GeoMetWatch v. Durham Jones Pinegar

2026 UT App 93

THE UTAH COURT OF APPEALS

GEOMETWATCH CORPORATION,
Appellant and Cross-appellee,
v.
DURHAM JONES & PINEGAR PC AND P. CHRISTIAN ANDERSON,
Appellees and Cross-appellants.

Opinion
No. 20241013-CA
Filed June 11, 2026

Third District Court, Salt Lake Department
The Honorable Patrick Corum
No. 160901770

Peggy Tomsic, James E. Magleby, Adam Alba, and
Yevgen Kovalov, Attorneys for Appellant and
Cross-appellee
Matthew L. Lalli, Jeremy J. Stewart, Cameron J.
Cutler, Scott A. Wiseman, and Benjamin J. Mills,
Attorneys for Appellees and Cross-appellants

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1 GeoMetWatch Corporation (GMW) appeals the district
court’s grant of summary judgment in favor of the law firm
Durham Jones & Pinegar PC (Durham Jones) and its attorney P.
Christian Anderson. GMW sued, asserting claims for legal
malpractice and breach of fiduciary duty after Durham Jones and
Anderson allegedly assisted another client, Alan Hall and his
related entities (collectively, the Hall Defendants), in usurping
GMW’s business opportunity to launch weather sensors on
satellites. On summary judgment, the district court dismissed the
majority of GMW’s claims for lost profits based on issue
GeoMetWatch Corp. v. Durham Jones & Pinegar PC

preclusion arising from prior federal litigation and dismissed a
remaining claim for lost business value for lack of evidence
regarding causation and damages. We affirm.

BACKGROUND

¶2 GMW was founded in 2008 with the intent of
commercializing weather data using sensor technology. The
company planned to sell data collected from a sensor called the
Sounding and Tracking Observatory for Regional Meteorology
(the STORM sensor) in an alliance with the Utah State University
Research Foundation (Utah State).

¶3 In 2011, GMW began looking for customers to purchase
data that would be gathered by the STORM sensor, but it was
unable to secure firm purchase commitments. In 2012, GMW
began discussions with AsiaSat, a commercial satellite operator,
to host the STORM sensor on one of its satellites. As part of the
relationship, GMW and AsiaSat discussed the possibility of
AsiaSat helping GMW secure a roughly $170 million loan from
the Export-Import Bank (EXIM) to fund development of the
project. Because EXIM was structured to provide financing only
to international investors, GMW—a domestic corporation—
needed to partner with a foreign entity (like AsiaSat) to procure
the loan. But because such a large loan would expose AsiaSat to
financial liability, AsiaSat needed to limit its risk. This safeguard
was accomplished through a “Cooperation Agreement,” which
GMW and AsiaSat entered in April 2013. The Cooperation
Agreement required GMW to provide a guarantee (or
“backstop”) and a convertible note to mitigate AsiaSat’s risk.1

1. “A convertible note is a debt instrument that is convertible into
shares of the issuer’s stock at a specified conversion rate.” AG
Oncon, LLC v. Ligand Pharms. Inc., No. 2018-0556, 2019 WL
(continued…)

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¶4 Also in April 2013, GMW entered into a preferred provider
agreement with Utah State to build the STORM sensor.2 The
preferred provider agreement required GMW to make significant
payments in exchange for Utah State’s services.

¶5 By July 2013, it became apparent that GMW would be
unable to provide the guarantee to AsiaSat before an agreed-upon
deadline of July 31. AsiaSat informed GMW that it would not
continue with the loan application to EXIM until it had received
the guarantee. Nevertheless, AsiaSat extended the deadline twice,
first to September 30 and later to November 30. Thereafter, when
GMW failed to produce the guarantee and convertible note as
required by the Cooperation Agreement, AsiaSat declined to
proceed further.

¶6 Alongside these events was Durham Jones’s involvement
with GMW. In January 2011, Anderson—who was employed by a
different law firm at the time—had entered into an agreement for
legal services with GMW, specifically “on matters relating to
equity financings and other securities issuances” and
“compliance with applicable state and federal securities laws.” In
September 2013, Anderson joined Durham Jones.

¶7 On November 3, 2013, Alan Hall sent an email to AsiaSat
in which he stated that he had learned GMW was in financial
trouble and was unable to meet its obligations. Hall offered to step

2245976, at *1 (Del. Ch. May 24, 2019), aff’d, 224 A.3d 963 (Del.
2020).

