SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 1732
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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. L
0604
- 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not " constitute precedent or be binding upon any court . " A lthough 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
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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 defe ndant ' 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 fidu ciary duty to plaintiff . We disagree
and affirm.

P laintiff is a certified public accountant. He was co defendant 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 w as undertaken to protect
Th immel ' s equity in the home , and was intended to secure moni es plaintiff would later advance to Thimmel and CSC . In a3 A - 1732
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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 Th immel " constantly assur[ed] [ him ] " the sale and leaseback " would guarantee that. "
Th immel 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 participa nts in the transaction. The complaint in the adversarial proceeding claimed
the transaction was fraudulent and should be vo ided , 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
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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
defe ndant. By leave granted , p laintiff file d an amended complaint

a dding a cause of action for breach of fiduciary d uty 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 credito r , 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. Levi ne 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
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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 b usiness 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 [p laintiff] to base his investment on the sale/leaseback transaction. " Levine furthe r stated that even if there was no attorney client 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] t ransa ction , he didn ' t advise [ Thimmel ] that [he] was engaging in a fraud. "

D efendant 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
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advi sed [Thimmel] against " the sale and leaseback transaction. Thimmel signed the document , and his signature was notarized by a duly license d notary public o n June 25 , 2007 , three days before
the sale and leaseback transaction.

In April 2016 , p laintiff filed a motion to compel discovery seeking a n 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 dem onstrate " how whether this [waiver] currently exists is relevant to any of his claims against " defe ndant. The judge
further found plaintiff ' s certification failed to provide a factual basis supporting his " allegation that the [waiver] was not
created on t he 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. "

D efendant subsequently moved for summary judgment , and plaintiff cross - moved for partial summary judgment on his fiduciary duty claim against defendant. In response to defendant ' s7 A - 1732
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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 n or paid him any legal fees. Plaintiff also admitted he was Thimmel ' s accountant and financial advisor , partners with Thimmel in CSC , and " knew full w ell 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 defen dant ' s summary judgment motion and in support of his cross

- motion , plaintiff submitted a certification
and relied on a supplemental certification of merit an d expert report from Levi ne . 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 [ - ] emp loyees 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 s ale and leaseback

3 Plaintiff never provided competent evidence to the court from the two employees confirming his assertion.8 A - 1732
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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 defend ant " was the gatekeeper for [ the sale and leaseback] transaction and if the re 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 as sertion. Levine further stated

" there [ was ] no denying that the HUD was fraudulent ," and that
defendant " should have known that the transaction was fra udulent on many levels ," and defendant ' s participation in the closing amounted to a deviation " from acce pted 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 c laim , plaintiff failed to present evidence showing
defendant served as plaintiff and Thimmel ' s attorney " with regards9 A - 1732
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to CSC. " The court noted that plaintiff admitted during his deposition that he never retained defendant as his attorney or sought legal a dvice 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 fail ed to precisely indicate which E - mails or records supported his opini on , 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 a n [ E ][ - ]mail originated by . . . Thimmel stating that [defendant]

' should get [five percent] of CSC. '" The judge noted that plaintiff admitted def endant 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
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Judge Miller granted defendant ' s summary judgment motion and
dismiss ed the legal malpractice claim because plaintiff failed to present any competent evidence showing there was an attorney client relationship be tween 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 le aseback transaction , ther e 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 establish ing

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
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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 t he 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 t he n 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 re asonable jury could determine " that defendant ' s12 A - 1732
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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 nev er sought post
- transaction lien s on the home when the loans were made , and the loans made by plaintiff to Thimmel constituted separ ate 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 purpor ted breach of any alleged duty. Following the cour t ' 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 comp laint with prejudice on the merits .13 A - 1732
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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

TH E COURT ABUSED ITS DISCRETION I N 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 deny ing 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
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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). Issue s of law are subject to
the de novo standard of review , and thus the trial court ' s determination of such i ssues is accorded no deference. Kaye v. Rosefielde , 223 N.J. 218 , 229 (2015) (citations omitted). We have carefully considered the record and plainti ff ' 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 su fficient 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
de termin e 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 tim e later than defendant contended , b ut makes no showing15 A - 1732
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r esolution of that issue is material to the court ' s disposition of the summary judg ment motions . Affirmed.