2025 UT App 11
THE UTAH COURT OF APPEALS
MATT GREENE, JULIANN GREENE, AND MJG INVESTMENTS LLC,
Appellants,
v.
STEPHEN MONGIE; LINKS CONSULTING, LLC; LINKSCG, LLC; JOEL
SYBROWSKY; LODGING DYNAMICS DEVELOPMENT, LLC;
AND DYNAMIC CITY CAPITAL, LLC,
Appellees.
Opinion
No. 20230414-CA
Filed January 30, 2025
Fourth District Court, Spanish Fork Department
The Honorable Jared Eldridge
No. 200300159
Jefferson W. Gross, S. Ian Hiatt, and Seamus W.
Appel, Attorneys for Appellants
Troy L. Booher, Caroline A. Olsen, and Nate D.
Ashcraft, Attorneys for Appellee Stephen Mongie
Nate D. Ashcraft, Attorney for Appellee Links
Consulting, LLC
Daniel K. Brough and Ryan M. Merriman,
Attorneys for Appellee LinksCG, LLC
Evan S. Strassberg, Attorney for Appellees Joel
Sybrowsky, Lodging Dynamics Development, LLC,
and Dynamic City Capital, LLC
JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.
OLIVER, Judge:
¶1 After receiving a large sum of money from selling his
equity in a business, Matt Greene enlisted his friend Stephen
Greene v. Mongie
Mongie to help him invest the money. Under Mongie’s guidance,
Greene bought a life insurance policy from Mongie and invested
two million dollars in a new fund created by Lodging Dynamics
Development, LLC (Lodging Dynamics), a company led by
Mongie’s longtime friend Joel Sybrowsky. When the fund failed
to perform as well as Greene expected, he filed suit, asserting
claims for fraud, breach of fiduciary duty, negligence, breach of
the covenant of good faith and fair dealing, and securities fraud.
The district court granted summary judgment to the defendants
on all claims, and Greene appealed. Because Greene has failed to
establish that there is a genuine issue of material fact that would
preclude summary judgment, we affirm the district court’s ruling.
BACKGROUND 1
The Relationship Between Greene and Mongie
¶2 A friend introduced Greene to Mongie in 2004 and told him
that Mongie was well-connected in the investment advisory
world. In 2005 or 2006, Mongie, a life insurance agent, formed
Links Consulting, LLC, and within the next two years Michael
Bergeron and Lowell Crabb, also life insurance agents, joined as
partners. In 2009, Mongie and Bergeron formed LinksCG, LLC, a
member-managed LLC. Mongie, Bergeron, and Crabb were
managers of LinksCG. Although the stated purpose of LinksCG
was “to provide financial services,” only Crabb held the license
required to serve as an investment advisor. Crabb provided his
investment advisory services through a separate affiliation with
Andina Capital Management (Andina), and none of the income
from this work was paid to LinksCG. However, when any of the
1. “We recite the facts of the case and draw all reasonable
inferences in the light most favorable to [Greene] as the
nonmoving party.” Sampson v. HB Boys, LC, 2024 UT App 56, n.1,
548 P.3d 538.
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Greene v. Mongie
managers of LinksCG sold life insurance policies, the member
manager who sold the policy would receive a large percentage of
the premium as a commission, and the remainder would go to
LinksCG as an override to pay overhead expenses and,
occasionally, bonuses or niceties.
¶3 By 2014, Greene and Mongie had become friends. When
Greene realized roughly eleven million dollars from selling his
equity in a business, Greene asked Mongie to help him invest and
manage the money. Mongie, with Crabb’s assistance, created an
asset allocation model to help manage Greene’s wealth, which
included creating the Matthew Aaron Greene Irrevocable Trust
(the Trust) and MJG Investments, LLC (MJG). Mongie was named
a successor co-trustee of the Trust, and he agreed to serve as
manager of MJG as a personal favor to Greene, which he did
without compensation. The MJG operating agreement included a
limitation of liability provision stating that Mongie, as manager,
could only be held liable for acts or omissions that were
fraudulent, were in bad faith, or constituted gross negligence or
willful misconduct.
