                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).

                            Amratlal C. Bhagat v. Bharat A. Bhagat (A-31-11) (068213)

Argued February 27, 2013 -- Decided January 30, 2014

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

        In this appeal, in the context of cross-motions for summary judgment, the Court considers whether a father
adduced sufficient evidence to rebut the presumption that his transfer of stock to his son was a gift.

          Amratlal C. Bhagat (A.C.) is the father of Bharat A. Bhagat (B.B.), Ranjana Bhagat, and Janaki Tailor, the
wife of Nagarki Tailor (the Tailors). In 1984, B.B., Ranjana, and the Tailors each designated a portion of their stock in
ABB Properties Corporation (ABB Properties) as being held “in trust” for A.C., making A.C. the “beneficial owner”
of the majority of ABB Properties shares. On June 26, 1989, A.C. signed “DECLARATION OF GIFT” and “STOCK
POWER” documents transferring certain shares of his ABB Properties stock to B.B. The documents do not indicate
that the transfer was temporary or conditional. On that date, B.B. also signed an “OPTION TO PURCHASE STOCK”
document giving A.C. the option to purchase any or all of the gifted shares at the price of $1 per share for five years.
Later that year, ABB Properties’ attorney referenced A.C’s transfer of stock to B.B. in a letter to A.C. and in a letter to
a real estate loan officer. In 1990, using the same set of forms as those used in the 1989 transaction, A.C. transferred
additional shares in ABB Properties to B.B. According to B.B., the purpose of this transaction was for A.C. to convey
to him, by gift, all of the remaining ABB Properties shares of which A.C. was the beneficial owner.

           A.C. and B.B. sued the Tailors in 1994. The verified complaint filed by A.C. and B.B., and certified by B.B.,
stated that A.C. owned 104 shares of ABB Properties stock and discussed a series of corporate actions taken by A.C.
and B.B. against Nagarki Tailor. B.B. also reiterated the stock ownership distribution in the answer to the Tailors’
counterclaim, and in an affidavit. The Tailor litigation was resolved by settlement and consent order in November
1999. At some point during the Tailor litigation, A.C. hand-wrote a letter to the attorney representing A.C. and B.B. in
that litigation, stating: “It is my desire since 1989 to transfer my shares of ABB Properties Inc. to my son [B.B.]
Kindly do so at the earliest moment.” The record does not reveal whether any further action was taken.

          On December 3, 2003, A.C. filed a complaint against B.B. asserting that he did not permanently transfer his
shares in ABB Properties to B.B. B.B. denied that A.C. owned any stock in ABB Properties. A.C. and B.B. filed
motions for summary judgment. B.B. certified that his representation of stock ownership in the Tailor litigation
accounted for the fact that the corporate books reflected A.C.’s name. B.B. insisted, however, he was the “beneficial
owner” of the stock gifted to him in 1989 and 1990 and enjoyed all of the rights of the owner of the stock. A.C.
claimed that the transfer to B.B. was designed to secure financing for a hotel venture and was not intended to be
permanent. The motion judge held that the position taken by B.B. in the earlier Tailor litigation did not preclude him
from asserting that A.C. had gifted him all of his ABB Properties stock. The judge examined the evidence advanced by
A.C. to rebut the presumption of a gift from father to son and to prove his intent concerning the stock transfers
“convincingly and without reasonable doubt.” The motion judge found that A.C. had failed to sustain his burden of
proof to rebut the presumption of a gift, granted B.B.’s motion for summary judgment, and denied A.C.’s motion for the
same relief. The Appellate Division affirmed. The panel found that judicial estoppel did not apply and concluded that
“no rational factfinder could find that A.C. overcame the presumption that a completed gift occurred by certain,
definite, reliable and convincing proof, that leaves no reasonable doubt as to the intention of the parties at the time of
the gifts.” The Court granted A.C.’s petition for certification. 208 N.J. 382 (2011).

HELD: A person seeking to rebut the presumption that a transfer of property from a parent to a child is a gift must
show clear and convincing evidence of a contrary intent. That person is limited to evidence antecedent to,
contemporaneous with, or immediately following the transfer, and may also adduce proof of statements by the parties
concerning the purpose and effect of the transfer. Applying those principles, the evidence adduced by A.C., including


                                                           1
statements made by B.B. in a prior litigation regarding the ownership of ABB Properties stock, raises sufficient factual
issues to defeat summary judgment in this case.

1. Pursuant to the doctrine of judicial estoppel, a party who advances a position in earlier litigation that is accepted and
permits the party to prevail in that litigation is barred from advocating a contrary position in subsequent litigation to
the prejudice of the adverse party. The doctrine, however, does not apply when the earlier litigation settles prior to
judgment because no court has accepted the position advanced in the earlier litigation. Because the Tailor litigation
settled, B.B.’s statements concerning the ownership of ABB Properties stock in that matter do not bar B.B. from
claiming that A.C. gifted all of his ABB Properties stock to him in this matter. (pp. 17-19)

2. An appellate court reviewing an order granting summary judgment must review the competent evidential materials
submitted by the parties to identify whether there are genuine issues of material fact and, if not, whether the moving
party is entitled to summary judgment as a matter of law. That evaluation requires a review of the motion record
against not only the elements of the cause of action, but also the evidential standard governing that cause of action.
There are three elements of a valid and irrevocable gift: (1) actual or constructive delivery, (2) donative intent, and (3)
acceptance. Although the burden of proving an inter vivos gift is on the party who asserts the claim, when the transfer
is from a parent to a child, there is a presumption that the transfer is a gift. That presumption is rebuttable by evidence
of a contrary intent. (pp. 19-25)

3. In Peer v. Peer, 11 N.J. Eq. 432 (Ch. 1857), the court described the quality of the evidence that would be admissible
to rebut the presumption of a gift as “convincing, and of such a character as to leave no reasonable doubt as to the
intention of the party.” Many courts thereafter adopted a “convincing and leave no reasonable doubt as to the intention
of the party” standard to rebut the presumption of a gift. In addition, the proofs advanced to rebut the presumption
must be of facts antecedent to, contemporaneous with, or immediately after the transfer. Herbert v. Alvord, 75 N.J.
Eq. 428 (Ch. 1909). The Herbert court also excepted from the antecedent or contemporaneous requirement statements
or acts of the party to be charged with the gift. Id. at 429-30. Furthermore, this Court has found that subsequent
conduct of the parties also may be given in evidence to corroborate the inference drawn from prior and
contemporaneous circumstances. Weisberg v. Koprowski, 17 N.J. 362 (1955). (pp. 25-27)

