LAWRENCE ANTONUCCI v. MORRIS COUNTY CARDIOLOGY CONSULTANTS, P.A.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5773-07T15773-07T1

LAWRENCE ANTONUCCI, M.D.,

Plaintiff-Appellant/

Cross-Respondent,

v.

MORRIS COUNTY CARDIOLOGY

CONSULTANTS, P.A., DOMENICK

RANDAZZO, M.D., NICHOLAS

RICCULLI, D.O., and CHARLES

SHIOLENO, M.D.,

Defendants-Respondents/

Cross-Appellants.

____________________________________

 

Argued December 15, 2009 - Decided

Before Judges Grall, Messano and LeWinn.

On appeal from Superior Court of New

Jersey, Chancery Division, Morris County,

Docket No. C-51-04.

Lawrence P. Cohen argued the cause for

appellant/cross-respondent (Courter, Kobert & Cohen, attorneys; Mr. Cohen, of counsel; John J. Abromitis, on the brief).

Eric L. Harrison argued the cause for

respondents/cross-appellants (Methfessel & Werbel, attorneys; Mr. Harrison, of counsel and on the brief; Adam S. Weiss, on the brief).

PER CURIAM

Plaintiff Lawrence Antonucci formerly practiced medicine with defendants Charles Shioleno, Domenick Randazzo and Nicholas Ricculli in a professional corporation known as Morris County Cardiology Consultants, P.A. (MCCC). MCCC is organized under "The Professional Service Corporation Act" (PSCA), N.J.S.A. 14A:17-1 to -18. Shioleno, Antonucci, Randazzo and Ricculli all held shares issued by MCCC when Antonucci left the practice on December 31, 2003.

After Antonucci left MCCC and established his own practice, he commenced this litigation against MCCC and his former associates. Claiming to be an oppressed shareholder of MCCC within the meaning of N.J.S.A. 14A:12-7(1)(c), Antonucci sought declaratory, injunctive and compensatory relief. He also asserted entitlement to relief based on breach of duties of loyalty, good faith, fair dealing and honesty; fraud; violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8; and tortious interference with contractual relations and prospective economic advantage. He also sought relief on the basis of his ownership interest in Ogden Property Partnership, LCC, an entity established to hold and lease property to MCCC. Pursuant to Ogden's operating agreement, all doctors with an equity interest were permitted to acquire an interest in Ogden and receive a share of the rent paid by MCCC. Defendants counterclaimed, alleging that Antonucci libeled MCCC, defamed Shioleno and tortiously interfered with the contracts between MCCC and Randazzo and Ricculli.

Prior to trial, Antonucci's CEPA claim was dismissed on motion for summary judgment, and his claim of tortious interference was dismissed as moot. On summary judgment, the judge also determined that Antonucci was entitled to the value of his interest in Ogden under the terms of its operating agreement, and the parties subsequently reached an agreement on the value of that interest. Thus, the case was tried on Antonucci's claims asserting status as an oppressed shareholder, breach of duties of loyalty, good faith, fair dealing and honesty and fraud and defendants' counterclaims.

An issue important to Antonucci's oppressed shareholder claim was decided by Judge MacKenzie prior to trial and was not disturbed by the judge who tried the case and entered final judgment. Judge MacKenzie determined that MCCC's share structure that "distinguish[es] between 'Class A voting' and 'Class B non-voting' shares is illegal" because MCCC's certificate of incorporation did not specify that there were two classes of shares. N.J.S.A. 14A:2-7(1)(d); N.J.S.A. 14A:7-1(1)-(2) and N.J.S.A. 14A:7-2(1)-(2). For that reason, the judge declared that all of the shares must be treated as shares of the same class.

Because material facts were in dispute, Judge MacKenzie did not decide whether Shioleno's actions on behalf of MCCC were illegal. That question, along with Antonucci's claims of fraud and breach of fiduciary duty and defendants' counterclaims, were tried in a bench trial before a different judge.

