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Sable v. Abo

January 20, 2010

BARRY SABLE, PLAINTIFF-APPELLANT,
v.
MARTY ABO, AND ABO AND COMPANY, L.L.C., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3290-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 4, 2010

Before Judges Yannotti and Chambers.

Plaintiff Barry Sable appeals from an order entered by the trial court on October 24, 2008, dismissing his complaint with prejudice. We affirm.

I.

This appeal arises from the following facts. Plaintiff is the son of Harry Sable (Harry). In October 2003, Harry provided plaintiff with a power of attorney authorizing him to act as his financial and healthcare agent. In January 2005, plaintiff's brother Michael Sable (Michael) filed an action in the Chancery Division seeking, among other relief, a declaration that Harry was incapacitated and plaintiff's removal as Harry's financial and healthcare agent (the Harry Sable case or litigation).

On March 21, 2005, the Chancery Division held a pretrial hearing, after which it determined that Harry was incapacitated and appointed a temporary guardian for him. On March 20, 2006, the court entered an order which declared that plaintiff had acted improperly as Harry's agent by failing to administer, protect and preserve Harry's assets for his benefit and by converting certain of Harry's assets for his own use. The order also declared that plaintiff had failed to arrange for and monitor medical and caregiver services for Harry.

The Chancery Division's order further provided for the removal of plaintiff as Harry's financial and healthcare agent and the appointment of defendant Martin Abo (Abo), a certified public account, as temporary guardian of Harry's property. The order required Abo to conduct a review of the financial transactions undertaken with Harry's assets in the period after October 1, 2003, and to provide the court and all counsel with an accounting no later than June 5, 2006.

On March 31, 2006, Abo wrote to the court on behalf of defendant Abo and Company, L.L.C. to confirm the engagement to perform the accounting and consulting services. The letter stated in pertinent part that:

[i]t must be understood that any reports, data, worksheets, or other documents prepared by us in connection with this engagement will be submitted solely to the Court and shall not be furnished to any other person or party, unless the Court so directs or requires. It is further understood that the Court shall determine the scope of the work to be performed by us, as well as the requirement for any appearances in court.

Thereafter, Abo provided the court with an interim report dated July 12, 2006, and a final report dated December 31, 2006. Included in the final report was a summary of the expenditures undertaken with Harry's assets for the period from October 1, 2003 to May 31, 2006. The summary indicated, among other things, the expenditures that were reasonable and had underlying support and those for which documentation and/or appropriate support had not been provided. The court thereafter conducted a trial in the matter, at which Abo testified.

The court found that as of October 1, 2003, Harry lacked mental capacity to execute a will or other document or govern himself and manage his own affairs. The court further found that a confidential relationship existed between Harry and plaintiff, who had been primarily responsible for taking care of Harry and his finances and who held financial and health care powers of attorney at the time. The court additionally found that plaintiff had exerted undue influence over Harry and violated fiduciary duties owed to him. On January 31, 2007, the court entered judgments against plaintiff in the total amount of $715,040.97, for damages and costs arising from what the court described as plaintiff's egregious conduct.*fn1

On June 18, 2008, plaintiff commenced this action in the Law Division. In his complaint, plaintiff alleged that the Chancery Division had relied upon defendants' report and Abo's testimony ...


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