Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 134th Judicial District Court Dallas County,
Texas, Trial Court Cause No. DC-16-12734
Justices Myers, Molberg, and Carlyle.
Greb appeals the trial court's take-nothing summary
judgment in favor of his former attorneys, Bret Madole and
Carrington, Coleman, Sloman & Blumenthal, LLP (Carrington
Coleman) (collectively, Attorneys), on his claims for
negligence, gross negligence, and breach of fiduciary duty in
a lawsuit stemming from Attorneys' alleged non-disclosure
of a conflict of interest between Greb, Greb's
then-business partner, and their jointly-owned business. In
three issues, Greb contends the trial court erred by granting
summary judgment and by dismissing his claims with prejudice,
because the summary judgment evidence raised a genuine issue
of material fact as to: (1) whether Attorneys' negligence
was the proximate cause of Greb's damages, (2) whether
Greb suffered damages as a result of Attorneys'
negligence, and (3) whether Carrington Coleman breached its
fiduciary duty to Greb.
principal question before this Court is whether Greb raised a
genuine issue of material fact on the causation element of
his claims. We conclude he did not. Accordingly, we affirm
the trial court's judgment.
recount the complicated history of the dispute subject of
this appeal only as necessary to resolve the question of
whether the trial court properly granted summary judgment on
Greb's claims for legal malpractice and breach of
fifteen years ago, Greb and Rick Johnson became co-owners of
a conglomeration of business enterprises and entities
(collectively, J&G). To secure loans from Citizens National
Bank of Waxahachie (CNB) on behalf of J&G (CNB Notes),
Greb and Johnson granted liens on J&G's assets. Greb
and Johnson also executed personal guaranties for
J&G's debt, and Greb pledged his personal assets-two
ranches and an apartment complex-as collateral for the loans.
defaulted on the CNB Notes, and in April 2014, Johnson
engaged Carrington Coleman and Bret Madole to represent
J&G, Greb, and Johnson in a lawsuit against CNB, who was
seeking to foreclose on J&G's assets as well as
Greb's personal assets. Attorneys filed suit against CNB
(CNB lawsuit), seeking a temporary restraining order (TRO) to
enjoin the foreclosure while Greb and Johnson attempted to
sell J&G or secure re-financing of their debt to CNB.
After the trial court granted the TRO, the parties entered
into a "stand-still" agreement, under which CNB
agreed to stay action on the foreclosure. The stand-still
agreement was extended by a series of rule 11 agreements,
which, in toto, gave Greb and Johnson fifteen months to sell
J&G or obtain re-financing.
and Johnson attempted to sell J&G to several companies.
In June 2014, Greb and Johnson signed a letter of intent to
sell J&G to AuSable Capital Partners (AuSable) for $20
million. The AuSable deal fell through when AuSable lowered
the purchase price to $15 million, which Greb believed to be
"significantly" less than J&G's value.
2013, 2014, and 2015, Greb contacted Hanson Building Products
(Hanson)-which later changed its name to Forterra-to discuss
a sale of J&G. The summary judgment evidence reflects
that Forterra and Greb were unable to agree on a purchase
price because of a "huge" gap in their respective
assessments of J&G's value. E-mails indicate that in
September 2015, Forterra was willing to pay approximately $20
million for J&G, and Greb was asking $35
million. Greb told Forterra that a purchase price
"in the $20 million range" would not "work for
him." Forterra did not make a formal offer or enter into
a letter of intent to purchase J&G, and ultimately,
Forterra "[took] a pass" on purchasing J&G.