That judge determined that the parties failed to establish their claims. On motion for reconsideration, however, the judge issued an amended judgment in favor of Antonucci requiring MCCC and defendants Shioleno and Randazzo, as shareholders of MCCC, to purchase his share for $234,000, plus $45,889.63 in prejudgment interest. The judge did not state a legal basis for granting relief or piercing the corporate veil.

Antonucci appeals. He alleges that the judge erred by understating his percentage share of MCCC, reducing the amount due for his shares to reflect the value he received by having his patients follow him when he left MCCC and determining that he failed to establish his right to relief as an oppressed shareholder and a victim of breach of duty and fraud. Defendants cross-appeal. They assert that having determined that Antonucci was not entitled to relief as an oppressed shareholder, the judge erred by requiring them to buy his shares. They also argue that the judge overstated Antonucci's percentage share of MCCC and the value of his shares. Defendants do not challenge the dismissal of their claims.

For the reasons stated below, we affirm the judge's determination that Antonucci failed to establish any of his claims and vacate the judgment entered in his favor.

I

Shioleno was the first of the parties to establish a cardiology practice. In August 1986, he incorporated his practice as Charles A. Shioleno, M.D., P.A. pursuant to the PSCA. In September of that year he issued 200 of 2500 shares authorized in the certificate of incorporation to himself. Antonucci met Shioleno while serving as a resident at a Morristown hospital. During 1988, he provided coverage for Shioleno on a part-time basis. The doctors made plans to work together after Antonucci finished his residency and a fellowship. In May 1989, Shioleno changed the name of his practice to Morris County Cardiology Consultants, P.A. The amendment indicated that there were 2500 shares entitled to vote at the time the amendment was adopted and that 2500 shares voted for the amendment.

In January 1990, Antonucci signed a five-year employment contract. With respect to equity in MCCC, Antonucci's employment contract specified that it was "anticipated" that at the end of five years Antonucci would be permitted to purchase "two hundred and fifty shares of the issued and outstanding stock of the Corporation from Shioleno, the sole stockholder of the Corporation, at the price of $5000." The contract did not state the number of shares that were "issued and outstanding" or include any other representation as to the percentage or nature of the interest accompanying a purchase of 250 shares.

According to Antonucci, he and Shioleno had discussions about becoming equal partners at the end of the five-year period. Shioleno, however, said he had made it clear that he would always retain the final say and a greater equity interest. Shioleno further observed that his retention of control and greater equity was implied by the small percentage of total shares, 250 of 2500, available to Antonucci under the contract of employment.

Minutes of a January 31, 1990 meeting of the Board of Directors, which then consisted of no one other than Shioleno, reflect his intent. The shares available to Antonucci were to be

non-voting stock [issued] on an annual basis to eventuate an equal ownership of accounts receivable only by the end of a physician employee's fifth year of service and his or her presentation of appropriate licensure, staff privilege and cardiology board acquisition and entry into Memorial Cardiology, P.A. or other such corporation or partnership involved with providing hospital services at Morristown Memorial Hospital.

According to Shioleno, the value of the shares was limited to a portion of the accounts receivable because, in his view, accounts receivable and cash are the main assets of a professional practice. Antonucci acknowledged that MCCC leased most of its equipment and carried substantial debt.

The success of the practice in 1990 led Shioleno to permit Antonucci to purchase ten shares per year starting in 1991, rather than waiting until his fifth year as contemplated by the contract. Minutes of a January 31, 1991 Board meeting report the approval of the issuance of sixty shares of non-voting stock, ten to Antonucci and fifty to Shioleno, bringing Shioleno's total shares to 250. The minutes further reflect that the shares represent "ownership in the Corporation's accounts receivable" and the voting shares represent "ownership in the remaining assets," including "real estate acquired or otherwise under the control of the Corporation before January 1, 1995." As noted above, ten shares were issued to Antonucci on January 31, 1991.

