FILED

United States Court of Appeals

Tenth Circuit

January 20, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DALE GROSS; JAMES BAGWILL;

LAVETA BARKER; BILLY

BARNES; JIM BENNETT; ROY

BERGERON; KENNETH BEVENUE;

CODY CALICO; HELEN

CAPEHART; ALMA

CHESHEWALLA; RAYMOND

CODY; O W COLLINS; CHRIS

COUCH; SAMUEL DOBSON; GINA

DOSS; JASON DRAKE; ALLEN

FARRIER; KELLY FETZER;

EUGENE FITZPATRICK; BILLY

GAMBLING; EROS GARCIA;

CHRISTOPHER GREEN; WADE

GREEN; MIKEY GRIDER; JAMES

GRISHAM; TIM HANSEN; DARRIN

HARGIS; ANTHONY HAYES; PAUL

HENRY; MARK HICKS; RHONDA

HOUSDAN; DOUGLAS HUDSON;

ROBERT HUGHES; DAVID

JOHNSON; EVELYN JOHNSON;

DAVID KEIM; KAY LANGE; TONY

LAWHORN; DON LINKER; KERRY

MARQUETTE; DAVID MASHBURN;

JOHN MCHENRY; ROBERT

MCKAY; JERRY MCVAY;

MATTHEW MERRELL; DEREK

MILLER; CASEY MILLS; BOBBY

MORRIS; TOMMY MULLINS; MIKE

NOLEN; MICAH PARKS; SANDRA

PARSONS; JIMMY PHILLIPS;

REBECCA PILGRIM; ROBERT

PLETT; MARK PRATHER; JOHN

PRICE; RUSSELL REPLOGLE; LEE

WALKER; NEDRA SANDERS;

No. 08-5028
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MICHAEL SANDRIDGE; JOEL

SHAFFER; DAVID SHANKLIN;

RAYMOND SHINAULT; ROSA

SIMS; JOHN SMITH; WAYNE

SMITH; FRANK STINEDURF;

TIMOTHY SULLIVAN; DAX

SWATSENBARG; CARRELL

TALLENT; RAYMOND THOMAS;

LANNY THOMPSON; MARK

THOMPSON; CHARLES

THURMAN; SHAY TODD; JOSH

VAUGHN; MYRT WALTON;

ANDREW WILKERSON; ROBERT

WILLIAMS; JAMES WOODCOCK;

CLARENCE WOODS; THOMAS

YERTON; WENDEL NEAL; TERRY

PLILER; MARCIE TROTTER; JOHN

PERKINS; DOYLE TREAT; NEAL

PITTENGER; MIKE HOPPER;

SCOTT VAUGHN; PATSY SMITH;

RONALD GRIFFITH; RICHARD

GOURD; CURTIS HUGHEY; LARRY

E. JOHNSTON; EDWARD

MCCLURE; ROSEMARY KELLY;

DAVID SHELL; ORVILLE SHOUSE;

LEROY FINNING; CORY

HANCOCK; SHARON ZWOSTA;

LONNIE TEAGUE; ROBERT

DIXON; PAUL DAVIS; ROBERT

WILLIAMSON; CLIFFORD

FENTON; CHRISTOPHER

PRESLAR; RITA KEAS;

CHRISTOPHER BLACKBURN;

JARED ELLIS; DELBERT “SONNY”

GOLDEN; AUDIE BRODIE; ROGER

FERMAN; JOHN THOMAS; DAVID

SMITH; BOBBY TURNER; TIM

SATTLER; DARRELL BLAYLOCK;

JAY KELLEY; JEFF BURGESS;

CHRISTOPHER CLEVELAND;

JOHNNY DISMUKE; TERRY
- 3 -

WILLIAMS; ELMER WESLEY;

MARSHALL DARNELL WILSON;

ALBERT HULL; JAMES COOLEY;

ROBERT NELSON; JIM BENIGAR;

TIM LONG; DANIEL WELLS;

DAVID HARRISON; RANDY

LORANCE; CURTIS TYNER; ERIC

WALKER; JAMES BASH;

HARRISON FISHER; DALE

SPEAKMAN; JOHN SCHNEIDER;

DAVID NESBIT; MICHAEL COX;

OCIE STOCKHAM; TRACY

CONWELL; LARRY SCHUTTLER;

CHARLES HARRIS; BART HALL;

CLAYTON IRBY; THOMAS WISE;

FRANK WILLIS; PAUL GONZALEZ;

CLIFFORD DEATHERAGE;

EUGENE WEAVER; DARREL

MEEKS; RANDALL SOUTHERN;

TOMMY PETERS 

Plaintiffs - Appellants,

v.

