IN THE MATTER OF THE ESTATE OF ERNA M. JONES DAVID J. JONES, ETC. VS. BARBARA E. ADAMS (2015-1966, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2557-16T2
IN THE MATTER OF THE ESTATE
OF ERNA M. JONES,
DAVID J. JONES, Executor of
the Estate of ERNA M. JONES,
Plaintiff-Appellant,
v.
BARBARA E. ADAMS,
Defendant-Respondent,
and
WALTER R. JONES,
Interested Party.
Argued September 12, 2018 – Decided September 19, 2018
Before Judges Yannotti, Gilson and Natali.
On appeal from Superior Court of New Jersey,
Chancery Division, Probate Part, Burlington County,
Docket No. 2015-1966.
Thomas N. Ganiaris argued the cause for appellant.
Hugh J. Hutchison (Sciolla, Hutchison, Leonard &
Tinari, LLP) of the Pennsylvania bar, admitted pro hac
vice, argued the cause for respondent (Leonard, Sciolla,
Hutchison, Leonard & Tinari, LLP, and Hugh J.
Hutchison, attorneys; Gregory E. Sciolla and Paul H.
Schultz, on the brief).
PER CURIAM
Plaintiff David J. Jones appeals from an order of the Chancery Division
dated January 12, 2017, which determined that upon the death of Erna M. Jones
(Mrs. Jones), defendant Barbara E. Adams became the owner of all funds in a
certain investment account, which defendant and Mrs. Jones held as joint tenants
with a right of survivorship. Plaintiff also appeals from an order dated February
12, 2016, admitting Hugh J. Hutchison of the Pennsylvania Bar pro hac vice.
Having considered the arguments presented on appeal in light of the record and
the applicable law, we affirm.
I.
We briefly summarize the relevant facts and procedural history. Mrs.
Jones was married to Walter R. Jones, Sr. (Mr. Jones), and they had three
children: plaintiff, defendant, and Walter R. Jones (Walter). Mr. Jones died on
November 5, 1998. He was seventy-four years old. At the time of his death,
Mr. and Mrs. Jones had, among other assets, an investment brokerage account
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2
with Olde Discount Corporation (ODS), which consisted of money market
funds, stocks and stock options, corporate bonds, mutual funds, and a unit
investment trust. Mrs. Jones became the owner of the ODS account, which then
had a value of about $282,024.
Before Mr. Jones died, defendant resided in Sussex County in a home that
she owned. Mr. and Mrs. Jones resided in Southampton, New Jersey. At trial,
defendant testified that sometime before he died, Mr. Jones had suggested that
they both sell their homes and purchase another home in which they would live
together. Mr. Jones also told defendant that after he died, he wanted her to take
care of Mrs. Jones. In October 1998, defendant sold her home in Sussex County.
Defendant continued to work in North Jersey, and lived with acquaintances
while she began to look for a new home in South Jersey.
ODS had certain regulations regarding its investment accounts, including
a regulation which required that when a joint owner of an account dies, the
account must be closed and the proceeds transferred to the owner's estate or to
a new account in the name of the surviving party. After Mr. Jones died, Mrs.
Jones arranged to meet with Michael Quinn, an investment representative at
ODS, in order to comply with the ODS regulation. Defendant accompanied her
mother to the meeting. At the meeting, Mrs. Jones and defendant completed an
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account application, which identified Mrs. Jones as the "[a]pplicant" and
defendant as a "[s]econd [p]arty." They checked the box for an account with
"[j]oint [t]enants [w]ith [r]ights of [s]urvivorship." On December 7, 1998,
Quinn approved the application.
Quinn testified that he did not recall the meeting with Mrs. Jones and
defendant, but noted that he regularly opened accounts of this type. Quinn said
it was his practice to ask clients the kind of account they wanted. For joint
accounts with a right of survivorship, Quinn would explain that if one party died,
the surviving party would become the owner of the account. Quinn stated that
except for Mrs. Jones's and defendant's signatures, all of the writing on the
application form was his.
