¶1(concurring in the result):
¶2¶ 17 I agree the judgment should be affirmed, but I think the question is a closer one as concerns H & W than the main opinion would suggest. (It is not close at all as concerns CPB.) I have two principal areas of disagreement with the majority. First, I disagree with footnote 1. A party who argues on summary judgment that the material facts are not in dispute is not bound to any particular version of the facts. See Wycalis v. Guardian Title, 780 P.2d 821, 825 (Utah Ct.App.1989), cert. denied, 789 P.2d 33 (Utah 1990). Such a party is really arguing that his view of the facts is undisputed and entitles him to judgment — or at least to the defeat of the other side’s motion — but, in the alternative, if his view of the facts is not accepted, then that there are disputes of fact that preclude summary judgment. See id.Plaintiffs may have overstated the matter in arguing in general terms that the. facts were not in dispute, but I simply do not see that Plaintiffs ever stipulated, in a binding way, to particular facts.
¶3¶ 18 Second, I do not believe the retained control doctrine is as narrow as the majority believes it to be, although I agree it is not as open-ended as Plaintiffs contend. I see no need to wrestle with the exact scope of the doctrine, however, because in this case the pertinent nonhearsay evidence that was properly before the trial court when it considered the motions for summary judgment, when properly understood in context, is simply insufficient to create a dispute of material, i.e., legally significant, fact.