2. This agreement was technically made with the Advanced
Weather Systems Foundation, a subsidiary of Utah State. For ease
of reading and because the Advanced Weather Systems
Foundation and Utah State University Research Foundation are
both associated with Utah State University, we refer to the two
entities together as “Utah State.”

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in and “build a new firm” to oversee the construction of the
STORM sensor, “aggressively land scores of new clients,” and
“raise funds” to “ultimately create a multi-billion dollar
enterprise.” To pursue this opportunity, Hall asked AsiaSat to
make a $30 million investment in the new firm in exchange for a
42% share in it. Anderson was copied on the email and did not
share its content with GMW. But a little over a week later—on
November 12—Durham Jones sent GMW a letter entitled “Waiver
of Conflict of Interest.” It stated,

We understand that GMW is now in
discussions with Hall concerning a potential
business transaction (the “Transaction”). It has been
proposed that [Durham Jones] represent Hall
exclusively in connection with the Transaction, and
both GMW and Hall have orally approved this
arrangement.

. . . Therefore, [Durham Jones] is requesting
that you consent to [Durham Jones’s] representation
of Hall in connection with the Transaction
(notwithstanding [Durham Jones’s] continuing
representation of both GMW and Hall in connection
with other unrelated matters) and waive any
conflict of interest that might arise as a result of such
representation.

GMW signed and returned the waiver on November 18.
Unbeknownst to GMW, Anderson had begun representing Hall
regarding his potential transaction with GMW in the previous
month.

¶8 In January 2014, GMW failed to pay Utah State roughly
$5.4 million that it was required to remit under the preferred
provider agreement. Utah State subsequently terminated the
preferred provider agreement when GMW did not cure its
default.

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¶9 On April 24, 2014, Anderson sent a letter to GMW stating,
“[O]ur files (which related to selected corporate matters as
assigned by [GMW]) with respect to representation of [GMW]
have been closed, and I am sending this letter to confirm that I and
my firm, [Durham Jones], no longer serve as legal counsel or
provide other services for [GMW] with respect to any matters.”
The letter also noted that Durham Jones “last performed services
for [GMW] on January 27, 2014.” The next day, the Hall
Defendants, represented by Durham Jones, filed a lawsuit against
GMW, which was later consolidated into a lawsuit that GMW
filed in May 2014 in federal court (the Federal Action). In the
Federal Action, GMW contended that “all its failures to move
forward with AsiaSat—and, consequently, the potential profits it
lost—[were] attributable to the bad acts of the Hall Defendants,
with the remaining [defendants associated with Utah State]
conspiring with them to ensure GMW’s downfall.” GeoMetWatch
Corp. v. Behunin, 38 F.4th 1183, 1195 (10th Cir. 2022). But the
ultimate decision in the Federal Action determined that the cause
of GMW’s damages was GMW itself:

GMW leaves undisputed the facts that establish that
it was its own failures—occurring even before the
Hall Defendants arrived—that destroyed its own
venture. Significantly, GMW’s venture was already
on life-support when [Hall’s] inflammatory
November 3, 2013, email was sent. At that point in
the chronology of events, AsiaSat had twice
extended the conditions precedent necessary for the
deal to push through. That remains undisputed, and
the idea that [Hall] was to blame for AsiaSat finally
pulling the plug on the deal remains unfounded.

Id. at 1222. In affirming the federal district court’s grant of
summary judgment to the Hall Defendants and Utah State, the
Tenth Circuit concluded, “The record and the facts themselves
surely indicate it was GMW’s inability to satisfy the Cooperation

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Agreement that was the cause of any of its lost profits from the
failed venture. And GMW did not proffer any contradictory
evidence against those facts.” Id. at 1190, 1222.

¶10 In March 2016—while the Federal Action was still
pending—GMW filed the case against Durham Jones and
Anderson that gives rise to this appeal. In its complaint, GMW
summarized the harm it alleged to have suffered as follows:

In a shocking betrayal of trust and confidence,
Anderson and Durham Jones breached their duties
to their client, [GMW], by aiding another group of
clients, [the Hall Defendants], to misappropriate
[GMW’s] promising, revolutionary, and well-
developed business opportunity. Worse, Anderson
and Durham Jones actively concealed their
unfaithfulness and, in so doing, prevented [GMW]
from discovering or mitigating its injury until it was
too late. Indeed, as a consequence of Anderson and
Durham Jones’s malfeasance, [GMW] lost its
opportunity and gained a direct competitor,
suffering damages in the hundreds of millions of
dollars. Anderson and Durham Jones simply
decided that one group of clients was more
desirable than [GMW]. However, the law does not
permit such double-dealing by lawyers.

