Milam v. Bank of Cabot

Jimmy W. MILAM and James Milam v. BANK OF
CABOT and Bill Thompson, Jointly and
Severally

96-899                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 10, 1997


1.   Judgment -- summary judgment -- standard of review. -- In reviewing
     summary-judgment cases, the supreme court need only decide if
     the granting of summary judgment was appropriate based on
     whether the evidentiary items presented by the moving party in
     support of the motion left a material question of fact
     unanswered; the burden of sustaining a motion for summary
     judgment is always the responsibility of the moving party; all
     proof submitted must be viewed in a light most favorable to
     the party resisting the motion, and any doubts and inferences
     must be resolved against the moving party; summary judgment is
     proper when a claiming party fails to show that there is a
     genuine issue regarding a material fact and when the moving
     party is entitled to summary judgment as a matter of law; once
     a moving party establishes a prima facie entitlement to
     summary judgment by affidavits or other supporting documents
     or depositions, the opposing party must demonstrate a genuine
     issue of material fact by meeting proof with proof.

2.   Limitation of actions -- elements of fraudulent concealment sufficient to
     toll statute of limitations. -- In determining the existence of
     fraudulent concealment sufficient to toll a statute of
     limitations, the supreme court has held that no mere ignorance
     on the part of the plaintiff of his rights, nor the mere
     silence of one who is under no obligation to speak, will
     prevent the statute bar; there must be some positive act of
     fraud, something so furtively planned and secretly executed as
     to keep the plaintiff's cause of action concealed or
     perpetrated in a way that it conceals itself; if the
     plaintiff, by reasonable diligence, might have detected the
     fraud, he is presumed to have had reasonable knowledge of it.

3.   Limitation of actions -- appellants' slander claim was time-barred --
     burden shifted to prove that statute was tolled -- no proof of fraudulent
     concealment presented. -- Appellants' slander claim, which was
     subject to a one-year statutory limit, was clearly time-
     barred; once it is clear from the face of the complaint that
     an action is time-barred, the burden shifts to the plaintiff
     to prove by a preponderance of the evidence that the statute
     of limitation was tolled; further, the act of fraudulent
     concealment must have been committed by those invoking the
     benefit of the statute of limitations, namely appellees; there
     was absolutely no proof presented by appellants that either
     appellee bank director or appellee bank had any involvement in
     hiding the fact that a statement concerning insurance fraud
     was made; in fact, while the affidavits of appellee bank
     director and appellee bank's board chairman indicated that
     they had no knowledge of a railroad policeman's report,
     appellant certainly knew that he was the subject of
     investigation for theft by receiving of railroad ties within
     a year of the report; the supreme court concluded that
     appellant's tolling defense failed for lack of proof.

4.   Torts -- invasion of privacy -- four actionable forms. -- Arkansas has
     recognized the existence of four actionable forms of invasion
     of privacy: (1) appropriation, which consists of the use of
     the plaintiff's name or likeness for the defendant's benefit;
     (2) intrusion, which is the invasion by one defendant upon the
     plaintiff's solitude or seclusion; (3) public disclosure of
     private facts, which is publicity of a highly objectionable
     kind, given to private information about the plaintiff, even
     though it is true and no action would lie for defamation; and
     (4) false light in the public eye, consisting of publicity
     that places the plaintiff in a false light before the public.

5.   Appeal & error -- no privacy-invasion theory specified -- no supporting
     authority cited -- supreme court declined to research point. -- Where
     appellants did not state which theory of privacy invasion
     applied to their case and did not cite any authority to
     support the asserted violation of their privacy rights, the
     supreme court declined to research the point for them, noting
     that a conclusory allegation by appellants was not sufficient
     to ward off summary judgment.

6.   Appeal & error -- supreme court does not countenance plagiarism. -- The
     supreme court does not countenance the detailed borrowing of
     legal arguments from treatises without proper acknowledgment
     of the source; in addition to quoting extensively and almost
     verbatim from an annotation without crediting the publication
     for the research, appellants did not present any analysis of
     the annotation or discuss which of the referenced cases the
     appellate court should follow; nor was there any mention of
     the facts of this case in connection with the cases briefed
     from other jurisdictions; nor was any attempt made to apply
     the facts to a specific legal standard.

