PREMIUM INVESTMENTS, LLC, ) ) Plaintiff-Appellant, ) ) v. ) No. SD 34662 ) Filed: April 30, 2019 LOWTHER JOHNSON, ATTORNEYS ) AT LAW, LLC, ) ) Defendant-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Laura J. Johnson, Special Judge
AFFIRMED Premium Investments, LLC (Premium) appeals from a judgment in favor of Lowther Johnson, Attorneys at Law, LLC ( Lowther Johnson) in a legal mal practice action. The trial court granted summary judgment to Lowther Johnson on two ground s: (1) Premium could not prove causation; and (2) the applicable statute of limitati ons had expired. Because the trial court’s ruling on the causation element was correct, we a ffirm. 1

1 We may affirm a summary judgment on any appropriate theory su pported by the record, so it is unnecessary to address the limitations issue. See Piatt v. Indiana Lumbermen’s Mut. Ins. Co. , 461 S.W.3d 788, 790 (Mo. banc 2015).2 Standard of Review A summary judgment shall be granted “[i]f the motion, the respo nse, the reply and the sur-reply show that there is no genuine issue as to any mat erial fact and t hat the moving party is entitled to judgment a s a matter of law[.]” Rule 74.0 4(c)(6); Schnurbusch v. W. Plains Reg’l Animal Shelter , 507 S.W.3d 675, 679 (Mo. App. 2017). 2 “Facts come into a summary judgment record only via Rule 74.04(c)’s numbered- paragraphs-and-responses framework.” Jones v. Union Pac. R.R. Co. , 508 S.W.3d 159, 161 (Mo. App. 2016) (italics in original). Thus, when reviewing a summary judgment, we revie w the undisputed material facts established by the process set forth in Rule 74.04(c). Alvis v. Morris , 520 S.W.3d 509, 511-12 (Mo. App. 2017). “We view the record in the light most favorable to the non-moving party, drawing all inferences in that party’s favor.” Progressive Max Ins. Co. v. Hopkins , 531 S.W.3d 649, 651 (Mo. App. 2017); see also Lindsay v. Mazzio’s Corp. , 136 S.W.3d 915, 920 (Mo. App. 2004). As a defending party, Lowther Johnson can establish a right to summary judgment by showing: (1) facts negating any one of the claimant’s eleme nts facts; (2) the claimant, after an adequate period of discovery, has been unable, and wil l not be able, to produce evidence sufficient to allow the trier of fact to find the exis tence of any one of the claimant’s elements; or (3) the undisputed facts support each of the neces sary elements of the defending party’s properly pleaded affirmative defense. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 381 (Mo. banc 1993). “Each of these three me ans establishes a right to judgment as a matter of law.” Lindsay , 136 S.W.3d at 920. Because

2 All references to rules are to M issouri Court Rules (2018).3 the propriety of summary judgment is purely an issue of law, we review the grant of a summary judgment de novo

