IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DEAN SHERMAN , :
:
: Plaintiff, :

: C.A. No. K1 8 C

- 06

- 00 9 JJC

: In and for Kent County

v. :
: STEPHEN P. ELLIS, ESQ UIRE , :
:
: Defendant. :

OPINION

Submitted: November 22, 2019 Decided: January 2, 2020

Patrick K. Gibson, E squire, Ippoliti Law Group
, Wilmington, Delaware, Attorney for Plaintiff.
Colleen D. Shields, Esquire, Gary W. Lipkin, Esquire, & Alexandra D. Rogin, Esquire
, Eckert Seamans Cherin & Mellott, LLC , Wilmington, Delaware, Attorney s for Defendant.

Clark, J.2

Plaintiff Dean Sherman sues his former attorney
, Stephen Ellis, Esquire, for legal malpractice

. Prior to Mr. Sherman’s 1997 marriage, Mr. Ellis drafted a premarital agreement (the “Agreement”) designed to protect Mr. Sherman’s assets

. Mr. Sherman then presented the Agreement to his fiancé. 1 The A greement waived her right , upon di vorce, to receive alimony or to share in wealth accumulated over
the course of their marriage. Her attorney advised her not to sign it but she
nevertheless did. During their divorce proceedings in 2015, Mr. Sherman’s wife challenged the
A greement’s en forceability in Family Court

. The F amily Court f ound it to be
unconscionable and thus unenforceable

. The Delaware Supreme Court, however, reversed the Family C ourt’s decision. I n the end, the A greement successfully barred her challenges. Notwithstanding Mr. Sherman’s success after appeal
, he now sues Mr. Ellis
because he did not include a waiver of disclosure clause in the draft agreement

. According to Mr. Sherman’s expert, it would have been a “silver bullet” removing
the incentive for his ex

- wife to engage in protracted litigation. Mr . Sherman claims
that this expanded litigation in turn expanded his costs and fees. He now seeks to

recover those attorney and expert fees from Mr. Ellis. Presently, Mr. Ellis seeks summary judgment in a motion that rais es two principal issues. First, the motion requires the Court to evaluate the legal foundation
for Mr. Sherman ’s expert’s standard of care opinion. Se cond
, with regard to proximate cause, the motion addresses a plaintiff ’s ability to recover for legal malpractice in drafting a premarit al agreement that , in the end, successfully

1 Mr. Sherman’s former spou se is not a party . The Court will refer to her as Mr. Sherman’s fiancé, wife, or ex

- wife as did the Delaware Supreme Court when it assigned her a pseudonym in the underlying action. See Silverman v. Silverman , 206 A.3d 825 (Del. 2019) (assigning pseudonyms and general ti tles to the parties).3

protected the plaintiff’s assets

. To evaluate the second issue, the Court must address whether the standard for proximate cause in transactional legal malpractice claims
differs from the standard applied in liti gation legal malpractice claims.
For the reasons that follow, genuine issue s of material fact remain rega r ding the applicable standard of care and whether Mr. Ellis breached that standard. However, in this case
, there is insufficient evi dence of record t o support an inference
that Mr. Sherman’s ex

- wife would have agreed to include this “silver bullet” term in the Agreement

. In addressing an issue of first impression, t he same “but for” proximate cause limitation that applies in litigation ma lpractice actions must apply
in transactional legal malpractice actions

. When applying that standard, because
record evidence does not support an inference that Mr. Sherman’s ex

- wife would have likely accepted the term
, the trier of fact would be forced t o speculate regarding
whether Mr. Ellis’s alleged negligence proximately caused Mr. Sherman harm. For
that reason , Mr. Ellis’s motion for summary judgment must be GRANTED

.

FACTS AND PROCEDURAL BACKGROUND
The recited facts are those of record when viewed in the light most favorable
to Mr. Sherman , the non

- movant

. In 1997, Mr. Sherman reta ined Mr. Ellis to negotiate and draft the Agreement prior to his marriage. The draft included provisions designed to protect Mr. Sherman’s assets in the event of a divorce. It also included a mutual waiver of alimony. Finally, it included a clause recognizing that both parties had fully disclosed their premarital assets

. 2 The proposed agreement
,

2 Pl. Response, Ex. A., Ex. 1, “Ante

- Nuptial Agreement” at 3 (providing “[t]he parties hereby acknowledge that each of them has made a full disclosure to the other of all property owned or otherwise held by each respective party on Exhibits ‘A’ and ‘B’ attached hereto”)

.4

however, did not contain a waiver of the parties’ obligations to disc lose assets and obligations “beyond the disclosure provided

. ” 3
Before his fiancé signed the Agreement, she consulted with an attorney

. Her attorney first asked Mr. Sherman to revise the proposed agreement to secure her future financial security. Mr. Sh erman rejected those requests with the exception of

one minor issue. His fiancé then met with her a ttor ney to review the Agreement.
He told her that it was one

- sided and that she should not sign it. Notwithstanding
this advice, she executed it. When doing so, she acknowledged in writing that her attorney had advised her not to

. The two then married. In 2015, Mr. Sherman’s wife filed for divorce and moved to set aside the Agreement. At that point, Mr. Sherman’s assets exceeded twelve million dol lars and
his annual income exceeded one million dollars

. In contrast, she had no independent income or separate assets . In her motion to set aside the Agreem ent, she argued that
it was un enforceable because she did not execute it voluntarily. 4 She also argued
that the Agreement was unconsciona b le because (1) she was not provided a fair and reasonable disclosure of Mr. Sherman’s property, and (2) because she “did not voluntarily and expressly waive in writing any right to that disclosure.” 5 Prior to the parties’ execution of the Agreement in 1997, Mr. Sherman had
disclo sed in writing his then four million dollars in assets

. 6 T he disclosure , however,
contained errors. Namely, it omitted that he owned a Ford Explorer ( though his
fiancé had ne ar ly exclusive use of it prior to the disclosure) as well as a three
thousand dollar life insurance policy . It also i naccurately describe d his one h undred

3 See 13 Del. C. § 326(a)(2)b (permitting a waiver of disclosures beyond those provided). 4 See id. at § 326(a)(1) (providing a premarital agreement is unenforceable if not executed voluntar il y)

