text:
    Richard Duran ARMSTRONG, et ux. v. SAFEWAY INSURANCE COMPANY, et al.
    No. 10-183.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.

      William M. Ford, Attorney at Law, Alexandria, Louisiana, Counsel for Plaintiffs/Appellees Richard Duran Armstrong Cassondra Price Armstrong.
    Dana C. Graham, Borne & Wilkes, L.L.P., Lafayette, Louisiana, Counsel for Defendants/Appellants Safeway Insurance Company Darrell Frost.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and DAVID E. CHATELAIN, Judges.
   DAVID E. CHATELAIN, Judge.

11 The defendants, Safeway Insurance Company of Louisiana (Safeway) and Darrell Frost (Frost), appeal from a judgment rendered in favor of the plaintiff, Richard D. Armstrong (Armstrong), awarding him property damages plus penalties and attorney fees. We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Frost and Armstrong were involved in an automobile accident on April 12, 2008, in Pineville, Louisiana. As a result of the accident, Armstrong suffered personal injuries as well as property damage to the 1982 Chevrolet Corvette that he was operating at the time. The defendants stipulated to liability at trial. In addition, the parties informed the trial court that Armstrong’s personal injury claims and his wife’s loss of consortium claims had been settled, but Armstrong had reserved his rights against the defendants with regard to his property damage claims, including an allegation that the defendants were liable for penalties and attorney fees for failing to timely pay his property damage claim.

Following a one-day trial held on August 14, 2009, the trial court took the matter under advisement. In written reasons for judgment issued on October 2, 2009, the trial court found that Armstrong’s Corvette was a “well-maintained classic.” It accepted Armstrong’s evidence showing the total cost to repair the Corvette was $7,007.00, and it awarded that amount to Armstrong as property damages. In addition, Armstrong was awarded $3,503.50 in penalties and $5,000.00 in attorney fees, plus court costs. Judgment conforming to the substance of the written reasons was signed on November 6, 2009.

|2The defendants now appeal, asserting two assignments of error. First, they claim that the $7,007.00 property damage award is contrary to the evidence and testimony offered at trial. Second, the defendants contend that the trial court erred in concluding that Safeway acted arbitrarily and capriciously, thus making it liable to Armstrong for penalties and attorney fees.

DISCUSSION

In Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted), the Louisiana Supreme Court set out the appellate standard of review as follows:

[A] court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable .... [I]f the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.

This court has stated the following with regard to property damage claims:

When property is damaged through the legal fault of another, the primary objective is to restore the property as nearly as possible to the state it was in immediately preceding the damage; it is well settled that the measure of damage is the cost of restoring the property to its former condition. In assessing damage to the property, generally, courts have considered the cost of restoration as the proper measure of damage where the thing damaged can be adequately repaired.

Rogers v. Commercial Union Ins. Co., 01-443, pp. 6-7 (La.App. 3 Cir. 10/3/01), 796 So.2d 862, 867 (quoting Coleman v. Victor, 326 So.2d 344 (La.1976)).

[ ¿Testimony and Evidence Presented at Trial

Armstrong testified that he initially took his vehicle to Advanced Collision (Advanced). However, when the repair work was delayed due to Advanced’s busy schedule, he chose to have Jack Powell’s Body Shop (Powell’s) complete the repairs, which consisted of changing the front caps and the front clip, both made of fiberglass, and repainting the damaged areas. Armstrong incurred towing charges of $175.00 to transport the vehicle from Advanced to Powell’s.

Armstrong explained that his hobby was buying, restoring, and reselling antique automobiles. Armstrong stated that the vehicle was “an antique and a classic” that was in excellent condition and had never been wrecked before the subject accident. Because he had seen poor fiberglass repairs in the past, Armstrong elected to have the front caps and the front clip replaced, rather than simply repaired, in order to maintain the vehicle’s integrity.

Powell’s charged Armstrong $5,045.05. He explained that he had purchased the necessary parts from Ecklers, a company that supplies replacement parts for Corvettes, and that the parts were shipped directly to Powell’s. Armstrong identified and submitted as exhibits invoices from Ecklers in the amounts of $1,239.59, $61.23, $195.99, and $317.24. Armstrong also purchased a tire at a cost of $147.90.

Armstrong testified that Safeway sent him a check in the amount of $3,815.00, dated May 12, 2008, which contained the following notation: “Full and final settlement PD claim for accident on 4/12/08.” He was not willing to accept that amount because he believed that his property damage claim was much greater than the settlement offer. Thereafter, he hired an attorney to pursue his property damage claim. Armstrong identified a certified letter that his attorney mailed to Safeway on | ^June 16, 2008, returning the proposed settlement check and informing Safeway that he would be willing to accept an unconditional tender of funds.

Armstrong acknowledged that Safeway had informed him that he could request additional amounts to cover any supplemental repairs for damage discovered after Safeway’s initial estimate. He testified that Safeway issued a check for $342.97 to cover supplemental damages. On cross-examination, Armstrong agreed that some of the repair work done to his vehicle was noticeable, but he explained that he was working with Powell’s to fix some “minor flaws” that remained.

Jack Powell identified the $5,045.05 invoice associated with the repair of Armstrong’s Corvette and stated that Armstrong had paid the invoice in full. According to Powell, the areas needing touch-ups were “smaller than ... your little fingernail,” and the repairs would not require grinding or fiberglass. Powell stated that Armstrong would not be charged for the touch-up work.

The front end cap was off of the vehicle when it was delivered to his shop, leaving Powell with no option but to replace, rather than repair, it. Because he never saw the vehicle in its accident condition, Powell stated that he could not honestly answer whether Safeway’s initial and supplemental repair estimates were reasonable; he agreed, however, that the vehicle could have been repaired in many different ways and that he had no reason to doubt the Safeway estimates.

John Abshire, a body shop owner with over thirty years of experience in repairing vehicles, testified for the defendants. Ab-shire related that he had extensive experience repairing Corvettes and that he formerly owned a custom Corvette shop in New Orleans. He stated that Kent Wilson, the appraiser who compiled the repair estimates for Safeway, had initially contacted him to inquire, in general terms, about | srepairing a crack in the fender of a Corvette. He told Wilson that a cracked fiberglass fender could be easily repaired. Later, Wilson asked him to look at photographs of Armstrong’s Corvette and to review the repair estimate that Wilson had prepared. In Abshire’s opinion, the fender could have been patched rather than completely repaired and Wilson’s estimate was fair and reasonable. He also prepared an estimate of the cost to repair the Armstrong vehicle; his estimate totaled $40.00 more than Wilson’s estimate.

Abshire stated that he had not actually seen the Corvette in person until his deposition, taken several months prior to trial, when it was parked outside of Armstrong’s attorney’s office. He observed that the vehicle had a new front end cap and that the entire vehicle had been painted. He could see where the vehicle had been repaired. In his opinion, the problem could be corrected by grinding and patching the fiberglass, that is, by using the technique Safeway initially recommended. On cross-examination, Abshire agreed that Armstrong had the right to be concerned about the way his vehicle was going to be repaired because it would affect the vehicle’s value. Further, he agreed that there was nothing wrong with the way the vehicle was repaired and that Powell’s charges were “very, very reasonable.” Abshire acknowledged that Wilson, on behalf of Safeway, regularly referred business to Ab-shire’s body shop.

Matt Allen, a licensed claims adjuster for Safeway who had been assigned to Armstrong’s file, also testified for the defendants. He stated that after receiving the file, he had an appraisal done and sent a check to Armstrong in the amount of $8,815.00, along with a letter advising Armstrong that he could have his vehicle repaired at the body shop of his choosing and that a supplemental check would be | (¡issued to the body shop if it later discovered “any hidden damage ... or rate differences, etc.” Allen admitted, however, that the check contained a notation that it represented a full release of Armstrong’s property damage claim and that any supplemental repairs would have to be approved by Safeway. When the original check Safeway issued to Armstrong was returned, Allen did not issue an unconditional tender of the amount of that check.

Because the defendant’s appraiser, Kent Wilson, was unavailable for trial, the defendants submitted his deposition as a trial exhibit. Wilson explained that he had worked as an appraiser for twenty-five years before becoming a staff appraiser for Safeway seven years ago. He examined Armstrong’s vehicle three days after the accident. In his appraisal, he noted that the vehicle could be repaired in six days at a cost of $8,815.00. He determined that because only the front left side of the vehicle had been damaged, it could be repaired by sectioning off and splicing the front cover rather than by replacing it entirely. He did, however, authorize the replacement of the front left fender. According to Wilson, someone from Advanced verified that the repairs could be done in the manner that he outlined in his appraisal. Later, Wilson received a call from Advanced notifying him that they had discovered additional damage when the wheel was removed. Thereafter, Wilson reinspected the vehicle and issued a $342.00 supplement check to Advanced to pay for a new wheel and inner fender and a front-end alignment.

|7When cross-examined in his deposition, Wilson admitted that he had consulted Ab-shire in formulating his initial appraisal. He explained that he consulted an expert because he did not “do fiberglass work” and wanted “to have my ducks in line.”

Property Damages

The defendants assert that the repairs to Armstrong’s Corvette could have been performed in the manner detailed and for the amount listed in the Safeway estimate. They contend that Safeway’s estimate was fair and reasonable and that the vehicle could have been repaired to make the repair unnoticeable and at nearly half of the cost of repairing the vehicle in the manner Armstrong demanded.

