ATLANTIC CITY SOUVENIR & SNACKS, INC. VS. PARKER MCCAY (L-0086-15, CUMBERLAND COUNTY AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-1113-17T4
    ATLANTIC CITY SOUVENIR
    & SNACKS, INC.,
    Plaintiff-Appellant/
    Cross-Respondent,
    v.
    PARKER MCCAY, HOWARD
    COHEN, ESQ., KRIS KOLLURI,
    ESQ., STEPHEN J. MUSHINSKI,
    ESQ. and MICHAEL E.
    SULLIVAN, ESQ.,
    Defendants-Respondents/
    Cross-Appellants.
    ____________________________
    Argued February 6, 2019 – Decided June 13, 2019
    Before Judges Fuentes, Accurso and Moynihan.
    On appeal from Superior Court of New Jersey, Law
    Division, Cumberland County, Docket No. L-0086-15.
    Scott B. Piekarsky argued the cause for appellant/cross-
    respondent (Piekarsky & Associates, LLC, attorneys;
    Scott B. Piekarsky, of counsel and on the brief; Mark
    R. Faro, on the brief).
    Christopher J. Carey argued the cause for
    respondents/cross-appellants     (McElroy,      Deutsch,
    Mulvaney & Carpenter, LLP, attorneys; Christopher J.
    Carey, of counsel and on the brief; Jennifer L. Casazza,
    on the brief).
    PER CURIAM
    Parker McCay (Parker) and Howard Cohen and Michael E. Sullivan, two
    Parker attorneys, (collectively: defendants), 1 represented plaintiff Atlantic City
    Souvenir and Snacks, Inc. (AC Souvenir) in connection with the termination of
    AC Souvenir's lease at New Jersey Transit's (NJT) Atlantic City bus terminal
    consequent to a redevelopment plan by the Casino Reinvestment Development
    Authority (Authority) and Atlantic City Associates (Associates). Unsatisfied
    with defendants' representation during litigation related to that termination, AC
    Souvenir filed suit against defendants.       It appeals from the trial court's
    September 25, 2017 order dismissing its complaint with prejudice.2 That order
    1
    Plaintiff voluntarily withdrew its claims against defendants Kris Kolluri and
    Stephen Mushinski. They are not parties to this appeal.
    2
    Defendants cross-appeal from the trial court's orders of May 30, 2013 and
    September 8, 2017 denying their motions for summary judgment and
    reconsideration of that denial, respectively. "[A]ppeals are taken from orders
    and judgments and not from opinions, oral decisions, informal written decisions,
    or reasons given for the ultimate conclusion." Hayes v. Delamotte, 
    231 N.J. 373
    , 387 (2018) (quoting Do-Wop Corp. v. City of Rahway, 
    168 N.J. 191
    , 199
    A-1113-17T4
    2
    followed a Rule 104 hearing held pursuant to defendants' motions in limine,
    after which the court excluded the testimony of AC Souvenir's liability and
    damages experts.
    AC Souvenir argues the motions in limine were precluded by the law of
    the case doctrine in light of the trial court's prior denial of defendants' motion
    for summary judgment and motion to reconsider the denial of that motion and
    because these motions were in effect, late-filed dispositive summary judgment
    motions. According to AC Souvenir, the trial court also erred in precluding the
    testimony of its damages expert and its liability expert's opinion that defendants
    should have asserted a claim against NJT and Associates based on equitable
    estoppel. We reject these arguments and affirm.
    AC Souvenir, whose sole shareholders are Russell and Loretta Graddy, 3
    operated an ongoing restaurant, newsstand and gift shop in NJT's Atlantic City
    bus station pursuant to a March 11, 1991 lease. The lease, in paragraph 21,
    provided for NJT's right of termination in the event of a major reconstruction of
    (2001)). Defendants, therefore, are not permitted to file a cross-appeal based
    only on the way the court decided to adjudicate the case.
