DEBORAH B. BARNES, Judge.
{1 This appeal involves an agreement "not to use during or after termination of employment or divulge to others any secret or confidential information," and allegations of trade secret misappropriation. - MTG Guarnieri Manufacturing, Inc., d/b/a Hearn Machine Tool (Hearn) is the former employer of Bradley Clouatre (Clouatre) and Bryan Jay (Jay). Hearn alleges that Clouatre and Jay breached their agreement with Hearn by using and divulging certain information acquired at Hearn to their current employer, Sooner Perforations and Machine Co., L.L.C. (Sooner Perforations). Hearn also alleges that Sooner Perforations's manager and sole owner, Dean Goforth (Goforth), its employee Jason Cherry (Cherry), Clouatre and Jay misappropriated Hearn's trade secrets. The trial court granted each defendant's motion for summary judgment and denied Hearn's new trial motion.
T2 Hearn timely appealed. The appeal has been assigned to the accelerated docket and stands submitted without appellate briefing pursuant to Oklahoma Supreme Court Rule 1.36, 12 0.8. Supp.2004, ch. 15, app. 1. After reviewing the record on appeal and applicable law and considering oral arguments presented to the panel by the parties on April 9, 2010, we find that the trial court erred in granting summary judgment because genuine issues of material fact remain. Therefore, we reverse the trial court's order granting summary judgment and its order denying Hearn's Motion for New Trial. We remand this case for further proceedings in a manner consistent with this Opinion.
UNCONTROVERTED FACTS
T3 The following material facts are uncon-troverted:
1. Clouatre and Jay, both welders, are former employees of Hearn.
2. Hearn is a manufacturing company which produces, pertinent to this appeal, perforated pipe for use in the oil and gas industry.
3. Neither Clovatre nor Jay had any experience perforating pipe prior to their employment at Hearn.
4. As Hearn employees, Clouatre and Jay each executed an agreement
containing, in pertinent part, the following: (1) "I shall not use during or after termination of employment or divulge to others any secret or confidential information," and (2) "I agree that upon termination of employment with the Company I will deliver to the Company all drawings, blueprints, manuals, formulas, customer lists and all other materials obtained during the period of my employment."
5. Hearn does not own any patents.
6. Jay was directly involved in the construction of Hearn's drill machine used to perforate pipes.
7. Any knowledge of the customers of Hearn attributable to Jay and Clouatre is from their memories and not from any tangible items taken from Hearn.
8. Clouatre and Jay are currently employed by Sooner Perforations.
9. Sooner Perforations is also in the business of perforating pipe, but, unlike Hearn, it uses plasma technology.
10. Clouatre, Jay, and Cherry are employees of Sooner Perforations, and Goforth is the manager and owner of Sooner Perforations.
PROCEDURAL BACKGROUND
14 Hearn filed its Petition on April 22, 2008, claiming misappropriation of trade secrets, breach of contract, tortious interference with business relations, conversion, and violation of standards of good faith and fair dealing. All defendants filed motions for summary judgment.
In a court minute filed February 18, 2009, the trial court sustained the summary judgment motions. The trial court's "Order Sustaining Motions for Summary Judgment" was filed on March 6, 2009. On February 20, 2009, Hearn filed a motion for new trial asking the trial court to reexamine its decision on defendants' Motions for Summary Judgment. In a Journal Entry filed on May 26, 2009, the trial court denied Hearn's motion for new trial. From this order, and from the "Order Sustaining Motions for Summary Judgment," Hearn appeals.
15 Hearn asserts the following issues in the Petition in Error: (1) the trial court failed to recognize the existence of material disputed facts and conflicting evidence that should have rendered summary judgment inappropriate; (2) the trial court erred by using 15 0.8.2001 § 2194 as a basis for its decision; and (8) the trial court failed to apply the correct law, including 78 0.$.2001 §§ 85-94. We find that the trial court erred because genuine issues of material fact remain. Therefore, we reverse and remand for further proceedings.
