FERNANDO A. PORTES VS. HERBERT TAN(L-4116-14, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5686-14T4
FERNANDO A. PORTES,
Plaintiff-Appellant,
v.
HERBERT TAN and HERBERT TAN LLC,
Defendants,
and
WILLIAM MICHELSON,
Defendant-Respondent.
_____________________________________
Argued November 2, 2016 – Decided June 12, 2017
Before Judges Fuentes, Carroll and Gooden
Brown.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-
4116-14.
Fernando A. Portes, appellant, argued the
cause pro se.
Paul L. Croce argued the cause for respondent
(McElroy, Deutsch, Mulvaney & Carpenter, LLP,
attorneys; Robert B. Hille, of counsel and on
the brief; Mr. Croce, on the brief).
PER CURIAM
Plaintiff Fernando Portes appeals from an order of the Law
Division dismissing his legal malpractice complaint for failure
to comply with the requirements of the Affidavit of Merit Act
(AOMA), N.J.S.A. 2A:53A-26 to -29. We affirm.
On September 10, 2014, plaintiff filed a pro se civil action
against attorney William Michelson, alleging professional
malpractice. Plaintiff originally hired Michelson to submit an
expert report in support of his legal malpractice action against
the attorneys who represented him in an employment discrimination
case against Johnson & Johnson. The latter case was presented to
a jury, which returned a no-cause verdict in favor of Johnson &
Johnson. The Law Division dismissed plaintiff's legal malpractice
action against his trial attorneys, following its rejection of
Michelson's expert report as a net opinion.
Here, after joinder of issue, Michelson moved to dismiss
plaintiff's legal malpractice action, based on plaintiff's failure
to file a timely affidavit of merit, as required by N.J.S.A.
2A:53A-27. Plaintiff opposed the motion and cross-moved to amend
his complaint to add a count for breach of contract. The parties
appeared for oral argument before Judge Barry P. Sarkisian on May
8, 2015. After considering the parties' presentations, Judge
Sarkisian dismissed plaintiff's complaint for failure to comply
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with the AOMA and denied plaintiff's cross-motion to amend his
complaint. Judge Sarkisian made the following findings in support
of his decision:
I do find that when you look at the essence
of the complaint that you've made against Mr.
Michelson, ultimately it goes to his
profession as an attorney in his ability to
issue a qualified opinion as an attorney,
which at that time was an opinion against the
actions or lack of actions taken by [the
attorneys who tried the Johnson & Johnson
case]. So, . . . the essence of that claim[]
is a claim for professional malpractice, which
requires an affidavit of merit, which you have
not filed in the time perimeters permitted by
the [Supreme] Court.
. . . .
[T]his complaint is . . . pro se by . . . Mr.
Portes[.] . . . It's approximately 34 pages,
[and] mostly goes to allegations of
malpractice against [the attorneys who tried
the Johnson & Johnson case][.] . . . [On]
almost the last page of the complaint against
Mr. Michelson, . . . [plaintiff] says[:]
"Defendant, Michelson, breached his contract
with plaintiff to provide an expert report to
allow the claims against [the attorneys who
tried the Johnson & Johnson case][.] . . .
[W]hile [Michelson] concluded that [these
lawyers] had committed legal malpractice, [he]
provided a useless 'net opinion' expert report
to plaintiff, which plaintiff could not use
in court, and hence prevent[ed] plaintiff from
pursuing legal malpractice, breach of
contract, and conspiracy claims against [these
lawyers]. Either Michelson should not have
issued this report, and hence, would have
allowed plaintiff to find an expert [who
would] have issued a report without a net
opinion, or if he issued his report and
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concluded that [these lawyers] had committed
malpractice, as he did, he must have properly
sustained such report and facts on the 12
positions plaintiff provided he was the most
qualified [sic], which plaintiff has provided
to him."
. . . .
[A]s you're framing your complaint, . . .
that's malpractice.
Plaintiff thereafter filed a motion for reconsideration
pursuant to Rule 4:49-2. Judge Sarkisian denied plaintiff's motion
for reconsideration, explaining his reasons in a letter-opinion
released to the parties on June 17, 2015. In his letter-opinion,
Judge Sarkisian comprehensively reviewed plaintiff's litigation
history and the factual predicates underlying his current action
against Michelson. Applying the standard governing a motion for
reconsideration as explained in Fusco v. Bd. of Educ. of City of
Newark, 349 N.J. Super. 455, 462 (App. Div.) (quoting D'Atria v.
D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)), certif. denied,
174 N.J. 544 (2002), Judge Sarkisian did not find any grounds to
alter his May 8, 2015 final determination.
In this appeal, plaintiff argues the motion judge erred in
dismissing his complaint against Michelson based on the AOMA.
Despite this, plaintiff devotes a great deal of his appellate
brief attacking the merits of Michelson's deficient expert report.
Plaintiff urges this court to reverse Judge Sarkisian's denial of
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his motion to amend his complaint and to permit this matter to
proceed as a breach of contract case.
We review the grant of a motion for summary judgment using
the same standard used by the motion judge. Globe Motor Co. v.
Igdalev, 225 N.J. 469, 479 (2016) (citation omitted). We consider
the facts in the light most favorable to the nonmoving party, and
we give that party the benefit of all inferences that can
rationally be drawn from such facts. Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 535–36, 540 (1995) (citations omitted).
This standard compels the grant of summary judgment "if the
pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment or order as a matter of
law." R. 4:46-2(c). Finally, because summary judgment concerns
only legal questions, our review is de novo. See Flinn v. Amboy
Nat. Bank, 436 N.J. Super. 274, 287 (App. Div. 2014).
Applying this standard, we are satisfied that Judge Sarkisian
properly dismissed plaintiff's complaint as a matter of law. There
is no question that plaintiff's cause of action against Michelson
is predicated on the tort of legal malpractice. Although plaintiff
entered into a contract with Michelson, the essence of that
contract required Michelson to provide his legal opinion
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concerning the performance of other lawyers. To prevail in his
cause of action, plaintiff must prove Michelson deviated from the
standard of professional competence expected from an attorney
under these circumstances. This requires an affidavit of merit.
We discern no legal basis to disagree with the reasons expressed
by Judge Sarkisian.
Lawyers are among the class of professionals expressly
covered by the AOMA. N.J.S.A. 2A:53A-26c. The Legislature adopted
the AOMA "to weed out frivolous claims against licensed
professionals early in the litigation process." Meehan v.
Antonellis, 226 N.J. 216, 228 (2016) (citing Ferreira v. Rancocas
Orthopedic Assocs., 178 N.J. 144, 146 (2003)). To establish legal
malpractice, a plaintiff must show: "(1) the existence of an
attorney-client relationship creating a duty of care by the
defendant attorney, (2) the breach of that duty by the defendant,
and (3) proximate causation of the damages claimed by the
plaintiff." McGrogan v. Till, 167 N.J. 414, 425 (2001) (citing
Conklin v. Hannock Weisman, 145 N.J. 395, 416 (1996)). Plaintiff's
failure to serve Michelson with a timely and proper affidavit of
merit renders the cause of action legally deficient because "[t]he
submission of an appropriate affidavit of merit is considered an
element of the claim." Meehan, supra, 226 N.J. at 228.
Affirmed.
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