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Guido v. Duane Morris


July 15, 2009


On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-677-07.

Per curiam.


Argued Telephonically March 10, 2009

Before Judges Rodríguez and Waugh.

Pursuant to leave granted, defendant Duane Morris, LLP, a law firm, and two of its partners, defendants Frank A. Luchak and Patricia Kane Williams, appeal from the motion judge's order reconsidering and vacating a prior order granting summary judgment with respect to a legal malpractice action filed against defendants by their former clients, plaintiffs Joseph M. and Teresa Guido. We affirm.


We discern the following facts from the record.


Joseph M. Guido was the 56.1 percent majority shareholder of Allstates WorldCargo, Inc. (Allstates), the stock of which is registered with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended. See 15 U.S.C.A. §§ 78a-78oo. Guido was the president and chief executive officer of Allstates from 1961 until 1999. He has served as the chairman of Allstates' four person board of directors since 1999.

On August 16, 2004, Guido delivered to Allstates: (1) an executed written consent in lieu of a special meeting of the stockholders; (2) amended and restated bylaws for Allstates to be adopted pursuant to the written consent; and (3) a draft information statement as required by the Securities Exchange Act of 1934. See 17 C.F.R. 240.14c-101.

Through those documents, Guido sought to amend Allstates' bylaws to increase the size of the board of directors from four to seven members and to appoint three independent persons, meaning non-employees, to fill the new seats. Guido understood that N.J.S.A. 14A:5-6 and Allstates' bylaws authorized him, as majority shareholder, to increase the size of the board. Allstates' management declined to notify all of the shareholders of the written consent and otherwise to process Guido's submissions.

On October 12, 2004, Guido received notice that there would be a meeting of the board of directors on October 18. Because the issue of the written consent was not included in the meeting's proposed agenda, Guido retained Duane Morris to represent him. That firm filed a verified complaint and sought an order to show cause with temporary restraints in the General Equity Part on October 14, 2004. The two-count complaint named Allstates and the three other members of the board of directors - Sam DiGiralomo, Barton C. Theile, and Craig D. Stratton - as defendants.

In count one, Guido requested injunctive relief, arguing that Allstates and the other board members had unlawfully failed to act on his written consent as required by N.J.S.A. 14A:5-6(2)(b). In the second count, Guido alleged a breach of fiduciary duty and the duty of loyalty based on the defendants' refusal to act in accordance with his written consent and other documents. He also sought counsel fees and costs.

The General Equity judge held a hearing on October 18, 2004, to address the request for temporary restraints. He denied the request for immediate injunctive relief, ordered discovery, and sent the case to mediation.

Immediately following the hearing, Guido spoke with DiGiralomo, without any counsel present, about a possible settlement. The proposed settlement was presented to the court on the same day, after Guido and DiGiralomo informed the court that they had "decided to discharge their attorneys."

Guido's counsel at the time, James Ferrelli of Duane Morris,*fn1 informed the General Equity judge that DiGiralomo had prevented him from having private discussions with his client before the possible settlement was presented to the court. Ferrelli warned the court: "I'm very concerned that there's been an instance of duress and overreaching. He is an elderly gentlemen. He has some health problems." The General Equity judge scheduled a case management conference to assess whether the settlement was entered into freely and voluntarily by the parties.

In a letter to Guido dated October 27, 2004, Ferrelli memorialized their earlier discussion concerning the proposed settlement. Ferrelli advised "against any agreement with [DiGiralomo] and the defendants that includes as a term any limitation on your rights as majority shareholder of Allstates. . . . [B]y requesting that you agree to such terms, [DiGiralomo] is taking away your ability to control the company, which substantially undermines your majority ownership."

On October 28, 2004, the General Equity judge held a conference with counsel and the parties in chambers. The conference resulted in a second preliminary settlement agreement. The essential terms of the settlement were placed on the record by the General Equity judge:

One, that the Board would not be expanded except by unanimous consent.

Two, there would be a shareholders agreement whereby each side would agree to vote for the other.

Three, that there would be a new employment agreement to be entered into by the parties. The precise terms have yet to be agreed upon.

There would be a general release executed by all parties, cross releases releasing all sides from any liability with regard to the subject litigation.

