text:
    Dennis BRANTON and Dorothy Branton, Plaintiffs-Appellants, v. Todd A. MADDOX and Maddox & Hughes Insurance Agency, Inc., and ABC Insurance Company, Defendants-Appellees.
    No. 42,853-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.

      Jeff R. Thompson, Bossier City, Pet-tiette Armand, Dunkelman, Woodley, Byrd & Cromwell, L.L.P., Shreveport, by S. Michael Cooper, for Plaintiffs-Appellants.
    Ungarino & Eckert, L.L.C. by Brian D. Smith, Shreveport, Karen Godail Arena, Matthew J. Ungarino, Metairie, for Defendants-Appellees.
    Before STEWART, GASKINS and MOORE, JJ.
   GASKINS, J.

11 This suit against an insurance . agent and his agency concerns a homeowner’s policy issued to cover a house in New Orleans; the house flooded during Hurricane Katrina in 2005. The plaintiffs appeal from a trial court judgment granting the defendants’ exception of peremption. We affirm.

FACTS

In May 2002, Dennis and Dorothy Bran-ton, who live in Bossier Parish, bought a house for their daughter in New Orleans. They sought insurance for the house through the Maddox & Hughes Insurance Agency, Inc., a Louisiana corporation domiciled in Bossier Parish; this agency had handled the plaintiffs’ insurance needs for many years. They dealt with Todd Maddox, a licensed property and casualty insurance agent. The plaintiffs paid the premiums for the policy secured by Maddox.

In August 2005, flooding after Hurricane Katrina damaged the house purchased by the Brantons for their daughter. They were informed that the policy did not provide coverage for the loss sustained.

On August 28, 2006, the Brantons filed suit against Mr. Maddox and the agency, as well as the unknown insurer who provided errors and omissions liability insurance for the other defendants. They alleged that they relied upon the defendants to identify and insure their property from risks of damage or loss.

On February 18, 2007, the defendants filed an exception of peremption in which they asserted that the plaintiffs’ cause of action was perempted by the periods of one and three years set forth in La. R.S. 9:5606.

| pin April 2007, the plaintiffs filed a response in which they alleged that on May 12, 2005, the annual insurance protection provided on their property came up for review, reassessment and identification of risks, and that they relied upon the defendants to identify and insure the property against all risks. The .plaintiffs attached Mr. Maddox’s deposition.

The exception was submitted to the trial court on briefs in April 2007. It issued a written opinion and order in which it granted the exception. The court found that the three-year peremptive period began to run from the date of the original policy. It ruled that the law is clear that the alleged act, omission or neglect must have occurred within three years of when the policy was initially issued. The court stated that it found no support in the jurisprudence for the plaintiffs’ argument that the peremptive period did not begin until the date of the last renewal.

The plaintiffs appeal.

LAW

La. R.S. 9:5606 provides:

A. No action for damages against any insurance agent, broker, solicitor, or other similar licensee under this state, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered. However, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
hC. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.
D. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

Generally, subsequent renewals of insurance policies “do not operate to restart peremption.” White v. Allstate Insurance Company, 513 F.Supp.2d 674 (E.D.La.2007). See Bel v. State Farm Mutual Automobile Insurance Co., 2002-1292 (La.App. 1st Cir.2/14/03), 845 So.2d 377, writ denied, 2003-0733 (La.5/30/03), 845 So.2d 1057; Biggers v. Allstate Insurance Company, 04-282 (La.App. 5th Cir.10/26/04), 886 So.2d 1179. However, renewals can be the basis of separate torts, if the complained of conduct constitutes separate and distinct acts, which give rise to immediately apparent damages. Fidelity Homestead Association v. Hanover Insurance Company, 458 F.Supp.2d 276 (E.D.La.2006); Bel, supra; Biggers, supra. The inquiry is whether the actions of the insurance agent at the time of renewal can be construed to constitute an act separate from the initial policy procurement. White, supra.

Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period. La. C.C. Art. 3458. Peremption may not be renounced, interrupted, or suspended. La. C.C. Art. 3461.

Under Louisiana law, an insured has a duty to read his insurance policy and know its provisions. Fidelity Homestead Association, supra.

^DEPOSITION TESTIMONY

The Brantons submitted Todd Maddox’s deposition in opposition to the defendants’ exception of peremption. Mr. Maddox testified that the Brantons were clients of the agency for whom they wrote both commercial lines and personal lines of insurance. The commercial lines included coverage for commercial auto, commercial property, general liability, and workers’ compensation. Among the personal lines were homeowner’s, personal auto, classic auto, real estate, motorcycle and personal umbrella coverage. The annual premiums paid by the Brantons in the commercial lines were at least $100,000; in the personal lines, their annual premiums were between $10,000 and $15,000. Based on premium dollars, Mr. Maddox testified, the Brantons were considered “significant customers” who received special attention by the agency.

Mr. Maddox indicated that in connection with the renewal of the commercial line policies, he had contact with them in the weeks before the renewal to make any necessary changes and update information on things such as payroll and receipts. However, as to the renewals for the personal lines, he did not meet with them in the weeks prior to renewal. He said this was because items were not likely to change in the personal lines as they did with the commercial lines. According to Mr. Maddox, the risk assessment for the personal lines was primarily done when the policy was first obtained.

As to the insurance on the New Orleans house, he had no memory of reviewing the risks or policies at any renewal period after the policy was first issued. After Hurricane Katrina, he recalled speaking to Mrs. Branton; |Bthe policy showed hurricane coverage, which meant wind damage and water damage due to wind damage. They spoke about the hurricane coverage again after the levee broke.

He subsequently attended a meeting at the Brantons’ office; they were upset that the insurance company had sent them a check for only between $10,000 and $12,000. He advised them that this was probably for the wind damage to the house. During the meeting, Mrs. Branton indicated that she had asked for flood insurance; he responded that she had not. According to Mr. Maddox, Mrs. Branton stated that she had and that they had told her either they could not provide it or it could not be bought. Mr. Maddox testified that he informed Mrs. Branton that they would not have made such a statement; instead, they would have told her that they needed an elevation certificate before they could provide a quote on flood insurance.

Mr. Maddox further testified that he did not recall any conversation with the Bran-tons about wanting flood insurance for the New Orleans house. If they had desired that sort of coverage, it would have been standard practice of the agency to request an elevation certificate from the Brantons. He also testified that he never advised them to obtain separate insurance coverage for flood risk. Nor did he make a subsequent recommendation to do so after the policy was first issued. Mr. Maddox also testified that the homeowner’s policy on the Brantons’ house in New Orleans was the only one issued in Orleans Parish • by the agency.

1 «DISCUSSION

If the policy on the New Orleans house was simply renewed without discussion, the subsequent renewals were nothing more than “a continuation of the ill effects of an original unlawful act” with no further opportunity for the agency to make misrepresentations about the policy. Bel, supra; Biggers, supra. However, courts have refused to uphold peremption when there were annual discussions pertaining to coverage [Southern Athletic Club, LLC v. Hanover Insurance Company, 2006 WL 2583406 (E.D.La.2006), and Fidelity Homestead Association, supra]; when changes requested in the last three years were not made [Rivera v. State Farm and Casualty Company, 2007 WL 763633 (E.D.La.2007)]; and when there were annual requests for — and denial of— additional coverage [Sonnier v. Louisiana Farm Bureau Mutual Insurance Co., 2005-1006 (La.App. 3d Cir.3/1/06), 924 So.2d 419, writ denied, 2006-0704 (La.5/26/06), 930 So.2d 33]. The courts concluded that these acts might be construed as constituting separate and distinct acts from the original issuance of the policies involved.

The deposition testimony of Mr. Maddox indicated that no annual meetings were conducted as to the personal lines of insurance procured by his agency for the Bran-tons. Rather, the annual meetings with the Brantons pertained to the commercial lines of insurance; these business-related policies were more likely to require adjustments, due to such things as changes in their company’s payroll. Under the circumstances presented in this case, we are obliged to find, as did the trial court, that the three-year |7peremptive period set forth in La. R.S. 9:5606 commenced when the original policy was issued in 2002. Since suit was not filed until 2006, the Brantons’ claims against the defendants were perempted and extinguished.

CONCLUSION

The trial court judgment granting the defendants’ exception of peremption is affirmed. Costs of this appeal are assessed against the appellants, Dennis and Dorothy Branton.

AFFIRMED.

      . This is not a lawsuit on whether the hurricane coverage should also cover the flood damage. It is solely a claim against the insurance agent, the agency, and the company that insured the agency.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    MARSH FARMS, Plaintiff-Applicant v. David Edward OLVEY, Defendant-Respondent.
    No. 42,889-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.

      Mulhearn & Smith, by LeRoy Smith, Jr., Tallulah, for Applicant.
    Hamilton & Hamilton, by Orlando N. Hamilton, Jr., Oak Grove, for Respondent.
    Before STEWART, DREW and LOLLEY, JJ.
   LOLLEY, J.

| ¶ This matter originally came to us as an appeal, it was subsequently converted to a writ, and the writ was granted to docket for consideration. Marsh Farms, the plaintiff/applicant herein, maintains that the Sixth Judicial District Court, Parish of Madison, State of Louisiana, erred in granting an Exception of Prematurity filed by the defendant/respondent, David Edward Olvey. For the following reasons, we affirm the judgment of the trial court.

Facts

On December 27, 2005, Marsh Farms entered into a Farm Lease (the “lease”) with David Edward Olvey (“Olvey”) to lease approximately 887 acres of farm land in Madison Parish, Louisiana. The term of the lease was one year-from January 1, 2006 until December 81, 2006. Marsh Farms leased the land in order to farm cotton. The parties entered into a supplemental lease on January 25, 2006.

