ADKINS et al v. SOGLIUZZO, ESQ. et al

Filing 387

OPINION. Signed by Judge Susan D. Wigenton on 4/25/2016. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

JANE E. ADKINS, et al.,

Civil Action No. 09-1123 (SDW) (LDW)
Plaintiffs,

v.
OPINION
JOHN B. SOGLIUZZO, et al.,
Defendants.
April 25, 2016

WIGENTON, District Judge.
Before the Court is a matter on remand from the Third Circuit Court of Appeals concerning
the narrow issue of what damages, if any, to award to Plaintiff Jane E. Adkins (“Plaintiff”). See
Adkins v. Sogliuzzo, 625 F. App’x 565 (3d Cir. 2015). This Court having considered the parties’
submissions, having reached its decision without oral argument pursuant to Rule 78, and for the
reasons discussed below, DENIES Plaintiff’s request for damages.
I.

FACTUAL AND PROCEDURAL HISTORY 1
A. Factual History
This Court writes primarily for the parties and discusses only the facts and procedure

relevant to the issue to be addressed on remand. In 2002, Plaintiff and her brother, Defendant John

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Unless otherwise noted, the facts set forth in this Opinion are taken from parties’ submissions, the underlying
record, and previous opinions in the case from this Court and the Third Circuit.

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B. Sogliuzzo (“Defendant”), along with their spouses, recovered approximately $70,000 in cash
from their elderly relative Mary Grimley’s (“Grimley”) home. According to Plaintiff, she and
Defendant informed Grimley of the discovery, and Defendant said he would deposit the cash into
Grimley’s bank account.
Defendant, an attorney, managed banking and finances for Grimley and held a power of
attorney for her bank accounts until Grimley’s death in 2006. From 2004 to 2006, $321,040.05 in
bonds were redeemed from Grimley’s accounts. Plaintiff alleges that some of these funds, as well
as checks drawn on Grimley’s bank accounts, were deposited into accounts shared by Defendant
and his wife. Plaintiff and Defendant are both beneficiaries of Grimley’s estate, and Defendant
was the executor of the estate until Plaintiff took over the position in the summer of 2008.
B. Procedural History
Plaintiff initiated this lawsuit on March 12, 2009, suing Defendant and others, based upon
Defendant’s allegedly unlawful mismanagement of the finances of their mother Jane Sogliuzzo
and Grimley. Following a five-day bench trial, this Court issued Findings of Fact and Conclusions
of Law, Adkins v. Sogliuzzo, No. 09-CV-1123, 2014 WL 1343065 (Apr. 4, 2014), in which it
found, inter alia, that Defendant was liable for undue influence, breach of fiduciary duty,
negligence, fraud, and misrepresentation with respect to Grimley and the Grimley estate.
However, although this Court “acknowledge[d] that [Defendant’s] relationship with
Grimley [met] the definition of a confidential relationship,” and “accept[ed] that there were
irregularities with the redemption of [Grimley’s savings] bonds,” it concluded that Plaintiff failed
“to demonstrate that these bonds were deposited or used by [Defendant].” Id. at *7. With respect
to the approximately $70,000 cash found in Grimley’s home, although it noted that “the inference
of mismanagement or misuse is evident,” this Court again found that Plaintiff “did not demonstrate

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that [Defendant] retained the cash for personal use or misappropriated the funds.” Id. For these
reasons, this Court deferred to the probate court 2 for the calculation of damages. On appeal, the
Third Circuit affirmed this Court’s judgment with respect to liability, but reversed and remanded
for this Court to make a determination with respect to damages. Adkins v. Sogliuzzo, 625 F. App’x
at 574. The Third Circuit instructed this Court to “make explicit findings with respect to damages
in this action.” Id. As the issue of damages was explicitly addressed at trial, this Court has not
held a separate damages hearing, but has reviewed Proposed Findings of Fact and Conclusions of
Law submitted by the parties. (Dkt. Nos. 376, 378.)
II.

