Opinion
DOCKET NO. A-3598-11T3
03-01-2013
MARK B. BANYACKI, Plaintiff-Appellant, v. MARTHA GREEN and MICHELE GREAVES, Defendants-Respondents.
Anthony B. Vignuolo argued the cause for appellant (Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., attorneys; Mr. Vignuolo and Alexander J. Kemeny, on the brief). Harvey Rothman argued the cause for respondents (Gerald Poss, P.A., attorneys; Mr. Rothman, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and St. John.
On appeal from the Superior Court of New Jersey, Chancery Division, Mercer County, Docket No. C-36-10.
Anthony B. Vignuolo argued the cause for appellant (Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., attorneys; Mr. Vignuolo and Alexander J. Kemeny, on the brief).
Harvey Rothman argued the cause for respondents (Gerald Poss, P.A., attorneys; Mr. Rothman, on the brief). PER CURIAM
Plaintiff Mark Banyacki appeals the February 14, 2012 judgment of the General Equity Part, arguing that the trial judge erred in adjudicating his claims against defendant Martha Green, his mother, and defendant Michele Greaves, his sister. We affirm the judge's liability findings, but remand for recalculation of damages.
I.
We discern the following facts and procedural history from the record on appeal.
In May 2010, Banyacki filed a complaint seeking (1) a distribution of his portion of the proceeds from the sale of a property located in Lawrence Township, (2) an accounting of funds that Banyacki had allegedly entrusted to Green to invest on his behalf, (3) an order restraining Green and Greaves from dissipating those assets, and (4) an award of compensatory and punitive damages, in addition to counsel fees. The trial judge denied Banyacki's motion for temporary restraints. Following motion practice and discovery, the judge held a two-day bench trial on October 31 and November 1, 2011.
A.
Banyacki's first claim related to a family home located in Lawrence Township. Banyacki, Green, Greaves, and other relatives each inherited an interest in the home from Banyacki's grandmother, who died in 1984. The property was valued at $56,000 at the time of the inheritance. According to Banyacki, he lived in the Lawrence Township home on and off for almost forty years.
Although Banyacki's complaint alleged that the inheritance occurred in or about 1970, the will containing the bequest was dated 1983.
In 1984, Banyacki, Green, and the other relatives conveyed their respective interests in the property to Greaves. Banyacki and Green testified that the transfers were made because Green was contemplating a divorce from her second husband and wanted to prevent him from obtaining any interest in the property. After the divorce, Greaves conveyed her entire interest, as well as those conveyed to her by the others, to Green, who became the sole record owner of the property.
Banyacki testified that he did not receive any compensation for his transfer to Greaves or her subsequent transfer of his interest to Green. During cross-examination, Banyacki acknowledged that he had said at his deposition that he did not remember whether he received a check for $5000 for his interest.
Green initially asserted that no money changed hands in connection with the transfers. However, Green later testified that she had paid Banyacki and Greaves approximately $3000 for their interests in the property. Greaves testified that she received approximately $5000 from Green for her share of the property.
In September 2009, approximately twenty-five years after she obtained sole title to the property, Green sold it for $249,000. She then moved into Greaves's home.
B.
Banyacki's second claim involved his allegations that he had entrusted money to Green as a fund for his retirement and future needs. In 1985, Banyacki received a net worker's compensation award of $20,000. He testified that he gave the money to Green to hold for him because his mother knew about investing and because, at the time, he was suffering from problems with drugs and alcohol. In or around 1990, Banyacki was involved in an accident that resulted in a net recovery of approximately $66,000. He testified that he transferred those funds to Green for the same purpose.
Banyacki testified that he was aware of several accounts at Roma Savings Bank that were opened by Green in their joint names. Although he occasionally saw the passbooks, they were kept by Green. According to Banyacki, Green never provided him with specific information regarding the funds she was holding for him, and he never asked for that information because he trusted her.