4. The Court can identify no reason to depart from the standard used for more than 150 years to rebut the presumption
that a transfer of property from a parent to a child is a gift. Because that standard appears to contain elements of the
clear and convincing standard and the beyond a reasonable doubt standard, however, the Court discerns the need to
clarify. The Court’s examination of the cases suggests that the standard has been understood as, and should be, clear
and convincing. The Court views other language used in prior cases as an attempt to describe the quality of evidence
that will satisfy the clear and convincing standard of proof. There is no reason that a person seeking to rebut the gift
presumption should be required to meet a higher standard than clear and convincing evidence. In fact, in other
contexts, the clear and convincing standard is applied in circumstances affecting a person’s life, liberty, ability to
pursue a profession, or integrity. Therefore, a person who has transferred property to another, which raises a
presumption that the transferred property was a gift, must meet the clear and convincing evidence standard of proof to
rebut the presumption. The person seeking to rebut the presumption is limited to evidence antecedent to,
contemporaneous with, or immediately following the transfer. A party seeking to rebut the presumption may also
adduce proof of statements by the parties concerning the purpose and effect of the transfer. (pp. 27-33)

5. Applying these principles to the facts revealed in the summary judgment record, B.B.’s motion for summary
judgment should have been denied. The 1989 and 1990 transfers triggered the presumption that A.C. intended to gift
his ABB Properties shares to his son. Accordingly, A.C. was required to adduce evidence to defeat a summary
judgment motion that raised a genuine issue of material fact regarding one, some, or all of the elements of an inter
vivos gift, and those proofs had to rise to the quality required by the clear and convincing standard of proof. The
motion court and the appellate panel failed to consider various statements made by B.B. that contradict his position
that A.C. permanently transferred him all of his ABB Properties stock. In particular, although the prior inconsistent
statements made by B.B. in the Tailor litigation do not judicially estop B.B.’s current defense, those statements may be
considered admissions of a party and evidence that may impeach B.B.’s credibility. B.B. also filed certifications in
this matter in which he describes A.C. as the beneficial owner of the ABB Properties stock and explains his
understanding of that term. These statements create genuine issues of fact concerning whether A.C. and B.B.
contemplated a permanent transfer of stock. (pp. 33-36)




                                                            2
         The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court for
further proceedings consistent with this opinion.

     CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE
RODRÍGUEZ (temporarily assigned) join in JUDGE CUFF’s opinion.




                                                     3
                                      SUPREME COURT OF NEW JERSEY
                                        A-31 September Term 2011
                                                 068213

AMRATLAL C. BHAGAT,
Individually and as
Shareholder of ABB PROPERTIES
CORPORATION, A New Jersey
Corporation and as a
Shareholder of EASTERNER
MOTOR INN, INC., a New Jersey
Corporation,

    Plaintiff-Appellant,

         v.

BHARAT A. BHAGAT and CRANBURY
HOTELS, LLC, a New Jersey
Limited Liability Company,

    Defendants-Respondents.


         Argued February 27, 2013 – Decided January 30, 2014

         On certification to the Superior Court,
         Appellate Division.

         Joseph B. Fiorenzo argued the cause for
         appellant (Sokol, Behot & Fiorenzo,
         attorneys; Mr. Fiorenzo and Steven N.
         Siegel, on the briefs).

         Jonathan I. Epstein argued the cause for
         respondents (Drinker Biddle & Reath,
         attorneys; Mr. Epstein and Karen A. Denys,
         on the brief).

    JUDGE CUFF (temporarily assigned) delivered the opinion of

the Court.

    This appeal arises from the purported transfer of stock in

a closely held corporation between a father and son.   Both


                                1
parties concede that when a father transfers stock to a son, a

presumption of a gift arises.     The issue is whether the father

adduced sufficient evidence to rebut that presumption in the

context of cross-motions for summary judgment.     That issue

implicates the applicable standard of proof, the nature and

quality of the evidence that will satisfy that standard, and the

manner in which the standard of proof governs the summary

judgment analysis.     We must also determine whether a position

taken by the son in earlier litigation against other family

members bars his current position that his father gifted to him

all of the stock in the family business.

    Here, despite the urging of plaintiff and some reasoned

authority elsewhere, we decline to abandon a preponderance of

the evidence standard of proof in favor of the well-established

clear and convincing standard.    We also reiterate that every

motion for summary judgment requires the court, trial or

appellate, to review the motion record against not only the

elements of the cause of action, but also the evidential

standard governing that cause of action.

    Finally, we emphasize that the doctrine of judicial

estoppel may be invoked only when a position advanced in prior

litigation concerning the subject matter of the current

litigation has been accepted by a court and led to a judgment in

favor of that party.    If the matter is resolved by settlement,


                                   2
as in this case, the circumstances warranting application of the

bar do not exist.    The prior inconsistent position, however, may

be utilized in the current litigation as an admission and for

impeachment purposes.

                                 I.

     On December 3, 2003, Amratlal C. Bhagat (A.C.),

individually and as a shareholder of ABB Properties Corporation

(ABB Properties) and as shareholder of Easterner Motor Inn, Inc.

(Easterner), filed a complaint against his son, Bharat A. Bhagat

(B.B.),1 Cranbury Hotels, L.L.C. (Cranbury), and various other

corporate entities (collectively defendants).    This action was

prompted by B.B.’s creation of a new entity, Cranbury, and the

transfer of a hotel and property from Easterner to Cranbury.

A.C. alleged that B.B. breached a fiduciary duty owed to A.C.

and converted, as his own, stock intended for A.C.    A.C. also

alleged B.B. fraudulently and deceitfully transferred the stock

to his ownership.   A.C. sought immediate access to the books and

records of ABB Properties, an accounting, imposition of a

constructive trust on Cranbury, appointment of a temporary

receiver, and disgorgement or restitution of funds and property

acquired by B.B.    In the answer, B.B. denied that A.C. owned any

stock in ABB Properties.   In a counterclaim, defendants alleged

1
  For ease of reference, we refer to plaintiff as A.C. and the
individual defendant as B.B.


                                  3
that A.C. breached his obligations under power of attorney and

breached the fiduciary duty owed by A.C. to B.B.

     A.C. and B.B. filed motions for summary judgment.    The

facts, viewed in the light most favorable to A.C., are derived

from the certifications submitted by both parties in support of

and in opposition to cross-motions for summary judgment.

     Since the early 1970s, the Bhagat family business has

centered on owning and operating hotels and motels.     In 1974, a

corporation known as Easterner was formed to purchase and

operate a Quality Inn hotel in Bordentown.     The majority

stockholders in Easterner were Nagarki K. Tailor and his wife

Janaki Tailor (the Tailors).     Janaki is the daughter of A.C. and

the sister of B.B.   Neither A.C. nor B.B. owned stock in

Easterner at that time.     In 1981, Winter Park Motor Inn, Inc.

(Winter Park) was formed to purchase and operate a Quality Inn

in Winter Park, Florida.2    In 1982, Easterner purchased a Best

Western hotel in Bordentown.

     ABB Properties was also formed in 1981.     Winter Park and

Easterner became wholly owned and operated subsidiaries of ABB

Properties.3   As of 1984, the Tailors and B.B. each owned one


2
   The record does not reflect the composition of the stockholders
in Winter Park.
3
  ABB Properties held all fifty shares of Class-A voting stock
and all 200 shares of Class-B non-voting stock of Easterner and
all 100 shares of Class-A voting stock and all 600 shares of
Class-B non-voting stock of Winter Park.

