Eduardo Cortez v. Joseph G. Gindhart, Esquire D/B/A Joseph G. Gindhart & Associates and Joseph G. Gindhart & Associates

                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0430-12T1

EDUARDO CORTEZ,

     Plaintiff-Appellant,                    APPROVED FOR PUBLICATION

                                                   May 21, 2014
v.
                                               APPELLATE DIVISION
JOSEPH G. GINDHART, ESQUIRE
d/b/a JOSEPH G. GINDHART
& ASSOCIATES and JOSEPH G.
GINDHART & ASSOCIATES,

     Defendants-Respondents.

________________________________________________________________

         Submitted October 8, 2013 – Decided May 21, 2014

         Before Judges Fisher, Espinosa and Koblitz.

         On appeal from Superior Court of New Jersey,
         Law Division, Camden County, Docket No. L-
         2096-12.

         Weisberg Law, P.C., attorneys for appellant
         (Matthew B. Weisberg, on the brief).

         Goldberg   Segalla,   LLP,   attorneys  for
         respondents (Matthew S. Marrone and Gregory
         D. Hanscom, on the brief).

     The opinion of the court was delivered by

ESPINOSA, J.A.D.

     Plaintiff    Eduardo   Cortez   filed    a   complaint       against   his

former counsel, defendants Joseph G. Gindhart and his law firm

(Gindhart), alleging legal malpractice, breach of contract, and
breach of fiduciary duty.               He now appeals from an order that

granted summary judgment, dismissing his complaint.                         We affirm.

                                             I

       Cortez    was    the   owner    and       operator    of    People's      Multiple

Services, a tax preparation business in Atlantic City.                           In 2004,

after    the     Internal      Revenue           Service     (IRS)        commenced      an

investigation        regarding     the       preparation          of     fraudulent     tax

returns, Cortez retained Gindhart to represent him.                              Gindhart

represented Cortez until shortly after Cortez was indicted in

April 2008.

       In his complaint, Cortez alleges that Gindhart recommended

he retain an accountant, Ronald R. Petlev, and assured Cortez

that    all     communications        Cortez       had     with        Petlev   would    be

privileged.       Cortez retained Petlev, who then assisted in the

audit and prepared his tax returns for 2003, 2004, and 2005.

The complaint alleges that, shortly after Petlev was retained,

the    IRS    matter    was   referred       to    the     Criminal       Investigations

Division.       Cortez alleges further that he asked Gindhart to

represent      two     employees   of    his       company    who        were   potential

targets of the IRS investigation and that, although Gindhart

initially declined on the ground he might have a conflict of

interest, he later agreed to do so.




                                             2                                   A-0430-12T1
      The complaint alleges that Cortez "repeatedly made requests

to Gindhart to negotiate a plea agreement with the United States

Attorneys office."     It is further alleged that Gindhart "refused

to   negotiate   a   plea   agreement."   However,   a   letter   dated

November 28, 2006, addressed to Gindhart from the trial attorney

for the United States Department of Justice states it is in

response to Gindhart's November 27, 2006 letter "regarding the

investigation of your client, Eduardo Cortez, and a possible

pre-trial resolution of this matter."     The letter continues:

                As you may be aware, Internal Revenue
           Service has authorized prosecution of Mr.
           Cortez for various criminal violations of
           the Internal Revenue Code, including evasion
           of income taxes for the years 1993 to 1995
           (

), two counts of making and
           subscribing a false document for the false
           Offers in Compromise filed by Mr. Cortez (

(1)), and 43 counts of aiding
           and   assisting   in   the  preparation   or
           presentation of false returns (

(2)).

                The tax loss as currently calculated,
           and subject to change, is in excess of
           $460,000.    Adding other relevant conduct,
           Mr. Cortez's failure to pay approximately
           $160,000 additional tax due and owing for
           2001 and 2002, the total tax loss approaches
           $600,000.   This amount may increase as the
           government gathers new information.

