Country Corner Food and Drug, Inc. v. First State Bank and Trust Company of Conway, Arkansas, Tommy Watson and Virgil C. Shannon

COUNTRY CORNER FOOD AND DRUG, INC. v. FIRST
STATE BANK and TRUST COMPANY of Conway,
Arkansas, Tommy Watson and Virgil C. Shannon

97-608                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 23, 1998


1.   Civil procedure -- amended complaint timely filed -- appeal
     reviewed on merits. --- Where appellant's amended complaint
     was timely filed within the ten days allowed by the circuit
     court, the supreme court reviewed the appeal on the merits.

2.   Civil procedure -- Ark. R. Civ. P. 12(b)(6) -- standards to be
     applied in reviewing dismissal order. -- In reviewing a trial
     court's decision on a motion to dismiss under Rule 12(b)(6),
     the supreme court treats the facts alleged in the complaint as
     true and views them in the light most favorable to the party
     who filed the complaint; in deciding dismissal motions, the
     trial court must look only to the allegations in the
     complaint; to state a cause of action, the complaint must
     allege facts and not mere conclusions; when a complaint is
     dismissed without prejudice, the plaintiff has the option of
     pleading further or appealing; if the plaintiff appeals, the
     option to plead further is waived in the event of an
     affirmance by the appellate court. 

3.   Civil procedure -- determination whether matter sufficiently
     pleaded -- court looks to underlying facts supporting alleged
     cause of action. -- Arkansas is a fact-pleading state; the
     supreme court looks to the underlying facts supporting an
     alleged cause of action to determine whether the matter has
     been sufficiently pleaded.

4.   Fraud -- proof of -- elements required. -- Actual fraud is
     established by proving the existence of the following five
     elements: (1) a false representation, usually of a material
     fact; (2) knowledge or belief by the defendant that the
     representation is false; (3) intent to induce reliance on the
     part of the plaintiff; (4) justifiable reliance by the
     plaintiff; and (5) resulting damage to the plaintiff; in order
     to prevail over a Rule 12(b)(6) motion, appellant must plead
     sufficient facts to support all five elements.

5.   Fraud -- statements by appellee bank's representatives did not
     support fraud action -- no facts alleged supporting allegation
     that statements by bank were false at time they were made. --
     Statements by appellee bank's representatives concerning
     renewal of a note did not support an action for fraud where
     there were no facts alleged supporting an allegation that the
     statements by appellee were false at the time they were made. 

6.   Fraud -- statements by appellee bank's representatives did not
     support fraud action -- no facts pleaded by appellant to show
     justifiable reliance. -- Even assuming that appellee knew that
     statements concerning renewal of the note were false, the
     statements by appellee bank's representatives did not support
     an action for fraud where there were no facts pleaded by the
     appellant to show justifiable reliance on its part; the
     statements allegedly made by appellee merely lessened
     appellant's immediate financial burden in the interim by
     requiring it only to pay interest. 

7.   Fraud -- statements by appellee bank's representatives did not
     support fraud action -- bank had right to refuse loan. -- 
     Even if appellee bank made statements concerning renewal of a
     note with the intent that appellant rely on them, appellee had
     the right to refuse to renew the loan; appellant pleaded no
     facts that would show that appellee was obligated to renew the
     loan without the guarantors being on the new note.

8.   Torts -- tortious interference -- failure to show precise
     business expectancy or contractual relationship obstructed by
     appellee's actions fatal to cause of action. -- Appellant's
     claim that it sufficiently pleaded a claim for tortious
     interference with contractual relationship or business
     expectancy against appellee was without merit; none of
     appellant's allegations indicated with what contract or with
     what business expectancy appellee intended to interfere;
     failure to provide some precise business expectancy or
     contractual relationship being obstructed by appellee's
     actions was fatal to the cause of action.  

9.   Banks & banking -- fiduciary duty -- essential threshold to
     establish. -- To establish a fiduciary duty and breach thereof
     by a bank, the supreme court has emphasized the necessity of
     factual underpinnings to establish a relationship of trust and
     confidence between a bank and its customers that is more than
     a debtor-creditor relationship.