STANDARD OF REVIEW
T6 The standard of review for this appeal is as follows:
Summary process-a special pretrial procedural track pursued with the aid of acceptable probative substitutee-is a search for undisputed material facts which, sans forensic combat, may be utilized in the judicial decision-making process. Summary relief is permissible where neither the material facts nor any inferences that may be drawn from uncontested facts are in dispute, and the law favors the movant's claim or liability-defeating defense. Only those evidentiary materials which eliminate from trial some or all fact issues on the merits of the claim or defense afford legitimate support for nist prius resort to summary process for a claim's adjudication.
Summary relief issues stand before us for de novo review. All facts and inferences must be viewed in the light most favorable to the non-movant. Appellate tribunals bear the same affirmative duty as is borne by nisi privs courts to test for legal sufficiency all evidentiary material received in summary process in support of the relief sought by the movant. Only if the court should conclude there is no material fact (or inference) in dispute and the law favors the movant's claim or liability-defeating defense is the moving party entitled to summary relief in its favor. A trial court's denial of a motion for new trial is reviewed for abuse of discretion. Where, as here, our assessment of the trial court's exercise of discretion in denying defendants a new trial rests on the propriety of the underlying grant of summary judgment, the abuse-of-discretion question is settled by our de novo review of the summary adjudication's correctness. - Judicial discretion is abused when a trial court errs with respect to a pure, unmixed question of law.
Reeds v. Walker, 2006 OK 43, ¶¶ 8-9, 157 P.3d 100, 106-107 (footnotes omitted, emphasis added). See also Rule 13, Rules for District Courts of Oklahoma, 12 O.S. Supp. 2002, ch. 2, app.
ANALYSIS
T7 Hearn claims that Clouatre and Jay breached their agreements "not to use during or after termination of employment or divulge to others any secret or confidential information," and that all defendants misappropriated Hearn's trade secrets. The alleged "secret or confidential information" and trade secrets are (1) Hearn's customer information,
and (2) Hearn's methods, systems, and processes used to simultaneously perforate multiple pipe joints.
Hearn seeks, as remedies, monetary damages, unjust enrichment, and/or a permanent injunction against all defendants preventing them from using the secret or confidential information and trade secrets acquired by Clouatre and/or Jay during their employment with Hearn.
1. Hearn's Customer Information as "Secret or Confidential Information" Pursuant to the Agreement Signed by Clouatre and Jay
T8 Hearn claims that Clouatre and Jay breached their agreements "not to use during or after termination of employment or divulge to others any seeret or confidential information" by utilizing customer information of Hearn. Hearn does not simply allege that Clouatre and Jay took tangible customer lists.
Instead, Hearn states, for example, that Clouatre "had knowledge of our customer lists and pricing for our services."
(Emphasis added). In the deposition of Hearn's president, Matthew Guarnieri, pp. 4-5, he is asked to identify the secret or confidential information Clousatre allegedly utilized. Guarnieri identifies various factors, including "[the customer list to which we had. The known market that we operated within. The monies that were made from that process." (Emphasis added.)
19 Title 78 0.98.2001 § 92 states that the Uniform Trade Secrets Act (UTSA) does not affect contractual remedies, whether or not based upon misappropriation of a trade secret. To recover for a breach of contract, Hearn must show: 1) formation of a contract; 2) breach of the contract; and 3) damages as a direct result of the breach. Digital Design Group, Inc. v. Information Builders, 2001 OK 21, ¶ 38, 24 P.3d 834, 843.
10 Regarding the first element, it is undisputed that Clouatre and Jay signed agreements "not to use during or after termination of employment or divulge to others any secret or confidential information." Regarding the remaining elements, although "[als a general matter, '[clonfidential data regarding operating and pricing policies can ... qualify as trade secrets," the focus for determining whether the agreements were breached is not on whether Hearn's customer information qualifies as a trade secret under the UTSA. Southwest Stainless, LP v. Sappington, 582 F.3d 1176, 1189 (10th Cir.2009) (quoting Black, Sivalls & Bryson, Inc. v. Keystone Steel Fabrication, Inc., 584 F.2d 946, 952 (10th Cir.1978)). Instead, the focus is on whether the agreements signed by Clouatre and Jay were intended to protect Hearn's customer information. "A contract must be so interpreted as to give effect to the mutual intention of the parties, as it existed at the time of contracting, so far as the same is ascertainable and lawful." 15 0.98.2001 § 152. Whether it was the intent of the parties to protect Hearn's customer information as "secret or confidential information" in their agreements is unresolved and in dispute.