    3
    We refer to Russell Graddy by his first name in order to avoid confusion with
    Loretta. We mean no disrespect by such familiarity.
    A-1113-17T4
    3
    the bus terminal that required AC Souvenir's space to be closed or if AC
    Souvenir changed its ongoing use.4 AC Souvenir was entitled, under that lease
    provision, to continue its operation in "any other [t]erminal space for the
    remainder of [the lease] term" and NJT was required to pay it "the unamortized
    cost of the initial leasehold improvements and stationary capital equipment
    purchases."
    A dispute between NJT and AC Souvenir – during which Parker 5
    represented AC Souvenir – involving the relocation of the bus terminal resulted
    in an April 1998 settlement whereby the March 1991 lease was continued for
    ten years, retroactive to September 1, 1997, for space in the "new" bus terminal
    with two automatic five-year extensions.
    The Authority later entered into an agreement with Associates that
    included the redevelopment of the "new" bus terminal property and the
    relocation of the bus terminal to yet another site, subject to the Authority's
    4
    The same paragraph also provided for NJT's right of termination if the bus
    terminal was sold or developed, requiring AC Souvenir to vacate its space.
    Paragraph 22 of the lease provided for termination of the lease in the event of a
    condemnation from the date title vested in the condemnor.
    5
    The firm was previously known as Parker, McCay & Criscuolo, PA.
    A-1113-17T4
    4
    acquisition of the "new" bus terminal from NJT.       In furtherance of that plan,
    NJT sent AC Souvenir a notice dated December 22, 2003 terminating the lease.
    AC Souvenir contends it engaged Parker to initiate discussions with NJT
    about the impending relocation and its concerns of having to again bear the costs
    of same as it was still paying a loan it took to pay for the costs of moving to the
    "new" bus terminal less than seven years prior.          Parker sent a proposed
    settlement agreement to counsel for NJT and Associates on September 29, 2004.
    Russell claims that the settlement with NJT in connection with the first
    relocation was successful because he retained the keys to the leased premises,
    and that he told Parker that he wished to follow the same tack during this
    litigation in order to foster a favorable resolution.        Russell also claims
    defendants "worked out a tentative 2004 settlement" to which AC Souvenir
    agreed and that Cohen "falsely told that [Associates] promised a 'seamless
    transfer' and that [Associates] and NJT would pay for the move" to its third bus
    terminal location. He asserts he "later learned . . . defendants failed to ensure
    NJT's agreement to the terms" of the settlement but in reliance on Cohen's
    misrepresentations, "Cohen forced me to turn over my keys to NJT, without a
    signed agreement in place." Defendants' advice also caused AC Souvenir to
    "continue[] to pay rent to NJT in accord with the terms of the [1998 settlement
    A-1113-17T4
    5
    agreement] even though it was no longer operating a restaurant in either
    terminal." According to Russell, he was forced out after NJT received the keys,
    and Associates "refused to facilitate a 'seamless transfer'" because AC
    Souvenir's space was free for a new tenant. Although Russell maintains that
    defendants filed suit against NJT "in or about early 2005" after negotiations
    failed, Parker filed a complaint on behalf of AC Souvenir and the Graddys
    against NJT, Associates and the Authority during the first week of December
    2004. AC Souvenir contends its litigation-goals were to: (1) secure payment
    for relocation expenses; (2) require defendants to cover its lost profits due to the
    relocation; and (3) credit it with the lease payments made to defendants after
    cessation of its business operations.
    After further proceedings, suspended settlement negotiations and the
    scheduling of trial for February 2007, the parties reached a settlement, the terms
    of which were placed on the record in court on February 1, 2007 in Russell's
    presence: AC Souvenir was to be paid $183,000 to be held in escrow by Parker
    and released pursuant to a building schedule for the fit-out of the new 3000
    square foot space that AC Souvenir was to occupy in the third bus terminal; AC
    Souvenir was to bear all fit-out costs, including approved signage; AC Souvenir
    was to pay rent for November and December 2006, January 2007 and thereafter
    A-1113-17T4
    6
    in accordance with the existing lease which was to remain in effect as amended;
    AC Souvenir would comply with security measures implemented by NJT; and
    the equipment from AC Souvenir's location at the "new" bus terminal would be
    available to it for removal from storage at its own cost. Russell was then
    questioned by one of Parker's lawyers and the judge:
    [PARKER ATTORNEY:] Otherwise, I think the terms
    are correct, is that correct, Mr. Graddy?
