                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                         March 23, 2005
                                  FOR THE FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk

                                           No. 04-60615
                                        (Summary Calendar)



GRAND HOUSING, INC.; ET AL,

                                                                                            Plaintiffs,

VICKY BARNES,

                                                                                  Plaintiff-Appellant,

                                               versus

BOMBARDIER CAPITAL, INC.; ET AL,

                                                                                         Defendants,

BOMBARDIER CAPITAL, INC.,
BOMBARDIER CAPITAL FLORIDA,

                                                                              Defendants-Appellees.




                           Appeal from the United States District Court
                             for the Southern District of Mississippi
                                       (1:02-CV-49-GuRu)



Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*


       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       Plaintiffs-Appellants Grand Housing and Vicky Barnes seek the reversal of the district court’s

grant of summary judgment for Defendants-Appellees Bombardier Capital, Inc. and Bombardier

Capital Florida, Inc. (collectively “Bombardier”). We affirm for essentially the same reasons

expressed by the district court.



                                          BACKGROUND

       In May of 1998, Grand Housing, a manufactured home dealership owned by Vicky Barnes

(“Barnes”), entered into a Retail Dealer Agreement (“Dealer Agreement”) with Bombardier Capital

Florida. In the Dealer Agreement, Bombardier Capital Florida agreed to provide financing to retail

customers who purchased manufactured homes from Grand Housing. Grand Housing also entered

into an Inventory Security Agreement with Bombardier Capital in which Bombardier Capital agreed

to provide floor financing for Grand Housing’s manufactured home inventory. In 2000, Bombardier

found that Grand Housing defaulted on the Dealer Agreement with respect to sales made to Patricia

Reese, Charlotte Mitchell, and Dennis McDonald, and as a result, Bombardier withheld from Grand

Housing the proceeds from those sales.

       On November 12, 1998, Patricia Reese purchased a mobile home from Grand Housing that

was financed by Bombardier. Grand Housing asserts that Reese represented to them that all city and

county zoning ordinances had been complied with in the installation of the mobile home.

Nonetheless, it was later determined that the installation of the mobile home did not comply with local

zoning ordinances. Grand Housing removed the home pursuant to a directive from the City of

Gulfport, Mississippi. On August 17, 2000, Bombardier demanded that Grand Housing repurchase

Patricia Reese’s security instrument pursuant to the terms of the Dealer Agreement.


                                                  2
       In the misty of the dispute over Reese, Bombardier found Grand Housing in default of the

Dealer Agreement again, this time with respect to the sale of a mobile home to Charlotte Mitchell.

Shortly after Mitchell purchased her home, she stopped payments and initiated suit against Grand

Housing. She alleged that her manufactured home was riddled with manufacturer defects, as well as

defects in the materials and workmanship of the mobile home. Grand Housing contends that

Bombardier repossessed the home without their knowledge, and then inexplicably lost the home. On

August 21, 2000, Grand Housing received a demand letter from Bombardier concerning Charlotte

Mitchell’s security instrument.

       Bombardier issued a demand letter yet again, on September 28, 2000, commanding that Grand

Housing repurchase the security instrument of Dennis McDonald. McDonald acquired a mobile home

from Grand Ho using and then, like Mitchell, initiated suit alleging his home was defective.

Specifically, he alleged that he suffered personal injury from airborne mold and spores emanating from

his mobile home.

       On January 2, 2002, Grand Housing filed suit in the Circuit Court of Harrison County,

Mississippi, asserting entitlement to the withheld sale proceeds. The co mplaint alleged that

Bombardier was liable for conversion, tortious interference with prospective economic advantage,

breach of the Dealer Agreement, and breach of the implied duty of good faith and fair dealing.

Bombardier removed the case to the United States District Court, for the Southern District of

Mississippi, and filed a motion for summary judgment. The district court granted the motion for

summary judgment. This timely appeal followed.