                                   4
hundred shares of Class-A voting stock and 350 shares of Class-B

non-voting stock in ABB Properties.   Ranjana Bhagat, sister of

Janaki Tailor and B.B., owned 100 shares of Class-B non-voting

stock in ABB Properties.   A.C. owned no stock in ABB Properties

at that time.

    In 1984, A.C.’s attorney, James P. MacLean, III, drafted

trust documents that B.B., the Tailors, and Ranjana each signed;

the documents designated a portion of each child’s shares in ABB

Properties as being held “in trust” for A.C.   B.B. and the

Tailors each placed 52 shares of Class-A voting stock and 188

shares of Class-B non-voting stock in trust for A.C.    Ranjana

placed all one hundred shares of her Class-B non-voting stock in

trust for A.C.

    In a December 4, 1984 inter-office memorandum, MacLean

wrote that he had “dictated a very simple form of authorization

and direction in which each of the boys acknowledges that 52

shares of voting and 188 shares of non-voting [stock] are held

in trust for A.C. Bhagat as the beneficial owner and that on

Bhagat’s request I am authorized and directed to transfer those

shares to A.C. Bhagat.”

    A.C. thus became the “beneficial owner” of 104 shares of

voting stock, constituting a majority interest in ABB

Properties.   B.B., Ranjana, and the Tailors remained the owners




                                5
“on the books” because no change was made in the stock ledgers

or corporate books.

    On June 26, 1989, A.C. signed a document entitled

“DECLARATION OF GIFT,” which conveyed his common stock in ABB

Properties to B.B.    The document stated:

         For love and affection, the undersigned
         AMRATLAL C. BHAGAT, hereby transfers and
         conveys the following common capital stock
         of ABB PROPERTIES CORPORATION to and in
         favor of his son, BHARAT A. BHAGAT, [at a
         particular address in Winter Park, Florida]:

         (a)   53 shares of the class A (voting)
               common capital stock of ABB Properties
               Corporation.

         (b) 187 shares of the class B (non-voting
             common) capital stock of ABB Properties
             Corporation.

    On the same date, A.C. signed a “STOCK POWER,” in which he

“s[old], assign[ed] and transfer[red]” to B.B. fifty-three

shares of Class-A voting stock, and also appointed his attorney

“to transfer the said stock on the books of the within named

company with full power of substitution in the premises.”    That

same day A.C. signed a similar “STOCK POWER” for 187 shares of

Class-B non-voting stock.    These documents do not indicate that

the transfer was temporary or conditional.   Also on that date,

B.B. signed an “OPTION TO PURCHASE STOCK,” in which he granted

A.C. “the option, exercisable exclusively by him, to purchase

any or all” of the gifted shares at the price of $1 per share.



                                  6
This instrument provided that the option “shall expire five

years from the date hereof or upon the death of [A.C.],

whichever shall first occur.”

    Around the time of this transaction, A.C. lived with B.B.

in Florida.   Purportedly, in accordance with traditions of

Indian culture, A.C. frequently spoke about the family business

and would tell B.B. “all of this is for you only.”     B.B. asserts

that “in the Indian culture, it is customary for the father to

give everything to the eldest son.”

    On August 24, 1989, an attorney for ABB Properties, William

A. Walker II, wrote two letters that referenced the gift.

Walker wrote one letter to A.C. referencing the documents

granting the gift and instructing A.C. to retain those documents

and the proper notation of the option on the stock certificates.

The second letter was to a real estate loan officer at Southeast

Bank in Florida, which stated in relevant part:

              Based upon certification received by us
         from Attorney James P. MacLean, III of
         Haddonfield, New Jersey, we advise that
         Bharat A. Bhagat held 48 shares of the
         voting common stock and 162 shares of the
         non-voting common stock, representing 24%
         and 20.25% of the outstanding and authorized
         shares, respectively.

              In a recent transaction which occurred
         in our office Mr. Bhagat became owner of
         additional shares as follows:

               53 shares of voting common stock
               187 shares of non-voting common stock


                                 7
              The result of the above is that, based
         upon the certification of Attorney James P.
         MacLean   III  and   the  transaction   which
         occurred in our office, Mr. Bharat A. Bhagat
         became the owner and holder of the following
         shares of common capital stock in ABB
         Properties, Inc., a New Jersey Corporation.

              101 shares of Class A (voting) common
         capital stock representing 50.5% of the
         total outstanding.    349 shares of Class B
         (non-voting)     common     capital     stock
         representing 43.6% of the total outstanding.

              Under   the    terms    of    the    stock
         certificate, the shares are transferable on
         the books and records of the corporation,
         which we do not maintain, but execution of
         the appropriate stock powers and delivery of
         certificates representing the transfer of
         ownership and control to Bharat A. Bhagat
         have   been   completed,  which     two   items
         constitute   all   incidence    of    ownership
         necessary to vest control in Bharat A.
         Bhagat.

    In 1990, using the same set of forms as those used in the

1989 transaction, A.C. transferred 50 shares of Class-A voting

stock and 288 shares of Class-B non-voting stock in ABB

Properties to B.B.   The parties did not use an attorney for this

transaction but simply utilized the same forms that the

attorneys had prepared the prior year, modified with the new

dates and number of shares.   According to B.B., the purpose of

this transaction was for A.C. to convey to him, by gift, all of

the remaining shares of which A.C. was the beneficial owner,

making B.B. the “owner of ABB [Properties] stock.”



                                 8
Inadvertently, one share of ABB Properties remained in A.C.’s

name.   According to A.C., the 1990 transaction was intended to

be a “re-do” of the 1989 transaction, which he contends had

never been effective.

     In 1994, after A.C. purportedly transferred his entire

stock in ABB Properties to B.B., A.C. and B.B. sued the Tailors

to impose a constructive trust, to appoint a receiver, and for

damages and an accounting regarding the operation of the

Bordentown hotel and acquisition of a neighboring hotel by the

Tailors.   A.C. and B.B. alleged that the Tailors mismanaged the

Best Western hotel and used Easterner’s funds to purchase a

neighboring hotel in the name of Bordentown Hotels, Inc., a

corporation wholly owned by the Tailors.

     The verified complaint filed by A.C. and B.B., and

certified by B.B., stated that B.B. owned 48 shares of voting

stock, and A.C. owned 104 shares.    The complaint also related a

series of corporate actions taken by A.C. and B.B. against

Nagarki Tailor, A.C.’s son-in-law and B.B.’s brother-in-law,

following their discovery of his application to obtain another

Best Western franchise.   The actions undertaken by A.C. and B.B.

removed Nagarki Tailor as President and General Manager of

Easterner and installed A.C. as President and Treasurer of

Easterner and B.B. as Assistant Secretary.    B.B. also reiterated

the stock ownership distribution in the answer to the Tailors’


                                 9
counterclaim, and in an affidavit executed in December 1994 in

the Tailor litigation.

    Although A.C. had been installed as an officer of

Easterner, since 1995, he spent most of his time living in his

native India.     During that time, B.B. ran ABB Properties, and

A.C. received no salary or distributions from ABB Properties and

filed no tax returns in the United States.