Quinn did not recall discussing Mrs. Jones's will or her estate plan. He
testified that typically, he does not ask clients for a copy of their wills. He also
did not recall whether Mrs. Jones told him she was making a gift to defendant.
After the application was approved, the balance in the ODS account was
transferred to the new account, which the parties refer to as Olde Investors
Account II (the Account).
In 1999, defendant purchased a house in Marlton, New Jersey. Mrs. Jones
planned to sell her home in Southampton and move into defendant's new home,
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but she refused to contribute monies for its acquisition. Defendant purchased
the home with the proceeds from the sale of her Sussex County residence and
other monies that she borrowed. Mrs. Jones later sold her home in Southampton
and moved into the Marlton home with defendant. She intended to live with
defendant for the remainder of her life.
Defendant testified that after her father died, Mrs. Jones was healthy,
active, mentally competent, and independent. She said her mother handled her
own finances, wrote her own checks, paid her own bills, and made deposits to
and withdrawals from her accounts. In February 2000, Mrs. Jones opened a
money market account in her own name with The Vanguard Group. She also
had checking and savings accounts with Beneficial Bank.
In 2013, Mrs. Jones's health began to deteriorate, and she was hospitalized
due to a neck injury. In February 2013, Mrs. Jones executed a power of attorney,
authorizing defendant to act on her behalf on health and financial matters. The
attorney who prepared the power of attorney testified that at the time, Mrs. Jones
appeared mentally competent and understood what she was doing. Later, when
Mrs. Jones's health declined, defendant used the power of attorney to withdraw
money from her mother's Beneficial accounts to pay her mother's expenses.
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Plaintiff testified that Mrs. Jones did not intend to bequeath all of the
monies in the Account to defendant. He said that his parents always had treated
their three children equally. According to plaintiff, his mother was not
financially astute, and she relied upon her husband and others to handle the
family's finances. Plaintiff testified that after his father died, his mother was
despondent and she lacked the mental capacity to make financial decisions.
Plaintiff and Walter testified that at times, they stayed in their sister's
home in Marlton. Plaintiff noted that after his mother moved in with defendant,
she drove her own car to go shopping and to church. She also socialized with
friends. According to plaintiff, at that time, his mother's mind was "o.k.," but
she was grieving over his father's death. He noted that his mother drove her own
car until she was ninety-one years old.
Mrs. Jones died on June 25, 2015, at age ninety-five. In her will, Mrs.
Jones appointed plaintiff as executor of her estate. She directed that all of her
debts and funeral expenses be paid, and she bequeathed the remainder of her
estate to her husband, if he survived her. The will further provided that in the
event Mr. Jones did not survive her, the remainder of the estate would be given
to her surviving children "in equal shares."
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On November 5, 2015, plaintiff filed a verified complaint in the trial court
pursuant to Rule 4:67-1(a) challenging the distribution to defendant of the funds
in the Account. Plaintiff sought a determination that under the New Jersey
Multiple-Party Deposit Account Act (the MPDAA), N.J.S.A. 17:16I-1 to -17,
the Account was not a joint account with a right of survivorship, and defendant
had no legal right to all of the funds. Plaintiff further claimed the Account had
been established as a "convenience account" and all the monies in the account
were part of the estate, which should be distributed in accordance with the will.
Plaintiff also claimed that Mrs. Jones and defendant had a confidential
relationship, and defendant had exercised undue influence in having her mother
name her as a joint owner of the Account with a right of survivorship.
Plaintiff sought an order requiring defendant to pay over the funds in the
Account to the estate, so that they could be shared equally by Mrs. Jones's three
surviving children, as provided in her will. In addition, plaintiff sought an order
requiring defendant to return to the estate certain monies she had withdrawn
from Mrs. Jones's accounts. In his complaint, plaintiff named Walter as an
interested party.
In January 2016, defendant filed an answer disputing plaintiff's claims.
She also filed a motion pursuant to Rule 1:21-2(b)(3) seeking Hutchison's
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admission pro hac vice to represent her in the case. Plaintiff opposed the motion.
