DANIEL MADDEN VS. VICTOR C. DONNELLY (C-000082-18, OCEAN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5166-17T3
DANIEL MADDEN,
Plaintiff-Appellant,
v.
VICTOR C. DONNELLY,
Defendant-Respondent.
Argued March 6, 2019 – Decided May 15, 2019
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey,
Chancery Division, Ocean County, Docket No.
C-000082-18.
Kenneth W. Thomas argued the cause for appellant
(Lanza Law Firm, LLP, attorneys; Kenneth W. Thomas,
of counsel and on the briefs).
Timothy J. Petrin argued the cause for respondent
(James D. Curry, Jr., attorney; Timothy J. Petrin, on the
brief).
PER CURIAM
Plaintiff Daniel Madden appeals a July 6, 2018 order dismissing his
complaint with prejudice for "failure to state a claim upon which relief can be
granted." R. 4:6-2(e). We affirm.
The essential facts are not in dispute. Defendant Victor Donnelly's father,
John Donnelly (decedent), became acquainted with Madden when the two
worked together years earlier. They maintained their friendship after retirement.
Decedent told Madden that he wanted Madden to receive money he had
in a bank account, and he opened a payable on death (POD) account with over
$100,000, naming Madden as the recipient in the event of his death. Decedent's
relationship with Donnelly was troubled at that time. While visiting New Jersey
sometime before his death, decedent did not mention any change to the account.
Months before his death, decedent became ill and reconciled with his son.
Donnelly took decedent into his home. Decedent then named his son in a
durable power of attorney, in a durable power of attorney for healthcare and
designation of healthcare representative, and as his only beneficiary in his last
will and testament.
The bank account is the estate's only significant asset. Donnelly certified
that although decedent wanted to transfer the account into his name only, he
became too ill to make the trip to the bank. Accordingly, Donnelly, using the
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durable power of attorney, changed the account from POD to solely in decedent's
name.
Madden's amended complaint demands relief based on conversion,
unlawful taking, and replevin. In addition, it alleges Donnelly breached his
fiduciary duty to decedent and was unjustly enriched by his conduct.
On appeal, Madden asserts the following points of error:
POINT I:
THE LOWER COURT ERRED WHEN IT
DETERMINED DISPUTED ISSUES OF MATERIAL
FACT THAT DEPEND PRIMARILY ON
CREDIBILITY DETERMINATIONS WITHOUT
HEARING TESTIMONY OF THE PARTIES OR
EVEN ORAL ARGUMENT AND ONLY ON
CONFLICTING CERTIFICATIONS.
POINT II:
THE LOWER COURT ERRONEOUSLY FAILED TO
APPRECIATE A CONSTRUCTIVE TRUST
SHOULD BE IMPOSED TO GIVE EFFECT TO THE
DECEDENT'S INTENDED DISPOSITION OF HIS
PROPERTY WHERE, AS HERE, DEFENDANT
BREACHED HIS FIDUCIARY DUTY & UNJUSTLY
ENRICHED HIMSELF WHEN IT IS DISPUTED
DECEDENT NAMED PLAINTIFF "POD" ON HIS
BANK ACCOUNT AND REPEATEDLY TOLD
PLAINTIFF HE WANTED HIM TO HAVE HIS
MONEY WHEN [HE] PASSED AWAY; THAT
DECEDENT DID NOT HAVE A GOOD
RELATIONSHIP WITH DEFENDANT [AND
QUESTIONED] HIS PATERNITY WHILE
DEFENDANT ADMITTED TO PLAINTIFF HE
MOVED THE MONEY USING THE POWER OF
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ATTORNEY DECEDENT GAVE HIM ON THE
ADVICE OF HIS FORMER ATTORNEY SO IT
WOULD NOT GO TO HIS FATHER (DECEDENT)'S
CO-WORKER.
POINT III:
THE LOWER COURT ERRED BY NOT
PERMITTING PLAINTIFF TO ASSERT PROPERTY
CLAIMS.
We affirm the order dismissing the amended complaint for the reasons
stated by Judge Francis R. Hodgson, Jr. in his cogent written decision.
On our review of the order dismissing the amended complaint pursuant to
Rule 4:6-2(e), "we assume that the allegations in the pleadings are true and
afford the pleader all reasonable inferences." Sparroween, LLC v. Twp. of W.
Caldwell, 452 N.J. Super. 329, 339 (App. Div. 2017) (citation omitted). We
review de novo orders dismissing complaints for failure to state a claim under
Rule 4:6-2(e). "Where . . . it is clear that the complaint states no basis for relief
and that discovery would not provide one, dismissal of the complaint is
appropriate." Ibid. (quoting J.D. ex rel. Scipio-Derrick v. Davy, 415 N.J. Super.
375, 397 (App. Div. 2010)).
Even assuming all the facts alleged are true and drawing all favorable
inferences in Madden's favor, the complaint fails to state a basis for relief to be
granted. Dismissal is appropriate.
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Judge Hodgson "broke[] down" Madden's claims made into two
categories—property offenses including conversion, unlawful taking, and
replevin, and breach of fiduciary offenses, including unjust enrichment. As he
said, N.J.S.A. 17:16I-2(j) "defines a POD account as 'an account payable on
request to one person during lifetime and on his death to one or more P .O.D.
payees, or to one or more persons during their lifetimes and on the death of all
of them to one or more P.O.D. payees[.]'" By its very nature, a POD account
vests no property rights in the survivor until the death. See N.J.S.A. 17:16I-
2(g). Thus, Madden had no property interest in the account so long as decedent
was alive, including when Donnelly transferred the account into just his father's
name. Since Madden had no interest in the account because it was transferred
before decedent's death, he not only has no vested ownership rights, he has no
standing to maintain any action against Donnelly. He would have had standing,
obviously, had the account remained POD at the time of death, but that did not
occur.
Under N.J.S.A. 46:2B-8.13, Donnelly had an absolute right to move the
funds into an account solely in his father's name. Donnelly did not gift himself
the funds. The transfer occurred during decedent's lifetime with his full
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knowledge, consent, and at his direction. On this record, there is no reason to
conclude it was made otherwise.
As Judge Hodgson put it, "the immediate effect was to transfer property
to the sole possession of the principal[.]" Therefore, there was no breach of
fiduciary duty. Thus, the amended complaint does not allege any cause of
action.
Affirmed.
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