In his appellee brief, Armstrong concedes that “[a]ll body men involved had indicated that [the $3,815.00 initial Safeway estimated] was a fair and sufficient estimate to make a repair job to the automobile by patching it and using the existing damaged fender and hood.” Armstrong further agrees that “when hidden damage was discovered Safeway wrote a check for the hidden damage.” Nevertheless, Armstrong points out that each of the body men involved in this matter agreed that his vehicle was an antique and/or a classic and that Armstrong did nothing improper in demanding that his vehicle be repaired by replacing the front end cap, rather than merely repairing it. Moreover, Armstrong submits that the defendants offered no evidence to show that his vehicle could be repaired with a new front end cap for less than the $7,007.00 that the repairs cost him.

After having carefully reviewed the record, we are convinced that the trial court did not err in awarding Armstrong $7,007.00 in compensation for the property damage that he incurred as a result of the April 12, 2008 accident. Safeway’s appraiser, Wilson, admitted that he did not “do fiberglass work,” and that he had | ¡^contacted Abshire, whom he considered to be an expert in that field, in formulating his initial appraisal. Given that Abshire did not view the Armstrong vehicle in person before giving his opinion as to whether the vehicle could be repaired in the manner recommended by Wilson, we cannot say that the trial court erred in discrediting Safeway’s claim that Armstrong should have been limited to repairing, rather than replacing, the front end cap. Moreover, Armstrong’s attorney elicited testimony to show that Abshire had a vested interest in giving testimony favorable to Safeway, because Wilson admitted that he sometimes referred business to Abshire’s body shop.

Both Powell and Abshire agreed that Armstrong’s vehicle could have been repaired in several different ways and that Armstrong had the right to be concerned about the way that his vehicle was going to be repaired. Because the trial court was presented with “two permissible views of the evidence, [its] choice between them cannot be manifestly erroneous or clearly wrong.” Rosell, 549 at 844. Armstrong carried his burden of proving the amount of property damage he incurred as a result of the accident. The defendants simply argued that Armstrong’s vehicle could have been repaired in the manner recommended by its appraiser; they did not argue that any of the costs incurred by Armstrong to have his vehicle repaired in the manner that he chose were otherwise unreasonable. Accordingly, we conclude that the trial court did not err in awarding Armstrong the full amount of his proven property damages. The defendants’ first assignment of error lacks merit.

| ⅞]Penalties and Attorney Fees

In its written reasons, the trial court found that Safeway’s “failure to at least make an unconditional tender, as well as failing to pay the amount owed, was done arbitrarily, capriciously and without appropriate cause, and therefore subjects [it] to the penalties provided under Louisiana law.” As a result, Armstrong was awarded $3,503.50 in penalties and $5,000.00 in attorney fees, plus court costs.

The duties owed to a third party claimant by an insurer are found in La.R.S. 22:1892(A). According to that statute, the insurer:

(2) ... shall pay the amount of any third party property damage claim and of any reasonable medical expenses claim due any bona fide third party claimant within thirty days after written agreement of settlement of the claim from any third party claimant.
(3) ... shall initiate loss adjustment of a property damage claim and of a claim for reasonable medical expenses within fourteen days after notification of loss by the claimant.... Failure to comply with the provisions of this Paragraph shall subject the insurer to the penalties provided in R.S. 22:1973.
(4) ... shall make a written offer, to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim.

The statute further provides for penalties for the breach of the aforementioned duties, in pertinent part, as follows:

|10B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4), respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2), when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, ... or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs....

In Langsford v. Flattman, 03-0189, p. 3 (La.1/21/04), 864 So.2d 149, 151, the supreme court explained that “[t]he relationship between the insurer and the third party claimant is neither fiduciary nor contractual; it is fundamentally adversarial. For that reason, a cause of action directly in favor of a third party claimant is generally not recognized absent statutory creation.”

The defendants claim that they fulfilled all of the duties imposed by La.R.S. 22:1892 and La.R.S. 22:1973. They submit that Safeway timely initiated loss adjustment because it promptly assigned an appraiser to the file and an inspection of Armstrong’s vehicle was performed within three days of the accident. Because there was never a written agreement to settle the property damage claim, the defendants suggest that they could not have violated Section 1892(A)(2)’s requirement that any settlement be paid within thirty days. Finally, the defendants argue that Safeway did Innot receive satisfactory proof of loss until it was able to verify, through the accident report, that Armstrong was the owner of the Corvette until “sometime between April 23, 2008 and May 12, 2008.” They submit that the check sent to Armstrong on May 12, 2008, within thirty days of receipt of proof of loss and thirty days of the accident, though issued as an offer to fully settle the property damage claim, could be considered a written offer to settle in compliance with Section 1892(A)(3). Essentially, the defendants argue that because their actions regarding Armstrong’s property damage claim were fair and reasonable, the trial court erred in concluding that their actions were arbitrary and capricious and in finding them liable for penalties and attorney fees. Citing Mallett v. McNeal, 05-2289 (La.10/17/06), 939 So.2d 1254, Riser v. Shelter Mutual Insurance Co., 43,617 (La.App. 2 Cir. 10/29/08), 997 So.2d 675, and Young v. Gremillion, 05-802 (La.App. 5 Cir. 3/14/06), 924 So.2d 1285, the defendants contend that insurers have no duty to make unconditional tenders to third parties on property damage claims.

Armstrong counters that the defendants’ failure to unconditionally pay him at least the amount of the Safeway estimate was arbitrary and capricious under the facts of this case, subjecting the defendants to a judgment against them for penalties and reasonable attorney fees.

In Ledet v. National Car Rental System Inc., 96-1270 (La.App. 3 Cir. 6/4/97), 694 So.2d 1236, the plaintiff, who was injured when a rented automobile struck his vehicle, filed suit against the driver of the automobile and the rental company seeking damages as a result of the personal injuries and property damages he sustained in the accident. After a bench trial, the plaintiff was awarded $10,000.00 in general damages, $5,310.19 in special damages, and $434.70 in property damages. The | ^plaintiff appealed, arguing that the trial court erred in failing to award him penalties and attorney fees for the rental company’s having violated La.R.S. 22:658 and La.R.S. 22:1220, now La.R.S. 22:1892 and La.R.S. 22:1973, in failing to pay or unconditionally tender compensation for his personal injury and property damage claims. A representative of the rental company testified that the lowest property damage appraisal totaled $434.70. He offered $407.70 in full and final settlement of the property damage claim because he believed that the appraisal contained an inflated charge for labor. The plaintiff refused this offer. This court found that there was no written agreement of settlement. Accordingly, we determined that the rental company had no duty to make payment, and we affirmed the trial court’s denial of penalties and attorney fees under La.R.S. 22:658. With regard to the plaintiffs claims that the rental company violated the duty imposed in La.R.S. 22:1220, we stated:

The Louisiana Supreme Court in Theriot v. Midland Risk Ins. Co., 95-2895 (La.5/20/97), 694 So.2d 184, on rehearing, concluded that Subsection A of the above quoted statute does not create a broad duty to third-party claimants to make a reasonable effort to settle all claims. The conduct for which damages and penalties can be sought by insureds and third-party claimants is limited by Subsection B’s exclusive list.

Ledet, 694 at 1241. Because the plaintiff had not alleged, and the facts of the case did not indicate, that the rental company had not committed any of the acts listed in La.R.S. 22:1220(B), we determined that the plaintiff had no right of action for penalties under La.R.S. 22:1220.

| igThe undisputed facts in the case herein demonstrate that the defendants fully complied with the duties imposed by La. R.S. 22:1892 and La.R.S. 22:1973 with regard to the handling of Armstrong’s property damage claim. Similar to the plaintiff in Ledet, Armstrong has not alleged that the defendant violated any of the specific duties imposed by those statutes. Instead, he claims that the defendants’ failure to unconditionally tender the amount of the Safeway estimate was arbitrary and capricious, subjecting the defendants to a judgment against them for penalties and reasonable attorney fees. The law simply does not require an insurer to offer a third party claimant an unconditional tender. Accordingly, the portion of the trial court’s judgment awarding Armstrong penalties and attorney fees is reversed.

DECREE

For the reasons assigned, the portion of the trial court judgment awarding Richard D. Armstrong $7,007.00 in property damages is affirmed. The portion of the trial court judgment awarding Richard D. Armstrong $8,503.50 in penalties and $5,000.00 in attorney fees is reversed.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . Wilson initially stated in his deposition that he first viewed the vehicle at Advanced. Later, when questioned by Armstrong’s attorney, he remembered having actually met Armstrong at Kees Park in Pineville to inspect the vehicle before it was brought to Advanced.

      . The trial court’s property damage award does not include the $175.00 towing charge Armstrong incurred in having his vehicle moved from Advanced to Powell's. Because Armstrong did not appeal or answer the defendants' appeal with regard to this element of his damages, we need not discuss whether the trial court erred in not including reimbursement for the towing charges in its damage award.

      . This statute was renumbered from La.R.S. 22:658 by Acts 2008, No. 415, § 1, effective January 1, 2009.

