## In the Court of App eals Second Appellate District of Texas

at Fo r t Worth

___________________________ No. 02

- 22

- 00399

- CV

___________________________

On Appeal from the 48th District Court Tarrant County, Texas Trial Court No. 048

- 3235 85

- 21
Before Sudderth, C.J.; Birdwell a nd Wo m ack, JJ. Memorandum Opinion by Justice Womack 

### A BERCROMBIE 

### G ROUP 

### , LLC AND 

### A BERCROMBIE 

### H OLDINGS 

### , LLC , Appellants

V



### . R OBERT 

### C LARK 

### ; F LYNN 

### F RANCIS 

### & C LARK 

### , LLP; AND 

### F LYNN 

### & F R ANCIS 

### , LLP , Appellees2 MEMORANDUM OPINION
I. I NTRODUCTION Appellants Abercrombi e Group, LLC and Abercrombie Holdings, LLC 1 appeal
the trial c ourt ’ s order gra nti ng Appellees Robert Clark ; Flynn Francis & Clark, LLP ;

an d Flynn & Fra n cis, LLP ’ s 2 ( collectively, the lawyers) motion for summary judgment. In a single issue, Abercrombie complain s tha t the trial court erred by granting summary judgment in this legal malp ractice case involving a promissory note (the Note) and a real esta t e d ev elopment p roject . W e will affirm

. II. B ACKGROUND In 2007, Cary Clarke 3 formed Keller Winding Creek, LLC (KWC) for the
purpose of developi ng a pproximately twenty acres of land into r esidential lots (the Prop erty )

. In exchange for $400,000 , A b e r cr o mbie r eceived a 16% membership
interest in K

WC

. I n 2009, Abercr ombie wanted it s money back and ret ained the lawyer s to represent it in litigation again st K WC ; Founders Development C ompany , L P

1 Because Abercrombie Ho ld in gs, L L C l ater transfer red t h e s ubject promiss ory note to Abercrombie Group, L LC, we will col lectiv ely refer to Appel l ants as
“ Abercrombie. ”

2 The pleadings a llege d that attorney Clark “ act[e d] at all times material hereto as an agent or represen tati ve of either th e law fir m of F lynn & Francis, LLP or Flyn n, Francis & Clark, LLP. ”

3 We will refer to Cary Cl a rke as “ Cary ” and De vane Clar ke as “ Devane ” beca use both are invo lved in this litiga tion and share the s a me surname .3

(Foun ders)

—

which held a 6 4% membership interes t i n KW C ; The Devane Clarke Partnership , Limited (Devane Partnership)

— which held a 12% membership interest
in KWC ; and Cary , individ ually. The remai ning 8% membership interest in KWC w as owned by Petroleum Financ ing, Incorporated

. Cary w a s t he presi d ent of Cary Clarke
H omes, Inc., which was the General Partner of both KWC and Founders

. Devan e Clarke wa s Car y ’ s fat he r . In an August 2 0 09 “ Unanimous Consent & Certificate of Resolution , ” th e KWC members agr eed tha t F o un ders woul d purchase the interest of Abercro mb ie

“ by w ay of promiss ory note with an original principal balan ce of $40 0,000.00 with an

ann ual interest r ate in the amount of 15%. ” L ater that month, Foun d ers as borrower
executed the Note wit h A b e r crombie a s lende r in the principal amount of $400,000
with an annual inter est rate of 15%. The terms of payment were “ [o ]ne lu mp sum payment including pr incipal and all unp aid interest u pon com p leti on of the [KWC] development project

. ” T he Pr operty was not security for the N ote. Rather, the Note
reflect ed that “ Security for Payment ” was the “ [p] ersonal guarant ee of Cary Clarke. ”
Devane died in 2011. Thereafter, Cary began ma na ging Devane P artne r sh ip , and the P roperty was tran sfe rred from KW C to De van e Partnership o n April 8, 201 3

. On A ugus t 27, 2013, Abercrombie

— c oncerned about getting paid the money
pursuant to the N ote

— contacted attorney Robert Cl ark about putting a lien on t h e P roperty. However, Clark advised th at , because the Note was not secure d by the Property , Aber cr o m bie should instead “ file a No tice of Agreement in the deed4

records to put potential purchase rs on n otice. ” The Notice was filed i n the deed
records in September 2013.
Almost f our years later, A bercrombie ’ s representative sent an email to Clark stating that Abercrombie was “ ready to sue [Cary] or at least start with a very stern
letter. ” Ultimately, o n November 28 , 2017 , the lawyers filed suit o n behalf o f Abercrombie against KWC, Founders , Devane Partnership , and Car y , in d ivid ually (the underlying lawsuit)

