Helm Companies v. Shady Creek Housing Partners, Ltd.

Opinion issued July 26, 2007 In The Court of Appeals For The First District of Texas NO. 01-05-00743-CV HELM COMPANIES, Appellant V. SHADY CREEK HOUSING PARTNERS, LTD., Appellee On Appeal from the 133rd District Court Harris County, Texas Trial Court Cause No. 2001-62744-C MEMORANDUM OPINION Appellant, Kingwood Equities, Inc., d/b/a Helm Companies ("Kingwood"), (1) sued appellee, Shady Creek Housing Partners, Ltd. ("Shady Creek Partners"), for "knowing participation in a breach of fiduciary duty," conversion, and theft. In two issues, Kingwood contends that the trial court erred by granting a no-evidence summary judgment in favor of Shady Creek Partners because (1) Kingwood presented evidence to support its claim that Shady Creek Partners knowingly participated in a breach of fiduciary duty and (2) Shady Creek Partners abused the discovery process. We reverse the trial court's summary judgment in favor of Shady Creek Partners on Kingwood's claim of "knowing participation in a breach of fiduciary duty" and remand the cause. We affirm the trial court's summary judgment in all other respects. Facts and Procedural History Since 1989, Kingwood has been in the business of developing real property. At the time of its incorporation, Kingwood's sole shareholders were Stephen Helm and his sister, Denise Helm. Denise owned the majority position in Kingwood. Stephen owned the balance of Kingwood and served on its board of directors as president. In 1992, Kingwood began acquiring real property, developing apartment complexes, and managing the properties it developed. To fund the projects, Kingwood created partnerships in which it owned or acted as the corporate general partner and sold limited partnership interests. Over time, Kingwood developed five properties in Harris and Galveston counties under this financing structure. (2) The sole property at issue in this appeal is Shady Creek Apartments, a project in Baytown, Texas ("the Project"), which was funded by creating Shady Creek General Corporation and Shady Creek Partners, a limited partnership. Shady Creek Partners's general partner is Shady Creek General Corporation, of which Stephen is the sole director. Shady Creek Partners purchased the Project in March of 1998, and Kingwood was to be the developer and manager of the Project. Kingwood was to receive a developer's fee, management fees, a percentage of loan proceeds, and an ownership interest. In May of 1999, Stephen, acting as president of Kingwood and as general partner for Shady Creek Partners, executed an amended development agreement in which he changed the developer of the Project from Kingwood to an entity called Horizon Residential, Inc. ("Horizon"), of which Stephen was the sole owner and sole director. Subsequently, Horizon received the $614,822 developer's fee on the Project that Shady Creek Partners had originally contracted to pay to Kingwood. In 2001, Denise conveyed her 51% interest in Kingwood to Funding Ventures, L.L.C. ("Funding Ventures"), of which she became an owner with Rod Gorman. Gorman became the chairman of Kingwood's Board of Directors ("the Board") and its Chief Operating Officer. Funding Ventures is the majority shareholder in Kingwood. Subsequently, the Board began to suspect that Stephen had been unlawfully diverting corporate assets and opportunities to himself. The Board removed Stephen as president of Kingwood. (3) On December 10, 2001, Funding Ventures, under the name of Helm, (4) sued Stephen, alleging that, as president of Kingwood, he had breached his fiduciary duty and had engaged in constructive fraud, usurpation of corporate opportunities, self-dealing, diversion of business opportunities, and concealment. On April 1, 2002, Kingwood filed a First Amended Original Petition, bringing its claims against Stephen and against twelve additional defendants, (5) including Shady Creek Partners. Kingwood asserted "a cause of action for misconduct" against the twelve defendants, including Shady Creek Partners, alleging that "[t]hese entities, acting through authorized representative Stephen . . . , have aided and knowingly participated in [a] breach of fiduciary duty" and that "they are therefore liable as joint tortfeasors." Specifically as to Shady Creek Partners, Kingwood sought the return of the $614,822 developer's fee that had been paid to Horizon instead of to Kingwood in accordance with the contract between Kingwood and Shady Creek Partners. On April 29, 2002, eight of the twelve defendants, including Shady Creek Partners, (6) together moved for a "no-evidence" summary judgment (the "Original Motion"), pursuant to Rule of Civil Procedure 166a(i). As