Nationwide Mutual v. Eagle Window

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Nationwide Mutual Insurance Company and Gilliam
Construction Company, Inc., Respondents,
v.
Eagle Window & Door, Inc., Appellant.
Appellate Case No. 2014-001151
Appeal From Spartanburg County
J. Mark Hayes, II, Circuit Court Judge
Unpublished Opinion No. 2016-UP-168
Heard November 12, 2015 – Filed April 6, 2016
AFFIRMED AS MODIFIED
G. Dana Sinkler, Gibbs & Holmes, of Wadmalaw Island,
for Appellant
Jason Michael Imhoff and Carl Reed Teague, The Ward
Law Firm, PA, both of Spartanburg, for Respondents.
FEW, C.J.: Eagle Window and Door, Inc. (Eagle) appeals the circuit court's order
finding Eagle is a "mere continuation" of Eagle & Taylor Company d/b/a Eagle
Window and Door, Inc. (EWD) and therefore liable to Nationwide Mutual
Insurance Company (Nationwide) for contribution under a theory of successor
liability. We affirm as modified.
I. Facts and Procedural History
Gilliam Construction Company, Inc. (Gilliam) contracted with Renaul and Karen
Abel for the construction of their home in Spartanburg County in 1999 and 2000.
After the project was completed, the Abels discovered certain defects and
deficiencies in the home—including leaking windows—and invoked the arbitration
clause in their contract with Gilliam. Between the time the windows were made by
EWD and the discovery of the defects, EWD's parent company, American
Architectural Products Corporation (AAPC) filed for bankruptcy. The assets of
EWD were sold to EWD Acquisition, Co., a corporation wholly owned by
Linsalata Capital Partners Fund IV, L.P., (Linsalata) and created solely to buy the
assets. The consideration paid was $64,750,000. EWD Acquisition, Co. thereafter
changed its name to Eagle Window and Door, Inc. (Eagle).1 Eagle was invited to
participate in the arbitration under the Abel/Gilliam construction contract, but
declined. The Abels' claim was settled by Nationwide and its insured Gilliam2 for
$235,000.3
Nationwide then instituted this contribution action against various defendants,
including Eagle, under the Uniform Contribution Among Tortfeasors Act (the
Act)4 to recover the settlement costs. Nationwide argued Eagle was a "mere
continuation" of EWD rendering Eagle liable for contribution to the settlement.
Nationwide presented affidavits, requests to admit, and responses to interrogatories
1
Nationwide Mut. Ins. Co. v. Eagle Windows & Doors, Inc., 394 S.C. 54, 714
S.E.2d 322 (2011).
2
Because Gilliam paid a portion of the settlement amount—$10,000 in cash and
waived $25,000 owed—both it and Nationwide are plaintiffs in this contribution
action. However, for the sake of simplicity, we will generally refer to Nationwide
as the party seeking contribution.
3
The settlement agreement between the parties alludes only to payment of
$210,000 as consideration for the Abels' release of their claims. However,
Nationwide presented evidence Gilliam also waived approximately $25,000 owed
to it by the Abels under the contract as additional consideration for the settlement.
4
S.C. Code Ann. §§ 15-38-10 to -70 (2005 & Supp. 2015).
regarding the corporate structure of EWD, AAPC, Eagle, and Linsalata—the
commonality of officers, directors, and shareholders being central to the issue of
successor liability.
The officers of EWD and Eagle are listed below.
EWD Officers Eagle Officers
Chairman Chairman Stephen Perry (Sr.
V.P. & CFO of
Linsalata)
President David Beeken President David Beeken
Executive V.P. Charles Daoud Executive V.P. Charles Daoud
V.P. of Finance Steven Stoppelmoor V.P. of Finance Steven Stoppelmoor
V.P. of Engineering Ronald Vander Weerd V.P. of Engineering Ronald Vander Weerd
Treas. & Asst. Scty. Treas. & Asst. Scty. Gregory L. Taber
Secretary Jonathan Schoenike Secretary Ronald H. Neill
Controller Andrew Wickman Controller Andrew Wickman
With respect to directors and shareholders, EWD was a wholly-owned subsidiary
of AAPC. At the time of bankruptcy, AAPC was owned primarily by George
Hofmeister who controlled approximately 73% of the shares. AAPC had two
directors, Hofmeister and Joseph Dominijanni. Neither Hofmeister nor
Dominijanni owns any interest in Linsalata or Eagle.
