Angrisani v. Cap Access Network

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-14-2006
Angrisani v. Cap Access Network
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1502
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1502
FRANK ANGRISANI,
Appellant
v.
CAPITAL ACCESS NETWORK, INC.;
ADVANCEME, INC;
COUNTRYWIDE BUSINESS ALLIANCE;
GARY A. JOHNSON, in his individual and official capacities;
W. CARTER SULLIVAN, III, in his individual and official capacities;
MARC TESLER, in his individual and official capacities;
JAMES DUFFY, in his individual and official capacities;
DAVID SCHACNE, in his individual and official capacities;
BRIAN ZIPP, in his individual and official capacities;
LES FALKE, in his individual and official capacities
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 02-cv-03167)
District Judge: Honorable William J. Martini
Argued March 30, 2006
Before: RENDELL, SMITH and BECKER, Circuit Judges.
(Filed: April 14, 2006)
Kevin Kiernan [ARGUED]
Kiernan & Campbell
206 Claremont Avenue
Montclair, NJ 07042
Counsel for Appellant
Mark W. Lerner [ARGUED]
Kasowitz, Benson, Torres & Friedman
1633 Broadway, 21st Floor
New York, NY 10019
Counsel for Appellees
OPINION OF THE COURT
RENDELL, Circuit Judge.
This case comes to us on appeal from the District Court’s grant of summary
judgment in favor of defendant Capital Access Network, Inc. (“Capital”). Frank
Angrisani left his lucrative position at Western Union to accept a position as CEO of
Capital. Angrisani claims that he was induced to leave his position with Western Union
and accept the position with Capital as a result of false statements made to him by
Capital’s representatives. In addition, Angrisani claims that Capital tortiously interfered
with his employment relationship with Western Union. He bases this tortious
interference claim on essentially the same theory as his common-law fraud claim, i.e.,
that Capital induced him to leave his lucrative position with Western Union through the
use of false statements. Angrisani also claims that Capital breached its agreement to pay
him a year-end bonus and grant him stock to which he was contractually entitled. The
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District Court granted summary judgment against Angrisani on all three claims.1 We will
reverse as to the claim for fraudulent misrepresentation.2
I. Fraud
Under New Jersey law, applicable here, a common-law fraud action has five
elements: (1) a material misrepresentation of a presently existing or past fact; (2)
knowledge or belief by the defendant of its falsity; (3) an intention that the other person
rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages.
Gennari v. Weichert Co. Realtors, 148 N.J. 582, 584 (1997). In order to succeed on an
allegation of fraud, a litigant must prove his claim by clear and convincing evidence. Fox
v. Mercedes-Benz Credit Corp., 281 N.J. Super. 476, 484 (N.J. App. Div. 1995).
Statements as to future or contingent events, as to expectations and probabilities,
or as to what will be or is intended to be done in the future, do not constitute
misrepresentations even though they turn out to be false, at least where they are not made
with intent to deceive, and where the parties have equal means of knowledge. Middlesex
The District Court had diversity jurisdiction pursuant to 28 U.S.C. § 1332. We have
jurisdiction over an appeal from the District Court’s grant of summary judgment pursuant
to 28 U.S.C. § 1291.
We exercise plenary review over the District Court’s grant of summary judgment, and
apply the same standard the District Court was required to apply. Stratton v. E.I. DuPont
DeNemours & Co., 363 F.3d 250, 253 (3d Cir. 2004). Summary judgment is appropriate
if there are no genuine issues of material fact presented and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317
(1986). We resolve all factual doubts and draw all reasonable inferences in favor of the
nonmoving party. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d
Cir. 2004).
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County Sewerage Authority v. Borough of Middlesex, 74 N.J. Super. 591, 605 (N.J. App.
Div. 1962). Similarly, statements that can be categorized as “puffery” or vague and “ill-
defined opinions” are not assurances of fact and do not constitute misrepresentations.
Alexander v. CIGNA Corp., 991 F. Supp. 427, 434 (D.N.J. 1998).
Angrisani identifies four material misrepresentations he alleges were made by
Capital’s representatives, including Gary Johnson, the chairman of Capital’s board of
directors, Marc Tesler, another Capital board member, and Les Falke, the company’s
president and a board member. These alleged misrepresentations include (1) the
existence of a legal opinion verifying that Capital’s business practices did not violate the
law; (2) that the company was operating at a rate of less than 5% loan losses; (3) the
existence of a patent or pending patent as to Capital’s method of loan processing; and (4)
the commitment of 100 million dollars in capital financing. The issue before us is
whether the record regarding Capital’s representations presents issues of material fact for
a jury as to the elements of this claim. We find that it does.
The District Court rejected Angrisani’s claims based on its conclusion that some
of the statements made to Angrisani were statements of opinion and future expectations,
and that Angrisani was an intelligent and sophisticated businessman and should have
more fully investigated the claims of Capital’s agents. However, several of the
assurances given and facts stated constituted misrepresentations of present facts.
Furthermore, the question of whether Angrisani’s investigation and reliance was
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reasonable presents a factual issue that is more properly left to the judgment of the jury.
