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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

A. CAL ROSSI, 

 Plaintiff, 

v. 

FRANK WOHL, Individually, and 

LANKLER, SEIFFERT & WOHL, 

LLP, 

 Defendants. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

CIVIL ACTION NO: 

3:06-CV-0292M 

MEMORANDUM OPINION AND ORDER

 Before the Court is the Motion for Summary Judgment [Docket Entry #77], filed by 

Defendants Frank Wohl (“Wohl”) and Lankler, Seiffert & Wohl, L.L.P. (“LSW”). Having 

considered the parties’ extensive briefing, supporting evidence, and the applicable law, the Court 

finds that the Motion should be GRANTED. 

FACTUAL BACKGROUND 

 A. Cal Rossi (“Plaintiff” or “Rossi”) is the Vice President of Basic Capital Management, 

Inc. (“BCM”), a private advisor to real estate investment trusts. He was indicted by a grand jury 

in the Southern District of New York in June of 2000. The indictment alleged that Rossi 

conspired with others to sell shares of American Realty Trust (“ART”), a real estate investment 

trust, to union pension funds by bribing union officials, thereby committing securities fraud, wire 

fraud, and violations of the RICO statute. 

 Shortly after his indictment, Rossi hired Defendants to represent him in the criminal case. 

Rossi and Defendants entered into a retainer agreement. ART and BCM, jointly and severally, 

agreed to pay the fees and expenses for Defendants’ representation of Rossi. The retainer 

 

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agreement provided that if ART and BCM became unwilling or unable to pay such fees and 

expenses, Rossi would pay them. 

As part of their representation of Rossi, Defendants retained several experts and 

consultants, including FTI Consulting, Inc. (“FTI”); Decisions Strategies, LLC; Decisionquest, 

Inc.; Lexecon, Inc.; Cornerstone Research, Inc.; William Purcell; Steve Thel; and Donna 

Hitscherich. The Complaint alleges that these entities were required to send invoices for their 

services not to Rossi, but to the Defendants. The Defendants would then send the invoices to 

Rossi and/or BCM. However, the Complaint alleges that Defendants “did not forward all of the 

invoices from the individuals/entities to Rossi, and, to the extent Defendants did forward such 

invoices and the LSW invoices to Rossi, Defendants never informed Rossi that under New 

York’s ‘account stated doctrine,’ Rossi needed to object to the invoices,” and also that 

Defendants failed to object to the invoices. 

In February 2002, Rossi was acquitted of all charges. After February 2002, neither 

Defendants nor the experts and consultants they retained were paid for invoices they submitted. 

On December 19, 2002, the following entities filed suit against Rossi in the Southern 

District of New York for services provided for Rossi in the criminal action:1 LSW; Decisions 

Strategies, LLC; Decisionquest, Inc.; Lexecon, Inc.; Cornerstone Research, Inc.; William 

Purcell; Steve Thel; and Donna Hitscherich (the “Lankler Suit”). LSW represented itself and all 

of the other plaintiffs in the Lankler Suit. 

 

1

 The plaintiffs sued for breach of contract, and for relief under the “account stated” doctrine. The Complaint in this 

case states that: 

An account stated refers to a promise by a debtor to pay a stated sum of money which the parties 

have agreed upon as the amount due. According to New York law, it is incumbent upon a party in 

receipt of an account to examine the statement and make all necessary objections because an 

agreement to pay an indebtedness may be implied if a party receiving a statement of account keeps 

it without objecting to it within a reasonable amount of time, unless fraud, mistake, or other 

equitable considerations are shown. 

Second Amended Original Complaint ¶17 (emphasis added). 

 

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On June 3, 2003, FTI, also represented by LSW, filed a separate suit in the Southern 

District of New York against Rossi for services it provided in the criminal case against Rossi (the 

“FTI Suit”). In both the Lankler Suit and the FTI Suit, summary judgment for the plaintiffs was 

granted by the trial court on the account stated claims. The Second Circuit Court of Appeals 

affirmed.2

 

 In this case, Rossi seeks to recover for breach of fiduciary duty and fraud, claiming he 

was damaged by: (1) Defendants’ entering into agreements with the experts and consultants on 

his behalf; (2) Defendants’ alleged failure to forward or send the experts’ and consultants’ bills 

to Rossi for approval; (3) Defendants’ failure to object to the experts’ and consultants’ bills; and 

(4) Defendants’ representation of the experts and consultants in the Lankler Suit and the FTI 

Suit. Rossi seeks to recover “substantial economic damages” that were proximately caused by 

Defendants’ acts, including “disgorgement of the fees paid to Defendants following Defendants’ 

breach of fiduciary duty.”3

 It is under these facts that the Court must now evaluate Defendants’ 

Motion for Summary Judgment. 

STANDARD OF REVIEW 

I. Summary Judgment Standard 

Summary judgment is warranted when the facts and law, as reflected in the pleadings, 

affidavits, and other summary judgment evidence, show that no reasonable trier of fact could 

find for the nonmoving party as to any material fact.4 “The moving party bears the initial burden 

of identifying those portions of the pleadings and discovery in the record that it believes 

demonstrate the absence of a genuine issue of material fact, but is not required to negate 

 

2

 The Court will refer to these prior adjudications as the “prior suits” or the “New York actions.” 3

 Rossi also seeks to recover attorneys’ fees and punitive damages. 

4 See FED. R. CIV. P. 56; Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323–25 (1986). 

 

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elements of the nonmoving party’s case.”5 Once the movant carries its initial burden, the burden 

shifts to the nonmovant to show that summary judgment is inappropriate.6

 

 The nonmovant is required to go beyond the pleadings and designate specific facts that 

prove the existence of a genuine issue of material fact.7 In determining whether genuine issues 

of material fact exist, “factual controversies are construed in the light most favorable to the 

nonmovant, but only if both parties have introduced evidence showing that a controversy 

exists.”8 “If the record, taken as a whole, could not lead a rational trier of fact to find for the 

non-moving party, there is no genuine issue for trial.”9 

 Defendants assert that Plaintiff’s claims are barred as a matter of law on three different 

grounds: (1) Rule 13(a) and the requirement that compulsory counterclaims be asserted, if at all, 

in the original suit; (2) res judicata; and (3) collateral estoppel. 