There is no dispute that prior to the issuance of shares to Antonucci, Shioleno's actions, done as the sole shareholder and director of MCCC, were in conformity with N.J.S.A. 14A:17-6, a provision of the PSCA. There is also no dispute, however, that pursuant to N.J.S.A. 14A:7-1 and N.J.S.A. 14A:7-2, which are provisions of the "New Jersey Business Corporation Act" (NJBCA), N.J.S.A. 14A:1-1 to 16-4, Shioleno was required to accomplish that by amendment to MCCC's certificate of incorporation.

The pattern of annual stock issuance continued until Antonucci failed on his first attempt to pass his medical boards. Certificates reflect Antonucci's acquisition of ten Type B non-voting shares on January 31, 1991, ten on January 31, 1992, twenty on March 15, 1995, and ten on March 15, 1996. Although Antonucci claimed to be unaware of the other limitations on his shares reflected in the minutes of the January 31, 1990 and 1991 Board meetings, he understood the break in the issuance of shares between January 1992 and March 1995 was attributable to his failure to pass his medical boards, a limitation stated in the same minutes.

During the period that Antonucci's shares were issued, Shioleno decided to expand the practice. Antonucci was aware of and did not disagree with Shioleno's decision. The doctors spoke regularly before Shioleno acted and agreed. Antonucci admits that he let Shioleno take over the "big" and "little" things; he was focused on practicing medicine, which was what he enjoyed. The parties had different recollections of Antonucci's attendance at shareholder meetings. According to Shioleno, his partner attended most of them, but Antonucci said he had not attended any meetings and recalled being asked to sign waivers of notice.

In January 1993, Shioleno and Antonucci established Ogden Property Partnership. The doctors and their respective wives each contributed $17,500 and obtained a twenty-five percent interest. Their agreement required them to admit additional partners "contingent upon the new [p]artner having achieved an equity position in [MCCC]" and the new partner purchasing "his interest at the net fair market value of the [p]artnership's assets." As noted above, Antonucci eventually settled his claim to be reimbursed for his interest in Ogden.

In October 1995, MCCC acquired the practice of a deceased doctor located in Morristown for $400,000. In connection with that acquisition and the opening of a second office, Ricculli joined the practice in May 1996. Shioleno and Antonucci agreed on those decisions. According to Ricculli, he understood that when he was eligible to and purchased Type B shares that would entitle him to profit sharing, severance and purchase of an interest in Ogden. He did not understand that he would have an interest in MCCC's assets.

Antonucci claimed that he first heard about Type B shares when he saw his certificates in 1996. According to Antonucci, Shioleno delivered the several certificates together sometime after March 1996. Shioleno, however, believed that Antonucci had seen the shares before 1996 because he was present when they were signed.

In any event, Antonucci acknowledged the form of his employment contract for 1995. That contract indicates that his shares were Type B shares and it describes the interest as "proportional ownership of the accounts receivable and any assets acquired during this Agreement period" or during "[his] employment." It also explains that Shioleno owns all of the Type A shares and that they are the only voting shares. Although Antonucci declined to sign that employment contract because he did not want to legitimize the distinction between Type A and Type B shares, he admitted that in the late nineties Shioleno told him that a problem had arisen about A and B shares and whether Antonucci owned anything. Antonucci decided to disregard the issue as "ridiculous." He said "forget it, we're doing fine" sharing profits and rent equally and building a practice equally.

Antonucci also testified that Shioleno attempted to explain the difference between Type A and Type B shares several times and that the explanations sometimes focused on voting and non-voting and sometimes on equity. In Antonucci's view, "[i]t was stuff that he[, Shioleno,] would just say." Antonucci considered it to be something involving the management functions of MCCC that Shioleno "loved."

In December 1996, Antonucci filed an application for disability insurance. He reported that he had a twenty-five percent ownership interest in the business, which he had held for one year, and he listed his $500,000 salary as "employee compensation."

Expansion of MCCC's practice continued. Randazzo joined MCCC in January 1997. He did not think that his contract gave him the right to purchase any shares.