. 5 Pl. Response, Ex. A, Ex. 3, “Motion to Set Aside A nte

- Nuptial Agreement,” at ¶ 5. 6 Pl. Response, Ex. A, Ex. 1 at 7.5

percent interest in a two hundred acre property as a fifty percent interest. 7 In the Family Court p roperty division litigation, a fter discove ry, briefing, and oral argument, that c ourt held the Agreement to be unconscionable . Because of the disclosure errors, it also held that Mr. Sherman’s disclos ure of assets and liabilities

was not fair and reasonable

. 8
Mr. Sherman then filed an interlocutory appeal to the Delaware Supreme
Court

. With that appeal pending
, Mr. Sherman filed the current legal malpractice
suit against Mr. Ellis

. The then legal backdrop to the malpractice case included only
the adverse Family Court finding , which at that point was on appeal

. After Mr. Sherm an filed suit
, the Delaware Supreme Court reversed the Family Court’s decision. 9 When doing so, it confirmed that M r. Sherman’s ex

- wife
had voluntarily executed the A greement 10 and that Mr. Sherman’s disclosure of his property and financial obligations was fair and reasonable. 11 As a result, the Supreme Court held it to be immaterial whether or not t he Agreement was
unconscionable

. 12 I t held t he Agreement to be enforceable

. 13 Nevertheless, Mr. Sherman continues to prosecute his legal malpractice claim against Mr. Ellis

. In doing so, he seeks to recover significant attorneys’ fees that he alleges he incurred while litigating the unconscionability of the Agreement in Family
Court and on appeal

. His claim centers on Mr. Ellis’s allegedly negligent failure to

7 Id

. See also Silverman v. Silverman , 206 A.3d 825, 833 (Del. 2019) (summarizing the errors in the disclosures). 8 Sherman v. Sherman , No. CS15

- 01396, 2018 (Del. Fam. Apr. 4, 2018). 9 Silverman , 206 A.3d at 834

. 10 Id. at 829 (explaining that “[t]he parties have accepted the Family Court's ruling that Wife voluntarily entered into the premarital agreement. Thus, voluntariness is no longer at issue.”). 11 Id. at 833

– 34. 12 Id. at 834. 13 Id.6

include a single clause or sentence in the Agreement

— a waiver of disclosures term authorized by Delaware’s Premarital Agreeme nt Act (the “Act”). 14 The Act recognizes that a clause in a premarital agreement that waives further
disclosure of assets or financial obligations has a direct bearing on the enforceability of a premarital agreement. 15 While the parties dispute the effe ct of this portion of the Act, there is no dispute that the Agreement contained no waiver of disclosure provision. In the present suit, Mr. Sherman identified Judy Jones, Esquire
, as his expert witness. In her repor t and deposition testimony, Ms. Jones opines that including the waiver provision would by itself have preclude d any claim that the Agreement was unconscionable. As a result, she further opines that the standard of care for a
domestic at torney as of 1997 required an attorney to include this wa iver provision in the Agreement. Mr. Ellis’s expert counters that the standard of care did not require
Mr. Ellis to include s uch a provision

. Apart from the standard of care issue , e vid ence of record relevant to proximate
cause of harm is limited to th ree sources. First, Mr. Sherman’s litigation attorney , David Gagne, Esquire, tes tified in his deposition that Mr. Sherman incurred
additi onal fees and costs because Mr. Ellis did not include the provisio n in the Agreement. Specifically, Mr. Gagne testifi ed as a fact witness that because Mr. Ellis did not include this language, Mr. Sherman had to hire two experts to address property value s that would have otherwise been unn ecessary. 16 Those expert fees

were ap proximately $38,000. Mr. Gagne also estimated that $285,000 of a total of $310,000 in attorneys’ fees that he charged were necessary only because Mr. Ellis

14 See 13 Del. C. §§ 321

– 28. 15 See 13 Del. C. § 326. 16 Mr. Ellis also filed a motion in limine to exclude Mr. Gagne’s testimony to the extent that it includes expert opinions. The C ourt need not decide that motion for purposes of this decision.7

did not include the disputed provision in the Agreement

. Second, Ms. Jones offers her expert opinion that Mr. Ellis’s failure to include this ter m proximately caused the increased costs and fees identified by Mr. Gagne. Third, Mr. Sherman argues
that his ex

- wife’s agreement to what were o therwise draconian terms in a one

- sided
A greement circumstantially support s a reasonable inference that she wou ld have agreed to anything he asked , including the waiver of disclosure provision. Notwithstanding that his ex

- wife agreed to other one

- sided terms, there is no evidence of record addressing her impressions regarding a waiver of disclosure provision or her willingness to agree to one. Namely , there is no direct evidence
from her or the then

- attorney that bears up on what other terms she may have agreed

to. While she agreed to t he vast majority, but not all of the terms proposed in the draft agreemen t, Mr. Sherman did not depose her or her then

- attorney regarding how she would have reacted to the provision at issue. Likewise, there is no correspondence, documentary evidence , or circumstantial evidence demonstrating
her propen sity to agree to that spe cific provision.
Mr. Ellis now moves for summary judgment. He has also filed a motion in
limine to exclude Ms. Jones’s expert opinions regarding standard of care and proximate cause of damages. Because Ms. Jones offer s o pinions regarding each
element of Mr. Sherman’s malpractice claim , the foundation for her opinions must
b e addressed when deciding Mr. E llis’s motion for summary judgment.

ARGUMENTS OF THE PARTIES
Mr. Ellis raises three arguments in support of his mot ion

. First, he argues that
there is no genuin e issue of material fact regarding the standard of care. In support of this argument , he relies upon his expert’s opinion that the stand ard of care did not require the waiver language to be included in the Agreement. Furthermore , he ask s the Court to disregard Ms. Jones’ s expert opinion because she allegedly8

misinterprets a provision in the Act that anchors her standard of care opinion

. Because she misinterprets the statute, he argues that her opinion has no foundation and should be rej ected for purposes of summary judgment.
Second , he argues that because the Agreement survived a legal challenge and protected Mr. Sherman’s assets, Mr. Sherman ’s c laim fails as a matter of law