Marsh Farms alleges that in 2006 during the lease term, it had cut about forty acres of cotton, and then decided to “scrap” the remainder of the cotton as they had the year before. Apparently, Marsh Farms did not immediately proceed, but when it returned to “scrap” the cotton as planned, Marsh Farms discovered that Olvey had cut the remaining stalks of cotton prior to the termination of the lease on December 31, 2006. Marsh Farms claimed that it had made its lease payments timely, in a total amount of $106,820.00.

Marsh Farms proceeded against Olvey judicially and filed its petition in the trial court, originally claiming that Olvey had “disturbed their possession,” and as a result, Olvey was indebted to Marsh Farms. In | ¡response, Olvey filed an exception of prematurity in the trial court, stating that Marsh Farms’ petition was premature, because under the terms of the lease, the parties were bound to refer any dispute arising from the agreement to arbitration. Olvey attached a copy of the lease to his exception. Marsh Farms subsequently amended his petition to claim that Olvey “destroyed the cotton located on the ... property, which cotton crop was owned by Marsh Farms.” After a hearing on the matter, the trial court sustained Olvey’s exception, entered judgment in his favor, and dismissed Marsh Farms’ claims without prejudice. Marsh Farms appealed the judgment. Pursuant to an order of this court dated October 18, 2007, the appeal was converted to a supervisory writ, which writ was docketed for further review and disposition.

Discussion

Marsh Farms raises one assignment of error, arguing that the trial court erred in sustaining Olvey’s exception of prematurity. The trial court based the ruling on its conclusion that the issues raised by Marsh Farms were subject to arbitration as agreed to in the lease. For the following reasons, we agree with the trial court’s determination that Marsh Farms’ judicial action was premature.

Arbitration is favored in Louisiana. Louisiana Revised Statute 9:4201 provides:

A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement is to submit, shall be valid, irrevocable, and ^enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

Louisiana courts look to federal law in interpreting the act because it is virtually identical to the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16. Snyder v. Belmont Homes, Inc., 2004-0445 (La.App. 1st Cir.02/16/05), 899 So.2d 57, writ denied, 2005-1075 (La.06/17/05), 904 So.2d 699. There is a strong national policy in favoring arbitration of disputes, and all doubts concerning arbitrability of claims should be resolved in favor of arbitration. See Primerica Life Ins. Co. v. Brown, 304 F.3d 469 (5th Cir.2002), citing, Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984).

The failure of a party to arbitrate in accordance with the terms of an agreement may be raised either through a dilatory exception of prematurity demanding dismissal of the suit or by a motion to stay the proceedings pending arbitration. Town of Homer, Inc. v. General Design, Inc., 42,027 (La.App. 2d Cir.05/30/07), 960 So.2d 310; writ denied, 2007-1820 (La.11/9/07), 967 So.2d 510. When the issue is raised by the exception pleading prematurity, the defendant pleading the exception has the burden of showing the existence of a valid contract to arbitrate, by reason of which the judicial action is premature. Cook v. AAA Worldwide Travel Agency, 360 So.2d 839 (La.1978); Johnson’s, Inc. v. GERS, Inc., 34,268 (La. App. 2d Cir.01/24/01), 778 So.2d 740. The threshold inquiry is whether the parties have agreed to arbitrate the dispute in question. Johnson’s, Inc., supra. This determination involves two considerations: (1) whether there is |4a valid agreement to arbitrate between the parties; and (2) whether the dispute in question falls within the scope of that arbitration agreement. Id.

As stated herein, Olvey filed an excep-tion of prematurity (but not a motion to stay the judicial action), seeking the dismissal of Marsh Farms’ claims against him. Marsh Farms acknowledges the validity of the lease and the arbitration agreement therein. There was no issue made by Marsh Farms as to whether the lease between the parties was a valid agreement to arbitrate between them — the first prong to consider when addressing an exception of prematurity on an arbitration question. Rather, it is the second prong under consideration in this ease — whether the dispute in question falls within the scope of the arbitration agreement. Marsh Farms disputes whether its claim falls within the scope of the arbitration provision in the lease, specifically arguing that because Olvey-⅛ alleged actions sounded in tort, the claim is not subject to arbitration. We disagree.

In the case sub judice, the wording in the lease clearly states that “in the event a dispute arises between [Olvey] and [Marsh Farms] as to whether a given practice is necessary, or over any other provision of this lease ...,” then the parties will settle the dispute through arbitration. Although Marsh Farms amended its claims against Olvey to sound tortious in nature, we do not believe that its claims are necessarily nonarbitrable as a result-primarily because the alleged acts by Olvey are integrally linked to the contractual relationship between the parties and because the cotton crop, which this controversy centers around, is the direct object of the contract between the parties. In order to determine whether Olvey has any potential liability to RMarsh Farms for his alleged actions, it is absolutely necessary to look at his actions in light of the lease; therefore, if the lease provisions are considered in reaching a conclusion, it follows that the arbitration provision must also be adhered to. It is not as if Olvey’s alleged actions fell completely outside of his contractual relationship with Marsh Farms or that Olvey was some random third party that acted against Marsh Farms. The trial court obviously could not examine this controversy in a vacuum without any consideration of the contract between the parties. Because it is essential to examine the claims against Olvey and decide the controversy between the contracting parties in light of the lease and considering the strong policy in favor of enforcing arbitration, it is axiomatic that Marsh Farms’ claims are subject to the arbitration provision of the lease. Thus, the trial court properly determined that a judicial action by Marsh Farms was premature and its claims should be dismissed without prejudice. The trial court’s action was not in error.

Conclusion

For the foregoing reasons, the judgment of the trial court sustaining David Edward Olvey’s Exception of Prematurity is affirmed. Costs are assessed to Marsh Farms.

AFFIRMED.

      . Although the trial court “order[ed] that arbitration occur” in its oral reasons for judgment, it did not include such an order in its final judgment. Given the legal tenet that appeals are taken from judgments and not reasons for judgment, we note that ultimately, in its judgment on the exception, the trial court did not order the parties to proceed via arbitration and neither will this court. Notably, Marsh Farms did not file a motion to stay the judicial proceeding pending arbitration. Thus, we will not order the parties to actually commence with arbitration, but should Marsh Farms wish to proceed against Olvey with its claims, the proper procedure would be through arbitration, in accordance with the lease provisions.


author: CARAWAY, J.

text:
    Donald L. LAMBERT, Plaintiff-Appellant v. DON M. BARRON CONTRACTOR, INC., Defendant-Appellee.
    No. 42,868-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.

      Booth & Booth, APLC, by Jane Ettinger Booth, New Orleans, for Appellant.
    Harold W. Aswell, Farmerville, for Ap-pellee.
    Before CARAWAY, PEATROSS and DREW, JJ.
   CARAWAY, J.

| ¶ This dispute concerns the formation of a contract between two admitted good friends. Because of the troubled construction business of the defendant, the plaintiff allegedly entered an oral one-year consultant agreement with the defendant for $37,200. After reviewing the parties’ dealings and relationship, the trial court determined that the defendant never accepted the offered services of the plaintiff, and in the absence of a clear meeting of the minds of the parties, plaintiffs contract claim was dismissed. Reviewing the trial court’s factual findings under the manifest error standard, we affirm the ruling.

Facts

Don M. Barron (“Barron”) is a commercial construction contractor doing business in Farmerville, Louisiana. His corporation is Don M. Barron, Inc. (“DMB, Inc.”). This dispute arises out of an alleged consulting contract entered between Barron and Donald G. Lambert (“Lambert”) in 1998, when Barron’s business experienced financial difficulties.

Earlier, in 1996, DMB, Inc. contracted with an out-of-state developer for several apartment construction projects in Ohio and Georgia. DMB, Inc. provided its bonding capacity in exchange for a percentage of the returns on the projects. The total construction cost of each project ranged from two to fifteen million dollars. DMB, Inc. received payments and deducted its percentage as work progressed on the project. As they neared completion in 1998, problems with subcontractor performance, suppliers and other disputes arose, leaving DMB, Inc. with substantial difficulties stemming | ¿from its relationship with the developer. DMB, Inc. began experiencing financial strain as the projects became mired. DMB, Ine.’s attorney was actively engaged in resolving disputes on all five projects.

Barron and Lambert had a long-standing professional relationship based on their public service together on the Louisiana State Board of Licensed Contractors from the 1980’s. Lambert remains a member of that state board. They described themselves as mutual good friends. Lambert had been chairman of the state board, and established his experience in resolving construction disputes, particularly when handling arbitration mandated under standard form construction agreements. Barron and Lambert talked by phone during the summer of 1998 about Barron’s personal problems and financial difficulties. The financial matters stemmed from the misal-location of construction funds for the five troubled projects for which DMB, Inc. was ultimately held to account. At trial, Lambert acknowledged his concerns in 1998 for his friend’s depressed mental state.

On November 11, 1998, Lambert boarded a plane owned by DMB, Inc. and flew from New Orleans to Farmerville to meet with Barron and his employee, Bobby Bennett (“Bennett”). Lambert contends that before he boarded the plane for the return trip home that day, he and Barron contracted for consulting services on the airport runway. Lambert advised Barron at the airport that he customarily charged his clients $3,100 per month, and the minimum term for his services was one year. He also charged 10% of any amount recouped by his clients in settlement.

Prior to the November 11 meeting, on November 3, Bennett had Rfaxed and ov-ernighted copies of various construction contracts and correspondence with DMB, Inc.’s attorney for Lambert’s review. In particular, Lambert testified he assisted DMB, Inc. in the arbitrator selection process prescribed under the model form agreements. An arbitrator from New Orleans whom Lambert knew was ultimately slated for one of the troubled project’s arbitration; however Lambert admitted that this hearing never occurred. Barron testified that no settlement funds were recovered on any of the five projects.