There was a significant difference between the importance of Antonucci's shares under the 1995 and 1997 employment contracts. The description of the interest represented by a share of Type B stock as "proportional ownership of the accounts receivable and any assets acquired during this Agreement period" or during "[his] employment" in the 1995 employment contract was eliminated. Instead, the 1997 employment agreement provided that "[b]y lieu of his equity shareholder status the Physician agrees to and is entitled to severance payments for his services to the Corporation." It further specified, "[t]he value of these severance payments reflect [sic] the equity which the Physician has developed in the Corporation."

In 2000, MCCC opened an office in Hunterdon County. Consequently, MCCC's debt increased from about $250,000 to $700,000. MCCC also opened an office in Summit and hired a cardiologist with an established practice in the Summit area. The Summit doctor worked independently of the others, and MCCC closed that office in 2003.

Antonucci's employment contract for 2002 further clarified that the value of his equity interest was entirely subsumed in the specified severance payments. It specified, "these severance payments reflect[] the entirety of the equity that the Physician has developed in the Corporation." It included a formula for calculation of severance based on the net asset value of MCCC. The net asset value was defined as: "the sum of current assets (cash, deposits, short-term notes receivable), patient accounts receivable (less than 180 days old), fixed assets minus depreciation and amortization at cost, and investments minus current liabilities (accounts payable, pension liabilities) and long-term liabilities (Corporation's notes and loans) minus any shareholders' equity." The value of "Class B stock" was listed at $5000.

The contract specified rights upon dismissal, termination or voluntary withdrawal from MCCC; on those events, Antonucci would receive fifty percent of his current retirement benefit. The retirement benefit varied with age at retirement fifty percent of his share before age fifty-five, seventy-five percent between age fifty-five and sixty-five, and one-hundred percent at age sixty-five or older. Like his initial contract, this one also provided that patient information was property of MCCC not to be removed without written consent. It also prohibited solicitation of MCCC's patients after leaving MCCC.

Antonucci, who would reach the age of fifty that year, did not sign the agreement or leave the practice. On January 2, 2002, however, Antonucci filed a claim for disability benefits. On that form, he indicated that he had no ownership interest in MCCC.

Randazzo purchased fifty Type B shares on January 9, 2002. He also became head of MCCC's nuclear medicine department. According to Antonucci, he and Shioleno discussed Randazzo's acquisition of shares, and Antonucci told Shioleno he wanted to resolve the discrepancy between Type A and Type B shares first. According to Shioleno, Antonucci neither objected nor offered any comment.

During 2002, Antonucci and his wife were involved in divorce litigation. In connection with that proceeding, he certified that he was a holder of "Class B shares" that conferred no equity interest but entitled him to severance pay.

In April 2002, Shioleno was advised by his attorneys that the structure of MCCC's shares was not valid because it had not been authorized. He was further advised that the problem could be corrected by amending the certificate of incorporation and without recalling the shares. According to Shioleno, he expected his attorney to file the amended certificate before December 2002 but that did not happen.

Shioleno took action at a Board meeting in September 2003. Still acting as sole member of the Board and contrary to N.J.S.A. 14A:17-6, he issued a written consent confirming the past issuance of 2500 shares consisting of 200 "Class A voting shares" that were issued to Shioleno and 2300 "Class B non-voting shares," one-hundred and fifty of which were held by Antonucci, Randazzo and Shioleno who each had fifty shares. The written consent did not indicate any distinction between "Class A" and "Class B" shares other than voting rights. The one-man Board also voted to require a two-member Board of Directors at all times in the future when MCCC had more than one shareholder. The one-man Board appointed Shioleno, Antonucci and Randazzo to hold the offices of president, treasurer and secretary, respectively, until the next annual Board meeting.

At the same meeting, the one-man Board recommended issuance of shares to Ricculli in a number to be determined by the new Board, and the one-man Board resolved that any doctor who did not sign a new employment contract for 2004 by December 1, 2003 would be dismissed effective January 1, 2004. The new employment contract approved for 2004 included a covenant against post-employment competition that was not included in earlier MCCC contracts of employment. It was silent as to the significance of "Class B stocks" and did not include the severance formula.

