                        NOT FOR PUBLICATION WITHOUT THE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-3519-15T4

MOSHE MEISELS, CHANIE
MEISELS, MONROE ESTATES,
LTD., and PREMIER ESTATES
NY, INC.,

        Plaintiffs-Appellants,

v.

FOX ROTHSCHILD LLP and
ANTHONY ARGIROPOULOS,
ESQUIRE,

     Defendants-Respondents.
___________________________________

              Argued July 18, 2017 – Decided June 22, 2018

              Before Judges Ostrer and Leone.

              On appeal from Superior Court of New Jersey,
              Law Division, Mercer County, Docket No.
              L-0483-13.

              Brian K. Condon argued the cause for
              appellants (Condon Catina & Mara, PLLC,
              attorneys; Brian K. Condon and Laura M.
              Catina, on the briefs).

              Francis P. Devine, III, argued the cause for
              respondents (Pepper Hamilton LLP, attorneys;
              Francis P. Devine and Angelo A. Stio, III, of
              counsel and on the brief).
       The opinion of the court was delivered by

OSTRER, J.A.D.

       We reversed dismissal of plaintiffs' complaint under Rule

4:6-2(e) because the Law Division had not indulgently presumed the

truth of plaintiffs' allegations that they had standing to sue.

See Meisels v. Fox Rothschild, LLP, No. A-1102-13 (App. Div. Feb.

19, 2015) (Meisels I).     Once discovery was completed, defendants

obtained dismissal again, this time on a motion for              summary

judgment.    We part company with the trial court's determination

that   plaintiff   Moshe   Meisels   (Meisels)   failed   to   establish

standing to pursue his claims of conversion and breach of fiduciary

duty pertaining to $2.4 million deposited in the attorney trust

account of defendant Fox Rothschild LLP.1        We also hold that he

presented sufficient evidence to reach a jury on his conversion

claim.    A formal demand for the return of the funds was not

required.    However, Meisels, whose identity was undisclosed to

defendants, did not establish that defendants entered into a

fiduciary relationship with him.         Therefore, the court properly

dismissed his breach of fiduciary duty claim.      We therefore affirm

in part, reverse in part, and remand for a trial.


1
  For the sake of brevity, we will refer to Moshe Meisels as
Meisels, and refer to Chanie Meisels as Chanie, and mean no
disrespect in doing so.


                                     2                           A-3519-15T4
                                        I.

     We    presume    the   reader's     familiarity      with    our   previous

opinion.    According to plaintiffs' verified complaint, Meisels, a

real estate investor residing in London, England, entered into a

real estate deal with Eliyahu Weinstein.            Each agreed to provide

$2.5 million toward the purchase of a property in Irvington, New

Jersey.    Plaintiffs alleged that at Weinstein's direction, Meisels

wired     $2,412,163.50     to    the   attorney   trust    account     of    Fox

Rothschild,     Weinstein's        attorneys;2     and,     thereafter,         at

Weinstein's direction, Fox Rothschild disbursed all the funds for

other     purposes.       These    included   payments      for    Weinstein's

investments in other properties not involving Meisels, and payment

of a fee to Fox Rothschild.         Plaintiffs alleged the purchase that

Meisels and Weinstein had agreed to make was never consummated.

They alleged that Weinstein defrauded them, as he had others. They

noted he was ultimately indicted for fraud.3


2
  Plaintiffs do not explain the discrepancy between the $2.5
million obligation and the transfer, which we will round to $2.4
million for convenience.
3
 Weinstein eventually pleaded guilty to "operating a Ponzi scheme
from 2004-2011 whereby he misappropriated hundreds of millions of
dollars that victims thought they were investing in specific real
estate transactions." United States v. Weinstein, 658 Fed. Appx.
57, 58 (3d Cir. 2016) (affirming denial of motion to withdraw


                                        3                                A-3519-15T4
       Although Meisels, Chanie, Monroe Estates, Ltd., and Premier

Estates NY, Inc. asserted various legal theories in support of

their claims for relief in the amended complaint that Meisels

verified, only Meisels now claims a right to relief, based solely

on theories of conversion and breach of fiduciary duty by Fox

Rothschild and its then-partner, defendant Anthony Argiropoulos.

The reduction of parties and claims was not simply strategic.

Rather,    it    was    compelled        by       facts   Meisels   presented    that

contradicted those he initially verified as true.