to Kingwood's claims pertaining to Shady Creek Partners, the defendants alleged that adequate time for discovery had passed and (1) that Kingwood had failed to state a cause of action because "a cause of action of misconduct . . . is not really a cause of action" and (2) that "[n]o evidence exists which would establish that the Defendants [which included Shady Creek Partners] acted or knowingly participated in any misconduct or aided in the breach of a fiduciary duty." Attached to the motion on behalf of Shady Creek Partners were a certificate of partnership, a copy of the deed, and Stephen's affidavit. Kingwood filed a response to the motion for summary judgment in which it contended that the eight defendants, including Shady Creek Partners, had improperly asserted that Kingwood's cause of action "is not really a cause of action." Kingwood contended that its cause of action, that of knowing participation in a breach of fiduciary duty, was, in fact, a cause of action, citing Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509 (Tex. 1942). In addition, Kingwood contended that Stephen's affidavit was defective because it was conclusory and that fact issues existed with regard to the ownership structure of Shady Creek Partners. Kingwood attached as evidence pertaining to Shady Creek Partners the affidavit of Gorman. Gorman attested that, in July 1997, Stephen, while acting as president of Kingwood, entered into a contract to purchase land on behalf of "Shady Creek Housing Partners, Ltd. (a limited partnership to be created)" and entered into a limited partnership agreement as president of "Shady Creek General Corp. ([t]o be formed Texas Corporation)," which was to be the corporate general partner of Shady Creek Housing Partners, Ltd. On July 16, 1997, Stephen applied to the Texas Department of Housing and Community Affairs ("the Department") for low income housing tax credits for the Project and authorized the application under oath as "President, [Kingwood], 100% owner Shady Creek General Corp., G.P." Kingwood then sent its commitment check for $15,885 to complete its application. In 1998, however, Stephen caused the Texas Secretary of State to charter Shady Creek General Corp. for himself, rather than for Kingwood. Subsequently, Stephen executed a contract for Kingwood to be the developer of Shady Creek Apartments and to receive a $614,822 developer's fee. In 1999, Stephen executed, on behalf of Kingwood, Shady Creek, and Horizon, an "Amended and Restated Development Agreement," whereby Horizon became the developer of Shady Creek Apartments and became entitled to the $614,822 developer's fee. Gorman attested that the Kingwood Board had not authorized and had not received any consideration for a transfer of ownership of Shady Creek General Corp. or Shady Creek Housing Partners, Ltd. As evidentiary support, Kingwood appended the sales contract for the Project; the partnership agreement; the application to the Department; the commitment check written by Kingwood; the articles of incorporation for Shady Creek General Corp.; the development agreement between Kingwood and Shady Creek Partners providing for the $614,822 developer's fee; and the Amended and Restated Development Agreement naming Horizon as the developer and the recipient of the fee. Throughout the period of 2001 to 2003, Kingwood alleged that Stephen and the twelve defendants, including Shady Creek Partners, were improperly refusing to comply with discovery requests. In July 2002, the trial court appointed the Honorable Kathleen Stone as discovery master, excepting consideration of the motion for summary judgment. On November 4, 2002, Kingwood filed a "Second Amended Supplemental Petition" in which it stated claims against Stephen and the other twelve defendants, including Shady Creek Partners, for conversion and theft. Subsequently, Shady Creek Partners acquired its own counsel and brought several counterclaims against Kingwood, including tortious interference, fraud, defamation, business disparagement, and conspiracy. In May of 2003, Shady Creek Partners filed a "Supplemental No Evidence Motion for Summary Judgment" (the "Supplemental Motion"), contending, as discussed in more detail below, that there was no evidence to support any of the elements of any of Kingwood's claims against Shady Creek Partners. At a hearing involving issues presented in both the Original Motion and the Supplemental Motion, Kingwood conceded that it had not filed a separate written response to the Supplemental Motion. On July 15, 2003, the trial court, upon the recommendation of the master, granted summary judgment in favor of Shady Creek, ordered that Kingwood take nothing against Shady