. Id . at 919. Factual and Procedural Background As noted above, our summary of the facts is drawn from the sta tements of uncontroverted material fact est ablished by the Rule 74.04(c) p aragraph-and-response framework. Alvis , 520 S.W.3d at 512; see Huskey v. Queen City Roofing & Contracting
Co. , 523 S.W.3d 610, 617-18 (Mo. App. 2017). Rib Crib BBQ, Inc. (Corporate) is the franchisor of the Rib Cr ib restaurant concept. Bold Ribs Company, LLC (Bold Ribs) was organized in 2002 to own Rib Crib franchised restaurants. Bold Ribs eventually became the majority owner of seven Rib Crib franchised restaurants, including on e in Rogers, Arkansas. Rogers Bold Ribs, LLC (RBR) was organized in 2004 to own and o perate the Rib Crib franchise in Rogers. In July 2004, RBR, as tenant, leased real property in Rogers (the Property) from landlord Pizza Vent ures, Inc. (Pizza Ventures) t o operate a Rib Crib franchise restaurant. The lease, a mandatory addendum and an amendment w ere collectively referred to as the “Master Lease” for the Property. Bold Ribs executed a guaranty of the Master Lease. The mandatory addendum was executed by Corporate, Pizza Ventures and RBR. The Master Lease provided for a 15-year term, ending in Novembe r 2019. In February 2006, Premium purchased the Property from Pizza Ve ntures. Premium entered into an assignment and a ssumption of the Master Lease f rom Pizza Ventures. The obligation to pay rent was the responsibility of RBR, as guaran teed by Bold Ribs. RBR began paying rent directly to Premium that month. When the Pro perty was purchased, Premium knew the Master Lease contained a provision granting th e tenant the unconditional4 right to assign the lease, or to sublease the property, without the landlord’s consent. If the tenant decided to assign or sublease, the Master Lease also req uired the landlord to provide, upon the lessee’s request, an est oppel certificate (Certificate ) confirming that: (1) the Master Lease was in full force and effect; (2) the tenant was current on rent and other charges; and (3) the tenant was not in defa ult or subject to any claims by t he landlord. During 2006, RBR was struggling financially. By late 2006, Bo ld Ribs wanted to sell RBR. Bold Ribs negotiated with another established franch ise operator, but no agreement was reached. Premium was told that RBR was strugglin g financially, and efforts were made by Bold Ribs and RBR to involve Premium in a solution to RBR’s financial issues. In September 2007, Corporate agreed to purchase RBR and other a ssets of Bold Ribs via an asset purchase agreemen t (APA). In this APA, however, C orporate was unwilling to accept a full assignment of the RBR lease because of its terms. Premium was not willing to negotiate a lower rent rate. Negotiations on this issue contin ued, and RBR continued to pay rent to Premium through January 2008. In January 2008, the parties nego tiated an amendment to the APA . Pursuant to this amendment: (1) RBR and Bold Ribs agreed to sublease the Rogers ’ location to Corporate; and (2) Corporate agreed to pay the obligations of the Master L ease, but only for a minimum of two years. 3 The amendment also specified that, “in the event that landlor d consent was not required that [Bold Ribs] s hould deliver landlord’s [Certif icate] in a form reasonably approved by [Corporate].” Under the terms of the Master Lease, Premium was obligated to

3 The sublease was for the remaining duration of the lease, but it gave Corporate the right to terminate the subleas e upon six months’ notice after 1 8 months had elapsed.5 provide the Certificate upon RBR’s request. On January 25, 200 8, the Certificate was prepared for the sublease of RBR and emailed to Premium for sig nature. Upon receipt of the Certificate, Premium gave it to Lowther Johnson to review. Premium failed to timely sign and deliver the Certificate as requested. The APA closing occurred on February 1, 2008. As of that date, no signed Certificate for the Property had been provided by Premium. In lieu thereof , Bold Ribs agreed to indemnify Corporate fo r any loss arising fr om the absence of th e Certificate. As of the date of the closing: (1) RBR was current on its rent; (2) it owed n o money to Premium; (3) RBR was not in default; and (4) Premium had no claims against RBR o r any other party based upon the terms of the Master Lease. Corporate executed the sub lease with RBR on February 1, 2008. The signed Certificate for the Property was not deliv ered by Premium until February 18, 2008. The Certificate was in the format required by the lease and indicated that all obligations und er the Master Lease were current as of the end of January 2008. Following the APA closing, Bold R ibs paid off debts, and neithe r Bold Ribs nor RBR had any remaining assets. Corporate began paying rent for the Property directly to Premium. In January 2009, Corporate vacated the property. Premium learn ed that the Property was vacant in late January or early February 2009. Premium listed the Property for rent on February 9, 2009. Corporate continued to pay rent through Janu ary 2010. The Property was ultimately leased, on less favorable terms and rent rate than t he Master Lease, to another lessee in June 2013. On October 29, 2009, Premium filed suit against Bold Ribs and RBR for breach of the Master Lease, Bold Ribs’ guaranty of the Master Lease, and other tort and equitable theories of recovery (hereinafte r referred to as rent action). Premium amended its petition6 to add Bold Ribs’ principle Michael Treadwell (Treadwell), mana ger Brandon Robertson (Robertson) and Corporate as parties. 4 Premium settled with Corporate, and it was dismissed from the case. A bench trial of the rent action took place in September 2014 in the circuit court of Greene County. The court heard testimony from several witnesses, including Premium principal Richard Morsovillo (Morsovillo) and defendant s Treadwell and Robertson. In October 2014, the court entere d judgment against Bold Ribs and RBR for breach of the Master Lease and guaranty in the amount of $1,538,728.86 , plus interest. The court found in favor of defendants Treadwell and Robertson. The cour t also denied relief on all of the other theories of recovery in Premium’s amended petition . The judgment included 212 factual findings rel ating to the issues raised in the rent action petition. Following entry of this judgment, Premium was una ble to collect any money from Bold Ribs or RBR. In December 2014, Premium filed th is lawsuit (hereinafter refe rred to as the malpractice action) against Lowther Johnson for the advice alle gedly rendered to Premium concerning “the implications of the [Certificate.]” Premium al leged that Lowther Johnson “failed to inform Mr. Morsovillo” : (1) “about the possibility that [Corporate] might not have taken a full assignment of the Master Lease, but rather, might have merely subleased the Property”; (2) “that additional research might be needed to det ermine whether [Corporate] was taking a full assignment”; (3) that “absent a full assignme nt of the Master Lease, [Premium] might not receive all of the revenue it was entitled to under the Master Lease”