DISCUSSION
Although this Court found that Defendant had a confidential relationship with Grimley,

creating a presumption of undue influence sufficient to support a finding of liability, Adkins v.
Sogliuzzo, 2014 WL 1343065, at *7, Plaintiff’s failure to prove a gift or transfer of the cash or
bonds at issue to Defendant prevents this Court from awarding her damages.
“[A] valid gift has three elements. First, the donor must perform some act constituting the
actual or symbolic delivery of the subject matter of the gift. Second, the donor must possess the
intent to give. Third, the donee must accept the gift.” Pascale v. Pascale, 549 A.2d 782, 786 (N.J.
1988) (citing R. Brown, Personal Property § 7.1, at 77-78 (2d ed. 1975)). New Jersey cases also
recognize an additional element, the “absolute and irrevocable relinquishment by the donor of
ownership and dominion over the subject matter of the gift.” In re Dodge, 234 A.2d 65, 77 (N.J.
1967); see Pascale, 549 A.2d at 786. 3
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Plaintiff, acting as executrix of Grimley’s estate, sued Defendant for undue influence over Grimley in the Superior
Court of New Jersey, Chancery Division, Probate Part, Hudson County, but that litigation is stayed pending the
resolution of this case.

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After it is established that an inter vivos gift has been made, the court determines if the donee exerted undue
influence over the donor sufficient to void the gift. See In re Dodge, 234 A.2d at 83; Pascale, 549 A.2d at 786-88

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In the present matter, with respect to the approximately $70,000 in cash recovered from
Grimley’s apartment, Plaintiff failed to provide an accounting or other admissible evidence that
Defendant retained the cash for personal use or misappropriated the funds, thus failing to establish
the requisite acceptance and dominion over the money by the Defendant. With respect to the
redeemed bonds, Plaintiff again failed to prove that Grimley gave a gift or made any type of
transfer to Defendant. Plaintiff’s testimony regarding the authenticity of Grimley’s signature was
insufficient to establish whether or not Grimley had authorized Defendant to sign on her behalf
and redeem the bonds, thus failing to establish the requisite symbolic delivery and relinquishment
of ownership of the bonds. Even if Grimley had authorized Defendant to redeem the bonds,
Plaintiff presented no admissible evidence at trial to demonstrate that the bonds were deposited or
used by Defendant.
As Plaintiff acknowledged at trial, Defendant’s invocation of the Fifth Amendment cannot
be the sole basis for a finding of liability. Nor can it be the sole basis for an award of damages.
Much of Plaintiff’s evidence was not admissible at trial. 4

That which was admissible, in

conjunction with the adverse inference granted against Defendant on the basis of his invocation of
his Fifth Amendment privilege, was sufficient to support a finding of liability, but not a finding of
damages. Moreover, this Court’s conclusion that Plaintiff presented insufficient evidence to
support damages is not inconsistent with its finding of liability. See Adkins v. Sogliuzzo, 625 F.

(stating that where a confidential relationship exists between a donor and a donee, a “presumption of undue
influence arises,” which then shifts the burden to the donee to show “by clear and convincing evidence not only that
‘no deception was practiced therein, no undue influence used, and that all was fair, open and voluntary, but that it
was well understood.’”) (quoting In re Dodge, 234 A.2d at 83).
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Much of Plaintiff’s evidence at trial, including Grimley’s financial records and an accounting of Defendant’s
affairs managing her finances, was not provided in accordance with the Federal Rules of Evidence. Adkins v.
Sogliuzzo, 2014 WL 1343065, at *5. Specifically, Plaintiff’s forensic accounting expert, Meghan Callen, was not
able to testify regarding the accuracy of certain financial records and statements. Id. at n.5.

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App’x at 574 (citing Carpet Grp. Int’l v. Oriental Rug Imps. Ass’n, 173 F. App’x. 178, 180 (3d
Cir. 2006)).
CONCLUSION
For the foregoing reasons, Plaintiff’s request for damages is DENIED. An appropriate
order follows.

s/ Susan D. Wigenton
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE
Orig: Clerk
cc:
Leda Dunn Wettre, U.S.M.J.
Parties

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