COLORADO COURT OF APPEALS
2017COA20
Court of Appeals No. 16CA0102
Arapahoe County District Court No. 14CV32139
Honorable Charles M. Pratt, Judge
Chris Bermel,
Plaintiff-Appellant,
v.
BlueRadios, Inc.,
Defendant-Appellee.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE BOORAS
Terry, J., concurs
Berger, J., specially concurs
Announced February 23, 2017
Kishinevsky & Raykin, LLC, Igor Raykin, Ian Griffin, Aurora, Colorado, for
Plaintiff-Appellant
Brosseau Bartlett Seserman, LLC, David B. Seserman, Chad Lieberman,
Greenwood Village, Colorado, for Defendant-Appellee
¶1 In Van Rees v. Unleaded Software, Inc., 2016 CO 51, the
supreme court granted certiorari review on the question whether
the economic loss rule may bar a claim for civil theft under section
18-4-405, C.R.S. 2016 (the civil theft statute). Ultimately, the court
did not answer that question because it was able to affirm on the
narrower ground that the plaintiff had failed to prove one of the
required elements of theft. Van Rees, ¶¶ 23-24.
¶2 This appeal raises the question left unanswered in Van Rees.
Plaintiff, Chris Bermel, contends that the trial court erred when it
denied his motion for summary judgment, in which he argued that
the economic loss rule barred the claim of defendant, BlueRadios,
Inc., for civil theft. Because the economic loss rule is a judicial
construct, and because a civil theft claim is a statutory cause of
action, we reject Bermel’s argument and hold that the economic
loss rule does not preclude a cause of action under the civil theft
statute.
¶3 However, as to Bermel’s Colorado Wage Protection Act (CWPA)
claim, we conclude that summary judgment was improper, and we
remand for further proceedings as to that claim.
1
I. Background
¶4 In 2009, Bermel entered into a “Contractor Agreement” with
BlueRadios. Under the agreement, Bermel provided engineering
services to BlueRadios. Contemporaneously with his execution of
that agreement, Bermel also signed a “Proprietary Information and
Inventions Agreement” (PIAA). The PIAA contained the following
provision related to Bermel’s removal, delivery, and return of
“Company Materials”:
All Company Materials shall be the sole
property of the Company. I agree that during
my employment and/or contracting
arrangement with the Company, I will not
remove any Company Materials from the
business premises of the Company or deliver
Company materials to any person or entity
outside the Company, except as I am required
to do in connection with performing the duties
of my employment and/or contracting
arrangement. I further agree that, immediately
upon the termination of my employment
and/or contracting arrangement by me or by
the Company for any reason, or for no reason,
or during my employment and/or contracting
arrangement if so requested by the Company, I
will return all Company Materials, apparatus,
equipment and other physical property, or any
reproduction of such property, excepting only
(i) my personal copies of records relating to my
compensation; (ii) my personal copies of any
materials previously distributed generally to
2
stockholders of the Company; and (iii) my copy
of this agreement.
¶5 The parties renewed both agreements annually until July
2014. At that point, they were unable to agree on renewal terms, so
the parties ended their relationship. However, anticipating that he
might end up in litigation over unpaid wages, Bermel breached the
PIAA by forwarding to his personal e-mail account (Gmail account)
what he described as thousands of BlueRadios e-mails and
attachments, some of which contained proprietary information.
¶6 Soon after the parties’ contract expired, BlueRadios received a
demand letter from Bermel requesting $5113.34, which consisted of
unpaid wages and expenses he had incurred on behalf of
BlueRadios. BlueRadios paid Bermel this amount approximately
two months after he sent the demand letter.
¶7 Bermel filed the current lawsuit in August 2014, asserting
claims for breach of contract, unjust enrichment, and violation of
the CWPA, section 8-4-109(1)(a), (b), C.R.S. 2016.
¶8 During a subsequent deposition, Bermel revealed to
BlueRadios that he had forwarded company e-mails to his Gmail
account. As a result, BlueRadios filed counterclaims against him,
3
including breach of contract; civil theft, under section 18-4-405;
and conversion. BlueRadios also requested, and received, a
preliminary injunction barring Bermel from “continuing to
misappropriate [BlueRadios’] confidential information.” Despite this
injunction, Bermel continued to access, modify, and delete
BlueRadios e-mails that he had forwarded to his Gmail account.