10.  Banks & banking -- breach of fiduciary duty by appellee bank
     alleged -- proof insufficient to establish fiduciary duty. -- 
     Although appellant alleged that there was a breach of
     fiduciary duty by appellee bank, the allegations made by
     appellant failed to meet the essential threshold required to
     establish such a duty; lack of sophistication and the alleged
     advice not to seek independent counsel may have resulted in
     appellant's being misled, but these facts did not create a
     fiduciary relationship; the point had no merit.

11.  Torts -- tort of breach of duty to act in good faith alleged -
     - case relied upon to establish inapplicable. -- Although
     appellant relied on Gordon v. Planters & Merchants Bankshares,
     326 Ark. 1046, 935 S.W.2d 544 (1996), to establish the tort of
     a breach of a duty to act in good faith, in that case the duty
     of good faith as set out by Ark. Code Ann.  4-1-203 (Repl.
     1991) was considered only in terms of considering whether
     punitive damages were allowable; the supreme court has
     recognized the affirmative tort of bad faith only against
     insurance companies.  

12.  Contracts -- breach of duty to act in good faith alleged -- no
     authority given in support of new cause of action -- court
     declined to recognize new tort. -- The fact that every
     contract imposes an obligation to act in good faith does not
     create a cause of action for a violation of that obligation;
     the supreme court has never recognized a cause of action for
     failure to act in good faith; where appellant provided no
     authority or argument for why the court should recognize a new
     tort for failure to act in good faith or how such a
     recognition could be reconciled with previous case law, which
     only recognizes the tort of bad faith against insurance
     companies, the supreme court declined to recognize this new
     tort in Arkansas.

13.  Torts -- how duress shown -- facts insufficient to show
     duress. -- To show duress, one must show that the duress
     resulted from the wrongful and oppressive conduct, and not by
     his own necessity; here, if appellee bank had the right to
     deny the renewal, such an action could not have been wrongful
     and oppressive; appellant pleaded no facts to show that
     appellee was required to renew the note or that the failure to
     renew it was an attempt to force appellant to do or to refrain
     from doing a particular act. 

14.  Torts -- independent tort for duress not recognized --
     appellant's argument without merit. -- Where appellant
     conceded that duress is not ordinarily recognized as an
     offensive doctrine; where appellant neither cited no cases to
     support recognition of the independent tort of duress nor it
     presented a valid argument for why the court should now
     recognize the tort; and where the facts pleaded by appellant
     in support of a new cause of action for duress did not meet
     its own definition in that facts showing coercion were not
     pleaded, there was no factual basis for the cause of action.

15.  Damages -- punitive-damages claim correctly dismissed -- no
     underlying compensatory claim existed. -- A claim for punitive
     damages is dependent on the existence of an underlying
     compensatory claim; here, the trial court correctly dismissed
     this claim due to the absence of any viable compensatory
     claims.

16.  Judgment -- summary judgment -- allegations in complaint are
     not proof for summary judgment purposes. -- Allegations in a
     complaint are not proof for summary judgment purposes.

17.  Judgment -- summary judgment properly granted -- appellant's
     case against appellee guarantors predicated on nonexistent
     requirement. -- In its order for summary judgment, the trial
     court found that appellant's allegations were predicated on
     the guarantors' failure to guarantee a new note; the language
     of the loan agreement made it clear that the guarantors were
     liable for the debt evidenced by a renewal note irrespective
     of whether they actually signed a renewal note as guarantors;
     thus, there was no requirement or need for them to sign one;
     however, appellee bank was perfectly within its rights to
     request their guarantee on the renewal note as additional
     security and to refuse to renew the note in the absence of a
     new guaranty agreement.

