IN THE MATTER OF THE ESTATE
OF IGNAZIO DEL BAGNO, DECEASED.
DOCKET NO. A-3789-09T2_______________________________
Submitted January 20, 2011 - Decided
Before Judges R. B. Coleman, Lihotz and
J. N. Harris.
On appeal from the Superior Court of New
Jersey, Chancery Division, Monmouth County,
Docket No. P-89-09.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
Ignazio Del Bagno (decedent) died intestate on December 4,
2007, survived by three daughters: plaintiff Antoinette Early,
who qualified as the administrator of decedent's estate;
defendant Phyllis Rizzuto, formerly Phyllis Del Bagno; and Rose
Tittle, who is not a party to the action. In administering the
estate, plaintiff filed an action seeking defendant's informal
accounting regarding the disposition of decedent's bank
depository accounts. The complaint also alleged decedent's
May 6, 2011
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transfer of monies to defendant was not voluntary but a result
of defendant's undue influence. Following discovery, defendant
moved for summary judgment, which was granted.
Plaintiff appeals from the March 12, 2010 summary judgment
and dismissal of the complaint. Following our review, we
reverse that order because factual disputes, which turn on the
parties' credibility, necessitate a full evidentiary hearing.
The facts, viewed in a light most favorable to plaintiff,
are taken from the summary judgment record. Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Decedent died
on December 4, 2007, at the age of ninety. His wife predeceased
him but he was survived by his three daughters. From
approximately 1970, decedent had lived with defendant. On
October 7, 1999, decedent underwent heart surgery and later, on
March 30, 2000, suffered a disabling stroke that impeded his
ability to properly care for himself. From that time until
2003, decedent's three daughters rotated the provision of his
weekly care. Thereafter, decedent returned to defendant's home
under the supervision of live-in caretakers who provided roundthe-
clock care, until his death.
Both parties agree decedent did not hold assets solely in
his name, but titled realty in the names of family members and
created joint depository accounts. For example, decedent
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transferred the title of a St. Lucie County, Florida condominium
to his three daughters as joint tenants with rights of
survivorship. Also, he opened depository accounts at Hudson
City Savings Bank (Hudson City) that were held jointly with or
designated as payable on death (POD) to Tittle or defendant.
Decedent also had a joint checking account with his friend,
Anthony Yurksha and other accounts titled jointly with each of
his daughters.
Throughout the period when decedent resided with her,
defendant aided him in managing his financial affairs. Several
depository accounts were created jointly with or POD to
defendant at Hudson City, Valley National Bank and Clifton
Savings Bank. Plaintiff identifies two accounts that she
alleges decedent added defendant's name for convenience and not
because he intended to gift the monies to her.
The first was decedent's primary savings account (account
number ending in 0818), opened at Hudson City on May 31, 1996.
When decedent opened the savings account, it was titled in his
name and payable to defendant on his death. Additionally,
decedent executed a power of attorney, naming defendant his
attorney-in-fact in respect of the account.
The second account identified by plaintiff was a checking
account (account number ending in 6646) at the same bank. The
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checking account was opened in 1996 at the same time as the
savings account and titled jointly with defendant. Defendant
regularly moved money from decedent's savings account to the
joint checking account, from which she paid decedent's ongoing
expenses.
The controversy can be narrowed even further, as
plaintiff's predominate challenge centers on the deposit and use
of the proceeds from the sale of decedent's investment property.
On October 25, 2004, decedent sold a rental property in Sewaren
realizing net proceeds of $216,173.59. When questioned about
the deposit of the proceeds, defendant testified her father
would have said, "do what you think is best." Thus, without
obtaining specific direction from decedent, defendant deposited
the proceeds into the Hudson City savings account then
transferred money from the savings account to the checking
account. Upon decedent's death, the Hudson City savings account
contained a balance of $33,509.55 and the checking account a
balance of $8,660.91. Quite simply, plaintiff contends
defendant utilized some of the Sewaren proceeds for her own
benefit, not for decedent's care, and that decedent would have
wanted all of his daughters to share in the proceeds of the
investment realty.