That once an employment agreement is entered into and the precise terms are put to paper, that the entire agreement will be submitted to corporate counsel to confirm that the agreement did not run afoul of any State or Federal law. And if it was determined that it did run afoul in any aspect with regard to Federal or State law, then in that event the parties could refile and come back to Court.

There was a subsequent dispute on the record as to whether Guido was entitled to counsel fees, which was apparently not resolved at that time. Although the settlement had not been entirely finalized, Guido filed a voluntary dismissal without prejudice on October 28, 2004.

In a letter to Guido dated November 3, 2004, Ferrelli memorialized the recent events involving the first and second settlement proposals. With respect to the events on October 28, 2004, Ferrelli wrote: "When I arrived [at court], you advised that you had not seen my October 27, 2004 letter regarding the settlement proposal. I had a copy and we reviewed it together. I reiterated my concerns regarding the proposed settlement with the defendants." Additionally, Ferrelli wrote, "we recommended against accepting the defendants' settlement terms, the ultimate decision was, of course, yours."

Guido subsequently had second thoughts about the terms of the proposed settlement reached on October 28. He decided that he was not satisfied with having the board of directors remain at four individuals. Because Guido was no longer content with the settlement, Duane Morris filed a second complaint on February 10, 2005. The second complaint reiterated the two counts contained in the first complaint.

Allstates and the other three board members responded with a counterclaim charging Guido and his wife with conspiracy to commit racketeering, lack of authority to amend the Bylaws, breach of duty of loyalty by exposing the Company to financial ruin in return for personal benefit, breach of duty of loyalty by engaging in self-dealing, and breach of duty of loyalty by exposing [Allstates] to liability for filing a false and misleading document with the [Securities and Exchange Commission].

There was no effort by any party to enforce the most recent settlement proposal.

Retired Judge James M. Havey was then engaged in an attempt to resolve the dispute through mediation. Another proposed settlement, the third, was reached through Judge Havey's efforts. Counsel, the parties, and Judge Havey appeared before the General Equity judge on April 5, 2005, to put the settlement on the record. At that time, Guido was represented by Luchak, rather than Ferrelli.

The third settlement proposal had some of the same terms as the one reached on October 28, 2004. However, the revised settlement called for the board of directors to be increased to seven members, with the General Equity judge, rather than Guido, to appoint the new members. It also required that the parties enter into a voting agreement that differed significantly from the one previously proposed, particularly because it governed the transfer of stock in addition to issues related to the size and composition of the board of directors.

The proposed voting agreement required that any future modification of the board of directors, any modification of the bylaws, and any decision to sell or transfer capital stock would require unanimous consent of all the directors. The restrictions on the stock were to be binding on all subsequent owners of stock, because any transfer of stock would be made subject to the restrictions.

The Guidos were placed under oath and the following exchange took place:

The Court: Mr. and Mrs. Guido, you've had an opportunity to come to court on two or three occasions. You've also had settlement discussion on your own, and you've also had the assistance of Judge Harvey in mediating this and bringing closure in accordance with the terms that were described in court. Did you understand the terms?

Mr. Guido: Yes, sir.

Mrs. Guido: Yes.

The Court: You do. Is there any question you have?

Mr. Guido: No, sir. . . . .

Mrs. Guido: No.

The Court: And you agree to be bound by those terms?

Mr. Guido: Yes, sir.

The Court: And you're both in reasonably good health, there's nothing that would impact your ability to understand the terms and accept responsibility for the terms, as well as the fruits of this agreement, is that acceptable to you?

Mr. Guido: Yes, sir.*fn2

The Court: Mrs. Guido?

Mrs. Guido: Yes.

On May 27, 2005, because the parties were having difficulty agreeing on the form of the settlement documents, the General Equity judge entered an order that "provided that the court was enforcing the Settlement Agreement as reflected in the transcript and that the parties were bound by the settlement as reflected in the transcript notwithstanding the lack of any signatures." On the record that same day, Guido's counsel and Judge Harvey noted that disagreements had arisen as to the meaning of certain terms of the settlement.

The matter came before the General Equity judge again on June 6, 2005. He afforded the parties the opportunity to discuss their understanding of, or disagreement with, the language in the proposed settlement documents. Where the parties could not agree on the language, the General Equity judge provided the language. In an order dated the same day, the General Equity judge confirmed the enforcement of the previously agreed upon settlement and then initialed each page of the settlement agreement and Guido's employment contract.