7.   Banks & banking -- debtor-creditor relationship not sufficient to establish
     fiduciary relationship -- appellants failed to submit proof to establish
     fiduciary relationship. -- Where there are no facts to indicate a
     relationship beyond that of debtor and creditor, there is no
     fiduciary relationship; the supreme court held that appellants
     failed to submit any proof to convert what was essentially a
     debtor-creditor relationship with appellee bank into a
     fiduciary one; nor was proof presented to establish that
     appellee bank director was acting as an agent of appellee bank
     when he met with railroad policemen or that there was any
     failure to supervise on the part of appellee bank; in short,
     the supreme court concluded, the railroad policeman's report,
     standing alone, was not sufficient to prevent summary
     judgment.

8.   Torts -- outrage -- elements of. -- To succeed on a tort-of-outrage
     claim, a plaintiff must prove that (1) the defendant intended
     to inflict emotional distress or knew or should have known
     that emotional distress was the likely result of his conduct;
     (2) the conduct was extreme and outrageous and was utterly
     intolerable in a civilized community; (3) the defendant's
     conduct was the cause of the plaintiff's distress; and (4) the
     emotional distress sustained by the plaintiff was so severe
     that no reasonable person could be expected to endure it.

9.   Torts -- outrage -- appellees' proof on appellants' lack of emotional
     distress was uncontested -- appellees entitled to summary judgment. -- The
     supreme court held that appellees were entitled to summary
     judgment on appellants' outrage claim because the proof
     presented by appellees on appellants' lack of emotional
     distress went uncontested.


     Appeal from Lonoke Circuit Court; Stephen Choate, Judge;
affirmed.
     Ogles Law Firm, P.A., by: John Ogles, for appellants.
     Williams & Anderson, by: Timothy W. Grooms and J. Leon Holmes,
for appellee Bank of Cabot.
     Hankins, Hicks, Madden & Blackwood, by: Stuart W. Hankins, for
appellee Bill Thompson.

