Frank Angrisani v. the Law Office of Leo B. Dubler, III, LLC ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3294-21
FRANK ANGRISANI,
Plaintiff-Appellant,
v.
THE LAW OFFICE OF LEO B.
DUBLER, III, LLC, LEO B.
DUBLER III, individually, LOCKS
LAW FIRM, LLC, MICHAEL A.
GALPERN, ESQ., FISCHER, PORTER
& THOMAS, P.C., ARTHUR L.
"SCOTT" PORTER, ESQ., TALBOT
B. KRAMER, JR., ESQ., DONNA
L. FREIDEL, ESQ., and FREIDEL
& KRAMER, P.C.,
Defendants-Respondents.
_______________________________
Argued January 23, 2024 – Decided January 30, 2024
Before Judges Haas and Puglisi.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Docket No. L-1041-17.
Frank Angrisani, appellant, argued the cause pro se
(Offit Kurman, PA, attorneys; Branka Banic, on the
briefs).
Jay H. Greenblatt argued the cause for respondents The
Law Office of Leo B. Dubler, III, LLC and Leo B.
Dubler, III (Greenblatt & Laube, PC, attorneys; Jay H.
Greenblatt, on the brief).
Thomas N. Gamarello argued the cause for respondents
Fischer, Porter & Thomas, PC, and Arthur Scott Porter,
Esq. (Schenck, Price, Smith & King, LLP, attorneys;
Eric Andrew Inglis, of counsel and on the brief).
John L. Slimm argued the cause for respondents Freidel
& Kramer, PC, Donna L. Freidel, Esq., and Talbot B.
Kramer, Jr., Esq. (Marshall Dennehey, attorneys; John
L. Slimm and Arthur F. Wheeler, on the brief).
Michael P. Chipko argued the cause for respondents
Locks Law Firm and Michael Galpern, Esq., (Wilson,
Elser, Moskowitz, Edelman & Dicker, LLP, attorneys,
join in the brief of respondents The Law Office of Leo
B. Dubler, III, LLC, and Leo B. Dubler, III, and the
brief of respondents Fisher, Porter & Thomas, PC, and
Arthur Scott Porter, Esq.).
PER CURIAM
In this legal malpractice case, plaintiff Frank Angrisani appeals from the
Law Division's order granting summary judgment to defendants and dismissing
plaintiff's complaint against his former attorneys. We affirm.
I.
A-3294-21
2
The parties are fully familiar with the underlying procedural history and
facts of this matter. We summarized the most salient points of this early history
in our decision in the companion appeal, Angrisani v. Costello & Mains, LLC,
Docket No. A-2718-20 (App. Div. Dec. 6, 2023). We incorporate that
discussion here by reference.
After plaintiff settled his legal action in the litigation involving Financial
Technology Ventures, L.P. (FTV) and Nexxar Group, Inc. (Nexxar), he retained
the Costello firm to institute a legal malpractice action against his attorneys in
that matter, Larry Orloff, Esq. and his firm Orloff, Lowenbach, Stifelman &
Siegel, PA. (OLSS). Eventually, plaintiff hired defendants Leo B. Dubler, III,
Esq., and the Law Office of Leo B. Dubler, III (individually or collectively,
Dubler) as Costello's co-counsel in that case. Costello was later relieved as
plaintiff's counsel and Dubler remained as sole counsel in the Orloff litigation.
Plaintiff then retained defendants Michael A. Galpern, Esq. and Locks
Law Firm, LLC (individually or collectively, Galpern) and Arthur "Scott" L.
Porter, Esq. and Fischer, Porter & Thomas, PC (individually or collectively,
Porter), as legal experts in the Orloff litigation. Galpern and Porter each
rendered expert opinions in March 2013 and again in May 2013. These reports
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identified deviations from the standard of care that Orloff allegedly committed
when he was handling plaintiff's claims in the FTV litigation.
To support his claim for damages against Orloff and OLSS, plaintiff
submitted a report authored by the Tinari Economics Group (Tinari), entitled
"An Appraisal of Economic Loss to Frank Angrisani," dated May 7, 2013. The
Tinari expert report analyzed plaintiff's estimated damages by considering three
components: "contract earnings," "loss of investment," and "increased litigation
fees." The Tinari expert report set forth the estimated total present value of the
economic loss sustained by plaintiff as $11,583,180. The report did not provide
an analysis or estimate of the damages attributable to Orloff's alleged
negligence, either directly or by estimating the settlement value of plaintiff's
claims in the FTV litigation in the absence of negligence.