Almost two years later, on February 15, 2007, the Guidos filed their complaint against Duane Morris, Luchak, and Williams, alleging legal malpractice. The Guidos specifically allege that the defendants' ineffective representation resulted in Guido being "stripped of his power" as majority shareholder and that "Guido's holdings in [Allstates] were rendered worthless because of the restrictions placed thereon pursuant to the Voting Agreement." Defendants filed their amended answer and counterclaim on June 7, 2007. In their counterclaim, defendants sought $431,790.69 in unpaid legal fees. The parties then engaged in discovery.

On April 11, 2008, defendants moved for summary judgment, arguing that the Guidos' malpractice claim was legally barred. The motion was argued on June 6, 2008. After noting that there was "a genuine issue of material fact as to whether or not the defendants adequately advised plaintiffs of the impact the voting agreement would have on the value of their shares" and whether such a failure would constitute malpractice, the motion judge nevertheless granted summary judgment and dismissed plaintiffs' complaint with prejudice in a written opinion dated June 11, 2008. The motion judge relied primarily on Puder v. Buechel, 183 N.J. 428 (2005), in which the Supreme Court precluded a malpractice claim by a litigant who had accepted a settlement in the underlying action after clearly stating her satisfaction with its resolution on the record.

The Guidos moved for reconsideration. A hearing on that motion was held on August 1, 2008. The motion judge was initially inclined to deny the motion for reconsideration. However, after plaintiffs' counsel raised the then recent Appellate Division decision in Hernandez v. Baugh, 401 N.J. Super. 539 (App. Div. 2008), he reserved decision on the motion. On September 16, 2008, the motion judge issued a written opinion granting the Guidos' motion for reconsideration and vacating his prior order of summary judgment.

We granted the defendants' motion for leave to appeal.


On appeal, the defendants argue that the motion judge should not have granted the plaintiffs' motion for reconsideration as a procedural matter and that his substantive decision to deny summary judgment was wrong as a matter of law.


We first address the motion for reconsideration under Rule 4:49-2, which is a matter left to "the trial court's sound discretion." Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App.Div.), certif. denied, 195 N.J. 521 (2008). Such a motion is not properly brought simply because a litigant is dissatisfied with a judge's decision, nor is it an appropriate vehicle to supplement an inadequate record. Ibid. It is primarily an opportunity to seek to convince the court that "'either 1) [it] has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]court either did not consider, or failed to appreciate the significance of probative, competent evidence.'" Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). A litigant may also bring up new matter that was not available when the initial motion was filed. Pressler, Current N.J. Court Rules, comment 2 on R. 4:49-2 (2008).

It appears from the record that an important issue on the merits of the defendants' motion for summary judgment, whether plaintiffs had an obligation to seek to set aside the settlement in the General Equity case, was not raised by the defendants in their initial summary judgment brief. Consequently, plaintiffs may not have had an adequate opportunity to brief the issue in connection with their opposition to the summary judgment motion. In addition, the case upon which the motion judge relied in granting reconsideration, Hernandez v. Baugh, supra, was not decided until after the reconsideration motion itself was filed. Consequently, it could not have been brought to the motion judge's attention on the original summary judgment motion.

Under all of those circumstances, we see no abuse of discretion in the motion judge's decision to reconsider his summary judgment order.


We now turn to the merits of the defendants' motion for summary judgment. An appellate court reviews a trial court's decision on such a motion de novo, applying the same standard governing the trial court under Rule 4:46. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Generally, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).

We note, as did the motion judge, that there is a genuine issue of material fact as to whether or not the defendants adequately explained the long-term implications of the settlement to the Guidos, e.g., whether defendants adequately explained that the settlement's new restrictions on the sale of stock would have a significant adverse impact on the value and marketability of Guido's majority ownership interest, as well as his wife's minority interest. We also note that some of those long-term implications, such as those related to the value of the stock, would not necessarily have been obvious from the settlement terms themselves. In contrast, other aspects of the settlement were clear from the settlement terms, e.g., the procedures for amending the by-laws, the size of the board, and the method of appointing the additional members.