     Robert L. Brown, Justice.
     This appeal is from a summary judgment in favor of appellees
Bank of Cabot and Bill Thompson.  The appellants, Jimmy W. Milam
(son) and James Milam (father), contend that the trial court erred
in granting summary judgment on their claims of defamation,
invasion of privacy, negligence, breach of fiduciary duty, and
outrage.  We disagree and affirm the summary judgment.
     On March 23, 1994, the Milams filed their complaint against
Thompson and the Bank of Cabot and asserted the claims that are the
subject of this appeal.  These claims were based on statements
allegedly made by Thompson on April 22, 1991, to two railroad
policemen for Union Pacific Railroad -- William Wood and J.S.
Trent.  Prior to filing the complaint, the Milams owned and
operated Milam Construction Co.  Thompson owned and operated
Transloading Services, Inc.  Although both businesses were
independent contractors hired by Union Pacific, they were not in
competition with each other.  Thompson was also a shareholder and
a member of the board of directors of the Bank of Cabot, which is
where the Milams maintained their accounts.  The complaint sought
to impute the conduct of Thompson to the Bank of Cabot under an
agency relationship that purportedly arose from Thompson's position
as an officer of the bank.
     The complaint also asserted that Thompson provided Wood with
confidential banking information regarding the financial condition
of the Milams.  Attached to the complaint was a report prepared by
William Wood, dated April 23, 1991, which was acquired by the
Milams' counsel under the Freedom of Information Act in August
1993.  The report revealed that Jimmy W. Milam was being
investigated by Union Pacific Railroad in connection with stolen
railroad ties.  Included in the Wood report were statements
attributed to Thompson: (1) that Jimmy W. Milam's report to the
Cabot police department of three stolen tractors was "probably
insurance fraud"; (2) that Jimmy W. Milam's net worth was $3,500;
(3) that James Milam was worth $630,000; (4) that James Milam was
paid $1,500 per month by Milam Construction Co.; (5) that Milam
Construction Co. was only showing profits of $500 per month; (6)
that Jimmy W. Milam had recently been in a "financial bind"; (7)
that Thompson thought it was a good idea to subpoena Jimmy W.
Milam's checks from the Bank of Cabot; and (8) that James Milam had
a high standard of living.
     The appellees answered and moved to dismiss the complaint. 
They admitted that Thompson met with Wood and Trent at Wood's
request and that he answered questions about the activities of
Jimmy W. Milam.  Appellees asserted in their answer that Thompson
did not recall giving any specific financial information to the
railroad policemen about the Milams because he did not recall
having that information.  They also asserted that he had no
knowledge of the Wood report, and that the Bank of Cabot had no
knowledge of the Thompson interview or Wood report until some time
after it had taken place.  Appellees denied that Thompson was an
officer of the bank but admitted that he was a shareholder and
member of the bank's board of directors.
     Pleading affirmatively, appellees contended that the
defamation claim was barred by the one-year statute of limitation
set out in Ark. Code Ann.  16-56-104(3) (Supp. 1995).  They
further claimed that Thompson's statements were made pursuant to a
contractual duty with Union Pacific, and thus qualified for a
privilege as being given during the course of a criminal
investigation.  They also asserted that the debtor-creditor
relationship between the Milams and the Bank of Cabot did not
equate to a fiduciary relationship.  Finally, they urged that any
damages suffered by Jimmy W. Milam were proximately caused by his
February 28, 1992 arrest for theft by receiving in connection with
railroad ties.
     The appellees next moved for summary judgment.  Attached to
the motion were affidavits from Wood and Trent wherein they averred
that they were certified law enforcement officers who questioned
Thompson in their official capacities as railroad policemen.  Also
attached to the motion was an affidavit from Thompson, which stated
that he had been a member of the bank's board of directors since
1988.  Thompson averred that he held a good-faith belief that he
had both a contractual obligation and a civic duty to answer
questions posed by Wood and Trent and that he believed the factual
information given in response to their questions was accurate.  He
said he did not know about the existence of Wood's report and that
he did not recall making a number of the statements provided in
that report.  Also accompanying the motion was an affidavit from
J.M. Park, chairman of the Bank of Cabot's board of directors,
which provided that neither he nor any officer, director, or
employee of the bank had any knowledge of the criminal
investigation or the interview given by Thompson until after its
occurrence.
     The Milams responded that the one-year statute of limitation
on the defamation claim was tolled because they could not have been
"presumed to have had reasonable knowledge of the statement" until
its discovery in August 1993.  The Milams submitted no affidavits
to support their response; nor did they depose Thompson.  They did,
however, file the deposition of William Wood some eight months
after their response to the summary-judgment motion was filed.  The
appellees later supplemented their motion for summary judgment with
deposition testimony from both Jimmy W. Milam and James Milam to
establish that neither suffered any damages as a result of the Wood
report.
     The trial court granted appellees' motions for summary
judgment and concluded that the defamation claim was barred by the
one-year statute of limitation.  With respect to the remaining
causes of action, the trial court determined that no genuine issues
of material fact existed and that the claims were not supported by
law.  The trial court further concluded that the Milams had failed
to meet proof with proof.