                Should your client be convicted, a
           court may impose a sentence of up to the
           maximum   penalty permitted  by   statute.
           Specifically, a violation of 

, tax evasion, carries a maximum
           penalty of five years incarceration and a



                                    3                         A-0430-12T1
fine of $250,000.        In addition, each
violation of 

(1), making and
subscribing a false document, carries a
maximum penalty of three years incarceration
and a fine of $250,000.        Finally, each
violation of 

(2), aiding and
abetting the preparation or presentation of
a false return, carries a maximum penalty of
three years incarceration and a fine of
$250,000.   If your client is convicted of
all the authorized charges, he faces a
maximum period of incarceration of 140 years
and a maximum fine of $11,500,000.

     According    to    the    United    States
Sentencing   Guidelines,     sections    2T1.1,
2T1.4, and 2T4.1, the base offense level for
your client's conduct is 20.       Moreover, a
sentencing court likely would find that your
client was in the business of preparing or
assisting in the preparation of tax returns,
increasing the offense level by 2 points.
Thus, without taking into account any other
enhancements   of   your    client's   criminal
history, should a jury convict your client
of some or all of the charged offenses, he
could be sentenced within a guideline range
of 41-51 months imprisonment and a fine of
$7,500 to $75,000.

     Should Mr. Cortez choose to clearly
accept responsibility for the offenses,
there is a possibility of a reduction of the
offense level by two points.      Further, a
timely notification of your client's intent
to plead guilty could lead to a further one-
point reduction of the offense level.

     The discussion set forth above does not
constitute a binding offer for a plea
agreement.   Please call me to discuss this
matter further.




                      4                           A-0430-12T1
      The complaint alleges that in February 2008, Petlev was

subpoenaed       to   testify   before     a    federal     grand    jury      and    that

Gindhart fought, unsuccessfully, to quash the subpoena on the

ground that Petlev's communications with Cortez were privileged.

According to the complaint, Petlev was ordered to testify and

disclosed      incriminating      documents        and     information         regarding

Cortez.

      In April 2008, the federal grand jury returned a sixteen-

count indictment against Cortez and Rosalind Kengkart, who was

employed as a tax return preparer by People's Multiple Services.

Cortez and Kengkart were charged with aiding and assisting in

the   filing     of    false    and    fraudulent        income   tax      returns    for

specific taxpayers for the tax years 2001, 2002, and 2003.                               A

superseding       indictment      was     returned       later      in     April     2008,

alleging     a    conspiracy      count        against     Cortez        and   Kengkart,

additional false and fraudulent returns for tax years 2002 and

2003, and tax evasion.                The complaint alleges that Gindhart

withdrew from representing Cortez after the federal prosecutor

advised that the Government intended to file a motion for his

disqualification.

      Cortez      retained      new     counsel,     who     negotiated         a    plea

agreement.       In August 2008, Cortez pled guilty to two counts of

the superseding indictment that charged him with conspiracy to




                                           5                                    A-0430-12T1
defraud the United States, 

, and attempted tax

evasion, 

.             According to the plea agreement,

each of these charges carried a maximum prison sentence of five

years and a maximum fine of the greatest of (1) $250,000; (2)

twice the gross amount of the pecuniary gain derived from the

offense; or (3) twice the gross amount of any pecuniary loss

suffered by a victim.          The parties agreed to disagree on the

method   of   calculation     of   the    total    offense     level   under     the

United   States     Sentencing     Guidelines        established       under     the

Sentencing Reform Act, 

.                       Under the

Government's      analysis,    the       total     Guideline     offense       level

applicable to Cortez was 23, which would result in a recommended1

range    of    forty-six      to   fifty-seven        months     imprisonment.2

Gindhart's analysis resulted in a total offense level of 21,

which calls for a recommended range of thirty-seven to forty-six

months   imprisonment.         The       parties    also     agreed    that      the

restitution Cortez owed to the United States was not less than

$598,674.50.      Defendant retained a limited right to appeal the

sentence.


