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In the Matter of the Trust

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 31, 2011

IN THE MATTER OF THE TRUST UNDER THE WILL OF ANTONIA ZANENGO, DECEASED.

On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Somerset County, Docket No. 95-00150.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 19, 2011

Before Judges Sapp-Peterson and Ashrafi.

Defendant James V. Zanengo appeals from an October 6, 2010 judgment against him entered by the Chancery Division, Probate Part, in the amount of $414,457, which includes pre-judgment interest, in favor of a trust for which he was the trustee. We affirm.

Briefly, the facts are that defendant, who is a certified public accountant, was appointed as trustee under the will of Antonia Zanengo, who died in 1994. The trust provided that income would be distributed to Antonia's then eighty-year-old husband Albert Zanengo, who was defendant's uncle, as well as any distributions of principal necessary for Albert's support and maintenance in his accustomed manner of living and for medical care. Antonia's grandchildren were designated as the beneficiaries of the trust upon Albert's death.

At its inception, the trust was funded with about $320,000, but after Albert died in 2004, the trust had virtually no assets for distribution to the grandchildren. Plaintiff Albert J. Zanengo, who is the father of three grandchildren who are beneficiaries, brought an action in the Chancery Division for an accounting by defendant. Following a number of amendments of the pleadings, the case went to trial on February 4, 2010. Plaintiff and defendant were the only witnesses.

By written opinion, the trial judge found that defendant had looted the trust of $374,832.21 from August 2001 through December 2004. He granted judgment in that amount in favor of the trust, together with pre-judgment interest. He also ordered that defendant be removed as trustee.

On appeal, defendant raises three arguments. He contends plaintiff had no standing to bring an action challenging his conduct as trustee because plaintiff was not himself a beneficiary of the trust and was in fact specifically excluded by Antonia's will from benefiting from the trust. He also contends that the trial judge's findings and conclusions are contrary to the evidence because defendant provided services for his Uncle Albert during the final years of his life, and Uncle Albert had agreed to compensate him $100 per hour for those services. He argues that Uncle Albert turned away all in-home service providers and instead relied on defendant to take him to doctors, bring him dinner, and provide other assistance in his daily living, and those services continued even after Uncle Albert moved into an assisted living facility. Finally, he argues that, even if the agreement he had with Uncle Albert was not adequately proven or is not enforceable, he is entitled to compensation in quantum meruit for the services he provided.

We have reviewed the record and briefs submitted on appeal. The positions taken by defendant in this litigation are so devoid of merit that they do not warrant lengthy discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We affirm the decision of the Chancery Division for the reasons stated in the cogent written opinion of the trial judge dated April 26, 2010. We add only the following comments.

As to plaintiff's standing to bring this cause of action, we agree with the trial judge that plaintiff's status as the father of a minor beneficiary of the trust provided standing under Rule 4:87-1(b) as "an interested person." See also R. 4:87-2(a) (requiring that a complaint in an action for settlement of an account contain the names of parents of minors); N.J.S.A. 2A:16-55 ("[a] person interested as or through . . . an infant" has standing to bring a declaratory judgment action pertaining to an estate, will, or other writing).

With respect to the evidence supporting the judge's findings and conclusions, it was "adequate, substantial and credible" and, therefore, will not be disturbed on appeal. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). More to the point, there is no question on this record that the judge reached a sensible credibility determination, rejecting defendant's contentions that Uncle Albert agreed to pay him $100 per hour for undocumented and vague services, for which defendant's testimony was the only evidence, and that those services were valued at almost $375,000 in a matter of a few years. See In re Return of Weapons to J.W.D. 149 N.J. 108, 117 (1997) (deference granted to trial court where evidence is largely testimonial and requires credibility determinations). Defendant certainly did not prove by clear and convincing evidence, as he was required to do, see N.J.S.A. 2A:81-2, that such an agreement with a deceased person existed.

Finally, as to quantum meruit, defendant's lack of credibility also precluded a determination that he had provided substantial services to Uncle Albert that warranted compensation. Especially because defendant had looted the trust of virtually its entire corpus, there is no injustice in denying him compensation in quantum meruit for questionable services that he did not prove. See Starkey, Kelley, Blaney & White v. Estate of Nicolaysen, 172 N.J. 60, 68 (2002) ("Courts generally allow recovery in quasi-contract when one party has conferred a benefit on another, and the circumstances are such that to deny recovery would be unjust.") (quoting Weichert Co. Realtors v. Ryan, 128 N.J. 427, 437 (1992)).

Affirmed.

20110831

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