      . This statute was renumbered from La.R.S. 22:1220 by Acts 2008, No. 415, § 1, effective January 1, 2009. Louisiana Revised Statutes 22:1973(A) provides, in pertinent part, that an "insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both.” The statute lists six acts, which if the insurer knowingly commits, amount to a breach of the duties imposed in Subsection A. La.R.S. 22:1973(B). One of those six enumerated acts is "[flailing to pay claims pursuant to R.S. 22:1893 when such failure is arbitrary, capricious, or without probable cause.” La. R.S. 22:1973(B)(6). The statutes’ penalty section provides that "[i]n addition to any general or special damages to which a claimant is entitled ..., the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or five thousand dollars, whichever is greater.” La.R.S. 22:1973(C).

      . Armstrong alleged in his petition that the defendants had violated several other statutes with regard to their handling of his property damage claim. Neither the judgment nor the trial court's written reasons specifically refer to which statute(s) the defendants had violated thus making them liable to Armstrong for penalties and attorney fees. The defendants argue in their appellate brief that only La.R.S. 22:1892 and La.R.S. 22:1973 are relevant to the matter before us; Armstrong does not challenge this argument. Accordingly, this opinion addresses only the aforementioned statutes.

      . In an earlier decided summary judgment, the trial court found that the rental company provided liability insurance coverage for the accident based on the rental contract with its customer. The rental company challenged this ruling in answer to the plaintiff's appeal. We upheld the trial court's decision.


source: Caselaw Access Project

author: DAVID E. CHATELAIN, Judge.

license: Public Domain

text:
    Henry Daniel RACHAL and Sharon Tyler Rachal v. Valrie Brasher RACHAL.
    No. 10-170.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.

      Jared Dunahoe, Dunahoe Law Firm, Marvin F. Gahagan, Gahagan & Gahagan, Natchitoches, Louisiana, for Plaintiffs/Ap-pellees, Henry Daniel Rachal, Sharon Tyler Rachal.
    John S. Evans, Attorney at Law, Stonewall, Louisiana, Gary V. Evans, Attorney at Law, Mansfield, Louisiana, for Defendant/Appellant, Valrie Brasher Rachal.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and DAVID E. CHATELAIN, Judges.
   DAVID E. CHATELAIN, Judge.

|, This litigation is between the plaintiffs, spouses Henry Daniel Rachal (Dan) and Sharon Tyler Rachal (Sharon), and the defendant, Valrie Brasher Rachal (Valrie), the widow of Dan’s father, Henry Audry Rachal (Henry Sr.). Valrie appeals from a judgment determining the ownership of various movable property; ordering her to return to the family home certain movable property; ordering her to refrain from removing or encumbering any of the remaining movables from the family property; ordering her to allow the plaintiffs access to the family home for a physical inspection of the home and an inventory of its contents; and granting the plaintiffs free access to the family property, without interference from her, during the pen-dency of these proceedings. For the following reasons, we reverse in part, affirm in part, and remand.

FACTS AND PROCEDURAL HISTORY

Henry Sr. and Valrie were married in 1974. Henry Sr. executed a cash sale deed on May 3, 2000, in favor of Dan and Sharon conveying a tract of land and a home (the family home) located in Natch-itoches Parish, Louisiana, for consideration of $4,000, reserving for himself and Valrie a lifetime usufruct. The deed provided that the usufruct would terminate upon the death of the last survivor of either Henry Sr. or Valrie. Henry Sr. died on May 4, 2004.

The plaintiffs filed this suit on July 18, 2008, seeking a preliminary injunction, and later a permanent injunction, ordering Val-rie to return all movables that she had allegedly removed from the property and to prevent her from removing any additional |amovables from the property. They sought termination of Valrie s usufruct, alleging that she had “abused the enjoyment of the usufruct by neglecting the maintenance and ordinary repairs of the immovable property” and that she had failed to provide them with proof of insurance coverage for the property, in violation of the provisions of the cash sale deed and contrary to various Louisiana Civil Code articles. The plaintiffs further requested that Valrie be ordered to make all necessary ordinary repairs to the property, including the home and buildings thereon, and to restore it to the condition that it was in at the time the plaintiffs purchased the property.

Valrie responded to the petition by filing exceptions of improper cumulation of actions, lack of procedural capacity, vagueness or ambiguity, and nonjoinder of indispensable parties. The plaintiffs opposed the exceptions. Following a hearing, the trial court granted the exception of improper cumulation of actions and ordered separate trials of plaintiffs’ two claims, “one to address the summary proceeding regarding the injunction as to the movable property and the other to address the ordinary proceeding to terminate the usu-fruct of the immovable property.”

The ground for the exception of lack of procedural capacity was that the plaintiffs had not specified the basis of their right to bring an action regarding the movables referred to in the petition. The trial court declined to rule on the exception, noting that the parties had addressed the ownership of the movables in their memoranda, not their pleadings.

The basis of Valrie’s exception of vagueness or ambiguity was that the petition failed to identify the children and/or heirs of Henry Sr. and that plaintiffs failed to ^specify their alleged ownership interest in the movables and how they obtained that interest. The trial court granted the exception but on different grounds than those Valrie argued. The trial court found that the petition was vague concerning the movable property at issue, pointing out that there were discrepancies between the items listed in the petition itself, in Exhibit C attached thereto, and in the order accompanying the petition. The trial court reiterated that, as written, the petition failed to allege the ownership of the movables at issue, thus preventing Valrie from properly responding to the pleading. The trial court rejected Valrie’s claim that the petition was vague for its failure to list Henry Sr.’s heirs, noting that there were no allegations in the petition alleging that the movable property belonged to the unopened succession of Henry Sr., as suggested in memorandum, or that the movable property was subject to any usufruct.

Valrie’s exception of nonjoinder of indispensable parties was based upon her argument that there may be other co-owners of the movables that needed to be joined for complete and equitable adjudication of the action. The trial court denied the exception based on La.Code Civ.P. art. 642, reasoning that Valrie had failed to address the potential harm that could be suffered by any persons not already joined in the action if the injunction were granted. Noting that the plaintiffs’ request for injunction “merely asks for [Valrie] to cease and desist from removing additional movables and to return all movables that she has taken,” the trial court stated that granting an injunction “appears to be the perfect solution so that all interested parties may determine the actual ownership and value” of the movables at issue. The plaintiffs were given thirty days to amend their petition with regard to the exceptions of lack of procedural capacity and vagueness or ambiguity. A written judgment 14disposing of Valrie’s exceptions was signed on January 28, 2009, along with written reasons for the trial court’s rulings.

The plaintiffs filed a first amending and supplemental petition on February 26, 2009. Therein, they alleged that, prior to his death, Henry Sr. had “verbally” given Dan certain movable property before and after his (Henry Sr.’s) marriage to Valrie, which the plaintiffs listed in Amended Exhibit C. In addition, the plaintiffs listed several movables that they had jointly purchased and which had been stored on the property but were no longer there. Alternatively, the plaintiffs alleged that Dan was a legal heir of his father who would be entitled to one-sixth of one-half of the community movable property that his father owned even had his father not given him any specific movable property prior to his death.

The trial court revisited Valrie’s exception of lack of procedural capacity as to the movable property after the amendment of plaintiffs’ petition. In a judgment and written reasons signed on April 20, 2009, the trial court denied the exception, finding that as a result of the amendment, the petition now clearly identified the movable property at issue and the nature of the plaintiffs’ alleged rights of ownership of that property, thus clearly demonstrating the plaintiffs’ procedural capacity to proceed. The judgment contained a provision resetting the previously continued hearing on the plaintiffs’ request for preliminary injunction to June 28, 2009.

The injunction hearing took place as scheduled. Both Dan and Sharon testified, following which the plaintiffs rested. Valrie also testified, as did her daughter, Bonnie Perkins. After the defendant rested, the trial court asked: “Okay[,] the purpose of our hearing today is ... strictly the request for the preliminary injunction and for the return of the property[;] is that correct?” The transcript reveals | ¡¡that counsel for the plaintiffs answered the trial court’s question in the affirmative and counsel for the defendant remained silent. Thereafter, the trial court announced its rulings. First, it declared the following movables to be gifts to Dan from his father: two tractors plus their implements/attachments; a four wheeler; an aluminum house jack; three outboard motors; a wood planer; a drill press; a welding machine; and a revolver. Second, the trial court declared that Dan and Sharon owned three eight-foot folding tables, two antiques outboard motors, and various accessories relating to the four wheeler. The trial court ordered Valrie to immediately return those items to the family home to give to the plaintiffs. Next, the trial court declared that a Ford Mercury automobile, a Ford pick-up truck, five mud-grip tires, and two riding lawnmowers belonged to the estate of Henry Sr. The trial court ordered Valrie to refrain from removing any other movables, including the furniture, appliances, and hand tools, from the family home and to allow the plaintiffs access to the home to conduct an inventory of its contents. The trial court stated that the parties could come back at a later date following the inventory of the remaining movables should they disagree as to their disposition. Finally, the trial court stated that plaintiffs should not continue to have free access to the premises because Valrie had usufruct over it. A written judgment/order prepared by counsel for the plaintiffs was signed on July 23, 2009.