¶11 GMW offered four “causation and damages scenarios” to
account for the alleged harm it suffered. The first three were
predicated on lost profits, while the fourth was grounded in lost
business value:

• Scenario 1: “The [STORM sensor] is built by [Utah State],
[AsiaSat] provides an equity investment and project support
as reflected in the Cooperation Agreement, and [EXIM]
provides financing based upon AsiaSat’s pledge of its balance
sheet, which AsiaSat conditioned upon an acceptable backstop

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to mitigate the financial risk associated with the [STORM
sensor].”

• Scenario 2: “The [STORM sensor] is built by [an alternate
manufacturer], AsiaSat provides an equity investment and
project support as reflected in the Cooperation Agreement,
and EXIM provides financing based upon AsiaSat’s pledge of
its balance sheet, which AsiaSat conditioned upon an
acceptable backstop to mitigate the financial risk associated
with the [STORM sensor].”

• Scenario 3: “The [STORM sensor] is built by [an alternate
manufacturer], AsiaSat’s payload hosting services are
replaced by a different commercial satellite operator . . . , and
new equity and debt are obtained from the marketplace,
including possibly through EXIM project financing . . . or
through another export credit agency.” 3

• Scenario 4: GMW also presented “an alternate damages
scenario” that—unlike the other three scenarios—was “not a
‘lost profits’ theory” but was “based upon a
valuation/damages theory predicated on the lost business
value of [GMW] at the time that [GMW’s] business was
destroyed.”

¶12 The district court granted summary judgment in favor of
Durham Jones and Anderson in two phases. First, it dismissed the
three lost-profits scenarios on the basis of issue preclusion arising
from the Federal Action. The district court later dismissed the
fourth scenario based on GMW’s failure to offer nonspeculative
evidence of either causation or damages.

3. GMW divided Scenario 3 into Scenario 3a and Scenario 3b, with
the financing in Scenario 3a coming by way of equity investment
and the financing in Scenario 3b being obtained from commercial
lenders.

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ISSUES AND STANDARD OF REVIEW

¶13 GMW appeals, first asserting that the district court erred in
granting summary judgment against GMW on its lost profits
claims based on the doctrine of issue preclusion. GMW next
claims that the district court erred in granting summary judgment
against GMW due to GMW’s failure to offer nonspeculative
evidence of causation and damages based on lost business value. 4
“Summary judgment is appropriate where the moving party
shows that there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.
Appellate courts review a district court’s legal conclusions and
ultimate grant or denial of summary judgment for correctness,
viewing the facts and all reasonable inferences drawn therefrom
in the light most favorable to the nonmoving party.” Penunuri v.
Sundance Partners, Ltd., 2017 UT 54, ¶ 14, 423 P.3d 1150 (cleaned
up).

ANALYSIS

I. Issue Preclusion on Causation

¶14 GMW contends the district court erred in applying issue
preclusion, claiming that Durham Jones and Anderson’s specific
duties and conduct were not adjudicated in the Federal Action.
We disagree.

¶15 Issue preclusion applies when the issue decided in the prior
adjudication is identical to the one presented in the instant action.
As this court has stated, “Issue preclusion, often referred to as
collateral estoppel, prevents relitigation of issues already
determined in a previous action. In effect, once a party has had his

4. Durham Jones and Anderson also bring a conditional cross-
appeal, but we have no occasion to reach it given our resolution
of the two claims of error brought by GMW.

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or her day in court and lost, he or she does not get a second chance
to prevail on the same issues.” Heywood v. Department of Com., 2017
UT App 234, ¶ 25, 414 P.3d 517 (cleaned up). Four criteria must be
met for the application of the doctrine:

(i) the party against whom issue preclusion is
asserted must have been a party to or in privity with
a party to the prior adjudication; (ii) the issue
decided in the prior adjudication must be identical
to the one presented in the instant action; (iii) the
issue in the first action must have been completely,
fully, and fairly litigated; and (iv) the first suit must
have resulted in a final judgment on the merits.

Haskell v. Wakefield & Assocs. Inc., 2021 UT App 123, ¶ 22, 500 P.3d
950 (cleaned up).