While admitting that Lambert had reviewed documentation on the five projects, Barron testified that he never received any more monies generated from the distressed projects. After receiving a $3,100 invoice from Lambert, Barron made one payment in December 1999, thinking it covered Lambert’s initial review of the documentation and the day trip to Farmer-ville in November 1998.

Lambert presented into evidence copies of invoices sent to Barron in late 2000 for a $34,100 balance owed on the alleged oral contract. Lambert’s letter dated October 30, 2000, requested payment and stated, “I have preformed (sic) my service for you and I must request that you pay me the balance due me of $34,100.” Two weeks later, Barron wrote Lambert back:

I received your bill last week and was very shocked. I do not know where you are coming from, and what you have done to think you deserve any kind of pay.
I sent the plane down for you to come up and look over some paper work and later we sent you some documents for you to take a look at. For your service for a full day and the one to three hours it may have taken, I was planning to pay you 14$2,000.00 and thought that would be around $150.00 an hour. My people knew you had been here so they paid the $3,100.00 invoice you sent.
Then awhile later you called about money and I told you that we had paid you plenty and would not pay you any more. I remember you showing me a long list of people that paid you $3,100.00 a month. I did not tell you I wanted to be on that list. I have not called for any advice since then. All my calls have been to return your call.

On August 15, 2001, Lambert filed a petition for $34,100 owing under a contract for services, plus 10% of any settlement amount regarding disputes on which he had provided consulting services. In the bench trial, Barron, Lambert and Bennett testified regarding the parties’ dealings and the issue of the existence of a contract. The trial court took the matter under advisement and, after a lengthy opinion, dismissed plaintiffs suit. It is from this judgment that Lambert appeals.

Discussion

This case involves the disputed formation of a contract for consulting services. A contract is an agreement by the parties whereby obligations are created. La. C.C. art. 1906. A contract is bilateral when the parties obligate themselves reciprocally, so that the obligation of each party is correlative to the obligation of the other. La. C.C. art. 1908.

The parties’ consent to the alleged contract, or their meeting of the minds through an offer and acceptance, was the focus of the trial court’s ruling. “Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.” La. C.C. art. 1927.

lfiThe trial court’s ruling credited Barron’s testimony that he never orally accepted Lambert’s offer for consulting services under the proposed one-year arrangement with $3,100 per month payments. There was no writing reflecting the parties’ consent. Nevertheless, the trial court’s task was also to review Barron’s alleged acceptance of the agreement from the implications of his actions or inaction. In this regard, Civil Code Article 1942 provides:

When, because of special circumstances, the offeree’s silence leads the offeror reasonably to believe that a contract has been formed, the offer is deemed accepted.

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless the finding is clearly wrong. Lewis v. State Through Dept. of Transp. and Development, 94-2370 (La.4/21/95), 654 So.2d 311; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Chaisson v. Chaisson, 29,243 (La.App. 2d Cir.2/26/97), 690 So.2d 899. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Lewis v. State Through Dept. of Transp. and Development, supra; Stobart v. State through Dept. of Transp. and Development, supra; Lebeaux v. Newman Ford, Inc., 28,609 (La.App. 2d Cir.9/25/96), 680 So.2d 1291.

This case involves the special setting of parties with a prior friendship and the aid and advice freely given between friends that existed before Lambert first broached the subject of a consulting contract. In Chaisson, supra, this court found in a similar setting that an oral loan agreement had |fibeen reached between parents and their son. The son admittedly had understood his parents’ intent for a loan for college expenses, but denied his acceptance of the loan agreement. Nevertheless, the son’s actions in receiving the benefits of the loan proceeds in that setting and his subsequent partial payments on the loan were enough for this court to affirm the lower court’s factual determination of a binding contract. See also, North Louisiana Milk Producers Ass’n, Inc. v. Southland Corp., 352 So.2d 293 (La.App. 2d Cir.1977), writ denied, 354 So.2d 200 (La.1978). A family setting or close friendship requires the finder-of-fact to determine the offeree’s acceptance of an onerous contract and the offeror’s reasonable belief that a contract has been formed, thus overcoming the competing implications of a benefit extended by one to a friend for a gratuitous reason without obtaining any advantage in return. See La. C.C. arts. 1967, 1909 and 1910.

From our review of the testimony of the two men, we also conclude that there was no clear agreement given by Barron on November 11, 1998, as Lambert boarded the plane to return to New Orleans. While stating that Barron expressed no “problem” with a consulting fee arrangement, Lambert’s testimony was that two or three days later, Bennett expressly confirmed in a phone conversation Barron’s acceptance of the proposed consulting arrangement. To the contrary, Bennett denied having any authority to engage a consultant, telephone contact with Lambert over consulting matters, and knowledge of any consulting agreement with Lambert.

[ ^Absent a direct oral or written acceptance by Barron, Lambert’s proof of the contract rests on his receipt of certain documentation of Barron’s troubled construction projects and invoices for consulting fees sent to Barron. The bulk of the documentation regarding Barron’s five construction projects was forwarded to Lambert days before the Farmerville meeting. Lambert’s review of the details of those construction contracts and Barron’s problems with the projects would have been performed in preparation for the Farmerville meeting without any contract binding his friend. More importantly, Barron provided Lambert that documentation without any indication that his friend’s review of the projects would require compensation.

After Lambert expressed at the Farm-erville airport his offer and desire for a consulting contract, some further documentation was provided to him between April and August 1999. These were transmitted by fax to Lambert without any request for specific services. The faxed documents primarily concerned correspondence from Barron’s attorney to Barron reflecting the scheduling of mediation and arbitration hearings. Significantly, Barron’s attorney never consulted Lambert, and Lambert never responded in writing to Barron regarding any substance concerning the status of the construction project disputes during that time. Moreover, Barron never used the principal subject matter of Lambert’s expertise, arbitration, to resolve disputed construction project issues during the year following the alleged oral contract, the only scheduled arbitration having been postponed indefinitely.

LThe only invoices concerning the alleged contract presented into evidence by Lambert were lump sum invoices dated in October and November of 2000 for $84,100. Copies of any prior monthly invoices for $8,100 were not filed in the plaintiffs case. Barron’s testimony identified payment of an initial invoice for $3,100 in December 1999. Lambert’s testimony confirmed that he did not expect Barron to make monthly payments after the initiation of the alleged consulting agreement in November 1998 because of Barron’s weak financial position. Therefore, the record does not establish when, if ever, regular monthly invoices of $3,100 might have been received by Barron.

From our review of this evidence, we find that the trial court could determine that no tacit acceptance of Lambert’s offer for services was made by Barron. Particularly lacking from the record is evidence of any substantive business benefit realized by Barron from his consultant friend. The trial court ultimately held that the parties’ relationship was that of a “friend helping a friend,” such that Lambert could not have reasonably believed that a contract had been formed. Accordingly, there is no manifest error in the trial court’s ruling.

Conclusion

For the reasons expressed above, the trial court’s determination that no contract was formed between the parties is affirmed. Costs of the appeal are assessed to appellant.

AFFIRMED.


author: STEWART, J.

text:
    STATE of Louisiana, Appellee v. Johnathan Matthew KENNEDY, Appellant.
    Nos. 42,850-KA, 42,851-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.

      Louisiana Appellate Project, by Annette F. Roach, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Michael 0. Craig, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and DREW, JJ.
   STEWART, J.

hThe defendant, Johnathan Matthew Kennedy, was convicted of one count of attempted aggravated rape and one count of attempted aggravated incest. He was sentenced to 35 years’ imprisonment at hard labor on the count of attempted aggravated rape and 10 years’ imprisonment at hard labor on the count of attempted aggravated incest. The defendant now appeals. For the reasons that follow, we affirm the defendant’s conviction and sentence.

FACTS

On February 23, 2005, the district attorney filed a bill of information charging the defendant with one count of aggravated rape of one M.G., whose date of birth is March 22, 1992. The case was assigned docket number 133,134. On February 25, 2005, the same district attorney filed a bill of information charging the same defendant with one count of aggravated incest of his niece R.L., whose date of birth is April 12, 1995. The case was assigned docket number 133,130. According to the transcript of the plea agreement, defendant was also charged with two additional counts of aggravated rape and one additional count of aggravated incest under separate charging instruments.

On June 12, 2006, the defendant pled guilty to one count of attempted aggravated rape under docket number 133,134, and one count of attempted aggravated incest under docket number 133,130. In exchange, the state agreed to dismiss the additional charges and to a sentencing cap of 50 years on both charges. The plea colloquy in this case verifies that the defendant was represented by counsel and that the court informed him of his Boykin | ¡.rights-the constitutional right against self-incrimination, his right to a judge or jury trial, his right to an appeal in the event of a conviction, his right to cross-examination of witnesses and compulsory process of witnesses. The judge asked the defendant whether he understood these rights and the fact that he was waiving them by entering a guilty plea to which the defendant responded affirmatively. The judge also asked the defendant whether the guilty plea was the result of any threats or promises.