Stephen Perry, Vice President and Chief Financial Officer of Linsalata, named
himself and two additional persons as directors for Eagle—Frank Linsalata and
Ronald Neill, an attorney for Linsalata. David Beeken was later added as a
director. The record demonstrates the carry-over officers from EWD to Eagle were
given a minor ownership interest in Eagle, as delineated in the chart below.
Eagle Ownership
Linsalata 87.9%
Mass Mutual Life Ins. Co. 6.3%
David Beeken 1.7%
Charles A. Doud 1.6%
Ronald Vander Weerd .2%
Andrew Wickman >.00005%
With respect to the operation of the companies, the parties do not dispute that
Eagle remained in the same facilities, continued manufacturing windows and
doors, retained the same employees, and essentially held itself out as an ongoing
business.
The circuit court concluded Eagle was a mere continuation of EWD stating, "a
review of Eagle's own website establishes that Eagle is a mere continuation of its
predecessor corporation . . . . It is clear from that marketing material that Eagle
considers itself a separate and autonomous entity which has designed and
manufactured windows in the same city for a century and a half, despite its
numerous parent companies." The circuit court stated that even if mere
continuation required commonality of officers, directors, and shareholders,
Nationwide had proven "that officers, directors, and stockholders remained in the
successor corporation from the predecessor corporation."
With respect to its right to contribution, Nationwide presented the testimony of
William R. Still, a forensic engineer, and Cindy Thomas, a Nationwide
representative. Still testified the Abels' windows were defective and caused
damage to their home totaling approximately $211,000. Cindy Thomas testified
two other defendants, Window and Door Concepts, Inc., the window seller, and
Hobbit Plastering, the stucco applicator, settled the contribution claims against
them for $24,000 and $41,000, respectively.
Nationwide moved, over Eagle's objection, to dismiss the other remaining
defendants, and the circuit court granted the motion.
The circuit court determined Eagle was the party responsible for the Abels'
damages and ordered Eagle to pay $117,500, half of the $235,000 settlement, as its
pro rata share under the Act. The circuit court further determined that the damages
were liquidated and awarded Nationwide prejudgment interest amounting to
$70,258.42.
II. Issues on Appeal5
5
We have consolidated some of the issues listed by Eagle.
1. Did the circuit court err in ruling Eagle is liable to Nationwide under a
theory of successor liability?
2. Did the circuit court err in finding Nationwide did not fail to plead or
prove a design or manufacturing defect in the windows?
3. Did the circuit court err in finding Nationwide was entitled to recover
$25,000 for the amount it contends Gilliam "waived" as payment
under its contract with the Abels?
4. Did the circuit court err in permitting Nationwide to unilaterally
release Eagle's codefendants?
5. Did the circuit court err in determining the amount Eagle should pay
in contribution?
6. Did the circuit court err in allowing prejudgment interest?
III. Standard of Review
"In an action at law tried without a jury, the trial judge's findings have the force
and effect of a jury verdict upon the issues and are conclusive on appeal when
supported by competent evidence." Mathis v. Brown & Brown of S.C., Inc., 389
S.C. 299, 307, 698 S.E.2d 773, 777 (2010). "Accordingly, [an appellate court's]
scope of review is limited to determining whether the findings are supported by
competent evidence and correcting errors of law." Id."In an action in equity, tried by the judge alone, without a reference, the appellate
court has jurisdiction to find facts in accordance with its view of the preponderance
of the evidence." Mazloom v. Mazloom, 382 S.C. 307, 316, 675 S.E.2d 746, 751
(Ct. App. 2009). A contribution action is enforced in equity and reviewed under an
equitable standard. RIM Assocs.' v. Blackwell, 359 S.C. 170, 179, 597 S.E.2d 152,
157 (Ct. App. 2004).
This appeal requires us to use a split standard of review in that the determination of
whether Eagle is a mere continuation is an action at law, but Nationwide's overall
entitlement to contribution is a matter arising in equity.
