IN THE MATTER OF THE GLORIA T. MANN REVOCABLE TRUST (P-000330-18, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2663-19

IN THE MATTER OF THE APPROVED FOR PUBLICATION

GLORIA T. MANN June 2, 2021

REVOCABLE TRUST. APPELLATE DIVISION

________________________

Argued January 26, 2021 – Decided June 2, 2021

Before Judges Gilson, Moynihan, and Gummer.

On appeal from the Superior Court of New Jersey,

Chancery Division, Bergen County, Docket No.

P-000330-18.

William I. Strasser argued the cause for appellant

(Strasser & Associates, PC, attorneys; William I.

Strasser, of counsel and on the briefs; Maximilian

Rich, on the briefs).

John M. Chakan argued the cause for respondent.

The opinion of the court was delivered by

MOYNIHAN, J.A.D.

Following the death of their mother, Gloria T. Mann (Gloria), 1 plaintiff

David Mann and defendant Doree Gottlieb became the primary beneficiaries

1

Many of those involved in the Trust that is the subject matter of this appeal

have the same surname, so, at times, we use given names for clarity. We mean

no familiarity or disrespect by that practice.

and co-trustees of the Gloria T. Mann Revocable Trust. Plaintiff appeals from

the trial court's order for judgment, entered following a three-day bench trial:

dismissing his verified complaint against defendant with prejudice; ordering

defendant to prepare an updated formal accounting and "be in a position to

promptly distribute the assets to the [Trust's] beneficiaries" consistent with the

trial court's written decision; and setting dates for defendant's application for

counsel fees and plaintiff's response. Plaintiff also appeals from the court's

subsequent order awarding defendant's counsel fees payable from Trust assets.

We glean the pertinent facts from the trial court's findings that "are

binding on appeal [if] supported by adequate, substantial, credible evidence."

Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Our deference is particularly

"appropriate when the evidence is largely testimonial and involves questions of

credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997).

We will not substitute our view of the trial evidence for that of the supported

findings made by the trial court. In re Tr. Created by Agreement Dated Dec.

20, 1961, by & between Johnson & Hoffman, Lienhard & Perry, 399 N.J.

Super. 237, 253 (App. Div. 2006), aff'd, 194 N.J. 276 (2008).

More than two months after their mother's passing on August 10, 2017,

plaintiff and defendant signed a Legal Representation Agreement retaining

Emanuel Haas to assist in administering the Trust. They then opened several

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accounts at Oritani Bank for certain Trust assets; both co-trustees were co-

signatories on the accounts. As a matter of course, Oritani personnel

performed credit checks and judgment searches on the co-trustees that revealed

four outstanding judgments against plaintiff that were over ten years old. The

day after plaintiff met with Oritani's branch manager in mid-November 2017 to

review the judgment search, plaintiff met with defendant and her husband.

Plaintiff testified defendant expressed concern that the outstanding judgments

would affect their ability to administer the Trust.

Shortly thereafter, defendant reiterated her concern to Haas during a

meeting attended by the co-trustees and defendant's husband. At trial, plaintiff

testified Haas "didn't say one way or the other" he should resign. Plaintiff

testified he considered the age and amounts of the judgments, that they did not

appear on his credit report and defendant's concern that "the judgment holders

[could] freeze the [T]rust." He "wrapped it up by saying, if [defendant was]

so afraid to have [him] listed as a co-trustee, then [Haas should] remove [his]

name as co-trustee." Haas agreed to draft the documents to accomplish

plaintiff's decision.

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3

Two days later, on November 24, 2017, 2 plaintiff and defendant returned

to Haas's office. Plaintiff signed a "Resignation of Trustee"; defendant signed

an "Acknowledgment of Trustee Resignation." Both parties presented the

resignation to Oritani and Valley National Bank, another depository of the

Trust's funds, and defendant was thereafter designated as the sole trustee for

Trust accounts at those banks.