¶16 GMW challenges only the district court’s conclusion on the
second criterion—whether the issue in the Federal Action is
identical to the issues related to lost profits presented in the state
court action. GMW’s claim in the Federal Action was that the
actions of the Hall Defendants caused GMW’s lost profits. See
GeoMetWatch Corp. v. Behunin, 38 F.4th 1183, 1189, 1195 (10th Cir.
2022). The federal district court had granted partial summary
judgment in favor of the Hall Defendants in the Federal Action
because there was “insufficient evidence as to causation.” Id. at
1198. The federal district court had reasoned,

Independent of anything the Hall Defendants did,
GMW was unable to perform under the
Cooperation Agreement. GMW was not able to
obtain a sufficient backstop, and GMW was unable
to provide AsiaSat with a convertible note. As a
result, AsiaSat refused to undertake the loan process
and GMW was unable to obtain the funds it needed.
Consequently, GMW was unable to pay [Utah State]
to build the STORM sensor.

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Id. (cleaned up). Thus, the core issue in the Federal Action was the
cause of GMW’s alleged damages. There, it was conclusively
determined that “GMW’s venture was already on life-support”
when the Hall Defendants engaged in the bad acts that allegedly
harmed GMW. Id. at 1222. Indeed, in affirming the federal district
court’s grant of summary judgment, the Tenth Circuit concluded
that the “undisputed” facts “establish[ed] that it was [GMW’s]
own failures—occurring even before the Hall Defendants
arrived—that destroyed its own venture.” Id. The court explained
further that “there was no evidence showing that the cause of
GMW’s lost profits was the conduct of . . . the Hall Defendants.”
Id. More specifically, the Tenth Circuit determined,

What is missing here, and indeed throughout this
appeal, is the connection between [the Hall]
Defendants’ alleged bad acts and GMW’s failed
venture.

GMW, effectively, had to, but did not, proffer
admissible evidence establishing that GMW’s
prospective venture partners were actually
motivated to abandon GMW due to [the Hall]
Defendants’ illicit conduct. In the end, despite [the
Hall Defendants’ bad acts], there is still no causal
link between those actions and GMW’s failure to
abide by the Cooperation Agreement it entered into
with AsiaSat.

Id. at 1211–12 (cleaned up).

¶17 GMW’s complaint in state court framed the causation issue
in a manner essentially identical to its federal complaint. Indeed,
GMW claimed that Durham Jones and Anderson “breached their
duties to their client, [GMW], by aiding another group of clients,
[the Hall Defendants], to misappropriate [GMW’s] promising,
revolutionary, and well-developed business opportunity.” As this
court has previously explained, issues are identical “when a party

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attempts to relitigate the factual question of why something
occurred and the newly alleged cause for the occurrence was
rejected as a defense in a prior action.” Fowler v. Teynor, 2014 UT
App 66, ¶ 21, 323 P.3d 594. This is precisely what GMW attempted
to do in the state court action. The decision in the Federal Action
determined that it was GMW’s “own failures—occurring even
before the Hall Defendants arrived—that destroyed its own
venture” and that “it was GMW’s inability to satisfy the
Cooperation Agreement that was the cause of any of its lost
profits from the failed venture.” GeoMetWatch, 38 F.4th at 1222.
Thus, the unassailable truth—at least insofar as issue preclusion
is concerned—is that GMW’s actions or shortcomings caused its
own damages in the way of lost profits.

¶18 The preclusive effect of the Federal Action is logically
inescapable. If the Hall Defendants’ conduct did not cause
GMW’s business failure, Durham Jones and Anderson’s alleged
legal assistance to the Hall Defendants could not have caused the
failure either. Put another way, if GMW itself—and not the Hall
Defendants—caused its own lost profits, it necessarily follows
that Durham Jones and Anderson did not cause GMW’s lost
profits by allegedly aiding the Hall Defendants. Any way it is
expressed, the issue of causation remains the same: GMW itself
caused whatever harm it had allegedly suffered. The Federal
Action “conclusively determined why” GMW had suffered the
alleged harm, namely, GMW’s failure to meet the terms of the
Operation Agreement, which resolves the issue of whether
Durham Jones and Anderson’s actions caused the alleged harm to
GMW. See Fowler, 2014 UT App 66, ¶¶ 1, 4, 13–14 (concluding a
plaintiff’s negligence claims arising from the termination of his
employment were barred by collateral estoppel because prior
federal litigation conclusively determined that the employer was
responsible for the plaintiff’s termination, which “necessarily
resolved the issue” in state litigation of whether a different party
was responsible for the termination).