IV. Successor Liability
"[I]n the absence of a statute, a successor or purchasing company ordinarily is not
liable for the debts of a predecessor or selling company unless (1) there was an
agreement to assume such debts, (2) the circumstances surrounding the transaction
warrant[s] a finding of a consolidation or merger of the two corporations, (3) the
successor company was a mere continuation of the predecessor, or (4) the
transaction was entered into fraudulently for the purpose of wrongfully defeating
creditors' claims." Simmons v. Mark Lift Indus., Inc., 366 S.C. 308, 312, 622
S.E.2d 213, 215 (2005) (footnote omitted) (citing Brown v. Am. Ry. Express Co.,
128 S.C. 428, 123 S.E. 97 (1924)). "[T]he majority of courts interpreting the mere
continuation exception have found it applicable only when there is commonality of
ownership, i.e., the predecessor and successor corporations have substantially the
same officers, directors, or shareholders." Simmons, 366 S.C. at 312 n.1, 622
S.E.2d at 215 n.1 (emphasis omitted). In Nationwide, the supreme court reversed
the dismissal of Nationwide's contribution claim, stating, "If [Nationwide] can
establish that [Eagle]'s conduct meets one or more of the Brown tests, then [Eagle]
may be liable to [Nationwide]." Nationwide, 394 S.C. at 61, 714 S.E.2d at 326.
We find the evidence supports the circuit court's finding that Eagle is liable to
Nationwide because Eagle was a mere continuation of EWD.
Eagle continued manufacturing windows and doors in the same location with the
same name and capitalizing on that continuity in its website marketing. Of the
eight officers appointed to Eagle post sale, five were officers of pre sale Eagle.
Among those five officers were the President and CEO, Executive Vice President,
Vice President of Finance, Vice President of Engineering, and Controller.
Eagle's own website demonstrates Eagle is merely a continuation of its former self.
Eagle accepted and benefited from the goodwill, name recognition, and history of
the Eagle brand. Further, Eagle continued to occupy the same space and
manufacture the same products with the same employees. It marketed,
manufactured, and continued to sell the same products under the same company
name. This evidence supports the circuit court's factual findings.
Eagle also argues the circuit court erred in examining Eagle as the successor
corporation when Linsalata—Eagle's parent company—was the purchaser of
EWD's assets. We disagree. The actual purchaser of EWD's assets was EWD
Acquisition, Co., which eventually became Eagle. Therefore, the circuit court
appropriately focused its examination on Eagle, not Linsalata.
V. Contribution—Failure to Plead Defect
Eagle argues Nationwide was not entitled to any recovery because it failed to plead
or prove a design or manufacturing defect in the windows. Eagle is correct that
Nationwide's complaint does not allege a specific window defect but alleges only
that "Plaintiffs and Defendants have a common liability to the Plaintiffs in the
underlying action." However, we find the issue was tried by the circuit court with
the consent of all parties. See Rule 15(b), SCRCP ("When issues not raised by the
pleadings are tried by express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the pleadings. Such amendment
of the pleadings as may be necessary to cause them to conform to the evidence and
to raise these issues may be made upon motion of any party at any time, even after
judgment; but failure so to amend does not affect the result of the trial of these
issues."). Therefore, the lack of any specific allegation in the complaint does not
defeat Nationwide's right of recovery. Moreover, Eagle does not mention or argue
this issue in its brief outside of listing it in the Statement of Issues on Appeal.
Therefore, we find this issue has been abandoned. See Wright v. Craft, 372 S.C. 1,
20, 640 S.E.2d 486, 497 (Ct. App. 2006) ("An issue raised on appeal but not
argued in the brief is deemed abandoned and will not be considered by the
appellate court.").
VI. Contribution—$25,000 Waiver by Gilliam
Terri Gilliam testified that as part of Gilliam's settlement with the Abels, Gilliam
waived $25,000 owed for construction work on the Abels' home. The circuit court
considered this waiver as though it were money paid by Gilliam to the Abels in
assessing the amount subject to contribution in this case. Eagle alleges this was
error because the Settlement Agreement between the parties did not mention the
waiver of the $25,000 as consideration for the settlement. We disagree.
Nationwide introduced a letter in which Renaul Abel admitted that amount was
owed. The contribution complaint mentions this waiver as part of the settlement,
and Terri Gilliam testified to that as well. Thus, the evidence supports the circuit
court's decision to include this waiver in the overall settlement amount, and we
affirm on this issue.