T 11 It is also disputed whether Clouatre and/or Jay actually utilized Hearn's customer information and did so to Hearn's detriment. For example, in Jay's motion for summary Judgment, he states that any loss of business on the part of Hearn is only the result of Hearn's higher prices, antiquated technique, and natural split in the market since the formation of Sooner Perforations.
Jay asserts that Hearn has no evidence that it has suffered any damages attributable to any
defendants in this case.
On the other hand, Guarnieri states in his affidavit that Sooner Perforations "has an unfair competitive advantage because it has not been required to spend the time and money invested by Hearn in developing its ... market. The loss of profits in Hearn's pipe perforating division caused by the unfair competition of Sooner will have a dramatic impact on the viability of the entire company.
Because genuine issues of material fact remain, the trial court erred in granting summary judgment on the issue of whether Clouatre and Jay breached their agreements "not to use during or after termination of employment or divulge to others any secret or confidential information."
2. Hearn's Pipe Perforating Methods, Systems, and Processes as a Trade Secret Pursuant to the UTSA
{12 In 1986 Oklszshoma adopted the UTSA, 78 0.82001 §§ 85-94.
To prove misappropriation of a trade secret, Hearn must show (1) the existence of a trade secret, (ii) misappropriation of the secret by defendants, and (iii) use of the secret to Hearn's detriment.
As detailed below, all three elements are in genuine dispute regarding Hearn's pipe perforating methods, systems, and processes.
i. Existence of a Trade Secret
(13 The UTSA sets forth the definition of a trade secret in Oklahoma; in addition, the Oklahoma Supreme Court has adopted six factors from the Restatement of Torts, § 757, Comment b (1989), to help determine whether information is a trade secret. Amoco Production Co. v. Lindley, 1980 OK 6, 609 P.2d 733. See also Australian Gold, Inc. v. Hatfield, 436 F.3d 1228, 1245 (10th Cir.2006).
The UTSA, § 86, defines a trade secret as:
[Information,
including a formula, pattern, compilation, program, device, method, technique or process, that:
a. derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and b. is the subject of efforts that are reasonable under the cireumstances to maintain its secrecy.
The Restatement factors are: (1) the extent to which the information is known outside of the business;
(2) the extent to which the information is known by employees and others involved in the business; (8) the extent of measures taken by the business to guard the secrecy of the information;
(4) the value of the information to the business and to competitors; (5) the amount of effort or money expended by the business in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. See Amoco Production Co. v. Lindley, 1980 OK 6, ¶ 41, 609 P.2d 733, 748. Whether information qualifies as a trade secret is a question of fact. See Central Plastics Co. v. Goodson, 1975 OK 71, ¶ 29, 537 P.2d 330, 333-35. See also Black, Sivalls & Bryson, Inc. v. Keystone Steel Fabrication, Inc., 584 F.2d 946, 951 (10th Cir.1978).
[14 Applying the UTSA's definition and the Restatement factors to this case, and viewing the facts in a light most favorable to Hearn, it is apparent that the issue of whether Hearn's perforation methods, systems and processes constitute a trade secret is a disputed issue of fact. In regard to the efforts employed by Hearn to maintain secrecy, Hearn has required its employees to sign an agreement requiring them not to "use during or after termination of employment or divulge to others any secret or confidential information." See supra. Moreover, Hearn asserts that the processes and methods it uses to perforate pipe cannot be duplicated by a casual observer of its operations and those who might have the ability or opportunity to replicate them are required to sign non-disclosure agreements.
Regarding the amount of effort or money expended by Hearn in developing the information, Hearn asserts that the research and development required to produce the processes and methods used in its perforating business were expensive and time consuming.
As to the
value of the information, Hearn asserts that the perforating portion of its business is the most luerative.
Finally, in regard to the information not being generally known, Hearn asserts that prior to Sooner Perforations's misappropriation, Hearn was the only company in the world drilling multiple pipe joints.
[15 The defendants dispute Hearn's claim that its perforating processes, methods, and techniques are a trade secret. They assert that Hearn did not attempt to obtain a patent or to take any legal action to protect its alleged trade secret other than to have Clouatre and Jay sign the agreements mentioned above.
They also assert that the process used by Hearn to perforate pipe is open to the public.
{16 Based upon the evidence presented at this stage in the litigation, we find that Hearn has shown "the reasonable probability, something beyond a mere contention, that [it] will be able to produce competent, admissible evidence at the time of trial which might reasonably persuade the trier of fact in [its] favor on the issue in dispute." Davis v. Leitner, 1989 OK 146, ¶ 15, 782 P.2d 924, 927. It is an issue in genuine dispute whether Hearn's methods, systems, and processes used to simultaneously perforate multiple pipe joints constitute a trade secret.
ti. Misappropriation of the Alleged Trade Secret
117 Although Sooner Perforations, unlike Hearn, uses "plasma technology" to perforate pipe, Hearn asserts that the system and method employed by Sooner Perforations is essentially the same as that employed by Hearn.
A well-established principle of trade secret law is that a party may not use another's genwine trade secret, even with independent improvements or modifications, so long as the product or process is substantially derived from the trade secret. American Can Co. v. Mansukhani, 742 F.2d 314, 328-29 (7th Cir.1984)
"If the law were not flexible enough to reach such modifications, trade secret protection would be quite hollow." Id.
{18 Hearn has attached an affidavit of its president, Matthew Guarnieri,
which states, in pertinent part, that Clouatre and Jay and a third person, in the presence of Hearn's president, "discussed adapting Hearn's pipe
perforating machine into a plasma machine. ..."
Hearn also cites to the deposition of Jay to support its assertion that Sooner Perforations adopted essentially the same process for perforating pipe as Hearn.
We find that Hearn has shown "the reasonable probability, something beyond a mere contention, that [it] will be able to produce competent, admissible evidence at the time of trial which might reasonably persuade the trier of fact" that Sooner Perforations's plasma technology is essentially the same as, or substantially derived from, Hearn's pipe perforating processes, methods, and techniques. Davis v. Leitner, 1989 OK 146, ¶ 15, 782 P.2d 924, 927.
119 Having determined that Sooner Perforations's plasma technology may be a misappropriation of Hearn's alleged trade secret, we must now analyze the defendants separately to determine if there is a genuine dispute as to whether they each may be found to have misappropriated Hearn's alleged trade secret.
Clouatre and Jay
120 Regarding the two former employees, Clouatre and Jay, the issue of misappropriation is in genuine dispute. Misappropriation is defined, in pertinent part, as the "disclosure or use of a trade secret of another without express or implied consent by a person who: ... (2) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was: ... (b) acquired under cireumstances giving rise to a duty to maintain its secrecy or limit its use...." 78 0.8.2001 § 86(2)(b). It is undisputed that both Clouatre and J: ay signed an agreement while employed by Hearn "not [to] use during or after termination of employment or divulge to others any secret or confidential information." Regarding Clouatre and Jay, the issue of misappropriation is in genuine dispute because its resolution depends upon two issues of disputed fact: whether the agreements gave rise to a duty to maintain the secrecy of Hearn's trade secrets, and whether Hearn's pipe perforation process is such a trade secret.
Cherry
121 Regarding Cherry, an employee of Sooner Perforations, the issue of misappropriation is also in genuine dispute. Misappropriation is defined, in pertinent part, as "acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means," and/or as "disclosure or use of a trade secret of another without express or implied consent by a person who: ... (2) at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was: ... (c) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use...." 78 0.8.2001 $ 86(2)(c). Hearn asserts in its Response to Cherry's Motion for Summary Judgment that Cherry recognized that the information about Hearn's methods shared with him by Cloua-tre and Jay was confidential and contained trade secrets. Hearn cites to Cherry's own deposition in support of this assertion.
Applying the pertinent language found in the UTSA for the definition of misappropriation, there is a substantial controversy whether Cherry misappropriated Hearn's alleged trade secret.