Banyacki acknowledged that Green paid $40,000 from his funds for expenses related to his 1997 divorce, child support, and living expenses. He testified that Green had paid other expenses for him over the years, but asserted that he reimbursed her, sometimes with checks and frequently in cash. According to Banyacki, he began asking Green about his money in 2007, but she never returned any money to him. He testified that, in 2009, he discovered that Green had closed the accounts with Roma Savings Bank.
Banyacki testified that Green, with assistance from Greaves, filed a domestic violence complaint against him, apparently in about 2007. In the complaint, Green alleged that Banyacki had punched her in the face and made terroristic threats against her. Also around that time, Banyacki was removed from the house. After the complaint was dismissed, Banyacki and Green reconciled. Banyacki testified that Green agreed to pay him $20,260 for his litigation and other expenses related to his removal from her home, and to reimburse him for the funds from the accounts closed without his knowledge.
According to Banyacki, Greaves asked Green to pay various expenses on Greaves's behalf, including legal fees and school expenses for her daughter. He expressed concern that Green was using his funds, in addition to her own, to make those payments. He also testified about a dispute between Green and Greaves concerning the proceeds from the sale of the Lawrence Township property. Banyacki alleged that Green accused Greaves of taking some of that money without her consent. According to Green and Greaves, however, there had been a misunderstanding between them about reimbursement for repairs made to the Lawrence Township property, as well as payments made by Green on Greaves's behalf that Greaves initially thought were gifts and Green thought were loans.
Green testified that Banyacki never gave her money to invest on his behalf. She was then shown her certified answers to interrogatories in which she had responded that Banyacki had given her $100,000 and that she had put it in a certificate of deposit. Green testified that the interrogatory response was incorrect. In later trial testimony, Green testified that she did not remember whether Banyacki had given her any money to hold for him.
Green testified that she gave Banyacki approximately $30,000 when he lived in Florida. Green also testified that Banyacki borrowed money from her from time to time, and that he would usually pay it back. Greaves testified that Green had paid Banyacki's expenses over the years, including expenses related to quasi-criminal matters, day care and child support for his daughter, and healthcare.
In a written opinion, the trial judge held that Banyacki was not entitled to an accounting and distribution of proceeds from the sale of the Lawrence Township property because he had failed to meet his burden of proof. The judge found that, because of the conflicting testimony and credibility issues involving all three parties, the evidence was in equipoise. Because Banyacki had not proven his case by a preponderance of the evidence, she found that he was not entitled to relief.
The judge next found that Banyacki had given Green $87,595.92 for safekeeping from his worker's compensation award and the accident settlement. However, she did not credit Banyacki's assertion that he intended Green "to act as an investment counselor who would increase his funds." Rather, she found that because the two were living together and in light of Banyacki's "history of problems," Green acted as "a mother [who] accepted responsibility for funds belonging to her son." The judge credited Green with the $40,000 paid towards Banyacki's divorce, and an additional $42,524.71 paid for his expenses.
The exhibits used in calculating these expenses were not included in any party's appendix.
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However, the judge found that other moneys paid by Green to Banyacki, including funds related to the dismissed domestic violence complaint, were gifts. She concluded that these transfers reflected Green's generosity with her own funds and did not involve money belonging to Banyacki.
Although she found that Banyacki had not proven conversion, the trial judge concluded that he was entitled to have his remaining funds returned. She denied the request for a formal accounting, pointing to the significant passage of time and the lack of a fiduciary agreement between Banyacki and Green. Instead, she relied on the proofs offered at trial in determining the amount still owed by Green, which she calculated to be $5071.21. The judge awarded simple interest of 5% on the award, to be calculated from 1985, which was the year of the worker's compensation award. The total award was $11,821.21. This appeal followed.
II.
Banyacki raises the following issues on appeal:
POINT I: THE TRIAL COURT [ERRED] IN THE ANALYSIS OF [BANYACKI'S] CLAIM FOR AN OWNERSHIP INTEREST IN [THE LAWRENCE TOWNSHIP PROPERTY] AND A SHARE OF THE PROCEEDS OF ITS SALE.
