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                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-4775-08T3


         Argued: April 14, 2010 - Decided: May 10, 2010

         Before Judges    Axelrad,    Sapp-Peterson   and

         On appeal from the Superior Court of New
         Jersey, Chancery Division, Ocean County,
         Docket No. 174577.

         Anthony F. Malanga, Jr., argued the cause
         for   appellant  Peter  Vicinio   (Gaccione,
         Pomaco & Malanga, P.C., attorneys; Kevin N.
         Starkey, on the brief).

         Michael A. Jacobus argued the cause for
         respondent Roseann Pakay (Novins, York,
         Pagano, Jacobus & Seems, attorneys; Mr.
         Jacobus, on the brief).


    Defendant Peter Vicinio appeals from an order that removed

him as executor of the estate of his mother and voided inter

vivos transfers of virtually all of her estate to him based on

the finding of undue influence.   We affirm.

    Ninety-one-year-old Philomena Vicinio passed away testate

on October 11, 2007, leaving her daughter Roseann Pakay and
appellant as beneficiaries.1              On March 4, 2008, Roseann filed a

complaint     alleging          breach     of     fiduciary       duty,   negligent

misrepresentation, fraud and unjust enrichment and seeking to

remove and replace appellant as the executor of the estate and

void inter vivos transfers of liquid assets and real estate from

Philomena to him.         Appellant filed an answer to the complaint.

     After a three-day bench trial, Judge John A. Peterson, Jr.

placed     his     findings        of     fact,        credibility    assessments,

conclusions of law and decision on the record on April 21, 2009,

memorialized in an order of the same date.                     He found appellant

had exercised undue influence over Philomena and thus entered an

order in favor of Roseann, naming her executrix and returning

the transferred assets to the estate.                  This appeal ensued.

     Appellant concedes that a confidential relationship existed

between him and his mother, but argues the trial court erred in

finding he did not adequately rebut the presumption of undue

influence.       Specifically, appellant argues               the presumption was

rebutted    in    light    of    the     competent      and   disinterested     legal

counsel    Philomena      received       from    two   separate    attorneys,    John

Jorgensen    and    Kenneth      Bieg,     who    purportedly      advised    her   to

transfer her entire estate to him as part of an asset protection

  In an effort to avoid confusion and with no disrespect, we will
refer to decedent as "Philomena" and her daughter as "Roseann."

                                           2                                 A-4775-08T3
plan.     He alternatively argues that the judge erred in failing

to   award     him    a    proper      credit       for     his   substantial      work   on

Philomena's real estate ("the Kenilworth property") and for his

mileage to and from the property.                      We affirm substantially for

the reasons articulated by Judge Peterson in his comprehensive

oral opinion.          R. 2:11-3(e)(1)(A)&(E).                    We add the following


      Philomena       had      lived   with     her        husband   at   the   Kenilworth

property, a duplex, for fifty-three years.                             In May 2002, her

husband    suffered        a     stroke,   was       hospitalized,        and   died   three

months later.             Her mental and physical health then began to

deteriorate      and       she    began    to       suffer     the   early      effects   of


      While her husband was in the hospital, Philomena moved in

with Roseann and her family.                  She then moved in with appellant

and his family in November 2002, and remained there until June

2006,   when    she       moved    back    in       with    Roseann.       Unfortunately,

during the time Philomena lived with appellant, he and Roseann's

relationship became strained due to his perception that he was

shouldering the entire burden of caring for their mother and

Roseann's frustration over his interference with her ability to

visit their mother at his house.

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      On April 7, 2003, Jorgensen prepared and witnessed a will

that Philomena executed, bequeathing her estate to both children

in equal shares.   Philomena's estate consisted of the Kenilworth

property, as well as liquid assets in the form of checking and

savings accounts and annuities totaling about $150,600.2    Within

a few weeks, she met with Bieg to discuss estate and Medicaid

planning, and he recommended that she begin transferring assets

to both of her children.   However, despite Bieg's recommendation

and unbeknownst to Roseann, in May 2003, Philomena transferred

all of her liquid assets into appellant's   name.

