[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 11-11711 ELEVENTH CIRCUIT MARCH 30, 2012 Non-Argument Calendar JOHN LEY ________________________ CLERK
D.C. Docket No. 1:08-cv-01341-WCO
A. STEPHAN BOTES,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
HOWARD J. WEINTRAUB,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellee. ________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(March 30, 2012)
Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.
PER CURIAM:
A. Stephan Botes, proceeding pro se, appeals the district court’s grant of
summary judgment in favor of Howard Weintraub in Botes’s diversity lawsuit alleging fraud, legal malpractice, and breach of contract. For the reasons set forth
below, we affirm. I. Facts
In early November 2004, Botes was arrested and subsequently indicted on
multiple charges, including conspiracy, theft of federal funds and wire fraud.
Shortly after his arrest, Botes was interviewed by Howard Weintraub, a criminal
defense attorney, who described himself as professionally qualified to represent
Botes and promised to provide the most vigorous and zealous defense permitted by
law. According to Botes, Weintraub also stated, among other things, that several of
the judges and prosecutors in the district were Weintraub’s “buddies” and that the
district court judge presiding over Botes’s case called Weintraub “Howard” in
court and would let Weintraub “have the run of the courtroom.” Botes thus hired
Weintraub to represent him through all pre-trial proceedings, and, if necessary,
through trial and sentencing.
The original representation agreement called for Botes to pay Weintraub a
flat fee of $65,000, which Botes ultimately paid in full. In February 2005, Botes
agreed to pay Weintraub an additional $35,000 on the condition that Botes’s
insurance company, Zurich American Insurance Company (“Zurich”) covered the
costs of representation.
2 In late 2004 and early 2005, Botes took a polygraph examination (in two
sessions), which he passed. Weintraub moved to the admit the polygraph results
into evidence, and a magistrate judge held a Daubert1 hearing on the issue. It
appears from the hearing and other documents that Weintraub had decided not to
videotape the polygraph exam sessions, even though Botes had been ready to do so,
and that videotaping the sessions might have facilitated the admission of the results
into evidence. In November 2005, the magistrate issued a report, recommending
that Weintraub’s motion to admit the polygraph results be denied. Approximately
one month later, Weintraub filed objections to the report and recommendation,
which remained pending before the district court until March 2006, as discussed
below.
Towards the end of 2005, Botes hired another attorney, Brian Steel, to act as
co-counsel with Weintraub, ostensibly due to the complexity of Botes’s criminal
case. The record indicates, however, that Botes was dissatisfied with Weintraub’s
performance. Botes’s major grievance at the time was that Weintraub spent too
little time on the case and was not preparing for trial. Moreover, according to
Botes’s later complaints, Weintraub was reluctant to challenge Botes’s overly
1 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590-97, 113 S.Ct. 2786, 2795-99, 125 L.Ed.2d 469 (1993) (describing the factors that a court must consider in determining whether to admit expert scientific testimony under Fed.R.Evid. 702).
3 restrictive pre-trial release conditions, so much so that Botes had to draft the
necessary motions himself and coax Weintraub into filing them. Many of Botes’s
bond conditions were eventually lifted, but in piecemeal fashion over the course of
approximately a year.
Near the end of January 2005 and early February 2006, a dispute arose
between Botes and Weintraub regarding the $35,000 which Zurich apparently
agreed to pay but that Weintraub never received. The parties soon resolved this
dispute, with Weintraub agreeing to forego the $35,000 and Botes agreeing to pay
him the money if and when he recovered financially. In the middle of February
2006, however, Weintraub sent Botes a formal letter of withdrawal. Weintraub
explained that he was withdrawing because Botes believed him to be ineffective
and hired Steel as co-counsel due to such perceived ineffectiveness. Botes
responded that he needed Weintraub to handle the open issues with the polygraph,
as Weintraub was most familiar with the matter. Upon the resolution of those
issues, Botes would allow Weintraub to withdraw without any further financial
obligations between them.
On March 17, 2006, the district court adopted the magistrate’s report and
recommendation with regard to the polygraph results, denying their admission into
evidence. That same day, Weintraub moved to withdraw as attorney for Botes.
4 Botes apparently did not receive notice of this motion until the court granted it on
April 11, 2006. Botes went to trial in May 2006 and was convicted on 15 of the 48
counts against him. In June 2006, he sent a letter to Weintraub, threatening to sue
him for breach of contract and legal malpractice. In that letter, Botes characterized
as breach Weintraub’s deficient performance throughout representation.
