NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 (26 U.S.C. § 7201), two counts of making and subscribing a false document for the false Offers in Compromise filed by Mr. Cortez (26 U.S.C. § 7206(1)), and 43 counts of aiding and assisting in the preparation or presentation of false returns (26 U.S.C. § 7206(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 26 U.S.C. § 7201, 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 26 U.S.C. § 7206(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 26 U.S.C. § 7206(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, 18 U.S.C.A. § 371, and attempted tax
evasion, 26 U.S.C.A. § 7201. 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, 18 U.S.C.A. §§ 3551-3742. 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, 543 U.S. 220, 227, 245- 46, 125 S. Ct. 738, 746, 756-57, 160 L. Ed. 2d 621, 639, 651 (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, 197 N.J. 180 (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., 142
N.J. 520, 540 (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, 336 N.J. Super. 10, 43
(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, 172 N.J. 240 (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, 287 N.J.
Super. 1, 9-10 (App. Div. 1996) (citing Albright v. Burns, 206
N.J. Super. 625, 632 (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 McKnight, supra, and
Rogers v. Cape May Cnty. Office of the Pub. Defender, 208 N.J.
414 (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. Rogers, supra, 208 N.J. at 422. He asserted this
deficiency by his attorney in a motion to withdraw his guilty
plea and in a successful petition for post-conviction relief.
Id. at 423. 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. Ibid.
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,
131 N.J. 483, 492 (1993) (emphasis added) (citations omitted);
see also Vastano v. Algeier, 178 N.J. 230, 236 (2003); Burd v.
N.J. Tel. Co., 76 N.J. 284, 291-92 (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
Rogers, supra, 208 N.J. at 424 ("Our ruling in McKnight was
rooted in notions of finality . . ."); McKnight v. Office of the
Pub. Defender, 397 N.J. Super. 265, 297 (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, 197 N.J. at 180.
4 Ordinarily, the limitations period for a legal malpractice action is six years. N.J.S.A. 2A:14-1; McGrogan v. Till, 167 N.J. 414, 417 (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. ___, ___, 132 S. Ct. 1399, 1407, 182 L. Ed. 2d
379, 390 (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. ___, 132 S. Ct. 1376;
182 L. Ed. 2d 398 (2012); Frye, supra, ___ U.S. at ___, 132 S.
Ct. at 1407, 182 L. Ed. 2d at 389; State v. Gaitan, 209 N.J.
339, 350-51 (2012); State v. Norman, 405 N.J. Super. 149, 162
(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., 272 N.J. Super. 478, 486-487 (App. Div.) (quoting
McCullough v. Sullivan, 102 N.J.L. 381, 384 (E. & A. 1926)),
certif. denied, 137 N.J. 311 (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, 88 N.J. 571, 588 (1982); see State v. Nash, 212 N.J.
518, 543 (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, 128 N.J. 250, 260
(1992), and must be considered "with reference to the type of
service the attorney undertakes to perform." St. Pius X House
of Retreats, supra, 88 N.J. at 588.
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, 178 N.J. 540, 610 (2004) (quoting Model Rules of
Prof'l Conduct R. 1.2(a) (2003)). In State v. Barlow, 419 N.J.
Super. 527 (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.'" Id. at 535. 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." Ibid. 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." Frye, supra, ___ U.S. at ___, 132 S.
Ct. at 1408, 182 L. Ed. 2d at 390; see also Ziegelheim, supra,
128 N.J. at 260-61 ("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." Albright, supra, 206 N.J. Super. at 634 (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, 138 N.J. Super. 233, 239 (App. Div.
1975), certif. denied, 70 N.J. 144 (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
Vastano, supra, 178 N.J. at 234-35 (client in civil matter
alleged, inter alia, that attorney was negligent in failing to
disclose settlement offer); State v. Pych, 213 N.J. Super. 446,
459 (App. Div. 1986) (noting attorney's duty to inform a client
"promptly of any information important to him"), certif. denied,
107 N.J. 90 (1987); see also Ziegelheim, supra, 128 N.J. at 261.
In Alampi v. Russo, 345 N.J. Super. 360, 371 (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, id. at 367, 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, 294 N.J.
6 See also State v. Gonzalez, 142 N.J. 618, 629 (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, 430 N.J. Super. 391, 396 (App. Div. 2013); Marrero v. Feintuch, 418 N.J. Super. 48, 59 (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." Grunwald, supra, 131 N.J. at 495. "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, 272 N.J.
Super. at 487. Therefore, the client bears the burden of
(continued) favorable to the accused constituted ineffective assistance of counsel); Lafler, supra, ___ 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, 35 N.J. 44, 54 (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, 272 N.J.
Super. at 488; see also Garcia v. Kozlov, Seaton, Romanini &
Brooks, P.C., 179 N.J. 343, 358 (2004); Froom v. Perel, 377 N.J.
Super. 298, 315 (App. Div.), certif. denied, 185 N.J. 267
(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, 359 N.J. Super. 201, 221 (App.
Div.), certif. denied, 177 N.J. 223 (2003); cf. State v.
Allegro, 193 N.J. 352, 371-72 (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, 466 U.S. 668, 687, 694, l04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (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, 425 N.J. Super. 1, 32 (App. Div.) (quoting Brill, supra,
142 N.J. at 529), certif. denied, 211 N.J. 608 (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." Ibid. (emphasis
added).
Although we must view the "evidential materials . . . in
the light most favorable to the non-moving party" in reviewing
summary judgment motions, Brill, supra, 142 N.J. at 540, 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., 404 N.J. Super. 415, 425-26 (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, 327 N.J. Super.
129, 134 (App. Div. 1999) (quoting U.S. Pipe & Foundry Co. v.
Am. Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App. Div.
1961)); see also Puder v. Buechel, 183 N.J. 428, 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, 418 N.J. Super. 125, 132 (App. Div. 2011); Oakley v.
Wianecki, 345 N.J. Super. 194, 201 (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 Alampi, supra,
345 N.J. Super. at 365.
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