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In support of this position, plaintiff identified two
checks, drawn on the joint Hudson City checking account, which
were used to pay defendant's obligations. During the first day
of defendant's deposition, she was questioned regarding the
management of decedent's accounts and the payment of her
personal expenses using decedent's funds.
When first asked, defendant denied she ever used decedent's
assets, including joint depository accounts, to satisfy the
expenses incurred for her home. Then, when presented with two
checks drawn on the Hudson City joint checking account -- one in
the amount of $2,895, for her house repairs, and the other in
the amount of $2,094.44, for her February 2007 mortgage payment
-- defendant stated:
A: Well, I wrote that, so I must have
saw [sic] it some time or another. But I
did, at one time, . . . I deposited my own
money in 'cause I was writing out some
checks and I didn't want to go crazy. And I
wrote a few checks out. But my own money
was deposited into my father's checking
account. Yes, it was deposited in there.
. . . .
Q: Would it be the case that what
you're referring to is depositing your own
money into a joint account with your father
and then writing a check on that account to
someone else?
. . . .
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A: That's the only way I would do that.
I always deposited my own money. I would
never, ever -- in a few instances, I do
remember, I was very busy, and I . . . had
to make checks out.
. . . .
Q: Okay. Now, earlier today, do you
recall me asking you a question as to
whether or not any assets from your father's
account, including funds, including any
joint account, were ever used to pay for
expenses for your Wildwood property?
A: Yes.
Q: And what was your response earlier
today?
A: I said, "no," because that wasn't
his expense; that was my money, not his.
. . . .
A: That was for Wildwood. That was for
-- my own money was put in there. It wasn't
my father's money, no.
When defendant's deposition was resumed, this additional
colloquy regarding the use of decedent's money took place:
Q: Now in the previous day's
deposition, you described that you had paid
for some things out of the [Hudson] checking
account for yourself, but you had deposited
money that was your money into that account,
is that right?
A: Yes, yes.
Q: Were there ever deposits made into
that account from the Hudson City savings
account?
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A: For my father there was. Not for
me. For my father.
Q: Okay. Now with respect to what you
say were your deposits that went into the
Hudson City joint checking account, do you
have any paper evidence that would support
that?
A: What would paper evidence be?
Q: Deposit slips?
A: Oh, God. I may have some.
. . . .
A: I have to go look.
No additional documents were sought by plaintiff or
provided by defendant. Plaintiff, however, did match up the
deposits made to the Hudson City joint checking account with
corresponding withdrawals made from decedent's Hudson City
savings account. No other deposits, presumably from defendant's
separate funds, were identified.
During summary judgment proceedings, the motion judge noted
there was no challenge to the assertion that decedent used joint
ownership as an estate planning tool. Finding no material facts
in dispute, the motion judge determined:
Upon the death of a joint [account] owner,
. . . the sums remaining in the account upon
the death of either party belong to the
surviving party, unless there is clear and
convincing evidence of a different intention
at the time the account is created.
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Here[,] the plaintiff admits that the
decedent created these joint accounts
frequently to manage his financial affairs
and that he was aware at his death that the
proceeds would go to the remaining party on
the account. I find that the plaintiff has
not produced any clear and convincing
evidence of any different intention by the
decedent.
Also as to the issue of a sale of the
[Sewaren] home, . . . it has been shown that
the decedent reviewed the agreement of sale
for the [Sewaren] property and there's been
statements by two people involved with the
property that the decedent was alert of
mind. So here the evidence presented only
affirms that the decedent knew what he was
doing, knew what would happen with the
accounts upon his death, and no contrary
evidence has been presented by the
plaintiff.
So I found that . . . the presumption
of undue influence has been rebutted. I
will grant summary judgment in this entire
matter.
This appeal ensued.
It is well-established that we review the motion court's
conclusions de novo, Estate of Hanges, 202 N.J. 369, 382 (2010),
without giving deference to the legal conclusions reached. City
of Atl. City v. Trupos, 201 N.J. 447, 463 (2010). In our
review, we use the same standard as the trial court. Prudential
Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App.