. He
concedes the absence of mandatory authority or in

- State persuasive authority regarding transactional malprac tice claims

. Rather, Mr. Ellis cites other state s’ authority holding that a legal malpractice plaintiff must demonstrate that
, but for the defendant’s conduct, he or she would have obtained a more favora ble result than the
one obtained. According to Mr. Ellis, applying the same “case within a case” approach used by many courts in litigation malpractice actions, mandates summary judgment in this case.
Third , Mr. E llis argues that Mr. Sherman’s claim is “ fatally speculative.” 17
He lists six assumptions that a jury w ould need to speculate about before it could find proximate cause of harm. Nam ely, he argues that Mr. Sherman ’s claim requires speculation regarding the following : (1) Mr. Sherman’s former wife would have accepted the waiver of disclosure language if Mr. Ellis had proposed it ; (2) Mr. Ellis never, in fact, proposed the lan guage; (3) if he in cluded the language in the Agreement , she would not have challenged the Agr eement anyway; (4) the litigation

e xpenses would have been less had he included the waiver of disclosure language; (5) the Family Court would have ruled differently if the waiver language was
included ; and (6) Mr. Sherman’s ex

- wife, as opposed to Mr. Sherm an, would not have appealed if she had lost in Family Court. 18 On balance, he argues that because
there is no evidence regarding Mr. Sherman’s ex

- wife’s willingness to have agree d

17 Def. Ellis Opening Br. at 10. 18 Id . at 5.9

to this pivotal term or her resolve to continue litigati ng under various scenarios, proximate cause of harm to Mr. Sherman is speculative. In response, Mr. Sherman argues that the evidence of record creates issues of material fact precluding summary judgment. Namely, he argues that the conflicting deposition testimonies of hi s and Mr. Ellis’s expert witnesses create a jury question as to the appropriate standard of care. Mr. Sherman also argues that Ms. Jones ’ s interpretation of the Act is correct as a matter of law. Finally, Mr. Sherman urges the Court to apply a relaxed ap proach when evaluating proximate cause of damages.
H e argues that the relationship of dama ges to the negligence alleged is not speculative when applying this relaxed standard

.

SUMMARY JUDGMENT STANDARD Summary judgment is appropriate only if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. 19 The Court must view the evidence in the light most favorable to the non

- moving party. 20 The burden of proof is initially on the moving party. 21 However, if the m ovant meets his or her initial burden, then the burden shifts to the non

- moving party to demonstrate the
existence of material issues of fact. 22 The non

- movant's evidence of material facts in dispute must be sufficient to withstand a motion for judgment as a matter of law and sufficient to support the verdict of a reasonable jury. 23

19 Super. Ct. Civ. R. 56(c); Moore v. Sizemore , 405 A.2d 679, 680 (Del. 1979). 20 Brozaka v. Olson , 668 A.2d 1355, 1364 (Del. 1995). 21 Super. Ct. Civ. R. 56(e); Moore , 405 A.2d at 680 (Del. 1979). 22 Moore , 405 A.2d at 681 (citing Hurtt v. Goleburn , 330 A.2d 134 (Del. 1974)). 23 Lum v. Anderson , 2004 WL 772074, at *2 (Del. Super. Mar. 10, 2004).10 ANALYSIS
T he Court must first determi ne whether there is a genuine issue of material fact regarding the standard of care applicable to Mr. Ellis. Because (1) expert testimony r egarding this issue is necessary, and (2) Mr. Sherman’s expert relies upon her interpretation of the Act to support her opinion, the Court must determine if the
A ct supports her position. Next, the Court must address whether Mr. Sher man states a claim w hen th e Agreement ultimately protected his assets . In other words, is there any legally recognizable harm when the Agreement fulfilled its primary purpose, although through a more circuitous route? Finally, the Court must address whether
the evidence of record , when examined in the light most favorable to Mr. Sherman,
demonstrates a genuine issue of material f act regarding proximate cause

.

The record demonstrates a genuine issue of material fact regarding the applicable standard of car e and whether Mr. Ellis breached it

. Central to the Court’s decision regarding the standard of care is Mr. Ellis’s
motion in limine to exclude Ms. Jones’ s opinion regarding the applicable standard
of care

. 24 Expert testimony is required for a plaintiff to establish the standard of care in a legal malpractice case. As to the standard of care , the parties offer competing expert opinions

. Ms. Jones’s relevant opinion includes that Mr. Ellis “ acted negligently and breached the applicable standard of care for a Delaware lawyer when

24 Neither Mr. Ellis nor Mr. Sherman couched their submissions in terms of a Daubert challenge. Foundational r equirements are an aspect of a Daubert review. See Perry v. Berkley , 996 A.2d 1262, 1267 (Del. 2010) (explaining the Delaware Supreme Court “has adopted the United States Supreme Court holding in Daubert [ v. Merrell Dow Pharm., Inc.
, 509 U.S. 579, 593

– 95 (1993) ], which requires that an expert's opinion be based upon a proper factual foundation and sound methodology to be admissible, as the correct interpretation of D.R.E. 702 ”). Because the parties proceeded immediately to their contrary arguments regarding the proper interpretation of the Act and whether Ms. Jones’s interpretation provides an adequate foundation for her opinion, the Court will focus only on that aspect of the Daubert requirement s.11

he failed to include in the [Agreement] a written waiver of further disclosure of property or financial obligations as permitted by 13 Del. C . § 326 (a)(2) [b] .” 25
Mr. Ell is argues that b ecause Ms. Jones incorrectly interprets the cited statute
, her opinion deserves no weight and need not be accepted for summary judgment

purposes. Mr. Sherman counters that had Mr. Ellis included one sentence in the Agreemen t, i t would have significantly m inimized Mr. Sherman ’s attorney fees and expert costs. The parties agree that the standard of care issue centers on the ir contrary interpretation s of a provision in Delaware’s version 26 of the Uniform Pr emarital Agreement Act (the “UPAA ”). The provision of the Act relevant to this dispute is
Section 326 . In relevant part , it provides: (a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that: (1) Such party did not execute the agreement voluntarily; or (2) T he agreement was unconscionable when it was executed and, before execution of the agreement, that party;

a. Was not provide d a fair and reasonable disclosure of the property or financial obligations of the other party; b. Did not voluntarily and expressl y waive, in writing,

a ny right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

c. Did not have, o r reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. 27
In paragraphs (1) and (2) of S ubs ection 326 (a) of the Act , the General Assembly provided tw o independent bases to challenge the enforceability of a

25 Pl. Response, Ex. C, at 7. 26 See 13 Del. C. §§ 321

– 28 (where the General Assembly enacted Delaware’s version of the UPAA)

. 27 13 Del C. § 326.12

premarital agreement: involuntariness in execution or unconscionability. In the underlying litigation, Mr. Sherman’s ex