    A.C.’s and B.B.’s stock ownership in ABB Properties was not

at issue in the Tailor litigation, which was eventually resolved

by settlement and consent order in November 1999.     Through the

settlement the Tailors relinquished their shares of stock in ABB

Properties; afterwards those shares were cancelled.     As a result

of the 1989 and 1990 transactions between A.C. and B.B. and the

settlement of the Tailor litigation, B.B. emerged as the sole

owner of all shares of stock in ABB Properties, except for one

share left in A.C.’s name.

    In response to a motion for summary judgment in the current

litigation, B.B. later certified that his representation of the

stock in the Tailor litigation accounted for the fact that the

corporate books reflected A.C.’s name.     B.B. insisted, however,

he was the “beneficial owner.”    B.B. certified that “[t]his was

an approach we followed generally from 1981-1989 when title

remained in my name while beneficial ownership remained in my

father’s name.”    B.B. further certified that A.C. requested that


                                  10
B.B. not reveal the gift in the Tailor litigation.    B.B.

explained in his certification that although the statements he

made

           in the Tailor litigation may appear at odds
           with the gifting that occurred in 1989 and
           1990 . . . my father and I had the
           understanding about distinguishing between
           legal title and beneficial ownership . . .
           [and that] I was the beneficial owner of the
           stock that had been gifted to me in 1989 and
           1990 and I enjoyed all of the rights of the
           owner of the stock with my father’s full
           knowledge and agreement.

       At some point during the Tailor litigation, A.C. hand-wrote

a letter to William Hyland, Jr., the attorney representing A.C.

and B.B. in that litigation, stating: “It is my desire since

1989 to transfer my shares of ABB Properties Inc. to my son

Bharat Amratlal Bhagat.     Kindly do so at the earliest moment.”

The record does not reveal whether there were any further

communications between A.C. and his attorney or whether any

further action was taken.    The record suggests that this

transfer never occurred.

                                 II.

       In addressing the cross motions for summary judgment, the

motion judge held that the position taken by B.B. in the earlier

litigation with the Tailors did not bar him from asserting that

the stock in ABB Properties had been transferred to him by his

father as a gift.    The motion judge observed that the matter had



                                  11
settled, no testimony had been taken from any parties, and the

court had made no determination about any disputed issues in the

litigation, including who owned what shares and the

circumstances under which any party acquired any shares in any

corporation.   Rather, a judge had simply signed and filed a

consent order.

     As to the central issue in the litigation between father

and son, the motion judge found that the proofs concerning

intent and delivery of the stock were overwhelming.     He cited

the declarations of gift, concurrent stock powers, and an

undated letter from counsel for ABB Properties confirming the

transfer of the gift documents.4     Additionally, the judge cited a

letter from A.C. to ABB Properties’ attorney “unequivocally

memorializing [A.C.’s] intent to transfer all his stock in ABB

[Properties] to his son.”   The judge also found that B.B.

accepted the gift and B.B. retained the documents, thereby

rendering both issues, acceptance and dominion, undisputed.

     Applying the presumption in favor of a gift, the judge

examined the evidence advanced by A.C. to rebut the presumption

and “prove convincingly and without reasonable doubt as to the

contemporaneous intent of [A.C.] to gift 100% of the shares of

ABB [Properties] to [B.B.].”   Measured by this standard, the

4
 As the motion judge noted, while the parties did not dispute
that the undated letter was not contemporaneous with the
proposed gift, it in no way undermined the gift.

                                12
motion judge found that A.C. had failed to sustain his burden of

proof, noting that “none of his proofs are antecedent or

contemporaneous with the execution of the gift documents.”

Further, the motion judge determined that B.B.’s understanding

or intent was immaterial to the gift analysis, and that A.C.’s

“sworn certification[s] made more than 20 years after the time

of the purported gift” were insufficient to rebut the

presumption.    The motion judge, therefore, granted B.B.’s motion

for summary judgment and denied A.C.’s motion for the same

relief.

    The Appellate Division affirmed.     The appellate court

summarily rejected the preclusionary arguments advanced by A.C.,

including judicial estoppel, and adopted the reasoning of the

motion judge.   As to the stock transactions, the Appellate

Division noted that in this state a transfer of stock by a

parent to a child is presumed to be a gift.    To overcome the

presumption, the proof advanced must be “certain, definite,

reliable and convincing, and leave no reasonable doubt as to the

intention of the parties.”    Moreover, the evidence advanced to

rebut the presumption must precede the transfer or be

contemporaneous to the transfer or originate immediately after

the transfer.   After examining the evidence marshaled by A.C.,

the panel determined that A.C. offered no proof that was

antecedent or contemporaneous to the transaction.    The Appellate


                                 13
Division agreed with the motion judge, finding B.B.’s acceptance

of the stock undisputed.

    The panel acknowledged A.C.’s contention that the transfer

to B.B. was designed solely to secure financing for another

hotel venture.   Thus, according to A.C., the transfer was never

intended to be permanent and was also conditioned on securing

the financing for the hotel.    In essence, A.C. contended the

shares reverted to him when B.B. failed to obtain the financing

to further the venture.    The panel also acknowledged that these

contentions “could potentially establish a genuine issue of

material fact if not for the parental gift presumption” and the

heightened standard of proof as to the intention of the parties.

In the end, the Appellate Division determined that the evidence

overwhelmingly established A.C.’s donative intent and that “no

rational factfinder could find that A.C. overcame the

presumption that a completed gift occurred by certain, definite,

reliable and convincing proof, that leaves no reasonable doubt

as to the intention of the parties at the time of the gifts.”

The Court granted A.C.’s petition for certification.    208 N.J.

382 (2011).

                                III.

    On appeal, A.C. argues that the Appellate Division departed

from the summary judgment standard set forth in Brill v.

Guardian Life Insurance Co. of America, 142 N.J. 520, 540


                                 14
(1995), and imposed a higher standard of proof and quality of

proof to rebut donative intent in the context of intra-family

property transfers.    A.C. contends that the appellate panel

erred in evaluating the summary judgment motion in accordance

with the heightened standard of “certain, definite, reliable and

convincing proof” and also declaring that acts or statements

made by the parties regarding donative intent are limited to

those that are antecedent, contemporaneous, or immediately

following the transfer.    A.C. maintains that reliance on case

law that predated the modern summary judgment standard led to an

erroneous result.     A.C. argues that the appellate ruling “turns

the summary judgment standard upside-down.”

    Rather, A.C. contends that the motion judge and the

appellate panel should have limited their review of the motion

papers to consideration of the competent evidential materials

presented by the parties, identification of the existence of

disputed material facts, and determination whether, viewing the

motion record in the light most favorable to him as the non-

moving party, the competent evidential materials permit a

rational factfinder to resolve the disputed facts in his favor.

    A.C. also argues that the Appellate Division ignored

detailed sworn statements submitted by him in support of his

motion for summary judgment--specifically, sworn statements made

by him based on personal knowledge concerning the events of 1989


                                  15
and 1990--and in opposition to his son’s motion for summary

judgment.   In addition, A.C. contends that the appellate panel

misinterpreted the case law requiring contemporaneous acts and

statements of intent.