¶9 Both parties later filed motions for summary judgment.
BlueRadios contended that Bermel was an independent contractor
not entitled to the CWPA’s protection, and Bermel argued that
BlueRadios’ civil theft and conversion claims were barred by the
economic loss rule.
¶ 10 The court granted summary judgment in favor of BlueRadios
on Bermel’s CWPA claim, but it denied summary judgment on
BlueRadios’ civil theft and conversion claims. The parties then
proceeded to trial on BlueRadios’ counterclaims. After the close of
evidence, Bermel moved for a directed verdict on BlueRadios’ civil
theft claim, again arguing that the economic loss rule precluded
such a claim. And, again, the court rejected Bermel’s argument,
concluding that the economic loss rule does not bar a statutory
cause of action.
4
¶ 11 Following trial, the court entered a written order finding
Bermel liable on all of BlueRadios’ counterclaims. Pursuant to the
civil theft statute, the court awarded attorney fees and $200 in
statutory damages on BlueRadios’ civil theft claim. It awarded $1
in nominal damages on each of the other claims.
¶ 12 On appeal, Bermel contends that the trial court erred when it
(1) denied his motion for summary judgment on BlueRadios’ civil
theft and conversion claims and (2) granted BlueRadios’ motion for
summary judgment on his CWPA claim. Before reaching their
merits, we first address Bermel’s preservation of these arguments.
¶ 13 Although in his motion for summary judgment Bermel raised
the issue of the economic loss rule’s application to BlueRadios’
conversion counterclaim, he did not re-raise it in a motion for
directed verdict or in a motion for judgment notwithstanding the
verdict. Consequently, he failed to preserve that issue for appeal,
so we will not address it. See, e.g., Top Rail Ranch Estates, LLC v.
Walker, 2014 COA 9, ¶ 44 (a district court’s denial of a party’s
motion for summary judgment is not an appealable order unless
the moving party preserves the issue by re-raising it in a later
5
motion for directed verdict or judgment notwithstanding the
verdict).
¶ 14 Bermel did, however, preserve his contentions regarding the
application of the economic loss rule to a civil theft claim and the
court’s summary judgment on his CWPA claim. We address these
two contentions in turn.
II. Standard of Review and Summary Judgment
¶ 15 We review de novo a trial court’s ruling on a party’s motion for
summary judgment. Armed Forces Bank, N.A. v. Hicks, 2014 COA
74, ¶ 20. “Summary judgment is appropriate when the pleadings
and supporting documents clearly demonstrate no issue of material
fact exists, and the moving party is entitled to judgment as a matter
of law.” Olson v. State Farm Mut. Auto. Ins. Co.,
174 P.3d 849, 852
(Colo. App. 2007).
III. The Economic Loss Rule and Civil Theft
¶ 16 Bermel first contends that the trial court erred when it
concluded that the economic loss rule does not bar BlueRadios’ civil
theft counterclaim. We are not persuaded.
6
A. The Economic Loss Rule
¶ 17 Under the economic loss rule, “a party suffering only economic
loss from the breach of an express or implied contractual duty may
not assert a tort claim for such a breach absent an independent
duty of care under tort law.” Town of Alma v. AZCO Constr., Inc., 10
P.3d 1256, 1264 (Colo. 2000).
¶ 18 The Colorado Supreme Court adopted the economic loss rule
in Town of Alma.In that case, the town contracted with a
construction company for “improvements to [the town’s] water
distribution system.”
Id. at 1258. After discovering defects in the
improvements to its water system, the town brought negligence
claims against the construction company.
Id.
¶ 19 The court held that the town’s “negligence claim [wa]s based
solely on the breach of a contractual duty resulting in purely
economic loss, and thus [wa]s barred by application of the economic
loss rule.”
Id. at 1266. In doing so, the court recognized that the
rule was “originally born from products liability law,” but the court
held that its applicability was “broader, because it serves to
maintain a distinction between contract and tort law.”
Id. at 1262.
7
¶ 20 In deciding whether the economic loss rule bars a particular
claim, Town of Alma directs courts to focus on “determining the
source of the duty that forms the basis of the action.” Id. Not only
must the duty arise from a source independent of the contract, it
must also be a duty that is not memorialized in the parties’
contract. BRW, Inc. v. Dufficy & Sons, Inc.,
99 P.3d 66, 74 (Colo.
2004).