4 The petition and amendments the reto also alleged: (1) conspi racy to breach the Master Lease; (2) violation of the Uniform Fraudulent Transfer Act; (3) breach of implied covenant of good faith and fair dea ling; (4) fraudulent misrepr esentation and omissions; (5) negligent misrepresentation and/ or omissions; and (6) claims to pierce the corporate veil of Bold Ribs and RBR.7 and (4) that “an equitable action to enjoin the APA closing” s hould have been filed. 5
Lowther Johnson denied these allegations in its answer. Thereafter, Lowther Johnson file d a motion for summary judgmen t. The motion was accompanied by a statement of 65 uncontroverted facts, almost a ll of which mirrored factual findings by the judge in the rent action judgment. 6 In Premium’s response, it admitted 63 of these facts. 7 As for the remaining two, the response was that the hypothesi zed fact did not exactly track the stated fact in the judgment. Premium also hy pothesized three additional controverted material facts: 1. If Lowther Johnson had told Premium that Corporate was only taking a sublease, Premium would have soug ht to negotiate better subleas e terms with Corporate. 2. Absent a satisfactory negotia tion, Premium would have filed suit to halt the transaction, learned about t he prior negotiation and improv ed Premium’s bargaining position or f orced a sale to another party for more than Corporate paid. 3. Absent a negotiation of better lease terms or a better force d sale, Premium would have taken steps to begin searching for a new ten ant while the Property was still occupied, thereby significantly re ducing its damages.

5 According to Premium, this “e quitable action” would have allo wed Morsovillo to learn that another buyer had made a “better offer” and thereby protected Premium’s interest in the Master Lease, forcing Corporate to either “match” the hi gher offer or “accept a full assignment of the Master Lease” and, if not, allowing the other buyer to purchase the property, resulting in assets being available to satisfy the lo ss sustained by Premium in the breach of the Master Lease.

6 Paragraph 63 of Lowther Johnson’s statement of uncontroverted facts, which Premium admitted, noted that a true and accurate copy of the ju dgment was attached.

7 To be clear, although each mirro red fact specifically referen ced the corresponding finding in the rent action judgment for record support, as requ ired by Rule 74.04(C)(1), each such stated fact was neverthel ess asserted without qualificatio n as a material fact in this action. Further, Premium’s unqualified admissions established those statements as facts in this case, rather than merely admitting they were factual findi ngs in the rent action judgment.8 In Lowther Johnson’s reply, it re sponded to the above statement s by arguing that they were speculation or conjecture, rather than facts which could be use d to support or oppose a summary judgment motion. All three paragraphs were denied, wit h supporting references to the record. Lowther Johnson also submitted a statement of s even additional uncontroverted material facts that were admitted by Premium. Lowther Johnson argued, inter alia , that it was entitled to summary judgment because: (1) Premium had no choice but to provide the Certific ate; (2) the transaction closed without the Certificate; and (3) there was nothing Premium coul d have done to s top the sale of RBR by Bold Ribs to Corporate. 8 According to Lowther Johns on, it was entitled to judgment as a matter of law because: (1) the material facts es tablished through the summary judgment process cannot be re-litigated by Premium; and (2) the se facts show Premium cannot prove the causation element of its legal malpractice cla im. The trial court agreed and entered summary judgment for Lowther Johnson on that ground. 9 This appeal followed.