    MR. GRADDY: That's correct, yeah.
    [PARKER ATTORNEY:] So acceptable to you, sir,
    and –
    MR. GRADDY: Yes, it is.
    [PARKER ATTORNEY:] Thank you, sir.
    THE COURT: Okay, Mr. Graddy, you're satisfied with
    what we worked out here?
    MR. GRADDY: Yes, sir.
    [ASSOCIATES/NJT'S ATTORNEY:] Your honor, is
    the witness sworn? I –
    [PARKER ATTORNEY:] No, no, no. There is no need
    for that. Otherwise, I wouldn’t ask his – his client to
    do that. I think if –
    THE COURT: Okay, well, I think I can solve that real
    quick. Mr. Graddy, you're telling us the truth, right?
    MR. GRADDY: Yes, sir.
    A-1113-17T4
    7
    THE COURT: Okay, and you want to enter into this
    settlement agreement freely and voluntarily?
    MR. GRADDY: Yes, sir.
    THE COURT: Nobody is forcing you to do this, sir.
    MR. GRADDY: No, sir.
    THE COURT: And you understand that there's nothing
    that you need explained at this point?
    MR. GRADDY: That's correct, Your Honor.
    THE COURT: And you're satisfied that this [c]ourt
    will retain jurisdiction in the event that there's a dispute
    in the future.
    MR. GRADDY: Yes.
    THE COURT: Okay.
    [PARKER ATTORNEY:] I would like to ask the
    [c]ourt to satisfy myself, of course, just as counsel did
    that his client understands the same things, the [c]ourt
    ask the same questions.
    THE COURT: Absolutely. Okay, your name for the
    record, please.
    MS. GILL: Bernadette Gill.
    THE COURT: Okay, Ms. Gill, and you understand the
    terms of the settlement agreement, correct?
    MS. GILL: That's correct.
    A-1113-17T4
    8
    THE COURT: All right, and you realize that you could
    have a trial today rather than settling this case, but if
    you settle it you're going to give up your rights to a trial,
    do you understand all that?
    MS. GILL: Yes, I do, Your Honor.
    THE COURT: Okay, nobody is forcing you to enter
    into this agreement, right?
    MS. GILL: That's correct, Your Honor.
    THE COURT: Do you understand it all?
    MS. GILL: Yes, I understand it all, Your Honor.
    AC Souvenir argues defendants "misrepresented the legal meaning of the
    settlement terms . . . to induce it to enter into its agreement" as set forth on the
    record. Specifically, it alleges it relied on defendants' representations that the
    agreement included:
    the allocation of the fit[-]out and relocation costs to
    [Associates]; the installation of new equipment of
    equivalent or superior quality to [AC Souvenir's]
    equipment at [Associates'] expense; a seamless transfer
    with no loss of business for [AC Souvenir]; and
    compensation [for] any loss of business due to the
    relocation.
    AC Souvenir asserts it sought to clarify the settlement terms on February 1,
    2007, but defendants advised it "that it could not raise comments in court
    A-1113-17T4
    9
    regarding any of the outstanding details and that they would be resolved before
    the settlement was final."
    AC Souvenir refused to execute the prepared written settlement
    agreement. NJT and Associates filed a motion to compel enforcement of the
    settlement which was granted. Thereafter, the court denied AC Souvenir's
    motion to vacate that order.
    AC Souvenir filed suit against defendants and retained William H.