Goforth
122 Regarding Goforth, the manager and sole member
of Sooner Perfor-
ations, the issue of misappropriation by him in his individual capacity is also in genuine dispute. Misappropriation is defined, in pertinent part, as "acquisition of a trade seeret of another by a person who knows or has reason to know that the trade secret was acquired by improper means," and/or as "use of a trade secret of another without express or implied consent by a person who: ... (2) at the time of disclosure or use, knmrew or had reason to know that his knowledge of the trade secret was: ... (c) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use...." 78 O.S8.2001 § 86 (2) (emphasis added). Goforth claims that he was not involved with the day-to-day operations at Sooner Perforations,
that he merely assented to the business plan regarding entering the perforating pipe business communicated to him by Cherry,
and that there is no evidence that Goforth knew Clouatre and Jay were supposed to keep something secret.
However, Hearn asserts (citing to Goforth's deposition testimony) that Goforth "was advised of the wrongdoing of Jay and Clouatre and continued to compete against Hearn using the trade secrets and confidential information misappropriated by Sooner's] employees, Cherry, Jay and Cloua-tre.
Therefore, there is a genuine dispute whether Goforth knew that there was a trade secret that was improperly acquired. Furthermore, even if Goforth did not have knowledge of the impropriety, there is a substantial controversy whether Goforth had reason to know as the acting manager of Sooner Perforations that the alleged trade secret was acquired as a result of either or both Clouatre and Jay breaching their agreements with Hearn.
123 Goforth asserts that as a manager of a limited liability company he cannot be personally liable without facts of personal wrongdoing. Goforth cites as authority 18 0.9.2001 $ 2016(4), which states that "[a] manager is not liable for any action taken as a manager, or any failure to take any action, if the manager performed the duties of the office in compliance with the business judgment rule as applied to directors and officers of a corporation...." The business judgment rule in the context of corporate law relates to an action by a corporation or its shareholders against a director for breach of the director's duty of loyalty.
Therefore, this statute is inapposite. Go-forth further asserts the only action taken by him was in his capacity as the manager of Sooner Perforations, not as an individual. Hearn asserts that before Sooner Perforations was ever formed, Cherry, Clouatre and Jay had provided to Goforth a business plan with confidential information and trade secrets misappropriated by Jay and Cloua-tre.
« 24 "A person who is a member or manager, or both, of a limited liability company is not liable for the obligations of a limited liability company solely by reason of bring such member or manager or both." 18 O.S.
2001 § 2022. However, a manager of a limited liability company is liable for "[alets or omissions not in good faith or which involve intentional misconduct or a knowing violation of law...." 18 0.8. Supp.2004 § 2017(B)(Q). It is in dispute whether Goforth acted in good faith and did not engage in intentional misconduct or knowingly violate the law in performing his managerial duties for Sooner Perforations. If Goforth's actions were not in good faith and he knowingly violated the law, he is not shielded as a manager from personal liability.
Sooner Perforations
125 Hearn correctly argues that Sooner Perforations is bound by the knowledge of employees under the doctrine of respondeat superior. In general, a principal is bound by notice to or the knowledge of his agent in respect to the matters within the agent's authority. State of Oklahoma ex rel. Oklahoma Bar Association v. Scroggs, 2003 OK 21, 70 P.3d 821. Furthermore, in general, even if a principal did not authorize an agent's acts, if the principal accepts the benefits of his/her agent's acts, or if the reasonably prudent person would become aware of those benefits, then the principal ratifies the agent's acts if the benefits are retained. C.H. Stuart, Inc. v. Bennett, 1980 OK 135, 617 P.2d 879. Therefore, Hearn argues, Sooner Perforations, through its employees, had constructive knowledge of the alleged misappropriation and/or ratified their alleged misappropriation of Hearn's trade secret.
126 Respondeat superior is a legal theory that holds an employer liable for the willful torts of an employee acting within the scope of employment in furtherance of assigned duties. Schovanec v. Archdiocese of Oklahoma City, 2008 OK 70, 188 P.3d 158. See also Nelson v. Pollay, 1996 OK 142, 17 n. 23, 916 P.2d 1369, 1374 n. 23 (under the doctrine of respondeat superior, a principal or employer is generally held liable for those acts of an agent or employee which fall within the latter's employment or authority). Depending on the resolution of the disputed issues of fact regarding whether Sooner Perforations's _ employees _ misappropriated Hearn's trade secrets, Sooner Perforations may be bound by the acts of its employees in this case.
ii. Use of the Alleged Trade Secret to Hearn's Detriment
127 In Jay's motion for summary judgment he states that any loss of business on the part of Hearn is the result of Hearn's higher prices, antiquated technique and natural split in the market since the formation of Sooner Perforations.