HALE-HALSELL COMPANY, an

Oklahoma corporation;,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 04-CV-98-GKF-FHM)

Steven R. Hickman of Frasier, Frasier & Hickman, L.L.P., Tulsa, Oklahoma, for

Plaintiffs - Appellants.
- 4 -

David E. Strecker (Jessica C. Ridenour, with him on the brief), Tulsa, Oklahoma,

for Defendant - Appellee.

Before KELLY, BALDOCK, and McCONNELL, Circuit Judges.

KELLY, Circuit Judge.

Plaintiffs-Appellants, all former employees of Hale-Halsell Company

(HHC), appeal the grant of summary judgment in favor of Defendant-Appellee

HHC on their claim that HHC violated the Worker Adjustment and Retraining

Notification Act (WARN Act), 29 U.S.C. §§ 2101-2109. Our jurisdiction arises

under 28 U.S.C. § 1291, and we affirm.

Background

The WARN Act imposes a federal mandate on employers requiring 60 days

advance notice to employees of a plant closing or a mass layoff. Frymire v.

Ampex Corp., 61 F.3d 757, 764 (10th Cir. 1995); see also 29 U.S.C. § 2102(a); 20

C.F.R. § 639.1(a). The Act applies to any business that employs 100 or more

employees, and the parties do not dispute that HHC is subject to its provisions. 

20 C.F.R. § 639.3(a)(1)(i). Congress acknowledged through specific exceptions

to the WARN Act’s notice requirements that notice is not always practicable or

possible. Id. §§ 639.1(e), 639.2, 639.9; 29 U.S.C. § 2102(b)(2)(A) (unforeseeable
- 5 -

business circumstance exception); see also Allen v. Sybase, Inc., 468 F.3d 642,

645 (10th Cir. 2006) (“An employer may be excused from the sixty-day notice

requirement where a mass layoff was the result of an unforeseen business

circumstance.”). Notwithstanding, “an employer ‘shall give as much notice as is

practicable and at that time shall give a brief statement of the basis for reducing

the notification period.’” Allen, 468 F.3d at 646 (quoting 29 U.S.C. §

2102(b)(3)).

Plaintiffs were employed by HHC, a wholesale grocery warehouse and

distribution center in Tulsa, Oklahoma. Gross v. Hale-Halsell Co., No. 04-CV0098-CVE-FHM, 2006 WL 2666993, at *1 (N.D. Okla. Sept. 15, 2006); Aplt.

App. 75. HHC owned fifty percent of United Supermarkets, which also happened

to be HHC’s largest customer. Aplt. App. 76, 77, 80. HHC and United had a

satisfactory thirty-one-year business relationship with United Supermarkets

providing forty percent of HHC’s orders. Gross, 2006 WL 2666993, at *1; Aplt.

App. 78. At times, HHC fell short on United’s submitted orders, i.e.,

experiencing “stockouts,” or “outs.” For example, during the week of December

14, 2002, recorded stockouts hit 6%; in the week of December 28, 2002, stockouts

hit 6.3%; and by the end of November 2003, stockouts had reached as high as

18.9%. Aplt. App. 173. A United official testified that, as of the end of

November 2003, despite HHC’s failure to fulfill United’s orders, United was not

“sure what was going to happen,” but that United was not considering terminating
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its relationship with HHC at that time. Aplt. App. 91. By January 7, 2004,

stockouts had reached an “all time high” of 53.8%, Aplt. App. 168, but United

still had not decided to end the relationship, Aplt. App. 172. During this same

period, HHC was awaiting approval of a working capital loan from LaSalle Bank. 

Aplt. App. 95-96. In November 2003, LaSalle felt “positive” about the loan being

approved, and as late as December 8, 2003, LaSalle was still considering a $15

million loan to HHC. Aplt. App. 96-98, 120-25. However, at some point after

United’s announcement in January 2004, it appears that LaSalle declined to

approve the funding. Aplt. App. 99, 184.