The judge entered an order dated February 12, 2016, finding that defendant had
shown good cause for Hutchison's admission pro hac vice.
On February 26, 2016, the judge denied plaintiff's application for relief
and converted the matter to a plenary proceeding. The judge afforded the parties
an opportunity for discovery. Plaintiff later filed a motion for summary
judgment, which the judge denied.
In October 2016, the judge conducted a trial and thereafter filed a written
opinion. The judge found that Mrs. Jones did not intend to make an inter vivos
transfer of the Account to defendant. The judge also found that a confidential
relationship existed between Mrs. Jones and defendant, but defendant did not
exercise undue influence upon Mrs. Jones when she opened the Account.
In addition, the judge decided that Mrs. Jones did not intend to establish
a joint account with defendant as a convenience account so defendant could pay
Mrs. Jones's expenses. The judge concluded that defendant was a joint owner
of the Account with a right of survivorship, and she was entitled to all of the
funds in the Account upon Mrs. Jones's death.
The judge determined that under the MPDAA, the funds in the Account
belonged to defendant as the surviving joint owner, and plaintiff had not
A-2557-16T2
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presented clear and convincing evidence showing that Mrs. Jones had a different
intent when the Account was opened. The judge also rejected plaintiff's claim
for the return of monies that defendant had drawn from Mrs. Jones's accounts
because the monies had been used to pay Mrs. Jones's expenses.
The judge memorialized her factual findings and legal conclusions in a
judgment dated January 12, 2017. This appeal followed.
II.
On appeal, plaintiff argues that the trial judge erred by finding that upon
Mrs. Jones's death, defendant was entitled to all of the monies in the Account.
Plaintiff argues that there is clear and convincing evidence that Mrs. Jones did
not intend the Account would be a joint account with a right of survivorship ,
and therefore defendant did not have a right under the MPDAA to all of the
funds in the Account.
Plaintiff further argues that because Mrs. Jones and defendant had a
confidential relationship, defendant was required to establish by clear and
convincing evidence that Mrs. Jones created the Account free of undue influence
and that she intended to make an inter vivos gift to defendant. Plaintiff contends
defendant did not make the required showing, and therefore the funds in the
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Account are part of Mrs. Jones's estate and subject to distribution in accordance
with her will.
In addressing these arguments, we note initially that in a non-jury trial,
the trial court's factual findings are "binding on appeal when supported by
adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Inv'rs
Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citing N.J. Turnpike Auth. v.
Sisselman, 106 N.J. Super. 358, 370 (App. Div. 1969)). We will not disturb the
court's findings of fact or conclusions of law "unless we are convinced that they
are so manifestly unsupported by or inconsistent with the competent, relevant
and reasonably credible evidence as to offend the interests of justice." Ibid.(quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.
1963)).
Our deference to the trial court's fact-finding is especially appropriate
where, as here, "the evidence is largely testimonial and involves questions of
credibility." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of
Weapons to J.W.D., 149 N.J. 108, 117 (1997)). We defer to the judge's findings
because the trial court heard the testimony, had the opportunity to observe th e
witnesses and therefore had a better opportunity than a reviewing court to
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evaluate the veracity of the witnesses. Gnall v. Gnall, 222 N.J. 414, 428 (2015)
(citing Cesare, 154 N.J. at 412).
A. The MPDAA
The MPDAA provides in pertinent part that "[s]ums remaining on deposit
at the death of a party to a joint account belong to the surviving party or parties
as against the estate of the decedent 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). The parties agree that the Account is a "joint account" as defined
in N.J.S.A. 17:16I-2(d). The statute states that a "joint account" is "an account
payable on request to one or more of two or more parties whether or not mention
is made of any right of survivorship, and regardless whether the names of the
parties are stated in the conjunctive or in the disjunctive." Ibid.Here, the trial judge noted that clear and convincing evidence is evidence
that "should produce in the mind of the trier of fact a firm belief or conviction
as to the truth of the allegations sought to be established." Estate of Ostlund v.