Discussion and Decision The four elements of a legal malpractice action are: “(1) an at torney-client relationship; (2) negligence or b reach of contract by the defen dant; (3) proximate causation of plaintiff’s damages; [and] (4) damages to the plaintiff.” Klemme v. Best , 941 S.W.2d 493, 495 (Mo. banc 1997). A defendant moving for summary judgm ent may establish a

8 Lowther Johnson pointed out that “there was no other buyer.” In the rent action, the trial court found that the manager of Bold Ribs had negotia ted with another buyer, “but no agreement was reached.”

9 As noted in n.1, supra , we need not address the separate statute of limitations ground that was also presented in Lowther Johnson’s motion.9 right to judgment as a matter of law by demonstrating that the plaintiff “cannot and will not be able to prove one or more elements of [its] claim.” Highfill v. Hale , 186 S.W.3d 277, 280 (Mo. banc 2006). “Failure to prove any one of these elemen ts defeats a claim for legal malpractice.” SKMDV Holdings, Inc. v. Green Jacobson, P.C. , 494 S.W.3d 537, 545 (Mo. App. 2016). “Like all negligence actions, le gal malpractice requires proof of causation.” Nail v. Husch Blackwell Sanders, LLP , 436 S.W.3d 556, 562 (Mo. banc 2014); see Collins v. Mo.
Bar Plan , 157 S.W.3d 726, 732 (Mo. App. 2005) (plain tiff must show “a c ausal connection between his or her attorney’s negligence and the resulting inju ry”). Proof of causation entails proof of causation in fact, or “but-for” causation, as well as proximate causation. Callahan v. Cardinal Glennon Hosp. , 863 S.W.2d 852, 862-65 (Mo. banc 1993). The preliminary question in legal malpractice actions is proof that, “but for” the attorney’s negligence, the result would have been different. Nail , 436 S.W.3d at 562. Once this preliminary hurdle is met, then plaintiff must also prove proximate causation, or “that the injury was a reasonable and probable conseque nce of the defendant’s negligen ce.” Id

. “By proving that the result of the underlying proceeding would have been differe nt ‘but for’ the attorney’s negligence, the plaintiff also pr oves that the damages – the di fference between what the result would have been and what it was – were the reasonable and probable consequence of the defendant’s negligence.” Id . (italics in or iginal). Premium’s point contends that the trial court erred in granting Lowther Johnson’s motion for summary judgment when it determined that Premium cou ld not meet the “butfor” and “proximate” causation element of its legal malpractice cause of action. Premium argues that “a genuine dispute exists regarding the facts surro unding these elements, in that10 the doctrine of non-mutual defen sive collateral estoppel does n ot preclude further litigation of these disputed facts[.]” According to Premium, this doctrin e does not apply because the causation element was “not fully litigated in the underlying ca se” because the prior judgment “makes no determination as to what Premium could have done had Lowther Johnson informed Premium of the factua l significance on the sublease.” We disagree. Premium’s argument about collate ral estoppel is misdirected. D uring the summary judgment process below, Premium admitted virtually every one of the 72 material facts hypothesized by Lowther Johnson. 10 Material facts admitted by the nonmovant are established for purposes of a summary judgment motion. See, e.g. , Pemiscot Cty. Port Auth. v. Rail Switching Servs., Inc. , 523 S.W.3d 530, 534 (Mo. App. 2017); Coonce v. Simons , 520 S.W.3d 821, 823 (Mo. App. 2017) . Based upon our review of these established facts alone, Premium cannot prove the causation element of its legal malpractice case. The premise of that action was that Lowther Johnson gave inadequate advice concerning the implications of the Certificate. The established facts, howeve r, demonstrate that premise is false. When the Property was purchased, Premium knew the Master Lease contained a provision granting the tenant the unconditional right to assign the lease, or to sublease the