Defendant's purported actions and inactions following that date

eventually led to plaintiff filing a verified complaint on July 26, 2018, and

subsequent amended verified complaint seeking: an order declaring him a

trustee of the Trust; a full accounting of the actions taken by defendant as

trustee; a return of all Trust and non-Trust property taken by defendant or any

agent of defendant; compensatory, consequential, incidental, nominal and

expectation damages; and lawful interest, attorney's fees and other equitable

relief. We review plaintiff's claims of trial-court error:

[I]. THE TRIAL COURT ERRED IN FINDING

THAT [PLAINTIFF] RESIGNED AS TRUSTEE.

[II]. THE TRIAL COURT ERRED IN ITS FAILURE

TO AWARD [PLAINTIFF] ADEQUATE

COMPENSATORY, PUNITIVE, AND EQUITABLE

2

The trial court's written decision, at one point, sets the date as November 24,

2019. Considering the context of related events, the corresponding dates

found by the court and the exhibits the court references, that was obviously a

typographical error.

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DAMAGES IN LIGHT OF [DEFENDANT’S]

CONDUCT.

[A]. THE TRIAL COURT ERRED IN

FINDING THAT DEFENDANT’S FAILURE

TO INVEST OVER $700,000[] IN

AVAILABLE LIQUID ASSETS WAS NOT A

VIOLATION OF N.J.S.A. 3B:20-11.5 AND

NEW JERSEY COMMON LAW.

[B]. WHILE THE TRIAL COURT FOUND

THAT DEFENDANT ENGAGED IN SELF-

DEALING BY DISTRIBUTING $37,000[] TO

HERSELF WITHOUT OFFERING A SIMILAR

DISTRIBUTION TO [PLAINTIFF] AND

WITHOUT ADVISING [HAAS] OR

[PLAINTIFF] OF THE DISTRIBUTION, THE

TRIAL COURT FAILED TO AWARD

SUFFICIENT DAMAGES.

[C]. THE TRIAL COURT ERRED IN ITS

FAILURE TO FIND THAT . . . DEFENDANT

FAILED TO KEEP [PLAINTIFF] ADVISED

AS TO THE STATUS OF THE TRUST.

[D]. THE TRIAL COURT ERRED IN ITS

FAILURE TO FIND THAT [DEFENDANT’S]

REFUSAL TO MAKE ANY INTERIM

DISTRIBUTIONS TO [PLAINTIFF] DID NOT

VIOLATE HER DUTIES AS TRUSTEE AND

CAUSED DAMAGE TO [PLAINTIFF].

[E]. THE TRIAL COURT ERRED IN

FAILING TO FIND THAT [DEFENDANT’S]

UNILATERAL ACTIONS TAKEN AFTER

[PLAINTIFF] REVOKED HIS

"DELEGATION" VIOLATED HER DUTIES

AS CO-TRUSTEE.

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[III]. THE TRIAL COURT ERRED IN FAILING TO

AWARD SUFFICIENT COMPENSATORY

DAMAGES AND PUNITIVE DAMAGES.

[IV]. THE COURT SHOULD ORDER THE TRUST

TO PAY THE LEGAL FEES AND COSTS

INCURRED BY [PLAINTIFF] IN CONNECTION

WITH THIS ACTION AND ASSESS ALL SUCH

FEES AGAINST DEFENDANT’S INTEREST IN

THE TRUST.

[V]. THE TRIAL COURT ABUSED ITS

DISCRETION AND COMMITTED REVERS[I]BLE

ERROR WHEN IT PROHIBITED [PLAINTIFF]

FROM PRESENTING REBUTTAL WITNESSES.

According proper deference to supported trial-court findings and subjecting

the trial court's application of those facts to the law to plenary review, see

Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007), we find no error.

Nor do we discern an abuse of discretion in the trial court's counsel-fee

determination. See In re Est. of Bloomer, 43 N.J. Super. 414, 416 (App. Div.