Jay asserts that Hearn has no evidence that it has suffered any damages attributable to any defendants in this case.
In Goforth and Sooner Perforations's Motion for Summary Judgment, they assert that Hearn simply expects all pipe perforating business to belong to it.
On the other hand, Guarnieri states in his affidavit that Sooner Perforations "has an unfair competitive advantage because it has not been required to spend the time and money invested by Hearn in developing its pipe perforating systems and market. The loss of profits in Hearn's pipe perforating division caused by the unfair competition of Sooner will have a dramatic impact on the viability of the entire company."
Based upon this conflicting evidence, we find that there is a substantial controversy as to whether the use of this alleged trade secret by Sooner Perforations has caused detriment to Hearn.
128 We note that Hearn seeks monetary damages and/or restitution ("unjust enrichment") as remedies. Regarding monetary damages and unjust enrichment, the UTSA, § 88, states:
A. Except to the extent that a material and prejudicial change of position prior to
acquiring knowledge or reason to know of misappropriation renders a monetary recovery inequitable, a complainant is entitled to recover damages for misappropriation. Damages can include both the actual loss caused by misappropriation and the unjust enrichment caused by misappropriation that is not taken into account in computing actual loss. In lieu of damages measured by any other methods, the damages caused by misappropriation may be measured by imposition of liability for a reasonable royalty for a misappropriator's unauthorized disclosure or use of a trade secret.
B. If willful and malicious misappropriation exists, the court may award exemplary damages in an amount not exceeding twice any award made pursuant to the provisions of subsection A of this section.
However, Hearn primarily seeks an injunetion to protect its information. Regarding an injunction, the UTSA, § 87, states:
A. Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional reasonable period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation.
B. In exceptional cireumstances, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time for which use could have been prohibited. Exeep-tional cireumstances include, but are not limited to, a material and prejudicial change of position prior to acquiring knowledge or reason to know of a misappropriation that renders a prohibitive in-junetion inequitable.
C. In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order.
T29 "Only if the court should conclude there is no material fact (or inference) in dispute and the law favors the movant's claim or liability-defeating defense is the moving party entitled to summary relief in its favor." Reeds v. Walker, 2006 OK 43, ¶ 9, 157 P.3d 100, 106 (footnote omitted). We find all three elements-(1) the existence of a trade secret, (2) misappropriation of the secret by the defendants, and (8) use of the secret to the plaintiff's detriment-are in genuine dispute regarding the misappropriation of Hearn's pipe perforating methods, systems, and processes. We also find genuine issues of material fact regarding Hearn's claim that Clouatre and Jay breached their agreements "not to use during or after termination of employment or divulge to others any secret or confidential information." Therefore, we find that the trial court erred in granting summary judgment.
CONCLUSION
130 Hearn asserts in the Petition in Error that (1) the trial court failed to recognize the existence of material disputed facts and conflicting evidence that should have rendered summary judgment inappropriate; (2) the trial court erred by using 15 0.8.2001 § 219A as a basis for its decision; and (8) the trial court failed to apply the correct law, including 78 0.8.2001 §§ 85-94. Having found genuine disputes of material fact, we need not address all the other claims raised below-including tortious interference with business relations, breach of duty of good faith and fair dealing, and conversion-but remand this case to the trial court for further proceedings.
{31 After reviewing the record on appeal and applicable law and considering oral argu
ments presented to the panel by the parties on April 9, 2010, we find that the trial court erred in granting summary judgment because genuine issues of material fact remain. Therefore, we reverse the trial court's order granting summary judgment and its order denying Hearn's motion for new trial. We remand for further proceedings in a manner consistent with this Opinion.
132 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
WISEMAN, C.J., and FISCHER, P.J., concur.