10 We do not consider the three “ facts” hypothesized by Premium because, as Lowther Johnson stated in its response, these amount to nothing more than speculation or conjecture, which is insufficien t to create a genuine issue of material fact for trial. See , e.g. , Higgenbotham v. Pit Stop Bar & Grill, LLC , 548 S.W.3d 323, 328 (Mo. App. 2018) (a genuine issue is a real and substantial one – not merely conjec ture, theory, or possibility); Rayman v. Abbott Ambulance, Inc. , 546 S.W.3d 12, 16 (Mo. App. 2018) (a genuine dispute exists when the issue or dispute is a real and substantial one and does not consist merely of conjecture, theory and possibilities).11 property, without Premium’s consent. In the event of an assign ment or sublease and at the lessee’s request, the Master Lease also required Premium to pro vide the Certificate confirming that: (1) the Master Lease was in full force and ef fect; (2) the tenant was current on rent and other charges; and (3) the tenant was not in defaul t or subject to any claims by the landlord. All of those conditions were met at the end of J anuary 2008. Therefore, Premium had no choice but to prov ide the Certificate. Additionally, Premium’s failure t o provide the Certificate in a timely manner did not prevent the closing. Instead, Bo ld Ribs agreed to indemnify Co rporate for any loss arising from the absence of the Certificate. As already noted, Premium had no factual basis to refuse to provide the Certificate, and it was provided, in the require d form, 18 days late. Accordingly, the absence of the Certificate at closing had no e ffect on the transaction whatsoever. Finally, the established facts demonstrate that there was noth ing Premium could have done to stop the sale of RBR by Bold Ribs to Corporate. Premiu m was told that RBR was struggling financiall y, and efforts were m ade by Bold Ribs and RBR to involve Premium in a solution to RBR’s financial issues. Premium, however, was no t willing to negotiate a lower rent rate. In September 2007, Corporate agreed to purcha se RBR and other assets of Bold Ribs via an APA. Bold Ribs had negotiated with another en tity, but no agreement was reached. Therefore, there was no “other buyer” who could have paid more than Corporate. This is in accord with the trial court’s conclusion in the rentaction: Defendants suggest that, even if [Premium] had understood the R ogers Lease would be subleased, there was nothing [Premium] could have done to interrupt that. The C ourt agrees. Defendant RBR had a contrac tual right to sublease. [Premium’s] consent was not required. Mr. Morsovill o has suggested that had he known there would be a sublease he could have refused to sign the [Certificate]. Mr. Morsovillo overlooks or ignores the fact that12 [Premium] was required by the co ntract to sign the [Certificate ] at the request of the tenant. Likewise, in the end, Mr. Morsovillo did not ti mely sign the [Certificate] and the APA was clo sed, and the sublease entered, nonetheless. Mr. Morsovillo next suggested that had he known of the sublease he could have sued, although he never revealed what it was that he thoug ht he could sue for. Mr. Morsovillo finally suggested that had he known of the sublease he could have immediately begun to re-lease the property. [Pre mium] overlooks the fact that the Rogers Lease was not in default, bu t was merely being subleased and [Premium] was expected to, and did, receive all of the lease consideration for at [leas t] a minimum of two more years. Simply put, there being no default, [Premium] would have no right to retake possession at that time. This conclusion is further supported by these additional establ ished facts: (1) Corporate vacated the property in January 2009; (2) Premium learned that the Property was vacant in late January or early February 2009; (3) Premium listed the Pro perty for rent on February 9, 2009; (4) Corporate continued to pay rent through January 2010; and (5) the Property was finally leased, on less favorable t erms and at a lower rent rat e than the Master Lease, to another lessee in June 2013. After considering the established facts in this case, the summ ary judgment record presents no genuine issue of mater ial fact that warrants a tria l. See, e.g. , Aziz v. Tsevis , 565 S.W.3d 738, 745 (Mo. App. 2018); Walsh v. City of Kansas , 481 S.W.3d 97, 108 (Mo. App. 2016). Even assuming Premium’s complaint about the use of the rent ac tion findings of fact and conclusions of law was relevant to our review of the summar y judgment record, our decision would not change. “Collateral estoppel, or issue prec lusion, is used to preclude the relitigation of an issue that already has been decided in a dif ferent cause of action.” Brown
v. Carnahan , 370 S.W.3d 637, 658 (Mo. banc 2012). “The principle of non-mutual collateral estoppel, as adopted in Missouri, permits use of a p rior judgment to preclude relitigation of an issue even though the party asserting collat eral estoppel was not a party to13 the prior case.” James v. Paul , 49 S.W.3d 678, 684 (Mo. banc 2001) (italics added). In determining whether non-mutual co llateral estoppel will apply, courts consider first whether the doctrine is being applied o ffensively or defensively. Id . at 685. 11 “Defensive collateral estoppel generally involves a d efendant invoking the doctrine t o prevent a plaintiff from relitigating a fact decided against the plaintiff in earlier li tigation that is necessary for the plaintiff to establish and ca rry his burden of proof.” Id . Allowing such use defensively serves to prevent the potential of collusive litigation and to promote finality, consistency and judicial economy. Id