On November 26, 2013, the trial court dismissed all of plaintiff's legal
malpractice claims on summary judgment because it found that plaintiff's expert
reports did not adequately calculate plaintiff's claim for damages. In its fifty-
two-page written opinion, the trial court stated:
This [c]ourt's finding in granting [OLSS]'s motion is
based on that no expert has calculated the damages
allegedly suffered by [plaintiff] as a result of Orloff's
alleged negligence. Having no reports of damages
based on admissible evidence, any damages would be
based on speculation or conjecture because there is not
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expert testimony on the subject of damages that is
admissible.
There is no dispute that the "fair settlement value," can
only be established through expert testimony same as
with "ultimate conclusion." Having reviewed the
expert reports submitted by [plaintiff], the [c]ourt has
difficulty making conclusions or findings as to what the
jury could use to evaluate whether [plaintiff] settled for
fair value, and if not, what the fair value should have
been or what he would have recovered at trial. The
[c]ourt queries what are the ascertainable damages
suffered by [plaintiff].
Plaintiff then retained defendants Talbot B. Kramer, Jr., Esq., Donna L.
Freidel, Esq., and Freidel & Kramer, PC (individually or collectively, Kramer)
to move for reconsideration of that dismissal. When reconsideration was denied,
Kramer handled the appeal in Orloff of the dismissal of plaintiff's legal
malpractice claims against OLSS and Orloff.
On February 12, 2016, we affirmed the trial court's dismissal of plaintiff's
legal malpractice claims against Orloff and OLSS, as well as the denial of
reconsideration. Orloff, Lowenbach, Stifelman & Siegel, PA v. Angrisani, No.
A-3724-13 (App. Div. Feb. 12, 2016), certif. denied, 226 N.J. 211 (2016).
The Dubler firm then brought suit against plaintiff for unpaid legal fees .
Plaintiff responded by filing an amended answer that included a counterclaim
alleging legal malpractice against the Dubler firm, and a third-party complaint
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for legal malpractice against Dubler individually. Dubler filed an answer to
plaintiff's malpractice claims, and asserted a fourth-party complaint against
Kramer for indemnification and contribution.
The trial court thereafter severed Dubler's claim for counsel fees and
issued an order that opened plaintiff's malpractice claims in a new action.
Plaintiff filed an amended complaint, joining Galpern and Porter as additional
defendants.
During discovery, plaintiff provided defendant with the August 1, 2020
liability expert report of Scott B. Piekarsky, Esq., as well as his supplemental
report dated November 15, 2020. To support his calculation of damages,
plaintiff relied on the supplemental economic reports issued by the renamed
Sobel Tinari Economics Group, authored by Kristin Kucsma, M.A., a principal
of that group, dated June 10 and August 1, 2020.
In October 2020, all defendants moved for summary judgment.
Defendants noted that in support of his malpractice claims, plaintiff had
essentially repackaged the Tinari report that the trial court, and this court, in
Orloff had already ruled was insufficient to establish plaintiff's claim for
damages.
A-3294-21
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The trial court agreed with defendants' assessment of plaintiff's expert
reports, granted summary judgment to defendants, and dismissed plaintiff's
complaint. The court stated it was compelled to dismiss plaintiff's complaint
"because of the fact that all this information was before [the trial court in Orloff]
and the Appellate Division," and "[t]here's nothing new that's been presented"
in the present litigation.
II.
On appeal, plaintiff argues in Point I of his brief that the trial court
erroneously applied the doctrine of collateral estoppel to bar his expert reports
because the sufficiency of the proffered expert economic loss testimony and
legal malpractice proofs against defendants was not adjudicated fully and fairly
in the Orloff litigation. In Point II, plaintiff asserts that the trial court's
application of collateral estoppel mistakenly disregarded the claims of
defendants' negligence in precipitating the adverse results in the Orloff
litigation. We disagree with both contentions.
Our review of a trial court's grant of summary judgment is de novo,
applying the same legal standard as the trial court. RSI Bank v. Providence Mut.
Fire Ins. Co., 234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22,
38 (2014)). Under that standard, summary judgment will be granted when "the
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competent evidential materials submitted by the parties," viewed in the light
most favorable to the non-moving party, show that there are no "genuine issues
of material fact" and that "the moving party is entitled to summary judgment as
a matter of law." Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017)
(quoting Bhagat, 217 N.J. at 38); see also R. 4:46-2(c).