1957). Consequently, we affirm.

I.

Plaintiff reprises the argument made to and rejected by the trial court

that he did not resign as trustee but merely delegated his authority as permitted

under Article IX, paragraph D of the Trust instrument. The trial court

determined the evidence did not support that argument. We defer to that

supported finding.

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The Resignation of Trustee is unambiguous; plaintiff resigned as trustee

by signing the document that provided: "For reasons best known to me, I [,

plaintiff,] hereby resign my position as [t]rustee of [the] Trust, effective

immediately." He did not designate anyone as a successor trustee as permitted

in Article IX, paragraph B. Nor did he delegate "any or all [T]rust authorities

to any other co-trustee" as permitted in Article IX, paragraph D.

Despite the unambiguity of the Resignation of Trustee, the trial court

properly considered extrinsic evidence. See Atlantic N. Airlines, Inc. v.

Schwimmer, 12 N.J. 293, 301-02 (1953) (noting a trial court is permitted to

rely on extrinsic evidence to aid in its interpretation of a document even when

the document is not ambiguous on its face). The judge found: plaintiff, with

defendant, presented his resignation to the banks "to be sure that he was

removed as [c]o-[t]rustee on the accounts"; plaintiff testified "he did not

communicate with [d]efendant regarding the Trust from late November 2017

until April 30, 2018"; and "[p]laintiff did not participate in any manner in

administering the assets of the Trust."

The trial court's rejection of plaintiff's contention that he intended only

to delegate his authority and its finding that plaintiff resigned are supported by

the documentary evidence and plaintiff's own conduct after he executed the

Resignation of Trustee. Because there was "adequate, substantial, credible

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evidence" in the record supporting the trial court’s determination, that finding

should be upheld on appeal. See Cesare, 154 N.J. at 411-12.

Plaintiff alternatively argues his resignation "was ineffective as [a matter

of law because] the beneficiaries (Joshua Mann and [Aliya Mann]) were not

notified" as required by N.J.S.A. 3B:31-50. Gloria had made specific

provisions for those beneficiaries in the original Trust document and an

amendment thereto, designating the funds held in an Oritani account that were

to be divided equally between them upon her death.

For reasons unknown to us, the trial court did not address that issue.

Nevertheless, we find no merit in plaintiff's argument.

"The general rule is that a trustee, having accepted a trust, may not

through his own act alone divest himself of the office or of its responsibilities

. . . in the absence of the [approval of the court or the] consent of the

beneficiaries[.]" In re Loree's Tr. Est., 24 N.J. Super. 604, 609 (Ch. Div.

1953); see also In re Est. of Mild, 25 N.J. 467, 485 (1957) ("A fiduciary who

has entered upon the administration of his duties cannot divest himself of his

responsibility and gain his discharge by his own act of resigning."). Our

Legislature codified that common law principle in N.J.S.A. 3B:31-50(a):

A trustee may resign [his or her position]: (1) upon at

least [thirty] days' notice to the qualified beneficiaries,

the settlor, if living, all co-trustees, and the trustee or

trustees, if any, designated pursuant to the terms of the

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trust to succeed the resigning trustee; or (2) with the

approval of the court.

That default statutory rule must yield to the intent of the settlor, see

Zwoyer v. Hackensack Tr. Co., 61 N.J. Super. 9, 12, 16 (App. Div. 1960)

(noting a court’s primary purpose is to give effect to the testator’s intent and

the dominant scheme of the instrument, in that case a will containing a trust

provision), and should be applied only in cases where the settlor did not

explicitly contemplate trustee resignation in the trust instrument, see Loree’s

Tr. Est., 24 N.J. Super. at 606 (noting "[t]he agreement [made] no provision

for the resignation of the trustee"). If the settlor addressed the issue of trustee

resignation in the trust document, then the express terms of the trust p revail

over N.J.S.A. 3B:31-50(a)’s default resignation requirements. N.J.S.A. 3B:31-

5(b) ("The terms of a trust prevail over any provision of this act[.]").

