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