The Life Insurance Policy and the Hotel Fund Investment
¶4 As part of the wealth management strategy, Mongie
helped Greene obtain a life insurance policy with an annual
premium of $250,000. The life insurance policy had an autorenewal function where a loan was automatically created to pay
the premium if the annual premium was not paid. Mongie
received a large commission and LinksCG received an override
from the sale of the life insurance policy.
¶5 In addition to helping Greene obtain a life insurance policy,
Mongie also told Greene about a potential investment
opportunity with Lodging Dynamics, a company that managed
Marriott hotel properties and was led by Mongie’s longtime
friend Sybrowsky. Mongie’s asset allocation model proposed that
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Greene v. Mongie
the investment in Lodging Dynamics would cover the annual life
insurance premium.
¶6 Lodging Dynamics owned and managed hotels that were
funded by pooling funds of three to twelve investors. A separate
“special purpose entity” owned each individual hotel. These
special purpose entities were very successful and typically
produced dividends of 12%–14% and returns on principal of 130%
or more.
¶7 In 2013, Sybrowsky and Lodging Dynamics decided to
create a new fund that bundled multiple hotel properties and
began seeking investors. Mongie asked Crabb if they could
include the Lodging Dynamics investment in their investment
portfolio. Crabb had Andina review it, and Andina determined it
was not a suitable investment because “[i]t was an emerging
manager, their first fund, concentrated,” and there was “[n]o track
record.” Crabb relayed this information to Mongie, but Mongie
still decided to recommend the investment to Greene and other
friends. Knowing that Greene was considering investing with
Lodging Dynamics, Sybrowsky asked Mongie to set up a time for
the three of them to meet.
¶8 At the meeting, Mongie, Sybrowsky, and Greene discussed
LD Hotel Fund I, the new venture where multiple hotels would
be bundled into a single investment vehicle. Sybrowsky also
confirmed the historical returns generated by Lodging
Dynamics’s special purpose entities but made no promises or
guarantees about a rate of return for LD Hotel Fund I. Greene
“assumed that” the historical returns resulted from all of Lodging
Dynamics’s hotels being “held or acquired through funds rather
than as individual properties.” No one represented to Greene that
the prior success of Lodging Dynamics involved bundled hotels,
and he “didn’t ask that question.”
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¶9 After the meeting, Greene received the Private Placement
Memorandum (the PPM) and subscription agreement. The PPM
described the nature of the investment and its associated risks.
The risk factors included that the “COMPANY IS A START-UP
ENTITY WITH NO HOTELS AND NO OPERATING HISTORY”
and that only people able to “SUSTAIN A COMPLETE LOSS OF
THEIR INVESTMENT, AND WHO HAVE NO NEED FOR
LIQUIDITY WITH RESPECT TO THE FUNDS INVESTED,”
should invest due to the “HIGH DEGREE OF RISK.” The
subscription agreement stated that “[n]o representations or
warranties have been made to the Investor by the Company, the
Company or any agent of such persons, other than as set forth in
the Memorandum (as amended and supplemented), the LLC
Agreement (as amended) and this Agreement.”
¶10 Despite receiving the PPM and subscription agreement
more than six weeks before investing, Greene did not review
either document because he was moving with his family to Costa
Rica. Greene ultimately invested two million dollars with
Lodging Dynamics in July 2014, one million through the Trust,
and one million through MJG.
¶11 LD Hotel Fund I did not perform as well as Lodging
Dynamics’s previous special purpose entities and generated few
dividends. On July 1, 2016, a premium loan was issued for the life
insurance policy as the returns from LD Hotel Fund I were
insufficient to cover the premium. Later in 2016, when Greene
realized a loan was issued, he instructed Mongie to cancel the
policy so another loan would not be issued to cover the premium.