      On or about June 1, 2004, Philomena again met with Bieg and

deeded the Kenilworth property to appellant alone for the sum of

$1.    Appellant submitted the certifications of Bieg and his

legal assistant, in which they both attested that Philomena was

of sound mind and fully competent when the deed was executed.

However, appellant did not mention to Bieg that he had submitted

a May 25, 2004 certification to the court that Philomena was

"legally deaf, []partially blind . . . and suffer[ing] from

Alzheimer's."   Moreover, two days after the deed was executed,

  Her husband's will had similarly provided that if he and
Philomena predeceased the children, the children would share
equally in the estate.

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appellant    testified        at   a     court   hearing3    that     Philomena     was

"totally    incompetent"       and       "doesn't    remember      [for]    more   than

minutes."    Appellant did not inform anyone, including the court,

that his mother had just transferred the balance of her estate

to him two days before.                 Roseann did not become aware of the

transfer of the property until two years later.

       At trial, appellant testified that both his parents had

expressed a desire to disinherit Roseann, despite the contents

of their wills.        He also claimed the inter vivos transfers were

made   pursuant   to     an    asset      protection    plan    and    attempted     to

explain the fact the transfers were at odds with the estate

planning    advice     given       by    attorneys     to   make    gifts    to    both

children and Philomena's April 2003 will.

       The judge made extensive credibility findings, expressly

discrediting appellant's testimony.                 The court found that "there

were so many [of appellant's] statements . . . not corroborated

by any [other] independent testimony, evidence, or documents"

and    "[t]here   were    clearly         numerous     instances      of   incredible

testimony, misrepresentations of other items in evidence, and

bare allegations that were not corroborated in any way by any of

  Roseann had filed an action against appellant claiming he was
interfering with her visitation of Philomena.   A June 11, 2004
order was issued, which set forth a procedure the parties were
to follow to allow equitable visitation.

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the   other    witnesses   in    the   case   or     writings    entered     into

evidence      through   both    counsel."      The     court    further    found

appellant's own admissions as to his mother's "vulnerability,

exploitation, lacking capacity, her weakness and dependence all

support a presumption of undue influence" and that "[n]othing in

the certifications of the professionals as to alleged capacity

and   their    observations     or   any   testimony    [by     appellant]    has

overcome this presumption."

      Judge Peterson further explained:

              And clearly this Court finds that there was
              adequate mental, moral, and indeed physical
              dependence and coercion exerted upon the
              decedent by her son.     This dependence is
              supported further even independent of the
              debilitating effects of dementia.        The
              decedent, by [appellant's] own admission,
              had macular degeneration, had significant
              problems with hearing, and was otherwise
              under [appellant's] sole control for the
              considerable period of time in question.

                   This Court notes that each case must be
              governed by its own merits on a case by case
              basis, and it is clear as to the voluminous
              evidence, documentation, much of which is
              not refuted, that undue influence clearly
              was exerted in this case.     The suspicious
              circumstances,   the   reliance    has   been
              demonstrated before the Court.      In fact,
              this Court finds nothing has been presented
              to the Court to refute the findings and
              observations made by Judge Williams back in
              the June 10, 2004 Court proceeding. . . .

                   This   Court   notes  that   the  same
              animosities toward his sister color much of
              [appellant's]    testimony   [as   in   the

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              visitation case].   In fact, the Court finds
              that [appellant] in many instances could
              barely control his anger toward his sister.

      The judge further discounted appellant's attempt to rely

upon the independent advice of Jorgensen and Bieg, noting that

Philomena's last will and testament prepared by Bieg and her

power    of     attorney     prepared       by   Jorgensen   "clearly    and

unequivocally showed [her] intent to treat both her son and

daughter equally" and the fact she never changed her will was

"further support of her clear intent."               The court also noted

that Bieg had not been advised of appellant's own assessment of

his mother's impaired mental capacity made less than a month

before she signed the deed, the strained relationship between

the   siblings    or   the   pending   litigation   involving   visitation.