18.  Judgment -- summary judgment properly granted -- evidence
     presented by appellant to show appellee guarantors had
     obligation to sign renewal note insufficient. -- The only
     evidence presented by appellant to show that appellee
     guarantors had an obligation to sign the renewal note was
     deposition testimony of two bank officers who testified in
     accordance with the original agreement, which only served to
     underscore the fact that appellee bank required a new
     guarantee of appellee guarantors in order to extend the note;
     it did not prove that the guarantors had a duty or an
     obligation to sign a renewal note under any written agreement
     with appellant.


19.  Judgment -- summary judgment properly granted -- allegations
     of fraud and intentional interference with loan without merit.
     -- Appellant's argument that the appellee guarantors' failure
     to guarantee the renewal note was motivated by an effort to
     force appellant to pay a debt to a third party and that this
     constituted fraud and intentional interference with the loan
     was without merit; if the guarantors had no duty or obligation
     by agreement with appellant to sign the new note as
     guarantors, their motives for refusing to do so were
     irrelevant.  

20.  Judgment -- summary judgment properly granted -- case
     affirmed. -- There was no written document or other proof that
     the guarantors ever agreed with appellant to guarantee a
     renewal note; the circuit court did not err in its order of
     summary judgment; the case was affirmed.


     Appeal from Faulkner Circuit Court; Karen R. Baker, Judge;
affirmed.
     Streett & Coutts, by:  Alex G. Streett, for appellant.
     Graddy & Adkisson, P.A., by:  William C. Adkisson, for
appellee First State Bank & Trust Co.
     Brazil, Adlong, Murphy & Osment, by:  Matthew W. Adlong, for
appellees Watson and Shannon.

     Robert L. Brown, Justice.
     This case arises out of a business loan for operating capital
made by appellee First State Bank and Trust Company of Conway,
Arkansas (Bank) to appellant Country Corner Food and Drug, Inc.
(Country Corner).  In 1987, Charles Pitman and Douglas Horton and
appellees Tommy Watson and Virgil C. Shannon were all shareholders
in two corporations.  The corporations owned and operated two
grocery stores named Perry County Food & Drug and Country Corner
Food & Drug.  The corporations were named Perry County Food & Drug,
Inc., and Country Corner Food & Drug, Inc.  A swap agreement was
made among the shareholders to divide the shares of the two
corporations, where Watson and Shannon would become sole
shareholders in Perry County Food & Drug, Inc., while Pitman and
Horton would be the sole shareholders of Country Corner Food &
Drug, Inc.  Country Corner would lease the property for its grocery
store from Watson and Shannon.
     In furtherance of the swap agreement, on March 17, 1988,
Country Corner obtained a loan from the Bank for one year in the
amount of $194,734 for the purpose of financing inventory.  Because
Country Corner and Pitman and Horton were unable to obtain this
financing on their own, Watson and Shannon and their spouses signed
the promissory note as guarantors.  When the promissory note came
due on March 17, 1989, Watson and Shannon refused to sign the new
note as guarantors, and the Bank declined to renew the note. 
Country Corner failed to satisfy the debt in accordance with the
terms of the note, and the Bank foreclosed on the note and
collateral.
     On July 18, 1989, Watson and Shannon filed a suit in chancery
court against Country Corner and prayed that the court appoint a
receiver to prevent Pitman and Horton from selling off the
inventory of Country Corner and, thus, depleting the collateral for
the Bank loan.  The Bank intervened claiming an interest in the
same property.  Country Corner then filed an action in circuit
court against the Bank and Watson and Shannon and asserted several
causes of action in tort.  On August 17, 1989, the chancery court
appointed a receiver who ultimately sold the Country Corner store
and its assets.  Watson and Shannon next paid the balance due under
the note pursuant to their guaranty agreement.  What remained to be
litigated in circuit court were the causes of action in tort filed
by Country Corner against the Bank and Watson and Shannon.
     On August 6, 1992, the circuit court granted a motion to
dismiss Country Cornerþs complaint against all appellees on the
grounds that Country Corner had failed to plead sufficient facts to
state a claim under Ark. R. Civ. P. 12(b)(6).  On August 20, 1992,
Country Corner filed an amended compliant, and appellees again moved
to dismiss.  By order dated October 1, 1992, the circuit court
granted the Bankþs motion to dismiss but denied the motion with
respect to Watson and Shannon.  Following more than a year of
discovery, Watson and Shannon filed a motion for summary judgment. 
On December 4, 1996, the circuit court entered its order granting
summary judgment.  Country Corner now appeals from the two orders.