Here, the Trust specifically provided that if either trustee was "unable or

unwilling to serve or to continue to serve, then the other shall serve as sole

trustee[.]" It further provided "[n]o [t]rustee shall be required to obtain the

order of any court to exercise any power or discretion" under the Trust. Not

only did the Trust allow resignations, it provided for continuity of the Trust's

administration if a trustee did resign. Thus, there was no danger the Trust

would be neglected. Moreover, defendant, the only remaining trustee—and the

only other primary beneficiary—was on notice of plaintiff's resignation.

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We also note, under the Trust amendment, Joshua and Aliya were to

receive the asset directly. Articles IV and V of the original Trust created a

trust funded by different assets than that specified for distribution in the

amendment, specifically "all trust [c]ertificate of [d]eposit (CD) accounts"

held in Gloria's name were to be "poured-over" into a trust if either of the two

were under forty years old. That trust was "revoked in its entirety (and not

replaced)" by the amendment. The notice provision of N.J.S.A. 3B:31-50(a)

was, therefore, inconsequential.

We also find dubious plaintiff's attempt to void a resignation he freely

signed by later application of a notice provision with which he failed to

comply.

II.

Plaintiff argues the trial court erred in failing to award adequate damages

that arose from defendant's misconduct, a claim we reject substantially for the

reasons found by the trial court in addressing plaintiff's claim that defendant

should have been removed as the trustee. 3 The record evidence supports the

court's determination that defendant committed only one act of misconduct.

3

Plaintiff does not argue on appeal the trial court erred in denying his demand

for defendant's removal.

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A

Plaintiff claims the trial court erred by failing to find defendant violated

the Prudent Investor Act (the Act), N.J.S.A. 3B:20-11.1 to -11.12, when she

did not invest $735,838.52—held in four bank accounts—"from August 2017

until this action was commenced in July 2018." He notes that, although the

trial court properly determined the Trust instrument allowed defendant to hold

Trust funds in commercial and savings loan accounts, that provision was only

"appropriate . . . while [Gloria] was alive" and was acting as trustee. He

further contends

[t]he $497,322.35 held in the Oritani [a]ccounts

generated $970.24 in interest for the period from

August 2017 through December 2019. The

$237,516.08 held in the Valley National Bank

generated $2,355[] in interest during the same period.

That is a return on investment of 0.45% over a twenty-

eight[-]month period. The "investment strategy"

employed by [defendant] is clearly not in compliance

with the requirements of the Prudent Investor Act,

thus violating the Act and forming the basis for a damages award.

As the trial court recognized, the Act requires "[a] fiduciary [to] invest

and manage trust assets as a prudent investor would, by considering the

purposes, terms, distribution requirements, and other circumstances of the

trust. In satisfying this standard, the fiduciary shall exercise reasonable care,

skill, and caution." N.J.S.A. 3B:20-11.3(a). As such, a trustee is under a duty

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to "invest and manage the trust assets solely in the interest of the

beneficiaries." N.J.S.A. 3B:20-11.5. Specifically,

[w]ithin six months after accepting trust assets, the

[trustee] shall review the trust assets and shall make

and implement decisions concerning the retention and

disposition of assets . . . in order to bring the trust

portfolio into compliance with the provisions of the

trust instrument or with the requirements of [the A]ct.

[N.J.S.A. 3B:20-11.7.]

After the six[-]month grace period, "the trustee is under a duty . . . 'not merely

to preserve the trust property but to make it productive so that a reasonable

income will be available for the'" beneficiaries. See Pa. Co. for Ins. on Lives

v. Gillmore, 137 N.J. Eq. 51, 58 (Ch. 1945) (citation omitted).