A. Rule 13(a) 

 Defendants argue that each of Rossi’s claims is a “compulsory counterclaim” that should 

have been brought in the New York actions, and that as a result Rossi is barred from raising any 

of them in this suit. “It is a general rule in state and federal courts that a plaintiff must assert in 

one action all of his alleged claims arising from a single occurrence or transaction and that a 

defendant must assert in his answer all of his counterclaims arising therefrom.”10 This general 

rule arises from Federal Rule of Civil Procedure 13(a), which states: 

A pleading shall state as a counterclaim any claim which at the time of serving 

the pleading the pleader has against any opposing party, if it arises out of the 

transaction or occurrence that is the subject matter of the opposing party’s claim

and does not require for its adjudication the presence of third parties of whom the 

 

5 Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322–25). 6 Fields v. City of S. Houston, 922 F.2d 1183, 1187 (5th Cir. 1991). 7 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 8 Lynch Props., 140 F.3d at 625; see also Keelan v. Majesco Software, Inc., 407 F.3d 332, 338 (5th Cir. 2005). 9 Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991). 10 Shelley v. The Maccabees, 191 F.Supp. 742, 745 (E.D.N.Y. 1961) (emphasis added). 

 

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court cannot acquire jurisdiction...[except that] The pleader need not state the 

claim if (A) when the action was commenced, the claim was the subject of 

another pending action...11

In short, Rule 13(a) makes it mandatory for a party to state any claim that he may have against an 

opposing party if the claim arises out of the same “transaction or occurrence” as the opposing 

party’s claim. Failure to comply with this mandate bars the party from bringing the claim at a 

later time.12 

When a party seeks dismissal of claims under Rule 13, the reviewing court must compare 

the claims previously asserted with the current claims, and determine if the claims arise out of 

the same transaction or occurrence, or “series of occurrences with a logical connection.”13 If so, 

then the current claims must be dismissed.14 The main purpose of the rule is to prevent 

“fragmentation of litigation” and “multiplicity of suits,” and “to achieve resolution in a single 

suit of all disputes arising out of common matters.”15 

 The Fifth Circuit has formulated a test for determining whether a counterclaim is 

compulsory—an answer in the affirmative to any of the following questions indicates that the 

counterclaim is compulsory, and would therefore be barred from assertion in any subsequent 

suit: 

(1) whether the issues of fact and law raised by the claim and counterclaim largely 

are the same; 

 

11 FED. R. CIV. P. 13(a) (emphasis added). 12 Baker v. Gold Seal Liquors, Inc., 417 U.S. 467, 469 n. 1 (1974). 13 Baker, 417 U.S. at 469 n. 1 (noting that “[u]nder Rule 13(a)’s predecessor this Court held that ‘transaction’ is a 

word of flexible meaning which may comprehend a series of occurrences if they have [a] logical connection, and 

this is the rule generally followed by the lower courts in construing Rule 13(a)” (citations omitted)). The Court 

notes that the application of Rule 13 is procedural, and no choice-of-law analysis is required for this Court to apply 

the federal procedural rules. See, e.g., Pennzenergy Co. v. Wells, No. 01-30256, 2001 WL 1751405 at *6 (5th Cir. 

Dec. 17, 2001) (unpublished opinion) (“The district court was not faced with a choice of law issue when it dismissed 

Ivy’s suit, because the suit was dismissed on federal procedural grounds when the district court determined that the 

suit comprised only claims that should have been pleaded as compulsory counterclaims under Federal Rule of Civil 

Procedure 13(a)”). 

14 Papadopoulos v. Douglas, No. 00-20176, 2001 WL 877608 at *3 (5th Cir. July 18, 2001) (unpublished opinion). 15 Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 627 n.14 (5th Cir. 1996) (citing Seattle Totems Hockey Club, Inc. v. 

Nat’l Hockey League, 652 F.2d 852, 854 (9th Cir. 1981) and S. Constr. Co. v. Pickard, 371 U.S. 57, 60 (1962)). 

 

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(2) whether res judicata would bar a subsequent suit on defendant’s claim absent 

the compulsory counterclaim rule; 

(3) whether substantially the same evidence will support or refute plaintiff’s claim 

as well as the defendant’s counterclaim; and 

(4) whether there is any logical relationship between the claim and the 

counterclaim.16

As to the fourth question, the Fifth Circuit explained: 

[A] claim has a logical relationship to the original claim if it arises out of the same 

aggregate of operative facts as the original claim in two senses: (1) that the same 

aggregate of operative facts serves as the basis of both claims; or (2) that the 

aggregate core of facts upon which the original claim rests activates additional 

legal rights in a party defendant that would otherwise remain dormant.17

Finally, there are four exceptions to the mandatory assertion of counterclaims: (a) claims 

that have not matured at the time of pleading; (b) claims whose adjudication requires the 

presence of third parties not subject to the jurisdiction of the court; (c) claims that are the subject 

of a pending suit at the time the main action was filed; and (d) claims where the main action is 

proceeding without personal jurisdiction over the defendant, i.e., quasi in rem jurisdiction.18 

Importantly, the first exception only applies to maturity of causes of action at the time of 

pleading, not to the maturity of damages at the time of pleading.19 However, even claims not 

typically considered “mature” at the time of pleading are still permitted, in order to promote 

efficiency and economy. For example, a counterclaim for contribution is permissible if it arises 

 

16 Papadopoulos, 2001 WL 877608 at *2 (citing Underwriters At Interest on Cover Note JHB92M10582079 v. 

Nautronix, Ltd., 79 F.3d 480, 483 n. 2 (5th Cir. 1996) and Park Club, Inc. v. Resolution Trust Corp., 967 F.2d 1053, 

1058 (5th Cir.1992)). The Papadopoulos court noted that the Fifth Circuit’s analysis focuses on “whether the claim 

and counterclaim share an ‘aggregate of operative facts,’” and relies on the “similarity of facts and legal issues” 

prong. 

17 Revere Copper & Brass Inc. v. Aetna Cas. & Sur. Co., 426 F.2d 709, 715 (5th Cir. 1970). 18 FED. R. CIV. PROC. 13(a)(1)-(2); N.Y. Life Ins. Co. v. Deshotel, 142 F.3d 873, 878 (5th Cir. 1998). 