Valrie now appeals, asserting the following assignments of error: (1) the trial court committed legal error in determining ownership of property during a hearing on a rule to show cause why a preliminary injunction should not be granted; (2) the trial court committed legal and/or manifest error in conducting a hearing on the validity of manual gifts Henry Sr. allegedly made to his son, Dan, when testimony | (¡established decedent had another surviving child and three grandchildren by a third predeceased son who had not been joined in the litigation; (3) the trial court committed legal and/or manifest error in finding that alleged gifts of separate property from Henry Sr. to Dan were valid manual gifts; and, (4) the trial court committed legal and/or manifest error in finding that alleged gifts of community property from Henry Sr. to Dan were valid manual gifts.

DISCUSSION

In her first assignment of error, Valrie, contends that the trial court committed legal error in determining the ownership of property during a hearing on the plaintiffs’ request for a preliminary injunction. Citing Betts v. Hoffman, 07-1054 (La.App. 3 Cir. 1/30/08), 975 So.2d 200, she submits that the question of whether a donation is valid requires an ordinary proceeding, and thus, the trial court should not have determined the ownership of the movables allegedly donated to the plaintiffs by Dan’s father during the summary proceeding concerning the plaintiffs’ request for a preliminary injunction.

The plaintiffs disagree, arguing that Val-rie waived any objection to the unauthorized use of a summary proceeding by failing to file an exception or lodge an objection at the hearing on the injunction. The plaintiffs contend that the trial court was required to determine who owned the movable property at issue in order to Ivascertain whether to grant the injunction. In the alternative, the plaintiffs submit that, even if Valrie did not waive the right to object to the unauthorized use of a summary proceeding, she was not prejudiced because she was given a full opportunity to introduce evidence and testimony regarding ownership of the movable property. Finally, the plaintiffs attempt to distinguish Betts, pointing out that the defendant therein filed an exception of misuse of summary process, which this court likened to an exception of unauthorized use of summary proceeding, but Valrie filed no such exception.

This aspect of Valrie’s appeal poses a question of law. In Domingue v. Bodin, 08-62, p. 2 (La.App. 3 Cir. 11/5/08), 996 So.2d 654, 657 (quoting Citgo Petroleum Corp. v. Frantz, 03-88 (La.App. 3 Cir. 6/4/03), 847 So.2d 734, writ denied, 03-1911 (La.10/31/03), 857 So.2d 484), we stated that appellate review of a question of law is de novo, explaining:

[a]ppellate review of questions of law is simply to determine whether the trial court was legally correct or legally incorrect. If the trial court’s decision was based on its erroneous interpretation or application of the law, rather than a valid exercise of discretion, such incorrect decision is not entitled to deference by the reviewing court.

In Domingue, the husband in a divorce proceeding appealed, arguing that the trial court erred in adopting the recommendations of a hearing officer requiring him to pay a car note and insurance on behalf of his wife, which expenses he characterized as interim spousal support, an issue that neither party pled. In determining the merits of the husband’s argument, we noted the following principles:

Pursuant to La.Code Civ.P. art. 191 “[a] court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law.” From that grant of power, trial courts are vested with authority, under La. Code Civ.P. art. 862 to grant relief to the party in whose favor the final judgment rendered was entitled, even if the party has not demanded such a relief in his pleadings Rand the latter contain no prayer for general and equitable relief. Accordingly, “under proper circumstances proof beyond the pleadings, even if objected to, may be admitted and considered when permission to amend the pleadings is requested and granted.” La.C.C.P. Art. 1154. (emphasis supplied). Ussery v. Ussery, 583 So.2d 838, 841 (La.App. 2 Cir.1991) (citing Guillory v. Buller, 398 So.2d 43 (La.App. 3 Cir.1981)). However, notwithstanding this authority, “nothing in the article [art. 862] is intended to confer jurisdiction on a court to decide a controversy which the parties have not regularly brought before it.” Id. Otherwise, “[a] judgment beyond the pleadings is a nullity.” Id. at 841, citing Romero v. State Farm Fire & Casualty Co., 479 So.2d 694 (La.App. 3 Cir.1985).

Domingue, 996 So.2d at 658. Our review of the record in that case revealed that neither party had requested nor been granted permission to amend the pleadings to request interim spousal support. We determined that the trial court had improperly and unilaterally expanded the pleadings when it entertained a claim that was never presented to it, thus exceeding its authority under the Louisiana Code of Civil Procedure. Accordingly, we reversed the judgment of the trial court.

In the present case, we have reviewed both the original and the first amending and supplemental petition filed by the plaintiffs in this matter and nowhere in those pleadings do the plaintiffs request that the trial court decide the ownership of the movables mentioned therein. The plaintiffs simply list certain movables, describe how they allegedly acquired an ownership interest in those movables, and request that Valrie be ordered to return those movables to the family property. The July 23, 2008 order setting the hearing on the plaintiffs’ request for a preliminary injunction directed Valrie to show cause why she should not be ordered to refrain from removing any movables from the family property and to immediately return certain movables that she had allegedly removed from the property. Valrie was also ordered to show cause why the plaintiffs should not be allowed inside the family home to inspect for damages and why the plaintiffs should not continue to have free access to the barns Lon the property without interference. The order does not provide notice that the issue of ownership of the named movables would be decided at the injunction hearing. When the trial court reset the hearing on the plaintiffs’ request for injunction to June 28, 2009, there was no mention that the hearing would encompass more issues than those described in the original show cause order. As a result, Valrie was not given proper notice that the trial court intended to decide the issue of ownership of the movables at the injunction hearing. Therefore, although an attorney was present and accompanied Valrie at the injunction hearing, we conclude, as we did in Betts, that the trial court exceeded its authority when it considered issues beyond the pleadings.

Accordingly, based upon the foregoing, we reverse the portions of the July 23, 2009 judgment/order determining the ownership of various movables. On the other hand, we affirm the portions of the judgment ordering Valrie to return to the premises any of the named movables that she may have taken away so that they may be included in the formal inventory that the trial court ordered to take place.

Next, we note that Valrie’s second assignment of error essentially mirrors the argument that she presented to the trial court in her exception of nonjoinder of indispensable parties. As mentioned above, the trial court denied that exception on January 28, 2009. Valrie did not seek review of that ruling in this court. She did not reurge the exception after the plaintiffs amended their petition, nor did she orally reassert the exception at the June 28, 2009 hearing. According to Uniform | inRules — Courts of Appeal, Rule 3-2, “Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.” (Emphasis added). Valrie only appealed from the trial court judgment/order of July 23, 2009; she did not appeal from the January 28, 2009 judgment denying her exception of nonjoinder of indispensable parties. Because the issue of whether it was proper to conduct a hearing on the validity of alleged manual gifts from a now deceased father to one of his sons when the testimony established that the decedent had another surviving son and three grandchildren by a third predeceased son who had not been joined in the litigation was not submitted to the trial court during the June 23, 2009 hearing, that issue cannot be reviewed in this appeal.

In her third and fourth assignments of error, Valrie asserts that the trial court erred in finding that alleged gifts of separate and community property by Henry Sr. to his son, Dan, were valid manual gifts. Because we have reversed the portions of the July 23, 2009 judgment/order that determined the ownership of various movables, Valrie’s third and fourth assignments of error have become moot and will not be addressed as this court is prohibited from rendering advisory opinions. See Am. Waste & Pollution Control Co. v. St. Martin Parish Police Jury, 627 So.2d 158 (La.1993); Charles v. Landry, 09-1161 (La.App. 3 Cir. 3/10/10), 32 So.3d 1164.

DECREE

For the foregoing reasons, we conclude that the trial court exceeded its authority when it decided the ownership of certain movable property, an issue not properly presented to it in the pleadings. The July 23, 2009 judgment/order is reversed insofar as it purports to determine the ownership of various movables. The ^portions of the judgment ordering Valrie to return to the premises any of the named movables that she may have taken away so that they may be included in the formal inventory is affirmed. The trial court is ordered to amend the July 23, 2009 judgment/order to remove the language ordering Valrie to allow the plaintiffs free access to the family property during the pendency of these proceedings. The July 23, 2009 judgment/order is affirmed in all other respects.

REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . The cash sale deed with reservation of usu-fruct is attached to the petition as Exhibit A.

      . This immovable property had been in the Rachal family for several generations and was Henry Sr.'s separate property.

      . The plaintiffs attached to their petition an estimate, which they marked as Exhibit B, detailing the time, labor, and materials needed to make the necessary repairs to the property, the cost of which totaled $16,338.92.

      . Valrie raised a fifth assignment of error, urging that the trial court committed legal error when it ordered her as usufructuary to permit the plaintiffs, who were naked owners, unfettered access to immovable property subject to a conventional usufruct in her favor. We note that the plaintiffs state in brief that they "have no objection to th[is] court ruling in the appellant’s favor as to this Assignment of Error,” explaining that their counsel did not have a copy of the injunction hearing transcript when he prepared the judgment and that he had misunderstood the trial court’s ruling in this regard. See 5 C.J.S. Appeal and Error § 1059 (a judgment will ordinarily be reversed on a proper and sufficient confession of error by the appellee). Accordingly, we direct the trial court to amend the July 23, 2009 judgment/order to remove the language ordering Valrie to allow the plaintiffs free access to the property, without interference, during the pendency of these proceedings.