       Since the early stages of this litigation, defendants have

contended that any right to relief that may exist — which they

also   contest    —    belongs    to     a    London-based     corporation      called

Rightmatch, Ltd.        Although the four plaintiffs alleged in their

initial verified complaint that "Meisels wired" the $2.4 million,

actually Rightmatch ordered the transfer of the $2.4 million into

Fox Rothschild's trust account.                    Rightmatch did so through two

wire    transfers      executed     by        Cambridge    Mercantile   Group     for

$1,328,680.99 and $1,083,482.51. The wire confirmations, attached

to   plaintiffs'       first   verified           complaint,   were   addressed     to




plea). Plaintiffs, along with other entities, sued Weinstein in
a separate lawsuit in Ocean County. See Meisels v. Weinstein, No.
A-2734-10 (App. Div. Oct. 21, 2011).

                                              4                              A-3519-15T4
Rightmatch,   to    Meisels's    attention,   and    confirmed    that   the

payments were made upon Rightmatch's order.

     In their amended verified complaint, plaintiffs explained

that Rightmatch was simply a conduit and had no interest in the

funds.   Rather, they alleged that Meisels and Chanie received the

funds as a "dividend" from Monroe Estates, a British corporation

they owned.    Plaintiffs alleged that Monroe Estates lacked an

account that could convert currencies; consequently, "they had the

money go through . . . Rightmatch, Ltd., so that Rightmatch's

account with Cambridge Mercantile Group could be used to convert

the funds from British Pound Sterling to Dollars and transferred

to the United States."      In Meisels I, we held that plaintiffs

should be entitled to present proof that they owned the funds.4

     During   the    discovery    period   that     followed,    plaintiffs

disclosed no evidence that the funds came from Monroe Estates.

Faced with defendants' motion for summary judgment, Meisels then

presented a new explanation for the origin of the $2.4 million.

He certified they were "personal funds that I obtained from




4
  Plaintiffs' pleading did not explain the basis for a claim by
plaintiff Premier Estates NY, which was identified as a New York
corporation, principally based in Brooklyn, New York.


                                    5                               A-3519-15T4
mortgages that I took out on different properties that I owned."

Meisels identified five London properties.5

     Meisels contended that documents he produced in discovery

established his new claim about the origin of the $2.4 million.

He referred to correspondence from his London solicitors Bude

Storz; loan offers from a lender, Cheval Bridging Finance; mortgage

deeds referring to four of the five properties, which identified

Cheval as mortgagee and Meisels as mortgagor; and documents from

Barclays, reflecting transfers into the solicitors' account, and

out of the solicitors' account to Cambridge Mercantile.    We will




5
   Meisels's "certification" lacked the essential statement
immediately before his signature, per Rule 1:4-4(b): "I certify
that the foregoing statements made by me are true. I am aware
that if any of the foregoing statements made by me are willfully
false, I am subject to punishment." See also R. 1:6-6 (requiring
that factual assertions in a motion response be supported by
affidavits made upon personal knowledge).      Defendants did not
object on that ground.     Cf. Pascack Cmty. Bank v. Universal
Funding, LLP, 419 N.J. Super. 279, 288 (App. Div. 2011) (rejecting
a "certification" on that ground among others).       An objection
would have given Meisels an opportunity to seek the trial court's
permission to cure the infirmity.        We therefore treat the
certification as evidential and give it the weight it deserves,
which is substantial, mainly because it was supported by
documentary proof. Cf. State v. Ingenito, 87 N.J. 204, 224 n.1
(1981) (Schreiber, J., concurring) (noting that hearsay subject
to a well-founded objection is evidential absent an objection);
N.J. Div. of Child Prot. & Permanency v. J.D., 447 N.J. Super.
337, 348-49 (App. Div. 2016).


                                6                           A-3519-15T4
address these in greater detail in our discussion of defendants'

standing argument.

      During   oral     argument,   plaintiffs'           counsel    conceded     that

Chanie, Monroe Estates and Premier Estates lacked a basis for

relief, since Meisels claimed the funds were his.                   The trial court

agreed with defendants that:         Meisels lacked standing because he

did   not   prove   ownership;      his       lack   of   ownership     doomed     his

conversion     claim;    the   conversion        claim     also     failed   because

plaintiffs did not demand the return of the funds; and the breach

of fiduciary duty claim failed because Meisels had not communicated

or made himself known to defendants.                 The court granted summary

judgment, dismissing those two claims.                The court also dismissed

plaintiffs' other causes of action, which are not the subject of

this appeal.