Div.) (citing Antheunisse v. Tiffany & Co., 229 N.J. Super. 399,
402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989)),
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certif. denied, 154 N.J. 608 (1998). The "essence of the
inquiry" is "'whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.'"
Brill, supra, 142 N.J. at 536 (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L.
Ed. 2d 202, 214 (1986)). Accordingly, after viewing the facts
in the light most favorable to the non-moving party, Hodges v.
Sasil Corp., 189 N.J. 210, 215 (2007), summary judgment must be
granted if "the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law." R. 4:46-
2(c); Brill, supra, 142 N.J. at 528-29.
In determining whether there is a genuine issue of material
fact for summary judgment purposes, the trial court, after
considering the burden of persuasion at trial, must ascertain
"what reasonable conclusions a rational jury can draw from the
evidence[.]" Id. at 535. See also R. 4:46-2(c). The judge
"'must accept as true all the evidence which supports the
position of the party defending against the motion and accord
him [or her] the benefit of all legitimate inferences which can
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be deduced therefrom[.]'" Ibid. (quoting Pressler, Current
N.J. Court Rules, comment 1 on R. 4:40-2 (1991)). If reasonable
minds could differ, the motion must be denied. Ibid.
"[A] non-moving party cannot defeat a motion for summary
judgment merely by pointing to any fact in dispute." Id. at 523
(emphasis in original). A party opposing the motion must offer
facts that are substantial or material in order to defeat the
grant of summary judgment. Judson v. Peoples Bank & Trust Co.
of Westfield, 17 N.J. 67, 75 (1954). "Bare conclusions in the
pleadings, without factual support in tendered affidavits, will
not defeat a meritorious application for summary judgment."
U.S. Pipe & Foundry Co. v. Am. Arb. Ass'n, 67 N.J. Super. 384,
399-400 (App. Div. 1961) (citing Gherardi v. Bd. of Educ. of the
City of Trenton, 53 N.J. Super. 349, 358 (App. Div. 1958)).
Furthermore, disputed issues "of an insubstantial nature" cannot
overcome a motion for summary judgment. Brill, supra, 142 N.J.
at 530 (citing Judson, supra, 17 N.J. at 75). Therefore, "when
the evidence 'is so one-sided that one party must prevail as a
matter of law,' the trial court should not hesitate to grant
summary judgment." Id. at 540 (citation omitted).
On appeal, plaintiff argues the summary dismissal of her
complaint was error because genuine issues of material fact
existed regarding whether defendant had authority to control
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decedent's Sewaren proceeds, whether decedent was a victim of
undue influence and whether defendant converted decedent's
money. Plaintiff generally asserts that when decedent
designated defendant as the joint owner or recipient upon his
death of the Hudson City savings and checking accounts, he did
so merely as an accommodation.
More specifically, plaintiff challenges whether defendant
had actual or apparent authority to deposit the proceeds from
the Sewaren realty sale into the Hudson City savings account,
rather than into a different account owned by decedent. Also,
she argues defendant's authority to manage decedent's funds did
not include utilizing the realty proceeds. Finally, plaintiff
contests defendant's unsupported statements that she deposited
her own money into the joint account to cover checks written for
her individual expenses, claiming that assertion alone is
insufficient to grant summary judgment on her cause of action
for conversion. Plaintiff argues each of these questions must
be determined by the factfinder when discerning whether the use
of the funds was a result of undue influence because of the
"confidential relationship" between decedent and defendant.
On the other hand, defendant notes decedent's practice of
using joint accounts was uncontroverted and the Hudson City
accounts were established long before decedent's debilitating
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stroke. The decedent's intent that defendant retain the Hudson
City accounts upon his death was clearly and convincingly
established when they were opened, validating the presumption of
her ownership upon his death as the surviving joint owner.
Further, the Sewaren proceeds were deposited into decedent's
savings account and used for his health, maintenance and support
as he intended. Although her accounting is informal, defendant
believes she has explained ninety percent of the funds, showing
they were used for decedent.
When examining accounts jointly titled or payable to
another on the death of the initial depositor, the presumption
of legal entitlement by the surviving joint account holder is
rebuttable. In re Estate of Penna, 322 N.J. Super. 417, 422
(App. Div. 1999). The sums on deposit are assumed to be the
property of the surviving joint account holder "unless there is
clear and convincing evidence of a different intention at the
time the account is created." N.J.S.A. 17:16I-5(a).1 This
burden of proof is modified, however, when the moving party "can
prove by a preponderance of the evidence that the survivor had a
confidential relationship with the donor who established the
account[.]" Estate of Ostland v. Ostland, 391 N.J. Super. 390,
1 The statute is part of the Multiple-Party Deposit Account
Act, N.J.S.A. 17:16I-1 to -17.
13 A-3789-09T2
401 (2007). In that event, "there is a presumption of undue
influence," such that the burden of persuasion shifts, and
"the survivor donee must rebut [the presumption] by clear and
convincing evidence." Ibid. If the surviving account holder
carries the burden of proof, then N.J.S.A. 17:16I-5(a) controls
disposition of the account, however, the party challenging the
joint account designation may further introduce additional
evidence of undue influence to defeat the statutory presumption
of survivorship. Penna, supra, 322 N.J. Super. at 426.
As applied here, once plaintiff proves a confidential
relationship existed between defendant and decedent, the burden
shifts to defendant to show the Hudson City savings and checking
accounts were not merely "convenience accounts" so that she
could "more easily handle the financial affairs of [decedent,]
the true owner of the asset." Bronson v. Bronson, 218 N.J.
Super. 389, 393 (App. Div. 1987). Defendant must show the joint
designations were intended as a voluntarily gift to her and,
further, that decedent "understood the legal effect of the
transfer of assets into joint accounts." Penna, supra, 322 N.J.
Super. at 423. If she cannot, "a joint survivorship account has
not been validly created" and the statutory presumption is
inapplicable. Id. at 419. If defendant presents those proofs,
plaintiff may then offer additional evidence of undue influence
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over the Sewaren proceeds or conversion of decedent's assets
prior to his death.
The facts in Penna closely parallel those at hand. In
Penna, a mother gave her daughter control of her bank account,
even though her son also helped her with other matters. Id. at
424. In the final stage of her life, the mother moved into the
home of her daughter and continued to spend time with both of
her children. Ibid. The trial court found the "mother-daughter
relationship, as well as the trust [the mother] placed in her
[daughter], lead to the conclusion that a confidential
relationship existed[.]" Ibid. The mother's son challenged his
mother's intention to transfer her joint account to her daughter
under N.J.S.A. 17:16I-5(a). Penna, supra, 322 N.J. Super. at
422. We concluded the trial court erred because it "should have
shifted the burden of proof to [the daughter] once "[it]
concluded that a confidential relationship existed between" the
daughter and the mother. Id. at 424-25. Instead, the trial
judge placed the burden on the challenger to prove the daughter
exercised undue influence over her mother in creating the joint
accounts. Id. at 422. We stated that once a confidential
relationship is proven, the putative joint owner has the burden
to prove that joint survivorship was the voluntary knowing
intention of the decedent. Ibid.
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Here, plaintiff satisfactorily proved a confidential
relationship existed between decedent and defendant. Decedent
lived with defendant for over thirty years before suffering a
stroke in 2000. Defendant had always assisted decedent with his
personal and financial affairs. Decedent returned to
defendant's home in 2003, physically dependent on round-theclock
caregivers, where he stayed until his death in 2007.
Plaintiff believed defendant's undue influence was evinced
with respect to the disposition of the Sewaren proceeds. In
2004, when decedent was very ill, he sold his home in Sewaren.
Defendant transported him to the closing on two separate
occasions. Decedent was too sick to travel on the first date;
when he returned on the second, he could not exit the car, so
the documents were brought to him for his signature. Defendant
took custody of the proceeds check and deposited it into the
Hudson City savings account, without seeking direction from
decedent. Plaintiff argues the confidential relationship
created a "presumption of undue influence" regarding this
transaction, shifting the burden of persuasion to defendant to
prove by clear and convincing evidence that decedent intended to
deposit the Sewaren proceeds into the Hudson City savings
account, which defendant would receive upon his death. Ostland,
supra, 391 N.J. Super. at 401.