As to a factual basis for the plea, the following exchange took place:

The Court: Mr. D.A., would you please state the facts for the record?
Mr. Craig: I will, Your Honor, as to the Attempted Aggravated Incest, on or about the dates between January 1, 1999, and November 28, 2004, Mr. Kennedy did attempt to commit incest on his step-daughter, one M. G., whose date of birth is March 22, 1992, by rubbing his penis on her vagina with the intent to satisfy sexual desires. This occurred on Crystal Street in Haughton, Louisiana all within the confines of Bossier Parish, Louisiana in violation of 14:78.1. As to the Attempted Aggravated Rape, Mr. Sullivan did attempt to commit the act of Aggravated Rape between the dates of December 1, 2002 and November 31, 2004, on one, B.S. whose date of birth is September 10, 1998, by attempting to penetrate her vaginally in violation of Louisiana Revised Statute 14:42, this occurred on Thunderbird Lane in Bossier City, Bossier Parish, Louisiana.
Mr. Frederick: Your Honor, if I may, as to the second charge, the D.A. mistakenly said Mr. Sullivan instead of Mr. Kennedy, just to clear the record.
Mr. Craig: I’m sorry, it was Mr. Kennedy the victim was a B.S.
The Court: All right. Mr. Kennedy, you have heard that statement of facts by the Assistant District Attorney are those facts in each case substantially correct?
Mr. Kennedy: Yes, sir.

laThe factual basis presented by the state does not correspond to the charges asserted in the bills of information, since the victim B.S. is not one of the victims in either case. Furthermore, M.G. was the victim in docket number 133,184, in which the defendant was charged with aggravated rape, while the state recitation indicates that his conduct regarding M.G. served as the factual basis for the guilty plea to the charge of attempted aggravated incest.

The pleas were then accepted and the trial court ordered pre-sentence investigations to be prepared in relation to each conviction. Before recessing, the trial court allowed a “Ms. Sullivan” (apparently B.S.’s mother) to speak to the court about the effect that the defendant’s actions, presumably in relation to B.S. referred to in the recitation of facts, has had on her and her daughter. She related that she has required hospitalization, that both she and her daughter have been in counseling and that her daughter has struggled in school.

Prior to imposing sentence, the trial court reviewed a pre-sentence investigation (PSI) report which provided extensive details of the defendant’s social history and the facts of the case. The report indicated that the defendant had been having improper sexual contact with his stepdaughter, M.G., from the time she was about 5 years of age until she was 12, when she reported the abuse. This time period included two years following the death of M.G.’s biological mother. Lastly, the report indicated that the defendant admitted the conduct upon his arrest including that he had performed oral sex upon his stepdaughter several times. The 1 ¿report also indicated that the defendant had improper conduct with R.L., the defendant’s then 8-year-old niece, by rubbing her “private” on the outside of her clothes and by rubbing her breasts.

Lastly, the report identified a third victim, B.S., of the defendant’s abuse. The defendant and B.S.’s mother, T.S., lived together off and on between 2003 and late 2004. Consequently, the defendant would be left to babysit the children on occasion. B.S. reported that the defendant had rubbed her breast, touched her “private between her legs” and touched her leg with the “thing” that boys have. The report indicated that the defendant had given a statement admitting to the alleged conduct with both R.L. and B.S.

The matter came for sentencing on October 31, 2006. During the hearing, the judge repeatedly referred to one of the convictions as being for the crime of aggravated incest and not attempted aggravated incest. In imposing sentence the court noted the particularly egregious nature of the conduct towards M.G. in the aftermath of her mother’s death and noted that the defendant took advantage of his position as stepfather of the victim. The court stated its opinion that a lesser sentence would deprecate the seriousness of the offense. After a discussion of the mitigating and aggravating factors, the trial court sentenced the defendant to 35 years’ imprisonment at hard labor without the benefit of probation, parole or suspension of sentence on the charge of attempted aggravated rape and to 10 years’ imprisonment at hard labor on the charge of attempted aggravated incest, both sentences to run consecutively. At the conclusion of the | ^hearing, defendant’s counsel entered an objection to the “Court’s finding of the mitigating factors” and the excessiveness of the sentences.

Kennedy has appealed, urging through counsel that his guilty pleas were not knowingly and intelligently entered as a result of the court’s failure to inform him of the nature of the offenses to which he was pleading guilty. Defendant also appeals his sentences on the basis that the trial court improperly considered a victim impact statement from a non-victim and that he was sentenced for the crime of aggravated incest instead of attempted aggravated incest.

DISCUSSION

Validity of Guilty Plea

The defendant argues that the trial court’s failure to advise him of the nature of the charges to which he was entering guilty pleas and the flawed recitation of the factual basis by the state warrant setting aside the defendant’s guilty pleas on both counts.

A valid guilty plea must be a free and voluntary choice by the defendant. A guilty plea will not be considered free and voluntary unless, at the very least, defendant was advised of his constitutional rights against self-incrimination, to a trial by jury and to confront his accusers. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). An express and knowing waiver of those rights must appear on the record, and an unequivocal showing of a free and voluntary waiver cannot be presumed. Boykin, supra; State v. Keener, 41,246 (La.App. 2d Cir.8/23/06), 939 So.2d 510; State v. Morrison, 599 So.2d- 455 (La.App. 2d Cir.1992).

h,A plea of guilty normally waives all non-jurisdictional defects in the proceedings prior to the plea, including insufficiency of the evidence. State v. Crosby, 338 So.2d 584 (La.1976); State v. Stephan, 38,612 (La.App. 2d Cir. 08/18/04), 880 So.2d 201. A validly entered guilty plea, or plea of nolo contendere, waives any right a defendant might have had to question the merits of the state’s case and the factual basis underlying the conviction. State v. Bourgeois, 406 So.2d 550 (La.1981); State v. Hardy, 39,233 (La.App. 2d Cir.01/26/05), 892 So.2d 710.

Furthermore, there is no requirement that a guilty plea even be accompanied by the recitation of a factual basis for the crime. State v. Griffin, 633 So.2d 358 (La.App. 1st Cir.1993), writ denied, 94-0240 (La.10/14/94), 643 So.2d 157. “[T]he due process clause imposes no constitutional duty on state trial judges to ascertain a factual basis prior to accepting a guilty plea.... Louisiana law, unlike [federal law] has no statutory provision requiring accompaniment of a guilty plea by the recitation of a factual basis.” Id. at 360, quoting State v. Perry, 515 So.2d 654 (La.App. 3d Cir.1987).

La. C. Cr. P. art. 556.1 provides that prior to accepting a guilty plea, the court must personally inform defendant of the nature of the charge to which the plea is offered, any mandatory minimum penalty and the maximum possible penalty. The test for the validity of a guilty plea does not depend upon whether or not the district court specifically informed the accused of every element of the offense. Rather, the defendant must establish that he lacked awareness of the essential nature of the offense to 17which he was pleading. State v. Forrest, 04-43 (La.App. 5th Cir.5/26/04), 876 So.2d 187. Violations of Article 556.1 that do not rise to the level of Boykin violations are subject to the harmless error analysis. State v. Ford, 02-1394, 02-1642 (La.App. 4th Cir.4/16/03), 846 So.2d 98, writ denied, 03-1401 (La.11/26/03), 860 So.2d 1132. The proper inquiry is whether the defendant’s knowledge and comprehension of the full and correct information would have likely affected his or her willingness to plead guilty. State v. Forrest, supra; State v. Haywood, 00-1584 (La.App. 5th Cir.3/28/01), 783 So.2d 568.

The attempt statute, La. R.S. 14:27, provides, in part:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

Louisiana Revised Statutes 14:78.1, in the relevant parts, provides:

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.
B. The following are prohibited acts under this Section:
(2) any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.

Accordingly, to support a conviction for attempted aggravated incest, the State is required to prove that the defendant specifically intended to engage Lin an act listed in Subsection B of La. R.S. 14:78.1 with a person who is under 18 years of age and who is known to the offender to be related to the offender as a biological, step, or adoptive child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.

The crime of aggravated rape is defined in La. R.S. 14:42, which prior to amendment by 2003 La. Acts, No. 795, § 1, provided, in part, as follows:

A. Aggravated rape is a rape committed ... where the anal, oral or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
* » *
4. When the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.

After its amendment, the absence of lawful consent was extended to any victims under the age of 13. Accordingly, to support a conviction for attempted aggravated rape, the State is required to prove that the defendant specifically intended to engage in anal, oral or vaginal sexual intercourse with a victim under the age of 12 prior to August 15, 2003, or under the age of 13 years of age after August 15, 2003.

In the instant ease, the trial court informed defendant that he was pleading guilty to one count of attempted aggravated rape and one count of attempted aggravated incest. The trial judge personally questioned defendant regarding the waiver of his Boykin rights. When the trial court asked the prosecutor for a factual basis for the pleas being entered, the |sprosecutor stated that the defendant had rubbed his penis on the vagina of his stepdaughter, M.G., while she was between the ages of 6 and 12 with the intent to satisfy sexual desires. The state also indicated that the defendant had attempted to vaginally penetrate another victim, B.S., when she was between the ages of 4 and 6. The defendant admitted to this recitation of the facts by the State. Defendant, who was represented by counsel at the time of his plea, did not complain that he did not understand the charges against him.

It is clear from the recitation of facts presented by the state that defendant was admitting to conduct which was adequate to support convictions of attempted aggravated incest and attempted aggravated rape, the charges to which he pleaded guilty. By admitting that between January 1, 1999, and November 28, 2004, he had attempted to rub “his penis on [his under 18-year-old stepdaughter’s] vagina with the intent to satisfy sexual desires,” defendant admitted to the essential elements of the crime of attempted aggravated incest. By admitting to attempting to penetrate B.S. (d/o/b 9/10/98) vaginally between December 1, 2002 and November 31, 2004, defendant admitted to the essential elements of the crime of attempted aggravated rape. It is equally clear, on the other hand, that the facts recited were not those forming the basis of the charged offenses in the bills of information pursuant to which the convictions were obtained.