      On appeal, Meisels argues he presented sufficient evidence

to create a genuine issue of fact regarding his interest in the

funds and his standing.        He argues that a demand was not essential

to his conversion claim, nor was direct communication with Fox

Rothschild or its partner essential to his breach of fiduciary

duty claim.

                                      II.

      We review the trial court's order de novo, and employ the

same standard as the motion judge under Rule 4:46-2(c).                      Henry v.

                                          7                                   A-3519-15T4
N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010).                The court

must    consider       "whether     the   competent     evidential   materials

presented, when viewed in the light most favorable to the non-

moving party, are sufficient to permit a rational factfinder to

resolve the alleged disputed issue in favor of the non-moving

party."      Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540

(1995); see also R. 4:46-2(c).                 Moreover, "[a] trial court's

interpretation of the law and the legal consequences that flow

from established facts are not entitled to any special deference."

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995).

                                          A.

       We reject the trial court's finding that Meisels lacked

standing to sue for the return of the $2.4 million.              "Every action

may be prosecuted in the name of the real party in interest

. . . ."     R. 4:26-1.    To establish standing, "a party must present

a sufficient stake in the outcome of the litigation, a real

adverseness with respect to the subject matter, and a substantial

likelihood that the party will suffer harm in the event of an

unfavorable decision."             In re Camden Cty., 170 N.J. 439, 449

(2002).

       Our    courts    take   a   liberal     view   toward   standing.        See

EnviroFinance Grp., LLC v. Envtl. Barrier Co., 440 N.J. Super.

                                          8                                A-3519-15T4
325,   340   (App.     Div.    2015).      However,      regarding    a    claim    of

conversion, "[i]t is essential that the money converted by a

tortfeasor must have belonged to the injured party."                        Advanced

Enters. Recycling, Inc. v. Bercaw, 376 N.J. Super. 153, 161 (App.

Div. 2005) (quoting Commercial Ins. Co. of Newark v. Apgar, 111

N.J. Super. 108, 115 (Law Div. 1970)).

       "Ordinarily, a litigant may not claim standing to assert the

rights of a third party."         Jersey Shore Med. Ctr.-Fitkin Hosp. v.

Estate of Baum, 84 N.J. 137, 144 (1980).                   Also, a third party

generally may not assert the claims of a corporation, which is a

separate jural entity.         See Strasenburgh v. Straubmuller, 146 N.J.

527,   549    (1996)     (stating     that    "[r]egard     for   the     corporate

personality demands that suits to redress corporate injuries which

secondarily harm all shareholders alike are brought only by the

corporation"); cf. Bondi v. Citigroup, Inc., 423 N.J. Super. 377,

437-39 (App. Div. 2011) (recognizing an exception allowing a parent

corporation, under the circumstances, to assert claims on behalf

of its wholly owned subsidiary).

       However, Meisels does not claim to wholly own or control

Rightmatch.     Rather, he contends that Rightmatch agreed to act as

a conduit for the transfer of his personal funds to Fox Rothschild.

Granting him the favorable inferences required under our summary

judgment     standard,    we    are     satisfied   he    presented       sufficient

                                          9                                  A-3519-15T4
evidence that Rightmatch agreed to serve as a conduit, and the

$2.4 million belonged to Meisels.

     As to Rightmatch's agreement, we note that Meisels testified

in a deposition     that he was Rightmatch's sole director, and

Rightmatch was in the real estate investment business and owned

property in London.     Therefore, he presumably was in a position

to have personal knowledge of the agreement, and the authority to

approve it.

     Regarding Meisels's ownership of the funds, the letter of

Meisels's     solicitors,   Bude    Storz,    confirmed   that   Meisels

instructed and directed them in making transfers related to the

mortgage loans.    Meisels also pointed out that his name appeared

on the "Payment Reference" line of a Barclays document noting the

transfer of £672,249.87 from Bude Storz's account to Cambridge

Mercantile.    Two similar documents, which referred to payments of

£548,404.37 and £800,000 to Cambridge Mercantile from Bude Storz's

account, identified Rightmatch on the payment reference line, but

Meisels asserted that was an error.          Also, the £800,000 payment

appears unrelated to the $2.4 million payment. Utilizing published

exchange rates in effect at the time, we calculate the £548,404.37

and £672,248.87 were equivalent to $1,084,389.23 and $1,329,273.57

— totaling $2,414,653.45 — close to the total amount transferred

by   Cambridge    Mercantile   to    Fox   Rothschild's   account    upon

                                    10                           A-3519-15T4
Rightmatch's order.       We presume that the exchange rate actually

used in the transaction resulted in the dollar amount that Fox

Rothschild actually received.