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¶19 GMW resists this conclusion about the preclusive effect of
the Federal Action by arguing that a more demanding burden of
proof (namely, more likely than not) was applied in the Federal
Action than that required for legal malpractice claims in Utah,
which GMW argues is a “reasonable likelihood” standard. See
Kilpatrick v. Wiley, Rein & Fielding, 909 P.2d 1283, 1291 (Utah Ct.
App. 1996) (“To prevail in legal malpractice actions, clients must
establish actual cause—that but for the attorney’s wrong their loss
would not have occurred—and proximate cause—that a
reasonable likelihood exists that they would have ultimately
benefited.”). As we understand GMW’s argument, it goes as
follows: the state lawsuit moored itself on a legal malpractice
claim, so it represented a different issue requiring the application
of the more lenient burden of proof applicable to legal malpractice
claims, which, in turn, would have more readily allowed GMW to
establish legal causation with regard to Durham Jones and
Anderson’s actions. But this argument is without consequence
under the circumstances of the present case, where the Federal
Action determined that there was no evidence that anyone other
than GMW itself was the cause of the alleged harm. See
GeoMetWatch, 38 F.4th at 1203 (“GMW proffered no evidence to
establish its causation theories.” (cleaned up)). In other words, the
issue was causation, and that issue was resolved in the Federal
Action. Therefore, the burden of proof required is wholly
immaterial because GMW entirely caused its own damages. Cf.
Blank v. Garff Enters. Inc., 2021 UT App 6, ¶ 30, 482 P.3d 258 (“The
question of causation is generally reserved for the jury, but the
district court may rule as a matter of law on this issue if there is
no evidence to establish a causal connection, thus leaving
causation to jury speculation.” (cleaned up)); State Farm Fire & Cas.
Co. v. Steffen, 948 F. Supp. 2d 434, 446 (E.D. Pa. 2013) (“Since [the
insurer] cannot point to any admissible causation evidence in the
summary judgment record, it has failed to establish a prima facie
negligence claim and it must succumb to summary judgment.”).
This principle effectively removes burden of proof considerations
from the analysis when causation evidence is entirely absent—or,

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as here, when causation has been definitively and exclusively
assigned to the party arguing that it has been damaged.
Accordingly, the decision from the Federal Action retains its
preclusive effect regardless of the standard of proof used. Since
all evidence points to GMW being solely responsible for its own
losses, it was not possible for GMW to have avoided the harm
even in the absence of Durham Jones and Anderson’s conduct.

¶20 GMW also asserts that causation could have been
established had the court considered newly proffered expert
testimony on one of its damages claims (namely, under Scenario
3), which it asserts turned on different facts. This argument is
unavailing. First, it does not address the fundamental issue of
causation, which remains the same in all three of the lost-profit
scenarios GMW advanced. No matter how GMW attempts to spin
it, the Federal Action definitively resolved the issue of causation
when the federal district court determined that GMW alone was
responsible for its losses. Having new expert testimony does not
change this preclusive causal determination. Moreover,
“litigation of an issue necessarily encompasses all arguments and
evidence that could be presented to resolve the issue, and . . . the
mere discovery of new evidence does not create a new issue.”
Liberty Mutual Ins. Co. v. FAG Bearings Corp., 335 F.3d 752, 762 (8th
Cir. 2003) (emphasis added). This means that “litigants may not
have a second opportunity to prove a fact or make an argument
relating to an issue previously decided.” Id. Accordingly, “[o]nce
a plaintiff has had a chance to prove a fact, he cannot reopen the
matter simply by stating that he wishes to introduce more or
better evidence.” Pignons SA de Mecanique v. Polaroid Corp., 701
F.2d 1, 2 (1st Cir. 1983). By seeking to introduce new expert
testimony, GMW essentially attempts to do an end run around
issue preclusion. The problem for GMW is that the doctrine “bars
relitigation of the same issues” but “does not require identity of
legal theories or causes of action.” Evans v. Celotex Corp., 238 Cal.
Rptr. 259, 261–62 (Ct. App. 1987). If it required identity of legal
theories, “there would be no end to litigation for injuries arising

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out of the same facts, as long as a party could offer another legal
theory by which the same issue might be differently decided.” Id.
at 262. This is precisely what GMW attempts to do here by seeking
the introduction of new expert testimony and thereby building its
case on a different legal theory, while ignoring that the issue of
causation has been definitively resolved. Adopting GMW’s
argument that it should be allowed to proffer new expert evidence
to overcome issue preclusion would “eviscerate the doctrine of
issue preclusion” and create endless opportunities for relitigation.
See Liberty Mutual Ins. Co., 335 F.3d at 765. This we will not do.