    Michelson and June M. Toth as experts.          Michelson opined defendants
    committed legal malpractice by failing to bring what AC Souvenir describes in
    its merits brief as "two viable claims": an inverse condemnation action against
    Associates for the taking of its leasehold interest and that "equitable estoppel
    could have been successfully invoked against both NJT and [Associates]." Toth
    authored her opinion as to damages in a written report.
    AC Souvenir argues defendants' motions in limine should have been
    denied because: the motions in limine "were in reality summary judgment
    motions filed for reconsideration on the day of trial"; defendants' prior motion
    for summary judgment was denied, as was their motion to reconsider that denial,
    and the law of the case doctrine precluded the motions in limine; Toth's
    testimony should not have been precluded because she did not offer a net
    A-1113-17T4
    10
    opinion; and Michelson's testimony that defendants should have asserted an
    equitable estoppel claim should not have been precluded as a net opinion.
    The trial court's September 8, 2017 order granted only defendants' motions
    in limine to hold a Rule 104 hearing "to determine the admissibility of [AC
    Souvenir's] liability expert" – Michelson – and to limit damages to those
    sustained by AC Souvenir and not Russell, who was not a named plaintiff in the
    suit against defendants. The court reserved on the other motions in limine to
    bar: the testimony of Michelson, Toth and other witnesses, and certain claims
    for damages; the court denied defendants' motion to bifurcate.
    Although defendants challenged that order because it also denied their
    motion for reconsideration of the order denying their motion for summary
    judgment,6 AC Souvenir did not appeal from that order; that order is not listed
    in its notice of appeal or in the civil case information statement. We have made
    clear "it is only the judgment or orders designated in the notice of appeal which
    are subject to the appeal process and review." 1266 Apartment Corp. v. New
    Horizon Deli, Inc., 
    368 N.J. Super. 456
    , 459 (App. Div. 2004). We will not
    consider an order if the appellant "did not indicate in his notice of appeal or case
    6
    The September 8, 2017 order provides the date of the order denying summary
    judgment was March 21, 2013; the order denying summary judgment provided
    in the record is dated May 30, 2013.
    A-1113-17T4
    11
    information statement that he was appealing from the order." Fusco v. Bd. of
    Educ. of City of Newark, 
    349 N.J. Super. 455
    , 460-61, 461 n.1 (App. Div. 2002).
    We recognize that the September 25, 2017 order from which AC Souvenir
    did appeal reflected the court's rulings on issues on which it reserved. We will
    consider those rulings barring AC Souvenir's experts. Although the procedural
    issues now raised by AC Souvenir were the subject of the court's September 8
    order from which it did not take an appeal, we nonetheless reject its procedural
    arguments.
    The trial court properly exercised its discretion in ordering a hearing under
    Rule 104(a) which provides, "[w]hen the . . . admissibility of evidence . . . is in
    issue, that issue is to be determined by the judge. . . . [who] may hear and
    determine such matters out of the presence or hearing of the jury." As our
    Supreme Court held in Townsend v. Pierre, 
    221 N.J. 36
    , 53-54 n.5 (2015):
    "When it decides a motion to strike an expert report, a trial court may conduct a
    hearing under N.J.R.E. 104(a). N.J.R.E. 104(a) prescribes a procedure by which
    a trial court may 'assess the soundness of [an expert's] proffered methodology
    and the qualifications of the expert.'" (quoting Rubanick v. Witco Chem. Corp.,
    
    125 N.J. 421
    , 454 (1991)).
    The Rule 104 hearing allows the court to assess whether
    the expert's opinion is based on scientifically sound
    A-1113-17T4
    12
    reasoning or unsubstantiated personal beliefs . . . . In
    the course of the Rule 104 hearing, an expert must be
    able to identify the factual basis for his conclusion,
    explain his methodology, and demonstrate that both the
    factual basis and underlying methodology are
    scientifically reliable.
    [Kemp v. State, 
    174 N.J. 412
    , 427 (2002).]