2015, Greb and Johnson signed a letter of intent to sell
J&G to Baymark Partners (Baymark) for approximately $15
million. James Patterson of the law firm Hierche, Hayward,
Drakely & Urbach (HHDU) represented Greb on the Baymark
transaction. On July 30, 2015, Baymark provided a draft
Asset Purchase Agreement (Baymark APA) to Madole, who
forwarded it to Patterson and Greb. Patterson reviewed and
made substantive changes to the Baymark APA on behalf of
Greb. The summary judgment evidence shows Patterson also
communicated extensively with Madole regarding Greb's
revisions. As it relates to Greb, the Baymark APA provided
Greb would receive $2, 350, 000 in cash at closing; Baymark
would assume the indebtedness owed to CNB, which totaled
approximately $11 million; and CNB would release Greb from
his personal guaranty and the liens on his personal assets.
planned to obtain loans from Comerica and Texas Capital Bank
to finance its purchase of J&G. After signing the Baymark
APA, Greb contacted Comerica and Texas Capital Bank and
informed them he "did not know who Baymark was,"
and he had not entered into a letter of intent to sell
J&G to Baymark. After a conversation with Comerica,
Baymark understood Greb made these misrepresentations in an
attempt to obtain re-financing. When CNB learned of
Greb's false representations to Comerica and Texas
Capital Bank, it filed an application for a TRO seeking,
among other things, to enjoin Greb from making false
statements to third parties regarding the purchase of
J&G. Greb opposed CNB's application for the TRO, and
Johnson did not oppose it, creating a conflict of interest
between Greb and Johnson. As a result, on August 20, 2015,
Attorneys informed Greb, Johnson, and Patterson they did not
"represent any of the Principals in their individual
capacities" in the CNB lawsuit or in the Baymark
transaction. Attorneys also requested to withdraw as counsel
for all parties in the CNB lawsuit, including J&G, after
the August 21, 2015 hearing on CNB's application for a
TRO against Greb. HHDU entered an appearance in the CNB
lawsuit on August 21, 2015, and HHDU represented Greb at the
hearing. At the conclusion of the hearing, the trial court
granted the TRO against Greb, and granted Attorneys'
motion to withdraw as counsel from the CNB lawsuit. The TRO
prohibited Greb from seeking re-financing or seeking a buyer
for J&G without the express authorization of the Board of
August 22, 2015, Patterson e-mailed Madole a "Term Sheet
detailing [Greb's] agreement for moving forward with the
Baymark transaction." Greb and Johnson executed the Term
Sheet on August 25 and 26, 2015, respectively. Baymark, Greb,
and Johnson signed the Baymark APA on August 28, 2015, and
the sale closed at the end of September 2015.
summary judgment evidence included the expert report,
affidavit, and excerpts from the deposition transcript of
Randal Johnston, Greb's expert witness. At his
deposition, Johnston agreed the rule 11 agreements negotiated
by Attorneys "gave Mr. Greb a significant amount of
time" to "either sell the assets, sell the
companies, or get refinancing." According to Johnston,
"the effect of these Rule 11 agreements [was] to in
effect have an injunction [preventing foreclosure] for 15
months to allow [Greb] to work this out," which
"[u]nquestionably" was "to Mr. Greb's
benefit." Greb, however, was unable to secure
re-financing, and Johnston was not "aware of any offers
to buy the company that Mr. Greb was willing to accept other
than" the AuSable and Baymark offers.
opined, "[Attorneys] violated the standard of care by
not early on disclosing potential conflicts of interest so
that the clients could make an informed decision of joint
representation. I see evidence that persuades me that they
surrendered to those conflicts of interest and gave a
preference to Mr. Johnson." According to Johnston,
"the harm or the danger [that] was caused by this
so-called conflict of interest, if it occurred and they
surrendered and so forth, is that Mr. Greb was deprived of
having his own lawyer to advise him." However, Johnston
conceded that determining whether Greb had independent
counsel "only makes a difference if having an
independent counsel would have resulted in a different
respect to the Baymark transaction, Johnston confirmed that
to establish damages, Greb would "have to show that
there was a buyer willing to pay more than [Baymark
paid]." According to Johnston, "if there is harm
caused to Mr. Greb, then it is in my opinion I'll say
solely, and that's an awfully broad statement . . . he
would have received more than he got under [the Baymark] APA
and these agreed terms." With respect to the CNB
lawsuit, Johnston attested that he would not "rende[r]
an opinion on the outcome of that trial if it had gone
forward." While Johnston "opin[ed] as an expert
witness" that the claims asserted by Greb, Johnson, and
J&G in the CNB lawsuit "more likely than not"
had "a real chance of success," he declined to
conclude they would have prevailed, declaring, "I'm
not gonna testify that they would have won. I haven't
gone that far." Johnston further equivocated on the
issue of proximate cause, predicating, "we are not in
disagreement over the fact that unless [Greb] can demonstrate
that independent counsel would have resulted [in] him having
a more favorable result, he's going to be unable to
satisfy his proximate cause component and . . . that's
something I can't opine on."
