank-
borrower type relationship; and that the bank did not wrongfully withhold the Schmitz evaluation; we
find that having a copy of the evaluation would not have provided the Hammons with any kind of
competitive edge.
¶42. Punitive damages are generally awarded for heightened torts which are the product of gross,
callous, or wanton conduct, often accompanied by fraud and deceit. State Farm Fire and Casualty
Co. v. Simpson, 477 So. 2d 242 (Miss. 1985). That kind of conduct has simply not been proven in
this case. Moreover, Mississippi law is clear that punitive damages are not recoverable absent an
award of actual damages. Allen v. Ritter, 235 So. 2d 253 (Miss. 1970); Miss. Power Co. v. Jones,
369 So. 2d 1381 (Miss. 1979); Defenbaugh and Co. v. Rogers, 543 So. 2d 1164 (Miss. 1989). The
Chancellor readily admits that this is the rule. Nonetheless, as he put it, he "see[s] no logic in a rule
that allows punitive damages where actual damages are small, but would not allow punitive damages
where actual damages are denied and nominal damages are allowed."
¶43. Thus, even if we were to agree with the Chancellor that there were nominal damages, we must
reverse the award of punitive damages, as it is clearly contrary to our well-established case law. The
Chancellor was clearly in error in awarding nominal damages as there was no basis to support such
an award.
CONCLUSION
¶44. The Chancellor was correct in finding that there is no fiduciary duty, as a matter of law, between
the bank and borrower, that there was no interference with business relationship by the bank, and that
an oral loan agreement did not exist between the bank and the Hammons. However, the Chancellor
erred in finding that a duty of confidentiality existed in a bank-borrower relationship; that there was
breach of this confidentiality duty; and that the bank was wrong in refusing to turn over the Schmitz
evaluation. The Chancellor correctly found no actual damages existed. The Chancellor erred in
awarding nominal damages as well as punitive damages. The Chancellor was correct in awarding
judgment to Trustmark on the note with attorneys fees and costs of court. The Court takes note that
the Hammons, with assistance of a person other than those allegedly contacted by Trustmark, have
paid the debt in full thus satisfying the lien.
¶45. AFFIRMED IN PART, REVERSED AND RENDERED IN PART.
SULLIVAN, P.J., PITTMAN, BANKS, McRAE, ROBERTS AND MILLS, JJ., CONCUR.
LEE, C.J., AND PRATHER, P.J., NOT PARTICIPATING.