On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2592-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Yannotti and Espinosa.
Plaintiff George F. Taylor, Jr. (George) appeals from an order dismissing his complaint against his brother, Ricky Lee Taylor (Ricky), in which he alleged Ricky unduly influenced their mother, Jennie Taylor (Jennie), to transfer a property interest to him, violated his fiduciary duties under their real estate partnership, and diverted partnership income. We affirm.
In 1980 or 1981, the Taylor family created Shapes to Come (STC), a fitness center in Winslow Township, New Jersey. STC was a corporation owned equally by George, his father, George F. Taylor, Sr. (George, Sr.), and Jennie. George and his parents later created Taylor Real Estate Partnership to acquire the real estate where STC was built.
In 1991, George retired from his position with the State Police to work full-time at STC. He described his responsibility as "the normal duties of any health club owner" and said Ricky took care of payroll. George, Sr. passed away in 1999. The ownership interests in both the corporation and the partnership were equally split, one-third each to George, Jennie, and Ricky.
George and Ricky each testified that they enjoyed a good relationship with Jennie. George stated his mother "assured [him] that according to her will . . . things would be divided" equally between himself and Ricky. George also testified that, in the last few years of her life, he observed his mother "displaying an increasing diminished ability to reason and understand simple things that she was able to grasp in earlier years." In contrast, Ricky characterized his mother as "strong willed and independent[,]" though he could not recall examples of such traits after 1984 and 1985. He also testified that, at her request, he occasionally endorsed her checks and cashed them for her.
On May 18, 2006, Jennie signed a bill of sale transferring all of her interest in the partnership to Ricky. Ricky did not sign the bill of sale. Jennie was represented by Michael Diamond (Diamond), an attorney who had represented the family since the mid-1980s. Diamond testified that Jennie contacted him in 2006 to transfer her interest in a partnership to Ricky. He asked Jennie to provide him with a copy of the partnership agreement, which she allegedly sent via fax, though the parties disputed whether she knew how to use a fax machine. Diamond stated that Ricky accompanied her to one of the meetings and sat in the waiting room. He met with Jennie privately and discussed the tax consequences of the proposed transaction and advised her that it would be better to transfer the shares in her will. She rejected that alternative. Diamond stated Jennie "probably understood it as much as the plain language [he] was giving her.
And the plain language that [he] was giving her is it would be better to put it in a will . . . ." When asked whether there was "any question in [his] mind" that the transfer was a "knowing and voluntary act on the part of Jennie Taylor," Diamond answered, "she wanted to do it." Diamond agreed that Jennie was "well aware that she was about to transfer whatever interest she had to Rick[.]" He never discussed the transfer with Ricky. George had no knowledge of this transfer.
Ricky stated he did not ask or encourage his mother to make the transfer. She told him that it was her wish and she made the necessary arrangements. He asked her if she discussed it with George more than once. His mother replied that she was not going to do so, and that "this is what I want to do and I'm going to do it." Ricky stated she refused to talk to George out of "fear of . . . retaliation."
On July 14, 2006, notwithstanding the fact that Jennie had already signed her shares in the partnership over to Ricky, the parties executed an agreement selling STC. Jennie signed in her alleged capacity as a shareholder. She also signed a consent agreement in January 2007; a loan modification agreement dated March 30, 2007; and numerous checks from January to April 2008.
After Jennie passed away on April 9, 2008, Ricky and George met at her house to look for her will or other paperwork.
According to George, Ricky was inside the house when he arrived. A search of the house revealed no paperwork or money, even in the drawer next to Jennie's bed, the location where ...