Nor had he been told that Philomena had previously transferred

all of her liquid assets to appellant and that the transfer of

the Kenilworth property represented the balance of her assets.

      The court concluded:

                   Most importantly, however, the Court
              notes   that  the  late   Philomena  Vicinio
              without hesitation clearly expressed her
              love for both of her children. Even in her
              diminished state and suffering from dementia
              as she was at time, that love was clearly
              expressed, and this Court finds that to have
              been her overwhelmingly and long standing
              Estate plan to treat both of her children

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               For the reasons stated and applying the
          body   of  case   law  as   to  inter   vivos
          transfers, this Court finds that clearly the
          confidential relationship existed and there
          are overwhelming facts and circumstances
          supporting   the   suspicious   circumstances
          existing as to the transfers about which
          [appellant] was never open with either
          [Roseann] or with any professional.

               Having found the presumption of undue
          influence, the Court finds very little, if
          any, credible testimony to overcome such
          presumption.   As such, the Court finds that
          all of the transfers of the decedent's
          property including the real estate itself
          should be voided. . . .

The court also did not have any confidence that if appellant

were maintained in his position as executor, the estate would be

accurately     finalized      with       the   appropriate        accounting.

Accordingly, the court directed the substitution of Roseann as


    Based on our review of the record and applicable law, we

are satisfied the court performed an accurate and comprehensive

review   of    the    trial   record,      made     extensive     credibility

assessments,    and    articulated       its      findings   of    fact    and

conclusions of law in a cogent opinion.            Appellant sets forth no

arguments on appeal that would persuade us to interfere with

Judge Peterson's sound ruling, which is based on his "feel of

the case" and supported by substantial credible evidence in the

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record.        See Rova Farms Resort, Inc. v. Investors Ins. Co. of

Am., 65 N.J. 474 (1974).

    We turn now to appellant's alternative argument.                          Appellant

contends       the   $87,358    in    rental      income   he    received         from    the

Kenilworth property, which the court considered to be "a wash"

for his out-of-pocket expenses for materials, was not adequate

compensation.        At trial appellant urged he was entitled to some

compensation for his "sweat equity," namely the 3,599.5 hours of

labor in maintaining and upgrading the Kenilworth property, the

primary asset of the estate, and some credit for the 26,638

total miles he drove back and forth to the property over the

course of six years to work on it.                   However, appellant failed to

articulate      what   amount    of       loss,   if    any,    he    sustained      or   to

submit any proofs for the court to have calculated a reasonable

quantum of compensation.                  Nor did appellant articulate to the

trial court the theory of unjust enrichment that he now raises

on appeal.

    Appellant has failed to convince us that a remand on this

issue     is    in   order.          To    establish      unjust      enrichment,         the

proponent must show both that a benefit was bestowed, and that

retention       of   that   benefit        without     payment       would   be    unjust.

Assocs. Commercial Corp. v. Wallia, 211 N.J. Super. 231, 243

(App.   Div.     1986).        Appellant      has      failed    to   articulate         what

                                             9                                     A-4775-08T3
benefit, if any, Roseann or the estate gained other than the

generalized   allegation   that   the   property   has    appreciated   in

value because of his labor.        Additionally, appellant's failure

to show that he expected remuneration for his labor and mileage

at the time he performed the services or conferred a benefit

unequivocally precludes the argument that Roseann or the estate

has been unjustly enriched.       See VRG Corp. v. GKN Realty Corp.,

135 N.J. 539, 554 (1994); Assocs. Commercial, supra, 211 N.J.

Super. at 244.    Appellant was reimbursed for his out-of-pocket

costs of materials by the offset of rent.                Although Roseann

confirmed that her brother performed significant labor on the

property, there never existed any arrangement whereby appellant

would be paid for such labor or reimbursed mileage.           It is clear

appellant undertook the services of his own volition with no

reasonable expectation of payment and no demand for payment from

Philomena or Roseann.      Accordingly, appellant is now precluded

from asserting his theory of unjust enrichment.


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