. Th e law suit sought “ to refor m the [ N] ote so that it [wo uld be currently] due. ” According to the plead i ngs , “ It was never the intention of the
par ties t ha t the [N] ote would still not be due 8 + years after t he [ N] ote was sig ned. ”
In addition to t he Note ref ormation , the pleadings sought “ imposition of a
constructive trust upon the Wi nding Cree k pr o per ty or on any sales proceed s from its

sa le due to the fraud of Defe ndant s , ” or alternatively, actual dama ge s of $400,000 plus
i nteres t. At some po i nt after the underlying law suit was filed, Aber crombie secured
the services of attorney Caleb M o ore to represent it instead of the lawyers

. Moore

se ttled t he underlying lawsuit for th e payment of $400,000 to Abercro mbi e by the
defend a nt s.
I n Febr uary 2021, Abe rcrombie f iled a legal malprac tice law suit against the lawyers. I n the lawsuit , A berc r omb ie alleged ,

Pre vious to the filin g o f the lawsuit, Defendant Robert Clark had prepared a Memorandum o f Agr eement made effect ive August 25, 2009 and ac kno wledged on Septe mber 6 and September 23 , 2013, on behalf of Abercrombie Holdings, LLC. The Memoran d um of Agreement gave notice of a Pro mis s ory Note pay able to Abercrombie Holdings, LLC5

from Founders Develo pme nt, LP in the prin cipal sum o f $ 400,000 with in terest at 1 5% pe r annum, da ted August 25, 2009 ( “ the Note ” ). The Memorandu m of Agreement states in par t tha t the property in ques tion ( the Keller Winding Creek Development Project) was transferre d to The D eva ne Clark e Partners hip, L t d. o n A pril 8, 2013

. [ ] The Not e pro vided in pa rt that payment would be due in one lump sum upon “ completion of the Kel l er Winding Creek Development P roject

. ” As of the date of the conve yance of the property comprising the Ke lle r Winding Creek De velopment P roj ect to The D evan e Clark e P artne r ship, L td. , it was clear that the Keller Winding Creek Develop ment Project would n e ver be completed by Founder ’ s Develo pme nt , LP.
Based on these facts, Abercrombi e ’ s pl eadings contended that t he four

- year stat ute of
limitati ons for b reach of cont ract on the Note “ began to run at t he latest on September 6, 2013 , when [ Abercromb ie

] first disc o ver ed the conveyance of the [ P ] roperty to [

D ev ane Pa r tnership ]

. ” A bercrombie alleged that , because the sta tu te of
limitat ion s had expire d when the lawy ers filed the unde rlying lawsuit , it was “ forced to settle that case for the best terms possible ” eve n th o ugh there wa s stil l owin g “ in

exc es s of $800,000 in interest on the prom issory note which could not be co llected. ”
A b ercr ombie ’ s c onte ntion in th e l egal malp rac tice law suit wa s that the lawyers

“ were negli gent in their representatio n of [Aberc r omb ie] by f ailing to file suit [ o n the
Note ] w ithin the l imitations period. ” Abercrombie further alleged that the lawyers

were “ independen t ly liable for not ma inta ining or enforcing policies and procedures designed to pre vent statutes of limi tations from ru nning w ith out suit being filed. ”
The l awyers answered the lawsuit and later filed their Traditional an d N o

- E videnc e Motions for S u mmary Judgment. Abercrombi e filed a response to the moti on s for6

summary judgment. The lawyer s repl ied to the resp ons e. After a hear ing, the trial court granted the traditional motion for summar y j ud g m e nt. A bercro m bie appeal s from this o r der.
III. D ISCUSSION
In one i ssue, A ber crombie co ntend s that t he trial court err ed in gr a nti ng summary judgment because there wa s “ more than a scintilla of evidence on the
cha llenged grounds such th at summary j udgment w a s improper