    Finally, A.C. insists that statements made by B.B. in prior

intra-family litigation are inconsistent with statements made in

this litigation.   He contends that judicial estoppel bars B.B.

from adopting a different position about the ownership of the

stock in ABB Properties after making contrary statements in

litigation with the Tailors.   A.C. argues that the disposition

of the prior litigation by settlement rather than by trial is

irrelevant.

    B.B. responds that the Appellate Division applied the

correct summary judgment standard.    He emphasizes that the

process of evaluation of the competent evidential materials

includes reference to the evidential standard governing the

claim.   Only then can the court determine whether genuine issues

of material fact require resolution by the factfinder.

    B.B. also argues that case law outlining the nature and

quality of the proofs needed to rebut the presumption of a gift

is neither outdated nor misapplied.    Finally, B.B. contends that

none of his statements in the earlier intra-family litigation

invoke the doctrine of judicial estoppel because no factfinder,




                                16
judge or jury, ever resolved the issue of stock ownership in

that matter.

                               IV.

    The threshold issue in this appeal is whether B.B. is

barred by the doctrine of judicial estoppel to argue that the

stock transferred by A.C. to him was a gift.   If the doctrine

applies to statements made by B.B. about ownership of the ABB

Properties stock in prior intra-family litigation, he would be

barred from contending that A.C. gifted those shares to him and

summary judgment could not be granted in favor of B.B. as a

matter of law.

    A party who advances a position in earlier litigation that

is accepted and permits the party to prevail in that litigation

is barred from advocating a contrary position in subsequent

litigation to the prejudice of the adverse party.     Kimball

Int’l, Inc. v. Northfield Metal Prods., 334 N.J. Super. 596, 606

(App. Div. 2000), certif. denied, 167 N.J. 88 (2001); Chattin v.

Cape May Greene, Inc., 243 N.J. Super. 590, 620 (App. Div.

1990), aff’d o.b., 124 N.J. 520 (1991); see also Ali v. Rutgers,

166 N.J. 280, 287-88 (2000) (explaining that retraction of

waiver of issue not equivalent to litigating an issue

successfully or otherwise).   At the heart of the doctrine is

protection of the integrity of the judicial process.     Cummings

v. Bahr, 295 N.J. Super. 374, 387 (App. Div. 1996).


                                17
    Judicial estoppel is an extraordinary remedy.      Kimball,

supra, 334 N.J. Super. at 608.   It should be invoked only to

prevent a miscarriage of justice.     Ibid.; see also Ryan

Operations G.P. v. Santiam-MidWest Lumber Co., 81 F.3d 355, 365

(3d Cir. 1996).   It is also a doctrine that has been harshly

criticized.   Douglas W. Henkin, Comment, Judicial Estoppel—

Beating Shields Into Iron Swords and Back Again, 139 U. Pa. L.

Rev. 1711, 1729-43 (1991).   However, we have not hesitated to

apply it when warranted.   Thus, a casino employee facing

revocation of his license due to a criminal conviction was

barred from disavowing in the license revocation proceeding the

factual basis of his guilty plea.     State, Dep’t of Law & Pub.

Safety v. Gonzalez, 142 N.J. 618, 632 (1995).     Similarly, a

litigant who asserted a position and obtained summary judgment

and dismissal of a party’s claim for indemnification was barred

from taking a different position on appeal.     Richardson v. Union

Carbide Indus. Gases Inc., 347 N.J. Super. 524, 530 (App. Div.

2002).

    Thus, the doctrine is not invoked unless a court has

accepted the previously advanced inconsistent position and the

party advancing the inconsistent position prevails in the

earlier litigation.   Stated differently, the doctrine does not

apply when the matter settles prior to judgment because no court




                                 18
has accepted the position advanced in the earlier litigation.

Kimball, supra, 334 N.J. Super. at 607.

       The facts presented in this appeal do not warrant

application of this remedy.    Clearly, B.B. has taken

inconsistent positions regarding the ownership of the contested

stock in the prior intra-family litigation against the Tailors

and in this litigation with A.C.      The prior litigation, however,

was settled by the parties, thereby obviating the need for a

judge to accept or reject the inconsistent position advanced by

B.B.    Indeed, it does not appear that stock ownership was an

issue in the earlier litigation.      On the other hand, as

discussed later in this opinion, B.B.’s statements in the Tailor

litigation are admissions that may be introduced as substantive

evidence by A.C. and used to impeach his credibility in the

current father-son litigation.

                                 V.

       An appellate court reviews an order granting summary

judgment in accordance with the same standard as the motion

judge.    W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012); Henry v.

N.J. Dep’t of Human Servs., 204 N.J. 320, 330 (2010).

Therefore, this Court must review the competent evidential

materials submitted by the parties to identify whether there are

genuine issues of material fact and, if not, whether the moving

party is entitled to summary judgment as a matter of law.


                                 19
Brill, supra, 142 N.J. at 540; R. 4:46-2(c).    In conducting this

review, the Court must keep in mind that “an issue of fact is

genuine only if, considering the burden of persuasion at trial,

the evidence submitted by the parties on the motion, together

with all legitimate inferences therefrom favoring the non-moving

party, would require submission of the issue to the trier of

fact.”   R. 4:46-2(c).   The practical effect of this rule is that

neither the motion court nor an appellate court can ignore the

elements of the cause of action or the evidential standard

governing the cause of action.

    Brill v. Guardian Life Insurance Co. of America illustrates

this proposition.   Brill, supra, involved a negligence claim

against a life insurance broker and his agency for failing to

advise a prospective insured of the availability of immediate,

temporary coverage upon completion of the application process.

142 N.J. at 523.    The Court reviewed the common law recognizing

the duty owed by an insurance broker to an insured, sorted

through the relevant and irrelevant facts asserted by the

parties, and held that an expert opinion based on a false

assumption did not create a genuine issue of material fact.     Id.

at 542-43.   Only after identifying the elements of the cause of

action and the standard of proof governing that claim could the

Court then determine that no reasonable jury could conclude that

the broker’s failure to advise the plaintiff of the availability


                                 20
of immediate coverage upon submission of the application caused

the lack of effective coverage at the time of the plaintiff’s

death.   Id. at 542-45.

    The need to identify the elements of the cause of action

and the standard of proof in evaluating a motion for summary

judgment is well-illustrated by defamation actions against a

media defendant.    In Durando v. Nutley Sun, 209 N.J. 235 (2012),

the Securities and Exchange Commission filed a civil complaint

against two men charging them with assorted violations of

federal securities law.    Id. at 240.    A regional daily newspaper

reported that the complaint had been filed, identified the men,

and summarized the charges against them.      Id. at 241.   Nothing

in the article stated or suggested that either man had been

arrested.   Ibid.   A weekly local newspaper reprinted all but the

last three paragraphs of the original article and wrote a new

headline for the article, which stated that the men had been

charged in a stock scheme.    Id. at 242.    The local newspaper

also prepared a “teaser” for the front page of the weekly

publication that expressly stated that the local men had been

arrested.   Ibid.   The weekly publication retracted the front

page “teaser” three weeks later.      Id. at 243.