    We note that during proceedings on the motions in limine, AC Souvenir's
    counsel stated, "We would agree that [a] 104 [h]earing would be appropriate at
    this point after the argument and colloquy that we've had."
    The procedure employed by the trial court allowed it to hear Michelson's
    testimony regarding his written report and deposition testimony, about which
    the court "was troubled" because of "the language used by [the] expert." The
    court professed difficulty in understanding some of Michelson's opinions and
    was concerned that portions of his trial testimony might not be appropriately
    presented to a jury because they were based on speculation. The trial court
    explained that the Rule 104 hearing would allow it "to be fair to every[one],
    [and] when the expert appear[ed] before [the court] and showed . . . what he
    [was] going to show the jury, then [the court was able to] make a better decision"
    about which portions, if any, were admissible. We agree.
    "Qualified expert testimony is admissible to assist the jury but there must
    be a factual and scientific basis for an expert's opinion. An opinion lacking in
    A-1113-17T4
    13
    foundation is worthless." Jimenez v. GNOC, Corp., 
    286 N.J. Super. 533
    , 540
    (App. Div. 1996) (citations omitted). The trial court prudently used the Rule
    104 hearing to determine the admissibility of the expert's opinions.
    We disagree with AC Souvenir's argument that our holding in Cho v.
    Trinitas Regional Medical Center, 
    443 N.J. Super. 461
     (App. Div. 2015),
    precluded defendants from moving in limine to bar its experts' opinions because
    the motions were dispositive. In Cho, defendant's motions in limine were filed
    the day after the trial call. 
    Id. at 467-68
    . Here, defendants filed the notice of
    motions in limine on August 30, 2016. The trial court granted the motion to
    hold a Rule 104 hearing on September 8, 2017, well in advance of the October
    2, 2017 scheduled trial date. Thus defendants did not "misuse . . . the motion in
    limine" as "a summary judgment motion that happen[ed] to be filed on the eve
    of trial." 
    Id. at 471
    . AC Souvenir had ample notice of the motions, responded
    to same, participated in the hearing in which Michelson testified and argued
    against the motions thus obviating any of the due process concerns we voiced in
    Cho, 443 N.J. Super. at 473-75. And, as we determined, the hearing allowed the
    judge to fulfill his gatekeeper function. See In re Accutane Litig., 
    234 N.J. 340
    ,
    347-48, 386 (2018).
    A-1113-17T4
    14
    We also reject AC Souvenir's contention that the prior decisions denying
    defendants' motions for summary judgment and reconsideration of that denial
    constituted the law of the case regarding the experts' testimony. A careful
    review of the transcript of proceedings reveals that AC Souvenir's law-of-the-
    case arguments were raised in connection with defendants' motion for
    reconsideration of the summary judgment denial. In that some of the motion in
    limine issues were intermixed with the reconsideration issues during argument,
    we consider the law-of-the-case argument as it relates to the in limine motions.
    As we observed in Jacoby v. Jacoby, 
    427 N.J. Super. 109
    , 117-18 (2012):
    The doctrine is not an absolute rule as "'the court is
    never irrevocably bound by its prior interlocutory
    ruling[.]'" In fact, it is well-accepted that "[a] hallmark
    of the law of the case doctrine is its discretionary
    nature, calling upon the deciding judge to balance the
    value of judicial deference for the rulings of a
    coordinate judge against those 'factors that bear on the
    pursuit of justice and, particularly, the search for
    truth.'" Further, the doctrine is to "be applied flexibly
    to serve the interests of justice."
    [(Alterations in original) (Citations omitted).]
    The trial court did not abuse its discretion in hearing the motions in limine.
    The court reviewed the experts' reports and deposition testimony and,
    notwithstanding the prior denial of summary judgment, had questions as to the
    admissibility of the opinions. The lack of clarity in the record before the trial
    A-1113-17T4
    15
    court that necessitated Michelson's testimony – new evidence that was not
    before the court during the summary judgment motion – informed the trial
    judge's evidentiary ruling on the expert testimony.          In balancing those
    considerations against the deference that was due the prior summary judgment
    decision, we do not discern that the trial judge was bound to follow that decision.