. at 688; see, e.g. , Rosenberg v. Shostak , 405 S.W.3d 8, 15-16 (Mo. App. 2013) (non-mutual defensive c ollateral est oppel applied in legal malpractice case). Collateral estoppel applies only when: (1) the issue in the pr esent case is identical to an issue decided in the prior adjudication; (2) the court in the p rior adjudication rendered a judgment on the merits; (3) the pa rty against whom collateral e stoppel is asserted is the same party or in privity with a party in the prior adjudication; and (4) the party against whom collateral estoppel is asserted h ad a full and fair opportunity to litigate the issue in the prior suit. State ex rel. Johns v. Kays , 181 S.W.3d 565, 566 (Mo. banc 2006); James , 49 S.W.3d
at 682. Premium’s argument – that collateral estoppel does not apply be cause the causation element presented an issue (concerning “the factual significanc e of the sublease”) that was not fully litigated – challenges only the fourth prong required for collateral estoppel. This

11 “[O]ffensive collateral estoppe l normally involves the attemp t by a plaintiff to rely on a prior adjudication of a n issue to prevent the defenda nt from challenging a fact necessary to the plaintiff’s case and on which the plaintiff ca rries the burden of proof. Generally speaking, courts have be en less inclined to allow off ensive use of the doctrine rather than defensive when mutuality of parties is lacking.” James , 49 S.W.3d at 685 (citation omitted).14 argument fails because the legal and factual significance of th e Certificate was fully litigated in the rent action. In that action, which involves both contra ctual and tort theories of recovery, the multitude of Certificate-related issues were thor oughly and vigorously litigated by Premium. Therefore, Premium had a full and fair opportunity to litigate the implications of the Certificate and the advi ce Premium received thereon in t he rent action. The doctrine of collateral estoppel therefore applies here, given: (1) iden tical issues relevant to the present suit decided in the prior adjudi cation; (2) that adjudication r endered a judgment on the merits; (3) the party against w hom collateral estoppel is asser ted is the same party in the prior adjudication; and (4) that party had a full and fair oppo rtunity to litigate the issue in the prior suit. See James , 49 S.W.3d at 682; Rosenberg , 405 S.W.3d at 15-16. The findings in the rent action with respect to the Certificat e, which are now part of the facts established via the summary judgment process, demonst rate that Premium cannot satisfy the causation element of its legal malpractice claim. In the rent action, the trial court found that: (1) Premium was required under the Master Lease to provide the Certificate; (2) the Certificate did not in any way affect t he APA; and (3) the transaction clos ed without the signed Certificate. Thus, the Ce rtificate had absolutely no ef fect on the underlying sale transaction. Premium cannot pro ve that, “but for” Lowther John son’s allegedly negligent advice, the result would have been different. See Nail , 436 S.W.3d at 562. Because this preliminary hurdle has not been met, Premium also cannot prove proximate causation, i.e., that its injury is the reasonabl e and probable consequence of t he attorney’s negligence. Id .;

see Steward v. Goetz , 945 S.W.2d 520, 532-33 (Mo. App. 1997) (plaintiff failed to sho w causal connection as there was no evidence connecting any damag es to the actions of the attorney). Absent Premium’s ability to prove the element of ca usation required for its15 malpractice claim, Lowther Johnson is entitled to judgment as a matter of law. See Highfill , 186 S.W.3d at 282. 12 Accordingly, the trial court did not err by entering summary judgment in Lowther Johnson’s favor. Point denied. The judgment of the trial court is affirmed.

JEFFREY W. BATES, J . – OPINION AUTHOR GARY W. LYNCH, J. – CONCUR MARY W. SHEFFIELD, P.J. – CONCUR

12 Premium’s point goes on to argue that “a genuine issue of mat erial fact exists as to how Premium’s damages could h ave been mitigated had Lowther Johnson explained the factual significance of the [Certificate.]” Because Premium fa iled to show the element of causation in its legal malpractice claim, we do not reach any i ssue concerning the element of damages. See SKMDV Holdings, Inc. , 494 S.W.3d at 545 (failure to prove any one element defeats a claim for legal malpractice); see, e.g ., Rosenberg , 405 S.W.3d at 18-19 (affirming summary judgment in fa vor of attorneys based solely on plaintiff’s inability to show causation; attorneys’ advice simply too far removed from p laintiff’s damages to constitute their proximate cause).