. ” The lawyers respond that the trial court p roperl y granted sum m ary judgme nt because they
conclusiv e ly negate d the essen tial element of pro ximate cause for the legal malpractice
claim.
A. App l ic able Summary Judgment Law and Sta ndard of Rev i ew For a trad itional motion for summary judgment, 4 t h e mova nt mus t show tha t no genui ne i ssue of ma t eri al fact exists and that it is entitl ed to judgment as a matter of law. Te x. R. Civ. P. 166a (c) ; Ea gle O il & Gas Co. v. TRO

-

X, L.P. , 61 9 S .W.3 d 699,
705 ( Tex. 2021)

. To meet this burden, when the defendant is the movant, it mus t concl usivel y nega te at lea st one ess entia l element of each of the plaintiff ’ s claims or conclusively prov e all elements of an aff irm ative de fense. Stan

fi eld v . Neubaum , 494 S .W. 3d 9 0 , 96

– 97 (Tex. 2016); see T ex. R. Civ. P. 166 a(b), (c).

4 W hile the lawyer s filed bot h no

- e vi dence a nd trad i tiona l m ot ions fo r summ ary j udg ment, the trial court ’ s order state d that only the tradi t ional motion was granted. Therefore, we do not add ress Abercrombie ’ s argument s and objections regardin g the
no

- evidence motion for sum mary judgm ent.7

W e re vi ew de no vo t he trial court ’ s rul i ng on a motion for summary judgment.
Z ive v. Sandberg

, 644 S.W.3d 169, 173 (Tex. 2022) (citing Erikson v. Re nda , 590 S.W.3d 557, 563 ( T ex. 2019 )). When d oing so, “ [w]e review the summary judgment r ecord in
the light most favorabl e to t he nonmovant, indu l gin g every reasonable inference and

res olvi ng any doubts against th e motion. ” Ea gl e Oil & Gas Co. , 619 S.W.3 d at 705

. B. Appli c a ble Le gal Ma lpractice Law

“ To prove a leg a l malpractice claim, th e client must establis h that : (1) the lawyer owed a duty o f ca r e to the client; (2) the lawyer bre ached that duty; a nd (3) the lawyer ’ s breach proximately caused da mage to the client. ” Ro g ers v. Zanet ti , 518 S.W.3 d
394 , 400 (Tex. 2017). “ In every case, the plaintiff must sup ply a causal link bet w een the attorne y ’ s a lleged negligence and th e clien t ’ s damages. ” Id. at 404.
Proximate c ause consists of (1) foreseeabil ity and (2) cau se in fac t
. Windrum v. Kareh , 581 S.W. 3d 761 , 777 (Tex. 2019). “ Cause in fact (sometimes referre d to as subst antial factor) r equir es a sh owing that the act or omission was a substantial factor in bringing a bout the injury and without which har m would not ha ve occ u rred. ” Roger s , 518 S.W.3 d at 402. “ Substantial ” is used in its popular sense “ to denot e that
the de fendant ’ s conduct has su c h a n effect in producing the harm as to lead reasonable men to regard it as a c ause. ” Id. (citing Lear S iegl er, Inc. v. Perez

, 8 1 9 S.W.2d 470, 472 (Tex. 1 991)). Cause in fact is “ but

- for ” causa tion. See S tarwood Mgm t., LLC v. Sw aim , 530 S.W.3d 673, 678

– 79 (Tex. 2017)

. Neither f oreseeability nor cause in fact8

can be established “ by mere co nj ec ture, guess, or spec u la tion. ” IH

S Ce d ars Treatment
Ctr. o f DeS oto , T ex., Inc. v. Mason , 143 S.W.3d 794, 799 (Tex. 2004). Generally, in a legal malpractice case , ex pert witness testimony is r equired t o rebut a defe ndant ’ s mo tion for summary judgment cha llenging the causati o n element.
Starwood M

gmt. , LLC , 530 S.W.3 d at 679

. To de f eat su ch a motion, an expert affidavit must be probative an d rai se a fact issue. I d

. ( citing Ryland Grp. v . Hood , 924 S.W. 2d 120, 121

– 22 (Tex. 1996 ) )

. Concl usory affidavit s are not probative. Id.

