                                                                   [DO NOT PUBLISH]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
                                        Non-Argument Calendar       MARCH 30, 2012
                                      ________________________        JOHN LEY
                                                                       CLERK
                                D.C. Docket No. 1:08-cv-01341-WCO

A. STEPHAN BOTES,

llllllllllllllllllllllllllllllllllllllll                             Plaintiff-Appellant,

                                              versus

HOWARD 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.




            16