Meetings of the new Board of Directors and shareholders were held on September 28, 2003. During the shareholders' meeting, Antonucci voiced objection to the voting structure and the equity arrangement. He abstained from voting when the new Board voted to offer Ricculli the opportunity to purchase fifty "Class B shares" for $5000. Ricculli received fifty shares on October 27, 2003.

The new employment contracts were distributed, but Antonucci, as was his custom after his first five-year contract ended, did not sign. Instead, Antonucci announced his retirement but asked to stay with MCCC for three to four months so that he could set up a new office. On October 31, 2003, Antonucci wrote a letter to his partners acknowledging "unresolved misunderstandings" for which he was "blaming no one" and stating his desire to reach "an amicable resolution." He did not propose any solution, however, and asked for accommodations in the event of his departure. Among the accommodations he sought was a "process that [would] allow [him] to care for [his] patients." In a response signed by Shioleno, Randazzo and Ricculli, his partners outlined the terms under which they would grant Antonucci an extension of his employment. The parties did not reach an agreement. By letter of December 31, 2003, Shioleno advised Antonucci that the Board had decided to terminate his employment as of December 31, 2003 as well as his membership in Ogden. Shioleno assured him that MCCC would not interfere with his relationship with his patients, and Shioleno set forth a plan for transferring patient information and scheduling their appointments. The locks to Antonucci's office were changed that day.

Nevertheless, negotiations continued. In a subsequent letter dated January 21, 2004, Shioleno recounted failed attempts to agree on terms for Antonucci's return and stated that the other members of the Board had concluded that it had "exhausted all means to settle the matter." On January 27, 2004, Antonucci's attorney wrote to MCCC advising that Antonucci had opened new offices in Chester and Morristown and asking MCCC to inform his patients. The lawyer also requested information about Antonucci's patients who had received care through MCCC since December 31, 2003.

While there is evidence that MCCC told Antonucci's patients that he was "away" and invited them to keep their appointments, MCCC complied with the requests for information. In February 2004, MCCC provided a computerized list of patients and their contact data. It included information on 5000 patients Antonucci had seen while at MCCC, 3136 with active files.

Antonucci requested medical information for about 2550 of those patients. By the lowest estimate, eighty-two percent of Antonucci's patients followed him to his new practice.

During 2004, Antonucci had billings of approximately $3.5 million and collections of approximately $2 million, according to the person who developed his software system. Antonucci's estimate of his gross billings in 2004 was only $2 million.

Plaintiff and defendant both presented expert evidence on the value of MCCC as of December 31, 2003. Their experts were in essential agreement on the value of MCCC's tangible assets; plaintiff's expert assigned a value of $884,000 and defendants' a value of $884,056. In contrast, their estimates of the fair market value of MCCC, which took MCCC's intangible value into account, differed widely.

The trial judge delivered an oral opinion that included discussion of the parties' personal disagreements and grievances. She deemed them insufficient to establish unfairness or oppression. We see no reason to discuss that evidence in detail here. On Antonucci's side, the complaints were about Shioleno's focus on the business aspect of the practice and his controlling manner. Doctors who had practiced with MCCC for a time and left also testified on those points. Shioleno's grievances were about Antonucci's abuse of leave and unexpected absences. He too had witnesses who testified about that conduct. They both had complaints about each other's behavior and comments during the months of September through December 2003.

The judge found that Antonucci was a successful and productive doctor who "never really cared one way or the other about the corporate structure of this practice until his divorce got underway." When he first took an interest, his concern was distancing himself from ownership of MCCC.

Accepting Judge MacKenzie's determination that the share structure Shioleno put in place was not accomplished in accordance with the statutes, the trial judge determined that the "corporation was owned equally by its shareholders," without explaining why she did not follow Judge MacKenzie's ruling that the illegality of the share structure would be addressed by treating all of the shares as shares of the same class.