See Rodi v. S. New England School Of Law, 389 F.3d 5, 16 (1st Cir. 2004)
(reasonableness of a party’s reliance ordinarily constitutes a question of fact for the jury);
Miller v. Premier Corp., 608 F.2d 973, 982 (4th Cir. 1979) (“[I]ssues of reliance and its
reasonableness, going as they do to subjective states of mind and applications of
objective standards of reasonableness, are preeminently factual issues for the trier of
fact.”); Wolff v. Allstate Life Ins. Co., 985 F.2d 1524, 1531 (11th Cir. 1993). Given the
now apparent falsity of many statements made to him by persons of authority at Capital,
we cannot say that it was unreasonable for Angrisani to rely on these statements. See
Jewish Ctr. of Sussex County v. Whale, 86 N.J. 619, 626 n.1 (1981) (“One who engages
in fraud, however, may not urge that one’s victim should have been more circumspect or
astute.”) (citing Pioneer Nat’l Title Ins. Co. v. Lucas, 155 N.J. Super. 332, 342 (N.J. App.
Div.), aff’d, 78 N.J. 320 (1978)). Accordingly, we will reverse the District Court’s grant
of summary judgment and remand for the case to proceed to trial on the claim of
fraudulent inducement.
II. Tortious Interference
Under New Jersey law, a claim of tortious interference requires a showing
of (1) intentional and malicious interference (without justification); (2) with a prospective
or existing economic or contractual relationship with a third party; (3) causing the loss of
prospective gain; and (4) damages. See, e.g., Printing Mart-Morristown v. Sharp Elec.
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Corp., 116 N.J. 739, 751 (1989). Angrisani’s claim for tortious interference alleges that
Capital’s representatives intentionally and tortiously interfered with his business
relationship with Western Union. The District Court granted summary judgment in favor
of Angrisani. We agree with the District Court’s conclusion.
Angrisani has failed to produce any evidence suggesting that Capital acted to
induce Western Union to terminate him, or that it prevented Angrisani from performing
his job. Angrisani has not alleged that Capital requested Western Union to sever its
relationship with him. Mere misrepresentations made to a third party’s employee for the
purpose of recruiting that employee do not constitute tortious interference without some
additional showing either of a specific intent to interfere with the prior employment
relationship or of direct causal interference with the performance of that employment
agreement. Therefore, we will affirm the District Court’s grant of summary judgment as
to Angrisani’s tortious interference claim.
III. Breach of Contract
Angrisani’s breach of contract claim consists of a claim for a year-end bonus, and
a claim for the value of 85,354 shares of stock representing 4% of the company’s shares.
The District Court originally denied Capital’s motion for summary judgment as to this
claim. However, upon Capital’s motion for reconsideration, the District Court granted
summary judgment with respect to Angrisani’s claim to the stock.
In Capital’s motion for summary judgment, it argued that Angrisani was not
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entitled to the 85,354 shares of stock because his agreement unambiguously provided that
he would receive not stock but 85,354 stock options, which Angrisani never attempted to
exercise. In fact, this assertion is supported by the text of the employment contract,
which stated, under the heading “Stock Options,” “you will be granted 85,354 stock
options.” (Pa163). The contract further provided that the options would have an exercise
price per share between $20 and $25 as established by the Board of Directors and that the
options would fully vest on Angrisani’s termination.3 The District Court properly found
that Angrisani had never attempted to exercise his stock options and that Capital had
never thwarted any attempt by Angrisani to do so. We agree. At deposition, Angrisani
admitted that he had never attempted to exercise the stock options. He was asked, “So at
no time did you attempt to exercise the options?” He answered, “Correct.” Angrisani
Dep. at 275, Pa122. Accordingly, he has no right to the stock.
Angrisani’s theory regarding this claim has morphed over time. In his amended
complaint and in his brief in opposition to Capital’s motion for summary judgment, he
argued that his employment agreement entitled him to stock. In his motion in opposition
to defendant’s motion for reargument, and now on appeal, Angrisani argues that he is
When a stock option “vests,” the holder of the option typically has an immediate right
to exercise the option and thereby convert it into stock by paying the exercise price.
However, a stock option does not automatically become stock at the time that it vests; an
action– the exercise– is usually required on the part of the option holder. See William M.
Fletcher, Fletcher Cyclopedia Corporations § 5575 (2001 ed.); Lucente v. International
Business Machines Corp., 146 F. Supp. 2d 298 (S.D.N.Y. 2001), rev’d and remanded on
other grounds, 310 F.3d 243 (2d Cir. 2002).
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entitled to stock options, that Capital violated his employment contract in seeking to
unilaterally change the terms of the options contract. However, Angrisani did not
advance this argument to the District Court in the first instance, and we conclude that the
District Court was correct not to consider it at reargument. Furthermore, we will not
consider it for the first time on appeal.
Thus, we agree with the analysis of the District Court. As Angrisani never
attempted to exercise the options referred to in his employment agreement, he has no
claim for breach of contract as to the 85,354 shares of stock. We will affirm the District
Court’s grant of summary judgment as to this breach of contract claim.
IV.
In sum, we will reverse the District Court’s grant of summary judgment with
respect to Angrisani’s claim for common-law fraud. We will affirm the District Court’s
order granting summary judgment as to Angrisani’s claims for tortious interference and
breach of contract.
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