To present a prima facie legal malpractice claim, a claimant must establish
"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." Cortez v. Gindhart, 435 N.J. Super. 589, 598 (App. Div. 2014)
(quoting Sommers v. McKinney, 287 N.J. Super. 1, 9-10 (App. Div. 1996)).
Actual damages are damages that are "real and substantial as opposed to
speculative." Greenwald v. Bronkesh, 131 N.J. 483, 495 (1995). Damages must
be supported by more than "conjecture, surmise or suspicion." 2175 Lemoine
Ave. Corp. v. Finco, Inc., 272 N.J. Super. 478, 488 (App. Div. 1994).
As noted above, the trial court found that plaintiff could not establish
actual damages in this case because the expert reports he submitted had already
been found wanting by the trial court and this court in the Orloff litigation. On
appeal, plaintiff contends that neither the trial court nor this court in the Orloff
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case ruled that the 2013 Tinari report was inadmissible. Plaintiff argues that the
trial court "erroneously construed the ruling in the Orloff litigation as
establishing that the Tinari analysis was a net opinion." He also argues that the
Appellate Division "simply did not hold that the original Tinari report was a net
opinion, and it was not on that basis that summary judgment was affirmed in the
Orloff litigation."
According to plaintiff, "[t]he deficiency in the Orloff matter was the
failure of the plaintiff's attorneys and their legal, not the economic expert, to
establish proximate cause between the alleged negligence of Orloff and the
damages that were quantified by the Tinari Group." Plaintiff asserts that "[t]he
dereliction of [his] counsel resulted in insufficient evidence of the likelihood of
success at trial," and therefore, he was "deprived of the opportunity of proving
harm by way of either a suit within a suit to simulate the result that would have
occurred, or through expert testimony on the anticipated trial outcome as a
matter of reasonable probability."
Plaintiff's argument is not persuasive because he misstates the trial court's
and this court's decisions in the Orloff litigation. In fact, both the trial court and
this court clearly determined that the Tinari report was inadmissible to support
plaintiff's claim for damages.
A-3294-21
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In the Orloff litigation, Orloff moved to dismiss plaintiff's legal
malpractice claims based on plaintiff's inability to "quantify damages," as well
as his failure to support his claims of liability. Orloff argued that plaintiff failed
to provide expert testimony as to actual damages, and the trial court held that
"[b]ecause [plaintiff] cannot prove the damages element of his legal malpractice
claim, it must be dismissed as a matter of law."
On the issue of damages, the trial court explained:
This [c]ourt's findings in granting plaintiff's motion
[are] based on that no expert has calculated the damages
allegedly suffered by [plaintiff] as a result of Orloff's
alleged negligence. Having no reports of damages
based on admissible evidence, any damages would be
based on speculation or conjecture because there is not
expert testimony on the subject of damages that is
admissible.
There is no dispute that the "fair settlement value," can
only be estimated through expert testimony same as
with "ultimate conclusion." Having reviewed the
expert reports submitted by [plaintiff], the [c]ourt has
difficulty making conclusions or findings as to what the
jury could use to evaluate whether [plaintiff] settled for
fair value, and if not, what the fair value should have
been or what he would have recovered at trial. The
[c]ourt queries what are the ascertainable damages
suffered by [plaintiff].
As to the deficiencies in plaintiff's damages evidence as set forth in the
Tinari report, the trial court further explained:
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In reviewing the Tinari report, the movant [Orloff]
contends that Tinari primarily performed a "liquidation
analysis" of [plaintiff's] share as of December 31, 2005
and that his analysis does not support [plaintiff's]
diminished settlement value theory, or his newly
concocted ultimate success on the merits theory and is
not relevant to this motion, therefore it cannot be
utilized as a substitute for the expert testimony on the
issue of damages necessary to defeat this motion. This
[c]ourt is well aware of this expert's qualifications and
the movant has argued that the analysis is flawed being
based essentially on the illegal operation of UNO in
Brazil but does not address the fair settlement value as
argued by the defendant in his pleadings.
....
. . . After reviewing the Tinari report, this [c]ourt does
not find that he analyzes [plaintiff's] underlying claims,
but does an evaluation of the business which foundation
is built on an illegal operation therefore how could this
report be admissible where the foundation upon which
it is built is full of holes as one cannot profit from
illegal operation . . . .