      . The Betts court determined that, in addition to exceeding its authority by entertaining a claim that was never presented to it, the trial court violated the husband’s right to due process of law by not giving him reasonable notice of his wife's request for interim spousal support and by not providing him with a hearing in which he could object to his wife's request. This opinion should be interpreted as a finding that the trial court in the matter herein violated Valrie’s due process rights.


author: AMY, Judge.

text:
    STATE of Louisiana v. James E. RAMSDELL.
    No. 09-1510.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.

      David W. Burton, District Attorney, Richard A. Morton, Assistant District Attorney, DeRidder, LA, for Appellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, James E. Ramsdell.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

kThe defendant was convicted of first degree murder, conspiracy to commit first degree murder, armed robbery, aggravated burglary, theft of a firearm, and theft of movable property over five hundred dollars. The trial court vacated the defendant’s aggravated burglary conviction, and he was sentenced on the remaining charges. The defendant appeals his armed robbery conviction as a violation of the prohibition against double jeopardy. Further, he challenges the sufficiency of the evidence used to convict him of first degree murder. The defendant also argues that the trial court erred in failing to grant several motions for mistrial. For the following reasons, we affirm the defendant’s convictions, and affirm the defendant’s sentence for armed robbery as amended.

Factual and Procedural Background

This matter involves the October 9, 2007, shooting death of John “Jack” May-eaux. It is alleged that the defendant, James E. Randall, shot and killed Mr. Mayeaux, and then, with the help of two accomplices, Terry Clarkson and D.B., stole some of the victim’s movable property, including a four-wheeler, money, several guns, ammunition, and tools.

The defendant was indicted by a grand jury with first degree murder, a violation of La.R.S. 14:80; conspiracy to commit first degree murder, violations of La.R.S. 14:26 and 14:30; armed robbery, a violation of La.R.S. 14:64; aggravated burglary, a violation of La.R.S. 14:60; theft of a firearm, a violation of La.R.S. 14:67.15; and theft of movable property over $500.00, a violation of La.R.S. 14:67(B)(1). Following a jury trial, the defendant was found guilty as charged.

1 ¡¡Following his convictions, the defendant filed a Motion to Set Aside Verdict of Jury, arguing that his convictions for first degree murder in addition to armed robbery and armed burglary violated the prohibition against double jeopardy. The trial court granted the motion and vacated his conviction for aggravated burglary. The defendant was subsequently sentenced on the remaining convictions as follows: life imprisonment without the benefit of parole, probation or suspension of sentence for first degree murder; thirty years imprisonment at hard labor for criminal conspiracy to commit first degree murder; one hundred four years imprisonment at hard labor without the benefit of parole, probation or suspension of sentence for armed robbery; ten years imprisonment at hard labor without benefit of parole, probation or suspension of sentence, and a fine of $1,000.00 for theft of firearms, and; ten years imprisonment at hard labor for theft of movable property over $500.00. The trial court ordered the sentences to run consecutively.

The defendant appeals, asserting that the trial court erred in failing to grant his Motion to Set Aside Verdict of Jury regarding his armed robbery conviction, and in denying his motions for mistrial. The defendant also questions the sufficiency of the evidence used to convict him of first degree murder.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one error patent regarding the sentence imposed for armed robbery.

The trial court sentenced the defendant to serve one hundred four years imprisonment at hard labor for the armed robbery conviction. At his hearing on the | .¡Motion to Set Aside the Jury Verdict, the trial court stated that the penalty for “armed robbery with a firearm carries a maximum of a 104 year sentence with the 99 year plus the five-year firearm enhancement.”

Under La.R.S. 14:64, the maximum sentence for armed robbery is ninety-nine years imprisonment at hard labor. However, under La.R.S. 14:64.3, “[w]hen the dangerous weapon used in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at hard labor for an additional period of five years without benefit of parole, probation, or suspension of sentence.” To invoke the provisions of La.R.S. 14:64.8, the statute must be charged in the bill of information or indictment. State v. Daniels, 03-1621 (La.App. 3 Cir. 5/12/04), 873 So.2d 822, writ denied, 04-1802 (La.11/24/04), 888 So.2d 227.

In this case, the State did not cite La. R.S. 14:64.3 nor set forth that the crime of armed robbery was committed with a firearm in the indictment. As noted above, the first and only time enhancing the armed robbery sentence was mentioned was by the trial judge, not the State, during the defendant’s post-verdict motion hearing. Since the trial court cannot trigger enhancement on its own, we find that the trial court lacked authority to impose the enhanced sentence. The maximum sentence for armed robbery in this present matter is ninety-nine years imprisonment at hard labor. La.R.S. 14:64. As such, the trial court’s one hundred four years sentence was illegally excessive. State v. Jacobs, 08-702 (La.App. 3 Cir. 2/4/09), 2 So.3d 1289. Accordingly, we reverse the trial court’s inclusion of the five year enhancement and otherwise affirm the defendant’s sentence for armed robbery as amended.

14Sufficiency of the Evidence

The defendant argues that the evidence adduced at trial was insufficient to support his first degree murder conviction. In State v. Freeman, 01-997, pp. 2-3 (La.App. 3 Cir. 12/12/01), 801 So.2d 578, 580, a panel of this court discusses the standard for insufficiency claims as follows:

When the issue of sufficiency of evidence is raised on appeal/ the critical inquiry of the reviewing court is whether, after viewing the evidence in .the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibilities of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See Graffagnino, 436 So.2d at 563, citing State v. Richardson, 425 So.2d 1228 (La.1983).

First, the defendant contends that there was insufficient evidence to establish beyond a reasonable doubt that he shot the victim. Specifically, the defendant challenges the credibility of D.B.’s testimony identifying the defendant as the shooter. He contends that D.B.’s testimony and statements to police were inconsistent.

Here, first degree murder is defined as the killing of a human being when the offender has the specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of certain felonies including, in this case, armed robbery and aggravated burglary. La.R.S. 14:30. The State bears of the burden of proving those elements, along with the burden to prove the identity of defendant as the perpetrator. State v. Draughn, 05-1825 (La.1/17/07), 950 So.2d 583.

lBThe record reveals that D.B. was first questioned by Officers Jeanne Faeiane and Janet Beebe on October 11, 2007. In that interview, D.B. denied having any knowledge of the victim’s murder. Four days later, D.B. was interviewed a second time, by different officers, wherein he reported that the defendant shot and killed the victim. On May 13, 2008, D.B. gave a third statement to Jim McCarty with the district attorney’s office and again identified the defendant as the shooter.

The defendant argues that D.B. made statements to officers that he closed his eyes when the victim was shot, but testified at trial that he saw the defendant shoot the victim. At trial, the following exchange took place on D.B.’s cross-examination as he was being questioned about the statements he gave police:

Q All right. And do you remember what you said immediately prior to the shots being fired in Jack’s direction? Do you remember what you said when they asked you if you saw him shoot Jack? Do you remember that?
A No, sir.
Q You remember what you said, that you turned around and you closed our eyes? Do you remember saying that?
A Yes, sir.
Q You’ve said more than one time, didn’t you?
A Yes, sir
Q So you didn’t actually see him shoot Jack the first time, did you, sir?
A Yes, sir.
Q You did?
A Yes, sir.
Q So you weren’t telling the truth when you told them you turned around and you closed your eyes?
IsA I saw him shoot him the first time, that’s when I turned around.

D.B. admitted in testimony that he lied to police when he gave his initial statement on October 11, 2007, but related that he subsequently told police the truth and was telling the truth at this trial. The record reveals that the testimony he provided at trial was consistent with the second and third statements he provided to police wherein he related that he saw the defendant shoot the victim and then turned his head.

The defendant also refers to other inconsistencies in D.B.’s statements, regarding who returned the gun to the defendant’s car after the shooting. The record indicates that in D.B.’s second statement to police he related that after the shooting, the defendant put the gun back in his car, and then walked towards the -victim. In his third statement, D.B. reported that after the shooting, the defendant gave his gun to Clarkson and instructed Clarkson to put the gun in the defendant’s car. At trial, D.B. testified that he was not sure who put the gun back in the defendant’s car.

James Brown also testified that he met the defendant while in Beauregard Parish Jail. Brown testified that the defendant told him that he was in jail for murdering “a man named Jack.” Brown further testified that the defendant mentioned “shooting somebody four times in the chest, twice in the head.”

The record reveals that a search warrant was issued to search the defendant’s home, based upon the detectives investigation in addition to D.B.’s statements indicating where some of the victim’s stolen property and the murder weapon were located. D.B. identified the murder weapon as a gun belonging to the defendant. He further provided a physical description of the gun, relating that it had a broken clip which had been repaired with tape. Mark Herford, a detective with the Beauregard 17Parish Sheriff’s Office, testified that he found the gun described by D.B. in the defendant’s backyard where D.B. had indicated it was buried. The gun and shell casings found at the murder scene were sent to the crime lab. At trial, Charles R. Watson, Jr., a forensic scientist at the Louisiana State Police Crime Laboratory, testified that the casings found at the scene matched the gun seized from the defendant’s house. John Loftin, the victim’s neighbor, testified that the gun seized was the same gun he had sold the defendant. In a statement to police, which was entered into the record, the defendant stated that he owned a .45 Haskell gun but alleged that it had been stolen a month before the murder. The defendant also explained that the gun’s clip was broken.