1
   Pursuant to United States v. Booker, 

, 245-
46, 

, 

(2005), the sentencing guidelines are not mandatory.
2
     U.S. Sentencing Guidelines Manual ch.5, pt.A (2009),
http://www.ussc.gov/guidelines-manual/2009/2009-5asentab.



                                         6                                 A-0430-12T1
      In February 2009, Cortez was sentenced to concurrent terms

of thirty-six months on the two counts, ordered to pay both

$442,734 in restitution and a special assessment of $100 and

placed on supervised release for a term of three years after he

was   released    from    imprisonment.        The    court   waived     the   fine

authorized by statute.

      In May 2012, Cortez filed the instant complaint.                   Gindhart

filed a motion to dismiss the complaint in July 2012, arguing

dismissal   was       warranted    because    exoneration      is   a    necessary

prerequisite      to    any    claim   arising   from    a    criminal    defense

attorney's representation of a client.                In opposing the motion,

Cortez stated he did "not dispute his guilt nor conviction but

rather his sentence."             Therefore, he contended his guilt or

innocence was not relevant to his claims against Gindhart, which

included improper billing, breach of fiduciary duty, and breach

of contract arising from a lack of good faith and fair dealing.

      The trial court viewed the allegations in the complaint as

"essentially a legal malpractice claim."                  Citing McKnight v.

Office of the Pub. Defender, 

 (2008), the court

stated that "for . . . a criminal defendant who's entered a

guilty   plea    to    argue   that    his   lawyer   committed     malpractice,

there would have to have been either a vacation of the plea or




                                         7                                A-0430-12T1
an exoneration."         The court granted summary judgment, dismissing

the complaint in its entirety.3

      In this appeal, Cortez argues that his complaint did state

a claim for legal malpractice and that the trial court erred in

failing    to    substantively      adjudicate       his    remaining       causes   of

action.

                                         II

      The standard applicable to a summary judgment motion in the

trial court and on appeal is "whether the competent evidential

materials presented, when viewed in the light most favorable to

the   non-moving        party,    are   sufficient     to    permit     a    rational

factfinder to resolve the alleged disputed issue[s] in favor of

the non-moving party."             Brill v. Guardian Life Ins. Co., 

 (1995); see also R. 4:46-2.

      Although we disagree with the trial court's reasoning that

a   vacation     of    Cortez's    guilty     plea   or     an   exoneration        were

necessary pre-requisites to the legal malpractice action here,

we review judgments, not opinions, and affirm for the reasons

that follow.          See Velazquez v. Jiminez, 

(App.     Div.   2000)     ("[A]    correct     result      predicated       upon    an


3
    Although filed as a motion to dismiss the complaint, the
motion was properly considered under the standard applicable to
a summary judgment motion because matters beyond the pleadings
were considered. R. 4:6-2(e).



                                          8                                   A-0430-12T1
incorrect     basis    does      not    preclude    an       affirmance     of   that

ruling."), aff’d, 

 (2002).

       In order to survive summary judgment, Cortez had to show

that   the    claims   he    asserted    were   viable.         As    to   the   legal

malpractice     claim,      he   was   required    to    show      that    competent,

credible evidence existed to support each of the elements of

that negligence action, i.e., "1) the existence of an attorney-

client relationship creating a duty of care upon the attorney;

2) that the attorney breached the duty owed; 3) that the breach

was the proximate cause of any damages sustained; and 4) that

actual damages were incurred."                Sommers v. McKinney, 

 (App. Div. 1996) (citing Albright v. Burns, 

 (App. Div. 1986)).

       The   record    shows     the    existence       of    an     attorney-client

relationship from 2004 until Gindhart ceased representing Cortez

in 2008.     During the course of that relationship, Gindhart had a

duty to exercise a reasonable degree of care in representing

Cortez.      Cortez alleges that Gindhart breached this duty to him

by failing to negotiate a plea agreement despite his repeated

requests.      However, Cortez has failed to make a prima facie

showing that Gindhart breached a duty to him or that he suffered

any damage proximately caused by the breach alleged.




