SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1732-16T2

JOSEPH R. LUPO,

Plaintiff-Appellant,

v. 

KENNETH M. THIMMEL,

Defendant,

and 

ALBERT H. WUNSCH, III, ESQ.,

Defendant-Respondent.

____________________________

Argued April 30, 2018 – Decided July 20, 2018

Before Judges O'Connor and Vernoia. 

On appeal from Superior Court of New Jersey,

Law Division, Somerset County, Docket No. L0604-14.

Peter A. Ouda argued the cause for appellant.

Albert H. Wunsch, III, argued the cause pro 

se (Paul A. Krauss, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
2 A-1732-16T2

Plaintiff Joseph R. Lupo appeals from a May 2, 2016 order 

denying his motion to compel an inspection of defendant Albert H. 

Wunsch, III's firm's computer hard drive, and a July 22, 2016 

order granting defendant's motion for summary judgment and denying 

plaintiff's cross-motion for partial summary judgment. Plaintiff

asserts the trial court abused its discretion in denying his motion 

to inspect the hard drive because it "was of enormous importance,"

erred by granting defendant's summary judgment because the court 

erroneously "found facts based on disputed evidence submitted and 

rejected expert testimony," and erred by denying plaintiff's 

cross-motion for summary judgment because the record shows 

defendant breached his fiduciary duty to plaintiff. We disagree

and affirm.

Plaintiff is a certified public accountant. He was codefendant Kenneth M. Thimmel's accountant and, in 2007, supplied 

Thimmel with monies for an interest in a sports memorabilia 

business, Classic Sports Collectibles, LLC (CSC), in which Thimmel 

was also a member. In 2007, Thimmel entered into a sale and 

leaseback transaction on his Franklin Lakes home. Defendant and 

his law firm represented Thimmel in the transaction.

Plaintiff alleges the transaction was undertaken to protect

Thimmel's equity in the home, and was intended to secure monies 

plaintiff would later advance to Thimmel and CSC. In a
3 A-1732-16T2

certification to the court, plaintiff states that Thimmel entered 

into the sale and leaseback transaction because he had financial 

issues and wanted to induce plaintiff "to invest more monies with 

him, which [he] did in the amount of approximately $308,047."

1 

Plaintiff further certified he extended additional credit to 

Thimmel following the sale and leaseback transaction because

Thimmel represented "there would be substantial equity in the home 

to secure the additional monies" and Thimmel "constantly assur[ed] 

[him]" the sale and leaseback "would guarantee that."

Thimmel later declared bankruptcy and identified plaintiff 

as a creditor. The Bankruptcy Trustee initiated an adversarial 

proceeding on Thimmel's behalf against the purchaser of the 

property, the mortgage company and the respective attorneys,

including defendant, who represented the participants in the 

transaction. The complaint in the adversarial proceeding claimed 

the transaction was fraudulent and should be voided, and alleged 

the defendants acted to defraud Thimmel. The complaint also 

asserted a malpractice claim against defendant. The complaint was 

subsequently dismissed by stipulation without prejudice against 

defendant without any disposition on the merits. 

 

1 Plaintiff certifies that his claims in this action are limited 

to the monies he invested with Thimmel following the 2007 sale and 

leaseback transaction. 
4 A-1732-16T2

In May 2014, plaintiff filed a Law Division complaint alleging 

causes of action for fraud, breach of fiduciary duty, and forgery 

against Thimmel, and a claim of legal malpractice against 

defendant. By leave granted, plaintiff filed an amended complaint

adding a cause of action for breach of fiduciary duty against 

defendant, alleging defendant represented Thimmel in the sale and 

leaseback transaction, and "knew or should have known that Thimmel 

participated in the sale[]/leaseback so that he could continue to 

. . . engage in a business relationship with" plaintiff. Plaintiff 

alleged that defendant should have known the sale and leaseback 

transaction was fraudulent as to him, as Thimmel's future creditor,

and breached his duty to him "by participating in a transaction 

that was fraudulent."