“ Whe n a legal malpract ice cas e arise s f rom prior litigation, th e plaintiff must prove tha t the client would have ob tained a more favorable r esu lt in the underlyi ng lit igatio n had the attorney conf ormed to the prope r standard of c a re. ” Rogers , 518 S.W.3d at 401 (citing Elizo ndo v. Krist , 415 S. W.3d 259, 26 3 (Tex. 2013 )). Generally , t his is s h o wn by recreating the unde rlying case, or proving a “ c ase

- within

a

- ca se. ” See Ro

gers , 518 S. W.3d a t 401.
C . The La wyers ’ Su mmary Ju dgment M o tion
In the legal malpractice lawsuit, Abercr om bie alleged that the lawyers w ere neglige n t in fa iling to file claims within four y e ars from the d ate that the Prope r ty was

tr ansferred from KWC to Devane P art ner ship

. In th e ir mot io n for summary ju d gment, the lawyers contend ed that A bercrombie co uld not mee t t he “ case

- within

a

- case ” ele ment of proximate cause because (1) all evidence neg ated th at the
defendants in the underlying law suit anticipato rily breach ed the Note and (2) limitatio ns on a breach o f the Note ne v e r a c c r ued because compl eti on of th e9

develo pment of the P roperty had not occ urred. T he lawyers ar gued that due to th e condition pre c e den t

— “ c ompletion of the [KWC] dev elopme nt project ”

— the Note
was not due and paya ble as there is n o dispute that the completion of the proje ct did

not oc cur.
In sup port of their motion for summary judgmen t, the lawyers attached the
followin g evid e nce:

• K WC Certificate of Filing ;

• KWC Company Agreement ;

• Februa ry 23, 2009 de ma n d letter from attorney Cl ark to Ca ry ;

• “ Unani mou s Consent & C ertificate of Resolu tion ” setting o ut the transfer of Abercrombie ’ s membershi p interest i n KW C to Founders ;

• T he N ote ;

• T arrant Appr aisal D is trict owner ’ s in f ormation showing Devane Partnership as owner of the Property by deed dated April 8, 2013 ;

• “ Defe nd ant s ’ First A mended Respo nse to Plaintiffs ’ Mo ti o n for Summ ary Jud gment ” in the underlying lawsuit ;

• “ Tra nsfer of Earnest Money Contract ” showing Cary as Managing Partner of Devane Partner ship ;

• “ S pec ia l Warranty D eed ” dated April 8, 2013 , conveying the Property f rom KWC to Deva ne Partner s h ip ;

• Au gust 2 6

– 27, 2013 emails b e tween an Abercrombie representative and Clark ;

• “ Pla i n tiffs ’ Original Petition ” i n the underl ying la wsui t ;10

• “ Plaintif

fs ’ Initi al Di sclosures ” i n the legal malpractice lawsuit ;

• Cary ’ s aff

i davi t from the underlying lawsu it ;

• L a ndscap e and site plans for the Property ; and

• City of Kel ler M ay 19, 2015 agenda

. I n sup p ort of the lawyer s ’ argument that limitations on the N ot e h a d no t yet

acc rued because the project had n ot been comple te d , Cary ’ s a ffidavit included
info rmation about the status of the pr oject : 5 . In A u gust 20 0 9, t he Abe rcrombies ap pro ached m e a nd demanded t hat [KWC] re

- purchase Abercrombie Holding ’ s share [in K W C]. The Abercrombies explai ned that they w ere at tempting to get a business loan through First National Bank , but the bank told them tha t they n eeded t o get [KWC] off of thei r b alance sh e et because i t was a toxic asset.
6. The Abercrombies p romise d that if I approved their withd rawal as members a nd gua rant ee a Promiss ory Note, they wo uld [ac]cept the note in l ieu of a cash refund.
7. I explai n ed to t hem that I would not ac cep t a def in i te date on w h ich to pay the note because the other membe rs wer e now a ssum ing all the risk to develop the land an d the costs to maintain the land. I further explai ned that no on e knows when the real estate market will co me back or how conditio ns may cha ng e , therefore I would not accept a date certain to pay the note.
. . .