              I. Bankþs Dismissal Under Rule 12(b)(6)
     For its first point, Country Corner argues that its amended
complaint sufficiently alleged facts to state claims against the
Bank.  The Bank counters that the amended complaint against it was
properly dismissed because it was not timely filed, and even if it
was, Country Corner failed to plead sufficient facts under Ark. R.
Civ. P. 12(b)(6).
     We conclude that Country Cornerþs amended complaint was timely
filed within the ten days allowed by the circuit court.  Rule 6 of
the Arkansas Rules of Civil Procedure states that "[w]hen the period
of time prescribed or allowed is less than eleven (11) days,
intermediate Saturdays, Sundays, or legal holidays shall be excluded
in the computation."  The order of dismissal was filed on August 6,
1992, and the amended complaint was filed on August 20, 1992,
exactly 10 days later, excluding weekend days.  We will, as a
result, review the appeal on the merits.
     This court has often stated the standards to be applied in
reviewing a dismissal order under Rule 12(b)(6):
          In reviewing a trial court's decision on a motion to
     dismiss under Rule 12(b)(6), we treat the facts alleged
     in the complaint as true and view them in the light most
     favorable to the party who filed the complaint.  Neal v.
     Wilson, 316 Ark. 588, 873 S.W.2d 552 (1994); Gordon v.
     Planters & Merchants Bancshares, Inc., 310 Ark. 11, 832 S.W.2d 492 (1992); Battle v. Harris, 298 Ark. 241, 766 S.W.2d 431 (1989).  In deciding dismissal motions, the
     trial court must look only to the allegations in the
     complaint.  Neal v. Wilson, supra; Wiseman v. Batchelor,
     315 Ark. 85, 864 S.W.2d 248 (1993); Deitsch v. Tillery,
     309 Ark. 401, 833 S.W.2d 760 (1992).  In order to state
     a cause of action, the complaint must allege facts and
     not mere conclusions.  Ark. R. Civ. P. 8; see also
     Hollingsworth v. First Nat'l Bank & Trust Co., 311 Ark.
     637, 846 S.W.2d 176 (1993); Rabalaias v. Barnett, 284
     Ark. 527, 683 S.W.2d 919 (1985).  When a complaint is
     dismissed without prejudice, the plaintiff has the option
     of pleading further or appealing.  Hollingsworth v. First
     Nat'l Bank & Trust Co., supra.  If the plaintiff appeals,
     the option to plead further is waived in the event of an
     affirmance by the appellate court. Id.
Hunt v. Riley, 322 Ark. 453, 457, 909 S.W.2d 329, 331-32 (1995).  
     Arkansas is a fact-pleading state, and this court looks to the
underlying facts supporting an alleged cause of action to determine
whether the matter has been sufficiently pled. Brown v. Tucker, 330
Ark. 435, 954 S.W.2d 262 (1997).  Country Corner contends that its
amended complaint included sufficient facts to support six causes
of action in tort against the Bank: fraud, tortious interference
with the contractual relationship or business expectancy, breach of
fiduciary duty, duty to act in good faith, duress, and punitive
damages.  We will consider the claims seriatim.