- wife challenged the Agreement based upon
both. With regard to unconscionability
, Ms. Jones opines that had Mr. Ellis included a provision mirroring the language in subparagraph (a) (2)b, it would have acted as a “silver bullet” to any ch allenge to the Agreement based upon unconscionability

. Mr. Sherman provided a written disclosure of his property and obligation s as required by subparagraph (a) (2)a, and the Supreme Cou rt held it to be fair and reasonable

. H owever, t he Agreement included no waiver as contemplated in subparagraph ( a ) (2)b. That, according to Mr. Sherman’s theory of the case, would hav e limited the arguments in Family Court
, and later in the Delaware Supreme Court , to whether
his former wife ex e cuted the Agreement voluntarily. That limited scope, in turn,
Mr. Sherman argues, would have prevented the need to litigate the highly factual
issue of the fairness and reasonableness of the disclosure as referenced in subparagraph (a) (2)a

. Mr. Ellis counters that there is no meaningful way to interpret subparagraphs (a)(2)a and (a)(2)b to provid e any guidance of value to an agreement drafter. He
further argues that regard less of whether he included (a)( 2)b ’s waiver of disclosure language in the Agree ment , the parties would have still needed to litigate the issue presented under (a)(2)a

— that is, whether the initial disclosure was fair and
reasonable. Mr. Ellis reasonably argues that the interrelationship of these two provisions
is unclear . T hey se em to contradict each other to a certain extent. Namely, the statute requires that there be a “fair a nd reasonable disclosure” on one hand, while
also permitting a written waiver of disclosure on the other hand. The only qualifying language in the Act re garding the nature of the waiver is that it is effective “beyond the disclosure provided.” T he Act d oes not define that phrase. I t is unclear whether13

a correction to the first disclosure would qualify as one being “ beyond the disclosure provided. ” It is also unclear regarding whether a “disclosure beyond the disclosu r e provided” could obviate the need for a party to provide a fair and equitable disclosure
in the first instance. At oral argument, neither party provided the Court with authority addre ssing the interrelationship of the two provisions.
In written supplement s , both parties provided contrary persuasive authority support ing contrary readings of the UPA A

. 28 The Court’s overriding go al in statutory construction must be to implement the Gene ral Assembly ’s intent

. 29 When doing so, it must first look to the plain language of the statute. 30 Here, in the underlying litigation , the Delaware Supreme Court addressed the statute’s structure
as follows : to render the premarital agreement unenforceable unde r the statute [based upon unconscionability] , the spouse conte sting enforcement must prove that the agreement is unconscionable and prove three other grounds

– lack of fair and reasonable disclosure of the other spouse’s property or financial obligati ons, non

- waiver, and lack of adequate knowledge of [the other spouse’s ] pro perty and financial obligations

. 31

I n this matter’s underlying litigation, the Su preme Court d id not expressly address the effect of failing to include a waiver of disclosure prov ision. Nor was it necessary for the Court to define “non

- waiver” in the passage quoted above.

28 Mr. Ellis offers a Kansas Supreme Court decision interpreting the provision in the UPAA to refer to “a waiver of any future disclosures, and not to a waiver of any and all disclosures made in the past.” Davis v. Miller , 7 P.3d 1223, 1229

– 30 (Kan. 2000) (emphasis added). Mr. Ellis also cites a Georgia appeals court decision holding that the UPAA does not provide that the waiv er of disclosure provisions is a “silver bullet.” Kwon v. Kwon , 775 S.E.2d 611, 615

– 16 (Ga. App. Ct. 2015). In response, Mr. Sherman cites an Illinois appellate court decision
, In re Marriage of Solano , 124 N.E. 3d 1097 (Ill. App. Ct. 2019). In that dec ision, the Illinois court held that the waiver of disclosure provision in the UPAA is effective as to all disclosures, past and present. Id. at 1111. 29 Zambrana v. State , 118 A.3d 773, 775

– 76 (Del. 2015)

. 30 Friends of H. Fletcher Brown Mansion v. City of Wilmington , 34 A.3d 1055, 1059 (Del. 2011) (quoting Caminetti v. United States
, 242 U.S. 470, 485, (1917) ). 31 Silverman 206 A.2d at 832

– 33 (emphasis added).14

Nevertheless, its statutory interpretation of S ubs ection 326(a) controls. When

a pplying this interpretation, i t follows that whatever further disclosure s “bey ond the disclosure provided” are , if the premarital agreement includes language waiving such a disclosure, then it is impossible for the challenging party to invalidate a premarital agreement based upon unconscionability

. Mr. Ellis relies upon the rule o f statutory construction that statu t es should not
be r e ad to render their provisions meaningless. 32 In this regard, he argues that the two subparagraphs when read in pari materia , cannot be reconciled. Regardless of the difficulty in interpreting and appl ying the two provisions, the Act’s plain language must control. Here, t he policy and rationale behind including such a “silver bullet” is for the General Assembly to decide , not the Court

. By including subparagraph ( a ) (2)b in the Act, the General Assembly has permitted any party who
include s a waiver of disclosure provision in a premarital agreement to in all cases defeat a challenge to the Agreement based upon alleged unconscionability

. As the Delaware Supreme Court recognized in the underlying c ase, “[i]t may be time to
take anot h er look at Delaware’s premarital agreement law . . .” 33 When observing this, the Supreme Court based this recommendation, in part, upon the circumstances
of this case (in the underlying litigation) and
, in par t, upon oth er states’ decisions to adjust the UPA A based up on their experiences. 34 On balance, given the Delaware Supreme Court’s guidance in Silverman
, the plain language of the statute, and persuasive authority interpreting the UPAA consistently with Ms. Jones’s interpretation, there is a n adequate foundation for Ms.
J ones’s interpretation. As a result, in total , the record includes competing opinions

32 See 1A Sutherland Statutory Construction § 21:1 (7th ed.) (explaining that [c] ourts should construe a statute, if possible, so no term is rendered superfluous or meaningless ”). 33 Silve r man , 206 A.3d at 834, n

. 46

. 34 Id

.15

regarding the necessary standard of care that applied in 1997 to an attorney drafting a premarital agreement desi gned to protect a client’s assets. 35 The opposing experts evaluated Mr. Ellis’s performance in light of the applicable standard s of care that they described. 36 These competing opinions create issue s of fact regarding the applicable standard and whether Mr. Ellis breached it

. 37 As a result, s ummary judgment is inappropriate o n those bases

.