Detective Herford also testified that he searched the defendant’s house, looking for certain property believed to be stolen from the victim. He stated that he found a cutting torch and other tools allegedly owned by the victim. He explained that the cutting torch was freshly painted, which was consistent with D.B.’s statement that he helped the defendant paint the torches. Detective Herford also recovered other property allegedly stolen from the victim including a four-wheeler and other tools. Chief Deputy of the Beauregard Sheriffs Office, Joe Toler, testified the he recovered various firearms and ammunition inside the defendant’s home where D.B. indicated those stolen weapons would be found.

As the fact finder, a jury makes credibility determinations and may, within the bounds of rationality, accept or reject the witness’s testimony; thus on review, a court may impinge on the discretion of the fact finder only to the extent necessary to guarantee the fundamental due process of law. State v. Neal, 00-674 (La.6/29/01), 796 So.2d 649, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002), citing State v. Mussall, 523 So.2d 1305 (La.1988). We find that when reviewing the record in a light most favorable to the State, a rational trier of fact could reasonably conclude that the defendant shot Mr. Mayeaux. The jury heard D.B.’s testimony identifying the defendant as the shooter and chose to accept that testimony. The record reveals that while there appear to be inconsistencies in D.B.’s statements, none of these inconsistencies involve the identity of the defendant as the shooter or raise the possibility that someone else committed the crime. “Jurisprudence holds that ‘a jury may rely on a single witness’s testimony to establish a factual element required to prove guilt, provided there is no internal contradiction or irreconcilable conflict with physical evidence.” State v. Clark, 00-818, p. 4 (La.App. 3 Cir. 12/6/00), 780 So.2d 418, 421, writ denied, 01-992 (La.3/22/02), 811 So.2d 922, quoting State v. Bernard, 98-994, p. 7 (La.App. 3 Cir. 2/3/99), 734 So.2d 687, 691. In brief, the defendant argues that the physical evidence found in his home “could have easily been planted” by D.B. or Clarkson. He also asserts that it is “not inconceivable” that his brother, who was feuding with the •victim at the time of his death, was the shooter. However, the defendant does not point to any evidence in the record to support these allegations or expose an irreconcilable conflict between the testimony adduced at trial and the physical evidence. Accordingly, we find that when reviewing the record in a light most favorable to the State, a rational trier of fact could reasonably conclude that the defendant shot Mr. Mayeaux.

The defendant also asserts, in the alternative, that even if it were to be found that he was involved in the murder of Mr. Mayeux, there was insufficient evidence to establish that he intended to rob Mr. May-eux or burglarize his home because the “robbery/burglary was an afterthought, and took place after Mayeaux was dead.”

IflAt trial, D.B. testified that the night before the murder, the defendant said “we should kill Jack.” He further testified that the defendant expressed that he wanted to kill Mr. Mayeaux “because he wanted his stuff.” D.B. related that after the defendant shot Mr. Mayeaux, he, Clarkson, and the defendant entered Mr. Mayeaux’s house and stole several -firearms and money. D.B. stated that the men stole cash from Mr. Mayeaux and $300.00 in quarters from Mr. Mayeaux’s home.

“Louisiana jurisprudence does not distinguish between the armed robbery which occurs before the killing of the victim and the robbery of the victim whom the defendant has already killed.” State v. Goodley, 01-77, p. 10 (La.6/21/02), 820 So.2d 478, 484. Rather, the determination of whether a murder was committed in the perpetration of a certain felony is whether the murder and the felony form a continuous transaction without a significant break of events. Id. Here, on review of the evidence, the record supports a determination that Mr. Mayeaux’s murder facilitated the robbery and burglary. D.B. testified that the defendant desired to kill Mr. May-eaux to effectuate a taking of his belongings. Further, D.B.’s testimony indicates that there was no significant break in the chain of events between the time the shots were fired and the men left Mr. Mayeaux’s property.

This assignment of error lacks merit.

Double Jeopardy

The defendant asserts that his constitutional guarantees prohibiting double jeopardy were violated by his convictions and sentences for both first degree murder and armed robbery. He contends that because armed robbery was the predicate offense used to convict him of first degree murder, multiple punishments were imposed for what was a single criminal act.

| ipThe defendant first raised the double jeopardy issue in a Motion to Quash the Predicate Offenses of Armed Robbery and Aggravated Burglary. The trial court denied the motion and the defendant took supervisory writs to this court. The writ was denied stating that the defendant had an adequate remedy on this issue on appeal. State v. Ramsdell, 09-994 (La.App. 3 Cir. 8/18/09)(an unpublished writ opinion). Following his convictions, the defendant filed a Motion to Set Aside Verdict of Jury, asserting that his convictions for armed robbery, aggravated burglary, and first degree murder violated his protection against double jeopardy. At the hearing on the motion, the trial court explained that the State was allowed to proceed under alternative underlying predicate offenses for the first degree murder charge because the protection against double jeopardy did not apply until the defendant has been sentenced. However, the trial court noted that “it would be error for me today to sentence him to both first-degree murder and armed robbery and aggravated burglary.” Because the defendant was found guilty of both armed robbery and aggravated burglary, the trial court stated that the proper remedy was to vacate the defendant’s conviction for the less severely punishable offense, aggravated burglary. Accordingly, the trial court vacated the defendant’s conviction for aggravated burglary.

The Double Jeopardy provisions in the state and federal constitutions protect a defendant from both a second prosecution for the same offense and multiple | n punishments for the same criminal act. U.S. Const, amend. V; La. Const, art. 1, § 15; State v. Doughty, 379 So.2d 1088 (La.1980). When proof of a felony is an essential element of first degree murder, double jeopardy precludes the conviction and punishment of the defendant for both murder and the underlying felony. State v. Cox, 07-774 (La.App. 3 Cir. 3/4/09), 4 So.3d 998, writ denied, 08-602 (La.9/4/09), 17 So.3d 948. However, an accused who commits separate and distinct offenses during the same criminal episode or transaction may be convicted and sentenced for each offense without violating the prohibition against double jeopardy. State v. Williams, 05-1338 (La.App. 3 Cir. 3/1/06), 924 So.2d 1159, writ denied, 06-1471 (La.12/15/06), 944 So.2d 1284.

As explained above, in this case, the State prosecuted and charged the defendant with first degree murder based upon the underlying offense of armed robbery or aggravated burglary. While in brief the defendant contends that the jury based its first degree murder conviction on the underlying offense of armed robbery, the jury’s intent in rendering its verdict, specifically which offense it attributed to fulfill the elements of first degree murder, cannot be discerned from the record before us. Nevertheless, the convictions can be upheld if there is sufficient evidence to support either theory. Cox, 4 So.3d 998. Here, it is clear that the defendant’s protection from double jeopardy was violated when he was convicted and sentenced to first degree murder, armed robbery, and aggravated burglary. However, the trial court imposed the proper remedy by vacating the conviction and sentence for aggravated burglary, the less severely punishable offense. Doughty, 379 So.2d 1088; State ex rel. Adams v. Butler, 558 So.2d 552 (La.1990); Cox, 4 So.3d 998; State v. Pittman, 95-382 (La.App. 5 Cir. 10/1/96), 683 So.2d 748; State v. Head, 598 So.2d 1202 (La.App. 5 Cir.1992).

Additionally, the record supports a determination that under the facts of this case, armed robbery and first degree murder were separate and distinct offenses and thus do not violate double jeopardy. Here, first degree murder requires proof of the specific intent to kill or cause great bodily harm, whereas armed robbery does not. La.R.S. 14:30; La.R.S. 14:64; See also Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); State v. Williams, 07-931 (La.2/26/08), 978 So.2d 895. Further, the defendant could have been convicted of first degree murder without any proof that an armed robbery occurred.

This assignment is without merit.

Motions for Mistrial

The defendant assigns error to the trial court’s denial of several motions for mistrial made as a result of prospective jurors’ comments in the presence of the jury veni-re. According to La.Code.Crim.P. art. 775(6), a mistrial may be ordered when “[f]alse statements of a juror on voir dire prevent a fair trial.” In State v. Carmouche, 01-405, p. 20 (La.5/14/02), 872 So.2d 1020, 1035 (citations omitted), the supreme court stated:

The “prejudicial conduct” may include remarks of veniremen during voir dire. However, mistrial is a drastic remedy that is warranted only when the defendant has suffered substantial prejudice such that he cannot receive a fair trial. A trial court need not order a new trial absent a showing that comments made by a prospective juror affected other jurors or prejudiced the defendant. The determination of whether actual prejudice has occurred lies within the sound discretion of the trial judge, and this decision will not be overturned on appeal absent an abuse of that discretion. In deciding the correctness of the trial court’s voir dire rulings, a reviewing court considers the entirety of the voir dire record.

| uFirst Motion for Mistrial

The defendant’s first motion for mistrial was raised during voir dire. Counsel for the defendant explained to the trial court that his secretary heard a prospective juror, who had been already been released, tell the victim’s daughter “in a tone that could be heard by the venire, ‘I knew your father, I’m sorry this happened.’ ” The defendant moved for a mistrial, asserting that the comment inflamed the jury against the defendant and thus was detrimental or prejudicial to his case. In response, the trial court stated “I’m going to deny the motion for a mistrial, unless you can prove to me a juror or all the jurors were actually prejudiced in some way towards the defendant, Mr. Ramsdell.”