Ostlund, 391 N.J. Super. 390, 400 (App. Div. 2007) (quoting In re Purrazzella,
134 N.J. 228, 240 (1993)). The evidence must be "so clear, direct, and weighty
and convincing as to enable [either a judge or jury] to come to a clear conviction,
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without hesitancy, of the truth of the precise facts in issue." Ibid. (alteration in
original) (quoting In re Seaman, 133 N.J. 67, 74 (1993)).
The judge found defendant had testified credibly about the circumstances
under which the Account was opened. Defendant's testimony was corroborated
by Quinn's testimony and the documentary evidence presented at trial. The
judge determined that although Mrs. Jones's will provided that after payment of
her funeral expenses and debts, the remainder of the estate would be shared
equally by her three surviving children, this did not "override [the] independent
and intervening step by [Mrs.] Jones in which she designated [defendant] as joint
tenant with [a] right of survivorship to [the Account]."
The judge found that Mrs. Jones's action was "consistent and
contemporaneous" with her decision to sell her home and move in with
defendant with whom she intended to reside for the remainder of her life. The
judge stated that there was no evidence to corroborate plaintiff's assertion that
Mrs. Jones once told him she added defendant as an owner of the Account "for
convenience." The judge noted that plaintiff's claim was "significantly
tempered" by his "strong motive" to obtain one-third of the Account.
The judge also noted that in support of his claim, plaintiff had relied upon
two letters plaintiff had written to defendant. The judge found that plaintif f's
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reliance upon the letters was misplaced. The judge observed that plaintiff wrote
the letters ten years after the Account was opened, and this was after plaintiff's
relationship with defendant had soured.
We are convinced there is sufficient credible evidence in the record to
support the judge's conclusion that under the MPDAA, the assets remaining in
the Account belonged to defendant upon Mrs. Jones's death. The record
supports the judge's determination that plaintiff failed to present clear and
convincing evidence showing that Mrs. Jones did not intend to establish a joint
account giving defendant a right of survivorship.
B. Inter Vivos Transfer/Confidential Relationship/Undue Influence
In addition to the statutory test established by the MPDAA fo r
determining ownership of the account upon the death of one owner, a party may
challenge ownership of a joint account by showing evidence that the person who
opened the Account had a confidential relationship with the survivor. Ostlund,
391 N.J. Super. at 401 (citing Pascale v. Pascale, 113 N.J. 20, 30 (1988); In re
Estate of Penna, 322 N.J. Super. 417, 422 (App. Div. 1999)). If such a
relationship is established, a presumption of undue influence arises, which the
survivor must rebut with clear and convincing evidence. Ibid. (citing Pascale,
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113 N.J. at 30-32; Penna, 322 N.J. Super. at 426; Petruccio v. Petruccio, 205
N.J. Super. 577, 580-81 (App. Div. 1985)).
The test for determining whether a confidential relationship existed is
"whether the relations between the parties are of such a character of trust and
confidence as to render it reasonably certain that the one party occupied a
dominant position over the other and that consequently they did not deal on
terms and conditions of equality." Id. at 402 (quoting Blake v. Brennan, 1 N.J.
Super. 446, 453 (Ch. Div. 1948)). In making that determination, the court
should consider whether: (1) a relationship of trust and confidence between the
parties actually existed; (2) the parties dealt with each other on terms of equality;
(3) one party has superior knowledge of the details and effect of a proposed
transaction based on a fiduciary relationship; (4) a party has exerted
overmastering influence over the other party; and (5) one of the parties is weak
or dependent on the other. Ibid.Here, the judge found that Mrs. Jones did not intend to make an inter vivos
transfer of the Account to defendant because the record "clearly establishe[d]"
that Mrs. Jones retained her full interest in the Account. The judge noted that
both Mrs. Jones and defendant had to sign forms for withdrawals from the
Account. The judge pointed out that plaintiff had conceded defendant did not
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use the Account to pay Mrs. Jones's expenses, although some of the funds in the
Account were later transferred to Mrs. Jones's Vanguard account.