But the Act provides "[t]he prudent investor rule is a default rule that

may be expanded, restricted, eliminated, or otherwise altered by express

provisions of the trust instrument. A fiduciary is not liable to a beneficiary to

the extent that the fiduciary acted in reasonable reliance on those express

provisions." N.J.S.A. 3B:20-11.2(b).

The trial court discerned Article VIII of the Trust granted broad

investment powers to the trustee, "exclusively empower[ing]" the trustee in her

"fiduciary capacity":

1. To hold and retain all or any property received

from any source, without regard to diversification,

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risk, productivity, or the Trustee’s personal interest in

such property in any other capacity[.]

2. To invest and reinvest the trust funds (or leave

them temporarily uninvested), in any type of property

and every kind of investment[.]

....

4. To deposit trust funds in any commercial

savings or savings and loan accounts.

[(Emphasis added.)]

Of the monies held in the four bank accounts, the trial court found

$245,797.74 were the funds earmarked for Joshua and Aliya, and those funds

were paid in full in August 2018; plaintiff had no claim to those funds. From

Schedule F of the accounting defendant prepared, the court also found the

remaining bank accounts earned interest. $75,658 was paid in inheritance

taxes; and over $1.4 million of Trust assets were invested in a broker account.

Defendant, therefore, did not violate the Act by maintaining a portion of Trust

assets in secure, liquid bank accounts notwithstanding the rate of return was

lower than more risk-based investments.

In her fiduciary capacity, defendant was required to manage the Trust

assets with a degree of caution. It is hornbook law that

[w]here the opportunity for gain more than

compensates for the risk of loss, an ordinary prudent

[person] will speculate with his property; but a

fiduciary may not speculate with the property in his

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charge. He must in that regard act more cautiously

than a [person] of ordinary prudence; for, unlike the

ordinary [person], his concern is not with increasing

an estate, but with preserving the principal and

providing for a regular income.

[7 N.J. Practice, Wills and Administration § 987, at 31

(Alfred C. Clapp & Dorothy G. Black) (rev. 3d ed.

1984).]

"The prudent investor rule expresses a standard of conduct, not outcome.

Compliance with the rule is determined in light of the facts and circumstances

existing at the time of the fiduciary’s decision or action." N.J.S.A. 3B:20-

11.9. The trial court did not err by finding defendant had not violated the Act.

We also find convincing the trial court's observation that the decision to

maintain the accounts at both banks "was made at the time both [p]laint iff and

[d]efendant served as [c]o-[t]rustees of the Trust. Plaintiff should not now be

allowed to seek to hold [d]efendant to a standard higher than he determined to

apply to himself."

B

Plaintiff also argues the trial court erred by failing to find defendant

breached her duty as trustee by refusing to make interim distributions to

plaintiff. The trial court delineated the pertinent timeline from Gloria's death

on August 10, 2017.

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Plaintiff and defendant signed a Legal Representation agreement with

Haas in late October 2017 and opened the Oritani account in early November.

Oritani's judgment search occasioned plaintiff's resignation on November 24,

2017. As the trial court found, "[a]t no point from the execution of the

[r]esignation until April 30, 2018[,] did [p]laintiff make any inquiry as to the

status of the Trust or its assets." On April 30, four days prior to the date Haas

completed and filed the inheritance tax return, plaintiff contacted defendant

because he was considering hiring someone to manage his share of the Trust

and wanted to know the value of the Morgan Stanley account. Having

received no response from defendant, plaintiff's counsel wrote to defendant 4

and Haas on May 15, 2018, advising that plaintiff revoked his prior

"delegation of duties" and demanded reinstatement as co-trustee. Counsel

followed that letter with another on June 8, 2018, asking for information from

defendant and Haas about Trust assets. Defendant's counsel, retained on or

about June 17, 2018, advised plaintiff's counsel by letter dated June 19, 2018,

defendant would not reinstate plaintiff as co-trustee and disputed his claim that

he had delegated his authority and not resigned; defendant's counsel also

4

In its decision, the trial court found this letter was sent to "[d]efendant's

counsel" and Haas. The letter, made part of the record, was written to

defendant and Haas. As the trial court also found, defendant did not retain her

counsel until on or about June 17, 2018. The error does not impact our

analysis of the case.