                                          9                                  A-0430-12T1
                                         A

      As a preliminary matter, we address the question whether it

was necessary for Cortez to show some evidence of exoneration

before he could proceed with this action.                   In our view, the

conclusion that exoneration was required on the facts of this

case rested upon a misinterpretation of 

 and

Rogers v. Cape May Cnty. Office of the Pub. Defender, 

 (2011).

      In McKnight, a former client of the Public Defender alleged

he   was   wrongfully    convicted     because     his   attorney     negligently

failed to advise him of the deportation consequences of his

guilty plea.       

.              He asserted this

deficiency by his attorney in a motion to withdraw his guilty

plea and in a successful petition for post-conviction relief.

.        Because the claim was subject to the Tort Claims

Act (TCA), N.J.S.A. 59:1-1 to 59:12-3, he was required to file a

notice of claim within the ninety-day time frame set forth in

the TCA.    

      In   light    of   the    fact   that    McKnight    succeeded       on   his

petition for post-conviction relief, there was no issue as to

whether    he   suffered       an   injury    in   the   form    of   a   wrongful

conviction.     The issue to be decided was when his claim accrued




                                        10                                A-0430-12T1
to     trigger    that       relatively     brief    timeframe.4         "[A]    legal-

malpractice       action       accrues      when    an    attorney's      breach       of

professional          duty    proximately     causes      a    plaintiff's      damages

. . . .     At that point, the plaintiff has a right to sue and the

statute of limitations begins to run."                        Grunwald v. Bronkesh,

 (1993) (emphasis added) (citations omitted);

see also Vastano v. Algeier, 

 (2003); Burd v.

N.J. Tel. Co., 

 (1978).

       In both McKnight and Rogers, the plaintiffs claimed they

were wrongfully convicted as a result of their public defenders'

negligence.       For the accrual of a malpractice based on such an

allegation, there is no injury unless and until the conviction

is shown to be invalid, with some degree of finality.                                 See

 ("Our ruling in McKnight was

rooted in notions of finality . . ."); McKnight v. Office of the

Pub.    Defender,       

    (App.    Div.     2007)

("[S]ome exoneration should be required, and . . . proof of

innocence,       or    at    least   some   exoneration,        is   required    before

recovery can be obtained against a public defender[.]")                         (Stern,

J., dissenting), rev'd, McKnight, supra, 

.



4
    Ordinarily, the limitations period for a legal malpractice
action is six years.   N.J.S.A. 2A:14-1; McGrogan v. Till, 

 (2001).



                                            11                                  A-0430-12T1
       Here, there is no issue regarding the timeliness of the

complaint or the validity of the conviction.                         Cortez candidly

admits he is guilty of the offenses to which he pled guilty.

The injury he claims is that, as a result of Gindhart's alleged

negligence, he was deprived of an opportunity to accept a more

favorable plea offer and, as a result of that deprivation, he

received a harsher sentence.

       It is difficult "to define the duty and responsibilities of

defense     counsel        in    the   plea       bargain     process,"    as     "[t]he

alternative courses and tactics in negotiation are so individual

that   it   may   be       neither     prudent      nor     practicable   to     try    to

elaborate or define detailed standards for the proper discharge

of defense counsel's participation in the process."                       Missouri v.

Frye, ___ U.S. ___, ___, 

, 

 (2012).           However, the central role that plea bargains

play   in   the   criminal         justice    system      requires   a    standard      of

representation        in        that   process      that     satisfies     the      Sixth

Amendment.    See Lafler v. Cooper, ___ U.S. ___, 

;

 (2012); 

 ___ U.S. at ___, 132 S.

Ct. at 1407, 182 L. Ed. 2d at 389; State v. Gaitan, 

, 350-51 (2012); State v. Norman, 

(App. Div. 2009).