19 N.Y. Life Ins. Co., 142 F.3d at 880 (“Any actual and appreciable injury flowing from the defendant’s negligence or 

other wrongful act establishes a cause of action upon which the plaintiff may sue, even though he may thereafter 

come to a more precise realization of the damages he has already incurred or incur further damage as a result of the 

tortious act.”); Mellon Bank, N.A. v. United Bank Corp. of N.Y., Nos. 91-CV-1066, 94-CV-423, 1994 WL 722003 at 

*4 (N.D.N.Y. 1994) (unpublished opinion) (“A close examination of these claims, however, reveals that it is not 

plaintiffs’ causes of action that were immature at the time that they filed their answer, but the extent of their 

damages... plaintiffs cannot rely upon the ‘immature claim’ exception to Rule 13(a) to escape the fact that they 

should have pled these causes of action as compulsory counterclaims”). 

 

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from the same occurrences in the suit, even though a cause of action for contribution does not 

technically mature until the party against whom judgment was rendered overpays for its share of 

liability.20

B. Res Judicata 

 Defendants also argue that res judicata, or “claim preclusion,” bars continuation of the 

present case because Plaintiff merely “seeks to relitigate the same dispute that he has already 

litigated to judgment against the same parties in another Federal court.”21 This Court must look 

to the law of the state where the original judgment was rendered to determine its preclusive 

effect.22 The prior suits were adjudicated in the Southern District of New York, so this Court 

applies New York law to the res judicata analysis. 

 Claim preclusion under New York law requires: (1) a final judgment; (2) between the 

same parties; (3) for the same cause of action.23 “Where an identity of the causes of action exists 

in both suits, the judgment in the former action is conclusive in the latter, not only as to any 

matters actually litigated therein, but also as to any that might have been litigated, so that a 

different judgment in the second would not destroy or impair rights or interests established by 

the first.”24 This preclusive effect also applies to defenses that could have been litigated in the 

 

20 Oneida Indian Nation of N.Y. v. New York, 194 F. Supp. 2d 104, 143 n.47 (N.D.N.Y. 2002) (relying on Lynch v. 

Sperry Rand Corp., 62 F.R.D. 78, 90 (S.D.N.Y. 1973), where the court reasoned that “[t]he Federal Rules of Civil 

Procedure are designed to encourage the litigation of all the claims arising out of the same occurrences in the same 

lawsuit”). 

21 Defendants’ Motion for Complete Summary Judgment at 18. 

22 Semtek Intern. Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508 (2001); Am. Home Assur. Co. v. Chevron, USA, 

Inc., 400 F.3d 265, 272 n.20 (5th Cir. 2005) (In assessing whether a claim for indemnification was barred by res 

judicata, the Fifth Circuit stated: “Prior to the Supreme Court’s decision in Semtek Int’l Inc. v. Lockheed Martin 

Corp., this circuit applied federal law to determine the preclusive effect of a prior judgment by a district court sitting 

in diversity. In Semtek, however, the Supreme Court held that while federal law ultimately determines whether a 

federal judgment precludes a subsequent action or argument, when the basis of the original court’s jurisdiction is 

diversity of citizenship, federal courts should apply the law of the forum state unless the state law is incompatible 

with federal interests.” (citations omitted) (emphasis added)). 23 Hyman v. Hillelson, 434 N.Y.S.2d 742, 744 (N.Y. App. Div. 1980). 24 Hyman, 434 N.Y.S.2d at 744 (emphasis added). 

 

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original action.25

The district court in Yeiser v. GMAC Mortgage Corporation recently explained the test 

for identity of claims, stating: 

New York takes a transactional approach to res judicata: “once a claim is brought 

to a final conclusion, all other claims arising out of the same transaction or series 

of transactions are barred, even if based upon different theories or if seeking a 

different remedy.” In determining what constitutes the same transaction, the court 

should look to: how the facts are related in time, space, origin or motivation; 

whether they form a convenient trial unit; and whether treating them as a unit 

conforms to the parties’ expectations. Even if there are variations in the facts 

alleged or different relief is sought, if the actions are grounded on the same 

gravamen of the wrong [sic] res judicata applies.

26

Accordingly, under New York’s transactional approach to res judicata, “once a claim is brought 

to a final conclusion, all other claims arising out of the same transaction or series of transactions 

are barred, even if based upon different theories or if seeking a different remedy.”27 

With respect to the requirement for identity of parties, a prior judgment is conclusive 

between the parties against whom the judgment is rendered.28 If the second suit involves the 

same parties as the first suit, then this requirement will be met.29 The Supreme Court noted in 

Baker that in no event may preclusion be invoked against a party who did not participate in the 

prior adjudication.30 As a result, a plaintiff could avoid summary judgment based on claim 

preclusion if it demonstrated it was not a party to the prior litigation. 

 

25 Yeiser v. GMAC Mortgage Corp., 535 F. Supp. 2d 413, 421 (S.D.N.Y. 2008) (applying New York state law). 26 Id. at 422 (citations omitted) (emphasis added); Hyman, 434 N.Y.S.2d at 745 (citations omitted) (emphasis added) 

(“A subsequent cause of action does not differ from the first merely because it denotes one of the several separately 

stated claims arising out of the same foundation facts; or relates to different legal theories of recovery; or demands 

different legal relief. Rather, it is the gravamen of the wrong upon which the action is grounded that determines the 

identity of the causes.”). 27 QFI, Inc. v. Shirley, 874 N.Y.S.2d 238, 239 (N.Y. App. Div. 2009) (citing O'Brien v. City of Syracuse, 54 N.Y.2d 

353, 357 (N.Y. 1981)). 

28 Restatement (Second) of Judgments § 17 (1980). 

29 Baker by Thomas v. Gen. Motors Corp., 522 U.S. 222, 238 (1998) (citing Parklane Hosiery Co. v. Shore, 439 

U.S. 322, 326, n. 5 (1979), where the Supreme Court explained that “[u]nder the doctrine of res judicata, a judgment 

on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of 

action.” (emphasis added)). 