The case of State v. Ford, 06-1435 (La. App. 3d Cir.4/4/07), 954 So.2d 876, relied on by the defendant is distinguishable. As part of a plea agreement, Ford pleaded guilty to a single count of vehicular homicide, Imdefined for the purposes of Ford’s alleged conduct as “the killing of a human being caused proximately or caused directly by an offender engaged in the operation of ... any motor vehicle ... whenever ... the operator is under the influence of any controlled dangerous substance.” The trial court did not inform the plaintiff of the nature of the offense and the factual basis recited by the state only established that an accident involving the defendant, who had been smoking marijuana, and the victim occurred on October 29, 2004, and that the victim died as a result of the injuries he sustained therein. The state recited no particulars as to the cause of the accident, a required element of the offense of conviction. Accordingly, the trial court concluded that this “inadequate” factual basis could have “[led] the defendant to conclude that he was guilty of vehicular homicide by having been involved in an accident which resulted in a fatality after having smoked marijuana sometime in the immediate past.” Id. at 880.

In the present case, the state’s recitation of facts is more properly categorized as imprecise as opposed to inadequate. Stated another way, the conduct admitted to by the defendant was adequate to support the convictions pleaded to although not accurate as to the victim named in the bill of information which initiated the proceeding in which the plea was obtained. While this reflects sloppy presentation of the plea by the state, it does not establish a lack of awareness as to the nature of the offense charged.

In light of his admission to conduct which would support a conviction of each of the offenses to which the defendant pleaded guilty, this record |71 does not indicate that the defendant lacked awareness of the essential nature of the offenses to which he was pleading. At best, the record establishes that the court failed to inform defendant of the nature of the charges in violation of the requirements of La. C. Cr. P. art. 556.1 and that the court failed to inquire into whether his attorney had explained the nature of the offenses to him.

Because the defendant did not file a motion to withdraw his guilty plea before the lower court, the record lacks even a bare assertion by the defendant that he did not understand the nature of the charges. Therefore, absent any evidence to the contrary, this court cannot conclude in conducting a harmless error analysis that the trial court’s noncompliance with La. C. Cr. P. art. 556.1 warrants setting aside the guilty pleas. In fact, on the record before the court, it would appear that the defendant did understand the nature of the offenses to which he was pleading guilty by admitting to the essential elements of the offenses, even if with different victims than the ones listed in the bills of information.

Therefore, we conclude that the .guilty plea is not constitutionally infirm, and as such will not be set aside on this record. This assignment is without merit.

Use of Victim Impact Statement and Sentencing Errors

The defendant argues that the trial court erred in considering a victim impact statement from the mother of B.S. because B.S. was not a victim in either of the cases in which the defendant’s pleas were entered. The defendant also argues that the trial court’s repeated reference to “aggravated |12incest” instead of “attempted aggravated incest” during the sentencing hearing indicates that the defendant was sentenced for a crime he was not convicted of committing.

The state offers no argument on the admission of the impact statement from the mother of B.S. On the issue of whether the trial court sentenced the defendant for the wrong crime, the state argues that the court was fully aware of the offense of conviction as evidenced by the plea colloquy and the court’s use of the inexact terminology was simply a misstatement. Furthermore, the state argues that defendant’s failure to file a motion to reconsider his sentence precludes him from arguing anything other than constitutional exces-siveness.

La. C. Cr. P. art. 881.1 applies to defendant’s sentence. This article precludes the defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court. In such a circumstance, the defendant is simply relegated to having the appellate court consider the bare claim of constitutional exces-siveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Masters, 37,967 (La.App. 2d Cir.12/17/03), 862 So.2d 1121; State v. Duncan, 30,453 (La.App. 2d Cir.2/25/98), 707 So.2d 164.

When a defendant fails to timely file a La. C. Cr. P. art. 881.1 motion to reconsider sentence the appellate court’s review is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims, supra; State v. Jones, 41,-449 (La.App. 2d Cir.9/20/06), 940 So.2d 61; State v. Duncan, supra. Constitutional review turns upon whether the sentence is | ^illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Livingston, 39,390 (La.App. 2d Cir.4/6/05), 899 So.2d 733; State v. White, 37,815 (La.App. 2d Cir.12/17/03), 862 So.2d 1123.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lobato, supra. Even though a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, supra.

A person convicted of attempted aggravated rape may be sentenced to imprisonment at hard labor for a term of not less than 10, nor more than 50 years without benefit of parole, probation or suspension of sentence. La. R.S. 14:42(D) and 14:27(D)(1).

A person convicted of attempted aggravated incest may be sentenced to a term of imprisonment, with or without hard labor, of not less than 5 years nor more than 10 years or fined an amount not to exceed $25,000.00, or both. La. R.S. 14:78.1(D) and 14:27(D)(3).

The defendant did not file a motion for reconsideration of sentence and therefore he failed to raise the issues listed above with the trial court as |14required by Louisiana Code of Criminal Procedure article 881.1(A)(2). Nor did he offer an objection to either the victim impact statement or the trial court’s erroneous reference to the crime of conviction. Accordingly, defendant failed to preserve these issues for review and he is limited to review on the question of constitutional excessiveness.

The defendant received a sentence of 35 years’ imprisonment at hard labor without benefit of parole, probation or suspension of sentence and a sentence of 10 years’ imprisonment at hard labor with both sentences to run consecutively. The first sentence was imposed for a conviction of attempted aggravated rape, defined by La. R.S. 14:2 B(13) as a crime of violence. His conduct in relation to that crime was directed at his stepdaughter over an extended period of time, including the years immediately following the death of her biological mother. Furthermore, the facts set forth in the presentence investigation appeared to fully support the original charge of aggravated rape. By agreeing to plead guilty to attempted aggravated rape the defendant received a significant benefit by reducing his sentence exposure from a minimum of life imprisonment to a maximum of 50 years’ imprisonment. Not only was the sentence within the statutory range for the offense of conviction, but the defendant received only a little more than two thirds of the maximum available sentence. Considering the foregoing, the sentence given the defendant in the instant matter was not excessive.

On the conviction for attempted aggravated incest, the defendant received the maximum prison term for the offense of conviction. On this record, there is no valid claim of constitutional excessiveness. As shown by |1Rthe presentence investigation report, the defendant did not recall having an abusive childhood or suffering from any other circumstance which would justify or mitigate the commission of this egregious offense. Furthermore, the report indicates that the facts fully supported the original charge of aggravated incest. Hence, by pleading to the reduced charge, defendant received a significant benefit by reducing his sentence exposure from a maximum of 20 years to a maximum of 10 years’ imprisonment.

These sentences are neither grossly disproportionate to the severity of the offenses of conviction nor are they shocking to the sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of these sentences which, under the facts and circumstances of the case, are not constitutionally excessive.

These assignments are, therefore, without merit.

CONCLUSION

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . Article 3, § 19 of the Louisiana Constitution, provides that all laws enacted during a regular session of the legislature shall take effect on August 15 of the calendar year in which the regular session is held, unless the bill designates an earlier or later effective date. No alternative date is provided in 2003 La. Acts. No. 795.


author: PEATROSS, J.

text:
    STATE of Louisiana, Appellee v. James GILL, Appellant.
    Nos. 42,938-KA, 42,939-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.

      Louisiana Appellate Project, by James E. Beal, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell, III, Marcus R. Patillo, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS & PEATROSS, JJ.
   PEATROSS, J.

| defendant, James Thomas Gill, was convicted of one count of possession of a controlled dangerous substance, Schedule II, and one count of resisting arrest. He was sentenced to four and one-half years’ imprisonment at hard labor on the charge of possession and six months’ imprisonment on the charge of resisting arrest, both sentences to run concurrently with credit for time served. Defendant how appeals his sentences. For the reasons set forth below, we affirm the sentences of Defendant.

FACTS

On August 9, 2006, the vehicle in which Defendant was traveling was stopped by an officer of the Minden Police Department. During the stop, Defendant was seen exiting the vehicle from the passenger side and a chase ensued. After Defendant was tackled, a search yielded four rocks of crack cocaine in Defendant’s left front pants pocket. Defendant was subsequently charged by two separate bills of information with one count of possession of a Schedule II controlled dangerous substance, a violation of La. R.S. 40:967(C), and with one count of resisting arrest, a violation of La. R.S. 14:108.

Defendant initially entered pleas of not guilty to both charges. Defendant, however, later withdrew his pleas of not guilty and entered guilty pleas to both charges with the benefit of a pre-sentence investigation report as part of the plea agreement. In exchange, the State agreed not to seek a habitual offender adjudication against Defendant and, further agreed 1 ¿that whatever sentences were imposed on the two different charges would run concurrently.

At the sentencing hearing, the trial judge reviewed the pre-sentence investigation report and noted that Defendant had at least three prior felony convictions for illegal possession of stolen things, theft and simple burglary, as well as an extensive misdemeanor record. The record indicates that Defendant had multiple convictions for driving while intoxicated, several arrests for crimes against property and at least one other drug-related arrest. The trial judge also noted that, while on parole from the sentences imposed for his earlier convictions, Defendant had violated the conditions of parole resulting in the revocation of same. Lastly, the trial judge stated that he had considered the factors set forth in La. C. Cr. P. art. 894.1 and determined that Defendant should be sentenced to four and one-half years’ imprisonment at hard labor on the charge of possession of a Schedule II controlled dangerous substance and six months’ imprisonment on the charge of resisting an officer, both sentences to run concurrently with credit for time served. The trial judge stated that any lesser sentence would detract from the seriousness of the crime.

Defendant filed appeals from the sentence imposed in each of the two convictions. We, however, convert the appeal from the conviction for resisting arrest to an application for supervisory writ because there is no right of appeal from a misdemeanor conviction. La. C. Cr. P. art. 912.1(B) and (C).