    In reviewing an Appellate Division opinion affirming

summary judgment in favor of the media defendant, the Court

identified the elements a plaintiff must establish in a


                                 21
defamation action against a media defendant that publishes an

article touching on a matter of public interest.   Id. at 248.

The Court also identified the elements of the cause of action of

false light, id. at 249, and examined the actual malice

standard, id. at 249-52.   It did so because the Court recognized

that, to defeat the media defendant’s motion for summary

judgment, the plaintiffs had to establish that a reasonable jury

could conclude by clear and convincing evidence that the media

defendants acted with actual malice.   Justice Albin wrote:

               To   defeat   defendants’  motion   for
          summary judgment in this case, plaintiffs
          must establish that a reasonable jury could
          conclude by “clear and convincing evidence”
          that [the publisher of the weekly] published
          the erroneous teaser with actual malice.
          “Although courts construe the evidence in
          the light most favorable to the non-moving
          party in a summary judgment motion, the
          ‘clear and convincing’ standard in [a]
          defamation action adds an additional weight
          to the plaintiffs’ usual ‘preponderance of
          the evidence’ burden.”

          [Id. at 253 (citations omitted).]

    In short, the evaluation of every motion for summary

judgment requires the court, trial or appellate, to review the

motion record against not only the elements of the cause of

action but also the evidential standard governing that cause of

action.   We, therefore, turn to an examination of the elements

of a valid inter vivos gift and the nature and measure of the

proof required to rebut the presumption of such a gift.


                                22
                                 VI.

    There are three elements of a valid and irrevocable gift.

First, there must be actual or constructive delivery; that is,

“the donor must perform some act constituting the actual or

symbolic delivery of the subject matter of the gift.”        Pascale

v. Pascale, 113 N.J. 20, 29 (1988).    Second, there must be

donative intent; that is, “the donor must possess the intent to

give.”   Ibid.   Third, there must be acceptance.   Ibid.     We have

also recognized that the donor must absolutely and irrevocably

relinquish “ownership and dominion over the subject matter of

the gift, at least to the extent practicable or possible,

considering the nature of the articles to be given.”        In re

Dodge, 50 N.J. 192, 216 (1967); accord Sipko v. Koger, Inc., 214

N.J. 364, 376 (2013); Farris v. Farris Eng’g Corp., 7 N.J. 487,

500-01 (1951).

    Actual delivery of the gifted property is necessary except

where “‘there can be no actual delivery’ or where ‘the situation

is incompatible with the performance of such ceremony.’”        Foster

v. Reiss, 18 N.J. 41, 50 (1955) (quoting Cook v. Lum, 55 N.J.L.

373, 374 (Sup. Ct. 1893)).    A gift of stock is such a situation

because the ownership of stock is now often recorded simply in

book form by the issuer or a broker.    See N.J.S.A. 12A:8-301b.

Therefore, “[i]n the absence of express provisions to the

contrary, stock may be transferred by delivery of a separate


                                 23
written transfer, without delivery of any certificate where it

is not in possession of the transferee.”    Hill v. Warner, Berman

& Spitz, P.A., 197 N.J. Super. 152, 162 (App. Div. 1984).      In

other words, the delivery of the stock certificate may be

constructive, and the failure to record the transfer on the

corporate books does not defeat the gift so long as the transfer

is accompanied by words that express donative intent and the

donor has divested himself completely of the property.    Id. at

162-63.

    The burden of proving an inter vivos gift is on the party

who asserts the claim.    Sadofski v. Williams, 60 N.J. 385, 395

n.3 (1972).   Generally, the recipient must show by “clear,

cogent and persuasive” evidence that the donor intended to make

a gift.   Farris, supra, 7 N.J. at 501.   When, however, the

transfer is from a parent to a child, the initial burden of

proof on the party claiming a gift is slight.    Metro. Life Ins.

Co. v. Woolf, 136 N.J. Eq. 588, 592 (Ch. 1945), aff’d, 138 N.J.

Eq. 450 (E. & A. 1946).   In such cases a presumption arises that

the transfer is a gift.   Peppler v. Roffe, 122 N.J. Eq. 510, 515

(E. & A. 1937); First Nat’l Bank v. Keller, 122 N.J. Eq. 481,

483 (E. & A. 1937); Bankers Trust Co. v. Bank of Rockville Ctr.

Trust Co., 114 N.J. Eq. 391 (E. & A. 1933); Prisco v. Prisco, 90

N.J. Eq. 289, 289 (E. & A. 1919); Herbert v. Alvord, 75 N.J. Eq.

428, 429 (Ch. 1909); Betts v. Francis, 30 N.J.L. 152, 155 (Sup.


                                 24
Ct. 1862).     The presumption does not apply if the parent is a

dependent of the child.     Peppler, supra, 122 N.J. Eq. at 515.

See also Weisberg v. Koprowski, 17 N.J. 362, 372-73 (1955).          The

rationale for the presumption is that a child is considered a

natural object of the bounty of the donor.       Weisberg, supra, 17

N.J. at 373.     See Restatement (Third) of Trusts § 9(2) (2001)

(noting that resulting trust does not arise when transfer of

property is made by one person but payment is made by another

when recipient is spouse, dependent, or other natural object of

person making payment).

    This presumption, however, is rebuttable by evidence of a

contrary intent.     The earliest reported case that we have

identified that addresses the nature of the proofs and the

standard of proof to rebut the presumption is Peer v. Peer, 11

N.J. Eq. 432, 439 (Ch. 1857).     In that case, the court held that

a gift will be presumed when a parent advances funds to purchase

real estate for a son and instructs that title shall be in the

name of a child.     Id. at 438-40.    The presumption may be

rebutted by evidence of “the same kind . . . deemed sufficient

to create the presumption.”     Id. at 439.    The court described

the quality of the evidence that would be admissible to rebut

the presumption as “convincing, and of such a character as to

leave no reasonable doubt as to the intention of the party.”

Ibid.; accord Read v. Huff, 40 N.J. Eq. 229, 234 (E. & A. 1885).


                                  25
    In 1909, a court reiterated the Peer standard stating that

the proofs required to rebut the presumption are “convincing and

leave no reasonable doubt as to the intention of the party.”

Herbert, supra, 75 N.J. Eq. at 430.   Ten years later, in Prisco,

supra, a case in which a father purchased real property and took

title in the name of his sixteen year old son, the Court of

Errors and Appeals adopted the rule applied by the trial judge

regarding the evidentiary burden of a party seeking to rebut the

presumption of a gift.   90 N.J. Eq. at 289.   The trial judge

stated “the evidence must be convincing and leave no reasonable

doubt.”   Ibid.; see also McGee v. McGee, 81 N.J. Eq. 190, 194

(E. & A. 1913) (instructing that proof offered to rebut

presumption of gift “must be certain, definite, reliable and

convincing, leaving no reasonable doubt of the intention of the

parties”).

    In addition, the proofs advanced to rebut the presumption

of a gift “must be of facts antecedent to or contemporaneous

with the purchase, or so immediately afterwards as to form a

part of the res gestae.”   Herbert, supra, 75 N.J. Eq. at 429-30;

accord Prisco, supra, 90 N.J. Eq. at 289; Read, supra, 40 N.J.