a.   Fraud
     Country Corner first urges that it properly pled fraud by the
Bank.  We have stated that actual fraud is established by proving
the existence of the following five elements: (1) a false
representation, usually of a material fact; (2) knowledge or belief
by the defendant that the representation is false; (3) intent to
induce reliance on the part of the plaintiff; (4) justifiable
reliance by the plaintiff; and (5) resulting damage to the
plaintiff.  Wiseman v. Batchelor, 315 Ark. 85, 864 S.W.2d 248
(1993).  In order to prevail over a Rule 12(b)(6) motion, Country
Corner must plead sufficient facts to support all five elements.
     In paragraphs 27 through 31 of its amended complaint, Country
Corner alleges that Bank representatives made false representations
by stating that the 1988 promissory note in the amount of $194,734
would be renewed.  In paragraph 22 of the complaint, Country Corner
further alleges that the Bank informed it that the renewal note was
being prepared in 1989 and that Country Corner should only pay
interest on the note until the renewal note was executed.
     Assuming that these allegations are true, the statements by the
Bank representatives do not support an action for fraud.  First,
there are no facts alleged supporting an allegation that these
statements by the Bank were false at the time they were made.  The
Bank could well have been in the process of renewing the note but
decided that additional security in the form of a Watson/Shannon
guaranty on the new note was warranted.  Secondly, even assuming
that the Bank knew the statements were false, there are no facts
pled by Country Corner to show justifiable reliance on its part. 
In fact, there was no reason for Country Corner to rely on these
statements to its detriment.  The statements allegedly made by the
Bank merely lessened Country Cornerþs immediate financial burden in
the interim by requiring it only to pay interest.  And, again,
Country Corner had to be aware that the Bank could require
additional security.
     Finally, even if the Bank made these statements with the intent
that Country Corner rely on it, the Bank had the right to refuse to
renew the loan.  Country Corner pled no facts which would show that
the Bank was obligated to renew the loan without the guarantee of
Watson and Shannon on the new note.
b.   Tortious Interference
     Country Corner also claims that it has sufficiently pled a
claim for tortious interference with contractual relationship or
business expectancy against the Bank.  Paragraphs 32 and 33 of
Country Cornerþs amended complaint relate to its allegations of
tortious interference.  Paragraph 32 incorporates the previous
paragraphs of the complaint, and paragraph 33 merely states that the
Bank interfered with Country Cornerþs "contract advantage" by giving
þassurancesþ and then refusing to renew the loan.  Reference to the
þassurancesþ apparently refers back to the allegations that the Bank
representatives stated that the note would be renewed.  Neither this
section nor the previous incorporated sections indicates with what
contract or with what business expectancy the Bank intended to
interfere.  It is elementary that some precise business expectancy
or contractual relationship be obstructed by the Bankþs actions. 
See United Bilt Homes, Inc. v. Sampson, 310 Ark. 47, 832 S.W.2d 502
(1992).  That lapse is fatal to this cause of action.  

c.   Breach of Fiduciary Duty
     Next, Country Corner claims breach of fiduciary duty by the
Bank.  In paragraph 38 of the amended complaint, Country Corner
alleges that a fiduciary duty was created by the fact that the
Bankþs attorney claimed to represent both Country Corner and the
Bank in the creation of the loan.  Country Corner contends that the
duty was breached by the Bankþs representative maintaining that it
did not need separate counsel and by the Bankþs providing a loan for
such a large sum of money on a one year balloon note to an
unsophisticated borrower. 
     This court has emphasized the necessity of factual
underpinnings to establish a relationship of trust and confidence
between a bank and its customers which is more than a
debtor/creditor relationship.  Milam v. Bank of Cabot, 327 Ark. 256,
937 S.W.2d 653 (1997); J.W. Reynolds Lumber Co. v. Smackover State
Bank, 310 Ark. 342, 836 S.W.2d 853 (1992).  See also, Marsh v.
National Bank of Commerce, 37 Ark. App. 41, 822 S.W.2d 404 (1992). 
We do not agree that the allegations in this case meet that
essential threshold.  Lack of sophistication and the alleged advice
not to seek independent counsel at best may have resulted in Country
Cornerþs being misled, but these facts do not create a fiduciary
relationship.  We find no merit to this point.

