Nancy R. Hamburger sued PFM Capital Management, Inc., an investment advisory company, alleging that PFM mismanaged her retirement account by making risky and unsuitable investments and failing to diversify her holdings.1 Specifically, Hamburger sought to recover damages for breach of fiduciary duty, breach of contract, negligence, fraud, and intentional infliction of emotional distress. PFM filed a motion for summary judgment, alleging that Hamburger’s claims were time-barred, and the trial court granted the motion. Hamburger appeals, arguing that the trial court erred in finding that her claims were barred by the applicable statutes of limitation.2 For reasons that follow, we affirm in part and reverse in part. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.3 A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn therefrom, in a light most favorable to the nonmovant.4 Where the moving party has shown an absence of evidence to support any element of the non-moving party’s case, the non-moving party cannot rest on its pleadings, but must point to specific evidence creating a triable issue.5
So viewed, the evidence shows that as part of her divorce settlement in March 1998, Hamburger received approximately 31,000 shares of Coca-Cola stock. In February 1998, she retained PFM as her investment advisors to manage her assets —including the Coca-Cola stock —in her IRA held by Charles Schwab & Co., Inc. The parties entered into an agreement on February 9, 1998 which memorialized the parties’ “understanding of the terms and objectives of PFM’s engagement to provide Personal Financial Planning Services to Hamburger.” The agreement provided that in exchange for a management fee of 1 1/2 percent of the “investable assets,” PFM would analyze Hamburger’s financial information, provide a written analysis of her existing investments, and, after conferring with Hamburger, provide a finalized investment plan. The agreement described the limitations on the scope of services provided by PFM: These services are not designed, and should not be relied upon, as a substitute for a participant’s own business judgment, nor are they meant to mitigate the necessity of a participant’s personal review and analysis of a particular investment. These services are designed to supplement the individual’s own planning and analysis and aid the individual in fulfilling . . . her financial objectives. In addition, these services are not designed to discover fraud, irregularities, or misrepresentations made in materials provided to us concerning existing or potential investments. However, PFM had authority to execute stock trades without express permission from Hamburger. The parties also signed a separate document on February 9, 1998 entitled “Statement of Investment Policies, Objectives, and Guidelines for Nancy R. Hamburger.” The Statement explained that the desired rate of return was “10 per year and at least 4 per year, on average, above the rate of consumer price inflation over the investment time horizon” and that the parties “desired that the portfolio return surpass the Standard & Poor’s 500 total return over the investment time horizon.” The Statement also provided that: “there are no specific limitations on asset turnover levels”; there are no specific guidelines on the number of different securities to own, but . . . good diversification will be a key ongoing objective”; and “these objectives are in no way a guarantee that the goals outlined herein will be achieved.” Pursuant to the Statement, PFM was required to provide Hamburger quarterly communications “reviewing the account holdings, transactions over the recent quarter, performance, and the economic environment.” PFM sent Hamburger quarterly statements as required by the parties’ agreement. The statements included a summary of the investments and activity in Hamburger’s IRA account, including, inter alia, the dollar value of the account, the type and percentage of investments in the account, the percentage of gain or loss for each investment and the account as a whole, a description of the investments, with the value and price per share of the investment when bought or sold, and a list of all transactions in the account.