Creek, and dismissed Shady Creek with prejudice. On August 21, 2003, after a hearing, the trial court ordered that all pending claims of Kingwood against Shady Creek and a co-defendant, and all pending claims of Shady Creek against Kingwood be "severed into Cause No. 2001-62744A"(the "A cause"). On August 12, 2004, Shady Creek Partners moved to sever Kingwood's claims against it from the "A cause" so that Shady Creek Partners could pursue a final judgment based on the summary judgment granted in its favor. In addition, Shady Creek Partners non-suited its counterclaims against Kingwood. Kingwood opposed the severance on the grounds that the trial had erred in granting the summary judgment. Kingwood contended that it was fundamentally unfair for Shady Creek Partners to have refused Kingwood's discovery requests and then to have moved for a no-evidence summary judgment. Kingwood sought to set aside the summary judgment by filing a motion for new trial, which the trial court denied. On June 13, 2005, the trial court severed Shady Creek Partners's "take nothing summary judgment, which dispose[d] of all claims against [Shady Creek Partners]" from the "A cause," into 2001-62744-C, "for the purpose of converting that judgment into a final judgment." This appeal ensued. No-evidence Summary Judgment In two issues, Kingwood contends that the trial court erred by granting a no-evidence summary judgment in favor of Shady Creek Partners because (1) Kingwood presented evidence to support its claim that Shady Creek Partners knowingly participated in a breach of fiduciary duty and (2) Shady Creek Partners abused the discovery process. A. Standard of Review and Applicable Legal Principles After an adequate time for discovery, the party without the burden of proof may move for summary judgment, with or without presenting evidence, on the basis that there is no evidence to support an essential element of the non-moving party's claim. Tex. R. Civ. P. 166a(i); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). First, the movant must specifically state the elements as to which there is no evidence. Tex. R. Civ. P. 166a(i). Only then, the burden shifts to the non-movant to produce evidence that raises a fact issue on the challenged elements. See Johnson, 73 S.W.3d at 207. If the non-movant brings forward more than a scintilla of probative evidence to raise a genuine issue of material fact, then summary judgment is not proper. Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.--Houston [1st Dist.] 1999, no pet.). More than a scintilla exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). We review the evidence in the light most favorable to the non-movant and make all inferences in the non-movant's favor. Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000); Flameout Design & Fabrication, Inc., 994 S.W.2d at 834. When, as here, a trial court does not state the basis for its decision in its summary judgment order, we must uphold the order if any of the theories advanced is meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993). B. Analysis 1. Knowing participation in a breach of fiduciary duty In its first issue, Kingwood contends that the trial court erred by granting a no-evidence summary judgment in favor of Shady Creek Partners because Kingwood presented evidence to support its claim that Shady Creek Partners knowingly participated in a breach of fiduciary duty. The record shows that, in its "First Amended Original Petition," Kingwood stated (1) a series of claims against Stephen, which included breach of fiduciary duty, constructive fraud, and usurpation of corporate opportunities; (2) claims against the corporate defendants for various forms of conspiracy; and (3) a claim against the corporate and partnership defendants, including Shady Creek Partners, as follows in pertinent part: 28. [Kingwood] is asserting a cause of action for misconduct against the following entities, who acted by and through Stephen Helm as authorized representative or agent: . . . [Shady Creek Partners]. These entities, acting through authorized representative Stephen Helm and/or others, have aided and knowingly participated in the breach of fiduciary duty about which [Kingwood] is complaining and they are therefore liable as joint tort-feasors. In addition, Kingwood presented its factual allegations against Stephen as they specifically related to Shady Creek Partners. The twelve defendants, including Shady Creek Partners, then moved for a no-evidence summary judgment (the Original Motion), asserting that adequate time for discovery had passed, that Kingwood had failed to state a cause of action because "a cause of action of misconduct . . . is not really a