FERNANDO A. PORTES VS. HERBERT TAN(L-4116-14, HUDSON COUNTY AND STATEWIDE)
A-5686-14T4
| N.J. Super. Ct. App. Div. | Jun 12, 2017Background
- Fernando Portes sued attorney William Michelson for legal malpractice after Michelson prepared an expert report Portes used in prior litigation; Portes claimed Michelson’s report was a useless "net opinion" that prevented success against other lawyers.
- Michelson moved to dismiss under the Affidavit of Merit Act (AOMA) for Portes’ failure to serve a timely affidavit of merit required for professional malpractice claims.
- The Law Division (Judge Sarkisian) granted Michelson’s motion, concluding the essence of Portes’ claim was legal malpractice and therefore subject to AOMA; Portes had not filed the required affidavit within the statutory/time limits.
- Portes cross-moved to amend his complaint to add a breach of contract count and sought reconsideration under Rule 4:49-2; both requests were denied.
- The Appellate Division reviewed the matter de novo on the summary-judgment standard and affirmed dismissal, holding that an affidavit of merit is an element of a legal malpractice claim and Portes’ failure to timely provide one was fatal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does AOMA apply to Portes’ claim against Michelson? | Portes argued his claims could be framed as contract/breach rather than malpractice and thus not require an affidavit of merit. | Michelson argued the claim is essentially professional malpractice and AOMA applies. | Held: AOMA applies because the claim’s essence is malpractice based on professional legal opinion. |
| Was Portes’ failure to file an affidavit of merit fatal? | Portes contested the adequacy of Michelson’s expert report but did not provide a timely affidavit. | Michelson argued the timeliness requirement was not met and is mandatory. | Held: Fatal; affidavit of merit is an element of the malpractice claim and was not timely filed. |
| Could Portes amend to proceed on a breach-of-contract theory? | Portes sought leave to amend to assert breach of contract to avoid AOMA consequences. | Michelson opposed, maintaining the contract claim was ancillary to malpractice and not a basis to avoid AOMA. | Held: Denied; amendment would not change the claim’s essential malpractice character subject to AOMA. |
| Was reconsideration warranted under Rule 4:49-2? | Portes argued errors in the motion decision and sought reconsideration. | Michelson maintained the original ruling was correct. | Held: Denied; no basis to alter the initial ruling under the applicable reconsideration standard. |
Key Cases Cited
- Meehan v. Antonellis, 226 N.J. 216 (discussing AOMA’s purpose to weed out frivolous professional malpractice claims)
- McGrogan v. Till, 167 N.J. 414 (elements required to establish legal malpractice)
- Globe Motor Co. v. Igdalev, 225 N.J. 469 (summary-judgment standard on appellate review)
- Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (summary-judgment principles)
- Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455 (reconsideration standard cited on appeal)