POINT II: THE TRIAL COURT ERRED IN ITS INTERPRETATION OF LAW AND THE LEGAL CONSEQUENCES OF GREEN'S REFUSAL TO RETURN BANYACKI'S FUNDS, AND ITS APPLICATION OF THE LAW OF CONVERSION.
POINT III: EXHIBITS D-1 AND D-2 SHOULD HAVE BEEN BARRED FROM EVIDENCE AT THE TIME OF TRIAL BECAUSE OF [GREEN AND GREAVES'S] FAILURE TO PRODUCE THEM IN DISCOVERY.
POINT IV: THE TRIAL COURT ERRED IN ALLOWING A DEDUCTION AGAINST [BANYACKI'S] FUNDS FOR THE AMOUNTS CALCULATED ON D-1 AND D-2 TOTALING $42,524.71 CONTRARY TO THE EVIDENCE.
POINT V: THE TRIAL COURT ERRED IN ITS CALCULATION OF INTEREST ON THE AWARD TO [BANYACKI].
POINT VI: THE TRIAL COURT ERRED IN THE DISMISSAL OF [BANYACKI'S] CLAIM AGAINST GREAVES ON THE BASIS OF A CONSTRUCTIVE TRUST.
When reviewing a decision resulting from a bench trial, "[t]he general rule is that [factual] findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 ( 1974)). We do not disturb the factual findings of the trial judge unless we are "convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Id. at 412 (quoting Rova Farms, supra, 65 N.J. at 484) (internal quotation mark omitted); see also Beck v. Beck, 86 N.J. 480, 496 (1981). It is also well-established that our review of a judge's conclusions of law is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").
A.
We have reviewed Banyacki's arguments concerning the inherited property in Lawrence Township in light of the applicable law and the record on appeal, and find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.
There was conflicting testimony in the trial record about whether Green paid Banyacki for his interest in the inherited property. Banyacki testified that she did not. Green testified that she did; and Greaves testified that Green paid her for her interest. The deeds recited consideration of $1, which may have been evidentiary but was not decisive on the issue of payment. The judge was not required to accept the amount set forth in the deed as proof that nothing had been paid.
Because of the significant credibility issues involving Banyacki and Green, the judge's conclusion that the evidence was in equipoise and that Banyacki did not prove his case is fully supported in the record. As the Supreme Court has held, "[u]nder the preponderance standard, 'a litigant must establish that a desired inference is more probable than not. If the evidence is in equipoise, the burden has not been met.'" Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (quoting Biunno, Current N.J. Rules of Evidence, comment 5a on N.J.R.E. 101(b)(1) (2005)).
B.
We next address Banyacki's argument that the trial judge erred in admitting Exhibits D-1 and D-2 into evidence.
Our scope of review of a trial judge's evidential rulings requires that we grant substantial deference to the judge's exercise of that discretion. DeVito v. Sheeran, 165 N.J. 167, 198 (2000). Rulings on evidence will not provide a basis for reversal unless they reflect an abuse of discretion. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Reversal is not warranted unless the trial judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).
We find no abuse of the judge's discretion in this case. While the late production of documents to support the exhibits was troubling, the trial judge offered Banyacki the opportunity to adjourn the completion of the trial, which he declined. Although we have frowned on such an approach in general terms, see Smith v. Schalk, 360 N.J. Super. 337, 345 (App. Div. 2003), this case involved a bench trial that could have been adjourned without the sort of prejudice that results from the adjournment of an ongoing jury trial. The judge did not abuse her discretion under the particular circumstances of this case.
As to relevance, N.J.R.E. 401 provides that relevant evidence is that which has "a tendency in reason to prove or disprove any fact of consequence to the determination." In determining whether evidence is relevant, the "inquiry focuses on 'the logical connection between the proffered evidence and a fact in issue.'" Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004) (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). "The trial court is granted broad discretion in determining the relevance of evidence." Verdicchio v. Ricca, 179 N.J. 1, 34 (2004). "A determination of relevancy lies in 'the judge's own experience, . . . general knowledge, and . . . understanding of human conduct and motivation.'" State v. Allison, 208 N.J. Super. 9, 17 (App. Div.) (quoting McCormick on Evidence § 185 at 544 (3d ed. 1984)), certif. denied, 102 N.J. 370 (1985). The test for relevance "is broad and favors admissibility." State v. Deatore, 70 N.J. 100, 116 (1976).