cause of action," and that "[n]o evidence exists which would establish that the Defendants [including Shady Creek Partners] acted or knowingly participated in any misconduct or aided in the breach of a fiduciary duty." Subsequently, Shady Creek Partners, individually, filed a Supplemental Motion for a no-evidence summary judgment, contending that the case had been pending since December 10, 2001 and that there was "still no evidence of any of the elements of [Kingwood's] claims against Shady Creek." After a hearing, the trial court granted summary judgment in favor of Shady Creek Partners. On appeal, as briefed, Kingwood first contends that Shady Creek Partners's motions for summary judgment were legally insufficient under Rule 166a(i) because Shady Creek Partners failed to enumerate the elements of the cause of action against it for "knowingly participating with Stephen Helm in transactions which breached his fiduciary duties to Kingwood" and failed to specifically state which of those elements it challenged. Rather, Shady Creek Partners "merely asserted that there was 'no such cause of action'" and "stated, in a conclusory way, that no evidence existed that would establish that [Shady Creek Partners] acted or knowingly participated in any misconduct or aided in the breach of a fiduciary duty." Kingwood contends that this statement constitutes a conclusory or general no-evidence challenge that is prohibited by Rule 166a(i). See Tex. R. Civ. P. 166a(i). Shady Creek Partners has maintained that "[c]ounsel for [Shady Creek] is unaware of a cause of action called 'Misconduct' and for that reason is unable to cite to specific elements of this alleged cause of action." First, we note that Shady Creek Partners did not specially except to the alleged misstatement by Kingwood of its cause of action. When a party fails to specially except, we liberally construe the pleadings in favor of the pleader. Horizon/CMS/Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000). Second, Texas follows a "fair notice" standard for pleading. Id. at 896. This means that a petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim. Id. at 897. We consider whether the opposing party can ascertain from the pleading the nature and basic issues of the controversy. Id. The purpose is to ensure that the opposing party has information that is sufficient to allow it to prepare a defense. Id. Kingwood has maintained throughout that its cause of action against Shady Creek Partners can be found in Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509 (Tex. 1942). Although Kinzbach does not specifically state "misconduct" as a cause of action, Kinzbach clearly stands for the proposition that "where a third party knowingly participates in the breach of duty of a fiduciary, such third party becomes a joint tortfeasor with the fiduciary and is liable as such." Kinzbach Tool Co., 160 S.W.2d at 514. In fact, this is well-settled law. See Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 863 (Tex. App.--Houston [14th Dist.] 2001, pet. denied); see also Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 701 (Tex. App.--Fort Worth 2006, pet. denied); Cox Tex. Newspapers, L.P., v. Wootten, 59 S.W.3d 717, 721 (Tex. App.--Austin 2001, pet. denied); S.W. Tex. Pathology Assoc., L.L.P., v. Roosth, 27 S.W.3d 204, 208 (Tex. App.--San Antonio 2000, pet. dism'd w.o.j.); Thompson v. Vinson & Elkins, 859 S.W.2d 617, 624 n.5 (Tex. App.--Houston [1st Dist.] 1993, writ denied). In its petition, Kingwood clearly expounds, in the same paragraph as its use of the word "misconduct," that its claim is that "[Shady Creek Partners], acting through authorized representative Stephen Helm and/or others, [has] aided and knowingly participated in the breach of fiduciary duty about which [Kingwood] is complaining and they are therefore liable as joint tort-feasors." In addition, in its petition, Kingwood presented its factual allegations against Stephen and stated how they related to the Shady Creek Project. We conclude that Kingwood satisfied the standard because Shady Creek Partners could have reasonably determined the nature of the claim against it; namely, that of having "knowingly participated in a breach of fiduciary duty." See Horizon, 34 S.W.3d at 897. In moving for a no-evidence summary judgment on this claim, Shady Creek Partners was required to assert that no evidence existed as to one or more of the essential elements of the claim and to specifically state the element or elements as to which there is no evidence. See Johnson, 73 S.W.3d at 207; Roventini v. Ocular Scis., Inc., 111 S.W.3d 719, 722 (Tex. App.