30 Id. at 238 n.11. 

 

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C. Collateral Estoppel 

 This Court also applies New York law on the issue of collateral estoppel, or “issue 

preclusion.”31 This doctrine “precludes a party from relitigating in a subsequent action or 

proceeding an issue clearly raised in a prior action or proceeding and decided against that party 

or those in privity, whether or not the tribunals or causes of action are the same.”32 For the issue 

to be precluded, a court must find that an identical issue was necessarily and actually decided in 

a prior action, and also that the issue is decisive in the present action.33 There must also have 

been a “full and fair opportunity” to challenge the previous decision now asserted as 

controlling.34 

ANALYSIS 

I. Rule 13(a) 

To prevail on summary judgment under Rule 13(a), Defendants must demonstrate that no 

material question of fact exists as to whether the claims now asserted are barred as compulsory 

counterclaims in the prior actions. Rule 13(a) requires this Court to look to all claims asserted in 

the previous lawsuits, rather than just those claims actually adjudicated on the merits. Claims for 

breach of contract, account stated, and unjust enrichment were brought in the New York suits, 

based on Rossi’s failure to pay certain fees and expenses associated with his defense to the 

criminal charges. Defendants argue that “[t]he factual and legal issues raised by these claims 

encompassed any factual and legal issues relevant to whether Rossi was liable for LSW’s and the 

Experts’ bills,” and that “the New York claims put at issue all facts relating to Rossi’s obligation 

to pay the bills, including issues of whether breach of duty or fraud by LSW (as Rossi alleges in 

 

31 Yeiser, 535 F. Supp. 2d at 424. 32 Id. (emphasis added) (citing Ryan v. N.Y. Tel. Co., 467 N.E.2d 487 (N.Y. 1984)). 33 Id. 34 Id. (citing Buechel v. Bain, 766 N.E.2d 914, 919 (N.Y. 2001)). 

 

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this Court) might have relieved Rossi of liability or created a counterclaim or cross-claim against 

LSW.”35

Rossi argues that Rule 13(a) does not apply because “Plaintiff’s current claims against 

Defendants are third-party contribution-type claims which, although arguably arising out of the 

same ‘transaction’ involved in each of the Experts/Vendors’ suit, were not yet ‘matured’ at the 

time Plaintiff was served, were contingent upon the outcome of the litigation vis a vis the 

Experts/Vendors and thus wholly outside the purview of Rule 13(a) as a ‘compulsory 

counterclaim,’ as a matter of law.”36 Rossi also argues that his claims against Defendant LSW 

and Defendant Wohl cannot be considered in the context of past claims by the Experts and 

Vendors against him because each of these entities’ claims were “severable” in the New York 

suit, and thus must be individually considered now.37

The Court finds that the current claims fall within the definition of a compulsory 

counterclaim under Rule 13(a), and that Rossi is barred from bringing them here. Looking to the 

test for compulsory counterclaims in the Fifth Circuit, the Court finds that each of the four 

questions is to be answered in the affirmative in this case, and thus the claims brought by Rossi 

are barred.38 

The first question is whether the issues of fact and law raised by the claim and 

counterclaim are largely the same. The original Complaint from the Lankler suit alleged the 

following: 

 

35 Defendants’ Brief in Support of Motion for Summary Judgment at 25-26. 

36 Plaintiff’s Response to Defendants’ Motion for Complete Summary Judgment at 12. 37 The Court addresses these arguments in greater detail below. 

38The four questions are: (1) whether the issues of fact and law raised by the claim and counterclaim largely 

are the same; (2) whether res judicata would bar a subsequent suit on defendant’s claim absent the 

compulsory counterclaim rule; (3) whether substantially the same evidence will support or refute plaintiff’s 

claim as well as the defendant’s counterclaim; and (4) whether there is any logical relationship between the 

claim and the counterclaim. Papadopoulos, 2001 WL 877608 at *3; Underwriters At Interest on Cover 

Note JHB92M10582079, 79 F.3d at 483 n. 2. Only one affirmative answer is required to satisfy Rule 13(a). 

 

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• Generally, that “[s]ince their acquittal, Defendants [Rossi] have failed and refused 

to make any payments due Plaintiffs and BCM has converted funds rightfully due 

Plaintiffs.”39 

• Count I alleges breach of contract against Rossi and BCM for the failure to pay 

LSW for charges incurred on Rossi’s behalf as required by the retainer agreement 

between Rossi and LSW. Count II relies on the account stated doctrine, and lists 

specific dates on which LSW rendered to Rossi and BCM “full and true accounts 

of the services performed and moneys due plaintiff LSW.” This count further 

alleges that the “LSW accounts were delivered to, accepted, and retained by 

defendants Rossi and BCM without objection,” and then reiterates the sum total 

due to LSW from Rossi. 

• Count V alleges breach of contract for the defendants’ failure to pay for services 

provided by plaintiff DSFX, which conducted investigative work on Rossi’s 

behalf. Count VII asserts an account stated claim on the invoices for these 

services, and alleges that the “DSFX account... was delivered to, accepted, and 

retained by defendants Rossi and BCM without objection.” 

• Count XII alleges breach of contract for the defendants’ failure to pay for expert 

services provided by plaintiff DecisionQuest. Count XIII asserts an account 

stated claim on the invoices for these expert services, and states that the “plaintiff 

DecisionQuest accounts were delivered to, accepted, and retained by [d]efendants 

without objection.” 

• Count XVI alleges breach of contract for the defendants’ failure to pay for expert 

services rendered in connection with the defense of Rossi provided by plaintiff 

Lexecon. Count XVII brings an account stated claim on the invoices for these 

expert services, and states that “plaintiff Lexecon rendered to plaintiff LSW for 

the benefit of Defendants full and true accounts of the services performed and 

moneys due plaintiff Lexecon... The Lexecon accounts were delivered to, 

accepted, and retained by [d]efendants without objection.” 

• Count XX alleges breach of contract for the defendants’ failure to pay for expert 

services rendered by plaintiff Purcell. Count XXI asserts an account stated claim 

on the invoices for these expert services. 

• Count XXIV alleges breach of contract for the defendants’ failure to pay for 

expert services provided by plaintiff Thel. Count XXV asserts an account stated 

claim on the invoices for these expert services. 

• Count XXVIII alleges breach of contract for the defendants’ failure to pay for 

expert services rendered by plaintiff Hitscherich. Count XXIX asserts an account 

stated claim on the invoices for these expert services. 

• Count XXXII alleges an account stated claim by plaintiff Cornerstone for services 

rendered to LSW for the benefit of Rossi and the other defendants in the original 

case. 

The original Complaint from the FTI suit alleged the following: 

• Count I alleges breach of contract against Phillips for the failure to pay for 

 

39 Appendix to Defendants’ Brief (“App.”) at 14. 

 

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services rendered on Phillips’ and Rossi’s behalf in the criminal action. 