The judge also found that a confidential relationship existed between Mrs.
Jones and defendant. The judge noted that no evidence had been presented at
trial indicating that defendant exercised overmastering influence over Mrs.
Jones in 1998, when the Account was opened. The judge determined that there
was no evidence indicating that Mrs. Jones was "weak or dependent" upon
defendant when the Account was opened.
The judge noted, however, that in 1998, defendant had prepared wills for
both of her parents. When doing so, defendant had persuaded her parents not to
exclude Walter from their bequests, and to name plaintiff as executor in their
respective wills. In the application to open the Account, defendant identified
her mother's address as her own. Moreover, in 1999, Mrs. Jones sold her home
in Southampton and moved in with defendant in her home in Marlton. The judge
concluded that the evidence showed that a confidential relationship existed
between defendant and Mrs. Jones.
On appeal, plaintiff argues that because the judge found that Mrs. Jones
did not intend to make an inter vivos gift of the Account to defendant, the judge
should have ruled that defendant was not the owner of the Account and the
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monies were part of Mrs. Jones's estate. We disagree. Here, the judge found
that when Mrs. Jones opened the account, she did not intend to make a gift of
the Account to defendant because Mrs. Jones retained her full interest in the
Account during her lifetime. That finding did not preclude the judge from
deciding that Mrs. Jones intended that defendant would be a joint owner of the
Account, with a right of survivorship.
In responding to plaintiff's arguments on appeal, defendant argues that the
judge erred by finding that she had a confidential relationship with her mother.
Defendant asserts that such a relationship does not exist if the parties deal with
each other on equal terms, even though they are family members. Defendant
maintains there is no evidence she ever dominated her mother or exercised
overmastering influence over her. She asserts her mother remained strongly
independent for more than a decade after the Account was opened.
We are convinced, however, that there is sufficient credible evidence in
the record to support the judge's finding that a confidential relationship existed
between Mrs. Jones and defendant. Defendant's arguments on this point lack
sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
Plaintiff further argues that the judge erred by failing to require defendant
to present clear and convincing evidence showing she did not exercise undue
A-2557-16T2
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influence over Mrs. Jones when the Account was opened. Plaintiff contends
there was no proof that Mrs. Jones understood the legal effect of creating a joint
account with a right of survivorship. He asserts that Mrs. Jones's other accounts
were solely in her name. Plaintiff contends Mrs. Jones was not aware that, upon
her death, defendant would receive the Account, which contained the bulk of
her assets.
As noted, the judge found that defendant did not exercise undue influence
over her mother when the Account was opened. The judge decided that
defendant had presented clear and convincing evidence regarding the
circumstances under which the Account was established. The judge pointed out
Mrs. Jones made her own financial decisions, as shown by her refusal to provide
defendant with monies to help her purchase her new home in Marlton.
The judge also pointed out that in 1998 and 1999, Mrs. Jones was active
and independent, even though she was grieving over her husband's death. She
handled the arrangements for her husband's funeral and later arranged for the
sale of the marital home. Moreover, Mrs. Jones drove her own car, socialized
with friends, attended church, and went on trips. She also maintained her own
checking and savings accounts, which she used while she was living with
defendant.
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The judge noted that at trial, plaintiff acknowledged that even before his
father died, his mother wrote her own checks and handled the household
expenses. The judge also noted that plaintiff had testified he had no knowledge
of what his mother intended when she opened the Account. He knew she
maintained separate accounts. The judge pointed out that when they testified in
depositions, both plaintiff and Walter conceded that they had no evidence
defendant exercised undue influence over their mother.
The judge concluded that defendant had presented sufficient evidence to
rebut the presumption that she exercised undue influence over her mother with
regard to the Account. The judge found the evidence established that defendant
did not unduly influence her mother to name her as a joint owner of the Account
with a right of survivorship. There is sufficient credible evidence in the record
to support the judge's findings.
We reject plaintiff's contention that the judge failed to require defendant
to rebut the presumption of undue influence with clear and convincing evidence.