                                             12                                  A-0430-12T1
       Considering     the    scope   of    an    attorney's   duty      within    the

context of a legal malpractice action, we note that a lawyer "is

not an insurer.        He is not a guarantor of the soundness of his

opinions, or the successful outcome of the litigation which he

is employed to conduct . . . ."                    2175 Lemoine Ave. Corp. v.

Finco, Inc., 

 (App. Div.) (quoting

McCullough v. Sullivan, 

 (E. &                          A. 1926)),

certif.    denied,     

       (1994).      Like    the     standard

applicable     to     petitions       for       post-conviction      relief,        the

attorney's     duty    is    "to   exercise       that    degree    of     reasonable

knowledge and skill that lawyers of ordinary ability and skill

possess and exercise."          St. Pius X House of Retreats v. Diocese

of Camden, 

 (1982); see State v. Nash, 

 (2013) ("The test is not whether defense counsel could

have    done   better,       but   whether        he   met   the    constitutional

threshold for effectiveness.").                 Moreover, the duty to exercise

reasonable care will vary, depending upon the circumstances of

the    specific     case,    Ziegelheim     v.    Apollo,    

(1992), and must be considered "with reference to the type of

service the attorney undertakes to perform."                   St. Pius X House

of Retreats, supra, 

.

       Ethical standards provide guidance as to the level of care

applicable     to    the    representation        of   defendants    in     the    plea




                                           13                                A-0430-12T1
negotiation process.5              An attorney must "abide by a client's

decisions concerning the objectives of representation."                             State

v. Fortin, 

 (2004) (quoting Model Rules of

Prof'l Conduct R. 1.2(a) (2003)).                    In State v. Barlow, 

    (App.      Div.    2011),      we    noted    that    "R.P.C.    1.2(a)

requires,       in    a    criminal     case,    that       defense    counsel    'shall

consult with the client and, following consultation, shall abide

by the client's decision on the plea to be entered, jury trial

and whether the client will testify.'"                        

.        We held

that the defendant "was deprived of his constitutional right to

counsel when his attorney declined to pursue a motion on his

behalf to withdraw his guilty plea."                    

    In Frye, the Court

deemed    it    unnecessary        to    define      the     parameters    of    defense

counsel's       obligation,        holding,     "as     a    general    rule,    defense

counsel   has        the   duty    to   communicate         formal    offers    from   the

prosecution to accept a plea on terms and conditions that may be

favorable to the accused."              

 ___ U.S. at ___, 132 S.

Ct. at 1408, 182 L. Ed. 2d at 390; see also 

 ("The lawyer must take 'any steps necessary

5
   "While violations of ethical standards do not per se give rise
to tortious claims, the standards set the minimum level of
competency which must be displayed by all attorneys. . . .
Where an attorney fails to meet the minimum standard of
competence governing the profession, such failure can be
considered evidence of malpractice." 

 (citations omitted).



                                           14                                    A-0430-12T1
in the proper handling of the case,'" which includes "a careful

investigation of the facts of the matter, the formulation of a

legal    strategy,    the     filing      of      appropriate       papers,     and    the

maintenance    of     communication            with    the     client.")        (quoting

Passanante    v.    Yormark,    

    (App.     Div.

1975), certif. denied, 

 (1976)).

       A defense counsel's duty to provide representation in the

plea    negotiation    process       thus      plainly      includes     the    duty    to

explore the possibility of resolving criminal charges through a

plea agreement when directed to do so by a client, to keep the

client informed of a plea offer, and to follow the client's

instructions in accepting or rejecting the plea offer.                                 See

     (client      in   civil    matter

alleged, inter alia, that attorney was negligent in failing to

disclose settlement offer); State v. Pych, 

 (App. Div. 1986) (noting attorney's duty to inform a client

"promptly of any information important to him"), certif. denied,

 (1987); see also 

.

       In Alampi v. Russo, 

 (App. Div.

2001), the plaintiff former client pled guilty to a criminal

offense    committed        before     he        was   represented         by   counsel.