• Count II asserts an account stated claim against Rossi, BCM, and Phillips. It 

alleges that the FTI accounts were delivered to, accepted, and retained by 

defendants without objection, and that no part of the sum due has been disputed 

by defendants as being owed to FTI. 

• Count III alleges conversion against BCM, based on the account stated between 

FTI and the defendants. 

• Count IV alleges unjust enrichment against the defendants for the provision of 

expert analysis and opinions without compensation by the defendants. 

In sum, the questions of fact raised by the prior claims center around the formation of 

agreements to provide expert services for a fee in the criminal action, the delivery of resulting 

invoices for the services performed, acceptance of and failure to object to the invoices, retention 

of the invoices, and the failure to pay the invoices. The issues of law center around breaches of 

the agreements to pay, and on the existence of an account stated between each of the plaintiffs 

and Rossi. 

Rossi’s Complaint in this action asserts the following facts: 

• The experts/consultants were required to submit their invoices to Defendants 

LSW and Wohl, not Rossi, for payment because Rossi was not a party to any of 

the agreements; 

• Defendants did not forward all of the invoices from the experts/consultants to 

Rossi, and if forwarded, did not inform Rossi that he needed to object to these 

invoices to avoid account stated liability, and failed to object themselves; 

• Defendants agreed to represent the plaintiffs in the prior action knowing that the 

plaintiffs’ claims would prevail because they had not specifically objected to the 

bills the plaintiffs sent. 

Rossi’s Complaint in this action raises the following legal issues: 

• The actions and conduct of the Defendants constitute breach of fiduciary duty and 

fraud 

• Rossi is entitled to the disgorgement of fees paid to Defendants as a result of 

Defendants’ breach of fiduciary duty 

 The Court finds that the issues of fact and law raised in the New York actions and by 

Rossi’s claims all center around the agreements with, and invoices from, the experts and 

consultants retained in connection with Rossi’s criminal defense, and are largely the same. The 

 

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issues of who entered into the agreements, who received the invoices, and if anyone accepted 

and/or objected to the invoices and the legal consequences of that appear in both matters.40 Thus, 

the issues of fact and law are the same, and Rossi’s claims are now barred as compulsory 

counterclaims. 

The second question is whether even without Rule 13(a) res judicata would bar a 

subsequent suit. The Court finds that res judicata bars the instant suit. Under New York law, res 

judicata prevents assertion of claims after a final judgment has been rendered between the same 

parties, for the same claims. “Where an identity of the causes of action exists in both suits, the 

judgment in the former action is conclusive in the latter, not only as to any matters actually 

litigated therein, but also as to any that might have been litigated, so that a different judgment in 

the second would not destroy or impair rights or interests established by the first.”41 This 

preclusive effect also applies to defenses that could have been litigated in the original action.42

In this case, there was a final judgment, as the district court in New York granted 

summary judgment for the plaintiffs on their account stated claims.43 To prevail on an account 

stated claim, a plaintiff must provide prima facie proof that it rendered invoices to the defendant, 

that the defendant retained the invoices without objecting to them within a reasonable period of 

time, and that a sum certain remained unpaid.44 “The receipt and retention of an account without 

 

40 The Complaint alleges that Defendants “agreed to represent these individuals/entities [the experts] in the 

prosecution of the account stated claims against Rossi, knowing that the claims would prevail because the 

Defendants herein did not specifically object to the bills that these individuals/entities sent (after receiving them, 

while acting as Rossi’s counsel),” and that such an agreement constituted a breach of fiduciary duty or fraud. See

Complaint at ¶¶19, 23, and 27. This same issue arose in the prior suit, where Rossi moved to disqualify Defendants 

from representing the experts, and “argued that the entitlement to sue a former client for the purpose of collecting 

legal fees and costs did not extend to representation of experts and consultations.” See Affidavit of Frank H. Wohl 

in Opposition to Defendants’ Motion to Disqualify Counsel at ¶10, App. at 571. Thus, this issue was clearly present 

in the prior suits, and is now barred. 

41 Hyman, 434 N.Y.S.2d at 744 (emphasis added). 42 Yeiser, 535 F. Supp. 2d at 421. 43 The judgments were affirmed by the Second Circuit Court of Appeals. 44 Berkman Bottger & Rodd, LLP v. Moriarty, 871 N.Y.S.2d 135, 136 (N.Y. App. Div. 2009); Rona-Tech Corp. v. 

LeaRonal, Inc., 680 N.Y.S.2d 264, 264-65 (N.Y. App. Div. 1998). 

 

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objection within a reasonable period of time entitles a plaintiff to summary judgment on the 

account independent of the original obligation... [but] [t]here can be no account stated where no 

account was presented or where any dispute about the account is shown to have existed.”45 

Importantly, “the party receiving the account is bound to examine the statement and 

object to it, if objection there be. Silence is deemed acquiescence and warrants enforcement of 

the implied agreement to pay.”46 The rationale behind recovery under the account stated 

doctrine is that the parties have, by their conduct, “evidenced an agreement upon the balance of 

an indebtedness.”47 In its analysis, the court in Reisman, Peirez & Reisman, L.L.P. v. Gazzara

relied on the following statement by Judge Cardozo: 

There is no doubt that an account stated may sometimes result from the retention 

of accounts current without objection. But the result does not always follow. It 

varies with the circumstances that surround the submission of the statements and 

those circumstances include, of course the relation between the parties.48 

The court went on to explain that one of the “circumstances” to be considered is whether an 

objection has been made to the account within a reasonable time. However, any circumstances 

that call into question the existence or validity of such an agreement would be relevant to the 

adjudication of an account stated claim. Because an “account stated is an agreement between 

parties to an account based upon prior transactions between them with respect to the correctness 

of the account items and balance due,” res judicata will bar re-litigation of any matters relating to 

 

45 Pat Pellegrini Flooring Corp. v. Serota, No. 2007-971 Q C, 2008 WL 2832133 at *2 (N.Y. App. Div. July 10, 

2008) (unpublished opinion) (citing Abbott, Duncan & Wiener v. Ragusa, 625 N.Y.S.2d 178 (N.Y. App. Div. 1995); 

Waldman v. Englishtown Sportswear, 460 N.Y.S.2d 552, (N.Y. App. Div. 1983)). 46 SDS Co., Inc. v. Ilyssa Mfg. Corp., No. 32812/05, 2007 WL 178274 at *2 (N.Y. App. Div. Jan. 25, 2007) 

(unpublished opinion) (citing Chisholm-Ryder Co. v. Sommer & Sommer, 421 N.Y.S.2d 455 (N.Y. App. Div. 1979); 

Rodkinson v. Haecker, 248 N.Y. 480 (N.Y. 1928)). 47 Reisman, Peirez & Reisman, L.L.P. v. Gazzara, No. 2823/02, 2007 WL 949436 at *2 (N.Y. App. Div. Mar. 30, 

2007) (unpublished opinion). 