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addressed plaintiff's counsel's prior letters to defendant. Plaintiff filed this

action on July 26, 2018.

Contrary to plaintiff's contention that defendant ignored Haas's advice

that interim distributions should be made while administration of the Trust was

pending, the trial court found credible defendant's testimony that Haas had

advised distributions should not be made until the inheritance tax return was

filed. We defer to that credibility finding, particularly because Haas test ified

he did not recall the specific advice he had given defendant, only the advice he

generally gives for interim distributions to be made. See State v. Locurto, 157

N.J. 463, 474 (1999) ("Appellate courts should defer to trial courts' credibility

findings that are often influenced by matters such as observations of the

character and demeanor of witnesses and common human experience that are

not transmitted by the record."); see also Adler v. Save, 432 N.J. Super. 101,

121-22 (App. Div. 2013) (applying the same principles in civil context). We

also note Haas testified that between November 2017 and May 2018, he was

"working on the estate tax return. There was an issue that came up." He

"believe[d plaintiff] brought it up . . . concerning whether" a return had to be

filed at all. Haas also believed plaintiff thought it need not be filed because

Gloria had worked for the State of New Jersey; research revealed the return

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had to be filed. The record shows the return was not filed and the taxes were

not paid until May 4, 2018.

The trial court acknowledged defendant should have responded more

timely to plaintiff's April 30 inquiry, but "[d]efendant was still operating on

the basis that the [i]nheritance [tax r]eturn was the first order of priority." The

court also found plaintiff's attempt to be reinstated "slowed down the process"

and, despite defendant's counsel's ultimate response to plaintiff's counsel's

letters, plaintiff chose to commence litigation. The trial court "reject[ed]

[p]laintiff's assertion that [d]efendant delayed in administering or distributing

assets." We agree.

Among the broad powers granted under the Trust, defendant had

authority to "pay and advance money for the [T]rust's protection and for all

expenses . . . and liabilities sustained in its administration"; and to distribute

Trust assets, whether in kind or in cash. Nothing in the Trust instrument

compelled defendant to make interim distributions to plaintiff during the

winding up of the Trust and before a final distribution was available. See

Swetland v. Swetland, 100 N.J. Eq. 196, 216-17 (Ch. 1926) (noting

beneficiaries were not entitled to compel interim distributions where the

instrument did not expressly allow it); Restatement (Third) of Trusts § 49, cmt.

d (Am. Law Inst. 2003) ("Questions of whether, and under what

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circumstances, and to what extent a beneficiary who is entitled to receive trust

income may also be entitled to receive principal depend upon the terms of the

trust."); see also Tannen v. Tannen, 416 N.J. Super. 248, 265-67 (App. Div.

2010) (recognizing a beneficiary’s right to compel distributions is limited by

the terms of the trust).

As the trial court found, in accordance with counsel's advice, defendant

delayed making any interim distributions to plaintiff from November 2017

until the inheritance taxes were paid. Her caution during that relatively short

span was commensurate with that expected of a trustee. See In re Est. of

Bayles, 108 N.J. Super. 446, 454 (App. Div. 1970) ("With respect to assets

coming into his [or her] charge, the additional burden is cast upon him [or her]

as fiduciary to act more cautiously than he [or she] would be required to act in

the management of his [or her] own property."). Days after the taxes were

paid, plaintiff voiced his intention to contest his resignation precipitating the

conflict that resulted in this litigation. In all practicality, the dispute froze the

Trust assets.

Other than defendant's single $37,000 self-distribution on November 27,

2017, she did nothing untoward in administering the Trust, including her

decision not to make other interim distributions, that would entitle plaintiff to

damages.