Instead of canceling the policy, Mongie advised Greene that he
could find him replacement coverage, to which Greene agreed.
However, Mongie did not find replacement coverage before the
policy’s automatic renewal date, and a second loan was issued to
cover the premium on July 1, 2017. A few months later, Greene
asked Mongie and Crabb to cancel the policy, which Mongie did
immediately.
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Greene v. Mongie
¶12 Around the same time, Greene reached out to Sybrowsky
for an update on LD Hotel Fund I. Sybrowsky informed him that
LD Hotel Fund I had been a disappointment and that Lodging
Dynamics was working to sell the hotels to “recapture as much
principal as possible.” The following year, 2018, Sybrowsky
formed Dynamic City Capital, LLC (Dynamic City), which was
created to separate the development arm of Lodging Dynamics
from the hospitality management arm. In 2019, Greene sent
Sybrowsky an email demanding full and immediate repayment of
his two million dollar investment in LD Hotel Fund I.
The Alleged “Backscratching” Between Mongie and Sybrowsky
¶13 As longtime friends, Mongie and Sybrowsky had ongoing
communications and often helped each other. On two occasions—
once in February 2014 and again in January 2015—Mongie asked
Sybrowsky to provide him with a friends and family discount at
Marriott hotels. Sybrowsky provided the discount to Mongie
without asking for anything in return. And in late 2016, Mongie
and Sybrowsky exchanged emails about the possibility of Mongie
creating a financial model for Sybrowsky’s mother’s estate.
¶14 While trying to recover his principal from LD Hotel Fund
I, Greene had a conversation with Crabb. During the
conversation, Crabb informed Greene that LD Hotel Fund I was
not an approved investment by Andina and that Mongie was not
a licensed financial advisor. Crabb also informed Greene that he
believed that Mongie and Sybrowsky were involved in
“backscratching” where Mongie would bring in investors and in
return Sybrowsky would direct his family and Lodging Dynamics
employees to Mongie to purchase life insurance policies.
However, Crabb testified that his belief that Mongie and
Sybrowsky were involved in “backscratching” was a “[t]otal
assumption.”
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Greene v. Mongie
The Lawsuit
¶15 Greene, the Trustee of the Trust (his wife, Juliann Greene),
and MJG (hereinafter, collectively Greene) filed suit in November
2020. Greene asserted claims for (1) fraud against Mongie, Links
Consulting, LinksCG, Sybrowsky, Lodging Dynamics, and
Dynamic City; (2) breach of fiduciary duty against Mongie, Links
Consulting, and LinksCG; (3) negligence against Mongie;
(4) breach of the covenant of good faith and fair dealing against
Mongie; and (5) securities fraud against Mongie, Links
Consulting, Sybrowsky, Lodging Dynamics, and Dynamic City. 2
¶16 After discovery, all of the defendants moved for summary
judgment on all of Greene’s claims. The district court held a
combined hearing on all the motions and later issued an oral
ruling granting summary judgment to all the defendants on all of
Greene’s claims.
¶17 With respect to the fraud claim, the district court identified
the three statements by Mongie and Sybrowsky that Greene
alleges were false statements as follows: (1) “Lodging Dynamics
was a professional hotel management company dating back to the
first Marriott Hotel franchise with numerous Marriott hotel
properties in its portfolio”; (2) “Lodging Dynamics had a 30-year
history and had a long track record of operational success,
[including] that their investors were recovering 12 to 14 percent
in dividends and 30 percent increase in their principal”; and
(3) “Lodging Dynamics had successfully raised different funds to
provide the equity portion of acquisition costs, [and] that they
have done this with the bundling method several times in the
2. The district court granted a motion to dismiss the securities
fraud claim against Sybrowsky, Lodging Dynamics, and Dynamic
City. Greene did not appeal that ruling and later agreed to the
dismissal of his securities fraud claim against Mongie and Links
Consulting. Thus, that claim is not before us.