The judge turned to assess the impact of the illegality, which was Shioleno's failure to amend the corporate documents to reflect the two classes of shares. Focusing on the parties' course of conduct, she found that Antonucci "never really cared to be an active manager or involved shareholder in this practice." He knew how Shioleno was running the practice, was always aware that Shioleno made decisions and chose to distance himself for over twelve years during which he made money with the others and shared in MCCC's significant profits. Implicitly rejecting Antonucci's testimony that he expected a fifty-fifty ownership, the judge found that his expectation was "sharing profits with [Shioleno]." She further found that there was no mismanagement, excessive compensation or unfair decrease in profit distribution during Antonucci's years at MCCC.

The judge also addressed and rejected Antonucci's proofs in support of his allegations of oppression and unfair treatment. She found that there was no unfairness in compensation; the restriction on post-employment competition inserted in the last employment contract applied to all members of the practice; the award of shares to other members of the practice was not inequitable; the December 31, 2003 lockout was understandable under the circumstances, which included substantial efforts to negotiate terms under which Antonucci could remain in the practice until he was ready to open his own; and that MCCC had made very reasonable efforts to avoid and address Antonucci's departure.

II

The scope of our review of determinations reached after a bench trial is limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We must defer to findings that involve an assessment of credibility and demeanor and we do not disturb other factual findings, or the legal conclusions based upon them, unless they are so unsupported by or inconsistent with the evidence and law as to result in an injustice. Ibid.; see Twp. of W. Windsor v. Nierenberg, 150 N.J. 111, 135 (1997).

In order to establish a right to relief based upon Shioleno's actions in the operation of MCCC, Antonucci was required to show that

the directors or those in control have acted fraudulently or illegally, mismanaged the corporation, or abused their authority as officers or directors or have acted oppressively or unfairly toward one or more minority shareholders in their capacities as shareholders, directors, officers, or employees.

[N.J.S.A. 14A:12-7(1)(c).]

Although this provision is "interpreted broadly to provide remedies for the distinctive problems of close corporations," Brenner v. Berkowitz, 134 N.J. 488, 508 (1993) (citation and internal quotations omitted), not every illegal, fraudulent, oppressive or unfair act warrants a grant of the relief in the form of a court-ordered buyout of the shareholder's interest, id. at 512-13. "[I]n addition to demonstrating fraudulent or illegal conduct, mismanagement, or abuse of authority, or oppressive or unfair conduct, a plaintiff must also demonstrate a nexus between that misconduct and the minority shareholder or her interest in the corporation." Id. at 508. Thus, the "seriousness of the violation" is a factor, especially where illegality is alleged. Ibid. A violation of the law with minimal impact on the shareholder's interest or reasonable expectations does not warrant relief. Ibid.

The nexus between misconduct and harm to the shareholder can be established in several ways. The minority shareholder may show "acts that affect or jeopardize a shareholder's stock interest," whether or not targeted at the complaining shareholder alone. Ibid. Or the minority shareholder may show acts that thwart his or her reasonable expectations, given the "'special circumstances, arrangements and personal relationships that . . . generate certain expectations among the shareholders concerning their respective roles . . . .'" Id. at 509 (quoting Exadaktilos v. Cinnaminson Realty Co., 167 N.J. Super. 141, 154-55 (Law Div. 1979), aff'd o.b., 173 N.J. Super. 559 (App. Div.), certif. denied, 85 N.J. 112 (1980)).

In assessing the impact of an action challenged as one thwarting reasonable expectations, "a court must determine initially the understanding of the parties in this regard. Armed with this information, the court can then decide whether the controlling shareholders have acted in a fashion that is contrary to this understanding . . . ." Exadaktilos, supra, 167 N.J. Super. at 155. Moreover, when there is evidence that a minority shareholder was aware of the misconduct and failed to act, a court may "reasonably determine that unfairness would result if a minority shareholder were permitted to seek judicial intervention after years of acquiescence . . . ." Brenner, supra, 134 N.J. at 509-10.

