                                NOT FOR PUBLICATION WITHOUT THE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


                                                                           A-1113-17T4
                                       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

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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.


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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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