¶21 Thus, because the identical issue of causation was fully and
fairly litigated in the Federal Action, the district court correctly
applied issue preclusion to dismiss the lost profits theories of
recovery on the basis of that doctrine. And GMW’s argument that
it proffered different expert testimony in the state court action
does not alter the preclusive effect of the Federal Action’s
determination that GMW caused its own losses.

II. Causation for Lost Business Value

¶22 GMW argues the district court erred in dismissing its
remaining theory of recovery for lost business value as articulated
in Scenario 4. This theory posited that Durham Jones and
Anderson’s conduct destroyed the entire value of GMW’s
business. The state district court granted summary judgment,
finding GMW presented “no nonspeculative evidence” regarding
causation or damages. We detect no error in the district court’s
grant of summary judgment. For purposes of our analysis, we
assume that GMW suffered a loss in business value and focus only
on the cause of that alleged loss. 5

5. Durham Jones and Anderson assert that lost business value has
not been adopted as a measure of damages in Utah. Because we
determine that any claim GMW asserted with regard to lost
(continued…)

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¶23 To prevail in a legal malpractice action, “a plaintiff must
show (1) the existence of an attorney-client relationship; (2) breach
of the attorney’s fiduciary duty to the client; (3) causation, both
actual and proximate; and (4) damages suffered by the client.”
Gregory & Swapp, PLLC v. Kranendonk, 2018 UT 36, ¶ 38, 424 P.3d
897 (cleaned up). And causation is of special moment in this
analysis. “Because this causation requirement is a crucial and
distinct element to any malpractice claim, an abundance of
evidence as to breach of duty cannot make up for a deficiency of
evidence as to causation.” USA Power, LLC v. PacifiCorp, 2016 UT
20, ¶ 113, 372 P.3d 629. All this is to say that without causation, a
legal malpractice action has no traction from the outset.

¶24 Parties cannot overcome summary judgment based on lack
of causation by relying on vague, doubtful, or inconclusive
assertions. “In Utah, causation or the connection between fault
and damages in legal malpractice actions cannot properly be
based on speculation or conjecture. To prevail in legal malpractice
actions, clients must establish actual cause—that but for the
attorney’s wrong their loss would not have occurred—and
proximate cause—that a reasonable likelihood exists that they
would have ultimately benefited.” Kilpatrick v. Wiley, Rein
& Fielding, 909 P.2d 1283, 1291 (Utah Ct. App. 1996). “A causation
determination is generally a question of fact, but the trial court
may make a legal ruling on this issue if (1) there is no evidence to
establish a causal connection, thus leaving causation to jury
speculation, or (2) where reasonable persons could not differ on
the inferences to be derived from the evidence on proximate
causation.” Ladd v. Bowers Trucking, Inc., 2011 UT App 355, ¶ 10,
264 P.3d 752 (cleaned up).

business value fails on the threshold requirement of causation, we
need not address whether lost business value is recognized as a
measure of damages in Utah. Accordingly, we take no position on
the status of this theory under Utah law.

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¶25 Thus, while Durham Jones and Anderson owed a duty to
GMW and likely violated it by representing the Hall Defendants,
demonstrating that a breach occurred is just a preliminary step—
a step that does not show that damages were suffered because of
that breach. In other words, a legitimate claim for compensation
that will survive summary judgment requires nonspeculative
proof directly tying the breach to the alleged damage. See Hardy
v. Sagacious Grace LC, 2021 UT App 23, ¶ 21, 483 P.3d 1275 (“When
the facts are so tenuous, vague, or insufficiently established that
determining an issue of fact becomes completely speculative, the
claim fails as a matter of law, and summary judgment is
appropriate.” (cleaned up)).

¶26 GMW asserts that it did enough to stave off summary
judgment because there were issues of fact as to three points that
the district court improperly weighed. We reject these arguments
because the record is devoid of any factual foundation that would
allow a factfinder to conclude—without resort to speculation—
that Durham Jones and Anderson’s breach resulted in GMW’s
claimed loss of business value. We consider each argument in
turn.