     Meisels presented two apparently separate loan offers from

Cheval.    One referred to an offer to lend £733,000 on three

properties.     A second offered to lend £590,000 on the remaining

two properties.       Two Barclays documents, entitled "Funds Transfer

- Credit Advice," confirmed that £684,679.25 and £552,048.75 were

received into Bude Storz's account by order of Aubrey David, who

apparently was counsel to the lender.         Presumably, the difference

between   the   offered    amounts,    and   the   received    amounts,     is

attributable to various fees, charges or pre-payments.             Meisels's

name was noted under "Payment Details."        After further reductions,

£672,248.87     and    £548,404.37    were   transferred      to   Cambridge

Mercantile, for currency conversion and transfer to Fox Rothschild

upon Rightmatch's order.

     We recognize that the proofs are not conclusive.               Although

Bude Storz's letter referred to mortgages on the five properties

Meisels identified, along with ten others that were completed in

three months after the $2.4 million transfer, the solicitors

expressed no view of the funds' ownership.         The mention of Meisels

on the reference lines does not definitively prove ownership.

Meisels's contradictory explanations also raise questions about

                                      11                             A-3519-15T4
his credibility.    But, determining issues of credibility is a

quintessential jury function.        Conrad v. Michelle & John, Inc.,

394 N.J. Super. 1, 13 (App. Div. 2007) (choosing between witness's

inconsistent statements is for the jury).

     Moreover, on summary judgment, we cannot disregard Meisels's

certification to the facts set forth above, explaining that the

money belonged to him.        Notably, defendants did not argue before

the trial court, or before us, that Meisels's certification should

be disregarded under the sham affidavit doctrine.             Shelcusky v.

Garjulio, 172 N.J. 185, 194 (2002).6

     Defendants also highlight the fact that other persons or

entities owned the five properties that Meisels claimed to own,

and against which he said he borrowed the $2.4 million.                     On

defendants'   behalf,    an   English    solicitor   certified,   with    the

support of title documents, that as of the date of the loans, a

British   corporation,    Gilda   Estates    Ltd.,   owned   three   of   the




6
  A court may not apply the doctrine "mechanistically," but must
"evaluate whether a true issue of material fact remains in the
case" despite the affiant's prior sworn statement. Id. at 201.
Critical to a court's analysis is an affiant's explanation for the
contradictory statements. Ibid. (stating a court may not reject
the contradictory affidavit "where the contradiction is reasonably
explained"). Meisels was not prompted to provide an explanation,
since defendants did not invoke the doctrine.



                                    12                               A-3519-15T4
properties, Chanie owned a fourth, and Feige Ernster owned a

fifth.7

     However, Meisels presented deeds listing him as the mortgagor

of four of the properties.      We note that Meisels testified in a

deposition that he was a director of Gilda Estates, as well as

Rightmatch.    According   to   the   land    registry   reports,     Gilda

Estates's London address was the same as Rightmatch's.          Whether

Meisels was permitted to borrow funds against property formally

owned by other entities with which he was involved is an issue

between those property owners and Meisels.        Likewise, if Meisels

lacked authority to use Rightmatch's account to transfer the funds,

then it is for Rightmatch to object.8        Just as Meisels would lack



7
  Although plaintiffs' counsel questioned the accuracy of the
certification at summary judgment argument, he made no effort to
present contrary documentary evidence, either before argument, in
a motion for reconsideration, or before us. By contrast, a letter
from Bude Storz to Aubrey David, attached to Meisels's
certification, implicitly acknowledged that Gilda Estates owned
two properties discussed in the letter, stating, "Our clients
confirm . . . Gilda Estates Limited is solvent." The letter also
implied that Gilda Estates's compliance with all legal formalities
may have been questionable, stating, "The Director is chasing the
accountant to file any outstanding returns."
8
  Rightmatch and Gilda Estates were among the plaintiffs in the
separate Ocean County lawsuit. Asked if he were a shareholder,
Meisels answered, "I think I am," but did not remember his
percentage of ownership, or the identity of other shareholders.
During discovery, Meisels objected to providing documentation
regarding a lawsuit defendants identified as "Rightmatch Ltd v.
Meisels [2014] B.P.I.R. 733."

                                 13                                 A-3519-15T4
standing to seek the return of the $2.4 million, absent proof he

owned it, or was authorized by its owner to seek its return,

defendants    lack    standing      to   claim   that   Meisels   exceeded       his

authority when he borrowed the funds, or transferred them through

Rightmatch.     See Correia v. Deutsche Bank Nat'l Trust Co., 452

B.R. 319, 324-25 (B.A.P. 1st Cir. 2011) (stating that debtors

lacked standing to object that an assignment of their mortgage

violated a pooling and servicing agreement because they were

neither     parties    to,    nor    third-party     beneficiaries     of,       the

agreement); Rajamin v. Deutsche Bank Nat'l Trust Co., 757 F.3d 79,

88-90 (2d Cir. 2014) (holding that mortgagors lacked standing to

complain of violation of the securitization trust agreement).

      We conclude that Meisels presented sufficient evidence of

standing to present to a jury his claimed right to seek the return

of the $2.4 million.

                                         B.

      We turn to Meisels's claim of conversion.                We have adopted

the Restatement's definition of conversion, as the "intentional

exercise of dominion or control over a chattel which so seriously

interferes with the right of another to control it that the actor

may justly be required to pay the other the full value of the

chattel."     Chicago Title Ins. Co. v. Ellis, 409 N.J. Super. 444,

454   (App.   Div.    2009)   (quoting        Restatement   (Second)   of     Torts

                                         14                                 A-3519-15T4
§222A(1) (Am. Law Inst. 1965)).       "The gist of an action in trover

is conversion, that is, the exercise of any act of dominion in

denial of another's title to the chattels, or inconsistent with

such title."    Mueller v. Tech. Devices Corp., 8 N.J. 201, 207

(1951).

     The defendant need not intend to act wrongfully, but must

have "intended 'to exercise a dominion or control over the goods

which is in fact inconsistent with the plaintiff's rights.'"

LaPlace v. Briere, 404 N.J. Super. 585, 595 (App. Div. 2009)

(quoting Prosser and Keeton on Torts, §15 at 92 (5th ed. 1984)).

A person may be liable for conversion "although he acted in good

faith and in ignorance of the rights or title of the owner."

McGlynn v. Schultz, 90 N.J. Super. 505, 526 (Ch. Div. 1966)

(quoting 89 C.J.S. Trover and Conversion § 1 (1955)), aff'd, 95

N.J. Super. 412 (App. Div. 1967).

     Although    conversion    historically       applied     to   tangible

chattels, we held in Chicago Title that the tort may, under certain

circumstances, apply to the exercise of dominion or control over

money.    Chicago Title, 409 N.J. Super. at 449, 455-56; see also

Harper, James and Gray on Torts, § 2.13 at 210 (3d ed. 2006)

(noting that conversion "is frequently recognized in connection

with funds that have been or should have been segregated for a

particular   purpose   or   that   have   been   wrongfully   obtained     or

                                    15                              A-3519-15T4
retained or diverted in an identifiable transaction").          "It is

essential that the money have belonged to the injured party and

that it be identifiable, but the money need not be the identical

bills or coins that belong to the owner."       Chicago Title, 409 N.J.

Super. at 455-56.       Addressing a conversion claim against an

attorney who allegedly misdirected attorney trust account funds,

we stated that "in the bailment context '[t]he tort arises from

the bailee's commission of an unauthorized act of dominion over

the bailor's property inconsistent with the [bailor's] rights in

that property.'"   Dynasty Bldg. Corp. v. Ackerman, 376 N.J. Super.

280, 286 (App. Div. 2005) (quoting Lembaga Enters., Inc. v. Cace

Trucking & Warehouse, Inc., 320 N.J. Super. 501, 507 (App. Div.

1999)).

       On the other hand, a conversion claim does not lie for

collection of a mere debt.       Bondi, 423 N.J. Super. at 431.        We

held it did not lie where a benefits administrator withdrew funds

from volunteer firefighters' accounts, and returned them to the

municipality from which it received them, in accord with its

contract.   N. Haledon Fire Co. No. 1 v. Borough of N. Haledon, 425

N.J.   Super.   615,   631   (App.   Div.   2012).   We   reasoned   the

administrator did not exercise independent dominion or control of

the funds; the municipality did. Ibid.; see also Pereira v. United

Jersey Bank, 201 B.R. 644, 676 (S.D.N.Y. 1996) (applying New Jersey

                                     16                         A-3519-15T4
law, and finding that a bank subject to a contract with a customer

did not exercise dominion and control over funds in the customer's

account).

     Defendants   present   two   grounds   for   dismissing   Meisels's

conversion claim: (1) he failed to prove he owned the $2.4 million

and (2) he failed to demand its return.       We have already detailed

why Meisels presented sufficient evidence on ownership.          As for

the demand, defendants contend, quoting Mueller, 8 N.J. at 207,

that Meisels was required to show that he demanded the return of

his property "at a time and place and under such circumstances as

defendant is able to comply with if he is so disposed, and the

refusal must be wrongful."

     Defendants misread Mueller.         Demand is not invariably an

essential element of conversion. In particular, it is not required

when the alleged converter has already parted with the chattel or,

in this case, identifiable fund of money.           Rather, demand is

required where the possessor of the chattels lawfully acquired

them, and still retains them.          In Mueller, "the chattels were

lawfully obtained and in the possession of Technical, and . . .

there was no removal of them, [and] no destruction of them . . . ."

8 N.J. at 208.

     The Mueller Court stated, "It is well settled that where

possession of chattels is lawfully acquired, a demand therefore

                                  17                             A-3519-15T4
and refusal to deliver is generally necessary before an action in

trover and conversion will accrue." Id. at 207. Refusal of demand

is merely evidence of conversion.      Ibid.    "'To constitute a

conversion of goods there must be some repudiation by the defendant

of the owner's right [as by a refusal of a demand], or some

exercise of dominion over them by him inconsistent with such right

. . . .'"   Ibid. (quoting Farrow v. Ocean Cnty. Trust Co., 121

N.J.L. 344, 348 (Sup. Ct. 1938)) (emphasis added); see also Bondi,

423 N.J. Super. at 432 (stating that "[t]he repudiation must be

manifested in the injured party's demand for the funds and the

tortfeasor's refusal to return the monies sought").

     However,   where   conversion   has   already    occurred     by

destruction, or wrongful transfer — events not present in Mueller

— demand is both futile and unnecessary. "'There must be an actual

conversion, or a refusal to deliver on demand, which is evidence

of conversion, before the detention becomes unlawful."    Mueller,

8 N.J. at 207 (quoting Farrow, 121 N.J.L. at 348) (emphasis added).

"The defendant being lawfully in possession of the property, that

possession could not become tortious until it has refused upon

demand made to deliver them to plaintiff, in the absence of any

evidence to show a removal of the goods by the defendant or

destruction of them."   Temple Co. v. Penn Mut. Life Ins. Co., 69

N.J.L. 36, 37 (Sup. Ct. 1903) (emphasis added).

                               18                           A-3519-15T4
      This limitation on the demand requirement is well-recognized.

"If [a] defendant has already incurred liability for converting

goods (as by dispossession, by purchase of them, by alteration,

etc.) then neither demand nor refusal is necessary to complete the

basis for liability . . . ."      Harper, James and Gray on Torts, §

2.27 at 245.     "A demand is not necessary when there has been a

wrongful taking or an exercise of dominion and control over the

property inconsistent with the rights of the owner."               Stuart

Speiser et al., 7 The American Law of Torts, § 24:2 at 1015 (2011).

      Connecticut's Appellate Court has succinctly explained when

demand is, and is not, required.        Demand is only required "where

the   possession,   originally   rightful,   becomes   wrongful   by   [1]

reason thereafter of a wrongful detention," but it is not required

in the case of "[2] a wrongful use of the property, or [3] the

exercise of an unauthorized dominion over the property."          Luciani

v. Stop & Shop Cos., 544 A.2d 1238, 1240 (Conn. App. Ct. 1988).

The court reasoned that in the latter two cases, "the wrongful use

and   the    unauthorized   dominion,    constitute    the   conversion;

therefore no demand for the return of the personal property is

required."    Ibid. (emphasis removed).