Johnston's expert report concluded Attorneys'
"breach of the standard of care and their breach of
fiduciary duty were a proximate cause of financial damages to
Mr. Greb," Johnston confirmed he had "no firsthand
knowledge of the damages." Johnston limited his opinion
to his belief that the "nature and character of the
damages alleged by Mr. Greb are of the type that would be
proximately caused by the acts of negligence and malfeasance
he describes in the First Amended Petition."
sued Attorneys in 2015 and he filed a second amended petition
on March 16, 2018. Greb alleged that Attorneys owed
conflicting duties to Greb, Johnson, and J&G; they failed
to disclose the conflict of interest; they continued to
represent Greb and Johnson to collect legal fees; and they
protected Johnson's interests over Greb's interest,
to Greb's detriment, in the CNB lawsuit and in the
Baymark transaction. Greb further alleged that after
Attorneys withdrew as counsel in the CNB litigation, they
continued to represent Johnson in the Baymark transaction,
"effecting and completing the deal that squeezed Larry
Greb out of his company while retaining for Rick Johnson his
full interest in the company." Greb asserted claims
against Attorneys for negligence, gross negligence, and
breach of fiduciary duty. As remedies, Greb sought actual
damages, punitive damages, disgorgement of fees paid to
Carrington Coleman, and Greb's legal fees resulting from
Attorneys' breach of fiduciary duty.
filed a no-evidence motion for summary judgment on all of
Greb's claims, arguing: (1) Greb was represented by
independent counsel at all relevant times, (2) there was no
evidence that any alleged breach was the proximate cause of
Greb's alleged harm, (3) there was no evidence Greb
sustained damages, and (4) Greb's breach of fiduciary
duty claim was an impermissible attempt to fracture his
negligence claim. The trial court granted Attorneys'
summary judgment motion without specifying the grounds upon
which it was granted, ordered that Greb take nothing on his
claims against Attorneys, and dismissed Greb's claims
against Attorneys with prejudice. This appeal followed.
review a trial court's grant of summary judgment de novo.
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862
(Tex. 2010). In a no-evidence motion for summary judgment,
the movant must state the elements of each attacked claim for
which there is no evidence. See Tex. R. Civ. P.
166a(i). The burden then shifts to the non-movant to adduce
evidence raising a genuine issue of material fact supporting
the challenged elements of the plaintiff's claims.
Id.; see also King Ranch, Inc. v. Chapman,
118 S.W.3d 742, 750-51 (Tex. 2003). We review the summary
judgment evidence in the light most favorable to the
non-movant, crediting evidence favorable to the non-movant if
reasonable jurors could, and disregarding contrary evidence
unless reasonable jurors could not. Mack Trucks, Inc. v.
Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
no-evidence motion for summary judgment must be granted if:
(1) the movant asserts there is no evidence of one or more
specified elements of a claim or defense on which the adverse
party would have the burden of proof at trial, and (2) the
non-movant produces no summary judgment evidence raising a
genuine issue of material fact on those elements.
See Tex. R. Civ. P. 166a(i). If the non-movant
provides more than a scintilla of probative evidence raising
a genuine issue of material fact on each challenged element,
a no-evidence summary judgment is improper. Smith v.
O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009). Evidence
that fails to constitute more than a mere scintilla is, in
legal effect, no evidence at all. Lozano v. Lozano,
52 S.W.3d 141, 145 (Tex. 2001). When, as here, the trial