48 Id. (citing Newburger-Morris Co. v. Talcott, 219 N.Y. 505, 512 (N.Y. 1916)). 

 

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the agreement between the parties, as well as any possible defenses to the account stated.49 

 Defenses to an account stated claim include: (1) evidence that no account was 

presented;50 (2) evidence as to why the defendant failed to pay the invoices;51 (3) evidence that 

the defendant or its agent did not order certain goods or services, or lacked the apparent authority 

to do so;52 and/or (4) evidence that otherwise raises a genuine issue of fact as to whether the 

defendant objected to the invoices, orally or in writing.53 Rossi’s main defense in opposition to 

summary judgment on the account stated claim in the prior suit was that he repeatedly disputed 

the reasonableness of the charges for Defendants’ and some experts’ services, after his insurer 

declined to pay them. Rossi further contended that fact questions remained regarding the actual 

receipt of the invoices, and with respect to the accounting practices employed in connection with 

some of the claims made.54 

 To determine whether res judicata bars the present claims, the Court must ascertain 

 

49 See J.B.H., Inc. v. Godinez, 34 A.D.3d 873, 874 (N.Y. App. Div. 2006). Defenses to an account stated would 

involve disputes over presentment of the account, and “any dispute regarding the correctness of the account.” See 

also Commander Terminals, LLC v. Commander Oil Corp., 867 N.Y.S.2d 373 (N.Y. App. Div. 2008) (unpublished 

opinion) (“The agreement necessary for an account stated may be express or implied from the retention of an 

account rendered for an unreasonable period of time without objection and from the surrounding circumstances. An 

essential element of an account stated is an agreement as to the balance due. Where either no account has been 

presented, or there is any dispute regarding the correctness of the account, the cause of action fails.”). 50 Commander Terminals, LLC, 867 N.Y.S.2d 373; Morgan, Lewis & Bockius LLP v. IBuyDigital.com, Inc., No. 

604442-2005, 2007 WL 258305 at *2 (N.Y. App. Div. Jan. 11, 2007) (unpublished opinion) (“Where a plaintiff’s 

evidence fails to establish that the invoices were properly addressed and mailed, there should be no presumption of 

receipt, and summary judgment on an account stated claim is inappropriate.”). 51 Merrill/New York Co. v. Celerity Sys, Inc., 300 A.D.2d 206, 207 (N.Y. App. Div. 2002). 52 Id. 53 Id. (citing Walter, Conston, Alexander & Green v. Vintage Creations, 203 A.D.2d 203 (N.Y. App. Div. 1994)); 

Devanlay U.S. Inc. v. Assis., No. 600435/2006, 2008 WL 2042705 at *2 (N.Y. App. Div. May 8, 2008) 

(unpublished opinion) (“Defendant Assis, on behalf of the corporate defendant, asserts in response that a timely 

objection was made to the invoices that the goods were non-conforming and not timely delivered. The contending 

factual allegations of the parties on an essential element of plaintiff’s account stated claim warrant denial of 

summary judgment on that cause of action. ‘Oral objections to an account stated are sufficient to defeat a motion for 

summary judgment.’” Prudential Bldg. Maint. Corp. v. Burton Siedman Assoc., Inc., 86 A.D.2d 519 (N.Y. App. 

Div. 1982)). 

54 Defendants argued in the prior suit that summary judgment on the account stated was proper because there was no 

evidence that Rossi ever communicated any objections to the account to his creditors, rather than to the third party 

insurer. 

 

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whether there is an “identity” of claims between the prior suit and the claims in this case.55 

Rossi’s current claims, in part, seek disgorgement of the fees paid to Defendants because of an 

alleged breach of fiduciary duty and fraud, based on the Defendants’ representation of the 

experts in the prior suit, Defendants’ failure to forward and/or to object to the expert invoices, 

and/or to advise Rossi that he was required to object to them. These issues, even if not explicitly 

litigated in the prior suit, clearly qualify as claims that could or should have been litigated at that 

time as defenses to the account stated claims. Any evidence relating to Defendants’ authority to 

enter into the agreements that resulted in the invoices, or to a failure to present the invoices to 

Rossi, or to Rossi’s objections or non-objections to these invoices, would have precluded the 

grant of summary judgment on the account stated claims in the prior suit. As such, any 

subsequent adjudication of these claims by this Court would undoubtedly “destroy or impair 

rights or interests established by the first” suit. 

New York uses a transactional approach to res judicata, where claims that arise out of the 

series of transactions that were adjudicated in the prior suit are barred in subsequent litigation. 

This Court looks to “how the facts are related in time, space, origin or motivation; whether they 

form a convenient trial unit; and whether treating them as a unit conforms to the parties’ 

expectations.”56 The facts in this case center on the agreements to provide expert assistance for 

Rossi’s criminal defense, the delivery of the invoices for these expert services, and the failure of 

Defendants and/or Rossi to object to the invoices. The facts in the prior suit are from the same 

time, and originate from the same source—the non-payment of the invoices. 

These facts would not only “form a convenient trial unit” with the facts from the prior 

 

55 Hyman, 434 N.Y.S.2d at 744 (“Where an identity of the causes of action exists in both suits, the judgment in the 

former action is conclusive in the latter, not only as to any matters actually litigated therein, but also as to any that 

might have been litigated, so that a different judgment in the second would not destroy or impair rights or interests 

established by the first.”). 