Plaintiff filed a November 16, 2015 certification of merit 

and expert report from attorney Barry E. Levine, Esq. Levine 

stated it was his "opinion that [defendant] deviated from accepted 

standards of practice and otherwise breached his fiduciary duty 

to" plaintiff. Levine stated there were "numerous [E][-]mails"

from defendant's office showing defendant represented plaintiff 

and Thimmel "together at the same time," and although defendant 

and plaintiff were not parties to a retainer agreement, "the 

correspondence and circumstances support the conclusion that 

[plaintiff] believed that [defendant] was representing him." 
5 A-1732-16T2

Levine further opined that defendant "was engaged in a concurrent 

conflict of interest" in violation of Rule of Professional Conduct

(R.P.C.) 1.7, because he represented plaintiff and Thimmel despite 

their ongoing business relationship, and defendant failed to make 

necessary disclosures to plaintiff. Levine stated defendant 

failed to warn plaintiff of the "risks of the transaction," and 

"[a]n attorney who conformed to the standard of care would not 

have counseled [plaintiff] to base his investment on the 

sale/leaseback transaction."

Levine further stated that even if there was no attorneyclient relationship between plaintiff and defendant, defendant 

owed a fiduciary duty to plaintiff. Levine opined that defendant 

breached his fiduciary duty to plaintiff because although 

defendant "apparently advised Thimmel against the [sale and 

leaseback] transaction, he didn't advise [Thimmel] that [he] was 

engaging in a fraud." 

Defendant testified at his deposition that he advised Thimmel 

against entering into the sale and leaseback transaction because 

it was "a deal that [he] found to be a mistake." He also testified 

that a few days before the closing, he drafted a "Waiver and 

Acknowledgement of Risk"

2 stating he "clearly and unequivocally 

 

2 The parties refer to the waiver as a "letter."
6 A-1732-16T2

advised [Thimmel] against" the sale and leaseback transaction. 

Thimmel signed the document, and his signature was notarized by a 

duly licensed notary public on June 25, 2007, three days before 

the sale and leaseback transaction. 

In April 2016, plaintiff filed a motion to compel discovery 

seeking an order permitting him to inspect defendant's law firm's 

computer hard drive. In his certification in support of the 

motion, plaintiff asserted "he doubt[ed] the legitimacy of the 

date" of the "self-serving" waiver, and inspecting the hard drive 

would permit plaintiff to establish when it was drafted. 

Judge Thomas C. Miller entered a May 2, 2016 order and written 

statement of reasons denying the request and finding plaintiff 

failed to demonstrate "how whether this [waiver] currently exists 

is relevant to any of his claims against" defendant. The judge

further found plaintiff's certification failed to provide a 

factual basis supporting his "allegation that the [waiver] was not 

created on the date stated," noting there must be more than a 

showing that plaintiff had a "suspicion or feeling that the 

document is not genuine before [it would] authorize an intrusion 

into . . . [d]efendant's hard drive."

Defendant subsequently moved for summary judgment, and 

plaintiff cross-moved for partial summary judgment on his 

fiduciary duty claim against defendant. In response to defendant's 
7 A-1732-16T2

motion, plaintiff admitted he never had a retainer agreement with 

defendant, asked defendant for any legal advice or paid defendant 

to render any legal advice, and that CSC neither had a retainer 

agreement with defendant nor paid him any legal fees. Plaintiff 

also admitted he was Thimmel's accountant and financial advisor,

partners with Thimmel in CSC, and "knew full well about . . . 

Thimmel's desperate financial situation." Plaintiff admitted he 

introduced Thimmel to the finance company that arranged the sale 

and leaseback of Thimmel's home, and knew Thimmel sold his house 

in 2007 pursuant to the sale and leaseback transaction. 

In opposition to defendant's summary judgment motion and in 

support of his cross-motion, plaintiff submitted a certification 

and relied on a supplemental certification of merit and expert 

report from Levine. Plaintiff asserted defendant retained a five 

percent ownership in CSC, and that "there was a wealth of evidence 

showing . . . [plaintiff] was reasonably relying on [defendant's] 

office to protect" his interests. Plaintiff certified that "two 

ex[-]employees of CSC . . . will state that [defendant] was the 

attorney for the company and received tickets to events and 

merchandise for his legal services."

3 Plaintiff further certified 

that had defendant advised him that the sale and leaseback 

 

3 Plaintiff never provided competent evidence to the court from 

the two employees confirming his assertion. 
8 A-1732-16T2

transaction was fraudulent, he would not have "extended further 

credit to Thimmel" following the transaction. 