B. Discussion
¶ 21 We agree with the trial court’s conclusion that the economic
loss rule does not bar a claim under the civil theft statute.
¶ 22 By its plain terms, the civil theft statute establishes both a
cause of action and a remedy for victims of theft: an owner of stolen
property “may maintain an action . . . against the taker” to “recover
two hundred dollars or three times the amount of the actual
damages sustained . . . , whichever is greater, and may also recover
costs of the action and reasonable attorney fees.” § 18-4-405.
Indeed, in interpreting this statute in another context, our supreme
court has concluded that “the General Assembly intended the [civil
theft] statute to provide an owner with a private remedy against the
taker that requires proof of a specified criminal act but not proof of
8
a prior criminal conviction to recover treble damages, fees, and
costs.” Itin v. Ungar, 17 P.3d 129, 134 (Colo. 2000) (emphasis
added); see also In re Marriage of Allen,
724 P.2d 651, 656 (Colo.
1986) (noting that the legislature enacted the civil theft statute for
“a punitive . . . purpose by depriving thieves . . . of the immediate
fruits of their criminal activities and by making such persons pay
damages that by definition are three times greater than the amount
necessary to compensate their victims”).
¶ 23 In contrast to this legislatively created cause of action, the
economic loss rule — a rule that seeks to maintain the boundary
between the law of contracts and torts — is a judicial construct.
See Town of Alma,
10 P.3d at 1264.
¶ 24 While maintaining the distinction between the law of contracts
and torts is no doubt a laudable goal, the economic loss rule is
nonetheless a judge-made rule. And that being the case, the
economic loss rule cannot preclude a claim under the civil theft
statute because the legislature explicitly provided that cause of
action, and its attendant remedy, to victims of theft.
¶ 25 Indeed, as the Florida Supreme Court put it in Comptech, the
leading case on this topic, “the Legislature has the authority to
9
enact laws creating causes of action. If the courts limit or abrogate
such legislative enactments through judicial policies, separation of
powers issues are created, and that tension must be resolved in
favor of the Legislature’s right to act in this area.” Comptech Int’l,
Inc. v. Milam Commerce Park, Ltd., 753 So. 2d 1219, 1222 (Fla.
1999), receded from by Tiara Condo. Ass’n v. Marsh & McLennan
Cos.,
110 So. 3d 399, 400 (Fla. 2013) (restricting the economic loss
rule’s application to products liability cases); see also Boehme v.
U.S. Postal Serv.,
343 F.3d 1260, 1266 (10th Cir. 2003) (“Colorado’s
economic loss rule has no application” to a party’s claim under the
forcible entry and detainer statute, section 13-40-104(1)(d), C.R.S.
2016, because “the Colorado legislature has provided a statutory
remedy to landlords”); Ulbrich v. Groth,
78 A.3d 76, 102 (Conn.
2013) (the economic loss rule does not bar claims under the
Connecticut Uniform Trade Practices Act, overruling prior contrary
authority); Stuart v. Weisflog’s Showroom Gallery, Inc.,
746 N.W.2d
762, 772 (Wis. 2008) (the economic loss rule “cannot apply to
statutory claims, including those under the [Home Improvement
Practices Act]” because doing so would “ignor[e] the public policies
that are the basis for the [act]”).
10
¶ 26 In short, allowing the economic loss rule to preclude a civil
theft claim would thwart the legislature’s intended goals of (1)
punishing thieves, Marriage of Allen, 724 P.2d at 656; and (2)
“provid[ing] an owner with a private remedy against the taker” of
stolen property, Itin,
17 P.3d at 134.
¶ 27 In arguing to the contrary, Bermel relies principally on Makoto
USA, Inc. v. Russell,
250 P.3d 625, 629 (Colo. App. 2009). In that
case, a division of this court was presented with the same issue: the
plaintiff argued that “the economic loss rule, as a judicial construct,
cannot be applied to preclude a statutory claim.”
Id. The court
agreed that “if the legislature intended to provide a remedy in
addition to a contractual one, the statutory remedy would trump
the economic loss rule.”
Id. Finding “no indication that the [civil
theft] statute was intended to expand contractual remedies,”
11
however, the Makoto division concluded that the economic loss rule
barred the plaintiff’s civil theft claim.1 Id.