. . . . 10. I have been trying to develo p the l and or have someone else develop it. Most r ecently, I hav e been working with Our Coun try Hom e s and t he City of Keller. Due to the go ve r nm ental shu t d owns [,] that approval process is on hold.11

11. I hav e n ever repre sented that I would not pay the n ote wh en the land is developed.
Attac hed to his aff

idavit w as the landsc ape plan , conceptual sit e plan , and Kel ler C ity
Coun c il agenda regar d ing a zon ing change for the P roperty. In further support of
their motion , the lawyers high lighted the deposition o f Abercromb ie ’ s representa tive,
Christi e Abercrombie , where she tes tifi ed: Q : H as a nyo ne informed you or rep r esented to yo u tha t the Keller Winding Creek developme n t pro ject is complete?
A : No. Finally , they dispute d that the term “ completion ” is sus c eptible to mult iple reasonable interpr etations.
D . Aber c rom bie ’ s Summary Judgment Re s ponse In its response to the summary judgment moti o n, Aberc rombie ackno wledge d
that “ [q]uestions e xist in this case about when the N o te was due and payable, and
when the stat ute of l imitations woul d hav e commenced to run. ” And it asserted that

“ [w]hat must hap p e n for the payment o bligation to be t riggere d is not d e fined and is
ther efore open to multiple inte rpretations. ” Further , Abercrombie point ed out that
neither “ completion ” nor “ Keller Windi ng Creek Development Project ” is defined in
the Note

. W hil e acknowledging th at it is a “ ge nerally co rrect st a temen t of the l aw ” that

“ an i nst rument paya b le upon the occurrence of condition s is gene rally not pay able
until the condition has oc cu rre d, ” Abercrombie contend ed that the lawy e rs never12

warned it “ of ev e n t he possibility of nonenforcement, of the specific l imita tion prob lems, of the po ssi bility of r e pudiation, or o f a need to seek ref ormation or
clarification within 4 years. ” According to Abercrombi e, the lawyer s ’ “ du ty wa s to help the cli e nt understand the legal issues which [it] was not abl e to se e for [ it] self and
find a wa y th rough t h em. ”
Abercrombie ’ s summary judgment response inclu de d the following:

• 2013 and 20 17 emails be tween Abercrombie ’ s represen tative and attorney Clark ;

• E xcerpts from Clark ’ s de p osi tion ;

• E xcerpts f

r o m Moore ’ s deposi tion ;

• E x c erp ts from Christie Abercrombie ’ s deposition ; and

• Moore ’ s declaration

. In i t s response, Abercrombie acknowledge d that the land was “ undevelo ped ”
and , as of April 8, 2013, neither KWC nor Founders “ was e v er going to complete the [KWC] dev e lopment proje c t , much less develo p it at all. ” In h er dep o sition, Ch ristie
Abercrom b ie state d that she first learned of the t ransfer of th e Property from KWC
to Devane Partner sh i p on August 27, 2013

. In his declaration, Moor e stated:

To summar ize my report in this ca s e, I believe it was below th e sta n dard of ca re for [the law y ers] to fail to ad vise [their] clien t o f the earli est possible date that a breach of contract claim would begin to accrue f or p urposes of the limitations period t hat it had to be filed within or b e at risk of di s missal based on a n affirmati v e defense o n l i mitations. . . . The failure to tra c k th e limitation pe riod and to include the claim for brea ch of the promissory note in a ti mely filed petition fell13

b elow the standard of care because it was A b ercrombie ’ s best claim and
a clai m that shou ld hav e been br o ught and still could have been broug h t, i n my opi nion, at least as of April 8, 2017 (the date of the conve yance ), or probably, August 27, 2017 (the date Abercrombie bec ame aware of the transfer [

)

. ] [ ] The date by w hich pay ment w as to be m ade was uncerta i n, unclear, vague, and ambiguous i n t he P romissory N o t e. It would therefore have been impossi ble for a lawyer to know exactly when the statute of limi tations would run, and one instance in which it was likely that the statu te of limitation s wou ld run wou l d hav e been after the maker of the n o te, Founders Deve lopment LLC, no longer had a n ownership interest in [KWC] and [KWC] no lo nger owned the land which comprised the so

- called [KWC] development.
Aber crombie c onten d ed that o n ce KWC transfer r ed its ownership of the Property to
D evan e Partnership , it gave up control of the Property and no longer had the legal right to develop the Property , thus triggering the obligation to pay the Note in full.
E. An a l ysis On appeal, Abercrom bie con tends that the “ accrual date for the s tatu te of
limitations is linked to the payment dat e in the promissory note ” and “ that payment
date is based on undefined and ambiguous terms in the promissory note. ” Bec a u se an

a mbiguity exists, Ab e rcro mbie argue s summary ju d gment on the legal malpractice
claim was inap propriate. The lawyers contend that limitations never began running
on the Note because completion of the KWC dev elopment projec t ha d not occ u rred.
Mor e over, the y argue that whi le “ Abercrombie mentions it settled its unde r lyin g claim to mitigate its damages, it does not a rgue that but for the Attorneys ’ alleged negligence, Abercrombie would have achieve d a better settlement

. ” T herefore, t o14

address these arguments under the “ case

- within

- a

- cas e ” elemen t of a le g al m alpractice
claim , we must first examine the re quirements to sue on a prom i ssory note , including
when a cause of action accrues on a suit o n a note
. A pro missory note is a contra ct be tween maker and paye e . St rickland v.
C ol eman , 82 4 S .W. 2d 188, 19 1

– 92 (Tex. App.