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Greene v. Mongie
past.” The court determined that the first two statements were not
false and concluded that there was no question of a material fact
of whether the third statement was made because the statement
was merely an assumption made by Greene. The district court
further found that even if the third statement had been made,
Greene could not have reasonably relied upon it. Finally, the
district court held that Dynamic City could not be liable on the
fraud claim because no evidence was presented to the court “that
Dynamic City acquired some or all of the hotel properties that
were owned by . . . Lodging Dynamics.”
¶18 For Greene’s breach of fiduciary duty claim, the district
court found that Mongie did not owe a duty to Greene because he
was not “Greene’s or the [T]rust’s financial advisor” and further
because Greene “retained control and responsibility for . . .
making the decisions.” The district court also concluded there was
no breach because even if Mongie and Sybrowsky had a
“backscratching” scheme, Mongie did not benefit financially from
helping Greene. The court further found that LinksCG was not
liable for the fraud or breach of fiduciary duty claims because
there was no vicarious liability or actual or apparent authority.
¶19 Finally, the court ruled that all the claims were untimely
because “any injury happened in 2014, and the action wasn’t filed
until November 13[], 2020.”
ISSUE AND STANDARD OF REVIEW
¶20 On appeal, Greene argues the district court erred in
granting summary judgment in favor of the defendants. “We
review a district court’s decision to grant summary judgment for
correctness, granting no deference to the district court’s
conclusions.” Gillmor v. Summit County, 2010 UT 69, ¶ 16,
246 P.3d
102 (cleaned up).
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Greene v. Mongie
ANALYSIS
I. Fraud
¶21 Greene asserted a common law fraud claim against
Mongie, Links Consulting, LinksCG, Sybrowsky, Lodging
Dynamics, and Dynamic City. To prevail on a common law fraud
claim in Utah, plaintiffs must prove nine elements:
(1) that a representation was made (2) concerning a
presently existing material fact (3) which was false
and (4) which the representor either (a) knew to be
false or (b) made recklessly, knowing that there was
insufficient knowledge upon which to base such a
representation, (5) for the purpose of inducing the
other party to act upon it and (6) that the other party,
acting reasonably and in ignorance of its falsity,
(7) did in fact rely upon it (8) and was thereby
induced to act (9) to that party’s injury and damage.
Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 16,
70 P.3d 35
(cleaned up). Here, Greene’s claim fails because he cannot identify
any false representation that was made.
¶22 Greene concedes on appeal that each of the three
statements identified by the district court “alone are not false.”
Because none of the challenged statements were false, Greene’s
fraud claim cannot survive summary judgment. To avoid this
conclusion, Greene contends that the “district court erroneously
determined that there were three separate statements at issue[,] .
. . ignoring the totality of conduct and representations made by
both Mongie and Sybrowsky.” As Greene explains it, the “crux”
of his fraud allegations is that Mongie and Sybrowsky
“represented that Lodging Dynamics had achieved successful
performance with past investments in bundled hotel funds, when
in actuality the figures and history” of Lodging Dynamics “came
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from the [special purpose entities] which [were] an entirely
different” investment.
¶23 But there is no evidence that either Mongie or Sybrowsky
ever represented to Greene that the prior success of Lodging
Dynamics involved “bundled hotel funds.” Indeed, Greene
testified that it was merely an assumption that he made. When
asked in his deposition if “it was [his] assumption that all of those
hotels were held or acquired through funds rather than as
individual properties,” Greene responded that he “assumed
that.” And when asked specifically, “Did anybody tell you that?”