A. Salvaging Business Relationships

¶27 While GMW contends that it could have taken steps to save
its business relationships had Durham Jones and Anderson not
breached their duty, there is no evidence proving these theoretical
actions would have made a difference. The claim that GMW
would have seamlessly maintained its partnerships absent
Durham Jones and Anderson’s actions rests entirely on
conjecture. In other words, the limited evidence GMW submitted
regarding causation in this matter consists of self-serving
declarations and personal belief rather than established facts,
making it inadmissible for summary judgment purposes. GMW
asserts that had Durham Jones and Anderson complied with their
duties and disclosed Hall’s actions to GMW earlier, GMW would

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have taken actions to salvage its relationships with AsiaSat and
Utah State and limit Hall’s access to information that could have
been used to undermine GMW. GMW also argues that it had
options to develop a business relationship with other satellite
providers and manufacturers, which could have been established
by newly proffered expert testimony.

¶28 The problem with this newly proffered evidence is that it
consists entirely of one-sided and unsupported assertions,
meaning that it exclusively rests on GMW’s hopes and aspirations
that it might have salvaged its business relationships or
developed new ones. What is entirely missing from GMW’s
proffered evidence is any evidence suggesting that GMW could
have done anything to repair its damaged relationships with its
one-time business partners—namely, Utah State and AsiaSat—
after the Hall Defendants sent the email on November 3, 2013,
proposing to establish a new company to build and market the
STORM sensor or anything GMW might have done had Durham
Jones and Anderson alerted GMW about Hall’s actions at any
point. As the district court explained, “no matter how much
evidence there may be of duty and breach, [GMW still had to]
offer nonspeculative evidence that damages were caused by the
breach.” And this evidence had to include more than GMW’s self-
serving assertions about what it might have done in order to avoid
basing its assertions on speculation—or, as we have often said, to
avoid building its “case on the gossamer threads of whimsy,
speculation and conjecture.” JENCO LC v. Perkins Coie LLP, 2016
UT App 140, ¶ 15, 378 P.3d 131 (cleaned up). To put it bluntly,
GMW produced nothing apart from its own unsubstantiated
assertions that it could have saved the enterprise in the absence of
Durham Jones and Anderson’s alleged misconduct. To be sure,
GMW produced experts who said the company could have
repaired the damage, but none of this proffered evidence

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GeoMetWatch Corp. v. Durham Jones & Pinegar PC

provided a nonspeculative factual foundation from which to
draw such an optimistic inference. 6

B. Obtaining Alternative Financing

¶29 The assertion that GMW could have found alternative
financing absent Durham Jones and Anderson’s breach is also
unsubstantiated and properly disregarded as a statement of belief
rather than fact. This conclusion directly mirrors the approach
taken in the Federal Action, which, as the district court observed,

6. GMW resists this conclusion by invoking Kilpatrick v. Wiley,
Rein & Fielding, 909 P.2d 1283 (Utah Ct. App. 1996). In that case, a
trial court granted summary judgment in favor of a law firm on a
legal malpractice claim, concluding that a television broadcaster
had failed to show that the law firm’s breach of fiduciary duty
proximately caused damage to the broadcaster. Id. at 1286, 1289.
This court reversed, concluding that the broadcaster had
presented evidence that it would have received financing if the
law firm had not breached its fiduciary duties. Id. at 1292–93. We
held, “The trial court improperly weighed evidence to reach its
determination that material issues of fact surrounding causation
were undisputed. The [broadcaster] presented evidence that
created genuine issues of material fact; therefore, the trial court
inappropriately granted summary judgment.” Id. at 1293. But
Kilpatrick is easily distinguishable and therefore is not
determinative here because the broadcaster had presented
evidence that it was prepared to accept an alternative financing
commitment that was already on the table. See id. at 1287.
Accordingly, the factual evidence in Kilpatrick was not of the
vague and tenuous nature present here. Moreover, the trial court
had also engaged in the improper exercise of weighing competent
evidence on summary judgment. See id. at 1292. That’s not what
happened here, where the district court determined that the
evidence was too speculative to be considered. Accordingly, the
case does not offer the refuge GMW suggests.

