                   UNITED STATES COURT OF APPEALS

                           FIFTH CIRCUIT

                            ____________

                            No. 97-60165
                            No. 97-60295
                            ____________


          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that this opinion should not be published and is not precedent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.”).