Greene responded, “No. I didn’t ask that question.” Thus, as
Greene himself admitted, neither Mongie nor Sybrowsky made
any such representation. Therefore, the district court was correct
in determining that neither Mongie nor Sybrowsky made any
false statements and properly granted summary judgment on
Greene’s fraud claim. 3
3. Moreover, even if there was a dispute as to whether Mongie or
Sybrowsky made a false statement regarding the prior success of
Lodging Dynamics, the district court was correct in granting
summary judgment because Greene could not have reasonably
relied on the statement. “[A] party cannot reasonably rely upon
oral statements by the opposing party in light of contrary written
information.” Gold Standard, Inc. v. Getty Oil Co., 915 P.2d 1060,
1068 (Utah 1996); see also Conder v. A.L. Williams & Assocs., Inc.,
739
P.2d 634, 638 (Utah Ct. App. 1987) (“Where a plaintiff fails to read
a contract without fault on the part of the defendant, . . . relief
from the fraud is often denied.” (cleaned up)). Here, Greene, a
relatively sophisticated investor, received the PPM and
subscription agreement before investing and chose not to read
them. If Greene had read the PPM and subscription agreement, he
would have read the subscription agreement’s disclaimer of
reliance on any representations made outside of the PPM, LLC
(continued…)
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Greene v. Mongie
¶24 Greene also asserts fraud claims against Links Consulting
and LinksCG, arguing that Mongie was their agent. And he
asserts fraud claims against Lodging Dynamics and Dynamic
City, arguing that Sybrowsky was their agent. But each of these
claims is dependent on Greene’s claims that Mongie and
Sybrowsky made false statements concerning LD Hotel Fund I.
Because we conclude that neither Mongie nor Sybrowsky made
any false statements, see supra ¶¶ 21–23, Greene’s fraud claim on
the basis of agency also fails. See Restatement (Third) of Agency
§ 7.03(1) (Am. L. Inst. 2006) (“A principal is subject to direct
liability to a third party harmed by an agent’s conduct when . . .
the agent’s conduct is tortious or . . . the agent’s conduct, if that of
the principal, would subject the principal to tort liability . . . .”);
see also Burdick v. Horner Townsend & Kent, Inc., 2015 UT 8, ¶ 51
n.45,
345 P.3d 531 (holding that the claim upon which summary
judgment was granted in favor of the agent cannot serve as the
basis of liability of the principal); Holmstead v. Abbott G.M. Diesel,
Inc.,
493 P.2d 625, 627 (Utah 1972) (“[T]he exoneration of the
servant removes the foundation upon which to impute [a tort] to
the master.”), superseded by statute on other grounds as recognized in
Krukiewicz v. Draper,
725 P.2d 1349 (Utah 1986). Accordingly, we
affirm the district court’s grant of summary judgment to all the
defendants on Greene’s fraud claim.
II. Breach of Fiduciary Duty
¶25 Greene asserted a claim of breach of fiduciary duty against
Mongie, Links Consulting, and LinksCG. “Breach of fiduciary
duty claims generally require proof of four elements: the existence
of a fiduciary relationship (such as attorney-client, physicianpatient, or insurer-insured); breach of the fiduciary duty;
causation, both actual and proximate; and damages.” Gables at
Sterling Village Homeowners Ass’n, Inc. v. Castlewood-Sterling Village
agreement, and subscription agreement, and the direct statements
in the PPM that this investment was the first of its kind.
20230414-CA 11 2025 UT App 11
Greene v. Mongie
I, LLC, 2018 UT 04, ¶ 52,
417 P.3d 95. Greene alleges that the
district court erred in granting summary judgment on this claim
because Mongie breached a duty owed to Greene. We disagree.
A. The Life Insurance Policy
¶26 Greene alleges that Mongie breached his fiduciary duty by
failing to cancel Greene’s life insurance policy as Greene
instructed and that Mongie’s failure to cancel the policy was the
but for and proximate cause of Greene’s financial loss from the
untimely cancellation. But because Greene has failed to show that
Mongie ignored Greene’s instructions to cancel the policy, there
is no genuine issue of material fact as to whether Mongie breached
his duty.