Additionally, the trial court found that the Tinari report did not support
plaintiff's claim for damages, and stated:
Tinari does not value the underlying claims and does
not value the claims that were not asserted. Instead,
Tinari sets forth a hypothetical liquidation value of
[plaintiff's] shares in Nexxar as of December 31, 2005.
The [c]ourt concurs with the movant that they cannot
find the relevancy of that analysis nor contemplate how
this analysis had anything to do with what [plaintiff]
would have received had he been successful at trial.
[Plaintiff] never sought the liquidation of Nexxar, nor
A-3294-21
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was it part of the underlying case, wherein UNO failed
because of its illegal operation in Brazil where Nexxar
accordingly failed as well. How does this analysis of a
failing business assist the jury in finding damages
proximately caused by Orloff in representing him in his
litigation with Nexxar/FTV?
The [c]ourt did find an interesting comment of the
movant that Tinari's liquidation value ignores reality.
Tinari's analysis is based on projections of what the
company would have earned from an illegal venture. It
is well settled that courts should not become involved
in an attempt by a party to profit off an illegal venture
therefore isn't . . . plaintiff seeking values of shares in
Nexxar that are not recoverable as a matter of law?
Furthermore, Tinari's liquidation analysis did not
consider that after UNO was shut down Nexxar went
out of business shortly thereafter and this evaluation by
Tinari ignores that the company is not operating
furthermore the profits were derived solely from an
illegal venture is worthless and this [c]ourt so finds.
This Tinari report does not support what the fair
settlement value of the third party plaintiff claims nor
what he could have received if he was successful in
litigating the underlying matter to a conclusion which
the third party saw fit not to do by settling the matter
with subsequent counsel.
Thus, in granting summary judgment to Orloff dismissing plaintiff's legal
malpractice claims, the trial court specifically found that the Tinari report was
legally inadequate, explaining:
It is well settled that where, as here, the allegation is
that the attorney's negligence resulted in an insufficient
settlement amount or hindered the ultimate success of
settlement negotiations, expert testimony is required to
A-3294-21
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establish what would constitute a fair settlement value
for the claims or what should have been the ultimate
outcome of the underlying case, absent the alleged
malpractice. When no such testimony is offered a legal
malpractice claim must be dismissed. To support his
claims, [plaintiff] submitted reports from several
experts–Tinari, Porter, and Galpern. The [c]ourt finds
that none of these experts performed the requisite
analysis [of] what constitutes the fair settlement value
of [plaintiff's] claims or what would have been the
successful outcome of the underlying case, absent the
alleged malpractice. While Tinari's report finds the net
value of the claims that were lost to be $11,583,180, the
[c]ourt finds Tinari's report primarily performed a
liquidation analysis of [plaintiff's] shares as of
December 31, 2005 and that his analysis does not
support [plaintiff's] diminished settlement value theory
or in the alternative his ultimate success on the merits
theory. As such, Tinari's report cannot be utilized as a
substitute for expert testimony on the issue of damages,
which is necessary to defeat this motion. Furthermore,
Tinari's analysis is based on projections of what the
company would have earned from an illegal venture,
i.e., UNO's northbound Brazil operations. UNO's
business accounted for essentially all of Nexxar's
profits. Nexxar lost the bulk of its revenues, and it went
out of business not too long after UNO was shut down
in May 2005. Tinari's report ignores the fact that any
profits derived from such an illegal venture are
worthless. Thus, his report does not provide an
accurate fair settlement value of . . . plaintiff's claims.
The [c]ourt finds that the necessary expert testimony
o[n] damages has not been provided to warrant this
matter going forward to trial on the issue of profession
negligence by OLSS or Orloff.
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Therefore, contrary to plaintiff's contention on appeal, the trial court
granted summary judgment dismissing plaintiff's legal malpractice claims
precisely because it found that the Tinari report could not support plaintiff's
claim for actual damages.
In affirming the trial court's grant of summary judgment in our decision
in Orloff, we explained
the trial judge found that none of the expert reports
"performed the requisite analysis [of] what constitutes
the fair settlement value of [plaintiff's] claims or what
would have been the successful outcome of the
underlying case, absent the alleged malpractice." He
further found that Tinari's report, by performing
liquidation analysis of [plaintiff's] share as of a relevant
date, neither supported the diminished settlement value
theory which formed the first grounds for recovery, nor
the ultimate success on the merits theory. Because he
found none of the reports demonstrated either the fair
settlement value of the claims, or the likely outcome
absent the alleged malpractice, the judge reasoned the
motion for summary judgment had to be granted
because "[w]hen no such testimony is offered, a legal
malpractice claim must be dismissed."