Proximate cause in a t ransa ctional legal malpractice claim must be evaluated under the same traditional principals of tort law that apply to

litigation malpractice claims

. In Delaware, the elements of a legal malpractice claim include “(1) the employment of the attorney; (2) the attorney’s neglect of a reasonable duty; and (3) the fact that such negligence resulted in and was the proximate cause of loss to the

35 Delaware adopted the Act the year prior, in 1996. 70 Del. Laws ch. 462, § 2 (1996). Compare also Pl. Response, Ex. D “Deposition of Judy M. Jones,” at 47 providing:

Q: Any time an attorney, in your opinion represents a spouse seeking to protect his or her assets in drafting a prenuptial agreement, is it your belief that any time that they did not suggest including that waiver language, they are committing malpractice to their client? A: Probably yes. with Pl. Response, Ex. E “Deposition of Kathryn Laffe y,” at 55 providing:

Q: So you don’t believe the standard of care of the Delaware family lawyer preparing a prenuptial a greement requires this inclusion of this disclosure waiver language? A: Certainly not in 1997. 36 Compare Pl. Response, Ex. D “Deposition of Judy M. Jones,” at 102.

Q: And again, is it your opinion within a reasonable degree of professional certainty based on your professional experience, that Mr. Ellis’ failure to include the waiver language . . . was a deviation from the applicable standard of care expected of a Delaware family lawyer? A: Yes, it was. It was a deviation. with Pl. Response, Ex. E “Depositi on of Kathryn Laffey,” at 50.

Q: Do you believe that Stephen Ellis deviated from the applicable standard of care in the drafting of this document? A: No. 37 See Streevy v. Roberts , 2007 Del. Super. LEXIS 2634 (Del. Super. Mar. 21, 2007) (explaining that “competing expert testimony is a classic issue of fact for the jury”).16

client.” 38 O ften, legal malpractice claims arise out of an attorney’s conduct during the course of litigation. In those circumstances, the plaintiff must “demonstrate that the underlying action would have been successful but for the attorney’s negligence.” 39
In the litigation context, the gen eral rule requires analyzing a “case within a case.” Namely, a legal malpractice plaintiff cannot succeed in a claim unless he or she can demonstrate that but for the defendant’s negligence in a litigated case, the plaintiff wou ld have won. 40 While Delaware case law has not u se d the specif ic “case within a case” nomenclature, Delaware law aligns directly with that general approach in litigation malpractice cases

. Namely, in Flowers v. Ramunno
, 41 the Delaware Supreme Court artic ulated the causation standard for such a claim. In that decision, the Court required the plaintiff to “demonstrate that the underlying action would have been successful but for the attorney’s negligence.” 42 Other legal malpractice actions , however, stem from attorney represen tations
in transactions . Legal malpractice actions in the transactional context often do not look back on the success or failure of litigation, but involve evaluating an attorney’s
actions that
, at the time
, looked forward toward a future deal, settlement, or the prevention of litigation. Distilling a general rule for transactional malpractice cases has caused more uncertainty than in the binary, win versus lose, litigation setting. Transactional legal malpractice cases may arise f rom an attorney’s drafting of a release, or as in this case, a premarital agreement. In such transactional representation claims, some of those cases follow a loss to the client in litigation. S uch cases fit more easily within

38 Weaver v. Lukoff

, 511 A.2d 1044, 1986 WL 17121, at *1 (Del. July 1, 1986) (TABLE). 39 Flowers v. Ramunno , 27 A.3d 551, 2011 WL 3592966 at *2 (Del. Aug. 16, 2011) (TABLE). 40 Id. 41 Id. 42 Id. (emphasis added).17

the general rule for causat ion used in litigation malpractice

. A t some point
, there was often a poor result in an underlying suit

. Other transactional malpractice cases, however, stem from lost profits, a disappointing settlement or sale price, or a lost benefit of the bargain. For instance, they may include claims that an attorney’s malpractice caused lost profits in a deal that the parties did not consummate, or did so under less favorable terms than were possible. These claims may also, inter alia , involve lost net profit be cause an attorney either negligently prepared documents or negligently represented a party in negotiations. In those transactional malpractice cases, the success of an “underlying action” cannot be gauged in binary terms such as winning or losing.
To date, the Delaware Supreme Court has not addressed the standard for proximate cause in transactional malpractice claims. 43 A number of other jurisd ictions have examined the issue and align in two camps. 44 Some jurisdictions
continue to use a “case within a case” framework while modifying its application by applying a “but for” causation requirement in the transactional context. On the other hand, some courts provide for a more relaxed causation approach in transactional legal malpractice cases due to the n umber of variables involved in a successful
transaction

. Mr. Sherman advocates this relaxed approach and equates it t o a loss of

43 But see Dickerson v. Murray , 2016 WL 1613286 at *4 (Del. Super. Mar. 24, 2016) (relying upon a decision of the Court of Appeals of Ohio to explain application of the “walk away” scenario in legal malpractice claims in a manner that seems to relax the standard for proximate cause without articulating the standard )

. 44 See George S. Mahaffey Jr., CAUSE

- IN

- FACT AND THE PLAINTIFF'S BURDEN OF PROOF WITH REGARD TO CAUSATION AND DAMAGES IN TRANSACTIONAL LEGAL MALPRACTICE MATTERS: THE NECESSITY OF DEMONSTRATING THE BETTER DEAL , 37 Suffolk U. L. Rev. 393 (2004) [hereinafter Cause

- in

- Fact ] (generally discussing legal malpractice and specifically addressing the dispute regarding the causation in transactional malpractice claims, including the “Case

- within

- a

- Case” approach). See a lso John M. Palmeri & Franz Hardy, TRANSACTIONAL LEGAL MALPRACTICE CLAIMS: Application of the “Case within a Case” Standard , 50 No. 3 D RI For Def. 48 (2008) (noting that, in the author’s opinion, the majority of courts that have addressed causation in a tr ansactional malpractice claim have adopted the case within a case standard).18

chance type action . He argues that there is a cognizable malpractice claim if an attorney’s actions merely resulted in a loss of chance to avoid excess litigation.
A t least one secondary source has characterized the “case within a case” approach as representing the general rule in the transactional context. 45 The most cited c ase supporting this approach is the Supreme Court of California’s decision in
Viner v. Sweet

. 46 That court reasoned that: [there is] nothing distinctive about transactional practice that would justify a relaxation of, or departure from, the well