¶27 On July 1, 2016, a premium loan issued for Greene’s life
insurance policy because the returns from LD Hotel Fund I were
insufficient to cover the premium. Later in 2016, Greene contacted
Mongie and asked him to cancel the life insurance policy. Instead
of canceling the policy, Mongie recommended to Greene that he
allow Mongie to find Greene replacement coverage. Greene
agreed, saying, “Let’s do it.” But Mongie was unable to find
replacement coverage before the next renewal date on July 1, 2017,
and a second loan was issued to cover the premium. On
November 14, 2017, Greene emailed Mongie and Crabb and asked
them to cancel the insurance policy, which Mongie did
immediately.
¶28 Mongie did not breach his fiduciary duty in failing to
cancel the policy before the 2016 or 2017 premium loans were
issued. First, Greene had not requested that Mongie cancel the
policy before the 2016 premium loan issued, so Mongie could not
have breached his fiduciary duty by failing to cancel the policy
when he was not instructed to do so before the loan issued.
Second, after Greene asked Mongie to cancel the policy in late
2016, Mongie proposed finding alternative coverage, which
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Greene v. Mongie
Greene agreed to. Thus, Mongie did not breach his fiduciary duty
when he failed to cancel the policy prior to the 2017 loan issuing.
Accordingly, the district court properly granted summary
judgment on Greene’s breach of fiduciary duty claim regarding
the insurance policy.
B. The Investment in Lodging Dynamics
¶29 Greene alleges Mongie breached his fiduciary duty to the
Trust and MJG when he “engaged in self-dealing” and
recommended that the Trust and MJG invest in Lodging
Dynamics where he had an “ongoing business relationship with
Sybrowsky and mutual back scratching.” But because Greene has
not shown that Mongie made the investment recommendation
out of his own self-interest, there is no genuine issue of material
fact as to whether Mongie breached any duty owed. 4
¶30 First, Greene provided no evidence that Mongie received
any financial benefit from Greene investing in Lodging Dynamics.
Second, to support his “backscratching” argument, Greene points
to (1) testimony from Crabb that Mongie would bring in investors
and in return Sybrowsky would direct his family and Lodging
Dynamics employees to Mongie to purchase life insurance
policies, (2) emails that discussed the possibility of Mongie
assisting Sybrowsky with his mother’s estate, and (3) two emails
where Mongie asked Sybrowsky for a friends and family discount
at Marriott properties. But none of these incidents create a
genuine issue of material fact as to whether Mongie engaged in
any “backscratching.”
4. Greene also failed to establish that Mongie owed any fiduciary
duty to the Trust. Mongie’s only relationship to the Trust was as
a named successor co-trustee, and he never served in that
capacity.
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Greene v. Mongie
¶31 Crabb testified that he had no personal knowledge of
Mongie selling life insurance policies to Sybrowsky and other
Lodging Dynamics executives; he merely heard about it through
others, making it inadmissible hearsay that cannot be used to
demonstrate there is a genuinely disputed material fact. See Utah
R. Civ. P. 56(c)(2) (“A party may object that the material cited to
support or dispute a fact cannot be presented in a form that would
be admissible in evidence.”); Utah R. Evid. 801, 802; see also
Wayment v. Clear Channel Broad., Inc., 2005 UT 25, ¶ 41,
116 P.3d
271 (holding that a party opposing a motion for summary
judgment must refute the moving party’s assertions with
admissible evidence and if only inadmissible hearsay is
submitted, “[s]ummary judgment may . . . not be denied”).
¶32 Further, Crabb testified that he made “an assumption” that
Mongie referred investors to Sybrowsky in exchange for life
insurance referrals, but he had no personal knowledge of any
such referrals. Crabb’s lack of personal knowledge makes his
testimony inadmissible, and therefore, it cannot be used to
demonstrate a disputed issue of material fact. See Utah R. Civ. P.
56(c)(2); Utah R. Evid. 602 (“A witness may testify to a matter only
if . . . the witness has personal knowledge of the matter.”); cf.