    Gonzalez v. Ideal Tile Importing Co., Inc., 
    371 N.J. Super. 349
    , 356 (App. Div.
    2004), aff'd, 
    184 N.J. 415
     (2005). As was the case in Gonzalez, "an order
    denying summary judgment is not subject to the law of the case doctrine because
    it decides nothing and merely reserves issues for future disposition." 
    Ibid.
     The
    issue reserved here was the admissibility of the expert opinions.
    We address AC Souvenir's arguments regarding the admissibility of its
    experts' opinions. Substantively, AC Souvenir argues its damages expert, Toth,
    should have been allowed "to testify because her report was not a net opinion"
    and its liability expert, Michelson should have been allowed to testify as to its
    equitable estoppel claim. Contrary to AC Souvenir's contention, the trial court
    did not dismiss its complaint based on its findings regarding Michelson's
    equitable estoppel theory "applying the summary judgment standard."            The
    court's decisions regarding the experts' opinions were based on its appraisal of
    the admissibility of that evidence.
    A-1113-17T4
    16
    "[T]he decision to admit or exclude evidence is one firmly entrusted to the
    trial court's discretion." State v. Scott, 
    229 N.J. 469
    , 479 (2017) (alteration in
    original) (quoting Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 
    202 N.J. 369
    , 383-84 (2010)). We "apply a deferential standard in reviewing a trial
    court's evidentiary rulings and uphold its determinations 'absent . . . an abuse of
    discretion.'" 
    Id. at 479
     (quoting State v. Perry, 
    225 N.J. 222
    , 233 (2016)). An
    abuse of discretion may only be shown if there is a clear error in judgment or a
    ruling that would result in a manifest denial of justice. 
    Ibid.
    Turning first to Michelson's opinion that "equitable estoppel could have
    been successfully invoked against both NJT and [Associates]," we recognize our
    Supreme Court's
    description of equitable estoppel:
    Conduct amounting to a misrepresentation
    or concealment of material facts, known to
    the party allegedly estopped and unknown
    to the party claiming estoppel, done with
    the intention or expectation that it will be
    acted upon by the other party and on which
    the other party does in fact rely in such a
    manner as to change his position for the
    worse gives rise to an equitable estoppel.
    [Carlsen v. Masters, Mates & Pilots
    Pension Plan Tr., 
    80 N.J. 334
    , 339 (1979).]
    A-1113-17T4
    17
    As that description recognizes, essential to a finding of
    estoppel is a misrepresentation of material fact by one
    party and an unawareness of the true facts by the party
    seeking an estoppel.
    [Horsemen's Benevolent & Protective Ass'n v. Atl. City
    Racing Ass'n, 
    98 N.J. 445
    , 456 (1985).]
    "It is a doctrine designed to prevent a party's disavowal of previous conduct if
    such repudiation 'would not be responsive to the demands of justice and good
    conscience.'" Carlsen, 
    80 N.J. at 339
     (quoting W. Jersey Title & Guar. Co. v.
    Indus. Tr. Co., 
    27 N.J. 144
    , 153 (1958)).
    Citing to our decision in Williams Scotsman, Inc. v. Garfield Board of
    Education, 
    379 N.J. Super. 51
     (App. Div. 2005), Michelson noted that "equitable
    estoppel has been applied against government entities to prevent 'manifest
    injustice.'" He continued,
    I think equitable estoppel could have been successfully
    invoked against both NJT and [Associates], to prevent
    the manifest injustice that I see here. It simply offends
    justice that they were taking a store containing [ten]-
    year-old fixtures and equipment, and thereby requiring
    [AC Souvenir] to absorb the cost of all-new equipment
    and materials, if it wanted to stay in business.