HHC and United communicated on various occasions about HHC’s failure

to satisfy United’s orders. In November and December 2003, “there was a lot of

conversation back and forth” about the issue. Aplt. App. 83, 175. On December

17, 2003, United began asking HHC to inform United of available stock, so

United could advertise for those items instead of for the “out” items. Aplt. App.

191, 87. By then, HHC’s warehouse operations were struggling, but LaSalle

auditors were on the premises collecting information. Aplt. App. 191. On

January 8, 2004, United wrote to let HHC know that United would have to “place

orders with alternative suppliers,” but also reiterated its willingness to continue

doing business with HHC despite the stockouts. Aplt. App. 100. In essence,

United was “not saying that [it] want[ed] to discontinue ordering from [HHC] or

that United [was] terminating its supply relationship with [HHC],” but rather
- 7 -

warning HHC that its orders would be declining. Aplt. App. 100. On January 9,

2004, HHC replied, informing United of various business developments and

assuring United that it expected to hear from LaSalle shortly regarding the loan. 

Aplt. App. 102. Then, on Thursday, January 15, 2004, United wrote to HHC,

informing HHC of the difficult decision it had made to “use Affiliated Foods as

its primary supplier, with [HHC] as a secondary supplier. That decision is going

to affect the volume of orders that United places with [HHC].” Aplt. App. 104. 

On Friday, January 16, 2004, HHC replied to United, indicating that its decision

would “put [HHC] in a bad situation,” but still expressing hope that HHC would

“solve [its] difficulties.” Aplt. App. 159. 

Events after the January 16 letter unfolded as follows. In 2004, Martin

Luther King Jr. Day fell on Monday, January 19, and banks were closed, so HHC

met with F&M Bank, its primary accounts holder, as well as consultants Alvarez

& Marsal, on Tuesday, January 20. Aplt. App. 106. It was after those meetings

that HHC “decided that [it] was not going to be able to survive.” Id. The next

day, Wednesday, January 21, 2004, HHC met with office personnel and later

warehouse staff, informing them of the impending layoffs. Aplt. App. 107. The

approximately 200 individuals to be laid off would be informed by notice

included in their paychecks the following day. Id.; see also Aplt. App. 75, 160. 

That same day, the Associated Press issued a news release indicating that HHC

had announced that it would “lay off about 200 Tulsa warehouse workers after
1

 United indicated in testimony that it was “very upset” that HHC had laid

the blame on it, because they “didn’t quit HHC.” Aplt. App. 87.

2

 On January 6, 2004, HHC received an email from the law firm of Conner

& Winters, indicating that HHC ought to consider preparing for a “possible”

bankruptcy filing, however remote, but that the primary goal was to avoid filing. 

Aplt. App. 161-62; see also Aplt. App. 189 (testimony of Michael Owens, former

HHC secretary-treasurer) (stating that at the end of 2003 bankruptcy “just wasn’t

what [HHC] wanted to do”).

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losing a key customer.” Aplt. App. 160. HHC President Rob Hawk was quoted

in the news release as stating, “[United’s] unexpected action has had a dramatic

impact not only on [HHC], but on the lives of so many of our long-term, valued

employees and [the] Tulsa community.”1

 Id. Finally, on Thursday, January 22,

2004, HHC informed employees by letter that they would be laid off, citing as the

reason the loss of United as its primary customer. Aplt. App. 158. HHC later

filed for bankruptcy. Aplt. App. 117.2

Thereafter, Plaintiffs brought this action and HHC moved for summary

judgment on the basis that it was excused from the WARN Act requirements

based upon the unforeseeable business circumstance exception, 29 U.S.C.

§ 2102(b)(2)(A); 20 C.F.R. § 639.9(b), and the faltering company exception, 29

U.S.C. § 2102(b)(1); 20 C.F.R. § 639.9(a). The district court granted summary

judgment based upon the former exception, holding that United’s termination of

HHC was unforeseeable and caused the mass layoffs, and that HHC had provided

notice “as soon as practicable.” Gross, 2006 WL 2666993, at *10-12. Plaintiffs

appeal, arguing the district court did not view the facts in the light most favorable
- 9 -

to the non-moving party when it held that (1) the unforeseeable business

circumstance exception applied to HHC, and (2) HHC gave notice of the layoffs

“as soon as practicable.” Aplt. Br. 7, 14-16.