VII. Contribution—Unilateral Release of Codefendants
"[A] plaintiff has the sole right to determine which co-tortfeasor(s) she will sue."
Chester v. S.C. Dep't of Pub. Safety, 388 S.C. 343, 345-46, 698 S.E.2d 559, 560
(2010). "A ruling that a [] defendant can compel a plaintiff to join other alleged
tortfeasors as defendants in that suit would overturn this firmly entrenched
common law principle. Moreover, a . . . ruling that where these defendants cannot
be joined because they have already settled with the plaintiff, the action must be
dismissed, would thwart our strong public policy favoring the settlement of
disputes." Chester, 388 S.C. at 346, 698 S.E.2d at 560.
Nationwide had the right to release any remaining codefendants from the case, and
we affirm the circuit court's ruling permitting them to do so.
VIII. Contribution—Pro Rata Share
Section 15-38-20(A) of the South Carolina Code (2005) provides "where two or
more persons become jointly or severally liable in tort for the same injury to
person or property or for the same wrongful death, there is a right of contribution
among them even though judgment has not been recovered against all or any of
them." Section 15-38-30 of the South Carolina Code (2005) sets forth how the
court is to determine each party's share of liability in a contribution action. "In
determining the pro rata shares of tortfeasors in the entire liability (1) their relative
degrees of fault shall not be considered; (2) if equity requires, the collective
liability of some as a group shall constitute a single share; and (3) principles of
equity applicable to contribution generally shall apply." Id.
In this case, the circuit court split the total amount of damages for which
Nationwide sought contribution evenly between Gilliam and Eagle. This was
error. The settlement agreement indicates the Abels alleged "construction related
defects" including "deficiencies in the framing, window installation, stucco
application, windows, paving, subgrade water barrier, generator, chimney, and
flooring systems." Having paid a settlement to extinguish all those claims,
Nationwide then sought contribution from all defendants alleging they shared a
"common liability" for the settlement.
As previously discussed, Nationwide was permitted to dismiss defendants from the
contribution action. However, it was inequitable for the circuit court to ignore
Nationwide's settlements with the window seller ($24,000) and stucco applicator
($41,000). Nationwide is afforded a windfall when Eagle's pro rata share is added
to the two prior settlement amounts. Section 15-38-30 permits the pro rata share of
multiple tortfeasors to be combined into one share if equity requires. In this case,
Still's testimony indicated Eagle was primarily at fault for the leaky windows and
resulting damage. Therefore, it would be reasonable and fair to combine the two
defendants who settled into one share and give Gilliam and Eagle one share each,
leaving a denominator of three. By this calculation, Eagle's pro rata share in
contribution should be $78,333.33.
IX. Contribution—Prejudgement Interest
"The law allows prejudgment interest on obligations to pay money from the time
when, either by agreement of the parties or operation of law, the payment is
demandable and if the sum is certain or capable of being reduced to certainty."
Smith-Hunter Constr. Co. v. Hopson, 365 S.C. 125, 128, 616 S.E.2d 419, 421
(2005). "The fact that the sum due is disputed does not render the claim
unliquidated for the purposes of an award of prejudgment interest. The proper test
for determining whether prejudgment interest may be awarded is whether or not
the measure of recovery, not necessarily the amount of damages, is fixed by
conditions existing at the time the claim arose." Id. (citation omitted).
In this case, the circuit court erred in determining that the sum for which it found
Eagle liable was capable of precise determination at any time prior to trial. As
previously discussed, Nationwide filed its contribution action seeking $235,000.
Therefore, the total damages were determined. However, it alleged a common
liability for that amount between nine named tortfeasors and then proceeded to
settle with two tortfeasors for amounts ranging from $24,000 to $41,000. Not until
the time of trial did Nationwide dismiss the remaining defendants, reducing the
pool of potentially contributing tortfeasors. At best, Eagle could have guessed it
would owe one-ninth of the total claimed—or approximately $26,000. That
amount was speculative and is significantly less than the amount for which the
circuit court found it liable. Therefore, we find the circuit court erred in awarding
prejudgment interest.
X. Conclusion
For the reasons explained, Nationwide is entitled to judgment against Eagle for
contribution in the amount of $78,333.33, and the order of the circuit court is
AFFIRMED AS MODIFIED.