    The trial court did not find the elements of equitable estoppel present under the
    facts of the case because, despite settlement negotiations, there was never a
    A-1113-17T4
    18
    meeting of the minds as to final terms because of the unmet demands of AC
    Souvenir.
    Michelson did not delineate any misrepresentations or concealment of
    facts by NJT or Associates. Nor does he point to any term that AC Souvenir
    relied upon or could have relied upon to its detriment. Although it argues in its
    merits brief that it relied on Associates' representations during settlement
    discussions, AC Souvenir did not have the right to rely on terms discussed
    during an unsettled negotiation. See Weichert Co. Realtors v. Ryan, 
    128 N.J. 427
    , 435 (1992) ("Where the parties do not agree to one or more essential terms
    . . . courts generally hold that the agreement is unenforceable.").
    Our Rules of Evidence require that an expert's opinion be based upon
    "facts or data . . . perceived by or made known to the expert . . . before the
    hearing." N.J.R.E. 703. "An expert's conclusion is considered to be a 'net
    opinion,' and thereby inadmissible, when it is a bare conclusion unsupported by
    factual evidence. In other words, an expert must '"give the why and wherefore"
    of his or her opinion, rather than a mere conclusion.'" Creanga v. Jardal, 
    185 N.J. 345
    , 360 (2005) (citations omitted). The Townsend Court warned against
    the admission of
    unsubstantiated expert testimony [because it] cannot
    provide to the factfinder the benefit that N.J.R.E. 702
    A-1113-17T4
    19
    envisions: a qualified specialist's reliable analysis of
    an issue "beyond the ken of the average juror." Given
    the weight that a jury may accord to expert testimony,
    a trial court must ensure that an expert is not permitted
    to express speculative opinions or personal views that
    are unfounded in the record.
    [221 N.J. at 55 (citations omitted).]
    Michelson failed to connect any facts in the record involving NJT's or
    Associates' conduct to an industry standard related to the equitable estoppel
    doctrine; he offered only his personal opinion about the hardship alleged
    suffered by AC Souvenir. We do not perceive any abuse of discretion in the
    trial court's preclusion of Michelson's testimony regarding equitable estoppel.
    Although the trial court ruled that Michelson could testify as to AC
    Souvenir's inverse condemnation claim, it found Toth's opinion was "inadequate
    to represent damages in an inverse condemnation case since it dealt with
    expenses incurred by [AC Souvenir and Russell] related to forced relocation."
    The court noted Toth admitted in her report that she "was asked to prepare
    calculations on economic damages as a result of the actions and inactions of
    [defendants] for purposes of settlement discussions. . . . 'But [she] was not asked
    to perform a loss profit analysis or perform a business evaluation. '" The court
    found Toth based her opinion on depreciation schedules, corporate returns and
    A-1113-17T4
    20
    compilation reports prepared by AC Souvenir's accounts and prepared a report
    that
    summarizes the shareholder loans and gives schedules
    for capitalized assets, schedule of expenses from 2004
    corporate return, and a summary of the damages and the
    report under the shareholder loan activity, and it lists
    $513,074.94 for the period of January 1st, 2005 to April
    10, 2010, and also lists $506,253.71 as accounting,
    legal, and professional fees related to litigation and
    $55,000 for rent location. In the, under capital – in the
    capitalized assets the report indicates a total of
    $928,517.18,       including       furniture,      fixtures,
    improvement, machinery and equipment and vehicles
    with associated useful lives, the largest useful life being
    the life expectancy of 39 years, and values that at
    $575,739.32. The report then sets out depreciation of
    approximately $500,000, and results in a net book value
    of $428,975.52. The report also indicates professional
    accounting expenses of $128,707. The report then adds
    direct costs from 2005 to 2010 and direct cost from
    2004 arrives at $634,906.71 as the total damages.