¶ 28 We agree with Makoto’s general statement that a private
remedy provided by the legislature would trump the economic loss
rule. But we disagree with Makoto’s focus on whether the
legislature “intended to expand contractual remedies.”
Id.
¶ 29 In our view, by asking whether the legislature “intended to
expand contractual remedies,”
id., the Makoto division incorporated
the economic loss rule’s policy rationales in its analysis. We think
the inquiry is simply whether the legislature intended to establish a
cause of action for victims of theft. And, in this case, under the
1 The division cited West v. Roberts,
143 P.3d 1037 (Colo. 2006), for
the proposition that the civil theft statute has been construed
narrowly to avoid expanding contractual remedies. There, the
supreme court held that a provision of the Uniform Commercial
Code — adopted by the legislature and codified at section 4-2-403,
C.R.S. 2016 — had “abrogate[d] the stolen property statute so that
‘theft’ in that provision does not include any theft in which an
owner voluntarily relinquishes property to a thief under a
transaction of purchase.” West,
143 P.3d at 1045. We agree that
under the facts of Makoto, the West decision precluded the
plaintiff’s civil theft claim in that case. We do not agree however
that West provides guidance on the issue of whether the economic
loss rule can bar a statutory cause of action. West considered
whether one legislative enactment abrogated another, whereas here
we are considering whether a judicial construct can, in essence,
abrogate a statutory cause of action.
12
plain terms of the statute, it is evident that the legislature intended
to do so. Accordingly, we affirm the trial court’s conclusion that the
economic loss rule does not bar a claim under the civil theft statute.
IV. Bermel’s CWPA Claim
¶ 30 Bermel also contends that the trial court erred in granting
BlueRadios’ motion for summary judgment on his CWPA claim
under section 8-4-109(1)(a), (b). Specifically, he contends that the
trial court failed to apply the CWPA’s definition of “employee” when
it concluded that Bermel was an independent contractor not
entitled to the CWPA’s protection. We agree.
¶ 31 Under the CWPA, an employee is “any person . . . performing
labor or services for the benefit of an employer in which the
employer may command when, where, and how much labor or
services shall be performed.” § 8-4-101(5), C.R.S. 2016. The CWPA
goes on to state that
[f]or the purpose of this article, an individual
primarily free from control and direction in the
performance of the service, both under his or
her contract for the performance of service and
in fact, and who is customarily engaged in an
independent trade, occupation, profession, or
13
business related to the service performed is
not an “employee.”2
Id.
¶ 32 As we set forth above, BlueRadios filed a motion for summary
judgment in which it contended that Bermel could not assert a
claim under the CWPA because he was an independent contractor
rather than an “employee.” BlueRadios supported its motion with
an affidavit from its president, deposition transcripts, and other
exhibits. In the affidavit, the president averred the following:
From 2009 to 2014, BlueRadios and Bermel annually renewed
their “Contractor Agreement.”
BlueRadios gave Bermel “general project assignments”; Bermel
“chose the order to perform work, the hours to work and the
method for completing project assignments”; BlueRadios did
2 Section 8-70-115(1)(c), C.R.S. 2016, contains a similar definition
of employee in the context of unemployment compensation
insurance tax liability. In that context, a multi-factor test, in which
no one factor is determinative, is used to assess whether an
individual is engaged in an independent business. See Indus. Claim
Appeals Office v. Softrock Geological Servs., Inc., 2014 CO 30, ¶¶ 15,
16.
14
not provid[e] any training to” Bermel; and Bermel “could pick
and choose which assignments he wanted to work on.”
“After his deposition, [Bermel] produced a copy of a notebook
that he testified he maintained and [that] reflected all of the
direction and control he received from BlueRadios.” The
president had “reviewed [a] copy of the notebook” and said it
“consists primarily of doodles, schematic drawings, personal
notes (such as notes on [Bermel’s] mortgage) and blank pages.
The notebook shows that there was little, if any, direction
given to or control exercised over how [Bermel] completed the
tasks he was given.”
“In 2014, the Colorado Department of Labor and Employment
conducted an audit of BlueRadios for the purpose of assessing
whether the independent contractors working with BlueRadios
were properly classified” as such. “The auditor conducted a
very extensive and thorough review during which payroll
records, time sheets, work assignments, contracts and other
documents were reviewed.” The auditor also “conducted
several interviews and looked at the amount of oversight and
control BlueRadios exercised over contractors. The Colorado
15
Department of Labor and Employment concluded that
independent contractors, including [Bermel], were properly
classified as independent contractors and not employees.”