J^DISCUSSION

Defendant argues that the sentence imposed for the felony conviction is too harsh in that it is just short of the maximum. The State argues that the sentence is not excessive and is amply supported by the record.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57, and 04-2380 (La.6/3/05), 903 So.2d 452.

A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are Lviewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992).

The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. Id.

In the instant case, Defendant was convicted of one count of possession of cocaine, a Schedule II controlled dangerous substance, in violation of La. R.S. 40:967(C). The sentence for possession of this controlled dangerous substance is not more than five years’ imprisonment at hard labor and a fine of not more than $5,000. Defendant received a sentence of four and one-half years’ imprisonment at hard labor and no fine.

The trial judge recognized that Defendant has an extensive criminal history and his continued pattern of committing offenses indicates that he is among the worst class of offenders. Furthermore, by entering into the plea | .¡agreement, Defendant’s potential maximum sentence was reduced significantly when the State agreed not to file a habitual offender bill. Given the circumstances, it is difficult to conclude that the trial court abused its discretion in imposing the sentences. For the same reasons, the supervisory writ on Defendant’s sentence for resisting arrest is denied for failure to argue any error in regard to the conviction or sentence.

CONCLUSION

For the foregoing reasons, Defendant’s appeal from the conviction for resisting an officer is converted to an application for supervisory writ and the writ is denied for failure to argue any error in regard to the conviction or sentence. As to the appeal from Defendant’s conviction for possession of cocaine, a Schedule II controlled dangerous substance, the sentence of Defendant, James Thomas Gill, is affirmed.

APPEAL CONVERTED TO SUPERVISORY WRIT IN PART, WRIT DENIED, SENTENCE AFFIRMED.


author: EASLEY, Justice, DIAZ, Presiding Justice,

text:
    W. Warren CALLICUTT v. PROFESSIONAL SERVICES OF POTTS CAMP, INC. and Diane G. Taylor.
    No. 2006-CA-00706-SCT.
    Supreme Court of Mississippi.
    Dec. 13, 2007.
    Rehearing Denied Feb. 21, 2008.

      Thomas A. Wicker, Tupelo, attorney for appellant.
    Laura Catherine Nettles, Peggy C. Jones, attorneys for appellees.
   EASLEY, Justice,

for the Court.

¶ 1. This is an appeal from a summary judgment entered in favor of the defendants, Diane G. Taylor and Professional Services of Potts Camp, Inc., “collectively Taylor.” Warren Callicutt alleges that the trial court erred in: (1) finding that Calli-cutt suffered no damages as a matter of law and (2) finding that no issue of fact existed with regard to the duty Taylor owed Callicutt. Finding no error, we affirm the summary judgment.

FACTS

¶2. On January 21, 2003, Callicutt entered into a contract to purchase approximately 954 acres of land from Dudley Moore for $2.6 million dollars. Callicutt’s intention was to develop, subdivide, and resell the property in individual, residential parcels. Callicutt had engaged in four similar real-estate-development ventures prior to this time. However, on February 21, 2003, prior to closing on the Moore property, Callicutt entered into an agreement with Marianne Hurdle to sell her the entire 954 acres for $3.8 million dollars. On February 28, 2003, Callicutt closed on the Moore property, taking out a mortgage for 100% of the purchase price. On March 5, 2003, Callicutt and Hurdle executed a revised purchase contract with some additional terms. The Bank of Holly Springs contacted Taylor to perform the title work on Hurdle’s behalf for the closing on the Moore property.

¶ 3. Callicutt claims that he asked Taylor how he could reinvest his money to avoid paying income taxes. Taylor told him that this could be accomplished with a Section 1031 like-kind exchange and proceeded to print and copy various materials on Section 1031 exchanges, providing the materials to Callicutt. Under 26 United States Code Service Section 1031, when property held for productive use in a trade or business or for investment is exchanged for property of like kind that is also to be held either for productive use in a trade or business or for investment, the taxes or credits normally associated with any gain or loss are deferred. Callicutt contends that Taylor informed him that executing a Section 1031 exchange would require a “qualified intermediary,” and she had done Section 1031 exchanges in the past with Union Planters Bank acting as a qualified intermediary. Callicutt claims that Taylor called him after the meeting to inform him that Union Planters would perform the duties of a qualified intermediary for a fee of $2,000 and that she would have all the paperwork ready at the closing.

¶4. Taylor, however, claims that Calli-cutt asked her if she knew anything about exchanges. Taylor said she then provided Callicutt with some materials she had concerning Section 1031 like-kind exchanges, including contact information for companies. Taylor suggested that Callicutt contact these companies that specialized in Section 1031 exchange transactions. She also suggested that he contact a tax attorney and a certified public accountant (CPA). Taylor denies any discussion of using Union Planters as a qualified intermediary before the day of the closing between Hurdle and Callicutt on the 954-acre Moore property. Taylor claims that Callicutt arrived at the closing and asked that the purchase be structured as a Section 1031 exchange with Union Planters acting as qualified intermediary, thus requiring Taylor to prepare an exchange agreement to accommodate his request.

¶ 5. On April 10, 2003, Callicutt and Hurdle closed on the Moore property at Taylor’s office. Taylor paid the mortgage on the property and prepared a check for the net profit of $1.2 million, made out to Union Planters as the qualified intermediary. Callicutt signed the exchange agreement between himself and Union Planters on April 10, and a representative of Union Planters signed it the following day, also picking up the check for $1.2 million.

¶ 6. In 2004, Callicutt’s accountant prepared his 2003 taxes. The tax preparer informed Callicutt that the sale of the Moore property and his subsequent purchase of like-kind property did not qualify as a tax-exempt Section 1031, like-kind exchange. As a result, Callicutt was required to pay more than $500,000 in taxes, penalties and interest on the transaction. Callicutt filed his complaint against Taylor and Union Planters on January 12, 2005.

¶ 7. On March 28, 2006, Judge Henry L. Lackey granted the defendants’ motions for summary judgment in the Circuit Court of Marshall County, finding that: (1) the cause of action for negligence could not be maintained because the transaction, regardless of any alleged action or inaction of Taylor, would not have qualified as a Section 1031 exchange as a matter of tax law, and thus Callicutt could show no damages caused by Taylor’s alleged negligence; (2) Taylor owed no duty to Calli-cutt to advise him of tax consequences of his failure to purchase like-kind replacement property to effectuate a Section 1031 exchange; (3) Callicutt faded to prove any intentional or negligent misrepresentation by Taylor; (4) Taylor owed no fiduciary duty to Callicutt; (5) there was no evidence of a breach of good faith and fair dealing by Taylor; and (6) Callicutt’s claims that Taylor was not qualified to render professional advice or failed to warn him concerning the tax consequences of the Section 1031 exchange failed as a matter of law, as Callicutt offered no evidence that Taylor held herself out as an expert on taxation or Section 1031 exchanges.

¶ 8. Aggrieved, Callicutt now appeals to this Court.

DISCUSSION

¶ 9. In reviewing a trial court’s ruling on a motion for summary judgment, this Court conducts a de novo review. In Smith v. Gilmore Memorial Hospital, Inc., 952 So.2d 177, 180 (Miss.2007), this Court set forth the standard of review for summary judgment as follows:

“We employ the de novo standard in reviewing a trial court’s grant of summary judgment.” Brown v. J.J. Ferguson Sand & Gravel Co., 858 So.2d 129, 180 (Miss.2003) (citing O’Neal Steel, Inc. v. Millette, 797 So.2d 869, 872 (Miss.2001)). The moving party shall be granted judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Miss. R. Civ. P. 56(c).
“Summary judgments, in whole or in part, should be granted with great caution.” Brown, 444 So.2d at 363. However, “[sjummary judgment is mandated where the respondent has failed ‘to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.’” Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1214 (Miss.1996) (citing Galloway v. Travelers Ins. Co., 515 So.2d 678, 683 (Miss.1987) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322,106 S.Ct. 2548, 91 L.Ed.2d 265 (1986))).

Smith, 952 So.2d at 180.

I. As a matter of law, did Callicutt suffer damages as a result of the alleged misconduct?

¶ 10. The primary issue in this case is what, if any, damages Callicutt can claim as a result of Taylor’s alleged misconduct. Callicutt contends the following damages resulted from the alleged unlawful acts or omissions of Taylor: (1) $478,803 in taxes he claims could have been deferred under a properly-executed Section 1031 exchange; (2) $1,079,791.11 in lost future lease income resulting from his need to sell property to pay the taxes; (3) $18,992.89 in damages representing the penalties and interest he paid on the taxes that he was unable to defer; and (4) $13,943 as his cost of borrowing money in order to pay the taxes.

A. Tax Damages.

¶ 11. Examining the alleged damages of $478,803 in taxes, the lower court held that the Moore property was held primarily for sale. Because the property was held primarily for sale, it was not eligible for tax-deferred treatment under the tax code, regardless of any action or inaction by Taylor.

¶ 12. The relevant portion of Section 1031(a) of the tax code provides:

(a) Nonrecognition of gain or loss from exchanges solely in kind.
(1) In general. No gain or loss shall be recognized on the exchange of property held for productive use in a trade or business or for investment if such property is exchanged solely for property of like kind which is to be held either for productive use in a trade or business or for investment.
(2) Exception. This subsection shall not apply to any exchange of—
(A) stock in trade or other property held primarily for sale[.]