                                           DISCUSSION

       We review the district court's grant of summary judgment de novo, applying the same legal


                                                  3
standards used by the district court. Vulcan Materials Co. v. City of Tehuacana, 369 F.3d 882, 886

(5th Cir. 2004). Summary judgment is proper when there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). We review the district

court's legal conclusions de novo. Triad Elec. & Controls, Inc. v. Power Sys. Eng'g, Inc., 117 F.3d

180, 186 (5th Cir. 1997). The interpretation of an unambiguous contract presents a question of law,

and thus, is subject to de novo review. Id. at 186; see also L & A Contracting Co. v. Southern

Concrete Servs., Inc., 17 F.3d 106, 109 (5th Cir. 1994).

       Grand Housing argues that the district court erred in granting summary judgment because

there are genuine issues of material fact in dispute. Specifically, Grand Housing contends that there

are factual disputes as to whether: 1) it was in default under the terms of the Dealer Agreement, 2)

Bombardier improperly withheld funds, 3) Bombardier breached the implied duty of good faith and

fair dealing, and 4) Bombardier breached a fiduciary duty owed to Vicky Barnes.

       Despite Grand Housing’s assertions to the contrary, there are no factual disputes in the instant

case to preclude a ruling on summary judgment; only legal questions as to the interpretation of the

relevant contracts are left for us to review.1 We interpret contracts under Mississippi law using the

"four corners" doctrine, meaning, we exam the contract in its entirety and read its terms as would an

ordinary layman. Pursue Energy Corp. v. Perkins, 558 So.2d 349, 352 (Miss. 1990). Under

Mississippi law, we are prohibited from looking outside the plain language of the contract unless the

contract is ambiguous. Heritage Cablevision v. New Albany Electric Power System of City of New


       1
        Because Grand Housing does not brief arguments for conversion and tortious inference, we
deem those arguments waived and do not address them here. United States v. Fagan, 821 F.2d 1002,
1015 n.9 (5th Cir. 1987) (arguments not briefed are deemed waived); see also Davis v. Maggio, 706
F.2d 568, 571 (5th Cir. 1983) (commenting that "[c]laims not pressed on appeal are deemed
abandoned").

                                                  4
Albany, 646 So.2d 1305, 1313 (Miss. 1994). We agree with the district court that the contracts at

issue here are unambiguous. The district court determined that based on the express contract

language, Grand Housing did default under the Dealer Agreement as to each challenged sales

transaction, and consequently, Bombardier had the contractual right to demand payment and/or

repurchase. Accordingly, the district court found that Bombardier was entitled to judgment as a

matter of law as to Grand Housing’s breach of contract claim. Our review of the briefs, the

applicable contracts and the record on appeal, leads us to the same conclusion reached by the district

court.

         Grand Housing adamantly maintains that it was not in default of the Dealer Agreement with

respect to Patricia Reese, and therefore, Bombardier breached the terms of the Dealer Agreement by

withholding funds from the Reese sale. We disagree. Section 6(i) of the Dealer Agreement clearly

states that the Dealer (Grand Housing) warranties that:

         Unless [Bombardier] has agreed otherwise in writing, the Home shall be duly
         delivered and set in place by Dealer in a good and workmanlike manner, and accepted
         by the Consumer in good and habitable condition and working order, and shall
         conform with all warranties, express or implied, representations, legal obligations and
         local, state and federal requirements and codes concerning the condition,
         constructions, and placement of the Home.

Because the Reese home failed to comply with Gulfport’s zoning ordinances, the plain language of

the contract dictates that Grand Housing was in default. Furthermore, a judicial determination of

default was unnecessary because Section 8 of the Dealer Agreement states that the “Dealer shall be

in default of this Agreement if (i) any warranty, covenant or representations contained herein is

determined by [Bombardier] to be untrue or false, whether or not such misrepresentations were

knowing or intentional and whether or not [Bombardier] relied upon thereon . . .”