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Defendant contends it is clear that decedent intended to
pass the asset through his Hudson City accounts. She dispels a
claim of undue influence along with the notion that decedent
intended the Hudson City accounts be divided equally among his
three daughters, stating: "decedent's undisputed longstanding
practice of using joint accounts for estate planning purposes,
his failure to leave a will together with defendant's long
stewardship of this power of attorney/POD account for decedent's
own benefit."
Our assessment reveals errors requiring reversal of summary
judgment. Not only are there contrary factual assertions and
other proofs identifying material factual disputes that must be
tested by an evidentiary hearing, but also the motion judge
misstated the burden of proof. Additionally, the motion judge
dismissed the claim of conversion without making findings.
First, the proofs regarding circumstances surrounding the
deposit of the Sewaren funds and the actual disposition of the
monies rest almost entirely upon defendant's otherwise
unsupported statements. Defendant's undocumented explanation of
the disposition of the Sewaren proceeds, as well as her
exclusive use of monies for her benefit during decedent's life
without evidence of her claimed offsetting personal deposits to
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cover the expenses, are disputed necessitating a credibility
determination.
Credibility must be determined by the finder of fact,
making it inappropriate to formulate such findings from a
summary judgment record. Brill, supra, 142 N.J. at 540; D'Amato
v. D'Amato, 305 N.J. Super. 109, 114-15 (App. Div. 1997). A
trier of fact must be "free to weigh the evidence and to reject
the testimony of a witness, even though not directly
contradicted, when it . . . contains inherent improbabilities
and contradictions which alone or in connection with other
circumstances in evidence excite suspicion as to its truth."
D'Amato, supra, 305 N.J. Super. at 115 (internal quotations and
citations omitted).
Second, in her findings and conclusions, the motion judge
did not mention the confidential relationship between defendant
and decedent or articulate the burden shifting analysis
discussed in Penna. Also, her findings incorrectly suggest
plaintiff had the burden to rebut the statutory presumption of
joint ownership, as the judge stated, "I find . . . plaintiff
has not produced any clear and convincing evidence of
[decedent's] different intention" at the time the Hudson City
accounts were created.
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Third, on the issue of conversion, the motion judge
misinterpreted plaintiff's challenge regarding the Sewaren
proceeds. The court ignored plaintiff's position that defendant
could not show permission to deposit the check into the Hudson
City account -- an asset defendant believed she would eventually
own. Instead, the judge focused on whether decedent knowingly
sold the property, stating: "the evidence presented only affirms
that the decedent knew what he was doing, knew what would happen
with the accounts upon his death, and no contrary evidence has
been presented by the plaintiff." We disagree.
The record includes defendant's admission that she never
asked her father what to do with the check and simply assumed
she should do what she thought best. Plaintiff should be
granted an opportunity to test at trial the question of whether
defendant abused her position as fiduciary because she believed
the account would be hers upon her father's death. From this
record, it is unclear if plaintiff will introduce additional
evidence; nevertheless, the determination requires an assessment
of defendant's credibility, which must be made after hearing all
of the evidence presented as a "case may present credibility
issues requiring resolution by a trier of fact even though a
party's allegations are uncontradicted." D'Amato, supra, 305
N.J. Super. at 115.
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The judge, however, made no factual findings on plaintiff's
proofs; she simply dismissed the claim of conversion. The
record contains defendant's broad assertion that she deposited
her own funds into the joint checking account to pay her bills,
which is refuted by plaintiff's documentary evidence. We do
recognize that if defendant successfully rebuts the presumption
of undue influence arising from her confidential relationship
with decedent, and defendant has no additional proofs, then the
determination regarding the disposition of the checking account
may be moot because the account will inure to defendant. This
possible eventuality, however, will not obviate factual findings
supporting such determination, which includes the assessment of
the parties' credibility. Therefore, these additional factual
disputes must abide a hearing.
For the reasons set forth in this opinion, we find there
are disputed material facts and conclude the motion judge erred
in granting defendant's motion for summary judgment.
Accordingly, the March 12, 2010 order is reversed and the matter
remanded for trial.
Reversed and remanded.