[Orloff, slip op. at 4-5.]
As a result, we "concur[red] with the motion judge's view concerning the
lack of evidence of proximate cause and actual damages," Id. at 9. This court
found that plaintiff failed to establish either proximate cause or damages under
either a diminished settlement theory or trial within a trial theory. We stated
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that "[u]nder either legal malpractice theory[,] [plaintiff] is required to present
proof as a 'matter of reasonable probability' of the outcome at trial if the alleged
malpractice had not occurred," but that "[s]uch proofs are absent in the expert
reports." Id. at 10-11.
Thus, contrary to plaintiff's contention, both the trial court and this court
found the Tinari report to be insufficient and therefore inadmissible to prove his
actual damages under either a diminished settlement theory or trial within a trial
theory. Plaintiff's legal malpractice claim was dismissed because he failed to
prove actual damages. The trial court found that the Tinari report did not
calculate the actual damages allegedly suffered by plaintiff and, therefore, the
report was inadmissible to support claim for damages. Without expert testimony
to support his claim for damages, the trial court properly found that plaintiff's
legal malpractice claim failed as a matter of law.
Plaintiff next argues that the trial court erred by relying upon the Orloff
decisions to collaterally estop him from relying upon a repackaged Tinari report
to attempt to prove actual damages. He argues that collateral estoppel cannot
apply in the present case because the "Orloff litigation addressed Orloff's
representation of [plaintiff] in the FTV/Nexxar litigation, and whether his
professional negligence led to a diminished settlement of that action," but did
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not "consider the subsequent negligence of the defendants herein [Dubler,
Kramer, Galpern, and Porter] and whether such negligence may be linked to the
damages suffered by" plaintiff.
Plaintiff's argument is not persuasive because it is based on his contention
that "the [Orloff] courts did not reject the Tinari economic analysis itself."
However, as explained above, both the trial court and this court in the Orloff
litigation determined that the Tinari report was inadmissible to prove plaintiff's
damages. Because plaintiff's claims for damages in the present case were also
based on the Tinari report, collateral estoppel was applicable and appropriate
because all five collateral estoppel requirements were met.
"As a general principle, '[c]ollateral estoppel is that branch of . . . res
judicata which bars relitigation of any issue which was actually determined in a
prior action, generally between the same parties, involving a different claim or
cause of action.'" In re Liquidation of Integrity Ins. Co., 214 N.J. 51, 66 (2013)
(quoting N.J. Div. of Youth & Fam. Servs. v. R.D., 207 N.J. 88, 114 (2011)).
The application of collateral estoppel is a question of law, Selective Ins. Co. v.
McAllister, 327 N.J. Super. 168, 173 (App. Div. 2000), and questions of law are
reviewed de novo. Kean Fed'n of Tchrs. v. Morell, 233 N.J. 566, 583 (2018).
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It is well settled that, for collateral estoppel to foreclose the re-litigation
of an issue,
the party asserting the bar must show that: (1) the issue
to be precluded is identical to the issue decided in the
prior proceeding; (2) the issue was actually litigated in
the prior proceeding; (3) the court in the prior
proceeding issued a final judgment on the merits; (4)
the determination of the issue was essential to the prior
judgment; and (5) the party against whom the doctrine
is asserted was a party to or in privity with a party to
the earlier proceeding.
[Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521
(2006) (quoting In re Est. of Dawson, 136 N.J. 1, 20-21
(1994)).]
All of these requirements were met in this case. First, the issue of
damages in both the Orloff litigation and the present action were identical. The
issue was whether plaintiff could prove he suffered actual damages as a result
of legal malpractice. However, in both cases plaintiff failed to establish the fair
settlement value of his claims and failed to satisfy his burden to demonstrate the
actual damages he suffered, as a result of his attorney's alleged malpractice, be
it by Orloff in the Orloff litigation or by Dubler, Kramer, Galpern, and Porter in
this action. As a result, he could not demonstrate in that action or this one that
there was a likelihood of success in trying the FTV litigation to judgment.
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Plaintiff's attempt to distinguish his legal malpractice claims against
Orloff in the Orloff litigation from his legal malpractice claims against
defendants in the present matter is unavailing. In both matters, the issues of
causation and damages were identical. While plaintiff focuses on causation,
arguing that the proofs on proximate cause were different in the two matters, he
cannot avoid the fact that the issues of damages in both cases were identical.
