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

Before Judges Fuentes, Carroll and Gooden 

Brown.

On appeal from Superior Court of New Jersey, 

Law Division, Hudson County, Docket No. L4116-14.

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).

NOT FOR PUBLICATION WITHOUT THE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.

June 12, 2017
2 A-5686-14T4

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.