On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6093-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2012 -
Before Judges Grall and Alvarez.
When plaintiff Thurman E. King was fifty-seven years old, he had a stroke that left him paralyzed on his left side and affected his speech. His daughter, defendant Terri E. Johnson, was living in Maryland at the time. She left her job, sold her condominium and returned to New Jersey to live with and care for her father. Defendant had a power of attorney and access to plaintiff's bank account and 401k. Using funds from the 401k, they purchased a residence that required improvements, including an accessible bathroom and repairs neglected by the prior owners such as window replacement and siding. While living with her father, defendant purchased a car, in part, with plaintiff's funds. Plaintiff's funds were also used to pay shelter expenses, personal expenses incurred by defendant and to fund several trips they took together.
Plaintiff commenced the litigation that led to this appeal through his attorney in fact, Barbara Johnson. In that complaint, plaintiff charged defendant with conversion and violation of fiduciary duties. He sought an accounting, sole title to the residence that was held by plaintiff and defendant and damages. The case was tried to a jury. At the conclusion of plaintiff's case, the court determined that plaintiff had not adduced evidence that would permit a jury to find defendant acquired her interest in the residence through deception or undue influence. Accordingly, the court dismissed that claim and permitted the jury to consider whether defendant had, and breached, a fiduciary duty through deception or by exerting undue influence to take money belonging to plaintiff for her own use.
The jury found defendant had done so and awarded plaintiff $114,000 as reasonable compensation for his loss. Although there is no indication that defendant moved for a new trial on liability, damages or remittitur, she appeals from the verdict. Plaintiff has not participated in the appeal.
Defendant raises these issues for our consideration:
I. THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
II. [PLAINTIFF] FAILED TO MEET HIS BURDEN OF PROOF THAT [DEFENDANT] MISAPPROPRIATED FUNDS WHILE [DEFENDANT] WAS ACTING IN A FIDUCIARY CAPACITY ON HIS BEHALF.
III. [PLAINTIFF] FAILED TO MEET HIS BURDEN OF PROOF THAT [DEFENDANT] EXERCISED UNDUE INFLUENCE UPON HIM.
IV. THERE WAS SUFFICIENT EVIDENCE THAT [PLAINTIFF] INTENDED TO GIFT [DEFENDANT] IN COMPENSATION FOR HER SERVICES.
In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed ...