                                 NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.




                                                          SUPERIOR COURT OF NEW JERSEY
                                                          APPELLATE DIVISION
                                                          DOCKET NO. A-5166-17T3

DANIEL MADDEN,

           Plaintiff-Appellant,

v.

VICTOR C. DONNELLY,

           Defendant-Respondent.


                    Argued March 6, 2019 – Decided May 15, 2019

                    Before Judges Alvarez and Nugent.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Ocean County, Docket No.
                    C-000082-18.

                    Kenneth W. Thomas argued the cause for appellant
                    (Lanza Law Firm, LLP, attorneys; Kenneth W. Thomas,
                    of counsel and on the briefs).

                    Timothy J. Petrin argued the cause for respondent
                    (James D. Curry, Jr., attorney; Timothy J. Petrin, on the
                    brief).

PER CURIAM
      Plaintiff Daniel Madden appeals a July 6, 2018 order dismissing his

complaint with prejudice for "failure to state a claim upon which relief can be

granted." R. 4:6-2(e). We affirm.

      The essential facts are not in dispute. Defendant Victor Donnelly's father,

John Donnelly (decedent), became acquainted with Madden when the two

worked together years earlier. They maintained their friendship after retirement.

      Decedent told Madden that he wanted Madden to receive money he had

in a bank account, and he opened a payable on death (POD) account with over

$100,000, naming Madden as the recipient in the event of his death. Decedent's

relationship with Donnelly was troubled at that time. While visiting New Jersey

sometime before his death, decedent did not mention any change to the account.

      Months before his death, decedent became ill and reconciled with his son.

Donnelly took decedent into his home. Decedent then named his son in a

durable power of attorney, in a durable power of attorney for healthcare and

designation of healthcare representative, and as his only beneficiary in his last

will and testament.

      The bank account is the estate's only significant asset. Donnelly certified

that although decedent wanted to transfer the account into his name only, he

became too ill to make the trip to the bank. Accordingly, Donnelly, using the


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                                       2
durable power of attorney, changed the account from POD to solely in decedent's

name.

        Madden's amended complaint demands relief based on conversion,

unlawful taking, and replevin. In addition, it alleges Donnelly breached his

fiduciary duty to decedent and was unjustly enriched by his conduct.

        On appeal, Madden asserts the following points of error:

              POINT I:
              THE LOWER COURT ERRED WHEN IT
              DETERMINED DISPUTED ISSUES OF MATERIAL
              FACT     THAT DEPEND    PRIMARILY   ON
              CREDIBILITY DETERMINATIONS WITHOUT
              HEARING TESTIMONY OF THE PARTIES OR
              EVEN ORAL ARGUMENT AND ONLY ON
              CONFLICTING CERTIFICATIONS.

              POINT II:
              THE LOWER COURT ERRONEOUSLY FAILED TO
              APPRECIATE   A    CONSTRUCTIVE    TRUST
              SHOULD BE IMPOSED TO GIVE EFFECT TO THE
              DECEDENT'S INTENDED DISPOSITION OF HIS
              PROPERTY WHERE, AS HERE, DEFENDANT
              BREACHED HIS FIDUCIARY DUTY & UNJUSTLY
              ENRICHED HIMSELF WHEN IT IS DISPUTED
              DECEDENT NAMED PLAINTIFF "POD" ON HIS
              BANK ACCOUNT AND REPEATEDLY TOLD
              PLAINTIFF HE WANTED HIM TO HAVE HIS
              MONEY WHEN [HE] PASSED AWAY; THAT
              DECEDENT DID NOT HAVE A GOOD
              RELATIONSHIP WITH DEFENDANT [AND
              QUESTIONED]    HIS   PATERNITY    WHILE
              DEFENDANT ADMITTED TO PLAINTIFF HE
              MOVED THE MONEY USING THE POWER OF

                                                                       A-5166-17T3
                                        3
             ATTORNEY DECEDENT GAVE HIM ON THE
             ADVICE OF HIS FORMER ATTORNEY SO IT
             WOULD NOT GO TO HIS FATHER (DECEDENT)'S
             CO-WORKER.

             POINT III:
             THE LOWER COURT ERRED BY NOT
             PERMITTING PLAINTIFF TO ASSERT PROPERTY
             CLAIMS.

      We affirm the order dismissing the amended complaint for the reasons

stated by Judge Francis R. Hodgson, Jr. in his cogent written decision.

      On our review of the order dismissing the amended complaint pursuant to

Rule 4:6-2(e), "we assume that the allegations in the pleadings are true and

afford the pleader all reasonable inferences." Sparroween, LLC v. Twp. of W.

Caldwell, 452 N.J. Super. 329, 339 (App. Div. 2017) (citation omitted). We

review de novo orders dismissing complaints for failure to state a claim under

Rule 4:6-2(e). "Where . . . it is clear that the complaint states no basis for relief

and that discovery would not provide one, dismissal of the complaint is

appropriate." Ibid. (quoting J.D. ex rel. Scipio-Derrick v. Davy, 415 N.J. Super.

375, 397 (App. Div. 2010)).

      Even assuming all the facts alleged are true and drawing all favorable

inferences in Madden's favor, the complaint fails to state a basis for relief to be

granted. Dismissal is appropriate.


                                                                             A-5166-17T3
                                         4
      Judge Hodgson "broke[] down" Madden's claims made into two

categories—property offenses including conversion, unlawful taking, and

replevin, and breach of fiduciary offenses, including unjust enrichment. As he

said, N.J.S.A. 17:16I-2(j) "defines a POD account as 'an account payable on

request to one person during lifetime and on his death to one or more P .O.D.

payees, or to one or more persons during their lifetimes and on the death of all

of them to one or more P.O.D. payees[.]'" By its very nature, a POD account

vests no property rights in the survivor until the death. See N.J.S.A. 17:16I-

2(g). Thus, Madden had no property interest in the account so long as decedent

was alive, including when Donnelly transferred the account into just his father's

name. Since Madden had no interest in the account because it was transferred

before decedent's death, he not only has no vested ownership rights, he has no

standing to maintain any action against Donnelly. He would have had standing,

obviously, had the account remained POD at the time of death, but that did not

occur.

      Under N.J.S.A. 46:2B-8.13, Donnelly had an absolute right to move the

funds into an account solely in his father's name. Donnelly did not gift himself

the funds.   The transfer occurred during decedent's lifetime with his full




                                                                         A-5166-17T3
                                       5
knowledge, consent, and at his direction. On this record, there is no reason to

conclude it was made otherwise.

      As Judge Hodgson put it, "the immediate effect was to transfer property

to the sole possession of the principal[.]" Therefore, there was no breach of

fiduciary duty. Thus, the amended complaint does not allege any cause of

action.

      Affirmed.




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