Subsequently, while incarcerated, Botes filed the instant complaint against
Weintraub, raising several federal and state claims, including fraud and breach of
contract. Among other things, Botes alleged that Weintraub misrepresented his
qualifications and the extent of his relationships with judges and prosecutors.
Botes also alleged numerous instances of deficient performance on the part of
Weintraub, namely, failing to challenge Botes’s burdensome pre-trial release
conditions, despite Botes’s repeated requests to do so; mishandling the polygraph
examination sessions by failing to videotape them, thereby precluding the
admission the results into evidence; failing to review the indictment for
deficiencies; failing to interview any witnesses and review all discovery; failing to
file motions to suppress evidence and motions for a speedy trial; failing to protect
Botes’s various constitutional rights; failing to move to quash a grand jury
subpoena, thereby providing the government with incriminating evidence; and
withdrawing from Botes’s representation before trial.
5 Weintraub moved to dismiss the complaint for failure to state a claim, and
the district court granted Weintraub’s motion in part, dismissing all of Botes’s
federal claims but allowing his state claims of fraud and breach of contract to
proceed under diversity jurisdiction. After discovery, Weintraub filed a motion for
summary judgment. He argued, among other things, that Botes’s breach-of-
contract allegations should be construed as a claim of legal malpractice and then
dismissed due to Botes’s failure to support the claim with expert testimony, as
required by Georgia law. To his motion, Weintraub attached an affidavit from
himself and another criminal defense attorney, affirming that Weintraub met or
exceeded the applicable standard of care with regard to all alleged performance
failures. Botes responded and filed his own motion for summary judgment.
The district court granted Weintraub’s motion for summary judgment and
denied Botes’s. The court found that Botes failed to establish all the elements of
fraud with regard to any of Weintraub’s alleged misrepresentations. As to breach
of contract, the court determined that most of Botes’s allegations concerning
Weintraub’s preformance were actually claims of legal malpractice, and, because
Botes failed to support his malpractice claim with expert testimony, he could not
survive summary judgment on this claim. The court then found that Weintraub’s
6 withdrawal as counsel did not constitute a breach of contract because the parties
abandoned their representation agreement by mutual consent.
II. Analysis
We review the grant of summary judgment de novo, and the district court’s
factual findings for clear error. Robinson v. Tyson Foods, Inc., 595 F.3d 1269,
1273 (11th Cir. 2010). A district court shall grant summary judgment “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). We draw
all factual inferences in a light most favorable to the non-moving party. Shiver v.
Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). However, the non-moving party
cannot create a genuine issue of material fact through speculation, id., or evidence
that is “merely colorable” or “not significantly probative,” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
A. Fraud
Botes argues that Weintraub committed fraud by (1) lying to Botes about his
qualifications and his friendships with the judges and prosecutors, (2) lying to
Botes about the reasons for taking the polygraph examination, hoping that Botes
would fail so that Weintraub could maneuver him into a plea bargain, (3) telling
Botes that his pretrial release conditions were standard and that Botes was wasting
7 his time challenging them, (4) telling Botes that he would learn the case, prepare
for trial, and represent him zealously, and (5) promising Botes that he would not
withdraw, while at the same time intending to withdraw.2
To prevail on a claim of fraud under Georgia law, a plaintiff must establish
five elements: (1) a false representation or omission of a “material fact,” (2)
scienter; (3) intention to induce the plaintiff to act or refrain from acting; (4)
justifiable reliance by the plaintiff; and (5) damages. TechBios, Inc. v. Champagne,
688 S.E.2d 378, 380 (Ga. Ct. App. 2009).
In this case, the district court correctly found that Botes failed to establish all
elements of fraud. First, the record does not reveal any material false statements or
omissions by Weintraub regarding his professional qualifications and his
relationships with judges and prosecutors. Weintraub’s general statements that
certain judges were his “buddies” or that he would have “the run of the courtroom”
constitute no more than subjective opinion and “puffing,” designed to sell
Weintraub’s services, and, as such, these statements cannot constitute fraud. See
U-haul Co. of W. Ga. v. Dillard Paper Co., 312 S.E.2d 618, 620 (Ga. Ct. App.
2 Botes also raises several other claims of bad faith and intentional misconduct on the part of Weintraub, including a breach of fiduciary duty. However, the district court specifically dismissed all claims raised by Botes except fraud and breach of contract. Botes does not challenge the district court’s dismissal order. Accordingly, we will only address Botes’s claims of fraud, breach of contract, and those breach-of-contract allegations that the district court construed as claims of legal malpractice.