Applying our standard of review and considering the record, the judge's factual findings and the law governing Antonucci's claim, we see no basis for disturbing the judge's determinations with respect to Antonucci's claim that he was oppressed or treated unfairly. Those claims rested upon terms and conditions of employment included in the several employment contracts Shioleno offered to Antonucci after their first five-year contract expired. The terms, including the restriction on post-employment competition, were the same as those offered to the other doctors. While Antonucci did not sign those contracts, he continued to work and accept compensation paid in accordance with the contract terms, including bonuses and profit sharing, which was based upon his ownership of shares. Antonucci's other claims of unfairness and oppression were based upon allegations of unfair treatment after he announced his resignation, including the lockout that followed protracted attempts to agree on terms under which he would continue to practice with MCCC while preparing to open a practice of his own.

The judge's determinations that Antonucci failed to establish that the foregoing conduct amounted to oppression or unfairness within the meaning of N.J.S.A. 14A:12-7(1)(c) are adequately supported by the record. They are affirmed for that reason. R. 2:11-3(e)(1)(A).

The judge's rejection of Antonucci's claim based upon the illegality of the share structure requires some discussion. First, it is important to stress that Shioleno did nothing illegal by establishing two classes of shares while he was the only shareholder and director. As such, Shioleno was authorized to act for MCCC pursuant to N.J.S.A. 14A:17-6. Pursuant to the NJBCA, which controls when there is no conflict with the PSCA, N.J.S.A. 14A:17-15, a corporation's shares "may be divided into two or more classes," and each class may have different "voting, dividend, liquidation and other rights, preferences, and limitations . . . ." N.J.S.A. 14A:7-1(1).

The illegality was that Shioleno did not amend MCCC's certificate of incorporation to reflect the difference in classes and specify the differences between them. N.J.S.A. 14A:7-1 to -2. Thus, Antonucci had to demonstrate the nexus between that illegality, failure to record and harm to his reasonable expectations and interest. As we understand the judge's decision, she found that Antonucci was aware of, understood and accepted the difference between the classes of MCCC shares for a period of twelve years because the limitations on his rights were consistent with his reasonable expectation, which was profit sharing. Those findings preclude a finding of the requisite "nexus" between the failure to amend the certificate of incorporation and any harm to Antonucci. In short, he had the information that an amendment would have provided and continued to work with full knowledge of the ever-changing restrictions and limitations on his interest as a shareholder. While he did not sign the contracts stating those conditions, he performed under them and accepted a share of profits calculated in recognition of the equity he shared with Shioleno alone until Randazzo and Ricculli became shareholders.

On appeal, Antonucci presents arguments suggesting that he had a reasonable expectation in becoming a fifty-fifty owner of the practice with Shioleno. There is nothing in this record apart from Antonucci's disputed testimony about conversations with Shioleno that suggests that this asserted expectation was reasonable.

The judge, apparently discrediting that testimony, found that his expectation was to share profits, which he did. While the record does not compel that conclusion, there is adequate support. Shioleno had 200 of 2500 shares when Antonucci joined the practice. That fact was clearly reflected on the properly recorded corporate documents. Antonucci's initial employment contract indicated that he would have a right to purchase 250 shares. When Shioleno authorized a purchase of fifty shares by Antonucci, he also purchased fifty shares himself. There is no evidence that Antonucci ever attempted to acquire additional shares or objected to new doctors joining the practice with contracts that gave them an opportunity to purchase shares at a later date. In these circumstances, any expectation of a fifty-fifty ownership with Shioleno was not reasonable.

Accordingly, we affirm the judge's determination that Antonucci was not entitled to an order compelling purchase of his shares pursuant to N.J.S.A. 14A:12-7(1)(c). We also affirm the judge's determinations that Antonucci failed to establish fraud or breach of a duty owed to him as a shareholder. The arguments Antonucci presents to establish error in these determinations are conclusory assertions that do not warrant discussion in a written opinion given our standard of review. R. 2:11-3(e)(1)(E).