    The trial court, however, recognized that the proper measure of damages
    for the taking of a leasehold was the value of the leasehold interest and that Toth
    did not calculate that amount. The court also found Toth "simply [took the]
    depreciated value of [AC Souvenir's] undifferentiated equipment and [its]
    balance sheet" but did not set forth the value of each item nor calculate the
    amount by which the leasehold was increased by any equipment. The court
    observed Toth did not explain "where these numbers should be utilized. They're
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    21
    just numbers from the . . . books and records of the corporation, which may be
    a start [of an] evaluation"; as such, the court ruled Toth's opinion inadmissible.
    The trial court did not abuse its discretion in so ruling. In an eminent
    domain case, we held that a
    tenant's recoverable damage, if any, is ascertained and
    determined fundamentally by a comparison of the fair
    value of the leasehold interest and the rent reserved.
    The burden descends upon the tenant to disclose by a
    fair preponderance of the evidence that the fair market
    value of his lease was greater than the rent reserved.
    [New Jersey Highway Auth. v. J. & F. Holding Co., 
    40 N.J. Super. 309
    , 316 (App. Div. 1956) (citation
    omitted).]
    Eight years later, our Supreme Court held:
    "If the [leased] premises are condemned prior to the
    expiration of the lease, the lessee suffers no added
    expense on account of removing the personal property,
    and, since he is awarded the fair market value of the
    unexpired portion of his term, he is made whole without
    reimbursement for removal damages."
    [State ex rel. State Highway Comm'r v. Gallant, 
    42 N.J. 583
    , 588 (1964).]
    In J. & F. Holding, we said, "a tenant may not claim from the award
    damages for his loss of business, profits, good will, fixtures, cost of removal and
    the like." 
    40 N.J. Super. at 316
    . The Gallant Court, likewise held, as a general
    rule, "damages incidental to the taking, such as loss to or destruction of good
    A-1113-17T4
    22
    will, expense of moving to a new location, profits lost because of business
    interruption, or inability to relocate" are ordinarily excluded from recovery. 
    42 N.J. at 587
    . "Denial of such alleged losses has been judicially justified upon the
    reasoning that they are too difficult, remote and uncertain to measure accurately
    and their allowance might well result in unfounded and exaggerated awards
    which could exceed the constitutionally established norm." 
    Ibid.
     The Court
    added, fee owners are "generally not entitled to compensation for personalty
    abandoned in the condemned premises nor for the expenses of removing
    personalty." 
    Ibid.
     The Court specifically recognized prior decisions, including
    J. & F. Holding, that ruled "[m]oving expenses in connection with condemnation
    of leasehold interests have . . . been disallowed." 
    Id. at 588
    .
    Since Toth's calculation of damages did not relate to any legal standard,
    the trial court properly excluded her opinion.
    "[I]n nearly all malpractice cases, plaintiff need[s] to produce an expert
    regarding deviation from the appropriate standard." Garcia v. Kozlov, 
    179 N.J. 343
    , 362 (2004). "As 'the duties a lawyer owes to his client are not known by
    the average juror,' expert testimony must necessarily set forth that duty and
    explain the breach." Buchanan v. Leonard, 
    428 N.J. Super. 277
    , 288 (App. Div.
    2012) (quoting Carbis Sales, Inc. v. Eisenberg, 
    397 N.J. Super. 64
    , 78 (App.
    A-1113-17T4
    23
    Div. 2007)). Where the standard of care that should guide an attorney in the
    situation presented would not be readily apparent to persons of average
    intelligence and ordinary experience, the assistance of an expert opinion is
    required. See id. at 289.
    Absent Michelson's testimony on liability under the equitable estoppel
    doctrine and Toth's testimony about damages under the inverse condemnation
    claim, AC Souvenir could not prove its case. See Innes v. Marzano-Lesnevich,
    
    435 N.J. Super. 198
    , 212 (App. Div. 2014), (recognizing a plaintiff's failure to
    produce expert testimony in legal malpractice claims is often fatal), aff'd as
    modified, 
    224 N.J. 584
     (2016). We determine the trial court's holdings were
    correct.
    Affirmed.
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    24