--Houston [1st Dist.] 2003, no pet.). Shady Creek Partners was not required to present any evidence to support the ground. See Tex. R. Civ. P. 166a(i). Generally, the specification of each element and the good faith assertion that there is no evidence to support that element is all that is required. Id. However, conclusory motions or general no-evidence challenges are not sufficient. Callahan Ranch, Ltd. v. Killam, 53 S.W.3d 1, 4 (Tex. App.--San Antonio 2000, pet. denied). A no-evidence challenge that fails to state specific elements is insufficient as a matter of law. Id. The elements of Kingwood's breach of fiduciary duty claim against Stephen are: (1) that Kingwood and Stephen had a fiduciary relationship; (2) that Stephen breached his fiduciary duty; and (3) that the breach resulted in injury to Kingwood or benefit to Stephen. See Abetter Trucking Co. v. Arizpe, 113 S.W.3d 503, 508 (Tex. App.--Houston [1st Dist.] 2003, no pet.). As Shady Creek Partners enumerates in its appellate brief, the essential elements of Kingwood's claim against Shady Creek Partners are that Shady Creek Partners (1) knew of Stephen's fiduciary duty to Kingwood and (2) was aware that it was participating in Stephen's breach of that duty. See Kinzbach Tool Co., 160 S.W.2d at 514; Wootten, 59 S.W.3d at 721-22. However, Shady Creek Partners did not, in its motions for summary judgment, specifically enumerate these elements and challenge them, as is required by Rule 166a(i). See Tex. R. Civ. P. 166a(i). Shady Creek Partners merely stated in its motions for summary judgment that a cause of action for "misconduct" does not exist and that "[n]o evidence exists which would establish that [Shady Creek] acted or knowingly participated in any misconduct or aided in the breach of a fiduciary duty." Shady Creek Partners does not enumerate any elements of a cause of action for knowingly participating in the breach of a fiduciary duty, as required. Hence, Shady Creek Partners's motion does not comply with Rule 166a(i). See Tex. R. Civ. P. 166a(i); Johnson, 73 S.W.3d at 207; Mathis v. RKL Design/Build, 189 S.W.3d 839, 844 (Tex. App.--Houston [1st Dist.] 2006, no pet.). A no-evidence challenge that only generally challenges the sufficiency of the non-movant's case and fails to state specific elements is fundamentally defective and insufficient to support summary judgment as a matter of law. See Killam, 53 S.W.3d at 4. (7) We conclude that Shady Creek Partners's motion for no-evidence summary judgment is fundamentally defective and therefore insufficient to support summary judgment as a matter of law. In a one-paragraph sub-issue under this point, Kingwood contends that the summary judgment must be reversed as to all of its "other causes of action" because "[t]he summary judgment evidence discussed above which establishes Stephen Helm's breach of fiduciary duty and Shady Creek's knowing participation in such breach of fiduciary duty also establishes the predicate acts necessary to prove the conversion, conspiracy and Texas Theft Liability Act causes of action." Kingwood does not expound upon this contention, provide any substantive argument, or cite to any authority. Therefore, this sub-issue is inadequately briefed. See Tex. R. App. P. 38.1(h) (requiring that brief to court of appeals contain, inter alia, "a clear and concise argument for the contentions made, with appropriate citations to authorities and the record"); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994); Raitano v. Tex. Dep't of Pub. Safety, 860 S .W.2d 549, 554 (Tex. App.--Houston [1st Dist.] 1993, writ denied) ("The Court does not represent the appellant and has no duty to search for pertinent authority."). The failure to adequately brief an issue by not providing substantive argument or citation to authority waives any error on appeal. See Brown v. Hearthwood II Owners Ass'n, Inc., 201 S.W.3d 153, 161 (Tex. App.--Houston [14th Dist.] 2006, pet. denied). Accordingly, we sustain Kingwood's first issue solely as to Kingwood's claim that Shady Creek Housing Partners, Ltd., "knowingly participated in a breach of fiduciary duty" by Stephen Helm. 2. Alleged discovery abuses In its second issue, Kingwood contends that the trial court erred by granting a no-evidence summary judgment in favor of Shady Creek Partners because Shady Creek Partners abused the discovery process. The record indicates a history of discovery disputes between the parties. In addition, the record shows that on May 28, 2002, after Shady Creek Partners had filed its Original Motion for summary judgment as to Kingwood's claim that Shady Creek Partners had knowingly participated in a breach of fiduciary duty by Stephen, Kingwood filed a motion for continuance. Kingwood requested that the May 31, 2002 hearing on