Thus, regardless of how plaintiff attempts to rephrase the issues, the damages
issues were the same and, therefore, the first factor for collateral estoppel was
satisfied.
Second, the admissibility of the Tinari report was actually litigated in the
Orloff litigation. As set forth above, the parties argued the issue extensively
when Orloff moved for summary judgment and again before this court on appeal.
Indeed, we specifically determined that plaintiff failed to "establish either
proximate cause or damages." Orloff, slip op. at 13.
Plaintiff attempts to dispute this factor by arguing that the proximate cause
in this action, the negligence of defendants at trial here, was separate and distinct
from the proximate cause in the Orloff litigation, namely, Orloff's negligence.
While that may be correct, the issue of proximate cause is itself separate and
distinct from the issue of damages. Both issues of proximate cause and damages
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were thoroughly argued before, and considered by, the trial court and this court.
Thus, the issue of damages and the admissibility of the Tinari report was actually
litigated in the Orloff litigation, and therefore, the second factor for collateral
estoppel was satisfied.
Third, a final judgment on the merits was issued in the Orloff litigation.
There, the trial court issued an order dismissing plaintiff's legal malpractice
claims against Orloff and OLSS with prejudice, and that order was affirmed on
appeal. Orloff, slip op. at 14. Fourth, the court's determination that plaintiff
could not prove damages was critical to the decision to dismiss his legal
malpractice claims against Orloff and was similarly the basis for the affirmance
of that dismissal on appeal. Ibid. Thus, the determination of the issue was
essential to the judgment in the Orloff litigation.
Finally, plaintiff was a party in the Orloff litigation and is the plaintiff in
the present litigation. Thus, the party against whom the doctrine was asserted
was a party to the earlier proceeding, and therefore, the fifth factor for collateral
estoppel was satisfied. Olivieri, 186 N.J. at 521; Est. of Dawson, 136 N.J. at
20-21.
Accordingly, because all of the necessary factors were satisfied, the trial
court correctly determined that plaintiff's claim for damages was barred . He
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relied upon the same expert report in both cases and, once that report was found
wanting in the Orloff litigation, the trial court in this matter properly found that
plaintiff was collaterally estopped from relying on that report to attempt to prove
actual damages in this case.
In an attempt to avoid this result, plaintiff next contends that the reports
he submitted in support of his legal malpractice claim in this case were
substantially different than the Tinari report he relied upon in the Orloff
litigation. Plaintiff asserts that the trial court "ignored that [he] may have and
did have the expert proof, lacking in the Orloff litigation, to support the claim
for insufficient settlement as well as proximate cause." He argues that
Scott Piekarsky's 2020 reports addressed the measures
plaintiff's prior attorneys and experts took to prove
proximate cause, and concluded that the defendants
were negligent in failing to identify and articulate the
connection between the specific categories of damages
and the negligent acts and omissions by Orloff and thus
failed to establish the case within the case in the Orloff
litigation.
Plaintiff's argument lacks merit. He does not address the fact that the
reports he submitted in this case, like the original Tinari report, do not set forth
the fair settlement value of his claims. In fact, none of plaintiff's experts set
forth the fair settlement value of the claims. Indeed, in her August 1, 2020
supplemental report, Kucsma states: "As economists, it is not our responsibility
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to determine a 'fair settlement amount' or the outcome of a completed litigation
but rather it is to render an independent appraisal of economic damages." Thus,
plaintiff lacked evidence to prove at trial that the $800,000 settlement was
insufficient because it was for less than the fair settlement value of his claims.
Moreover, there was no evidence that FTV and Nexxar would have paid a larger
settlement amount.
Plaintiff argues that his "economic damages experts have re-examined and
tied together the various elements of damages, and plaintiff's liability expert,
Piekarsky, has incorporated these findings in his expert and rebuttal reports,
including benchmarks for the damages [plaintiff] incurred, which were found
lacking in the Orloff litigation." He also argues that the trial court and the
Appellate Division in the Orloff litigation did not reject the findings in the 2013
Tinari report, "as if to suggest that the data developed in that earlier report were
somehow inaccurate. Rather, this [c]ourt found that there was a failure to
establish either proximate cause or damages under either a diminished
settlement theory or a trial within a trial theory." According to plaintiff, "[t]hese
are now issues of legal malpractice, not inaccurate data or faulty valuations, and
lie at the feet of plaintiffs' attorneys and legal malpractice experts, not the Tinari
economic damages report."
