                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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Recommended Citation
"Angrisani v. Cap Access Network" (2006). 2006 Decisions. Paper 1266.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1266


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                                                      NOT PRECEDENTIAL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



                                              4
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.



                                              5
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



                                              6
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).

                                             7
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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