- established requirement in negligence cases that the plaintiff establish causation by showing either (1) but for the negligence, the harm would not have occurred, or (2) the negligence was a concurre nt independent cause of the harm

. 47
There, the court rejected an intermed iate appel late court’ s reasons for relaxing the
b ut for test for causation . The lower court relaxed the standard because of the large number of variables necessary to evaluate transaction al success when compared to success in litigation. In rejecting a relaxed causation standard, the Supreme Court
of California observed that “[c]ourts are properly cautious about making attor neys guarantors of their clients ’ faulty business judgment. ” 48 Other high courts have likewise required a showing of “but for” ca usation. For instance, the Supreme Court of Minnesota f ormally adopted this approach in the transactional setting in Jerry’s Enterprises, Inc. v. Larkin et al. 49 There, the court held that in a transactional malpractice matter, “the [proximate cause of da mages element] of a cause of action is modified to show that, but for defendant’s conduct,

45 See Palmeri & Hardy, TRANSACTIONAL LEGAL MALPRACTICE CLAIMS: Application of the “Case within a Case” Standard ( describing the “case within a case” standard as the majority appro ach ). 46 70 P.3d 1046 (Cal. 2003). 47 Id. at 1051. 48 Id. at 1053 (citing Bauman, Damages for Legal Malpractice: An Appraisal of the Crumbling Dike and Threatening Flood (1988) 61 T EMP

. L. R EV

. 1127, 1154

– 55). 49 711 N.W.2d 811 (Minn. 2006)

.19

the plaintiff would have obtained a more favorable result in the underlying
transaction than the result obtained.” 50 When articulating this standard , the Supreme
Cou rt of Minnesota held that w ithout a demonstrated failure in the underlying transaction, proximate cause cannot be established under this rule. 51 This approach
fits loosely within a “case within a case” analysis

. I n order to prove causation under
this standard
, a plaintiff must demonstrate consequences that resulted from the alleged n egligence in contrast to what should have resulted from the transaction. 52
C ourts applyi ng this but for standard in transactional malpractice cases require
evid ence of the potential missing li nks in the causal chain. Specifically
, in claims involving an alleged failure to “obtain or advise of a provision, concession or benefit,
the [plaintiff

- ] client must prove that the other party would have agreed.” 53 Evidence that the other party “might have” agreed to the term is insufficient to meet this showing. 54 These courts reason that without such a showing, juries would have to speculate regarding a myriad of possibilities that could have occur red following the suggestion or failure to suggest an additional term to an agreement

. The California Supreme Court and the Supreme Court of Virginia have both required plaintiffs to
meet this burden

. 55 In d oing so, they recognize that absent evidence that the other

50 Id at 819; See also Adams v. Manion , 2017 WL 2729603 at *2 (Minn. Ct. App. June 26, 2017) (quoting Jerry’s Enterprises, Inc. , 711 N.W.2d at 819); Viner , 70 P.3d at 1054 (finding that a plaintiff must show “but for the alleged malpractice, it is more likely than not t hat the plaintiff would have obtained a more favorable result”). 51 Id. 52 3 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 24.5 (2019 ed.). 53 Id. (citing Hazel & Thomas, P.C. v. Yavari , 465 S.E.2d 812, 815 (Va. 1996)). 54 Id. (citing Hazel , 465 S.E.2d at 815 (finding the plaintiff did not show the other party would have still agreed to the contract where the other party stated he did not know if he would have granted a request for the added provision in the agreement at issue, but “certainl y would have found a way to make the deal happen”)). 55 Viner , 70 P.3d at 1053 ; Hazel , 465 S.E.2d at 815

.20

part y would have likely agreed to the t erm, a plaintiff

- client has not shown that the negli gence proximately caused a loss

. 56 The Court recognizes that apart from these jurisdictions, others relax the nexus necessary to demonstrate proximate cause of harm . For instance, Mr. Sherman relies upon the Wisconsin decision in Estate of Campbell v. Chaney

. 57 In that decision, the Court of Appeals of Wisconsin examined a claim involving a premarital agreement. 58 The plaintiff alleged that because of how a draftin g attorney structured an agreement, the plaintiff had to engage in unnecessary litigation

. 59 Namely, in Chaney , the underlying case settled before a final decision, but after some litigation. 60 In framing the standard regarding causation, the Wisconsin hig h court required a showing “that the attorneys’ negligence caused weakness in the prenuptial agreement and that the weakness caused litigation.” 61 The court reasoned that it was “immaterial that the agreement might later be enforced after a finding that
th e widow already knew the financial information . . . . [I] f [a failure] caused the [plaintiff] to settle a claim that a proper agreement would have made meritless, then the attorney may be held liable.” 62
The defendant

- attorney in Chaney argued a strict “ case within a case”

app roach to causation; namely, he argued that because the agreement was not

56 See Viner v. Sweet , 117 Cal. App. 4th 1218 (Cal. Ct. App. 2004) (finding on remand, while recognizing that an “express concession” by the other party of what they would have agreed to is not necessary and that circumstantial evidence can be used to establish causation, that the plaintiff did not identify direct or circumstantial evidence of causation in support of the claim ); see also Hazel , 465 S.E.2d at 815 (finding the plaintiff failed to provide sufficient evidence of his attorneys’ negligence when he could not point to any evidence that the other party would have agreed to the additional provisions). 57 485 N.W.2d 421 (Wis. Ct. App. 1992). 58 Id. at 423. 59 Id. 60 Id. 61 Id. at 425. 62 Id.21

nullified by judicial decision because the parties had settled mid

- litigation , there was no cognizable malpractice claim

. 63 In rejecting that argument , the Wis consin high court adopted a relaxed standard for causation for transactional based claims. 64 When doing so, that court applied what seems to be an improper burden shift

. 65 Namely, it denied summary judgment because the defendant

- attorney could not
show tha t the plaintiff settled despite a strong probability that the plaintiff would have prevailed. 66 Such an approach does not comport with traditional tort concepts. Rather, it constitutes an improper burden shifting in a loss of chance setting . In fact, it provides for what is nearly alternative liability. Delaware case law has never accepted alternative liability as an exception to the requirement for traditional proximate causation. 67 The Seventh Circuit Court of Appeals has also held that proving a case within a case is unnecessary in transactional legal malpractice claims. 68 Namely, in Nicolet Instrument Corp. v. Lindquist & Vennum , the Seventh Circuit examined a district court’s granting of summary judgment . The district court granted su mmary judgment because the Plaintiff could not prove that the other party would have agreed to the term at issue. 69 The Seventh Circuit reversed, holding that “but for” causation is not the appropriate benchmark in transactional legal malpractice