Levine's supplemental certification of merit and expert 

report concluded defendant "was the gatekeeper for [the sale and 

leaseback] transaction and if there were any risks to Thimmel his 

attorney[, defendant,] should have advised him." Levine stated 

that defendant's testimony that he did not represent CSC "was 

contradicted by the [E][-]mail correspondence," but did not cite 

to any E-mails supporting his assertion. Levine further stated 

"there [was] no denying that the HUD was fraudulent," and that 

defendant "should have known that the transaction was fraudulent 

on many levels," and defendant's participation in the closing 

amounted to a deviation "from accepted standards [of] practice 

and" otherwise constituted a breach of his fiduciary duty to 

plaintiff.

Judge Miller granted defendant's summary judgment motion and 

denied plaintiff's cross-motion for partial summary judgment. In 

a detailed and well-reasoned written statement of reasons, Judge 

Miller determined plaintiff did not establish defendant committed 

legal malpractice, because the "uncontradicted evidence" showed 

plaintiff was not defendant's client and that, contrary to 

plaintiff's claim, plaintiff failed to present evidence showing 

defendant served as plaintiff and Thimmel's attorney "with regards 
9 A-1732-16T2

to CSC." The court noted that plaintiff admitted during his 

deposition that he never retained defendant as his attorney or

sought legal advice from him, and plaintiff failed to produce any 

evidence showing defendant served as CSC's counsel. 

The judge rejected plaintiff's reliance on Levine's 

conclusion that plaintiff and defendant had an attorney-client 

relationship because it was founded on purported E-mails Levine 

never identified. Judge Miller determined Levine's supplemental

report failed to precisely indicate which E-mails or records 

supported his opinion, and plaintiff failed to present any "direct 

evidence to indicate that [defendant] received or even reviewed 

the [E][-]mails." 

Judge Miller also found plaintiff failed to produce "any 

documentation showing that [d]efendant acted as CSC's attorney or 

. . . had an ownership interest in the company aside from an 

[E][-]mail originated by . . . Thimmel stating that [defendant] 

'should get [five percent] of CSC.'" The judge noted that 

plaintiff admitted defendant was never copied on the E-mail, did 

not provide any evidence showing defendant "was aware of any such 

ownership interest," and Thimmel testified defendant declined his 

offer for a five percent interest in CSC. Thus, Judge Miller 

determined plaintiff failed to present any competent evidence

defendant had an ownership interest in CSC.
10 A-1732-16T2

Judge Miller granted defendant's summary judgment motion and 

dismissed the legal malpractice claim because plaintiff failed to 

present any competent evidence showing there was an attorneyclient relationship between plaintiff and defendant.4 The court 

concluded that the "uncontradicted evidence supports the 

proposition that [plaintiff] was not a client of" defendant, and 

there was "no credible evidence to support a proposition that 

[defendant] represented both [plaintiff] and . . . Thimmel with 

regards to CSC."

Judge Miller also determined that based on the evidence and 

circumstances presented, defendant did not have a fiduciary duty 

to advise plaintiff that, following the sale and leaseback 

transaction, there was insufficient equity in Thimmel's interest 

in his home to secure the future loans plaintiff made to him.5 The 

judge determined plaintiff failed to present evidence establishing

 

4 Judge Miller also rejected plaintiff's claim defendant violated 

R.P.C. 1.7, which prohibits an attorney from representing a client 

with whom he has a concurrent conflict of interest, because 

plaintiff did not present evidence establishing he was defendant's 

client. The judge found Levine's conclusion that defendant 

violated R.P.C. 1.7 by creating a conflict of interest amounted 

to "nothing but the expert's bare conclusions, unsupported by 

factual evidence or other data," and was thus an inadmissible net 

opinion. 

5 As noted, plaintiff's claims against defendant are based on 

monies he loaned to Thimmel following the sale and leaseback 

transaction.
11 A-1732-16T2

that defendant "had a duty to advise [plaintiff] that . . . Thimmel 

no longer had an interest in his real estate holding . . . to 

secure the loan transactions that [plaintiff] continued to make 

with . . . Thimmel" following the sale and leaseback transaction. 

Judge Miller observed the evidence showed plaintiff knew 

about the sale and leaseback transaction, and "understood he could 

not secure any further loans by a lien on Thimmel's former 

property," because plaintiff received an almost $200,000 payoff 

from the transaction for monies he had previously loaned Thimmel,

and then discharged a mortgage he had on Thimmel's property 

securing those loans. Judge Miller found plaintiff introduced 

Thimmel to the buyer's finance company, "arranged for the 

transaction, was the primary beneficiary of the transaction, and 

. . . admit[ted] that he understood the nature and ramifications 

of the transaction." Judge Miller concluded "no duty can be 

imposed upon [defendant] to advise [plaintiff] of facts and 

circumstances that [plaintiff] knew or should have known existed." 