                       I. Summary Judgment
     The Milams advance the argument that the trial court erred in
granting summary judgment.  This court's standard of review with
respect to summary judgment is as follows:
          In these cases, we need only decide if the granting
     of summary judgment was appropriate based on whether the
     evidentiary items presented by the moving party in
     support of the motion left a material question of fact
     unanswered.  The burden of sustaining a motion for
     summary judgment is always the responsibility of the
     moving party.  All proof submitted must be viewed in a
     light most favorable to the party resisting the motion,
     and any doubts and inferences must be resolved against
     the moving party.  Our rule states, and we have
     acknowledged, that summary judgment is proper when a
     claiming party fails to show that there is a genuine
     issue as to a material fact and when the moving party is
     entitled to summary judgment as a matter of law.
Renfro v. Adkins, 323 Ark. 288, 295, 914 S.W.2d 306, 309-10 (1996)
(internal citations omitted); Cash v. Lim, 322 Ark. 359, 360-62,
908 S.W.2d 655, 656-57 (1995); Oglesby v. Baptist Medical Sys., 319
Ark. 280, 284, 891 S.W.2d 48, 50 (1995).  Once a moving party
establishes a prima facie entitlement to summary judgment by
affidavits or other supporting documents or depositions, the
opposing party must demonstrate a genuine issue of material fact by
meeting proof with proof.  Renfro v. Adkins, supra.  
     A.   Defamation
     Jimmy W. Milam claims that Thompson's statement that he was
probably involved in insurance fraud was defamation per se.  More
precisely, the Milams' complaint alleges slander.  It is clear that
an action for slander must be brought within one year of
publication.  Ark. Code Ann.  16-56-104(3) (Supp. 1995); Pinkston
v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988).  Milam asserts that
he could not be "presumed to have [had] reasonable knowledge of the
statement" about insurance fraud because it was made to Wood in
secret and thereafter concealed by Wood.  In support of this
tolling argument, Milam cites First Pyramid Life Ins. Co. v.
Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992).  In that case, this
court restated what is now the classic language for determining the
existence of fraudulent concealment, sufficient to toll a statute
of limitation:
     No mere ignorance on the part of the plaintiff of his
     rights, nor the mere silence of one who is under no
     obligation to speak, will prevent the statute bar.  There
     must be some positive act of fraud, something so
     furtively planned and secretly executed as to keep the
     plaintiff's cause of action concealed or perpetrated in
     a way that it conceals itself.  And if the plaintiff, by
     reasonable diligence, might have detected the fraud he is
     presumed to have had reasonable knowledge of it. 
First Pyramid Life Ins. Co. v. Stoltz, 311 Ark. at 319, 843 S.W.2d 
at 845, quoting Wilson v. General Elec. Capital Auto Lease, Inc.,
311 Ark. 84, 87, 841 S.W.2d 619, 620-21 (1992) (internal citations
omitted).
     The slander claim is clearly time-barred.  As the Bank of
Cabot points out, once it is clear from the face of the complaint
that an action is time-barred, the burden shifts to the plaintiff
to prove by a preponderance of the evidence that the statute of
limitation was tolled.  See First Pyramid Life Ins. Co. v. Stoltz,
supra.  Further, the act of fraudulent concealment must have been
committed by those now invoking the benefit of the statute of
limitation, namely Thompson and the Bank of Cabot.  See id.; Dupree
v. Twin City Bank, 300 Ark. 188, 777 S.W.2d 856 (1989).  There was
absolutely no proof presented by the Milams that either Thompson or
the Bank of Cabot had any involvement in hiding the fact that a
statement concerning insurance fraud was made.  In fact, the
affidavits of Thompson and J.M. Park provide that they had no
knowledge of the Wood report.  Jimmy W. Milam, though, certainly
knew that he was the subject of investigation for theft by
receiving of railroad ties within a year of the Wood report.  We
conclude that his tolling defense fails for lack of proof.
     B.   Invasion of Privacy
     The Milams next urge that summary judgment was inappropriate
for their invasion-of-privacy claim.  Arkansas has recognized the
existence of four actionable forms of invasion of privacy:
     (1) appropriation, which consists of the use of the
     plaintiff's name or likeness for the defendant's benefit;
     (2) intrusion, which is the invasion by one defendant
     upon the plaintiff's solitude or seclusion; (3) public
     disclosure of private [f]acts, which is the publicity of
     a highly objectionable kind, ... even though it is true
     and no action would lie for defamation; and (4) false