¶ 33 In his response, Bermel contended that BlueRadios had cited
cases that were inapplicable in determining whether a person was
an employee or an independent contractor. Bermel asserted that
the proper inquiry was whether he met the statutory definition of an
“employee” under section 8-4-101(5). He further maintained that
the question whether he was an employee or independent
contractor involved disputed issues of material fact, but he did not
support his allegations by “affidavits or otherwise” as required
under C.R.C.P. 56(e).
¶ 34 The trial court concluded that BlueRadios’ “exhibits set forth
the way in which [Bermel] was treated by [BlueRadios] [as] — and
held himself out via loans and federal tax forms to be — an
independent contractor.” Thus, because independent contractors
may not avail themselves of the CWPA’s protections, and Bermel
“submitted no rebuttal evidence,” the court granted BlueRadios’
motion for summary judgment.
16
¶ 35 We agree with the trial court’s conclusion that the evidence
attached to BlueRadios’ motion for summary judgment, which
Bermel did not rebut, established that BlueRadios treated Bermel
as an independent contractor. This unrebutted evidence was
sufficient to carry BlueRadios’ initial summary judgment burden of
establishing that Bermel was, “in fact,” “primarily free from control
and direction in the performance of” his services to BlueRadios.
§ 8-4-101(5).
¶ 36 But the CWPA requires that the individual be “primarily free
from control and direction in the performance of the service, both
under his or her contract for the performance of service and in fact.”
Id. (emphasis added). It also requires that the individual be
“customarily engaged in an independent trade, occupation,
profession, or business related to the service performed.” Id.
(emphasis added). The evidence attached to BlueRadios’ motion for
summary judgment, which included the parties’ Contractor
Agreement, did not establish that Bermel was free from control and
direction under his contract or that he was customarily engaged in
an independent trade, occupation, profession, or business related to
the service performed.
17
¶ 37 The parties’ contract contained the following provisions:
3. Rate of Payment for Services. The
Company shall pay Contractor an hourly wage
of $27.50/hr. for the services of the contractor,
payable at regular payroll periods every
2-weeks. Company will provide Contractor
time recording time sheet that shall be
updated daily and signed and dated when
submitted by the Contractor to the Company
for payment. As an independent 1099
Contractor[,] the responsibility for any [and] all
taxes and social security, etc[.] will be the
responsibility of the Contractor.
4. Duties and Position. The Company hires
the Contractor in the capacity of Electronics
Design Engineer. The Contractor’s duties may
be reasonably modified at the Company’s
discretion from time to time.
5. Contractor to Devote Full Time to
Company. The Contractor will devote full time,
attention, and energies to the business of the
Company, and, during this contract, will not
engage in any other related business activity of
the Company, regardless of whether such
activity is pursued for profit, gain, or other
pecuniary advantage [but] Contractor is not
prohibited from making personal investments
in any other businesses provided those
investments do not require active involvement
in the operation of said companies.
...
8. Restriction on Post Contract Compensation.
For a period of 2 years after the end of the
contract, the Contractor shall not start or have
control in any business similar to that
18
conducted by the company, either by soliciting
any of its accounts or by operating within
Employer’s specific trade business.
¶ 38 In our view, these provisions raise a genuine issue of material
fact as to whether Bermel was primarily free from BlueRadios’
control and direction in his performance of services under the terms
of the parties’ contracts, and whether Bermel customarily engaged
in an independent trade, occupation, profession, or business
related to the services performed. In particular, under the terms of
the contracts (1) BlueRadios required Bermel to “devote full time,
attention, and energies to the business of” BlueRadios; (2) Bermel
was prohibited from “engag[ing] in any other related business
activity of” BlueRadios; (3) BlueRadios retained the right to
reasonably modify Bermel’s duties at its discretion; (4) BlueRadios
contracted to pay Bermel at an hourly rate “payable at regular
payroll periods every” two weeks; and (5) Bermel could not operate a
business that offered services similar to those conducted by
BlueRadios for two years after the conclusion of the Contractor
Agreement. Accordingly, BlueRadios failed to carry its burden of
establishing that no genuine dispute of material fact existed as to
whether, under the parties’ contracts, Bermel was an employee for
19
purposes of the CWPA. We therefore reverse the trial court’s grant
of summary judgment on Bermel’s CWPA claim.