                                                   5
       Nonetheless, Grand Housing asserts that Bombardier failed to comply with the Remedy

provision of the Dealer Agreement by refusing to give them ninety days from the date of demand to

repurchase the security instrument. The Remedy provision states that the “Dealer will have ninety

(90) days from the date of [] demand to repurchase the Security Instrument, provided that (i) any

delinquency on account of the affected Security Instrument is cured within ten (10) days of []

demand, and (ii) the Security Instrument is kept current during the ninety (90) day period.” Grand

Housing conveniently ignores this conditional aspect of the Remedy provision. Because Grand

Housing did not cure the delinquency within 10 days and did not keep the instrument current,

Bombardier had the contractual right to demand immediate repurchase of the security instrument.

       Grand Housing’s argument that it did not default as to Charlotte Mitchell’s account is

similarly without merit. In Section 6(i) of the Dealer Agreement, Grand Housing expressly

warrantied that it would deliver the Home in a “good and workmanlike manner, and the Home would

be accepted by the Consumer in good and habitable condition and working order.” Moreover, the

Remedy provision states that “[i]f Dealer fails to repurchase any Security Instrument under this

Agreement, [Bombardier] will have the right to take possession of the Collateral without notice to

Dealer . . .” and the Dealer still “will remain liable for any deficiency.” The default was triggered

because Mitchell asserted that her mobile home was not delivered in a “good and habitable

condition.” As a result, Bombardier did not breach the Dealer Agreement by withholding the

proceeds from the sales transaction.

       For substantially the same reasons, we find Grand Housing’s argument that it was not in

default of the Dealer Agreement with respect to Dennis McDonald unavailing. Section 6(i) also

controls here and by virtue of McDonald’s allegations of a defective home, Grand Housing runs afoul


                                                 6
of the Dealer Agreement.

       The plain language of the contract controls and requires finding Grand Housing in default as

to each of the challenged sales transactions. Grand Housing did not adhere to the requirements of

the Remedy provision in any of the defaults. Therefore, Bombardier permissively withheld the

challenged funds, and the district court correctly concluded that Bombardier was entitled to judgment

as a matter of law.

       Grand Housing also claims that Bombardier did not act in good faith in discontinuing its floor

financing and by arbitrarily reducing its credit line. Grand Housing asserts that Bombardier utilized

its stronger economic position to place Grand Housing in an adverse financial condition. Under

Mississippi law, "[a]ll contracts contain an implied covenant of good faith and fair dealing in

performance and enforcement." Cenac v. Murry, 609 So.2d 1257, 1272 (Miss. 1992) (citation

omitted). “The breach of good faith is bad faith characterized by some conduct which violates

standards o f decency, fairness or reasonableness." Id. Bad faith requires a showing of more than

negligence; rather, "bad faith" implies some conscious wrongdoing "because of dishonest purpose or

moral obliquity." Bailey v. Bailey, 724 So.2d 335, 338 (Miss. 1998). Grand Housing presents no

evidence to even suggest that Bombardier’s intent was to maliciously harm Grand Housing. The

record indicates that Bombardier at all times acted within its contractual authority. See American

Bankers' Ins. Co. of Fla. v. Wells, 819 So.2d 1196 (Miss. 2001) (holding that defendants did not

breach duty of good faith where they took only those actions duly authorized by the contract). The

Inventory Security Agreement allowed Bombardier to provide financing to Grand Housing “at its

option;” accordingly, Bombardier was free to reduce or withdraw any financing it provided to Grand

Housing. Therefore, the district court correctly held that Bombardier should be granted summary


                                                 7
judgment as to this claim.

       Finally, Vicky Barnes brings an individual action against Bombardier for breach of fiduciary

duty. Barnes executed an individual guaranty with Bombardier under which Barnes agreed to

indemnify Bombardier from all losses and expenses incurred in connection with the enforcement of

the guaranty. Barnes asserts that the existence of the guaranty agreement created a fiduciary

relationship between herself and Bombardier. She contends that Bombardier breached its fiduciary

duty to her because, as a shareholder and employee of Grand Housing, she suffered personal losses

when Bombardier improperly withheld funds from Grand Housing. For the reasons already stated

by the district court, we do not find a fiduciary relationship existed between Barnes and Bombardier.

Thus, Barnes has failed to establish a claim for breach of a fiduciary duty.

                                          CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to

Bombardier.

AFFIRMED.




                                                  8