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C

There is no quarrel that that single distribution, without an equal

distribution to plaintiff, violated defendant's fiduciary duty. See N.J.S.A.

3B:31-56. Plaintiff's claim of error involves the damages the trial court

awarded him: ordering defendant to "pay interest . . . on the $37,000 not

distributed to him at a rate of five percent (5%) per annum." Although in his

merits brief plaintiff failed to specify the measure of damages he deemed

appropriate, claiming only "[t]he imposition of further damages is warranted

based upon the established malfeasance of [defendant,]" in his reply brief he

contends the trial court should have applied the lost potential profits he could

have garnered from an option-trading strategy he employed to gain a return on

investment of over $490,000 on an $89,541 total investment from May or June

through the end of December 2018.

In analyzing plaintiff's overall claim for damages, the trial court

summarily dismissed the "opinion" of plaintiff's expert as "nothing more than

speculation of what [p]laintiff might have earned if distributions were made to

[him] from the Trust." We agree there was no guarantee the same return on

investment would have been realized if defendant had distributed $37,000 to

plaintiff in November 2017—a period not analyzed by the accountant—

rendering plaintiff's damages calculation speculative.

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Consequential damages are damages that naturally flow as a result of the

harm caused by the defendant’s wrongdoing. See Mitsui O.S.K. Lines, Ltd. v.

Consol. Rail Corp., 327 N.J. Super. 343, 347 (App. Div. 2000). For example,

if the defendant’s wrongdoing caused harm that led to lost business profits,

those "[l]ost profits may be recoverable if they can be established with a

'reasonable degree of certainty.'" Desai v. Bd. of Adjustment of Phillipsburg,

360 N.J. Super. 586, 595 (App. Div. 2003) (quoting Stanley Co. of Am. v.

Hercules Powder Co., 16 N.J. 295, 314 (1954)). Nevertheless, "[a]nticipated

profits that are too remote, uncertain, or speculative are not recoverable." Ibid.

For a plaintiff to recover lost profits, the amount lost must be certain, a nd

based on "sound fact[s]." See id. at 596.

Moreover, we determine the trial court was within its discretion in

awarding the interest on those undistributed funds. See Graziano v. Grant, 326

N.J. Super. 328, 342 (App. Div. 1999) ("Applying principles of fairness and

justice, a judge sitting in a court of equity has a broad range of discretion to

fashion the appropriate remedy in order to vindicate a wrong consistent with

principles of fairness, justice, and the law.").

Under N.J.S.A. 3B:31-72(a),

[a] trustee who commits a breach of trust is liable to

the beneficiaries affected for the greater of: (1) the

amount required to restore the value of the trust

property and trust distributions to what they would

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have been had the breach not occurred; or (2) the

profit the trustee made by reason of the breach.

As the trial court held, "[w]hile the interest rate . . . is somewhat higher than

the judgment interest rate in effect during the applicable period, . . . such

differential more than compensates [p]laintiff[.]"

We determine plaintiff's other arguments pertaining to the amount of

damages to which he claims entitlement to be without sufficient merit to

warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We add only these

brief comments.

The trial court deemed the interest award to be sufficient. It did not

adopt plaintiff's present argument that he should have been awarded other

"appropriate relief" under N.J.S.A. 3B:31-71(b)(10) for defendant's breach of

trust. Further, plaintiff did not claim punitive damages in his verified

complaint, as required. See N.J.S.A. 2A:15-5.11 ("An award of punitive

damages must be specifically prayed for in the complaint."); see also In re Est.

of Stockdale, 196 N.J. 275, 308 (2008) (noting a claim for punitive damages

must be made in plaintiff’s complaint). And, even if prayed for, plaintiff has

not demonstrated by clear and convincing evidence that defendant acted with

actual malice or acted with "a wanton and willful disregard of" plaintiff when

she took the $37,000 distribution. See N.J.S.A. 2A:15-5.12(a). "'Actual

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malice' [is defined as] an intentional wrongdoing in the sense of an evil-

minded act." N.J.S.A. 2A:15-5.10.