MCDONALD, J., concurs.
KONDUROS, J., dissenting:
I would conclude Eagle is not the mere continuation of EWD, and therefore, I
respectfully dissent. In Simmons, a dissenting Justice Burnett argued for a more
expansive view of the mere continuation exception based largely on principals of
equity and fairness. Simmons v. Mark Lift Indus., Inc., 366 S.C. 308, 318-19, 622
S.E.2d 213, 217-18 (2005) (Burnett, J., dissenting). He surmised a successor
company should not be able to take advantage of the good will and name
recognition of the prior business without also assuming its tort liability to injured
consumers. Id. at 323-24, 622 S.E.2d at 221. The majority in Simmons
specifically rejected this position in a footnote stating:
Essentially, the dissent advocates an expansion of the
mere continuation exception. However, as noted by the
dissent, the majority of courts interpreting the mere
continuation exception have found it applicable only
when there is commonality of ownership, i.e., the
predecessor and successor corporations have
substantially the same officers, directors, or
shareholders. We decline to extend the exception to
cases in which there is no such commonality of officers,
directors and shareholders.
Simmons, 366 S.C. at 312 n.1, 622 S.E.2d at 215 n.1. The Supreme Court of South
Carolina further maintained this position by declining to review Walton v. Mazda
of Rock Hill, 376 S.C. 301, 307, 657 S.E.2d 67, 70 (Ct. App. 2008), cert. denied
Oct. 8, 2008, which cited the Simmons footnote with approval as an essential
element for finding a mere continuation. Consequently, I view commonality of
ownership as a threshold question apart from other factors that may suggest a mere
continuation.
On appeal, Eagle posits a complicated question regarding what exactly is required
to establish commonality of ownership. In the previously cited Simmons footnote,
the majority used the disjunctive or in discussing the commonality of ownership
(same officers, directors, or shareholders) and in the following sentence used the
conjunctive and (same officers, directors, and shareholders). In Simmons, that
distinction did not matter because none of the officers, directors, or shareholders of
the two entities were common. Id. at 312, 622 S.E.2d at 215. Likewise, in Walton,
376 S.C. at 307, 657 S.E.2d at 70, commonality of officers, directors, and
shareholders was not an issue.
The case sub judice presents a closer question. Many of the officers of EWD also
became officers in Eagle, and David Beeken was eventually named a director of
Eagle. Relying on the or in Simmons, the circuit court concluded because one of
the three positions—in this case officers—overlapped, the mere continuation
exception was satisfied.6 By affirming the circuit court, the majority implicitly
agrees. Eagle contends this interpretation of commonality of ownership is
erroneous, and I agree.
Although this issue has not been elucidated in South Carolina jurisprudence,7 some
Virginia cases offer guidance as to the importance of shareholder continuity in
establishing a mere continuation. In applying Virginia's traditional view of the
6
The circuit court also concluded EWD and Eagle shared officers, directors, and
shareholders, but that is not borne out by the record. According to the order, the
circuit court relied on Eagle's answers to interrogatories dated October 28, 2011, in
reaching this conclusion. However, the interrogatories indicate the relevant
officers own a minor stock interest in the new company, Eagle, and make no
reference to any ownership in the old company. Additionally, Nationwide's
argument at the summary judgment hearing does not suggest a continuation of
shareholders as it asks the court to use the officers, directors, or shareholders
approach. Nationwide's counsel stated, "And, then, each of these folks here
[referencing the common officers] owns an interest in the successor corporation.
They become owners." Furthermore, the Affidavit of Stephen Perry states that to
the best of his knowledge, none of the officers of EWD had an ownership interest
in EWD. Admittedly, the affidavit of Jonathan Schoenike states "neither David
Beeken nor any of the others officers of [EWD] had control of AAPC, and if such
person had any ownership interest at all, such ownership interest would not have
amounted to more than between one-tenth to one one-hundredth percent of
AAPC." However, this statement seems too equivocal to establish an ownership
interest in AAPC or EWD, particularly in light of Nationwide's position in this
litigation. Even if some overlap in ownership occurred, the record demonstrates it
was not substantial.