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Plaintiff's argument is not persuasive. First, Piekarsky is not an economist
and relied entirely on the opinions expressed in the Tinari report. He opined
that "[t]he Tinari Economics Group report's valuations and damages were based
upon well established and existing tax laws, accounting and valuation principles,
techniques, methodologies, and case law dispelling any question of
speculation." When he considered "the fourth requirement for proving legal
malpractice which is that there were actual damages," he reviewed and relied on
the Tinari report, and "[a]fter reviewing Dr. Tinari's Economic Report, [he]
concur[ed] with the methodologies and sources used to construct the value of
Nexxar and Mr. Angrisani's share of the value which was lost[.]"
According to Piekarsky,
The Tinari report was more than just a well[-]
documented set of damages, it established the actual
damages based upon the principles and authorities used
in the valuation of companies and the long standing
acceptable practices, acceptable methodologies used,
and the credible case law to support the calculated
losses and the fair settlement value for each identified
damage.
Ultimately, Piekarsky concluded that plaintiff's total quantifiable losses
were $11,583,180, the exact amount set forth in the Tinari report. In fact, he
relied upon the Tinari report exclusively to support his contention that plaintiff
suffered actual damages.
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Second, as set forth above, both the trial court and this court in the Orloff
litigation determined that the Tinari report was inadmissible to support
plaintiff's claims for actual damages. Piekarsky's unsupported contention that
the Tinari report was reliable and that the methodologies used were valid does
not make them so.
Third, the sufficiency and reliability of the Tinari report was argued
extensively before the trial court and this court in that action. Indeed, prior to
his appeal in the Orloff litigation, plaintiff sought additional commentary from
the Tinari Group regarding its economic analysis, and it provided supplemental
reports dated February 7 and April 7, 2014. Plaintiff's appellate brief and reply
brief in the Orloff litigation, which sought reversal of the trial court's holding
that the Tinari report was inadmissible to support his claim of damages,
incorporated the opinions expressed in those supplemental reports. We rejected
plaintiff's argument and affirmed the holding that the Tinari report was
inadmissible to prove plaintiff's actual damages. Orloff, slip op. at 8-13.
Fourth, Piekarsky's opinion that the Orloff trial court and this court simply
misunderstood the Tinari analysis, were confused, or were misled by Orloff's
counsel, lacks merit. In the present appeal, plaintiff argues that both the trial
court and this court were mistaken, likely because they were confused by the
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use of the word "liquidated" in the Tinari report. To support his position,
plaintiff produced two additional supplemental reports of Kucsma, who was a
co-author of the original 2013 Tinari report. Plaintiff contends that Kucsma
"rebutted any kind of presumption that plaintiff was relying on a li quidation
analysis." In the appendix of both of her supplemental reports, dated June 10,
2020, and August 1, 2020, Kucsma explained that the appendix showed
the manner in which [plaintiff] would have been
compensated, if the value of the Company [Nexxar]
were $341,287,521, and if the Company were
liquidated in December 2005. [SOURCE: Tinari
Economics Group, An Appraisal of Economic Loss to
Frank Angrisani, May 7, 2013.]
It seems as though there may be some confusion, as to
the use of the word "liquidated" in the aforementioned
statement. In no way is the context to assume a
bankruptcy, dissolution or winding up of the Company,
where the Company would have been sold for less than
the fair market value. We use the word "liquidate" to
mean the apportioning of assets and the calculation of
liabilities, a necessary procedure to be performed in any
financing, merger or acquisition transaction.
The investment community has defined and readily
uses the word "liquidation preference" within its
shareholder agreements. The liquidation preference is
a mechanism that legally establishes how much an
investor would receive upon a sale, dissolution or
winding up of a company. It also establishes the
hierarchy of which investors are to be paid. The rights
provided to each shareholder are found in the stock
purchase agreements.
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The foregoing passage was taken verbatim from the February 7, 2014
supplemental report, and also reproduced verbatim in Piekarsky's August 1,
2020 expert report. As set forth above, the arguments in the February 7, 2014
supplemental report were incorporated in plaintiff's appellate briefs in the Orloff
litigation, and therefore, are not new and were previously considered and
rejected by this court.