8 1983) (stating that expressions of “opinion, general commendations, and sales
puffing” cannot form a basis for a claim of fraud); see also Next Century
Commc’ns Corp. v. Ellis, 318 F.3d 1023, 1027-28 (11th Cir. 2003) (holding that,
under Georgia law, the defendant’s statement that his company performed strongly
was not actionable as fraud, in part because the alleged misrepresentation was “not
the sort of empirically verifiable statement that [could] be affirmatively disproven,
as it [was] inherently a label expressive of, and generated by, opinion”).
Similarly, with regard to the polygraph examination, the record does not
reveal any material false statement or omission by Weintraub designed to induce
Botes into taking the polygraph. In any event, Botes could not have justifiably
relied on any perceived indication by Weintraub that the test was conducted solely
for the purpose of obtaining favorable results and admitting them into evidence.
Botes should have known that the outcome of the polygraph examination was
inherently unforeseeable, at least to Weintraub, and that neither Weintraub nor
Botes would seek admission of unfavorable results. Botes further failed to show
that he justifiably relied on Weintraub’s statements concerning the futility of
challenging Botes’s pre-trial release conditions; Botes himself asserts that he
repeatedly asked Weintraub to challenge these conditions, despite Weintraub’s
reluctance to do so.
9 Finally, Weintraub’s alleged promises that he would learn the case, prepare
for trial, represent Botes zealously, and would not withdraw from representation do
not constitute fraud. “The general rule is that actionable fraud cannot be predicated
upon promises to perform some act in the future. Nor does actionable fraud result
from a mere failure to perform promises made. Otherwise any breach of a contract
would amount to fraud.” Bradley v. British Fitting Grp., PLC, 472 S.E.2d 146,
151 (Ga. Ct. App. 1996) (quotation omitted). While fraud may exist if a promise is
made without any intent to perform, id., there is no evidence, aside from Botes’s
unsupported and conclusory assertions, that Weintraub made the aforementioned
promises without having any intent to keep them, see Ellis v. England, 432 F.3d
1321, 1326 (11th Cir. 2005) (“[M]ere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion.”). In
light of the foregoing, the district court did not err in granting Weintraub summary
judgment on Botes’s fraud claim.
B. Legal Malpractice
Botes argues, essentially, that the district court erred in treating his breach-
of-contract claim as one of legal malpractice. He also contends that the district
court erred by summarily denying his malpractice claim for lack of expert
testimony. He argues that federal law, which does not require expert testimony,
10 preempts Georgia law regarding summary judgment proceedings; that Georgia’s
expert testimony requirement violates the Seventh Amendment’s guarantee of a
jury trial; and that, as an incarcerated plaintiff proceeding pro se, he received
insufficient notice of this requirement.
To begin, the district court properly construed the majority of Botes’s
breach-of-contract allegations as a claim of legal malpractice. To prove legal
malpractice in Georgia, a plaintiff must show (1) that he employed the defendant
attorney, (2) that the attorney failed to exercise ordinary care, skill and diligence,
and (3) that such negligence proximately caused damage to the plaintiff. Fortson v.
Hotard, 684 S.E.2d 18, 20 (Ga. Ct. App. 2009). All of Botes’s breach-of-contract
claims (except concerning Weintraub’s withdrawal) rested on Weintraub’s alleged
performance deficiencies, such as failing to challenge bond conditions,
mismanaging the polygraph examination, and failing to examine discovery
documents and interview witnesses. As such, these claims directly implicated
Weintraub’s exercise of ordinary care, skill, and diligence in representing Botes,
and were properly construed as allegations of legal malpractice. See id.; Razete v.
Preferred Research, Inc., 397 S.E.2d 489, 490 (Ga. Ct. App. 1990) (“Wherever it is
necessary to establish the parameters of acceptable professional conduct in order to
11 prove negligence or breach for failure to perform in a workmanlike manner, the
case must be deemed a professional malpractice case.” (quotation omitted)).
Under Georgia law, a plaintiff needs to present expert testimony in order to
survive summary judgment in a legal malpractice case. Johnson v. Butcher, 301
S.E.2d 665, 666-67 (Ga. Ct. App. 1983). Expert testimony is necessary to rebut the
presumption that the attorney provided legal services in an ordinary skillful
manner, thereby establishing a genuine issue of fact with regard to the
reasonableness of the attorney’s representation. Id.; see also Taylor v. Spence, 390
S.E.2d 309, 310 (Ga. Ct. App. 1990) (“The sworn testimony of the defendant in a
legal malpractice action to the effect that his representation of the plaintiff
complied with the applicable standards of professional conduct, if not controverted
by expert testimony to the contrary, will authorize the grant of summary judgment
in his favor.”).3
Botes’s challenges to the expert testimony requirement are not persuasive.