The defendants' argue that, even if there is such a genuine issue of material fact, the defendants cannot pursue their malpractice claim because they voluntarily accepted the settlement in the General Equity action. They rely, as did the motion judge in granting their motion initially, on the Supreme Court's decision in Puder.

We start our analysis, however, with Ziegelheim v. Apollo, 128 N.J. 250, 265 (1992), in which the Supreme Court, holding that the "fact that a party received a settlement [in an underlying action] that was 'fair and equitable' [did] not mean necessarily that the party's attorney was competent or that the party would not have received a more favorable settlement had the party's incompetent attorney been competent," refused to adopt a per se rule barring malpractice actions by dissatisfied litigants absent actual fraud.

The plaintiff in Ziegelheim retained the defendant attorney to represent her in a divorce. A property settlement was eventually negotiated and put on the record, at which time Mrs. Ziegelheim stated that she understood the agreement, that it was fair, and that she entered into it voluntarily. A year later, she filed a malpractice action against her former attorney, alleging, among other things, that he had failed to ascertain the full extent of the marital estate, improperly advised her that she would only be able to obtain ten to twenty percent of the marital estate, and that he allowed her to sign a written agreement that did not comport with the oral agreement. At the same time, she sought to set aside the property settlement agreement in the matrimonial action. Id. at 257-58.

The malpractice action was called for trial prior to disposition of the motion to set aside the marital settlement. Consequently, the first malpractice action was voluntarily dismissed and a second action was filed. The family court then denied the motion to reopen the property settlement agreement, relying on Mrs. Ziegelheim's representations that the agreement was fair. The malpractice action was dismissed on the defendant's successful motion for summary judgment. Id. at 258-59. On appeal, we affirmed the dismissal on all counts except the one related to the legal advice as to the reasonableness of the settlement. Id. at 260. The Supreme Court affirmed our reinstatement of the one claim, but reversed our affirmance of the dismissal of other claims. Id. at 265.

The defendant attorney had urged the Supreme Court to adopt a rule that "a dissatisfied litigant may not recover from his or her attorney for malpractice in negotiating a settlement that the litigant has accepted unless the litigant can prove actual fraud on the part of the attorney." Id. at 262. That rule, which our Supreme Court characterized as "severe," ibid., had been adopted by the Pennsylvania Supreme Court in Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 587 A.2d 1346, 1348 (Pa. 1991), on the basis of its "longstanding public policy which encourages settlements."

In refusing to adopt the Pennsylvania rule, the Supreme Court stated:

New Jersey, too, has a longstanding policy that encourages settlements, but we reject the rule espoused by the Pennsylvania Supreme Court. Although we encourage settlements, we recognize that litigants rely heavily on the professional advice of counsel when they decide whether to accept or reject offers of settlement, and we insist that the lawyers of our state advise clients with respect to settlements with the same skill, knowledge, and diligence with which they pursue all other legal tasks. [Ziegelheim, supra, 128 N.J. at 263.]

However, the Court cautioned that it was not opening "the door to malpractice suits by any and every dissatisfied party to a settlement." Id. at 267.

Many such claims could be averted if settlements were explained as a matter of record in open court in proceedings reflecting the understanding and assent of the parties. Further, plaintiffs must allege particular facts in support of their claims of attorney incompetence and may not litigate complaints containing mere generalized assertions of malpractice. We are mindful that attorneys cannot be held liable simply because they are not successful in persuading an opposing party to accept certain terms. Similarly, we acknowledge that attorneys who pursue reasonable strategies in handling their cases and who render reasonable advice to their clients cannot be held liable for the failure of their strategies or for any unprofitable outcomes that result because their clients took their advice. The law demands that attorneys handle their cases with knowledge, skill, and diligence, but it does not demand that they be perfect or infallible, and it does not demand that they always secure optimum outcomes for their clients. [Ibid.]

In Puder, supra, 183 N.J. at 432, Mrs. Buechel first accepted and then sought to reject a property settlement agreement in her divorce case. While the matrimonial judge was still in the process of deciding whether to enforce the settlement against her, and after Mrs. Buechel had filed a malpractice claim against the attorney who had negotiated the settlement, a second settlement, negotiated by Mrs. Buechel's new attorney, was entered into by the parties and placed on the record by the matrimonial judge. The second settlement was "substantially similar" to the first one. Id. at 433. Mrs. Buechel was placed under oath and questioned extensively by the judge and counsel about her understanding of and agreement to the new settlement proposal. The matrimonial judge then determined that the second settlement had been entered into knowingly and voluntarily. Id. at 433-35.