— Houston [1 st Dist.] 1991, no writ). Although a promissory no te is a type of contract, a plaintiff suing on a prom iss o ry

no te ne ed not prove the e le ments of a br each of c ontract claim to reco ver. Clar k v.
Dedina , 65 8 S.W .2d 293, 295 (Tex. A pp.

— Houston [1 st Dist.] 1983, writ d i sm ’ d).
Inste ad, the plaintiff must pro ve: ( 1) the existence of the note in question , (2) the
d efend ant s igned the no te , (3 ) the plainti ff is the o w ner and holder of th e no t e , an d (4) a certa in balance is due and owin g on the note. Wells Fargo Bank , N.A. v. Ballestas

, 355 S.W.3d 187, 191 (Tex. App.

— Houston [1 st Dist.] 2011, no pet.).
Suit on a debt must be brought no later th an four years after the cause of
action accrues. T ex . Civ. Prac. & Rem. Co d e Ann. § 16.004 (a) ( 3); Manand har v. Jamshed , No. 02

- 11

- 00027

- CV, 2011 WL 38 35980 , at *2 (Tex. App.

— Fort Worth Aug. 31, 2011, no pet.) (mem. op .)

. As a general rule, dete rm ining th e accrual of a
cause of action is a question of l a w . See Provident Life & A cc ident Ins. Co. v

. Knott

, 128 S. W.3 d 211, 222 (Tex. 2003).
Defen ses to recover

y o n a pro missory no te include “ want or f ai lure of consideration, non
-

per formance o f a conditi on prec e dent, non

- delivery, delivery for a special purpo s e, fr aud in the inducement, or other defense s whi ch would b e available15

in an action on a simple contract. ” Strickl and , 824 S .W.2d at 192 (empha si s added)

.

“ A condition preceden t is one t hat postpo n es the effective date of the instrument

u ntil the happen i ng of a contingency. ” Litton v. Hanley , 823 S.W. 2d 428, 43 0 (Tex. App.

— Houston [1 st Dist.] 1992, no wr it ) ( citing Baker v. B aker

, 183 S.W.2d 724, 7 28 (Tex. 1944)) ; see Thigpen v . Thigpen , 563 S.W. 2d 868 , 8 71

– 72 (Tex. App.

— San Ant onio 1978, writ ref

’ d n.r

. e.) ( “ The her ein note was due o n demand from the esta t e at the
death of the maker. It d id not mature [] a nd was not payable until this even t happened
and the statute of limita tio ns did not begin to run unti l that date. ” ). Here, payment on the Note was co n ditio ned on “ completion of the [KWC] develop m ent project. ” The lawyers presented summary judgm ent ev idence from Cary, dev eloper of the Project, tha t he had “ been tryin g to develo p the land or hav e someone else develop it ” but tha t the “ process [wa s] on h o ld ” du e to th e
governme ntal s hutdowns during the pandemic

. A ttached to Cary ’ s affidavit w as a lan dscape pl an, conceptual site plan, and Keller City Coun cil agenda regarding a zoning ch ange f

or the Property. Further, Aber crombie ’ s re presentative admit ted that nobody h ad infor med h e r or rep re sent ed to her tha t the Project was complete.
Whil e Abe r crombie ’ s response acknowl edged t h at there were questions
rega rding when the Note was due and payable, it offered no evidence that the project
had b een c ompleted