the Original Motion be reset to "August or September of 2002" on the basis that Kingwood had not been afforded adequate time for discovery because Shady Creek had not yet properly responded to discovery requests. Two days later, on May 30, 2002, Kingwood moved that the trial court refer matters to a discovery master for resolution, which the trial court granted. The trial court appointed the master "to consider, rule on, and enforce any and all motions" regarding the discovery matters in the case, not including any motions for summary judgment. On August 12, 2002, Kingwood moved for a continuance on the Original Motion until such time as Shady Creek complied with certain discovery orders and requests. On September 12, 2002, trial began, but it was immediately recessed to allow the discovery issues still pending before the master to be resolved. The transcript of the hearing indicates that the trial court asked, "It's my understanding . . . that the parties would be looking for a recess to be able to complete and finally finish up what's necessary to be done prior to the time a jury's brought over here. Is my understanding correct?" The record reflects that the parties agreed. The trial court stated that the case would be recessed for approximately 30 days or until such time as appropriate, based on further discussion between the trial court and the master. The record reflects that discovery issues continued into October 2002. On November 4, 2002, Kingwood amended its petition, adding claims for conversion and theft. On May 19, 2003, Shady Creek filed its Supplemental Motion for summary judgment regarding the additional claims. On June 5, 2003, Kingwood filed "Plaintiff's Additional Evidence and Response to Defendant's Motions for Summary Judgment," in which it stated that the motions "have been reset to June 19, 2003," and it asked the trial court to consider its appended evidence and to "deny all of the Defendant's Motions for Summary Judgments and supplements thereto." On June 12, 2003, the master held a hearing on the motions for summary judgment. On July 15, 2003, upon the master's recommendations, the trial court granted summary judgment in favor of Shady Creek. Kingwood contends that the trial court abused its discretion by granting the summary judgment in favor of Shady Creek because Kingwood still lacked the discovery it needed because of abuses by Shady Creek. A party contending that it has not had an adequate opportunity for discovery before a summary judgment hearing must either file an affidavit explaining the need for further discovery or a verified motion for a continuance. See Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996); Tempay, Inc. v. TNT Concrete & Constr., 37 S.W.3d 517, 520-21 (Tex. App.--Austin 2001, pet. denied). Here, Kingwood participated fully at the June 12 hearing. The record does not show that Kingwood sought a continuance of that hearing or that Kingwood did anything to alert the trial court that discovery issues remained unresolved at the time of the hearing, that more time was needed for resolution, or that the court should not move forward and determine the motions at that time. The record shows that, in its June 5, 2003 filing, Kingwood acknowledged that a hearing on the motions would take place later that month and had asked the trial court to make a ruling--that it "deny all of the Defendant's Motions for Summary Judgments and supplements thereto." Because Kingwood did not avail itself of either an affidavit explaining the need for further discovery or a motion for continuance, and instead requested a ruling on the motions for summary judgment, we cannot conclude that the trial court erred. See Green v. City of Friendswood, 22 S.W.3d 588, 594 (Tex. App.--Houston [14th Dist.] 2000, pet. denied). Accordingly, we overrule Kingwood's second issue. Conclusion We hold that the trial court erred by granting a no-evidence summary judgment in favor of Shady Creek Partners on Kingwood's stated cause of action for knowing participation in a fiduciary's breach of duty because Shady Creek Partners's motion for summary judgment is fundamentally defective and is therefore insufficient to support summary judgment as a matter of law. We reverse the trial court's summary judgment in favor of Shady Creek Partners solely as to Kingwood's claim that Shady Creek Housing Partners, Ltd., " knowingly participated in a breach of fiduciary duty" by Stephen Helm, and remand for further proceedings. We affirm the trial court's summary judgment in all other respects. Laura Carter Higley Justice Panel consists of Justices Nuchia, Keyes, and Higley. 1. " " "" "" 2. 3. ' 4. 5. " " 6. -- " " " " 7. " - " -- - ' " " " "