d.   Good Faith
     Paragraphs 40 through 43 of the amended complaint deal with
Country Cornerþs claim that there was a tortious breach of the
implied covenant of good faith and fair dealing.  Only paragraph 41
pertains to the actions of the Bank, and that allegation, once more,
is that the Bank made representations to Country Corner that the
note would be renewed each year but that the Bank had no intention
of doing so.
     Country Corner relies on Gordon v. Planters & Merchants
Bankshares, 326 Ark. 1046, 935 S.W.2d 544 (1996), to establish the
tort of a breach of a duty to act in good faith.  Yet, in Gordon,
this court considered the duty of good faith as set out by Ark. Code
Ann.  4-1-203 (Repl. 1991), only in terms of considering whether
punitive damages were allowable in that case.  Furthermore, this
court has recognized the affirmative tort of bad faith only against
insurance companies.  See, e.g., Affiliated Foods Southwest, Inc.
v. Moran, 322 Ark. 808, 912 S.W.2d 8 (1995); American Health Care
Providers, Inc. v. O'Brien, 318 Ark. 438, 886 S.W.2d 588 (1994);
Quinn Cos. v. Herring Marathon Group, Inc., 299 Ark. 431, 773 S.W.2d 94 (1989); Aetna Casualty & Surety Co. v. Broadway Arms Corp., 281
Ark. 128, 664 S.W.2d 463 (1983).  
     Country Corner concedes that the tort of bad faith only applies
to insurance companies but argues that this case is not a bad-faith
case but rather is one for breach of the duty to act in good faith. 
The corporation claims that this duty is created by Ark. Code Ann.
 4-1-203 (Repl. 1991) and  4-1-201(19) (Supp. 1997):
     4-1-203. Obligation of good faith.
     Every contract or duty within this subtitle imposes an
     obligation of good faith in its performance or
     enforcement.
     4-1-201. General definitions.
     (19) "Good faith" means honesty in fact in the conduct or
     transaction concerned.
     The fact that every contract imposes an obligation to act in
good faith does not create a cause of action for a violation of that
obligation, and, as discussed above, this court has never recognized
a cause of action for failure to act in good faith.  Country Corner
adduces no authority or argument for why this court should now
recognize a new tort for failure to act in good faith or how such
a recognition can be reconciled with our previous case law which
only recognizes the tort of bad faith against insurance companies. 
Without a cogent reason supported by convincing authority for taking
this step, we decline to recognize this new tort in Arkansas.  J.
& J. Bonding, Inc. v. State, 330 Ark. 599, 955 S.W.2d 516 (1997)
(holding that when a party does not cite authority or make a
convincing argument and it is not apparent without further research
that the point is well taken, this court will affirm).

e.   Duress
     We also refuse to recognize an independent tort for duress. 
Here, Country Corner appears to claim that the duress or coercion
exercised by the Bank forced it to fail to stock the grocery store
properly.  Although it cites Cox v. McLaughlin, 315 Ark. 338, 867 S.W.2d 460 (1993), as providing the basis for the tort of duress,
Country Corner concedes that duress is "not ordinarily recognized
as an offensive doctrine."  Country Corner cites no cases to support
our recognition of the tort of duress, nor does it present a valid
argument for why this court should now recognize the tort.  
     In addition, the facts pled by Country Corner in support of a
new cause of action for duress do not meet its own definition.  This
court in Cox stated that in order to show duress, one must show that
the duress resulted from the "wrongful and oppressive conduct, and
not by his own necessity."  If the Bank had the right to deny the
renewal, such an action cannot have been wrongful and oppressive. 
Again, Country Corner pleads no facts to show that the Bank was
required to renew the note or that the failure to renew it was an
attempt to force Country Corner to do or refrain from doing a
particular act.  Thus, even if we were of a mind to recognize this
new tort, which we are not, facts showing coercion have not been
pled.  There is no factual basis for this cause of action.

f.   Punitive Damages
     Finally, Country Corner claims to have stated a claim for
punitive damages.  However, all parties agree that such a claim is
dependent on the existence of an underlying compensatory claim.  
Hale v. Ladd, 308 Ark. 567, 826 S.W.2d 244 (1992).  The trial court
correctly dismissed this claim due to the absence of any viable
compensatory claims.