In her opinion, the judge noted that "[p]laintiff carries the burden of proving, by
a preponderance of the evidence, that a confidential relationship exist[ed]"
between his mother and defendant. The judge also stated that, if plaintiff was
able to prove such a confidential relationship existed, "the burden shifts to the
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donee to prove that no undue influence or deception was used to gain the
advantage," and in proving this, the proponent of the document "must overcome
the presumption by clear and convincing evidence." Thus, the judge required
defendant to present clear and convincing evidence to show she did not exercise
undue influence over Mrs. Jones when she named her as joint owner of the
Account with a right of survivorship.
III.
Next, plaintiff argues that the Account should be considered part of Mrs.
Jones's estate because it was a convenience account. Joint accounts are
sometimes created as convenience accounts to enable a named party to pay the
depositor's bills and manage his or her finances. See Sadofski v. Williams, 60
N.J. 385, 398-400 (1972). When a depositor creates a joint account as a
convenience, the monies in the account do not pass to the other named party
upon the depositor's death. See ibid.In this case, the judge found that "[d]efendant's actions at the time the
[A]ccount was created and [thereafter] do not suggest that the [A]ccount was set
up as a convenience account for [Mrs.] Jones or ever used in that manner." The
judge noted that "both [p]laintiff and [d]efendant agree that [d]efendant never
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accessed this account to satisfy [Mrs.] Jones's living expenses and medical
needs."
The judge observed it was unlikely Mrs. Jones intended the Account
would be used as a convenience account because the Account was opened in
1998 when Mrs. Jones was still living in her own home. The judge pointed out
that this was "before [defendant] purchased her Marlton home and long before
[Mrs.] Jones suffered any significant health setbacks."
The judge also wrote that the Account "was anything but convenient, as
the [A]ccount required special forms to be executed bearing both account
holders' signatures for withdrawals to be made." The judge observed that Mrs.
Jones's "decision to leave the funds in this particular account to [defendant],
after [Mrs. Jones] died," could be construed to have been done "in recognition
of the sacrifices [defendant] was making to care for her."
The judge stated that when the Account was opened, "[p]lans were clearly
underway . . . for [Mrs.] Jones to move in with her daughter . . . [and] live
with [defendant] for the rest of her life." The judge noted that at trial, plaintiff
testified that he had a conversation with his mother, in which she purportedly
told plaintiff that defendant's "name was put on the account for 'convenience
purposes.'" The judge said the testimony was "contrived" and found that it was
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contradicted by plaintiff's admission that he had no knowledge of what his
mother intended when she set up the Account. Plaintiff also "could not recall
any pertinent details of this critical exchange, including the date or year of the
conversation."
The judge explained that "[p]laintiff's uncorroborated statement that his
mother told him she intended this account as a convenience account simply
lacked credibility." The judge concluded that Mrs. Jones did not intend the
Account would be used as a convenience account, and that the Account was
never used in that manner. We conclude there is sufficient credible evidence in
the record to support the judge's findings. Plaintiff's arguments to the contrary
lack sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
IV.
Alternatively, plaintiff argues that "at the very minimum," the trial court
should have ordered a reapportionment and reallocation of the monies in the
Account to pay for certain of Mrs. Jones's expenses. Plaintiff contends that
reapportionment and reallocation of the funds is warranted because defendant
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"intentionally" withdrew $100,198 1 from Mrs. Jones's other accounts. Plaintiff
claims these expenses should have been paid with monies in the Account.
We note that at trial, defendant's attorney stated on the record that "all of
the checks that were in [dispute] with respect to [defendant]'s taking expenses
have been accepted and are off the table for the purposes of this trial," to which
plaintiff's attorney responded "[t]hat's correct." Thus, it appears that plaintiff
withdrew any claim for reimbursement of the monies defendant withdrew from
Mrs. Jones's other accounts.
In any event, the judge rejected plaintiff's claim for reapportionment and
reallocation of funds in the Account. The judge found that since 2000, Mrs.