¶ 39 In reaching this conclusion, we acknowledge that the parties
could have provided better analysis in their summary judgment
briefing to the trial court. BlueRadios did not cite the CWPA’s
definition of an employee, and Bermel did not support his response
to BlueRadios’ motion for summary judgment with any evidence.
Nonetheless, BlueRadios failed to carry its initial summary
judgment burden of establishing that Bermel was not an employee
as that term is defined under section 8-4-101(5). Accordingly,
reversal of the summary judgment on the CWPA claim is required.
V. Appellate Attorney Fees
¶ 40 Finally, BlueRadios contends that it should be awarded its
attorney fees on appeal under the theft statute, section 18-4-405,
and under the CWPA, section 8-4-110, C.R.S. 2016. We agree that
BlueRadios is entitled to its appellate attorney fees under the civil
theft statute. We therefore exercise our discretion under C.A.R.
39.1 to remand this issue to the trial court to determine and award
the total amount of BlueRadios’ reasonable fees incurred in
litigating the civil theft issue on appeal. Payan v. Nash Finch Co.,
20
2012 COA 135M, ¶ 63. In light of our reversal of the trial court’s
grant of summary judgment on Bermel’s CWPA claim, however, we
need not address BlueRadios’ request for appellate attorney fees
under section 8-4-110.
VI. Conclusion
¶ 41 The summary judgment on the CWPA claim is reversed. The
judgment is affirmed in all other respects. The CWPA claim is
remanded for further proceedings consistent with this opinion and
for determination of BlueRadios’ reasonable fees under the civil
theft statute.
JUDGE TERRY concurs.
JUDGE BERGER specially concurs.
21
JUDGE BERGER, specially concurring.
¶ 42 I agree with the division’s disposition of this appeal and almost
all of its analysis. My only departure is that I do not believe that
BlueRadios met any part of its summary judgment burden on the
CWPA claim.
¶ 43 As the division recounts, BlueRadios supported its summary
judgment motion with extensive evidence, including an affidavit
from its president. While Bermel responded to the summary
judgment motion, and contended that there were disputed issues of
material fact that precluded summary judgment, he did not, as
C.R.C.P. 56(b) permits (and sometimes requires), submit any
evidence in opposition to the summary judgment motion.1
1 Unless the summary judgment movant meets her initial burden,
the responding party has no duty to submit any evidence in
opposition to the motion. People v. Wunder, 2016 COA 46, ¶ 43.
The mere fact that the moving party submits evidence in support of
the motion does not, by itself, compel the opposing party to counter
with evidence.
Id. Only if the moving party demonstrates that
there are no disputed issues of material fact and that it is entitled
to summary judgment as a matter of law does the responsibility
devolve upon the opposing party to submit evidence.
Id. While it
surely is risky for the opposing party to fail to present evidence in
opposition, he is not required to do so unless the moving party first
meets her burden.
Id.
22
¶ 44 The division holds that the “unrebutted evidence [submitted
by BlueRadios] was sufficient to carry BlueRadios’ initial summary
judgment burden of establishing that Bermel was, ‘in fact,’
‘primarily free from control and direction in the performance of’” his
services to BlueRadios.
¶ 45 I disagree with this conclusion. In my view, BlueRadios did
not meet any part of its summary judgment burden. The trial court
had before it during the summary judgment proceedings the
parties’ contract. Several provisions in that contract (addressed by
the division in connection with its conclusion that BlueRadios did
not meet its summary judgment burden regarding control of Bermel
by BlueRadios “under his or her contract”) are relevant both to the
control exercised by BlueRadios in fact as well as control that could
be exercised under the contract.
¶ 46 Contractual provisions that impose restrictive covenants upon
a worker, both during the service of the worker and after
termination of the relationship, speak not only to hypothetical
control, but control in fact. While it is possible that BlueRadios
could have waived those restrictions, making them inconsequential
in connection with the “in fact” inquiry, nothing in the summary
23
judgment record so indicates. Thus, in my view, BlueRadios did not
meet any part of its summary judgment burden and the trial court
should have denied the motion in its entirety.
¶ 47 Other than this relatively minor disagreement, I join the
division’s opinion.
24