. Rather, its expert , M oore, stated that the “ date by which
payment was to be made w as uncertain, unclear, vague, and ambiguous. ” A nd

a lthough he believed that “ the statute of limitations likely r an on the claim for breach16

of t he promiss ory note before [ h e ] took over , ” h e still conclud ed that “ [i]t would
therefore h ave been i mpossibl e for a lawyer to know e xactly when the statute of
limitations w ould run. ” Nevert he less, he state d , The ri sk of limitations beginning to run from the date of the conv e ya nce o f t he p roperty or over t he discovery of it was sign if icant b ecause it could result in loss of all the money owing under the Note. Robe rt Clark ’ s fai lure to recognize that risk and advise Abercrombie regarding the risk prior to the earliest pos sibl e date t h e limi tations period could have exp ired was negligen t and t he cause of harm to Abercrombie , whose case was not strong enough to risk g oing to trial with the risk that [the] breach of contract c laim was barred by limit ations, which would result in th e lo s s of $400, 000. 0 0 in principal and al l of the accrued and
owe d inter est. While acknowledging that he settled the case for $400 ,000 , Moore ne it her disputed the fact that the project had not been completed no r explain e d how he
achieved th e set tlem e nt , or ac h ieve d a worse set tlement, if the s tatute of limita tions
had run . Rather, h e merely state d that Ab ercrombie “ mitigated ” its da mages by settling for $400,000. In addition, he failed to e valu ate what the underlying lawsuit would have yie l ded by way of a ju d gment if the case had gone to trial. See Elizondo , 415 S.W.3d at 265 (

noting tha t the ex pert “ did not evalu ate what the Elizondo case would h ave yielde d by way of a judgment if the case had gone to tria l ” ). And Moore
fail ed to explain why the A pril 8, 2 0 13 transf er of the pro perty from one C ary

con trol led entit y

— KWC

— to another Cary

- controlled entit y
— Devane Partne rship

— would ha ve caused limitations to accrue on a N ote which list ed Founders as the only

“ borrower ” on the N ote but also include d a p e rsonal gu a ran tee by Cary.17

This vague tes timony fa ils to raise a m aterial fact issue that the stat ute of
limitations h ad in fact run or that filing the suit on t he Note sooner would have
caused a better result for Abercrombie. See R ogers , 517 S

. W.3d at 130 ; Riner v. Neuman n , 353 S.W.3d 312, 3 21 (Tex. App.

— Dallas 2011, no p et.) ( “ A conclu sory

s tatement is one that d oes no t provide the u nderlying facts in support of the

c onclusion. ” ); see also El

izondo , 415 S.W.3d at 264 ( “ [A]n attorn ey

- expert , ho w ever well
qu alifie d , cannot defeat summar y judgment if there are fatal gaps in his analysis that
lea ve t he court to take his wor d tha t the settlement was inadequate. ” ). Further , Moor e fail ed to explain why he believe d that the statu t e of limi tations had “ l ik ely ” run

w hen i t was unco ntested that the Pr oject had not been completed

. See Rogers , 518 S.W.3d at 405

. To b e com pe tent summary judgment evidence, an expert ’ s op ini on must have a

“ demonstra ble a nd reasoned basis on which to evalu ate his opini o n. ” Id. (quoting Elizondo , 415 S. W

. 3d at 265)

. “ This basis must come in t he form of an answer to the question ‘ Wh y ’ : Why di d th e expert rea ch that parti cular opinion? ” Id. (citing Burrow
v. Arce , 997 S. W. 2d 229, 236 (Tex

. 1 999)). “ A conclu sory st atem e nt of an expert
witness is insuffici ent to create a q uestion of fact to defea t summary judgment

. ”
Mc Inty re v. Ramirez

, 109 S. W.3d 74 1, 749 (Tex. 2003). T he expert must substantiate his opinion wit h “ objective, evidence

- bas ed support for his conclusions. ” Greb v. Madole , No. 05

- 1 8

- 00467

- CV , 2019 WL 286 526 9 , at *5 (Tex. App.

— Dalla s July 3, 2019, pet. de nie d ) (m em. op.) (ci ting W

al

- Mart Store s , Inc. v. Merr

ell , 313 S.W.3d 837, 840 (Tex.18

2010 )). Expe rt testimony that is specu lative or based on assumed fact s contrary to the
evid ence i s also le gally insuffi cie nt to prove the facts t o which it is t estifyin g . Id. (citing Thompso n & K

night LLP v. Patriot Exp l ., LLC , 444 S.W.3d 157, 16 2 (Tex.
A p p.