     light in the public eye, consisting of publicity which
     places the plaintiff in a false light before the public.
Dunlap v. McCarty, 284 Ark. 5, 9, 678 S.W.2d 361, 363-64 (1984)
(emphasis in original).  See Dodrill v. Ark. Democrat Co., 265 Ark.
628, 590 S.W.2d 840 (1979).
     As is pointed out by the Bank of Cabot, the Milams do not
state which theory of privacy invasion applies to their case.  It
is also difficult to ascertain both from the complaint and from the
Milams' argument whether the invasion was caused by the alleged
acquisition of the financial information from the bank by Thompson
or Thompson's alleged communication of it to the railroad
policemen.  In addition, the Milams do not cite any authority to
support violation of their privacy rights, and we decline to
research this point for them.  See Roberts v. State, 324 Ark. 68,
919 S.W.2d 192 (1996); Ransopher v. Chapman, 302 Ark. 480, 791 S.W.2d 686 (1990).  In sum, we will not develop this claim for the
Milams. That was their responsibility.  A conclusory allegation by
the Milams is not sufficient to ward off summary judgment.
     C.   Negligence and Breach of Fiduciary Duty
     The Milams alleged in their complaint and urge on appeal that
the appellees were negligent and breached a fiduciary duty when
confidential banking information was disclosed to Wood and Trent. 
Also, they assert that the Bank of Cabot itself was negligent in
failing to supervise Thompson and in not adequately protecting
their confidential financial records.  While these appear to be
very separate claims, appellants interweave them and do not
distinguish them in their argument.  
     In support of their twin claims, the Milams quote extensively
and almost verbatim from an ALR annotation without crediting
American Law Reports for the research.  See Edward L. Raymond, Jr.,
Annotation, Bank's Liability, Under State Law, For Disclosing
Financial Information Concerning Depositor or Customer, 81
A.L.R.4th 377 (1990 & Supp. 1996).  We do not countenance the
detailed borrowing of legal arguments from treatises without proper
acknowledgment of the source.  But in addition to this lapse, the
Milams do not present any analysis of the annotation or discuss
which of the referenced cases this court should follow.  Nor is
there any mention of the facts of the instant case in connection
with the cases briefed from other jurisdictions; nor any attempt to
apply these facts to a specific legal standard.
     We emphasized in J.W. Reynolds Lumber Co. v. Smackover State
Bank, 310 Ark. 342, 836 S.W.2d 853 (1992), the necessity of factual
underpinnings to establish a fiduciary relationship with a bank:
          Here there were no facts to indicate that Reynolds
     and the Bank had any relationship beyond that of
     debtor/creditor.  That being so, there was no fiduciary
     relationship and the chancellor did not err in dismissing
     the claim based on implied trust.
J.W. Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. at 347,
836 S.W.2d  at 855.  See also Marsh v. National Bank of Commerce, 37
Ark. App. 41, 822 S.W.2d 404 (1992)(noting that the customer
asserting a fiduciary relationship with his bank has the burden of
proving the relationship is beyond that of debtor/creditor).  We
hold that the Milams failed to submit any proof to convert what is
essentially a debtor/creditor relationship with the Bank of Cabot
into a fiduciary one.  Nor is proof presented to establish that
Thompson was acting as an agent of the bank when he met with the
railroad policemen in April 1991 or that there was any failure to
supervise on the part of the bank.  In short, the Wood report,
standing alone, is not sufficient to prevent summary judgment.
     D.   Outrage
     The Milams' final claim concerns the tort of outrage.  This
court has stated that we take "a very narrow view of claims of
outrage."  Renfro v. Adkins, 323 Ark. at 299, 914 S.W.2d  at 311. 
We have said that in order to succeed on this claim, a plaintiff
must prove:
     (1) the defendant intended to inflict emotional distress
     or knew or should have known that emotional distress was
     the likely result of his conduct; (2) the conduct was
     extreme and outrageous and was utterly intolerable in a
     civilized community; (3) the defendant's conduct was the
     cause of the plaintiff's distress; and (4) the emotional
     distress sustained by the plaintiff was so severe that no
     reasonable person could be expected to endure it.
Hollomon v. Keadle, 326 Ark. 168, 931 S.W.2d 413 (1996); Croom v.
Younts, 323 Ark. 95, 913 S.W.2d 283 (1996); Cherepski v. Walker,
323 Ark. 43, 913 S.W.2d 761 (1996).
     It is clear that the appellees are entitled to summary
judgment on the outrage claim because the proof presented by the
appellees on lack of emotional distress on the part of the Milams
went uncontested.
     Affirmed.