Although we found it appropriate to require a plaintiff who

seeks to recover damages for an alleged invalid conviction to




                                            15                                   A-0430-12T1
first     prove       he   was    unlawfully      convicted,         

,     we

expressly stated,

              We need not and do not reach the question of
              the requirement for exoneration from a
              criminal conviction in all cases before a
              plaintiff in this type of case can make out
              a jury issue.      A more propitious fact
              pattern for a plaintiff perhaps may emerge
              in a future case; thus, for now, we eschew a
              "bright line" rule requiring exoneration in
              all cases.

              [Id. at 371.]6

       An attorney's negligence in the discharge of duties for a

client who pleads guilty may result in actual injury to a client

even    if    guilty.            For   example,      if   an     attorney       fails    to

communicate       a    plea   offer    prior    to    a   plea      cut-off     date,   the

client who proceeds to trial and receives a sentence harsher

than the offer has suffered an injury, i.e., a result measurably

worse than the sentence that would have been imposed in the

absence      of   attorney       negligence.7        State     v.    Powell,    

   See also State v. Gonzalez, 

 (1995) ("[T]he
doctrine of issue preclusion does not prevent the pleading party
in the trial of a tort or contract claim from contesting the
admitted facts."); Winstock v. Galasso, 

(App. Div. 2013); Marrero v. Feintuch, 

(App. Div. 2011) ("[A] plaintiff need not prove actual innocence
of criminal charges as a prerequisite to pursue legal
malpractice   claims  against   his   former  criminal   defense
counsel.")
7
   See also Frye, ___ U.S. at ___, 132 S. Ct. at 1408, 182 L. Ed.
2d at 390 (failure to communicate plea offers that may have been
                                                      (continued)


                                           16                                     A-0430-12T1
Super. 557, 564 (App. Div. 1996).       Under such circumstances, the

client's malpractice claim does not depend upon the invalidity

of the conviction or the repudiation of a knowing and voluntary

guilty plea.    We do not view McKnight or Rogers as barring such

a claim for lack of some exoneration.

      Similarly, Cortez's allegation against Gindhart does not

depend upon the invalidity of the conviction or his admission of

guilt.    His allegation that Gindhart failed to engage in any

plea negotiations despite his requests could form the basis for

a legal malpractice claim without evidence of exoneration if he

was able to prove that he suffered an actual injury that was

proximately caused by the alleged negligence.

                                   B

      "Actual damages . . . are real and substantial as opposed

to   speculative."    

.     "An

attorney is only responsible for a client's loss if that loss is

proximately caused by the attorney's legal malpractice," that

is, the negligent conduct is "a substantial contributing factor

in causing the loss."    2175 Lemoine Ave. Corp., supra, 

.   Therefore,   the   client   bears   the   burden    of


(continued)
favorable to the accused constituted ineffective assistance of
counsel); 

 ___ U.S. at ___, 132 S. Ct. at 1384,
182 L. Ed. 2d at 406 (defendant's rejection of plea offer caused
by ineffective assistance of counsel).



                                  17                              A-0430-12T1
showing, by a preponderance of the competent, credible evidence,

"what injuries were suffered as a proximate consequence of the

attorney's breach of duty."                  Id. at 488.            The burden is not

satisfied by mere "conjecture, surmise or suspicion."                                  Ibid.

(quoting      Long    v.    Landy,      

    (1961))      (internal

quotation marks omitted).               Ordinarily, the measure of damages is

what result the client would have obtained in the absence of

attorney negligence.            2175 Lemoine Ave. Corp., supra, 

; see also Garcia v. Kozlov, Seaton, Romanini &

Brooks, P.C., 

 (2004); Froom v. Perel, 

     (App.    Div.),      certif.     denied,        

(2005).        Thus,       to   prove        such    injury,        "the     client     must

demonstrate that he or she would have prevailed, or would have

won    materially      more     .   .   .    but    for    the     alleged    substandard

performance."         Lerner v. Laufer, 

 (App.