Discussion

We review the grant of a motion for summary judgment de novo, and apply

the same standard as the district court. T-Mobile Cent., LLC v. Unified Gov’t of

Wyandotte County, 546 F.3d 1299, 1306 (10th Cir. 2008). In a civil case, we ask

ourselves whether, by a preponderance of the evidence, the moving party has

established that it is entitled to a favorable verdict. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 252 (1986). In doing so, “[w]e examine the record and all

reasonable inferences that might be drawn from it in the light most favorable to

the non-moving party.” T-Mobile, 546 F.3d at 1306 (internal citations omitted). 

In sum, summary judgment is appropriate when “there is no genuine issue as to

any material fact and . . . the movant is entitled to judgment as a matter of law.” 

Id. (quoting Fed. R. Civ. P. 56(c)). 

I. The Unforeseeable Business Circumstance Exception

The WARN Act requires employers to give at least sixty days’ notice in

advance of a mass layoff, 20 C.F.R. § 639.2, calculated from a fourteen-day

window during which the layoff is expected to occur, 20 C.F.R. § 639.7(b); Hotel
- 10 -

Employees and Rest. Employees Int’l Union Local 54 v. Elsinor Shore Assocs.,

173 F.3d 175, 187 (3d Cir. 1999). Under 29 U.S.C. § 2102(b)(2)(A), “[a]n

employer may order a plant closing or mass layoff before the conclusion of the

60-day period if the closing or mass layoff is caused by business circumstances

that were not reasonably foreseeable as of the time that notice would have been

required.” The “employer bears the burden of proof that conditions for the

exceptions have been met.” 20 C.F.R. § 639.9. To satisfy these conditions, the

defending party must establish that (1) the circumstance was unforeseeable, and

(2) the layoffs were caused by that circumstance. See Roquet v. Arthur Andersen

LLP, 398 F.3d 585, 588 (7th Cir. 2005).

A. Foreseeability

An “important indicator of a business circumstance that is not reasonably

foreseeable is that the circumstance is caused by some sudden, dramatic, and

unexpected action or condition outside the employer’s control.” 20 C.F.R. 

§ 639.9(b)(1). For example, a “principal client’s sudden and unexpected

termination of a major contract with the employer . . . might . . . be considered a

business circumstance that is not reasonably foreseeable.” Id. The regulations

instruct that the test for foreseeability “focuses on an employer’s business

judgment. The employer must exercise such commercially reasonable business

judgment as would a similarly situated employer in predicting the demands of its
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particular market.” Id. § 639.9(b)(2). The Department of Labor has indicated

that the exception should not be narrowly construed, that we apply an objective

test to analyze the “commercial reasonableness of the employer’s actions,” and

that “[e]ach claim of unforeseeable business circumstances must be examined on

its own merits . . . in terms of whether the employer reasonably . . . could not

foresee that the event would occur . . . .” Employment and Training

Administration, 54 Fed. Reg. 16,042, 16,061-63 (April 20, 1989) (codified at 20

C.F.R. pt. 639).

Plaintiffs argue that the grant of summary judgment was improper because

they presented a genuine issue of material fact as to whether the unforeseeable

business circumstance exception applied to HHC. See Aplt. Br. 7-14. They argue

that the facts relied upon by the district court were legally insufficient and not

conclusively established. The disputed facts are as follows: (1) that HHC and

United had suffered through similar business difficulties before and their

relationship had survived, (2) that HHC had reason to believe its financial

position would improve over time, and (3) that HHC had reason to believe its

relationship with United would continue because of a long-standing relationship

between the parties. See Aplt. Br. 8-9.

In Loehrer v. McDonnell Douglas Corp., the Eighth Circuit explored the

application of the unforeseeable business circumstance exception, stating that, in
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light of the commercially reasonable business judgment test, the WARN Act

necessarily recognize[s] that even the most conscientious employers

are not perfect, and . . . thus allow[s] needed flexibility for

predictions about ultimate consequences that, though objectively

reasonable, proved wrong. So long as it may still fairly be said that

the eventual plant closing or mass layoff is caused by a sudden,

dramatic, and unexpected event outside the employer’s control, the

exception applies.