— Dallas 2014, no pet .) )

. “ Ca usation must be proved, and conjecture , guess, or

s peculation wi l l not suf

fice as that pro of. ” Akin, Gum p, Strauss, Hauer & Feld, L. L.P

. v. Nat ’ l Dev. & R

sch. Corp

. , 299 S.W. 3d 106, 122 (Tex. 2009).
As the movant o n a tra ditional summary judgment motion, a defe ndant is entitled to summary judgment if t he evidence disp r oves as a matter of la w at least one element of the plaintiff

’ s cau se o f action

. Marteny v. Coon , No. 09

- 19

- 00019

- CV,
2020 WL 5666567 , at *5 (T ex . App.

— Beau mont S ept. 24, 2 020, no p et.) (me m. op.). Here, t he undispu ted evi de nce establis h e d that the cond i tion prec e dent found i n the
Not e and addressed in the lawye rs ’ mo ti on f or summary judgment

— “ c o mplet

ion of the [KWC] development project ”

— h ad not occurred, the cause of action o n the N ote had not accrued, and the statute of limita tions had not begun to run

. W hile o n appeal , Aber crombie argues that “completion ” could possibly m ean “securing a site plan , ” “i nstalling horizontal infrastructure, ” “installing the roads, ” or “selling the improved prope rty to a developer, ” it s s ummary judgment resp onse fail ed to ra ise a

mat e r ial fact is sue that any of these events had occurred.
And de spite Abercrom bie ’ s contention t hat the condition precedent to
enf orcement of the Note w a s ambigu ous , this issue was never addr essed in the
unde rl ying l awsu

it, and the limitations is s u e was nev er decid ed by the tr i al court

.19

Mo ore ’ s report only summarily state d that “ [b ]ased on the limitations defense, the [trial court] more likely than not would have agr eed that th e Promissory Note was due, but then ruled that suit was filed too late

. ” As the lawyers state , “ [r ]ather than wait for a proper a ccr ual of its contract claims, ” Ab ercrombie “ instead decided to sue
its former law

yers because it was afraid of the mere p ossibility of an adverse ruling on
limitations. ” Abercrombie ’ s ambiguity ar gument, w herein it adm it ted not only that i t d id not know when limitations may have accrued but also that the trial court did not
make such a determination , wa s tanta mount to an admission that i t c ould not show
prox i mate cause in its legal malpractice ca se . See Pi erre v . Stein bach , 378 S.W.3d 529, 535 (Tex. App.

— Dallas 2012, no pet.) ( “ We would have to engage in impermissible
inferen ce stacking to reach [ the appellant ’ s ] desired conclu sion. ” ) ; see also Doe v. Boys
Clubs of Greater Dall

. , Inc. , 907 S.W.2d 472, 477 (Tex. 1995) ( stati ng that proximate

ca u se “ cannot be established by mere conjecture, guess or speculation ” ). In its response to the lawyers ’ summary judgment motion on th e legal malpractice claim , Abercrombie was require d to raise a gen uine issue of ma terial fa ct
reg ardin g the causal link betwe en the lawyers ’ negligence and its har m. See Nelson v.
S heedy , No. 05

- 16

- 01262

- CV, 2018 WL 2434389 , at * 6 (Tex. App.

— Dallas Ma y 30, 2018, pet. denied

) (mem. op .) ; see also Rogers , 518 S.W. 3d at 4 0 2 ( “ As in other negligenc e case s, a l e gal malpractice plain tiff must prove that his or her lawye r ’ s negligence was the p r oximate case of cogniz able damage. ” ). However, v iewing the evidence in the light most favorable to Abercrombie, we conclude that i ts summary20

jud gment evidence failed to rai se a material fact is s ue on th e condition precedent to

reco very on the Note

— “ com p letion of the [KWC ] development pr oject

. ” Furt her ,
t h ere we re fatal gaps in i ts exp ert ’ s analysis regarding why Abercrombie would have
obtained a more f

avor able result in the underlying lawsuit h ad the lawyers conformed
to the proper standard of care

. S e e Elizondo , 415 S.W.3d at 264. Thu s, we hold t hat
the trial court did not err in granting t h e lawyers ’ motion for sum mary judgment on
Abercro mbie ’ s le ga l malpra c tice c laim.
W e overrule Abercrombi e ’ s sole issue.
IV
. C ONCLUSION
Hav ing overruled A bercrombi e ’ s sole issue, we aff irm the trial court ’ s or der
gra nting summary judgmen t. /s/ Dana Womack
D ana Womac k Justice
D elivered: June 29, 2023