26 U.S.C.S. § 1031.

¶ 13. The exception stated in Section 1031(a)(2)(A) clearly excludes property held primarily for sale from tax-deferred treatment under Section 1031. Per this section, the owner of property held primarily for sale cannot use that property in a Section 1031 exchange and qualify for tax-exempt status. The question at issue is whether Callicutt held the Moore property primarily for sale so that the property could not have qualified for tax-deferred status regardless of action of inaction by Taylor. Furthermore, as Callicutt is a real-estate dealer, he has the burden of proving that “when (he) dealt with the parcels of land (involved herein) (he) was wearing the hat of an investor rather than that of a dealer.” Land Dynamics v. Comm’r, T.C.M. 259, 37 T.C.M. (CCH) 1119,1978 WL 2945 (1978) (citing Pritchett v. Comm’r, 63 T.C. 149, 164, 1974 WL 2719 (1974)).

¶ 14. In his deposition, Callicutt admits that his original intent was to hold the property for sale:

Q. When did you — let me ask it this way: When you purchased Moore Farms, was it your intention to resell that property at the time that your purchased it?
A. It — it was not my intention to resell it as a whole. It was my intention to resell it one piece at a time.

(Emphasis added).

¶ 15. After his deposition, it also came to light that Callicutt had entered into a contract to sell the land as a whole to Hurdle prior to his closing with Moore. Thus, the moment Callicutt acquired title to the Moore property, he immediately was contractually obliged to sell the property.

¶ 16. Normally, the question of whether property is held primarily for sale is a question of the taxpayer’s intent, which in turn is a question of fact. Beeler v. Comm’r, T.C.M. 73, 73 T.C.M. (CCH) 1982, 1997 WL 52498 (1997) (citing Vento v. Comm’r, 43 T.C. 429, 441-42, 1965 WL 1212 (1965)). Callicutt argues that as a question of fact, it is reserved for the jury. However, the mere presence of a factual question does not automatically preclude summary judgment, as the party opposing the motion for summary judgment is required to set forth specific facts showing that genuine issues for trial do exist. See Richardson v. Norfolk & Southern Ry., 923 So.2d 1002, 1007 (Miss.2006). Callicutt filed an affidavit on February 26, 2006, after the briefs and the supplemental briefs for summary judgment were filed, asserting that it was not his intention to sell the property. The affidavit contradicted his earlier deposition testimony, as well as the contract to sell the land that he entered into with Hurdle. While the Court normally must resolve all factual inferences in favor of the nonmovant, “the nonmovant cannot manufacture a disputed material fact where none exists. Thus, the nonmovant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony.” Foldes v. Hancock Bank, 554 So.2d 319, 321 (Miss.1989) (citations omitted).

¶ 17. Given Callicutt’s previous testimony and the agreement he signed prior to taking ownership of the property, there can be little doubt about his intent when he acquired the property. The trial court correctly held that he was unable to met his burden of showing the existence of any material fact for a jury with respect to the tax liability he claimed as damages. The tax court made a similar finding in Griffin v. Commissioner, 49 T.C. 253, 260, 1967 WL 1261 (1967), when it found that a Missouri property was held for sale and could not have been held for any other purpose because, prior to acquisition of the property, the petitioner had executed a binding contract to sell the property. Griffin, 49 T.C. at 260. Both Callicutt’s decision to purchase the Moore property and his decision to enter into a contract to sell that property occurred before any consultation with Taylor. Accordingly, no action or inaction by Taylor resulted in the failure of the property to qualify for a Section 1031 exchange, and thus the tax damages claim of $478,803 properly was dismissed as a matter of law.

B. Lost Future Income.

¶ 18. Callicutt further claims damages of $1,079,791.11 for lost future lease income on a piece of property he was allegedly forced to sell in order to pay the taxes on the failed Section 1031 exchange. He alleges these damages were a direct consequence of the $478,803 tax liability Calli-cutt was forced to pay. As previously discussed, these taxes were not damages resulting from any action or inaction of Taylor. Callicutt held the property primarily for sale, and therefore, the transaction could not have qualified for Section 1031,' tax-deferred treatment under any circumstances. Therefore, Taylor cannot be held liable for any actions that Callicutt was forced to take to pay taxes for which he would have been responsible with or without any involvement by Taylor. As a matter of law, the lost future profits were not the result of any conduct on the part of Taylor, and thus, summary judgment was appropriate.

C. and D. Tax Penalties and Interest and Cost of Borrowing Money.

¶ 19. Callicutt also claims damages of $18,992.89 in penalties and interest as a result of the taxes he was unable to defer, as well as damages of $13,943 incurred when he had to borrow money to pay the taxes due on the property sale. Callicutt would have owed the taxes regardless of any alleged injurious conduct of Taylor. However, Callicutt claims that his damages included penalties and interest incurred by the delay in his payment of those taxes and damages for having to borrow money to pay the taxes due on the property. Clearly, the property never qualified for a Section 1031 exchange. The property was disqualified for a like-kind exchange before Callicutt ever had any dealings with Taylor. Furthermore, to the extent that Callicutt may have had to incur costs to borrow money to pay the taxes for the Moore property, Taylor’s actions or inactions had no bearing on the liquidity of Callicutt’s assets to pay his tax liability for the Moore property. Despite the failure of the Moore property to qualify as a Section 1031, like-kind exchange, the issue of these incidental damages will be discussed more fully under the following fiduciary-duty issue.

II. Did the lower court err in finding that no issue of fact existed with regard to the duty owed Callicutt by Taylor?

¶ 20. Callicutt contends that Taylor owed a fiduciary duty to him and that Taylor’s breach of her alleged fiduciary duty caused him to incur damages. As previously discussed in Issue I, this Court held that, prior to any involvement by Taylor, Callicutt’s action caused the Moore property to be disqualified as a Section 1031, like-kind exchange. The failed Section 1031 exchange imposed a tax liability on Callicutt. Therefore, Callicutt had no basis to recover damages for the tax liability incurred by the sale of the Moore property, the alleged lost profits, or costs of borrowing money to pay the tax liability.

¶ 21. To find Taylor liable for alleged damages for penalties and interest for late payment and expenses for causing his need to borrow money to pay the taxes, Callicutt must show: (1) Taylor owed him a duty; (2) Taylor breached that duty; and (3) Taylor’s breach of that duty was the cause of the alleged damages. Holliday v. Pizza Inn, 659 So.2d 860, 864 (Miss.1995).

¶ 22. In granting summary judgment, the trial court found that there was no issue of material fact as to the existence of such a duty. Callicutt alleges that Taylor undertook fiduciary duties by giving legal and accounting advice to him in connection with the structuring of the failed Section 1031 exchange, and the resulting damages were the product of Callicutt’s justifiable reliance on Taylor’s representations. In response, Taylor contends that the trial court properly found that Taylor owed Callicutt no duty, fiduciary or otherwise, in connection with the failed Section 1031 exchange.

¶ 23. In Lowery v. Guaranty Bank & Trust Co., 592 So.2d 79, 83 (Miss.1991), this Court held:

A fiduciary duty must exist before a breach of the duty can occur. “Fiduciary relationship” is a very broad term embracing both technical fiduciary relations and those informal relations which exist wherever one person trusts in or relies upon another. Black’s Law Dictionary 564 (5th Ed.1979). A fiduciary relationship may arise in a legal, moral, domestic, or personal context, where there appears “on the one side an overmastering influence or, on the other, weakness, dependence, or trust, justifiably reposed.” Miner v. Bertasi, 530 So.2d 168, 170 (Miss.1988); Matter of Estate of Haney, 516 So.2d 1359 (Miss.1987).

Lowery, 592 So.2d at 83. In Hopewell Enterprises, Inc. v. Trustmark National Bank, 680 So.2d 812, 816 (Miss.1996), this Court held:

Whenever there is a relationship between two people in which one person is in a position to exercise a dominant influence upon the other because of the latter’s dependency upon the former, arising either from weakness of mind or body, or through trust, the law does not hesitate to characterize such relationship as fiduciary in character.

Hopewell, 680 So.2d at 816; Collums v. Union Planters Bank, N.A., 832 So.2d 572, 578 (Miss.Ct.App.2002).

¶ 24. No issue of genuine fact exists as to Taylor’s alleged fiduciary duty to Calli-cutt. Callicutt never qualified for a Section 1031 exchange, and Taylor’s dealings with Callicutt clearly were not fiduciary in nature. Therefore, Callicutt’s request for damages allegedly attributable to Taylor’s breach of duty is without merit.

¶ 25. The trial court found that no fiduciary relationship existed between Taylor and Callicutt. The trial court reasoned that there was no evidence that Taylor had any dominion or control over Callicutt. In addition, the trial court also found no evidence that the Section 1031 exchange was a common interest or that Taylor profited from the exchange.

¶ 26. Callicutt fails to demonstrate that he had a fiduciary relationship with Taylor. Callicutt bought the Moore property from Dudley Moore for $2.6 million in February 2003. Prior to the closing on the Moore property, Callicutt had a contract with Hurdle to buy the Moore property for $3.8 million. As the trial court correctly determined, Callicutt was disqualified from performing a Section 1031 exchange because he held the property primarily for sale. Therefore, the $1.2 million profit that resulted from the sale of the Moore property by Callicutt to Hurdle was subject to taxation and not eligible for a tax deferment.

¶ 27. Furthermore, there is no evidence of Taylor’s dominion or control over Calli-cutt. Callicutt had closed on the Moore property with Dudley and had contracted to sell the Moore property to Hurdle, thus disqualifying the property for any Section 1031 exchange, prior to having any communications with Taylor. Before the April 10, 2003, closing between Callicutt and Hurdle, Callicutt saw Taylor to inquire about a Section 1031 exchange of property. Taylor was hired by the Bank of Holly Springs, not Callicutt, to perform the closing on behalf of Hurdle. Callicutt testified that he did not know who hired Taylor to perform title work and the closing. Taylor’s title company performed only title searches and loan closings. Taylor was not an attorney, nor was she an accountant. In addition, neither Taylor nor her business held themselves out to be experts in tax law or in Section 1031 exchanges.