Mrs. Buechel's former attorney subsequently moved to dismiss the malpractice claim, arguing that Mrs. Buechel had waived her right to pursue the malpractice action by settling the matrimonial action. The motion judge granted the motion, relying in part on a certification, filed in connection with her motion to stay the malpractice action, in which Mrs. Buechel stated that the malpractice action would be "moot" if she prevailed in the matrimonial action. Id. at 435. We reversed, Puder v. Buechel, 362 N.J. Super. 479 (App. Div. 2003), but were in turn reversed by the Supreme Court.

The basis for the Supreme Court's reversal was its conclusion that "fairness and the public policy favoring settlements dictate that Mrs. Buechel is bound by her representation to the [matrimonial] court that the divorce settlement agreement was 'acceptable' and 'fair'" because those statements clearly reflected her "satisfaction with the resolution of her divorce, and, therefore, preclude her malpractice claim against her former counsel." Puder, supra, 183 N.J. at 437.

The Court rejected Mrs. Buechel's arguments that she reasonably relied on her belief that the matrimonial judge, who was still in the process of adjudicating the enforceability of the first settlement, would hold her to it and that her acceptance was conditioned on the continuation of her malpractice claim. As to the former, the Court noted that there was no "litigation catastrophe" that would have "required her to accept a lesser settlement and pursue the perceived difference in future litigation." Id. at 440 (citing Spaulding v. Hussain, 229 N.J. Super. 430, 444 (App. Div. 2003)). The Court also dismissed Mrs. Buechel's purported belief that the trial court would hold her to the first settlement, which she described as "a feeling" or "judgment call," as being "self-serving" and unsupported in the record. Id. at 441. As to the purported conditioning of the settlement on her ability to pursue the malpractice claim, the Court determined that such a condition was not binding on the courts. Ibid.*fn3

In its opinion in Puder, however, the Court made it clear that the conclusion reached there "does not conflict with Ziegelheim." Id. at 442. The Court explained its apparent deviation from Ziegelheim as follows:

Our holding in Ziegelheim is inapplicable to this appeal because there are profound distinctions, both factual and legal, between the two cases. Here, unlike in Ziegelheim, Mrs. Buechel's claim against Puder was not her only remedy to the alleged malpractice. Mrs. Buechel made a calculated decision to accept the second settlement--one negotiated by a lawyer other than Puder--before the trial court could decide whether the first agreement was enforceable.

As evidenced by its statements on the record, the court could have found that the first settlement was invalid or unenforceable, alleviating the need to sue Puder for malpractice. The burden of Mrs. Buechel's failed legal strategy rests with her, not Puder. Furthermore, unlike the plaintiff in Ziegelheim, Mrs. Buechel entered into the second settlement admittedly aware of the discovery deficiencies leading up to the first settlement. Nevertheless, she accepted a second settlement substantially similar to the allegedly inadequate settlement she claimed to be remedying. As the [New Jersey State Bar Association] argues, "a client should not be permitted to settle a case for less than it is worth . . . and then seek to recoup the difference in a malpractice action against [the] attorney." [Idid.]

With that background, we turn to the issue of whether the present case, in which there was no "litigation catastrophe," is closer to Ziegelheim or Puder. As the language just quoted from Puder makes clear, Mrs. Buechel was aware of the alleged deficiencies in her prior attorney's representation when she settled the underlying action, whereas Mrs. Ziegelheim was not, having only discovered them after the fact. In this case, although Guido was aware that he was giving up certain rights inherent in majority ownership,*fn4 he specifically contends that he was not aware of the effect the restrictions on the sale of stock and other provisions of the voting agreement would have on the value of his investment at the time he agreed to the settlement of the General Equity action. He alleges that the defendants were negligent in failing to advise him in that regard. To that extent, the present case is more like Ziegelheim, at least with respect to the matters not clear from the terms of the settlement agreement.

Unlike the malpractice claimants in both Ziegelheim and Puder, Guido did not seek to repudiate the settlement in the underlying action. The question becomes whether such an effort is a condition precedent to the filing of a malpractice action, as defendants argue. We conclude that it is not. Certainly, there is no such requirement specifically articulated in Puder.

In Puder, the underlying action had not, in fact, been concluded when Mrs. Buechel decided to repudiate the initial settlement. There had been an oral agreement, which was not placed on the record. While counsel were working out the remaining details and drafting the written agreement, Mrs. Buechel was advised against the settlement by another attorney and she subsequently took the position that she would not abide by the terms agreed upon orally. Dr. Buechel then moved to enforce the oral agreement. The Supreme Court precluded Mrs. Buechel's malpractice claim because, while her opposition to her former husband's effort to enforce the settlement was still pending, she accepted a similar settlement negotiated by her new attorney, stating under oath that it was fair.

In contrast, the underlying litigations in Ziegelheim and in the case now before us had ended prior to filing of any malpractice claim. Although Mrs. Ziegelheim did seek, approximately a year after the settlement, to set it aside, her application was, not surprisingly, denied because she had accepted the settlement on the record as being fair, a result that we affirmed.*fn5

We see no basis in the record before us to believe that the General Equity judge would, after almost two years, have set aside the settlement of the Guidos' General Equity action, particularly given the extensive settlement negotiations and mediation that had preceded it and the fact that the judge had already enforced its terms when the parties had difficulties agreeing on the written settlement agreement. See Kaur v. Assured Lending Corp., 405 N.J. Super. 468, 474-75 (App. Div. 2009) (noting the requirement that there be clear and convincing evidence of "coercion, deception, fraud, undue pressure, [] unseemly conduct," or lack of competence of a party to voluntarily consent for a settlement agreement to be set aside).

Under the circumstances of this case, we conclude that plaintiffs had no reasonable expectation of success on a motion to set aside the General Equity settlement, and consequently had no obligation to make such an application. See Prospect Rehab. Servs. v. Squitieri, 392 N.J. Super. 157, 163-64 (App. Div. 2007), certif. denied, 192 N.J. 293 (2007); Covino v. Peck, 233 N.J. Super. 612, 619 (App. Div. 1989).

It appears that the parties and the motion judge viewed the governing law as requiring that all aspects of the malpractice claim in the Guidos' complaint be treated the same. We do not. Reading Ziegelheim and Puder together, we understand the Supreme Court to permit malpractice claims following a settlement when there are "particular facts in support of their claims of attorney incompetence," Ziegelheim, supra, 128 N.J. at 263, but to preclude malpractice claims when a client merely seeks to "settle a case for less than it is worth . . . and then seek[s] to recoup the difference in a malpractice action against [the] attorney." Puder, supra, 183 N.J. at 442. In Ziegelheim, the allegations that the prior attorney negligently failed to uncover the value of the marital estate, gave incorrect advice with respect to the client concerning the parameters of an equitable distribution award, and failed properly to document the terms of the oral agreement were found to be sufficient to support a claim of attorney incompetence. In Puder, the acceptance of a settlement negotiated by new counsel, similar to one negotiated by prior counsel that had rejected, with knowledge of the deficiencies of prior counsel's representation were not.

Expressed another way, we conclude that a malpractice action cannot simply serve as a remedy for a litigant who has changed his or her mind about the merits of a settlement previously accepted, i.e., someone now suffering from the litigation equivalent of "buyer's remorse." Instead, there must be one or more specific allegations of malpractice that negate the element of prior acceptance of the underlying settlement. In the present case, we find that the allegation that the defendants failed to explain the long-term value and marketability implications of the stock restrictions on the sale of the stock to be sufficient for the matter to proceed.*fn6

Whether the Guidos' other allegations, such as those related to Guido's ability to amend the by-laws or elect members of the board, qualify under the Ziegelheim-Puder analysis must be determined by the trial court on a fuller record.


Based upon our review of the record and the applicable law, we conclude that the motion judge properly denied summary judgment as sought by the defendants in the trial court. Consequently, we affirm the motion judge's grant of the motion for reconsideration and his denial of summary judgment. The matter shall continue in the trial court in a manner consistent with this opinion.


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