The record reflects that the defendant did not contemporaneously object to the trial court’s ruling, and under La.Code Crim.P. art. 841, “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” Accordingly, we will not address the merits of the defendant’s argument with regard to this motion, as it is not properly before this court for the first time on appeal.

Second Motion for Mistrial

The second motion for mistrial was based upon several statements made by prospective jurors during voir dire. The record reveals that prospective juror number 178 related to the trial court that, during a break, he heard a female prospective juror make a comment that the defendant “looked guilty.” Another prospective juror, number 5, explained to the trial court that he heard the same comment made “five or six times” by three to four different prospective jurors. Lastly, counsel for the defendant stated to the trial court that another prospective juror “indicated that someone talked about the hanging jail and that in the olden days they would hang 114them.” The defendant made a motion for mistrial, asserting that it would be impossible to obtain a fair and impartial trial considering those discussions amongst the prospective jurors.

The State opposed the motion, contending that all of the prospective jurors stated to the trial court that if they had heard such statements, it made no impact on how they would serve as jurors if selected. Accordingly, the State maintained that there was no evidence of prejudice to support the motion for mistrial.

The trial court denied the motion, stating that it was clear that some prejudicial statements were made in and/or outside the courtroom, but the question was whether the statements made it impossible for the defendant to obtain a fair trial. The trial court explained that it questioned six prospective jurors about the prejudicial comments; three indicated they had not overheard anything inappropriate, and three indicated that they had overheard something, but the comments had not influenced their opinions or ability to remain fair and impartial in the case.

The trial court denied the motion and stated that it believed the appropriate remedy would be to admonish the jury venire to disregard any remarks it may have heard. It added that it would also instruct the jury venire as to the presumption of innocence and try to assure that the jurors had an appropriate understanding. The trial court further stated that it would give both the State and the defendant an opportunity to individually voir dire any of the tentatively accepted jurors.

The record reveals that although the defendant objected to the court’s ruling, he did not provide an explanation of how the prospective jurors’ remarks affected the jury venire or prejudiced the defendant. The voir dire record as a whole does not support a finding that the trial court abused its discretion in denying the defendant’s | ^motion for mistrial. See Carmouche, 872 So.2d 1020. The record reveals that the prospective jurors who actually heard the comments responded in the affirmative that their ability to serve as fair and impartial jurors had not been compromised. The defendant further does not provide evidence to the contrary.

Third Motion for Mistrial

Lastly, prior to seating the jury, the defendant reurged his motion for mistrial, citing the same grounds as in his second motion for mistrial, and further stating that two prospective jurors indicated that they heard comments contrary to the trial court’s admonishment. The record does not indicate what the comments were, however, it does indicate that those two prospective jurors were released from serving on the jury. The trial court denied the motion for mistrial, stating that in addition to showing prejudicial conduct, the Defendant had to show that the conduct made it impossible to obtain a fair trial. Through the questioning of the prospective jurors, the trial court concluded that “it is abundantly clear” ... “that Mr. Ramsdell’s right to a fair trial is not impinged by any comments that were made.”

Because the defendant cited no ground other than those urged previously, we find that based upon the forgoing reasons, the record does not support a finding that the trial court abused its discretion in denying the defendant’s third motion for mistrial.

Accordingly, this assignment of error is without merit.

DECREE

For the foregoing reasons, the defendant’s convictions are affirmed. The defendant’s armed robbery sentence is affirmed as amended.

CONVICTIONS AFFIRMED. ARMED ROBBERY SENTENCE AFFIRMED AS AMENDED.

      . In accordance with Uniform Rules, Courts of Appeal, 5-2, initials will be used to "ensure the confidentiality of a minor who is a party to or whose interests are the subject matter in the proceedings!.]”

      . The punishment for aggravated burglary is imprisonment for not less than one nor more than thirty years. La.R.S. 14:60. The punishment for armed robbery is imprisonment at hard labor for not less than ten years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence. La.R.S. 14:64.


author: WALLER, Chief Justice, DICKINSON, Justice,

text:
    Dennis C. SWEET, III, and Kimberly Noel Sweet v. TCI MS, INC., TCI MS Investments, Inc. (TCI MS Investments, Inc.); and Michael V. Cory, in his Official Capacity as a Member and Principal in the Law Firm of Danks, Miller, Hamer & Cory.
    No. 2009-CA-01260-SCT.
    Supreme Court of Mississippi.
    Aug. 19, 2010.
    Rehearing Denied Nov. 18, 2010.

      Thomas J. Bellinder, Dennis C. Sweet, III, Jackson, attorneys for appellants.
    Rebecca B. Cowan, Jackson, Whitman B. Johnson, III, attorneys for appellees.
    Before WALLER, C.J., LAMAR and PIERCE, JJ.
   WALLER, Chief Justice,

for the Court:

¶ 1. Dennis C. Sweet, III, and his wife, Kimberly Noel-Sweet, filed suit against TCI MS Investment, Inc., alleging breach of contract by TCI after it failed to purchase a building from the Sweets. The Chancery Court of Hinds County granted summary judgment for TCI. Because summary judgment was based wholly on a self-serving, conclusory affidavit, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. Dennis and Kimberly Sweet purchased a commercial building at 158 East Pascagoula Street in downtown Jackson. The Sweets began renovating the property with the intent of transforming the premises into a law office. As renovations progressed, TCI inquired about purchasing the property. With a sale seemingly imminent, the Sweets stopped their renovations.

¶ 3. In June 2007, the Sweets and TCI entered into a real estate sales contract whereby TCI agreed to purchase the property for $1.2 million, with a $50,000 earnest-money deposit. Closing was set to occur on August 15, 2007. The contract made TCI’s obligations contingent on TCI obtaining financing satisfactory to it prior to the closing date. The contract further required that the Sweets provide TCI a survey within twenty days after expiration of the due-diligence period.

¶ 4. The August 15 closing date passed without consummation; consequently, on February 29, 2008, the Sweets filed suit against TCI in the Chancery Court of Hinds County. The Sweets alleged eight causes of action, including breach of contract, negligence, negligence per se, gross negligence, and conversion.

¶ 5. More than one year later, on April 29, 2009, TCI filed a motion for summary judgment. TCI argued that it was not obligated to perform on the contract, because a specific contingency had never been met: TCI had not obtained financing satisfactory to it. In support of its motion, TCI attached the affidavit of Mark Small, president of TCI. Small’s affidavit stated that the Sweets had not provided the requisite survey, and that TCI had “attempted to obtain financing satisfactory to it from numerous financial institutions prior to the ... closing date ... [but] was unable to do so.”

¶ 6. A week or so later, on May 6, 2009, the Sweets filed a response opposing summary judgment on the basis that discovery was pending and incomplete. That same day, the Sweets propounded their first discovery requests. TCI responded to the Sweets’ discovery requests prior to the summary-judgment hearing.

¶7. On August 4, 2009, the chancery court entered a final judgment granting summary judgment for TCI. Thereafter, the chancery court granted TCI’s motion for attorneys’ fees and costs in the amount of $18,384. An amended final judgment was entered on August 20, 2009.

¶ 8. The Sweets now appeal to this Court.

DISCUSSION

Did the chancellor properly grant summary judgment by finding that the Sweets failed to assert any genuine issues of material fact?

¶ 9. A lower court’s grant of summary judgment is reviewed de novo. E.g., In re Estate of Laughter, 23 So.3d 1055, 1060 (Miss.2009) (quoting Bullock v. Life Ins. Co., 872 So.2d 658, 660 (Miss.2004)). Summary judgment is appropriate only where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). The evidence must be considered in the light most favorable to the party against whom the motion is made. In re Estate of Laughter, 23 So.3d at 1060 (Miss.2009) (quoting Bullock, 872 So.2d at 660).

¶ 10. The Sweets assert numerous reasons why summary judgment should not have been granted. We need address only two: (1) whether the contingency clause in paragraph five of the contract is ambiguous and (2) whether TCI failed to meet its burden of persuasion by relying solely on Small’s self-serving, conclusory affidavit to support its motion for summary judgment.

Ambiguity of the contract.

¶ 11. Summary judgment is generally inappropriate for cases involving contractual ambiguity. Great S. Nat’l Bank v. McCullough Envtl. Servs, Inc., 595 So.2d 1282, 1289 (Miss.1992) (citing Pursue Energy Corp. v. Perkins, 558 So.2d 349, 354 (Miss.1990)). But if no material ambiguity exists and the provisions are clear, even if not perfectly clear, summary judgment often is proper. Willis v. Miss. Farm Bureau Mut. Ins. Co., 481 So.2d 256, 258 (Miss.1985) (citing Shaw v. Burchfield, 481 So.2d 247, 252 (Miss.1985)).

¶ 12. The Sweets contend that the contingency clause in paragraph five is ambiguous insofar as it makes TCI’s contractual obligations contingent upon TCI obtaining financing satisfactory to it. The contingency clause states as follows:

5. CONTINGENCIES. The obligations of [TCI] herein, including forfeiture of any Earnest Money, are subject to [TCI] obtaining financing; zoning; approvals, and certain environmental permits, satisfactory to [TCI] pri- or to the Closing Date.