¶ 28. Taylor printed Section 1031 information that she received at a seminar and a sample copy of an agreement for Calli-cutt. Callicutt testified in his deposition that Taylor never told him how much money he would have to place in an escrow account for a like-kind property exchange pursuant to Section 1031. He also stated that Taylor copied some documents concerning Section 1031 exchanges and explained the process. However, Callicutt did not remember any specific information that Taylor told him in regard to the Section 1031 exchange. Taylor testified that she informed Callicutt that he would need to consult an attorney or certified public accountant regarding a Section 1031 exchange.

¶ 29. Callicutt executed an exchange agreement between himself and Union Planters. He testified that he assumed that Union Planters had prepared the Section 1031 exchange agreement. Callicutt bought $1.2 million in other property following the Hurdle closing. However, Cal-licutt never informed Taylor of the purchase of replacement property. In fact, Callicutt and Taylor had no subsequent dealings with each other after the Hurdle closing. Instead, Callicutt worked with Union Planters on the acquisition of $1.2 million in real property.

¶ 30. Callicutt contends that Taylor prepared the exchange agreement for a fee of $1,000 for legal services. The settlement statement for the closing of the sale of the Moore property from Callicutt to Hurdle provides that $1,000 was paid for “Attorney’s Fee for preparation of Exchange Agreement & Supporting affidavits.” The settlement statement also provides that Callicutt and Hurdle each paid $500 to Taylor’s employee, Jennifer Shack-leford, for the closing. Callicutt argues that Taylor received a $1,000 fee for preparing the exchange agreement. As the settlement document reflects, Callicutt’s characterization of the fee payment is incorrect and inconsistent with notations of other fees charged by Taylor’s business, Professional Services. The settlement statement does not reflect that either Taylor or Professional Services received the $1,000 for preparation of the exchange agreement.

¶ 31. Accordingly, the trial court correctly determined that Taylor owed no fiduciary duty to Callicutt. Since Taylor did not owe any duty to Callicutt, there was no breach of duty to result in any damages to him. This issue is without merit.

CONCLUSION

¶ 32. For the foregoing reasons, the judgment of the Circuit Court of Marshall County is affirmed.

¶ 33. AFFIRMED.

SMITH, C.J., WALLER, P.J., CARLSON, RANDOLPH AND LAMAR, JJ., CONCUR. DIAZ, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J. DICKINSON, J., JOINS IN PART.

DIAZ, Presiding Justice,

concurring in part and dissenting in part:

¶ 34. While I agree with the majority that the trial court correctly granted summary judgment on Callicutt’s claims for tax and future-profit damages, I do not share the majority’s view that the trial court properly granted summary judgment with respect to (1) whether Taylor owed Callieutt a duty and (2) whether her alleged breach of a duty was the direct and proximate cause of the accrual of penalties and interest in connection with Callicutt’s delay in paying the taxes on the sale of the Moore property, as well as the cost of borrowing money to pay those taxes. Looking at the evidence in the light most favorable to Callieutt, I conclude that there was a genuine issue as to whether an informal fiduciary relationship existed between Taylor and Callieutt and whether Taylor’s alleged breach of that duty was the direct and proximate cause of Calli-cutt’s incidental tax damages.

¶ 35. Callieutt alleges that Taylor owed him a fiduciary duty because she gave him legal and accounting advice about the structuring of a like-kind exchange, arranged the like-kind exchange with Union Planters as the qualified intermediary and helped execute the exchange between him and Union Planters. In response, Taylor contends that the trial court properly found that Taylor owed Callieutt no duty, fiduciary or otherwise, in connection with the failed like-kind exchange.

¶ 36. The term “fiduciary relationship” is a “broad term embracing both technical fiduciary relations and those informal relations which exist wherever one person trusts in or relies upon another.” Lowery v. Guaranty Bank & Trust Co., 592 So.2d 79, 83 (Miss.1991) (citation omitted). “A fiduciary relationship may arise in a legal, moral, domestic, or personal context where there appears on the one side an overmastering influence or, on the other, weakness, dependence, or trust, justifiably reposed.” Id (internal quotation marks and citations omitted). The existence of a fiduciary duty is a question of fact. Id at 85. “[0]ur law applies a broad brush to this doctrine and does not preclude a jury’s finding of a fiduciary relationship in [particular] situations.” Robley v. Blue Cross/Blue Shield 935 So.2d 990, 994(¶ 10) (Miss.2006) (citation omitted).

¶ 37. Examining the evidence in the light most favorable to Callieutt, I find that a genuine issue exists as to whether Taylor owed Callieutt an informal fiduciary duty. Noxubee County Sch. Dist. v. United Nat’l Ins. Co., 883 So.2d 1159, 1163(¶ 6) (Miss.2004) (citations omitted). According to Callieutt, Taylor represented that she had the requisite sophistication and knowledge to arrange a valid, like-kind exchange and would assist him in executing such an exchange with Union Planters acting as the qualified intermediary. Callieutt claims that, based on those representations made by Taylor, he relied on her to arrange and guide him through a like-kind exchange in connection with the sale of the Moore property to Hurdle. It is undisputed that Callieutt paid Taylor a $1,000 “Attorney’s Fee” to prepare the exchange agreement and that Taylor prepared the exchange agreement.

¶ 38. In Taylor’s account of the events leading up to the botched like-kind exchange, she merely suggested to Callicutt that a like-kind exchange might be one way to avoid taxes; provided him with some materials she had concerning like-kind exchanges; including contact information for companies she suggested he contact that specialized in like-kind exchanges; and advised him to contact a tax attorney and a CPA. Taylor denies that any discussion of using Union Planters as a qualified intermediary occurred until the day of the closing, claiming instead that Callicutt asked her to structure the transaction as a like-kind exchange at the closing.

¶ 39. “Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.” Daniels v. GNB, Inc., 629 So.2d 595, 599 (Miss.1993). Because each party swears to a different set of material facts, summary judgment was improperly granted. The majority, however, contends that Cal-licutt presented “no evidence that Taylor had any dominion or control over [him].” Although I agree no evidence of Taylor’s dominion or control over Callicutt exists, I conclude, viewing the evidence in the light most favorable to Callicutt, that a reasonable jury could find the existence of a “dependence, or trust, justifiably reposed” by Callicutt in Taylor. Lowery, 592 So.2d at 83. A jury could find the existence of a fiduciary relationship in this case based on Taylor’s alleged representations about her ability to arrange a valid, like-kind exchange, her alleged arrangement of the exchange between Callicutt and Union Planters, Callicutt’s alleged reliance on Taylor to arrange a valid like-kind exchange and his payment of the $1,000 “Attorney’s Fee” to Taylor for the preparation of the exchange agreement.

¶ 40. I also conclude that the trial court improperly granted summary judgment on Callicutt’s claim for $18,992.89 in penalties and interest that he was forced to pay as a result of the delay in paying his taxes on the sale of the Moore property, as well as his claim for the $13,943 he borrowed to pay those taxes. A genuine issue exists as to whether Taylor’s alleged breach of her fiduciary duty caused him to delay paying the taxes on the sale of the Moore property, which resulted in the accrual of penalties and interest and required him to borrow money to pay the taxes.

¶ 41. I do agree with the majority that summary judgment was properly granted on Callicutt’s claims for the $473,803 he paid in taxes on the sale of the Moore property and the $1,079,791.11 of future lease income he allegedly lost on a piece of property he was allegedly forced to sell in order to pay the taxes on the sale of the Moore property. No action or inaction of Taylor resulted in the failure of the property to qualify for a like-kind exchange because Callicutt acquired the property from Moore with the intent of selling it. Callicutt would have incurred these costs regardless of any alleged wrongful conduct on the part of Taylor.

¶42. I would, reverse the trial court’s grant of summary judgment on whether Taylor owed Callicutt a fiduciary duty and Callicutt’s claims for penalties and interest and the cost of borrowing money to pay the taxes, affirm the trial court’s grant of summary judgment with respect to Calli-cutt’s claims for the payment of the taxes and the lost lease income, and remand the case for further proceedings. Therefore, I respectfully concur in part and dissent in part.

GRAVES, J. JOINS THIS OPINION. DICKINSON, J., JOINS THIS OPINION IN PART.

      . Callicutt also sued Union Planters Bank, N.A., but the parties have stipulated to the dismissal of all claims pertaining to Union Planters Bank, N.A.

      . In the affidavit he filed on February 26, 2006, Callieutt stated that he "asked for advice from Diane Taylor regarding whether or not [he] could structure the sale so as to defer the taxes and she told [him] that [he] could and that she had handled such transactions before with Union Planters.”

      . Callieutt claimed in the affidavit that he "had never been involved in a like kind [sic] exchange and [he] relied on ... Taylor ... to advise [him] concerning the transaction.” In his mind, he "was paying ... Taylor to guide [him] with regard to the like kind [sic] exchange.”

      .The majority claims that the settlement statement "does not reflect that either Taylor or Professional Services received the $1,000 for preparation of the exchange agreement.” I do not see how the majority comes to this conclusion when the settlement statement clearly shows that Callicutt paid Taylor a $1,000 “Attorney's Fee for preparation of Exchange Agreement & Supporting affidavits” and Taylor does not argue that the $1,000 fee was not paid by Callicutt. It is not clear why Taylor charged an "Attorney’s Fee” for preparing the exchange agreement between Cal-licutt and Union Planters. She is not an attorney and does not pretend to provide legal services. However, the labeling of the $1,000 fee as an “Attorney’s Fee” suggests that she considered herself to possess expertise comparable to that of an attorney in arranging like-kind exchanges, which bolsters Callicutt’s argument for the existence of a fiduciary duty.