The question remains whether Antonucci was entitled to a judgment providing compensation for his shares beyond what he had received when he left MCCC. As noted above, a judgment requiring MCCC and two of its three remaining shareholders to pay Antonucci $234,000 plus pre-judgment interest was entered. The judge did not articulate any legal basis for a court order requiring this buyout.

On appeal, Antonucci presents no argument as to any other legal principle under which he is entitled to additional compensation. He simply argues that the court erred in finding that he failed to establish his claims. We have rejected those arguments based on our standard of review, which precludes us from substituting our determinations for those made by a trial judge if they are supported by the record and the law. The proposition that there must be a legal basis for a court order directing one party to compensate another is self-evident, and it requires reversal of the court-ordered buyout.

On their cross-appeal, defendants contend that the judge erred by ordering the buyout after determining that Antonucci failed to establish any claims. See Brenner, supra, 134 N.J. at 512-13 (discussing the limitations on an order compelling a buyout). They argue, as they did during their summation, that at most Antonucci is entitled to the compensation that he would have received if he left the practice under the terms of the last contract under which he worked.

The trial judge declined to fashion relief on that basis because she concluded that there was no contract. Given the judge's factual findings, that determination is incorrect as a matter of law. The judge found that Antonucci continued to work under the various contracts presented by Shioleno, represented his status in conformity with the terms of the 2002 contract in his divorce proceeding and accepted that contract's benefits for his services, including profit-sharing. Under those circumstances, an enforceable contract arises absent evidence of disagreement as to the essential terms. Graziano v. Grant, 326 N.J. Super. 328, 339-40 (App. Div. 1999). The judge found that Antonucci acquiesced in and did not object to those terms.

For the foregoing reasons, we remand for a determination as to whether Antonucci is entitled to receive anything due and not paid in accordance with the terms of the 2002 contract.

Our disposition makes it unnecessary for us to consider the parties' competing objections to the judge's determinations relevant to the buyout price she set. For the benefit of the parties in the event they attempt to resolve this matter without further litigation through a purchase, we note that there are numerous fundamental errors in the judge's assessment of the value of Antonucci's interest.

First and foremost, the judge's determination rests on an overstatement of the percentage of shares held by Antonucci. Accepting Judge MacKenzie's determination, which the trial judge did, Antonucci did not hold a one-third interest on December 31, 2003. He held fifty shares and Shioleno, Ricculli and Randazzo, collectively, held three hundred and fifty shares, all of which were of equal value. Thus, Antonucci held .125 of the total shares issued as of December 31, 2003, the date the judge used for valuation. Second, the judge assigned a dollar value to the intangible assets Antonucci received on a basis not established by the evidence. While the judge's initial determination that Antonucci received his fair share of MCCC's intangible assets when MCCC facilitated the transfer of his patients' records to his new practice is well-supported by the record, there was no basis in the evidence for assigning a dollar value to that component of MCCC's intangible assets.

The judge initially found that Antonucci received all he was due because the vast majority of his patients followed him. That benefit can be viewed as his fair share of MCCC's intangible assets, that is MCCC's value beyond book value. On the premise that he received an equitable share of the intangible value, we have no doubt that if there were grounds to order a buyout, it would have been equitable to fix the fair value due for his share of the tangible assets. His share was .125 of MCCC's undisputed $884,000 in tangible assets with adjustments that may be necessary to account for any payment on accounts receivable or equity in the form of severance that was tendered on his departure.

 
Affirmed in part; reversed in part and remanded for further proceedings in conformity with this decision.

Shioleno produced an altered copy of that document in discovery and at trial.

Antonucci argues the he owned fifty percent. We have difficulty discerning the basis for this conclusion and are not persuaded by Antonucci's argument.

(continued)

(continued)

30

A-5773-07T1

July 19, 2010