Eq. at 234; Peer, supra, 11 N.J. Eq. at 439.

    In Herbert, supra, the court excepted from the antecedent

or contemporaneous requirement statements or acts of the party

to be charged with the gift.   75 N.J. Eq. at 429-30.


                                26
Furthermore, in Weisberg, supra, this Court followed the rule

announced in Killeen v. Killeen, 141 N.J. Eq. 312, 315 (E. & A.

1948) and Yetman v. Hedgeman, 82 N.J. Eq. 221, 223 (Ch. 1913)

that “the subsequent conduct of the parties may be given in

evidence to corroborate the inference drawn from prior and

contemporaneous circumstances.”    17 N.J. at 374; see also

Bertolino v. Damario, 107 N.J. Eq. 201, 202 (E. & A. 1930)

(explaining that gift presumption may be rebutted by later

admissions of parties).    Notably, in Weisberg, supra, this Court

did not preclude evidence of conduct subsequent to the son’s

purchase of the house in which his mother lived to rebut the

presumption of a gift.    17 N.J. at 374-76.

    Commentary has criticized the gift presumption between

parent and child contending the presumption is founded on an

undue emphasis on certain relationships.    5 New Jersey Practice,

Wills and Administration § 4 n.1 (Alfred C. Clapp and Dorothy G.

Black) (3d ed. 1984).     In Weisberg, supra, this Court

acknowledged the criticism of the rule presuming a gift based

“on considerations of the closeness of the relationship or the

extent of natural affection, []or by reason of any legal

obligation to furnish support.”    17 N.J. at 372.   The Court

noted that the relationship between the son, who had purchased

the house in which his mother lived, and his mother “was such

that, but for other evidence overcoming the inference, the


                                  27
probability might well be inferred that [the son] did intend a

gift of the properties to [his mother].”       Id. at 373.   Yet, the

son marshaled substantial proofs not only antecedent to and

contemporaneous with the purchase but also conduct subsequent to

the purchase until the son’s death to defeat any presumption of

a gift.   Id. at 374-76.

    Other commentators criticize use of any standard of proof

other than the preponderance of the evidence.       3 Austin Wakeman

Scott, The Law of Trusts, § 458 (1939).       In his treatise,

Professor Scott opines that

          [n]o good reason, however, has ever been
          suggested as to why the preponderance of the
          evidence   should  not   be   sufficient  to
          establish a trust, as it is sufficient to
          establish other facts in civil cases. There
          is perhaps, sufficient reason for requiring
          more than a preponderance of evidence to
          establish an express oral trust of land in
          states in which the Statute of Frauds is not
          in force.    There is no reason for making
          such a requirement generally in the case of
          . . . resulting trusts or constructive
          trusts.

          [Ibid.]

    The Restatement also calls for use of the preponderance of

the evidence standard of proof.    Restatement, supra, § 9, cmt.

f(1).   The Reporter notes, however, that case law on this issue

is both conflicting and unclear.       The Reporter relates that the

rationale for a clear and convincing standard of proof in order

to question beneficial ownership is the view “that there should


                                  28
be a strong presumption in favor of one whose title is indicated

without qualification in a written instrument . . . and that

there is a danger of inviting perjured testimony in cases of

this type.”   Id. at Reporter’s Notes § 9, cmt. f.

       As stated in numerous decisions dating to the mid-

nineteenth century, the standard of proof seems to create a

standard containing elements of the clear and convincing

standard and the beyond a reasonable doubt standard.    Responding

to an argument that this Court in Weisberg also modified the

standard of proof to rebut a presumption of a gift from no

reasonable doubt to clear and convincing, the Appellate Division

in Turro v. Turro, 38 N.J. Super. 535, 543 (App. Div. 1956)

observed that Weisberg never addressed the standard of proof at

all.    Nevertheless, the appellate panel referred to seventeen

cases from 1885 to 1951 that had described the burden of proof

as requiring clear, reliable, and convincing proof leaving no

reasonable doubt of the intention of the parties.     Turro, supra,

38 N.J. Super. at 542.    The panel recognized, however, that this

description seemed to contain elements of the clear and

convincing and beyond a reasonable doubt standards of proof and

that some commentators had urged elimination of this hybrid

standard because such a standard has the effect of giving undue

weight to the presumption.    Id. at 542-43.   The panel noted that

it was not its function to “overrule[] a proposition so


                                 29
obviously approved by the highest court of the State.”     Id. at

544.

       Notwithstanding the criticism of the presumption itself and

the use of an enhanced standard of proof to rebut the

presumption that a transfer of property, including stock in a

family business, from a parent to a child is a gift, we can

identify no reason to depart from our use of an enhanced

standard of proof which has served well for more than 150 years.

We discern, however, the need to clarify that standard and the

proofs that may be admitted to meet it.

       Although some of the earliest cases describe the standard

of proof as “convincing and leav[ing] no reasonable doubt,”

Prisco, supra, 90 N.J. Eq. at 289; Herbert, supra, 75 N.J. Eq.

at 430, later cases added additional adjectives, such as

“certain,” “definite,” “reliable,” and “convincing.”     McGee,

supra, 81 N.J. Eq. at 194.    As noted in Turro, supra, this

description has elements of both the clear and convincing and

beyond a reasonable doubt standards.    38 N.J. Super. at 542-43.

Such a hybrid standard is an anomaly and given the criticism,

not only of the very existence of the gift presumption in

circumstances as presented in this case but also the use of any

standard of proof other than preponderance of the evidence in

these circumstances, we can identify no purpose in recognizing

either a hybrid clear and convincing/no reasonable doubt


                                 30
standard or a no reasonable doubt standard.     Rather, our

examination of the cases suggests that the standard has been

understood as, and should be, clear and convincing.     We view the

other language used in the cases as simply an attempt to

describe the quality of evidence, e.g., clear, cogent, certain,

and definite, that will satisfy the clear and convincing

standard of proof.

    This interpretation is reflected in a leading treatise on

equity jurisprudence.   As of 1941, this treatise stated, “[I]t

is said that the presumption of a gift or advancement can be

rebutted only by proof that is clear, convincing and

satisfactory.”   4 John Norton Pomeroy, Equity Jurisprudence §

1041 (5th ed. 1941).    Numerous cases are cited to support this

proposition, including several cases from New Jersey which

employ the “reasonable doubt” language.    See id. at 86-87 n.10.

    Indeed, the Model Jury Charge on the clear and convincing

evidence standard uses similar verbiage to describe the quality

of the evidence that will meet this standard.     Model Jury Charge

1.19 provides in relevant part:

         Clear and convincing evidence is evidence
         that produces in your minds a firm belief or
         conviction that the allegations sought to be
         proved by the evidence are true.      It is
         evidence so clear, direct, weighty in terms
         of quality, and convincing as to cause you
         to come to a clear conviction of the truth
         of the precise facts in issue.



                                  31
                The clear and convincing standard of
           proof requires that the result shall not be
           reached by a mere balancing of doubts or
           probabilities, but rather by clear evidence
           which causes you to be convinced that the
           allegations sought to be proved are true.