63 Id. 64 Id. (finding the question for summary judgment purposes was “whether the defendant's alleged negligence forced the estate to engage in litigation it otherwise would not have had to engage in ”). 65 Id. at 426. 66 Id. 67 State Farm Fire & Cas. Co. v. Middleby Corp. , 2011 WL 683883, at *3 (Del. Super. Feb. 8, 2011) (explaining that “[i] n the nearly twenty

- five years that have passed since Nutt [ v. A.C. & S. Co., Inc. , 517 A.2d 690 (Del. Super. 1986) ] , the legislature has not authorized collective liability under either the market

- share or alternative liability theories, and the Court perceives no reasoned basis for it to impose such a change now”)

. 68 Nicolet Instrument Corp. v. Lindquist & Vennum , 34 F .3d 453 (7th Cir. 1994) 69 Id. at 455

– 56.22

actions. 70 To the contrary, it applied what it described as a “not very demanding
standard.” 71 In doing so, it recognized the difficulty of proof of causation in legal malpractice cases in even the l itigation setting, and the significantly greater difficulty
involv ed in the transactional setting where there often is no “right outcome.” 72 Because of that difficulty, the Seventh Circuit relaxed the standard and did not require the plaintiff to prove that the other party would have likely agreed to the
additional term

. 73
These cases and others like them differ from Delaware precedent that applies traditional concepts of proximate c ause consistently among tort claims. In legal malpractice claims, the Delaware Supreme Court’s only decision addressing causation, although in the litig ation malpractice context , recognize d that traditional proximate cause
, with a “but for” floor for liability , applied. 74 A lternative liability has not been applied in Delaware in any setting

. 75 Moreover, there is no support in
Delaware law to relax the standard for only one sub

- set ( transactional legal malpractice claims) of one type of claim (legal malpractice claims in general), merely because the former, by nature of the challenged attorney action, has an
increased number of variables that m ake it more difficult to prove.

70 Id. at 455. 71 Id. 72 Id. 73 Id. 74 Flowers , 2011 WL 3592966 at *2. 75 Nutt v. A.C. & S. Co., Inc. , 517 A.2d 690, 694 (Del. Super. 1986) (referencing In re Asbestos Litig. , 509 A.2d at 1118 when “declin[ing] to adopt the alternative liability theory in Delaware. [The Court is] satisfied that such a change in traditional tort law sh ould be left to the legislature ”) ; In re Asbestos Litig. , 509 A.2d 1116, 1118 (Del. Super. 1986) (explaining that an assumption of product i dentification would be “mere speculation and would be the establishment of something akin to market

- share l iability . . . , a change in Delaware tort law which if desired this Court believes is best left to the legislature”), aff'd sub nom. Nicolet, Inc. v . Nutt , 525 A.2d 146 (Del. 1987)

.23

A recent Supreme Court of Mississip p i decision that addressed a legal malpractice claim in the transactional context is persuasive

. 76 In Gulfport OB

- GYN,
P.A

. v. Dukes , that c ourt examined a claim involving an employment agreement ’s covenant not to compete. 77 An employee left the plaintiff

- client’s medical practice to start her own practice and challenged its enforceabilit y

. 78 After the departing physician prevailed, the plaintiff

- client filed a legal malpractice claim a ga inst the
law firm that drafted the employment agreement because of a missing provision

. 79 In affirming the lower court’s decision to grant summary judgment, the Supreme Court of Mississippi described the required showing of proximate cause
where an underl ying transaction is at issue

. 80 It explained that a legal malpractice
claim requires a plaintiff to establish proximate cause by the trial

- within

- a

- trial test, and that while transactional claims may not involve a “trial” or “case,” the “same principles ap ply: causation ‘turns on whether the attorney’s conduct was the but

- for
cause of the failure to obtain a more favorable result rather than success or failure in litigation.’” 81 Noting that a substantial majority of courts have followed this rule
, 82
the Mississippi court persuasively held that where the complaint is that the attorney should have proposed different or additional terms to a transaction, the malpractice plaintiff must show

76 Gulfport OB

- GYN, P.A. v. Dukes, Dukes, Keating & Faneca, P.A.
, --- So.3d

---- , 2019 WL 4071721 (Miss. Aug. 29, 2019)

. 77 Id. at *1. 78 Id. 79 Id. 80 Id. at *2

– 4. 81 Id. at *2 (quoting Frederick v. Wallerich , 907 N.W.2d 167, 173 (Minn. 2018)) (citing Mahaffey Jr., Cause

- in

- Fact , at 436

– 37). 82 Id. (citing John M. Palmeri, Franz Hardy, Nicole Salamander Irby, Better Deal or No Deal: Causation in Transactional Malpractice Cases , 42 C OLO

. L AW . 51, 51 (Dec. 2013), which in turn cited Viner v. Sweet , 70 P.3d 1046 (2003); Serafin v. Seith , 672 N.E.2d 302 (1996); Blackhawk Building Systems, Ltd. v. Aspelmeier, Fisch, Power, Warner and Engberg , 428 N.W.2d 288 (Iowa 1988); Jerry's Enters., Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd. , 711 N.W.2d 811 (Minn. 2006); Froom v. Perel , 872 A.2d 1067 (N.J. App. Div. 2005); Hazel and Thomas, P.C. v. Yavari
, 465 S.E.2d 812 (Va. 1996); Cannata v. Wiener , 789 A.2d 936 (Vt. 2001)).24

that such terms would have been accepted by the other party or that t he client would not have entered into the deal and would have been better off for doing so. Absent such proof there exists no genuine issue of material fact as to causation of damages, and summary judgment is appropriate. 83

P roving causation in a transactio nal malpractice claim, as in a litigation malpractice claim, requires proof that, but for the attorney’s negligence, the plaintiff
would have obtained a more favorable result. While ultimate success in litigation in a case like Mr. Sherman’s does not per se b ar a malpractice claim, when the claim
involve s alleged negligence in not proposing or including an additional term in a proposed agreement, the plaintiff

- client must first show that the other party would have agreed to the omitted term. Without evide nce of record supporting a reasonable
inference tha t the opposing party would more likely than not have agreed to the term,
there is no genuine issue of material fact regarding proximate cause of damages.

