NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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