                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2006-CA-00706-SCT

W. WARREN CALLICUTT

v.

PROFESSIONAL SERVICES OF POTTS CAMP,
INC. AND DIANE G. TAYLOR


DATE OF JUDGMENT:                           03/28/2006
TRIAL JUDGE:                                HON. HENRY L. LACKEY
COURT FROM WHICH APPEALED:                  MARSHALL COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     THOMAS A. WICKER
ATTORNEYS FOR APPELLEES:                    LAURA CATHERINE NETTLES
                                            PEGGY C. JONES
NATURE OF THE CASE:                         CIVIL - TORTS-OTHER THAN PERSONAL
                                            INJURY & PROPERTY DAMAGE
DISPOSITION:                                AFFIRMED - 12/13/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       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 Callicutt 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

                                                2
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 Callicutt 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

                                             3
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,

2005.1

¶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 Callicutt to advise him of tax consequences of his

failure to purchase like-kind replacement property to effectuate a Section 1031 exchange;

(3) Callicutt failed 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


         1
        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.

                                              4
¶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, 130
       (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, "[s]ummary 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


                                              5
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

                                               6
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 (1978) (citing Pritchett v. Comm’r, 63 T.C. 149, 164 (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 (1997)

(citing Verito v. Comm’r, 43 T.C. 429, 441-42 (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.


                                                7
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), 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



                                               8
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 Callicutt 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


                                              9
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




                                             10
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.

                                              11
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 Callicutt.

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 Callicutt.

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

                                              12
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 Callicutt. 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, Callicutt 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.




                                              13
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 Shackleford, 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


                                             14
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 Callicutt 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

Callicutt, I conclude that there was a genuine issue as to whether an informal fiduciary

relationship existed between Taylor and Callicutt and whether Taylor’s alleged breach of that

duty was the direct and proximate cause of Callicutt’s incidental tax damages.

¶35.   Callicutt 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 Callicutt no duty, fiduciary or otherwise, in connection with the

failed like-kind exchange.




                                              15
¶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.      “[O]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 Callicutt, I find that a genuine

issue exists as to whether Taylor owed Callicutt 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 Callicutt, 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.2

Callicutt 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


       2
        In the affidavit he filed on February 26, 2006, Callicutt 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.”

                                              16
property to Hurdle. 3 It is undisputed that Callicutt paid Taylor a $1,000 “Attorney’s Fee” to

prepare the exchange agreement and that Taylor prepared the exchange agreement.4

¶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


       3
       Callicutt 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.”
       4
         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 Callicutt 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.

                                              17
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 Callicutt 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

                                              18
$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 Callicutt’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.




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