                       II. Summary Judgment
     Country Cornerþs second point is that the circuit court erred
in finding that there were no material issues of fact in its case
against appellees Watson and Shannon.  It maintains that if any
material fact question exists with respect to any element of any
tort alleged, the case must be tried.  See Renfro v. Adkins, 323
Ark. 288, 914 S.W.2d 306 (1996).  We first emphasize that
allegations in a complaint are not proof for summary judgment
purposes.  See Wheeler v. Phillips Development Corp., 329 Ark. 354,
947 S.W.2d 380 (1997); Porter v. Harshfield, 329 Ark. 130, 948 S.W.2d 83 (197); Guthrie v. Kemp, 303 Ark. 74, 793 S.W.2d 782
(1990).  We fail to glean a material fact issue with respect to any
of the claims asserted against Wilson and Shannon, and we affirm on
this point as well.
     In its order for summary judgment, the trial court first found
that Country Cornerþs allegations were predicated on Watsonþs and
Shannonþs failure to guarantee a new note and that the two
guarantors had paid the Bank the balance due on the note which was
the subject of the guaranty agreement.  The court then concluded
that Watson and Shannon had no obligation to guarantee a new note
in 1989 for two reasons.  First, guarantors are favored in the law
and the terms of any guaranty agreement should be strictly construed
in their favor.  Arkansas Industrial Development Commission v.
Fabco, 312 Ark. 26, 847 S.W.2d 13 (1993).  Secondly, the language
of the Loan and Guaranty Agreement between the parties dated
February 20, 1987, placed no obligation on Watson and Shannon to
sign a renewal note.  Indeed, the pertinent language of that
agreement contemplated that the guarantors would be liable for any
renewals of the note: 
     This guaranty is and shall remain unqualified and
     unconditional, and shall apply to any and all obligations
     owed or to be owed by Country Corner, and any and all
     renewals and/or extensions thereof, with or without
     notice unto guarantors, and shall in all things remain
     unaffected by the occurrence or non-occurrence of any
     event of any nature other than payment in full of all
     indebtedness owed by Country Corner to bank.
     We agree with the trial court.  The above-quoted language makes
it clear that Watson and Shannon were liable for the debt evidenced
by a renewal note irrespective of whether they actually sign a
renewal note as guarantors.  Thus, there was no need for them to
sign one.  Nevertheless, the Bank was perfectly within its rights
to request their guarantee on the renewal note as additional
security and to refuse to renew the note in the absence of a new
guaranty agreement.
     The only evidence presented by Country Corner to show that
Watson and Shannon had an obligation to sign a renewal note as
guarantors was the deposition testimony of two Bank officers who
testified that in accordance with the original agreement, the Bank
would not extend the note without the guarantee of Watson and
Shannon.  But all this testimony does is underscore the fact that
the Bank required a new guarantee of Watson and Shannon in order to
extend the note.  It does not prove that Watson and Shannon had a
duty or an obligation to sign a renewal note under any written
agreement with Country Corner, even though they may well have been
liable for any note renewals under the terms of the Loan and
Guaranty Agreement.  In sum, there is no written document or other
proof that Watson and Shannon ever agreed with Country Corner to
guarantee a renewal note.  Nor do we give any credence to Country
Cornerþs assertion that there is a material fact question about
whether Watson and Shannon acted in good faith.
     Finally, Country Corner urges that Watsonþs and Shannonþs
failure to guarantee the renewal note was motivated by an effort to
force Country Corner to pay a debt to a third party and that this
constitutes fraud and intentional interference with the loan. 
However, if Watson and Shannon had no duty or obligation by
agreement with Country Corner to sign the new note as guarantors,
their motives for refusing to do so are irrelevant.  
     We hold that the circuit court did not err in its order of
summary judgment.
     Affirmed.
     Newbern, J., not participating.