In addition, there was no direct evidence showing defendant was 

actually aware plaintiff continued to loan money to Thimmel 

following the transaction, and defendant denied having such 

knowledge. 

Judge Miller also determined that even if defendant had such 

a duty, "no reasonable jury could determine" that defendant's 
12 A-1732-16T2

failure to warn plaintiff caused plaintiff harm, because 

plaintiff's own actions following the transaction constituted an 

intervening cause of harm.6 The judge found the evidence showed 

plaintiff never sought or received advice from defendant 

concerning the post-transaction loans, plaintiff made the loans 

without investigating the status of Thimmel's ownership of, or 

equity in, his home, plaintiff never sought post-transaction liens

on the home when the loans were made, and the loans made by 

plaintiff to Thimmel constituted separate and independent 

transactions that superseded any action or inaction on defendant's

part concerning the sale and leaseback transaction. The court 

determined that no reasonable jury could conclude that plaintiff's 

alleged damages resulting from Thimmel's default on the post-sale 

and leaseback loans were a result of defendant's purported breach 

of any alleged duty. 

Following the court's entry of the order granting defendant's 

summary judgment motion and denying plaintiff's cross-motion, the 

court conducted a bench trial on plaintiff's claims against Thimmel 

 

6 We note that although the trial court granted defendant's 

summary judgment motion and dismissed all claims against him with 

prejudice, the court also denied defendant's motion for summary 

judgment on statute of limitations grounds without prejudice. This 

determination is of no moment here because we affirm the court's 

dismissal of the complaint with prejudice on the merits.
13 A-1732-16T2

and entered final judgment against him in the amount of 

$245,473.77. This appeal followed.

Plaintiff presents the following arguments for our 

consideration on appeal:

POINT I

THE COURT ABUSED ITS DISCRETION IN DENYING THE 

MOTION TO INSPECT THE HARD DRIVE.

POINT II

SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 

TO [] DEFENDANT.

POINT III

THE COURT SHOULD NOT HAVE DENIED PLAINTIFF'S 

MOTION FOR SUMMARY JUDGMENT BASED ON 

[DEFENDANT'S] FIRM[']S BREACH OF ITS FIDUCIARY 

DUTY.

 When reviewing an order granting or denying summary judgment,

we apply the same standard as the trial court. State v. Perini 

Corp., 221 N.J. 412, 425 (2015) (citing Town of Kearny v. Brandt,

214 N.J. 76, 91 (2013); Liberty Surplus Ins. Corp. v. Nowell 

Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). In considering a 

motion for summary judgment, "both trial and appellate courts must 

view the facts in the light most favorable to the non-moving party,

which in this case is plaintiff." Bauer v. Nesbitt, 198 N.J. 601,

605 n.1 (2009) (citing R. 4:46-2(c); Brill v. Guardian Life Ins. 

Co. of Am., 142 N.J. 520, 540 (1995)). 
14 A-1732-16T2

 Summary judgment is proper if the record demonstrates "no 

genuine issue as to any material fact challenged and that the 

moving party is entitled to a judgment . . . as a matter of law."

Burnett v. Gloucester Cty. Bd. of Chosen Freeholders, 409 N.J. 

Super. 219, 228 (App. Div. 2009). Issues of law are subject to 

the de novo standard of review, and thus the trial court's 

determination of such issues is accorded no deference. Kaye v. 

Rosefielde, 223 N.J. 218, 229 (2015) (citations omitted).

We have carefully considered the record and plaintiff's 

arguments supporting his contention the court erred by granting 

defendant's summary judgment motion and denying his cross-motion,

find they are without merit sufficient to warrant discussion in a 

written opinion, R. 2:11-3(e)(1)(E), and affirm the court's order 

substantially for the reasons set forth in Judge Miller's detailed 

and well-reasoned written decision.

Because we have determined the court correctly granted 

defendant's summary judgment motion, it is unnecessary to 

determine whether the court erred by denying plaintiff's request 

for inspection of defendant's law firm's computer hard drive. 

Plaintiff claims he was entitled to the inspection because it may 

have shown the notarized waiver signed by Thimmel was prepared at

a time later than defendant contended, but makes no showing
15 A-1732-16T2

resolution of that issue is material to the court's disposition 

of the summary judgment motions. 

Affirmed.