Randall v. Smith & Edwards Co., No. 1:20-cv-00183,
2023 WL
3742818, at *12 (D. Utah May 31, 2023) (holding that testimony
from a witness that was “more of an assumption on his part” “is
barred by [federal] Rule 602” (cleaned up)). 5
¶33 Next, the emails between Mongie and Sybrowsky that
discussed Mongie preparing a financial model for Sybrowsky’s
5. Utah rule 602 is identical to federal rule 602. Compare Utah R.
Evid. 602, with Fed. R. Evid. 602; see also Utah R. Evid. 602 advisory
committee’s note to 2011 amendment (“This is the federal rule,
verbatim.”). And Utah courts “may also rely on interpretations of
similar federal rules by federal courts to assist our own
interpretation.” Robinson v. Taylor,
2015 UT 69, ¶ 10,
356 P.3d 1230.
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family were sent in December 2016, more than two years after
Greene invested in Lodging Dynamics. And they show only that
Mongie and Sybrowsky discussed Mongie potentially preparing
a financial model for Sybrowsky’s mother’s estate, not that he
actually did.
¶34 Finally, the two emails where Mongie requested that
Sybrowsky give him a friends and family discount at Marriott
properties show only that Sybrowsky agreed to give Mongie, his
longtime close friend, a hotel discount. Additionally, none of
these emails were contemporaneous with Greene’s investment in
LD Hotel Fund I; one email was sent in February 2014, months
before Greene invested in LD Hotel Fund I, and the other email
was sent in 2015, the year after Greene invested.
¶35 Accordingly, neither Crabb’s inadmissible testimony nor
any of these emails demonstrates a genuine issue of material fact
as to whether Mongie engaged in self-dealing or
“backscratching.” Thus, the district court correctly granted
summary judgment on the claim that Mongie breached a
fiduciary duty.
C. Liability Based on Agency
¶36 Greene also alleges that Links Consulting and LinksCG are
liable for breach of fiduciary duty because Mongie was acting as
their agent. But, as we concluded above, see supra ¶¶ 26–35,
Mongie is not liable for breach of fiduciary duty for failing to
cancel Greene’s life insurance policy or for recommending that the
Trust and MJG invest in LD Hotel Fund I. Thus, neither Links
Consulting nor LinksCG is liable for breach of fiduciary duty
because Greene’s claims against these two entities depend on
Mongie acting as their agent. And where the agent is not liable,
the principal cannot be liable for the agent’s actions. See
Restatement (Third) of Agency § 7.03(1) (Am. L. Inst. 2006); see also
Burdick v. Horner Townsend & Kent, Inc., 2015 UT 8, ¶ 51 n. 45, 345
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Greene v. Mongie
P.3d 531; Holmstead v. Abbott G.M. Diesel, Inc., 493 P.2d 625, 627
(Utah 1972), superseded by statute on other grounds as recognized in
Krukiewicz v. Draper,
725 P.2d 1349 (Utah 1986).
III. Negligence and Breach of the Covenant of Good Faith and
Fair Dealing
¶37 Greene asserts that the district court erred when it granted
summary judgment on both his negligence and breach of the
covenant of good faith and fair dealing claims against Mongie on
the ground that they were barred by the applicable statute of
limitations. Mongie urges this court to affirm the grant of
summary judgment on these two claims on the alternative ground
that Greene has not established the elements of either claim. We
agree with Mongie and elect to affirm on this alternative ground
alone. Harman v. 105 Partners, LLC, 2024 UT App 109, ¶ 53,
556
P.3d 669 (affirming dismissal on an “[alternative] basis alone”);
Okelberry v. West Daniels Land Ass’n,
2005 UT App 327, ¶ 11,
120
P.3d 34 (“It is well established that we may affirm the judgment
appealed from if it is sustainable on any legal ground or theory
apparent on the record, even though such ground or theory
differs from that stated by the trial court to be the basis of its ruling
or action . . . .” (cleaned up)).