¶ 13. The Sweets argue that the terms “obtaining financing” and “satisfactory” are ambiguous. “Obtaining financing,” according to the Sweets, is ambiguous because it does not specify the percentage or the amount of financing that TCI must attain. They argue that the term “satisfactory” likewise is subjective and open to various interpretations. The Sweets thus insist that paragraph five is no contingency at all, but is simply an “escape route” — it allows TCI to avoid its contractual obligations simply by asserting that it could not obtain “satisfactory” financing.

¶ 14. The requirement that TCI obtain satisfactory financing served as a condition precedent to TCI’s obligations to complete the purchase. See Bailey v. Estate of Kemp, 955 So.2d 777, 786 (Miss.2007); see also Watkins v. Williamson, 869 S.W.2d 383, 384-85 (Tex.Ct.App.1993). Provisions that make a contract subject to a condition, the performance of which must be satisfactory to the purchaser, are called “satisfaction clauses.” Milton R. Friedman & James Charles Smith, 1 Friedman on Contracts and Conveyances of Real Property § 1:2.1, at 1-7 to 1-8 (7th ed.2005). Courts have struggled to decide whether “satisfaction” should be interpreted subjectively or objectively. Id. Yet, “[satisfaction with a financial condition usually requires a subjective determination.” Friedman, § 1:2.1 at 1-8 (citing Forman v. Benson, 112 Ill.App.3d 1070, 68 Ill.Dec. 629, 446 N.E.2d 535 (1983), but noting that the courts have gone both ways). Good faith is required regardless. Id.

¶ 15. We find that paragraph five unambiguously sets forth that TCI’s contractual obligations are contingent upon TCI obtaining financing satisfactory to it. TCI need only exercise good faith. Subjectivity does not render the clause ambiguous or unenforceable. The Court of Appeals of Texas, for example, applied a subjective standard in enforcing a similar contractual provision. Watkins, 869 S.W.2d 383. In Watkins, buyers and seller entered into a residential sales contract which provided that the “ ‘contract is contingent upon Buyer[s] obtaining satisfactory financing.’ ” Id. at 384. Despite negotiating with three potential lenders, the buyers were unable to obtain financing before the contract terminated. Id. The seller then sued the buyers for the earnest money. Id. The Court of Appeals of Texas affirmed summary judgment for the buyers because there was no evidence that the buyers were satisfied with the various financing options, and there was no evidence that the buyers had acted unreasonably or in bad faith. Id. at 385. Though Watkins is not binding on this Court, it supports that contract clauses with subjective, satisfactory financing provisions, like the one before us, are not ambiguous or unenforceable.

Sufficiency of Small’s affidavit.

¶ 16. We note from the outset that the Sweets never filed a motion to strike Small’s affidavit. This Court has stated that the failure to file a motion to strike constitutes a waiver to any objection to the affidavit. Bd. of Educ. of Calhoun County v. Warner, 853 So.2d 1159, 1163 (Miss.2003) (quoting Haygood v. First Nat’l Bank of New Albany, 517 So.2d 553, 556 (Miss.1987)); Brown v. Credit Ctr., Inc., 444 So.2d 358, 365 (Miss.1983) (“[w]here the party against whom a motion for summary judgment is made wishes to attack one or more of the affidavits upon which the motion is based, he must file in the trial court a motion to strike the affidavit.”). In the absence of “gross miscarriage of justice,” this Court may consider a defective affidavit. Warner, 853 So.2d at 1163 (quoting Haygood, 517 So.2d at 556).

¶ 17. Although the Sweets have waived any objections to Small’s affidavit, the affidavit is TCI’s only evidentiary support for summary judgment. Therefore, we must determine whether Small’s affidavit enabled TCI to meet its burden of production and persuasion that no disputed factual issue exists. Frank v. Dore, 635 So.2d 1369, 1373 (Miss.1994) (citing Fruchter v. Lynch Oil Co., 522 So.2d 195, 198 (Miss.1988)).

¶ 18. The affidavit of TCI President Mark Small states, in pertinent part, as follows:

... Mark Small, who after being by me first duly sworn stated on oath that he has personal knowledge and is competent to testify as follows:
1. He is the President of TCI MS, Investment, Inc., the Buyer under the Sales Contract-Real Estate, which is attached as Exhibit “A” to the plaintiffs complaint.
2. He signs this affidavit for and on behalf of TCI MS, Inc., as its own act and deed after having first been authorized to do so by the corporation.
3. The plaintiffs did not provide a survey of the property that is the subject of the contract within 20 days after July 12, 2007, which was the date the due diligence clause in the contract ended.
4.Although TCI MS, Investment, Inc., attempted to obtain financing satisfactory to it from numerous financial institutions prior to the August 15, 2007, closing date in the contract, it was unable to do so.

¶ 19. This Court has expressed disdain for conclusory, self-serving affidavits used to support summary judgment. Dalton v. Cellular South, Inc., 20 So.3d 1227, 1234 (Miss.2009). Such affidavits, unsupported by material facts relevant to the issue at hand, are not a sufficient basis for granting summary judgment. Id. at 1233-34 (citing Burton v. Choctaw County, 730 So.2d 1, 9 (Miss.1997)); see also Hubbard v. Wansley, 954 So.2d 951, 965-66 (Miss.2007); Lovett v. Anderson, 573 So.2d 758, 760 (Miss.1990); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir.1996).

¶ 20. This Court recently reversed a lower court’s grant of summary judgment where the decision was based on a conclu-sory, self-serving affidavit. Dalton, 20 So.3d at 1235. In Dalton, Cellular South, Inc., (CSI) terminated its agency agreement with Gregory Dalton. Id. at 1229. The agreement allowed CSI to do so if CSI determined that continuation of the relationship would be “detrimental to the overall well being, reputation and goodwill ... [of CSI].” Id. at 1229 n. 1. Dalton, however, refused to sign a full and final release. Id. at 1230. Consequently, CSI filed a declaratory-judgment action and then filed a motion for summary judgment. Id. In support of its motion, CSI attached an affidavit from its president, Hu Meena. Id. Meena stated that CSI’s decision to terminate its agency relationship with independent agents was due to the administrative burdens associated with managing those agents. Id. at 1234. He acknowledged that Dalton’s agency was successful in terms of sales, but Meena maintained that it would have been impractical to retain some agents while terminating others. Id. at 1235. This Court found Meena’s affidavit to be conclusory, self-serving, and insufficient to support summary judgment. Id. The Court stated that Meena’s affidavit lacked any foundational facts to show how, when, and why CSI had determined that continuation of the relationship was detrimental to CSI’s well-being, reputation, and goodwill. Id. at 1234. The affidavit merely tracked the contractual language without providing any actual facts. Id. (citing Hubbard, 954 So.2d at 965).

¶ 21. We find Small’s affidavit analogous to the affidavit in Dalton. Small’s affidavit does not show when or how TCI attempted to obtain financing, or why TCI’s available options were unsatisfactory. With a conclusory, self-serving affidavit as its only support for summary judgment, TCI failed to meet its burden its burden of production and persuasion. Accordingly, we find that the chancery court erred in granting summary judgment.

CONCLUSION

¶ 22. We find that Small’s affidavit was an insufficient basis on which to grant summary judgment. Because TCI failed to meet its burden of persuasion and production, we reverse the trial court’s judgment, including its award of attorneys’ fees and costs, and remand the case for further proceedings consistent with this opinion.

¶ 23. REVERSED AND REMANDED.

CARLSON, P.J., LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, J. GRAVES, P.J., NOT PARTICIPATING.

DICKINSON, Justice,

dissenting:

¶ 24. The contract unambiguously makes TCI’s obligation to close contingent upon its obtaining subjectively satisfactory financing. TCI submitted an affidavit stating that it was unable to do so, and the Sweets neither disputed the affidavit nor alleged bad faith. In my view, under these facts, the trial court did not err in granting TCI summary judgment.

¶ 25. The majority says TCI’s affidavit amounted to a conclusory, self-serving statement. A statement is conclusory if it “[e]xpress[es] a factual inference without stating the underlying facts on which the inference is based.” Paragraph 4 of Small’s affidavit reads “[TCI] attempted to obtain financing satisfactory to it from numerous financial institutions ... [and was] unable to do so.” That is a statement of fact, not a conclusion. “Peas don’t taste good” is a conclusory statement. But “I have eaten peas and I don’t like peas” is a statement of fact. TCI’s sworn statement that it unsuccessfully had attempted to obtain satisfactory financing from numerous financial institutions is a statement of fact — uncontradicted in the record. Accordingly, I would affirm the chancellor.

RANDOLPH, J., JOINS THIS OPINION.

      . Dennis and TCI specifically were the contracting parties. Although Kimberly technically was not a party to this contract, we refer to "the Sweets” collectively for consistency.

      . The complaint also named as defendants Michael V. Cory, in his official capacity as a member and principal in the law firm of Danks, Miller, Hamer & Cory, and John Does 1-5. Cory, who served as closing attorney, interpleaded the $50,000 earnest-money deposit and was dismissed from the suit.

      . Black’s Law Dictionary 244 (8th ed.2005).