(dissenting):
¶ 13 Procedurally, SEL’s claims were dismissed entirely in September 2005 when the trial court ruled that there was a lack of privity and applied the economic loss rule, thereby foreclosing SEL’s breach of contract and negligence claims respectively. In October 2006, the trial court dismissed SDC’s breach of contract claim for failing to timely produce evidence of damages. Finally, in December 2006, a stipulation was entered into by which SDC, as the only remaining “Plaintiff,” agreed to settle the lone outstanding claim against RB & G and waive its right to appeal the October 2006 summary judgment order. The issues before us on appeal are focused on the summary judgment entered against SEL in September of 2005.
¶ 14 The majority fails to analyze the central issue presented: whether SEL was in privity with RB & G for purposes of asserting a breach of contract claim. The trial court dismissed SEL’s case at the summary judgment stage for a lack of privity. Yet, my colleagues do not even attempt to address whether this determination was in error. Instead, they skip ahead and use the trial court’s later dismissal of SDC’s breach of contract claim, on procedural grounds, as retroactive justification for thwarting SEL’s appeal.
¶ 15 Privity is a paramount consideration in this case. If the trial court was wrong about SEL’s privity with RB & G, which I believe it was, then SDC’s claim should have never gone forward as it did. SEL, as the assignee, is the proper party to litigate the breach of contract claim. The effect of the majority’s opinion is to require an assignee like SEL to rely upon its assignor to litigate the issue of damages against the obligor. This line of reasoning is contrary to the rule that assignees stand in the shoes of their assignors. See 6 Am.Jur.2d Assignments *648§ 144 (1999). Although an assignee’s damages are limited to those damages the assign- or would have suffered, the assignee should not be required to depend upon the assignor to litigate on its behalf. The majority pays lip service to the notion that SEL and SDC should be treated as separate and distinct entities and then effectively treats them as one, binding SEL to the result of SDC’s failed litigation, ostensibly because the two corporate entities are run by the same person.
¶ 16 In affirming, the majority also ignores evidence in the record that should have moved SEL’s claim past summary judgment. In April 2005, more than a year before the trial court’s deadline for submitting evidence of damages, SDC principal Stephen Stewart filed a sworn affidavit with the trial court. The affidavit outlined, in specific dollar amounts, SDC’s. damages resulting from the failure of RB & G to detect the pertinent faults on the Property. This “one sworn statement” is sufficient to create a genuine issue of material fact. Holbrook Co. v. Adams, 542 P.2d 191, 193 (Utah 1975). The record shows that the trial court’s vague parenthetical reference to the affidavit as a “generalized summary,” stated in the order dismissing SDC’s claim for failure to prove damages, amounts to an impermissible consideration of the weight or credibility of evidence at the summary judgment stage. See Sandberg v. Klein, 576 P.2d 1291, 1292 (Utah 1978).
¶ 17 Finally, the majority has not addressed SEL’s alternative argument on appeal, namely that the economic loss rule should not bar its claim of negligence. Without explanation, my colleagues conclude that their decision is dispositive and they need not consider SEL’s alternative arguments on appeal. But because they hold that SEL has no contractual claim to pursue, my colleagues must deal with SEL’s alternative argument for negligence.
¶ 18 For the foregoing reasons, I respectfully dissent. In my view, SEL should be allowed to pursue its breach of contract claim against RB & G and prove damages in accordance with the law of assignments. I would therefore reverse the summary judgment and remand for further proceedings on SEL’s claim for breach of contract.