A. Negligence
¶38 Greene contends that Mongie acted negligently in
connection with Greene’s investment in LD Hotel Fund I. Greene
asserts that Mongie had a duty to act in the best interest of Greene,
the Trust, and MJG because he was acting as “Greene’s
(unlicensed) financial advisor.” Greene further argues that
Mongie breached that duty “when he acted in his own self-interest and advised Greene . . . to invest in Lodging Dynamics,”
and that this breach proximately caused Greene’s losses from the
failure to cancel the life insurance policy.
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¶39 “The essential elements of a negligence claim incorporate
virtually the same requirements as a breach of fiduciary duty
claim.” Gables at Sterling Village Homeowners Ass’n, Inc. v.
Castlewood-Sterling Village I, LLC, 2018 UT 4, ¶ 55,
417 P.3d 95
(cleaned up). To prove a negligence claim, “a plaintiff must show
a duty of reasonable care owed by the defendant to [the] plaintiff,”
while to prove a breach of fiduciary duty claim, “the plaintiff must
demonstrate the existence of a fiduciary relationship between the
plaintiff and the defendant, which gives rise to a particularized
and enhanced duty of care.” Id. ¶ 56 (cleaned up). Both claims
require the plaintiff to show a breach of the duty, causation, and
damages. Id. ¶¶ 52, 55. The main “[d]ifference between a
negligence claim and a breach of fiduciary duty claim therefore
lies mainly in the type of duty owed.” Id. ¶ 56.
¶40 As we explained above, Greene failed to establish a
genuine issue of material fact regarding whether Mongie acted in
his own self-interest and thus breached his fiduciary duty. See
supra ¶¶ 29–35. Because the breach elements of a fiduciary duty
claim and a negligence claim are “virtually the same,” see Gables
at Sterling Village,
2018 UT 4, ¶ 56, we need not reassess any
alleged breach by Mongie for purposes of Greene’s negligence
claim.
¶41 Therefore, even assuming Mongie owed Greene a duty as
his financial advisor, Greene has not established that there is a
genuine issue of material fact as to whether Mongie breached the
duty owed to Greene, the Trust, or MJG for purposes of their
negligence claim. Thus, the district court properly entered
summary judgment in Mongie’s favor.
B. Breach of the MJG Operating Agreement
¶42 Greene asserts that MJG’s operating agreement contains an
implied covenant of good faith and fair dealing that “imposed a
duty on Mongie to perform in a good faith manner . . . and refrain
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2025 UT App 11
Greene v. Mongie
from decisions and recommendations” that would injure MJG
members’ interests. Greene alleges Mongie breached this duty
when he recommended that Greene invest “1 million dollars of
MJG’s assets in Lodging Dynamics based on self-interest and self-dealing,” which caused the loss of one million dollars of MJG’s
assets.
¶43 While Greene alleges that Mongie breached the operating
agreement because his investment recommendation was in his
self-interest, Mongie received no compensation for being the
manager of MJG, nor did he receive any benefit from Greene
investing MJG’s funds in Lodging Dynamics. Further, MJG’s
operating agreement contained a limitation of liability provision
that managers of MJG cannot be held liable unless their action or
omission was fraudulent, in bad faith, or constituted gross
negligence or willful misconduct. And as discussed above, see
supra ¶¶ 21–24, Greene has not shown that Mongie engaged in
fraud, nor has he provided any evidence of bad faith, gross
negligence, or willful misconduct. Therefore, the district court
correctly granted summary judgment in favor of Mongie on
Greene’s claim for breach of MJG’s operating agreement.
CONCLUSION
¶44 The district court did not err when it granted summary
judgment to the defendants on Greene’s claims for fraud, breach
of fiduciary duty, negligence, and breach of the implied covenant
of good faith and fair dealing. We therefore affirm the grant of
summary judgment.
20230414-CA 18 2025 UT App 11