First, our precedent forecloses his argument that federal law rather than Georgia
law should govern the need for expert testimony. See Helmich v. Kennedy, 796
3 The need for expert testimony at the summary judgment stage should not be confused with Georgia’s statutory requirement that an expert affidavit be attached to the complaint in a professional malpractice action. See O.C.G.A. § 9-11-9.1. That statutory pleading requirement is not at issue in this case.
12 F.2d 1441, 1442-43 (11th Cir. 1986) (upholding the grant of summary judgment
against a pro se plaintiff in a diversity legal malpractice suit because the plaintiff
failed to produce expert testimony in the form of an affidavit, as required by
Georgia law). Second, Georgia’s expert testimony requirement does not violate the
Seventh Amendment. As mentioned above, an expert affidavit is required to
establish genuine issues of fact for the jury in a legal malpractice claim. See
Johnson, 301 S.E.2d at 666-67. We, in turn, have held that a district court does not
violate the Seventh Amendment when it grants summary judgment based on a lack
of reasonably disputable material facts. Garvie v. City of Ft. Walton Beach, 366
F.3d 1186, 1190 (11th Cir. 2004). Finally, regarding notice, Weintraub argued
explicitly in his motion for summary judgment that Botes’s malpractice claim
should be denied for lack of expert testimony. Thus, Botes cannot now complain
that he received no notice of this requirement.
In sum, Botes needed expert testimony to survive summary judgment on his
legal malpractice claim. See Johnson, 301 S.E.2d at 666-67; Taylor, 390 S.E.2d at
310. Because Botes failed to produce such testimony, the district court correctly
granted summary judgment to Weintraub.4
4 We acknowledge that expert testimony is not required in “clear and palpable” cases of malpractice, where, for example, an attorney misses the expiration of a statute of limitations. Hughes v. Malone, 247 S.E.2d 107, 111 (Ga. Ct. App. 1978). However the specific instances of
13 C. Breach of contract
Botes argues that Weintraub breached their representation agreement by
withdrawing as counsel without taking care of outstanding issues, the resolution of
which was a condition for Botes not opposing Weintraub’s withdrawal.
To establish a breach-of-contract claim in Georgia, a plaintiff must show “(1)
breach and the (2) resultant damages (3) to the party who has the right to complain
about the contract being broken.” Duke Galish, LLC v. Manton, 707 S.E.2d 555,
559 (Ga. Ct. App. 2011) (quotation omitted). “Parties may by mutual consent
abandon an existing contract between them so as to make it not thereafter binding
and the contract may be rescinded by conduct as well as by words.” Fernandez v.
WebSingularity, Inc., 681 S.E.2d 717, 723 (Ga. Ct. App. 2009) (quotation omitted).
Here, the record reveals that Botes and Weintraub abandoned or rescinded
their representation agreement by mutual consent when Weintraub decided to
withdraw and Botes agreed not to oppose his withdrawal, provided certain
conditions were met. Judging by Botes’s communications with Weintraub, Botes’s
primary condition for withdrawal was the resolution of the polygraph issues, and
Weintraub substantially complied with this condition. On March 17, 2006, the
malpractice that Botes has alleged do not rise to this level, especially given the affidavits of Weintraub and another criminal defense expert, according to which Weintraub’s performance fully complied with the applicable standard of care. See Taylor, 390 S.E.2d at 310.
14 district court issued a final order denying Botes’s motion to admit the polygraph
results, which appeared to resolve all outstanding issues related to the polygraph.
That same day, Weintraub moved to withdraw from representation without
opposition from Botes. While Botes alleges that he was not aware of Weintraub’s
motion to withdraw until it had been granted, nothing in the record suggests that, at
the time Weintraub withdrew, Botes considered the conditions for Weintraub’s
withdrawal to be unfulfilled. In fact, Botes emailed Weintraub in June 2006 and
threatened to sue for breach of contract, but in that email, Botes only characterized
as breach Weintraub’s performance deficiencies, not his withdrawal. Accordingly,
the district court did not err in finding that Weintraub’s withdrawal did not
constitute a breach of contract.
In addition to the main issues discussed above, Botes raises a number of
other arguments on appeal, namely, (1) that the district court erroneously allowed
Weintraub to rely on affirmative defenses not raised in Weintraub’s initial
pleadings, (2) erroneously disregarded Weintraub’s factual admissions in granting
summary judgment, (3) conspired with the court clerk, Weintraub, and his counsel
to deny Botes a jury trial, and (4) erred in awarding costs to Weintraub. After
carefully reviewing the record and the parties’ arguments, we find these claims to
be meritless, warranting no further discussion. Therefore, we affirm.
15 AFFIRMED.