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GeoMetWatch Corp. v. Durham Jones & Pinegar PC

“conclusively determined that it was entirely speculative that any
alternative funding would have been had, or that [GMW] would
have been successful, and [that there was] no evidence ultimately
that absent [the Hall Defendants’] actions, . . . [GMW’s] business
venture would have gone forward.” The Federal Action
concluded that the expert opinions GMW offered on this matter
“simply assume that GMW would have been able to secure
financing for its venture despite its inability to do so before the
Hall Defendants arrived on the scene” and “rely on nothing more
than mere speculation and conjecture that is, in critical respects,
directly at odds with the observed conditions faced by GMW
before the Hall Defendants entered the picture.” GeoMetWatch
Corp. v. Behunin, 38 F.4th 1183, 1209 (10th Cir. 2022) (cleaned up).
Therefore, just as the Hall Defendants in the Federal Action were
found as a matter of law not to have prevented GMW from
obtaining funding, there is no evidence that Durham Jones and
Anderson caused harm merely by representing the Hall
Defendants or by failing to alert GMW to Hall’s activities. As we
noted, supra ¶ 23, causation is a mandatory element of the claim,
and GMW’s assertion that Durham Jones and Anderson’s alleged
breach prevented it from obtaining alternative funding simply
lacks a nonspeculative evidentiary foundation. And GMW’s
assertion here is speculative because it has offered no evidence of
any individual or entity that was actually willing or committed to
provide the financing. Cf. Christensen & Jensen, PC v. Barrett
& Daines, 2008 UT 64, ¶ 25, 194 P.3d 931 (“Although each of the
theories . . . deals with a different type of harm, the same standard
of causation applies whether the alleged wrong is a negligent act,
a fiduciary breach, or even a contractual breach.” (cleaned up)).

C. Avoiding Litigation

¶30 GMW also contends that there was a factual dispute as to
whether the Hall Defendants would have filed the lawsuit, see
supra ¶ 9, if Durham Jones and Anderson had not breached their
duties. GMW points to deposition testimony from an officer of

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GeoMetWatch Corp. v. Durham Jones & Pinegar PC

GMW that fighting a “lawsuit makes it very difficult to take
additional money.” GMW contends that if Durham Jones and
Anderson had informed it of the Hall Defendants’ intentions in a
timely fashion, then the Hall Defendants “may not have pursued”
a takeover of GMW’s business by initiating expensive litigation.
Again, the problem with this argument is that it rests on an
entirely speculative foundation. As the district court observed,
“[t]here is no evidence that [the Hall Defendants] would have
been persuaded, thwarted, [or] delayed in any way whatsoever in
pursuing [legal] claims against GMW had [Durham Jones and
Anderson] not breached their duties.” Even on appeal, GMW
argues in strikingly speculative terms that the Hall Defendants
“might not have been comfortable or able” to pursue legal claims
against GMW and “may not have been gung ho about the claims”
absent Durham Jones and Anderson’s breach. (Emphasis added.)
While no one would dispute that a lawsuit of this nature would
come as unwelcome news to a struggling company, GMW must
do more than show it was burdened by the litigation. Most
importantly, to avoid summary judgment, it must show—
through non-speculative evidence—that Durham Jones and
Anderson’s breach caused the Hall Defendants to pursue the
litigation against GMW. But GMW, as the district court
concluded, has not come close to offering such evidence. At best,
GMW has offered only speculation about what the Hall
Defendants might have done in the absence of Durham Jones and
Anderson’s breach. But that’s not material evidence; instead, it is
merely the “tenuous, vague, or insufficiently established”
musings that result in summary judgment. See Hardy, 2021 UT
App 23, ¶ 21 (cleaned up).

¶31 All this boils down to the simple reality that there is no
evidence that anyone other than GMW caused the damages it
suffered—no matter how the damages were expressed and
notwithstanding Durham Jones and Anderson’s probable breach.
Accordingly, with only speculative evidence that Durham Jones
and Anderson caused GMW to suffer lost business value before

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GeoMetWatch Corp. v. Durham Jones & Pinegar PC

the district court, we see no error in the grant of summary
judgment in favor of Durham Jones and Anderson on this issue.

CONCLUSION

¶32 The decision in the Federal Action conclusively established
that GMW’s inability to obtain financing—not the conduct of the
Hall Defendants—caused the failure of its business venture. This
finding precludes GMW from relitigating causation against
Durham Jones and Anderson regarding its supposedly lost
profits. Furthermore, GMW failed to proffer nonspeculative
evidence that Durham Jones and Anderson caused the
destruction of its business value.

¶33 Affirmed.

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