      In sum, Meisels presented sufficient evidence of ownership

to support his claim of conversion, and proof of a demand and

refusal was unnecessary under the facts alleged.

                                  19                              A-3519-15T4
                                       C.

     Meisels also claims that Fox Rothschild owed him a fiduciary

duty.    However, there was no evidence that Fox Rothschild knew

Meisels existed.      Fox Rothschild received money from Cambridge

Mercantile which referenced Rightmatch, but Meisels's role in or

use of Rightmatch and his claimed ownership of the money was not

disclosed to Fox Rothschild.

     Meisels's     undisclosed    status     undermines     his      breach       of

fiduciary duty claim.       Meisels admitted that he never communicated

with Fox Rothschild or its former partner.                He stated he was

represented by a different attorney.         To prove breach of fiduciary

duty, Meisels must first prove a fiduciary relationship existed.

     We acknowledge that "a member of the bar owes a fiduciary

duty to persons, though not strictly clients, who he knows or

should know rely on him in his professional capacity."                  Albright

v. Burns, 206 N.J. Super. 625, 632-33 (App. Div. 1986); see also

Banco Popular No. America v. Gandi, 184 N.J. 161, 183-86 (2005)

(attorney prepared a false opinion letter to a lender, regarding

his client's financial status, to assist his client in obtaining

a loan); Petrillo v. Bachenberg, 139 N.J. 472, 479-80, 487-88

(1995)   (real    estate    attorney    provided    incomplete       percolation

reports to a potential buyer, which the potential buyer reasonably

relied   upon).     "[A]n    express    agreement    –   such   as    an    escrow

                                       20                                  A-3519-15T4
arrangement – can serve as the source of an attorney's duty to a

third party."      Kevin H. Michels, N.J. Attorney Ethics, §§ 46:2 at

1212, 46:2-2(b) at 1222 (2018).

     Yet,    Meisels    presented    no   evidence    that   Fox   Rothschild

entered     into   an   express     or    implied    agreement     with   him.

Furthermore, based on his undisclosed status, there is no evidence

that the firm or its former partner knew, or had reason to know,

that he allegedly relied on them in their professional capacity.

In Dynasty Bldg., 376 N.J. Super. at 283, upon which Meisels

relies, the plaintiffs had deposited funds into the defendant's

attorney trust account.       They claimed the attorney breached his

fiduciary duty by misdirecting the funds.             We held, "If in fact

the plaintiffs can establish that it was their funds, a fiduciary

relationship developed between them and [the attorney] even though

he did not represent them in any matter."            Id. at 287.     However,

in that case, the plaintiffs asserted their claim to the funds

before the attorney disbursed them, and the attorney acted based

on his client's competing claim.           That, he was not free to do.

Ibid.

     Likewise, Meisels misplaces reliance on In re Hollendonner,

102 N.J. 21 (1985), and In re Frost, 171 N.J. 308 (2002).                  The

Court in those cases found a fiduciary relationship, but the

attorney in Frost communicated with or knew the party claiming

                                     21                               A-3519-15T4
breach, Frost, 171 N.J. at 316-17; and there was an express escrow

agreement involving the party in Hollendonner, 102 N.J. at 22.

     Fox    Rothschild   may   have    been   aware,   based   on    the      wire

confirmation, that it was entrusted with funds from Rightmatch. 9

However, we are not asked to determine whether Rightmatch has a

viable breach of fiduciary duty claim. As for Meisels, we conclude

that his undisclosed status dooms his claim.

                                      D.

     In sum, we conclude Meisels has presented sufficient evidence

to reach a jury on his ownership of the $2.4 million and his

standing to seek its return.          He also has presented sufficient

evidence to support his conversion claim.          He was not required to

demand the return of the $2.4 million after defendants allegedly

disbursed    it   at   Weinstein's    direction.       Finally,     the     court

correctly granted summary judgment dismissal of the breach of

fiduciary duty claim.

     Affirmed in part; reversed and remanded in part.               We do not

retain jurisdiction.




9
  We acknowledge the equitable principle that "once moneys have
been received or allocated for a certain purpose such moneys become
impressed with a definite trust to be disbursed for that purpose
only."   Nat'l Surety Corp. v. Barth, 11 N.J. 506, 514 (1953).
However, there is no evidence that Rightmatch communicated to Fox
Rothschild the purpose for which the funds were to be used.

                                      22                                  A-3519-15T4