Div.),      certif.      denied,     

    (2003);        cf.   State     v.

Allegro, 

 (2008) (in reviewing the denial of

a petition for post-conviction relief, in which the second prong

of    the    Strickland8/Fritz9          test      required      proof     that,      absent

counsel's failure, the outcome of defendant's case would have


8
   Strickland v. Washington, 

, l04 S. Ct.
2052, 2064, 2068, 

 (1984).
9
     State v. Fritz, l05 N.J. 42, 60-61 (l987).



                                             18                                    A-0430-12T1
been different, the Court remanded for a hearing as to whether

trial       counsel     was    ineffective      during    plea     discussions       and

negotiations).

       Like the plaintiff in a civil case whose attorney fails to

file    an     action     before      it   is    barred    by     the   statute       of

limitations, the damages Cortez claims are based on what he

asserts was a missed opportunity.                 Therefore, to have a viable

legal malpractice claim, he was required to demonstrate that the

missed opportunity had actual value.                 It was necessary for him

to show that the Government was willing to extend a plea offer

to    him    at   the   time    Gindhart     represented     him    that     was   more

favorable than the one he accepted and that his sentence would

have been less than the one he received.                    He has failed to do

so.

       To defeat a motion for summary judgment, the opponent must

"'come forward with evidence' that creates a genuine issue of

material      fact."      Horizon     Blue   Cross   Blue    Shield     of    N.J.    v.

State, 

 (App. Div.) (quoting 

), certif. denied, 

 (2012); see R.

4:46-2(c).        "An issue of fact is genuine only if, considering

the burden of persuasion at trial, the evidence submitted by the

parties on the motion, together with all legitimate inferences

therefrom         favoring      the    non-moving        party,     would     require




                                           19                                 A-0430-12T1
submission of the issue to the trier of fact."                         

 (emphasis

added).

       Although we must view the "evidential materials . . . in

the light most favorable to the non-moving party" in reviewing

summary judgment motions, 

, we

emphasize    that     it    is    evidence         that    must   be   relied   upon       to

establish     a   genuine        issue   of    fact.          "Competent      opposition

requires      'competent           evidential             material'        beyond       mere

'speculation'         and    'fanciful             arguments.'"             Hoffman         v.

Asseenontv.Com, Inc., 

 (App. Div.

2009) (citation omitted).

       Here, Cortez has provided no evidence that the Government

was willing to enter into a more favorable plea agreement before

Gindhart ceased representing him or that he would have received

a    more   lenient    sentence      if       he    had     entered    a    guilty      plea

earlier.10     Rather, Cortez relies only upon the allegations in

his   complaint,      without      providing        any    evidentiary      support       for

those allegations.

       It is, however, "well settled that '[b]are conclusions in

the pleadings without factual support in tendered affidavits,


10
    We also note that, relevant to the need to establish that a
duty was breached here, Cortez produced no evidence that he
asked Gindhart to negotiate a guilty plea for him and that
Gindhart refused to do so.



                                          20                                        A-0430-12T1
will    not   defeat       a   meritorious      application        for    summary

judgment.'"       Brae Asset Fund, L.P. v. Newman, 

 (App. Div. 1999) (quoting U.S. Pipe & Foundry Co. v.

Am. Arbitration Ass'n, 

 (App. Div.

1961)); see also Puder v. Buechel, 

, 440-41 (2005)

("[C]onclusory and self-serving assertions by one of the parties

are insufficient to overcome the motion"); Petersen v. Twp. of

Raritan, 

 (App. Div. 2011); Oakley v.

Wianecki,     

     (App.     Div.      2001)

("unsubstantiated inferences and feelings" are insufficient to

defeat a motion for summary judgment).

       Indeed, to the extent that a record has been provided, it

supports the conclusion that Cortez's argument lacks any merit.

