IN THE MATTER OF THE ESTATE OF IGNAZIO DEL BAGNO, DECEASED. DOCKET NO. A-3789-09T2

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NOT FOR PUBLICATION WITHOUT THE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.

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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.