56 Yeiser, 535 F. Supp. 2d at 422. 

 

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suit, which involved the rendering of the same expert services and the delivery and receipt and 

objection to the same invoices for these services, but the factual predicates for the suits are 

nearly identical.57 Treating these claims as one trial unit would undoubtedly conform to the 

parties’ expectations, as liability for payment of the invoices depends entirely on how these 

factual questions are resolved. The facts from both suits are indeed grounded on the same 

“gravamen” of the wrong—liability for the unpaid invoices. As such, the Court finds that the 

claims from the prior suit and from the instant case arise out of the same transaction or series of 

transactions, and thus constitute the same “claims” for purposes of res judicata.58

The Court must finally determine if identity of parties exists. Both LSW and Rossi were 

parties in the Lankler suit. Rossi argues that: 

Only through the attempt to characterize the present suit as related to LSW’s suit 

for attorneys’ fees incurred during the criminal defense, which it is not, or through 

an attempt to characterize LSW’s suit as identical and not distinct in any way 

from the individual, and separate, claims of the Experts/Vendors can Defendants 

assert that LSW and Wohl were “parties” in the claims brought against Plaintiff 

by the Experts/Vendors.59

Rossi argues that because “the claims made in the previous litigation were completely severable, 

involved individual claims, pleadings, motions, proof, and individual judgments,” this Court is 

precluded from finding an identity of parties between the prior suit and the instant action because 

“Defendants were not ‘parties’ to the claims brought against Plaintiff by the Experts/Vendors.” 

The Court disagrees. 

 First, Rossi overlooks the fact that the Defendants in this case were in fact parties to the 

prior action and prevailed on summary judgment on their own account stated claim, in addition 

 

57 The only distinction is found in the orientation of the parties—the prior suit involved the Defendants and the 

experts seeking to recover on the invoices based on the delivery and retention of the invoices without objection; in 

the instant case, Rossi seeks to recover based on the failure of the Defendants to forward the invoices, or to warn 

Rossi of his duty to object to the invoices, or to object to the invoices. The nucleus of facts is the same; it is merely 

the arguments surrounding those facts that differ. 58 See Yeiser, 535 F. Supp. 2d at 422. 

59 Plaintiff’s Response to Defendants’ Motion for Complete Summary Judgment at 20. 

 

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to representing the experts and vendors suing Rossi for their own claims. Defendants’ account 

stated claim was based on Rossi’s failure to pay invoices for attorneys’ fees incurred in his 

criminal defense. Rossi’s current claims for breach of fiduciary duty and fraud resulting from 

Defendants’ alleged failure to forward and/or to object to and/or to advise Rossi to object to the 

expert invoices should have been asserted in the prior action in defense of the claim that Rossi 

owed the full amount of attorneys’ fees. The Complaint itself notes that under the account stated 

doctrine, “fraud, mistake, or other equitable considerations” may preclude liability for the 

amounts due.60 Further, Defendants’ motion for summary judgment in the prior suit is supported 

by an affidavit from Wohl stating that no objections as to “quality or the price of professional 

services or charges” had been received. Rossi’s current claims dispute the “quality” of such 

services, in claiming that Defendants committed fraud and breached their duties as counsel in 

relation to the invoices. Rossi actually seeks disgorgement of the attorneys’ fees awarded in the 

prior action as a remedy in the instant case, which wholly supports the finding that Rossi should 

have brought his claims at that time to prevent the award of fees in the first place, and is now 

barred from doing so. Thus, no matter how the Court construes the “severability” in the prior 

suit of the experts’ claims from the Defendants’ claims, the facts in this case arise from the same 

gravamen of the wrong as the prior action, and identity of parties exists. 

 Second, merely because multiple plaintiffs join in one suit to recover damages from a 

defendant does not mean that the defendant is free to later sue each individual plaintiff based on 

facts related to the other plaintiffs’ claims in the prior suit, and claim that no identity of party 

exists because of the multiplicity of claims and parties in the first suit. Such a holding would 

undermine the purpose of joining parties in a single action, and rather than promoting efficiency, 

economy, and justice, would allow for a proliferation of suits following a final judgment. This 

 

60 Second Amended Original Complaint ¶17. 

 

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the Court will not allow. Any evidence or objections that Rossi had to any of the account stated 

claims should have been produced in the prior action, and so the instant claims are now barred.61 

Having found identity of claims and parties between the prior suit and the instant action, and that 

a final judgment was rendered on the merits in the prior suit, this Court now holds that 

Defendants’ Motion for Summary Judgment should be granted on the grounds that Rossi’s 

claims are barred by the doctrine of res judicata. 

The third question is whether substantially the same evidence would support or refute the 

claims by the experts/consultants and the counterclaim. The evidence supporting the prior 

claims consisted of the invoices for services allegedly performed on Rossi’s behalf, the 

agreements between Rossi and the Defendants and between Defendants and the plaintiffs in the 

New York suits, and evidence of the failure to pay the invoices. The Court finds that this same 

evidence would either support or undermine Rossi’s claims in this case—namely, who entered 

into the agreements and was thus responsible thereunder, who received the invoices and when 

they were received, and whether anyone objected to the invoices so as to avoid account stated 

liability.62 If Rossi’s claims that Defendants never forwarded the invoices to Rossi or that 

Defendants, rather than Rossi, were liable for payment of the invoices, or that Defendants 

breached certain fiduciary duties in either their failure to object to the invoices or in their 

representation of the plaintiffs in the New York suits, the evidence would refute Rossi’s liability 

 

61 Rossi also argues that his claims cannot be barred by res judicata because one consulting firm, FTI, brought its 

claims for unpaid invoices in an entirely separate suit, to which Defendants were not parties, and thus identity of 

parties cannot exist. This argument lacks merit. Rossi’s claims against Defendants should have been brought in the 

prior suit by Defendants against Rossi for the account stated on attorneys’ fees. The existence of a separate suit by 

FTI does not relieve Rossi of his obligation to do so. Further, the Complaint in this case does not specify any 

distinct causes of action arising from the FTI suit alone, so the Court cannot find that the existence of this separate 

suit revives any claims that Rossi now attempts to assert against Defendants. 

62 In fact, the issue of whether or not Defendants forwarded the expert invoices to Rossi repeatedly arose in the prior 

suits, and thus evidence on this issue would support or refute claims in both suits. See, e.g., Affidavit of Frank Wohl 

in Support of Plaintiff Donna Hitscherich’s Motion for Partial Summary Judgment at ¶4-5, App. at 240; see also

Defendants’ Response and Memorandum of Law in Opposition to Plaintiffs’ Motions for Partial Summary 

Judgment at 8, App. at 389; see also Defendants’ Statement Pursuant to Local Rule 56.1 in Opposition of the 

Motion for Partial Summary Judgment of Plaintiffs at 5, App. at 555, and Exhibit 1, App. at 574. 