7
One unpublished federal district court of South Carolina case has indicated a lack
of common ownership will thwart a mere continuation claim. See Ashley II of
Charleston, L.L.C. v. PCS Nitrogen, Inc., 2007 WL 2893372, at *10 (D.S.C. Sept.
28, 2007) ("Under South Carolina law, the mere continuation exception is
applicable only where there is a commonality of ownership. DSM owned old
CNC. Andlinger owned new CNC. Therefore, in this case, new CNC was not the
mere continuation of old CNC because there was no commonality of ownership.").
mere continuation exception, courts have indicated identity of officers, directors,
and stockholders is a critical point. The federal district court of Virginia has found
"Among these three required factors (officers, directors, and stockholders), it
appears that identity of ownership is the most important component to sustain a
finding of mere continuation." Taylor v. Atlas Safety Equip. Co., 808 F. Supp.
1246, 1251 (E.D. Va. 1992); see also Kaiser Found. Health Plan of Mid-Atl. States
v. Clary & Moore, P.C., 123 F.3d 201, 205 (4th Cir. 1997) (applying Virginia law)
("The most critical element in proving a continuation is showing the same
ownership of the two companies, a 'common identity of the officers, directors, and
stockholders in the selling and purchasing corporations.'"); In re SunSport, Inc.,
260 B.R. 88, 105 (Bankr. E.D. Va. 2000) ("The most critical element in proving a
continuation is showing a common identity of the officers, directors, and
stockholders in the selling and purchasing corporations. Of these, identity of
ownership is the most important component to sustain a finding of mere
continuation." (citation omitted)).
Some treatises have also discussed the importance of shareholder continuity.
"[C]ourts taking the position that common identity of ownership is an
indispensable or the most important factor have routinely held that there can be no
mere continuation in the absence of continuity of shareholders, without regard to
whether the predecessor dissolved after the transfer . . . ." David J. Marchitelli,
Annotation, Liability of Successor Corporation for Injury or Damage Caused by
Product Issued by Predecessor, Based on Mere Continuation or Continuity of
Enterprise Exceptions to Nonliability, 13 A.L.R. 6th 355 (2006). Justice Burnett's
dissent in Simmons also recognized the narrowness of the mere continuation
exception. See Simmons, 366 S.C. at 317, 622 S.E.2d at 371 (Burnett, J.,
dissenting) (indicating the exception currently applies "only where the successor
has the same stockholders as the predecessor and conducts the same business with
the same management, facilities, employees, products, and trade names" (quoting
Phillip I. Blumberg, The Continuity of the Enterprise Doctrine: Corporate
Successorship in the United States Law, 10 Fla. J. Int'l L. 365, 371 (1996))).
In this case, there is no commonality of shareholders. EWD sold assets for
adequate consideration in an arm's length transaction. Linsalata bought the EWD
assets, and because Linsalata was not in the business of making windows and
doors, it retained many of the same people at Eagle to operate the business.
When the alleged successor receives value in the form of
the transferor's goodwill and continues to manufacture
products of the same sort as manufactured earlier by the
predecessor, and thus to some extent constitutes a
continuation of the predecessor, the general rule of
nonliability derives primarily from the law governing
corporations, which favors the free alienability of
corporate assets and limits shareholders' exposures to
liability in order to facilitate the formation and
investment of capital.
Restatement (Third) of Torts: Prod. Liab. § 12 cmt. a (Am. Law. Inst. 1998).
In my opinion, the Simmons majority's rejection of the "continuation of
operations" approach establishes South Carolina's position favoring the unfettered
transfer of assets between businesses in the absence of shareholder overlap.
Additionally, although the circuit court employed the "officers, directors, and
shareholders" test, I believe it overemphasized Justice Burnett's "continuation of
operations" approach in its analysis as evidenced by its opening statement that "a
review of Eagle's own website establishes that Eagle is a mere continuation of its
predecessor corporation."
Based on all of the foregoing, I would find Eagle is not a mere continuation of
EWD. Because that conclusion would be dispositive of the remaining issues on
appeal, I decline to address them. See Futch v. McAllister Towing of Georgetown,
Inc., 335 S.C. 598, 613, 518 S .E.2d 591, 598 (1999) (noting an appellate court
need not address appellant's remaining issues when its determination of a prior
issue is dispositive).