      Moreover, we can discern no good reason why a father

seeking to rebut a presumption of a gift of stock to an adult

son should be required to meet an enhanced clear and convincing

standard that requires no reasonable doubt, particularly when

the no reasonable doubt standard applies in no other civil

setting in this state.   Furthermore, the State is required only

to meet the clear and convincing standard to terminate parental

rights, Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L.

Ed. 2d 599 (1982); N.J. Div. of Youth & Family Servs. v. A.W.,

103 N.J. 591, 611-12 (1986); to involuntarily commit a person to

a psychiatric facility, Addinton v. Texas, 441 U.S. 418, 99 S.

Ct.   1804, 60 L. Ed. 2d 323 (1979); or to commit a person

pursuant to the Sexually Violent Predator Act, In re Commitment

of W.Z., 173 N.J. 109 (2002).   The clear and convincing standard

of proof also governs an action to withhold life sustaining

treatment from a person in a persistent vegetative state, Cruzan

v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 284, 110 S. Ct.

2841, 2854, 111 L. Ed. 2d 224, 245-46 (1990); or from an

incompetent nursing home patient, In re Conroy, 98 N.J. 321, 382

(1985); in disciplinary proceedings against an attorney or a



                                32
doctor, In re Racmiel, 90 N.J. 646, 661 (1982); In re Polk

License Revocation, 90 N.J. 550, 563 (1982); and to prove fraud,

Fox v. Mercedes-Benz Credit Corp., 281 N.J. Super. 476, 484

(App. Div. 1995).   This list is hardly exhaustive but

illustrates the anomaly of applying a higher standard than clear

and convincing evidence to rebut a presumption of a gift where a

higher standard is not applied in circumstances affecting a

person’s life, liberty, ability to pursue a profession, or

integrity.

    We, therefore, hold that a person who has transferred

property to another, which raises a presumption that the

transferred property was a gift, must meet the clear and

convincing evidence standard of proof to rebut the presumption.

We also hold that the person seeking to rebut the presumption is

limited to evidence antecedent to, contemporaneous with, or

immediately following the transfer.   In addition, a party

seeking to rebut the presumption may also adduce proof of

statements by the parties concerning the purpose and effect of

the transfer.

                               VII.

    Applying these principles to the facts revealed in the

summary judgment record, and all reasonable inferences from

those facts drawn in favor of A.C., we conclude that B.B.’s

motion for summary judgment should have been denied.     To be


                                33
sure, the 1989 and 1990 transfers triggered the presumption that

A.C. intended to gift his stock in the family business to his

son.    Accordingly, A.C. was required to adduce evidence to

defeat a summary judgment motion that raised a genuine issue of

material fact regarding one, some, or all of the elements of an

inter vivos gift and those proofs had to rise to the quality

required by the clear and convincing standard of proof.

       The motion court and the appellate panel properly refused

to consider some of the evidence offered by A.C.     His proffer of

statements by him years after the 1989 and 1990 transfers that

B.B. was simply holding the shares to facilitate the conduct of

affairs of the business while he was in India, or to facilitate

financing of a business venture, was inadmissible.    Those

statements are neither antecedent to, contemporaneous with, or

immediately following the transaction and thus fail to provide

reliable evidence of the intent of the stock transfers.

       On the other hand, the motion court and the appellate panel

declined to consider various statements made by B.B. in the

course of the conduct of the family business that contradict the

position that A.C. transferred the entirety of his ABB

Properties stock to his son.    For example, in 1994, B.B.

certified the facts contained in the Verified Complaint filed

against his sister and brother-in-law.    He certified that A.C.

owned approximately 50% of the voting stock in the business.       In


                                 34
an affidavit submitted in the same matter, he made a similar

statement.   The complaint in the prior litigation also relates a

series of corporate actions taken by A.C. and B.B. in their

capacity as stockholders and corporate officers of ABB

Properties that removed B.B.’s brother-in-law from his corporate

positions and management responsibilities at Easterner and

installed themselves as officers of that corporation.    B.B.

certified that these facts were true.   These prior inconsistent

statements made in the prior intra-family litigation do not

judicially estop his current defense to A.C.’s complaint that

A.C. transferred the stock to him and that the transfer was

intended as a gift from father to son, but these statements may

be considered admissions of a party and evidence that may

impeach B.B.’s credibility.

    In addition, B.B. also filed two certifications in this

matter in which he describes A.C. as the beneficial owner of the

ABB Properties stock and his understanding of that term.

Drawing all inferences in favor of B.B. created by this

discourse, a question of fact arises whether A.C. and B.B.

contemplated an unconditional transfer of the stock or simply a

temporary transfer to facilitate other business ventures or to

ease the ability to conduct the day-to-day affairs of the

business while A.C. was in India.    B.B. also relies on cultural

traditions to support his position that the transfer of stock


                                35
was a natural and ordinary event in the culture of this family.

While his statement may be true, the record is barren of any

independent support for this proposition that would permit a

court to take judicial notice of this fact.   N.J.R.E. 201(b).

    The standard of proof to rebut the presumption of a gift in

this case is exacting.   When that standard governs the

evaluation of evidence produced by both parties in support of

and in opposition to cross-motions for summary judgment, we can

expect many such motions to be granted.   Here, however, several

statements by B.B. raise genuine issues of fact about whether

the 1989-90 stock transfers were an unqualified gift from father

to son or a mere matter of convenience to further a family

business.   The inconsistent statements in the prior intra-family

litigation also require an assessment of B.B.’s credibility

beyond that accomplished by simply examining affidavits,

letters, notes, and other documents.

    This is a close case.    Nevertheless, B.B.’s statements

regarding the ownership of ABB Properties stock raises

sufficient factual issues to preclude summary judgment and to

require a trial.

                               VIII.

    The judgment of the Appellate Division is reversed and the

matter is remanded for further proceedings consistent with this

opinion.


                                36
     CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON;
and JUDGE RODRÍGUEZ (temporarily assigned) join in JUDGE CUFF’s
opinion.




                               37
               SUPREME COURT OF NEW JERSEY

NO.    A-31                                 SEPTEMBER TERM 2011

ON CERTIFICATION TO           Appellate Division, Superior Court


AMRATLAL C. BHAGAT,
Individually and as
Shareholder of ABB PROPERTIES
CORPORATION, A New Jersey
Corporation and as a
Shareholder of EASTERNER
MOTOR INN, INC., a New Jersey
Corporation,

      Plaintiff-Appellant,

              v.

BHARAT A. BHAGAT and CRANBURY
HOTELS, LLC, a New Jersey
Limited Liability Company,

      Defendants-Respondents.




DECIDED            January 30, 2014
                Chief Justice Rabner                      PRESIDING
OPINION BY           Judge Cuff
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY


                                  REVERSE AND
 CHECKLIST
                                    REMAND
 CHIEF JUSTICE RABNER                  X
 JUSTICE LaVECCHIA                     X
 JUSTICE ALBIN                         X
 JUSTICE PATTERSON                     X
 JUDGE RODRÍGUEZ (t/a)                 X
 JUDGE CUFF (t/a)                      X
 TOTALS                                6




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