 

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for the invoices. The Court therefore finds that substantially the same evidence would support or 

refute the claims by the experts/consultants and those now made by Rossi.63 

 The fourth and final question is whether there is any logical relationship between the 

claims in the New York suits and the counterclaim. The Fifth Circuit has held that a “logical 

relationship” exists when the claim and the counterclaim arise from the same “aggregate of 

operative facts,” or “the aggregate core of facts upon which the claim rests activates additional 

rights, otherwise dormant, in the defendants.”64 The Court finds a clear logical relationship 

between the prior claims for unpaid invoices, and the current counterclaims disputing Rossi’s 

role in the agreements that resulted in the invoices, claiming that Rossi never received the 

invoices, and that Rossi should have been told to object to them, and claiming that Defendants 

are liable to Rossi for the amounts recovered on the unpaid invoices. These issues undoubtedly 

arise from an aggregate of the same operative facts. Additionally, the aggregate core of facts 

upon which the prior claims were based, namely the rendering and retention of the invoices, 

clearly “activated” additional rights in Rossi, which he now asserts in this suit based upon those 

same facts, albeit under different legal theories. As such, the Court finds that a logical 

relationship exists between the claims in the New York suits and the claims asserted by Rossi. 

 This Court must now determine whether any exceptions to the compulsory counterclaim 

rule apply. The only exception applicable to this case is whether the current claims were 

 

63 The Court reiterates that even though judgment was rendered on only the account stated claims, it must look to all 

claims asserted in the prior suit to determine if the present claims constitute compulsory counterclaims in that 

litigation. Thus, the Court looks to whether the evidence underlying Rossi’s claims for breach of fiduciary duty and 

fraud would have supported or refuted the account stated claims, as well as supported or refuted the breach of 

contract and unjust enrichment claims. The Court finds that the same evidence would have, in fact, either 

strengthened or undermined the prior claims, and thus the current claims are barred. 64 Nayani v. Horseshoe Entm’t, No. 3:06-CV-01540-M, 2007 WL 1288047at *2 (N.D. Tex. May 2, 2007) (Lynn, J.) 

(citing Montgomery Elevator Co. v. Building Eng’g Serv. Co., 730 F.2d 377, 380 (5th Cir.1984)); Revere Copper & 

Brass Inc. v. Aetna Cas. & Sur. Co., 426 F.2d 709, 715 (5th Cir. 1970). 

 

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matured at the time of pleading in the prior suit.65 Rossi argues that Rule 13(a) should not apply 

because: 

Plaintiff’s current claims against Defendants are third-party contribution-type 

claims which, although arguably arising out of the same “transaction” involved in 

each of the Experts/Vendors’ suit, were not yet “matured” at the time Plaintiff 

was served, were contingent upon the outcome of the litigation vis a vis the 

Experts/Vendors and thus wholly outside the purview of Rule 13(a) as a 

“compulsory counterclaim,” as a matter of law. 

The Court finds this argument to be without merit. While a claim for contribution may depend 

on the actual adjudication of liability, the types of claims that Rossi asserts in the current case do 

not. In fact, Rossi’s claims are more akin to defenses to liability in the prior action, and his 

assertion of them now is merely an attempt to relitigate the issue of liability for the unpaid 

invoices in the New York suits. 

Rossi also argues that the prior suits were “separate and individual claims brought by 

separate and individual claimants,” and that “each of the Expert/Vendor’s claims were [sic] 

wholly severable claims, to which LSW was not a party, and thus... Plaintiff did not have any 

‘counterclaim’ against LSW related to LSW’s suit against Plaintiff for attorneys’ fees incurred 

during the criminal defense case.”66 As stated above in its res judicata analysis, the Court finds 

that this argument also lacks merit. The prior claims were brought in a single lawsuit, and the 

fact that multiple experts and vendors sued for unpaid invoices in one lawsuit does not remove 

Rossi’s duty to bring any and all compulsory counterclaims against all parties in that action at 

that time or be barred from doing so therefrom.67 

 

65 See Harris v. Steinem, 571 F.2d 119, 122 n. 3 (2d. Cir. 1978). 66 Plaintiff’s Response to Defendants’ Motion for Complete Summary Judgment at 11. 67 The Court again notes that even though FTI brought its account stated claims in a separate lawsuit, Rossi does not 

distinguish between the alleged breach of fiduciary duty and/or fraud by Defendants in relation to particular expert 

or consultant invoices. The Court therefore has ignored this distinction because it is not dispositive to the issue of 

whether Rossi’s claims were required to be brought in the prior suits. Any claims that Rossi had with regard to 

FTI’s invoices should have been raised at the time FTI filed suit, just as the Court holds that any claims against the 

Defendants’ or the other experts and consultants should have been brought in their action. Further, even if the Court 

 

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In sum, the Court finds that Defendants’ Motion for Summary Judgment should be 

granted as to each of Rossi’s claims in this suit because they constitute compulsory 

counterclaims that Rossi was required to assert in the prior suit, and are therefore barred. The 

Court also finds that Rossi’s claims are barred by res judicata. 

II. Collateral Estoppel 

 Having concluded that Rossi’s claims are barred both by Rule 13(a) as compulsory 

counterclaims and by the doctrine of res judicata, the Court does not reach the merits of 

Defendants’ arguments for collateral estoppel. 

CONCLUSION 

 The Court finds that Defendants’ Motion for Summary Judgment should be GRANTED, 

and Plaintiff’s claims are hereby DISMISSED WITH PREJUDICE. 

 SO ORDERED this 19th day of May, 2009. 

 

 were to find that the “severability” of the experts’ claims limited its analysis only to Defendants’ claims against 

Rossi in the prior suit, Rossi’s current claims would still constitute compulsory counterclaims. Defendants asserted 

claims for breach of contract and account stated liability for the non-payment of their attorneys’ fees in Rossi’s 

criminal defense. Defendants’ motion for summary judgment in the prior suit is supported by an affidavit from 

Wohl, stating that no objections as to “quality or the price of professional services or charges” had been received. 

Rossi’s claims of breach of fiduciary duty by his counsel and/or fraud in their conduct relating to the retention of 

experts in the course of that defense, and for the failure to forward or object to expert invoices resulting from that 

defense, would refute this evidence and provide a defense to Defendants’ breach of contract and/or account stated 

claims. As such, the instant claims are barred as compulsory counterclaims. 

 

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