The Government's November 2006 letter to Gindhart stated that,

according to the United States Sentencing Guidelines, the base

offense   level     for   Cortez's   conduct    was    20;   and   that   it    was

likely the offense level would be increased by two points based

upon a finding that Cortez "was in the business of preparing or

assisting in the preparation of tax returns."                    The Government

predicted a guideline range of 41-51 months imprisonment.                       The

Government also advised it was possible the offense level could

be reduced by two points if Cortez accepted responsibility for




                                        21                                A-0430-12T1
the offenses and reduced by an additional point by a "timely

notification" of an intent to plead guilty.

    Pursuant to this letter, which was clearly identified as

not constituting "a binding offer for a plea agreement," the

most favorable offense level available to Cortez in 2006 was 19.

According to the Sentencing Table in effect at the time, this

offense level called for a recommended range of 30 to 37 months

imprisonment.        U.S.   Sentencing       Guidelines    Manual     ch.5,     pt.A

(2009),              http://www.ussc.gov/guidelines-manual/2009/2009-

5asentab.     Cortez has presented no evidence to demonstrate that

a more favorable plea offer was available to him at any time

while   he    was   represented   by     Gindhart.        And,   in     fact,    his

sentence of thirty-six months incarceration was well within the

range   the   Government     stated     could   apply     if   Cortez    accepted

responsibility and gave a "timely notification of [his] intent

to plead guilty" in 2006.              Thus, Cortez's legal malpractice

claim rests upon an allegation of injury that is based upon mere

speculation, and was correctly dismissed.                 See 

.

                                       III

    Cortez also argues that the trial court erred in failing to

"substantively      adjudicate"   his    remaining      claims   of     breach   of

contract and breach of fiduciary duty.                  These arguments lack




                                        22                                A-0430-12T1
sufficient merit to warrant discussion in a written opinion, R.

2:11-3(e)(1)(E), beyond the following brief comments.

      Cortez      alleged   that    Gindhart     breached       the   contract      by

failing to provide competent and effective legal services and

breaching the covenant of good faith and fair dealing.                          Among

the     factual    allegations      in   the    complaint,      Cortez       alleged,

"Gindhart      improperly      billed    Plaintiff        for    legal       services

incurred for defending himself in the government's motion to

disqualify despite the fact that his miscalculations, mistakes

and poor legal advice gave rise to the motion."                  The malpractice

count similarly alleged that Gindhart had breached a duty to

Cortez by over-billing him.

      Even   if    we   were   to   accept     Cortez's    characterization         of

these allegations as not being subsumed in the legal malpractice

claim, he nevertheless had the obligation to submit competent

opposition to the motion pursuant to Rule 4:46-2 to demonstrate

that a genuine issue of fact existed as to his claims.                          As we

have discussed, he could not rely upon the conclusory assertions

in his pleadings to show he had a viable claim.

      Although the complaint alleges that he paid $189,000 in

legal    fees,    Cortez    presented    no    evidence    as   to    what    he   was

billed, let alone what was "improperly" billed or any evidence

to corroborate his allegation that there was any impropriety in




                                         23                                  A-0430-12T1
billing him for any service. He submitted no evidence showing it

was    improper     for      Gindhart       to    bill   for    opposing     a    motion    in

Cortez's criminal prosecution or even a certification that he

did not authorize Gindhart to oppose the motion.                        He thus failed

to show through competent evidence that his claim of improper

billing was viable.

       Cortez also contends his breach of fiduciary duty should

survive     summary       judgment         because       this   claim   has       different

elements     than      the     claim      of     legal   malpractice.        However,       in

alleging this cause of action, the only fiduciary relationship

identified is that of attorney and client and the breach of

fiduciary       duty      is       only   identified       as    "the      aforementioned

conduct." He has failed to distinguish the breach of fiduciary

duty    claim      from      his    legal      malpractice      claim   in       either    his

opposition to the motion in the trial court or on appeal.

       In   sum,    because         his   opposition       to   the   summary      judgment

motion failed to provide evidence to support either the breach

of contract or breach of fiduciary claims, they were properly

dismissed.

       Affirmed.




                                                 24                                 A-0430-12T1