Jones paid her monthly rent, tax bills, and household contributions using her
own checking account. The judge also found that after Mrs. Jones's health began
to decline, defendant withdrew funds from Mrs. Jones's Beneficial accounts to
pay for Mrs. Jones's expenses.
The judge stated, "[d]efendant maintained a detailed account of checks
written and expenditures made . . . [and] there is no evidence [d]efendant abused
her power of attorney in issuing payments or that she deviated from [Mrs.
1
The total includes $63,829 in caregiver expenses; $4,398 paid by defendant as
expense reimbursement; $26,822 in health care expenses; $964 for the repair of
a piano; and $4,185 for renovation of a bathroom shower.
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Jones's] own reliance on these same accounts when [Mrs. Jones] first moved in
with [d]efendant." The judge concluded that "[p]laintiff's contention [Mrs.]
Jones 'designated [the Account] for her health and care expenses' is not
supported by the credible trial evidence."
We are convinced the record supports the judge's conclusion that
defendant did not improperly withdraw funds from Mrs. Jones's accoun ts, and
that there is no basis to require defendant to reimburse the estate for the monies
withdrawn from those accounts.
V.
Plaintiff further argues that the trial court erred by granting defendant's
application for Hutchison's admission pro hac vice. A motion for pro hac vice
admission is committed to the sound discretion of the court. See L. Feriozzi
Concrete Co. v. Mellon Stuart Co., 229 N.J. Super. 366, 369 (App. Div. 1988).
We will not reverse the trial court's order granting admission of the attorney pro
hac vice unless shown to be a mistaken exercise of discretion. See ibid.Rule 1:21-2(b)(3) governs pro hac vice admission of attorneys in civil
actions. The rule provides in pertinent part that the motion shall be granted only
if the court finds, based upon a supporting affidavit, that there is good cause for
such admission, which shall include:
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(A) the cause in which the attorney seeks admission
involves a complex field of law in which the attorney is
a specialist, or
(B) there has been an attorney-client relationship
with the client for an extended period of time, or
(C) there is a lack of local counsel with adequate
expertise in the field involved, or
. . . .
(F) such other reason similar to those set forth in this
subsection as would present good cause for the pro hac
vice admission.
[Ibid.]
In support of the application for Hutchison's pro hac vice admission,
defendant presented the court with a certification from Gregory E. Sciolla, an
attorney with the firm Leonard, Sciolla, Hutchison, Leonard & Tinari, LLP. In
his certification, Sciolla states Hutchison is a partner in the firm, and Hutchis on
is a member in good standing of the Pennsylvania bar.
Sciolla also states that Hutchison is qualified to serve as lead counsel in
this case. He asserts Hutchison has special expertise in this "type of case" and
defendant had asked him to represent her in this litigation. Furthermore, at oral
argument on the motion, Sciolla noted that this case involved issues related to
Mrs. Jones's power of attorney, the relationships of the beneficiaries to the
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estate, and Mrs. Jones's mental status. Sciolla asserts Hutchison "has had great
experience with" these issues.
On February 12, 2016, the judge entered an order granting defendant's
motion for the reasons set forth in a statement appended to the order. The judge
found that defendant had established good cause for Hutchison's admission
pursuant to Rule 1:21-2(b)(3)(F) because "this case involves matters in which
Hutchison specializes."
On appeal, plaintiff argues the judge erred by allowing Hutchison to
appear pro hac vice. He asserts Hutchison has appeared numerous times in
matters in the New Jersey courts, including another case before the same judge.
He notes that the law firm's website does not indicate that Hutchison has
expertise in estate litigation. He contends this is not a case involving a comp lex
field of specialization, and there is no indication that Hutchison and defendant
had an attorney-client relationship over an extended period of time.
We are not persuaded by these arguments. We are convinced there is
sufficient credible evidence in the record to support the judge's determination.
The judge's decision to admit Hutchison pro hac vice was a reasonable exercise
of discretion under Rule 1:21-2(b)(3)(F).
Affirmed.
A-2557-16T2
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