The documents at issue related to Green's payment of Banyacki's expenses. Although Green testified that she never held any of Banyacki's money, the judge did not believe her and found that she had done so. That being the case, the judge was not required to credit Green's assertions that all of the money she spent on Banyacki's expenses came from her own assets. For that reason, evidence related to Green's expenditures for Banyacki's benefit was relevant. The judge's evidential rulings were not "so wide of the mark that a manifest denial of justice resulted." Carter, supra, 91 N.J. at 106.
C.
We now turn to Banyacki's argument that the trial judge erred in failing to find that Green converted the money that he gave to her for safekeeping. We also address his arguments with respect to damages and interest.
"Conversion has been defined as 'an unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of an owner's rights.'" LaPlace v. Briere, 404 N.J. Super. 585, 595 (App. Div.) (quoting Barco Auto Leasing Corp. v. Holt, 228 N.J. Super. 77, 83 (App. Div. 1988)), certif. denied, 199 N.J. 133 (2009). "Where the possession of a person remains rightful until transformed into a wrongful detention by a demand and refusal of delivery, the demand and refusal may constitute a conversion in itself." Winkler v. Hartford Accident & Indem. Co., 66 N.J. Super. 22, 27 (App. Div.) (quoting 89 C.J.S. Trover and Conversion § 61) (internal quotation marks omitted), certif. denied, 34 N.J. 581 (1961). "Where an agent has received money from his principal and has refused on demand to return it, his act becomes the equivalent of a tortious conversion . . . ." Republic of China v. Pong-Tsu Mow, 15 N.J. 139, 146 (1954). Acting in good faith does not necessarily preclude liability for conversion. McGlynn v. Schultz, 95 N.J. Super. 412, 417 (App. Div.), certif. denied, 50 N.J. 409 (1967); see also 18 Am. Jur. 2d Conversion § 101 (2004). Damages from conversion are the value of the goods taken, interest thereon, and additional consequential damages established. Winkler, supra, 66 N.J. Super. at 28.
The judge's determination that Banyacki had given Green $87,595.92 of his money to hold for him is supported by credible evidence in the record. We disagree with the judge's legal conclusion that there was no conversion when Green refused to return the money, or what was left of it, to Banyacki. That refusal was itself a conversion. Id. at 27.
As to damages, Banyacki acknowledged that Green expended $40,000 of his money for a variety of expenses related to his divorce in 1997. The judge found that Green paid an additional $42,524.71 from Banyacki's funds on his behalf, based upon exhibits D-1 and D-2 and the related testimony. Those findings are supported by credible evidence in the record, as is the judge's determination that other payments by Green were from her own funds rather than Banyacki's. Consequently, we affirm the judge's determination that the outstanding principal balance due to Banyacki is $5071.21.
Banyacki also argues that the judge erred in awarding simple interest at a rate of 5%, rather than compound interest at a higher rate. Although we agree with the judge that the proofs offered by both sides left much to be desired, once the judge found that Green had withheld funds entrusted to her, Banyacki was entitled to be made whole to the fullest extent possible. Id. at 28. He entrusted his money to Green with the understanding that she would, at the very least, put it into interest-bearing accounts, which she apparently did at Roma Savings Bank. The applicable interest rates and whether the interest was simple or compound remain matters of proof. Consequently, we remand for a recalculation of damages based on the principal amounts entrusted to Green and the interest that would have been earned, with appropriate deductions for the payments made to or on behalf of Banyacki.
D.
We have reviewed Banyacki's arguments concerning the dismissal of his claims against Greaves in light of the applicable law and the record on appeal, and find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(1)(E).
III.
In summary, we affirm the judgment on appeal as to liability and remand for a recalculation of damages consistent with this opinion. We do not retain jurisdiction.
Affirmed in part, remanded in part.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION