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Samuel F. Kafrissen, et al. v. Britta Kotlikoff

January 25, 2011

SAMUEL F. KAFRISSEN, ET AL.
v.
BRITTA KOTLIKOFF, INDIVIDUALLY AND
AS THE EXECUTRIX OF THE ESTATE OF LOUIS J. KOTLIKOFF



The opinion of the court was delivered by: Thomas J. Rueter Chief United States Magistrate Judge

MEMORANDUM OF DECISION

Presently before the court is plaintiffs' Motion In Limine To Preclude Defendant's Expert Report and Expert Testimony (Doc. No. 69) (the "Motion"), defendants' brief in opposition thereto (Doc. Nos. 76 and 78 (Exhibits)) ("Def.'s Br."), plaintiffs' supplemental memorandum in support of the Motion (Doc. No. 79) ("Pls.' Supp. Mem."), and plaintiffs' further supplemental memorandum in support of the Motion (Doc. No. 113) ("Pls.' Second Supp. Mem."). After a hearing on January 21, 2011, and for the reasons explained below, the Motion is DENIED.

This court bifurcated the litigation in this action by submitting plaintiffs' complaint to the jury for trial. The jury returned a verdict for defendants. The counterclaim and third party complaint will be submitted for a jury trial commencing on January 27, 2011. The issues now before the court involve the counterclaim and third party complaint. For ease and to avoid confusion, counterclaim and third party plaintiffs, Britta Kotlikoff, individually and as Executrix of the Estate of Louis J. Kotlikoff, defendants in the matter already adjudicated, will be referred to herein as "plaintiffs." Counterclaim and third party defendants, plaintiffs in the matter already adjudicated, and Samuel F. Kafrissen, P.C., will be referred to herein as "defendants."

I. FACTS

This case concerns a dispute over an Agreement dated October 4, 2004 ("the Agreement") to form a New Jersey law firm, which became known as Kotlikoff Kafrissen, LLC (the "K&K Law Firm"). The parties to the Agreement were Samuel F. Kafrissen, Esquire and Carole F. Kafrissen, Esquire ("the Kafrissens") on the one part, and Louis J. Kotlikoff ("Mr. Kotlikoff"), who died on January 14, 2005, three months after the formation of the law firm. Plaintiffs filed a Counterclaim in this action against defendants alleging that pursuant to the Agreement, defendants owe her late husband a substantial sum of money. Furthermore, plaintiffs allege that defendants misappropriated or converted monies belonging to the KK Law Firm and directed them to Samuel F. Kafrissen's law firm, known as Samuel F. Kafrissen, P.C., which has been named as a third-party defendant by Mrs. Kotlikoff.

The Counterclaim alleges that under the Agreement to create the law firm, Louis Kotlikoff contributed approximately 228 cases that had previously been worked on by Mr. Kotlikoff while he practiced at his old firm. According to the Agreement, Mr. Kotlikoff was to receive a of the net proceeds of fees generated by these cases and the Kafrissens would receive b. More specifically, the Agreement provided the following:

In the event of the disability, retirement or death of a partner, the partnership agrees to continue the work on the then existing list of cases on the above formula. (a of the net profits to Kotlikoff subject to payment of the a expenses/costs by Kotlikoff and b of the net profits to Kafrissen subject to the b payment of expenses/costs.) (Ex.DCC-1.)

The Counterclaim further states that prior to the formation of the new law firm, Mr. Kotlikoff "had advanced moneys [sic] as costs on case files" that were subject to the a b division of fees, and these advanced monies were in excess of $150,000 (Countercl. ¶¶ 12-13). Mrs. Kotlikoff alleges that defendants "have refused to pay over the advanced costs moneys [sic] to the Estate." Id. ¶ 17.

The Counterclaim and Third-Party Complaint alleges that during the years 2005 through 2009, Samuel Kafrissen "improperly and wrongly" diverted $300,000 of the funds belonging to the K&K Law Firm to his own law firm Samuel F. Kafrissen, P.C., and/or to himself or to Carole Kafrissen (Countercl. ¶¶ 21-24; Third Party Compl., First Count ¶ 3). In Paragraph 35 of the Counterclaim, Mrs. Kotlikoff claims that the Kafrissens failed to pay rental payments for the building from where the law firm operated, 70 Tanner Street, Haddonfield, New Jersey, which was owned by Mr. Kotlikoff and his Estate. Further, Mrs. Kotlikoff alleges a conspiracy among defendants and Samuel F. Kafrissen, P.C. and alleges that they "committed evil minded acts, and participated in intentional wrongdoing all of which constitutes malice and subjects the counterclaim/defendants to liability for punitive damages." (Countercl. ¶¶ 50-51.)

II. DISCUSSION

At the trial of this action, plaintiffs plan to call as an expert witness, George F. Beppel, CPA. Defendants do not dispute the qualifications of Mr. Beppel. Mr. Beppel will testify to support the damages claimed in the Counterclaim. He offers four opinions.

First, Louis Kotlikoff's share of firm profits from 2005 to 2008 related to the then existing list of cases upon his death was $233,413.00;

Second, that Mrs. Kotlikoff is owed $27,250.72 from monies received by the K&K Law Firm from Mr. Kotlikoff's old law firm in 2005. The K&K Law Firm recorded this amount as a liability on its books since January of 2005 through December 31, 2008;

Third, that under the Agreement, Mrs. Kotlikoff is entitled to recover the costs advanced by Louis J. Kotlikoff on the cases assumed by the K&K Law Firm, which total $251,771.50; and Fourth, that unpaid rent for the use of 70 Tanner Street, ...


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