Mr. Sherman does not demonstrate a genuine issue of material fact regarding proximate cause of damages.

At the outset , Mr. Ellis meets his initial burden on summar y judgment as to proximate cause

. He emphasizes that the Supreme Court held the Agreement to be
enforc eable. A s a result, Mr. Sherman prevailed in the underlying litigation

. Accordingly, t he burden shifts to Mr. Sherman to demonstrate a n issue of fact regarding proximate cause of harm

. In response to Mr. Ellis’s motion, Mr. Sherman emphasizes the conflic ting deposition testimony of the expert witnesses. 84 He also claims the amount of damages he suffered are not speculative because his litigation attorney, Mr. Gagne, quantified the alleged harm as extra fees and costs incurred during the Family Court

83 Id. at *4. 84 Pl. Response , at 3

– 8.25

liti g ation and Supreme Court appeal

. 85 In his testimony, Mr. Gagne provides an estimate of the attorneys’ fees that Mr. Sherman would have incurred had the waiver of disclosure language been included in the Agreement. 86 Specifically, Mr. Gagne
believed there wo uld have been no need to hire experts for the Family Court litigation
, 87 and that the trial in Family Court would have taken approximately one

half a day. 88 He conceded, however, that he would have still taken some depositions
and would have had to litigate the matter in Family Court. 89 Based on this reasoning, Mr. Gagne estimated that the litigation would have cost Mr. Sherman approximately $35,000 to $50,000 in co mparison to the $310,000 he charged him

. 90 Mr. Gagne’s estimation of the difference i n costs

— or in other words, an identification of the amount of damages Mr. Sherman incurred

— provides sufficient evidence for a reasonable jury to fix an amount of damages . That, however, is not all that is required. There must be sufficient evidence for i t to reasonably infer that the alleged negligence proximately caused the harm.
The evidence of record when considered in the light most favorable to Mr.
Sherman does not permit that bridge

. Namely, Mr. Sherman does not me e t h is burden by demonstrating th at there is a genuine issue of fact regarding whether the costs and fees would not have been incurred but for Mr. Ellis’s alleged negligence. 91

85 Id. at 9

– 10. 86 Pl. Response, Ex. F, at 42

– 43. 87 Id. at 42:7

– 42:13 (stating “[s]o with the waiver language in, I would not have retained the experts for the valuations . . . I believe the expert costs and fees associated with depos, and that was to 38,000.00”). 88 Id. at 42:18

– 42:19 (stating “[i]t would have been probably a half day trial”). 89 Id. at 42:13

– 43:4 (stating “I would have had to go to a trial in Family Court, nonetheless, I would have had the waiver

– I still would have taken Tom Gay’s deposition, which I did. I still would have done that even under the err [sic] set of circumstances . . . I still would have taken Ms. Sherman’s deposition . . . [Mr. Sherman] would have been . . . And I assume Ms. Dougherty would have taken Mr. Ellis’s deposition even had the waiver language be [sic] in there”). 90 Id. at 43:4

– 43: 18 (stating “[a]n estimate, probably 35 to 50 [thousand dollars]”). 91 Flowers , 2011 WL 3592966 at *2

.26

B ecause the unde rlying action is a transaction and involves the claim that Mr. Ellis
failed to include a particular provision in the Agreement, Mr. Sherman would have to demonstrate evidence justifying a jury’s inference, that more likely than not, his

ex

- wife would have accepted the Agreement with the additional provision

. In this regard, the Court recognizes that the evidence permits a clear inference
that she might have

. 92 This “might have” evidence includes the ex

- wife’s agree ment to other unfavorable terms, and Ms. Jones’s expert opinion. 93 Alone
, the former
does not constitute a circumsta nce supporting an inference of a probability that Mr. Sherman’s ex

- wife would have agreed to a wholly separate term. In addition
, Ms.
Jones conceded the same in her deposition testimony where she admitted that speculation would be necessary to make that assumption. 94 In support of Ms. Jones’s opinion regarding proximate cause of harm
, she cited the fact that Mr. Sherman’s

ex

- wife signed the Agreement against her attorney’s advice . Nevertheless , Ms.
Jones testified that she does not “think there is any wa y of knowing where [sic] whether she would have refused signing the prenup if that statement had been in
there or not

. ” 95 In fact, she confirmed the degree of speculation regarding the ex

wife’s a greement to such a term to be “pure speculation.” 96 Here, the record contains no testimony from Mr. Sherman’s ex

- wife, one of the two parties to the Agreement , bearing on this material issue . Nor do es it contain testimony from the attorney who adv ised her . A s recognized in the Viner decision,
while an express conc ession of acceptance is not necessary to prove proximate cause

92 See Mallen & Smith, Legal Malpractice (citing Hazel , 465 S.E.2d at 815 when explaining that it is “not sufficient to show that the other party ‘might ha ve’ agreed” to prove proximate cause of harm in a transactional malpractice claim)

. 93 Pl. Response, Ex. D “Deposition of Judy M. Jones,” at 39:15

– 46:5. 94 Id. at 40:1

– 40:4. 95 Id. at 41:12

– 41:15. 96 Id. at 41:15.27

of harm , there must at a minimum be circumstantial evidence of a probability of acceptance of the term

. 97 The Court recognizes that proving proximate cause of harm will often be challenging in circumstances, such as the one at hand, where the decision maker was and remains an adverse party to the malpractice

- plaintiff. As the California Supreme Court correctly recognized in Viner , however, “difficulties of proof cannot justify imposing liabili ty for injuries that the attorney could not h ave prevented by performing according to the required standard of care.” 98 On balance, th e record
contains no evidence

— direct or circumstanti al

— that permits a reasonable inference
that Mr. Sherman’s ex

- wife woul d have more likely than not agreed to this critical

term. Because (1) the but for standard for proximate cause represents the evidentiary
floor for establishing proximate cause , and (2) a critical link in the causal chain is missing in this record, summar y judgment must be granted in favor of Mr. Ellis.

Conclusion
When considering the facts of record in the light most favorable to Mr.
Sherman
, there is no genuine issue of material fact regarding whether Mr. Ellis proximately caused Mr. Sherman’s alleged damages . As a result, Mr. Ellis’s Motion for Summary Judgment must be GRANTED

.

97 Viner , 70 P.3d at 1053. 98 Id.