98 F.3d 1056, 1061 (8th Cir. 1996). Just as in that case, where the United States

government withdrew its support for a new fighter plane, resulting in private

contractors laying off employees, we believe that the facts of the instant case also

“fall squarely within the exception for unforeseeable business circumstances.” Id.

at 1062. Moreover, we take heed of the Fifth Circuit’s reasoning that “it is the

probability of occurrence that makes a business circumstance ‘reasonably

foreseeable’ and thereby forecloses use of the [exception] to the notice

requirement. A lesser standard would be impracticable.” Halkias v. Gen.

Dynamics Corp., 137 F.3d 333, 336 (5th Cir. 1998); see also Watson v. Mich.

Indus. Holdings, Inc., 311 F.3d 760, 765 (6th Cir. 2002) (“WARN was not

intended to force financially fragile, yet economically viable, employers to

provide WARN notice and close its doors when there is a possibility that the

business may fail at some undetermined time in the future. Such a reading of the

Act would force many employers to lay off their employees prematurely . . . .”). 

Therefore, we do not rely on the mere possibility that layoffs will occur, but
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rather look for their probability.

At the end of 2003, HHC was experiencing “financial difficulties that

affected its relationship with its largest customer, United.” Gross, 2006 WL

2666993, at *9. These difficulties culminated in United’s January 8, 2004, letter,

indicating that it would be placing orders with other suppliers and that HHC

should not be “surprised that the orders from United [would] declin[e].” Aplt.

App. 100-02. As noted above, the stockouts at the close of 2003 had increased

from the same time the year before, and United’s orders had decreased in the

same fashion. Aplt. App. 168, 173. However, even with these facts known to it,

United simply did not decide until its January 15, 2004 letter to terminate its

primary supplier relationship with HHC. Aplt. App. 103-04

While HHC was aware of United’s dissatisfaction, that knowledge alone

does not bar the application of the unforeseeable business circumstance exception. 

See Loehrer, 98 F.3d at 1062. Rather, an objective focus is required—whether a

“similarly situated employer in the exercise of commercially reasonable business

judgment would have foreseen” United’s withdrawal. Elsinore Shore, 173 F.3d at

186. In this evaluation, “we consider the facts and circumstances that led to the

[layoffs] in light of the history of the business and of the industry in which that

business operated.” Id. While the situation leading up to United’s eventual

termination of the primary supplier relationship “would undoubtedly raise the
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eyebrows of any prudent businessperson,” Loehrer, 98 F.3d at 1062, the evidence

does not suggest that United’s decision was reasonably foreseeable prior to

HHC’s receipt of the January 15 letter. For thirty-one years, United’s relationship

with HHC had flourished, and even when stockouts reached a new high in early

2004, United still confirmed its interest in doing business with HHC. See Aplt.

App. 100-01; see also Local Union 7107 v. Clinchfield Coal Co., 124 F.3d 639,

643 (4th Cir. 1997) (indicating that a thirty-year business relationship contributes

to an employer’s expectation that the relationship would continue). In fact,

United, in its January 8 letter, indicated that it valued its longstanding

relationship with HHC a great deal, reiterated that the relationship had provided

mutual benefit over the years, and acknowledged its hope that the LaSalle loan

negotiations would close successfully. Aplt. App. 100. Moreover, even though

HHC’s warehouse operations had been disrupted, LaSalle continued to gather

information concerning HHC to determine whether it would approve a sizeable

loan and remained “positive” about the financing even in December 2003. See

Aplt. App. 96-98, 120-25, 191. In addition, HHC’s own attorneys indicated that

the company should focus on “turnaround efforts,” and stated that the “avoidance

of bankruptcy filings” was one of its primary goals, in addition to “planning for

the possibility, however remote, of bankruptcy filings.” Aplt. App. 162.

Free enterprise always involves risk, yet most businesses operate as going

concerns, notwithstanding those risks. Business downturns in a cyclical economy
- 15 -

are not unusual, and we should not burden employers with the “task of notifying

employees of possible contract cancellation and concomitant lay-offs every time

there is a cost overrun” or similar difficulty. Halkias, 137 F.3d at 336. Such an

indiscriminate practice could undermine morale, let alone exacerbate the problem. 

