William M. Kessner v. First Bank West Great Falls, Inc., a Banking Co.

947 F.2d 950

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
William M. KESSNER, Plaintiff-Appellant,
v.
FIRST BANK WEST GREAT FALLS, INC., a Banking Co., Defendant-Appellee.

No. 90-35634.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 10, 1991.
Decided Oct. 25, 1991.

Before WALLACE, Chief Judge, HUG and RYMER, Circuit Judges.

1

MEMORANDUM*

2

The district court is affirmed for the following reasons:

3

1. Appellee did not contractually breach the implied covenant of good faith and fair dealing. The bank adhered to the terms of Kessner's promissory notes and its decision not to renew the notes was commercially reasonable. Blome v. First Nat'l Bank of Miles City, 238 Mont. 181, 776 P.2d 525 (1989); Shiplet v. First Sec. Bank of Livingston, Inc., 234 Mont. 166, 762 P.2d 242 (1988).

4

2. Appellee did not tortiously breach the implied covenant of good faith and fair dealing. The bank did not stand in a special relationship to Kessner, and no other exceptional circumstances support damages in tort. Story v. City of Bozeman, 791 P.2d 767 (Mont.1990); Lachenmaier v. First Bank Sys., Inc., 803 P.2d 614 (Mont.1990).

5

3. Appellee did not breach a fiduciary duty. Under Montana law, the bank did not owe Kessner a fiduciary duty since the bank had acted entirely within its role as lender. Pulse v. N. Am. Land Title Co. of Montana, 707 P.2d 1105, 1110 (Mont.1985); Deist v. Wachholz, 678 P.2d 188, 193 (Mont.1984).

6

4. Appellee did not breach an implied contract created through a course of dealings. A bank does not become obligated to renew financing merely because it has done so in the past. Central Bank of Montana v. Eystad, 219 Mont. 69, 710 P.2d 710 (Mont.1985). Furthermore, Kessner's claim that the bank breached an oral contract is barred by the parol evidence rule. First Nat'l Montana Bank of Missoula v. McGuiness, 217 Mont. 409, 705 P.2d 579 (Mont.1985).

7

AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3