Finally, Kucsma's supplemental reports provide no support to plaintiff's
argument because they are fundamentally identical to the 2013 Tinari report and
the February 7, 2014 and April 7, 2014 supplemental reports. In her June 10,
2020 supplemental report, Kucsma merely criticizes the trial court's opinion in
the Orloff litigation. The seven-page appendix attached to the supplemental
report is, with the exception of the last three paragraphs, a verbatim reproduction
of the February 7, 2014 supplement report. The last three paragraphs of the
appendix are a verbatim reproduction from the April 7, 2014 supplemental
report.
Furthermore, Kucsma's August 1, 2020 supplemental report is essentially
a verbatim reproduction of the 2013 Tinari Group report. Indeed, just as the
2013 report did, Kucsma concluded that plaintiff sustained damages totaling
$11,583,180. This report also contains a seven-page appendix, which mirrors
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the appendix attached to the June 10, 2020 supplemental report (which was
essentially a verbatim reproduction of the February 7, 2014 and April 7, 2014
supplemental reports).
Kucsma's August 1, 2020 supplemental report does contain references to
Piekarsky's report and comments consistent with Piekarsky's contention that the
Orloff trial and appellate courts reached the wrong conclusion. It also contains
an ostensibly new argument that was not in the original 2013 Tinari report.
However, this new argument merely consists of Kucsma's review of litigation
"verdicts and settlements for cases with claims similar to those asserted by
[plaintiff], in the State of New Jersey, [that] ranged between $2,476,248 and
$33,487,500." Kucsma named numerous cases and said that the average of the
verdicts and settlements was $12,509,009. Apparently, Kucsma's review of the
verdicts and settlements was included in the report to support her contention that
the estimate of the total loss calculated by the Tinari group was reasonable, as
it is consistent with average of those verdicts and settlements. Nevertheless,
those verdicts and settlements would not be germane to plaintiff's claim for
damages.
In sum, Kucsma's 2020 supplemental reports were identical in substance
to the Tinari reports that were rejected in the Orloff litigation. That includes the
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26
original 2013 Tinari report that was presented to and rejected by the trial court
and the Appellate Division, and the February 7 and April 7, 2014 reports first
presented in the appeal, which this court rejected when we affirmed the trial
court's conclusion that the original Tinari report was inadmissible to sup port
plaintiff's claim for damages.
Accordingly, we conclude that the trial court properly found that
Kucsma's 2020 reports were essentially identical to the Tinari reports, and
therefore, they were properly found to be inadmissible under the collateral
estoppel doctrine.
Finally, plaintiff contends that the Orloff court erred in concluding that
UNO's operation was illegal. He argues that "[t]he court below assumed UNO
was illegal, as the trial court in Orloff offhandedly so concluded[.]" According
to plaintiff, "the defendants failed to disabuse [the trial court in the Orloff
litigation] of the notion that UNO was 'illegal,' and to advance the conclusions
to the contrary of international compliance experts, Graves, Erb and McDonald."
We disagree.
First, the facts of this case fall squarely within the invited-error doctrine.
"The doctrine of invited error operates to bar a disappointed litigant from
arguing on appeal that an adverse decision below was the product of error, when
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that party urged the lower court to adopt the proposition now alleged to be error."
Brett v. Great Am. Recreation, 144 N.J. 479, 503 (1996). The doctrine "is
intended to 'prevent [a party] from manipulating the system' and will apply
'when a [party] in some way has led the court into error' while pursuing a tactical
advantage that does not work as planned." State v. Williams, 219 N.J. 89, 100
(2014) (quoting State v. A.R., 213 N.J. 542, 561-62 (2013)). A party "cannot
beseech and request the trial court to take a certain course of action, . . . then
condemn the very procedure he sought and urged, claiming it to be error and
prejudicial." State v. Pontery, 19 N.J. 457, 471 (1955).
From the time plaintiff hired Orloff to represent him in 2006, and pursue
his claims against FTV and Nexxar, plaintiff has consistently claimed that
UNO's business operations were illegal. Plaintiff's fraud claims were based on
the illegality of UNO's business operations. Indeed, at his deposition in the
Orloff litigation, plaintiff testified that UNO's business operations were illegal.
Therefore, plaintiff is precluded under the doctrine of invited error from arguing
that the Orloff court erred by accepting his argument and the evidence he
presented of UNO's illegality.
In sum, the trial court correctly determined that plaintiff could not
demonstrate actual damages in this case because, as in the Orloff litigation, his
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expert reports were inadmissible. Therefore, the court properly granted
summary judgment to defendants and dismissed plaintiff's complaint.
Affirmed.
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