Such difficulties are invariable, and “most often do not lead to contract

cancellation.” Id. Here, HHC experienced the loss of a major customer in a very

short period of time on top of all of its other difficulties; HHC met its summary

judgment burden of establishing that United’s January 15, 2004, withdrawal,

while always a possibility, was unforeseeable.

B. Causation

Plaintiffs further argue that HHC failed to establish causation. 

Specifically, Plaintiffs dispute that United’s termination of HHC as its primary

supplier effected no actual change in the amount of business HHC was conducting

with United, and that therefore the January 15 announcement was not the “cause”

of the layoffs. See Aplt. Br. 13; see also 29 U.S.C. § 2102(b)(2)(A) (“An

employer may order a . . . mass layoff before the conclusion of the 60-day period

if the . . . mass layoff is caused by business circumstances that were not

reasonably foreseeable as of the time that notice would have been required.”).

We disagree. Plaintiffs point to other HHC financial problems that could

have contributed to the layoffs; however, we can find no evidence in this record
- 16 -

to support the claim that United’s withdrawal was not the ultimate “straw that

broke the camel’s back.” Aplt. App. 78 (testimony of Robert Hawk, Sr., former

chairman and chief executive officer of HHC). Plaintiffs’ main argument is that

United’s withdrawal effected no actual change in the volume of business being

transacted between the two companies, and that therefore it could not have been

the cause of HHC’s decision to lay off its employees. See Aplt. Br. 13. A review

of the timeline of events leading to the layoffs refutes this claim. HHC’s decision

to shut down came in the immediate wake of United’s withdrawal. While it had

been suffering from financial troubles for months, as evidenced by its

negotiations with LaSalle, its struggles with subsidiary companies, and the

increasing number of stockouts, the decision to lay off employees only came

when it received the withdrawal letter from United. In fact, up until that point,

HHC had repeatedly communicated with United that HHC was about to “turn[]

the corner.” Aplt. App. 102. The downturn was not industry-wide, given that

United’s new supplier was “doing a lot better job of meeting United’s needs” and

was providing better pricing, promotions, and rebates. Aplt. App. 104. 

Moreover, that the January 15 withdrawal may not have affected the actual

volume of business being conducted between the two companies is of no

import—the fact remains that HHC had a reasonable hope that business would

improve with the LaSalle financing and that United would maintain the

relationship. See Jones v. Kayser-Roth Hosiery, Inc., 748 F. Supp. 1276, 1285-86
- 17 -

(E.D. Tenn. 1990) (holding that the loss of a major account satisfied the causation

prong of the unforeseeable business circumstance exception). With United’s

withdrawal, hope was vitiated—HHC permanently lost forty percent of its

potential business and operating the warehouse profitably was even less likely. 

The facts here unequivocally support the conclusion that United’s withdrawal was

the cause of HHC’s decision to lay off its workers.

II. Required Notice

The unforeseeable business circumstance exception also requires an

employer to “give as much notice [of the layoff] as is practicable” upon

knowledge of the causal event. 29 U.S.C. § 2102(b)(3). Plaintiffs argue that a

jury could have found in their favor that the written notice given to employees in

their paychecks on January 22, 2004, was not delivered as soon as practicable. 

See Aplt. Br. 16. Other than pointing out that HHC knew of United’s withdrawal

on January 16, and that news of the layoffs were reported in the media on January

21, 2004, Plaintiffs offer no other evidence that HHC unduly delayed in advising

employees of the layoffs. Id. As discussed, HHC behaved in a commercially

reasonable way when it failed to foresee United’s withdrawal in the sixty days

leading up to the January 15 letter. HHC then took three business days to discuss

the matter with its financial advisers and lawyers, and acted quickly in light of the

devastating news. We do not think HHC violated the WARN Act’s notice
- 18 -

requirements, nor did it act unreasonably, in taking just three business days to

determine whether “it could survive the carnage.” Roquet, 398 F.3d at 590

(stating that a “company, faced with [an] unprecedented cataclysmic event,

reasonably needed a little time to assess how things would shake out” before

delivering notice to its employees). The district court properly granted summary

judgment on this issue as well.

AFFIRMED.