D

Plaintiff avers defendant admitted in trial testimony that she failed to

advise plaintiff of the Trust's status between November 24, 2017 and June 19,

2018. During that time, he claims:

(1) [defendant] distributed [$37,000] to herself; (2)

over [$1.5 million] was transferred from Morgan

Stanley to UBS; (3) over [$175,000] was moved from

a passively managed account at UBS to an actively

managed account at UBS; (4) numerous trades were

made within the UBS account; (5) an appraisal of

[Gloria's] residence was ordered and received; [and]

(6) New Jersey estate tax, federal estate tax, and

federal personal tax returns were prepared and filed.

N.J.S.A. 3B:31-67(a) requires "[a] trustee [to] keep the qualified

beneficiaries of the trust reasonably informed about the administration of the

trust and of the material facts necessary for them to protect their interests."

The trial court recognized plaintiff did not make any inquiry from the time he

resigned until April 2018. Accepting that defendant had failed to advise

plaintiff of her actions, save for the $37,000 distribution defendant took,

defendant's other actions complied with her fiduciary duties as trustee.

Moreover, plaintiff does not show how defendant's failure to inform him of

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five of those six actions resulted in any loss to him. And the trial court

compensated plaintiff for defendant's self-distribution.

Notwithstanding any Trust provision, a trustee has a "duty under

subsection[] [(a)] . . . of [N.J.S.A. 3B:31-675] to respond to the request of a

qualified beneficiary of an irrevocable trust who has attained the age of [thirty -

five] years for a copy of the trust instrument or for other information

reasonably related to the administration of the trust[.]" N.J.S.A. 3B:31-5(b)(7).

As already discussed, and as the trial court found, defendant should have

responded more timely to plaintiff's April 30, 2018 inquiry. But fifteen days

later, plaintiff's counsel sent the first missive in a series that prompted

defendant's counsel's June 19, 2018 response followed by the filing of

plaintiff's lawsuit. There is no evidence defendant's relatively short

unresponsive period resulted in any damages to plaintiff.

E

Plaintiff's argument that the trial court failed to find defendant's

"unilateral actions" after he revoked his "delegation" of authority violated her

duties as trustee is without sufficient merit to warrant discussion. R. 2:11-

3(e)(1)(E). Plaintiff resigned. Thus, his argument that defendant violated

5

Under N.J.S.A. 3B:31-67(a), "[u]nless unreasonable under the

circumstances, a trustee shall promptly respond to a beneficiary’s request for

information related to the administration of a trust."

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N.J.S.A. 3B:31-48, which prohibits a co-trustee from making unilateral

decisions on behalf of the trust without her co-trustee’s approval, is meritless.

And, as the trial court found, defendant's transfer of funds to her counsel's trust

account complied with the powers granted to her by the Trust.

F

The trial court granted defendant's counsel's fee application over

plaintiff's opposition. Plaintiff does not challenge that award except to briefly

mention, in the point arguing the trial court failed to award sufficient damages,

defendant's "significant misconduct and active wrongdoing" should result in a

punitive damages award and, "[a]t a minimum," defendant "should not be

permitted to receive reimbursement for legal fees from the Trust." Plaintiff

waived any challenge to the fee award by failing to adequately brief that issue.

Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue

not briefed on appeal is deemed waived."). In any event, we affirm the fee

award substantially for the reasons set forth in the trial court's written decision

supporting its February 25, 2020 order. Although we recognize the court did

not discuss defendant's unilateral $37,000 distribution, the record does not

establish she attempted to deprive plaintiff of any Trust asset. See Behrman v.

Egan, 31 N.J. Super. 95, 100 (Ch. Div. 1953), modified, 16 N.J. 97 (1954)

("[W]here the [trustee’s misconduct was] not [a] result [of] actual fraud or

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active misconduct, the rule [barring attorney’s fees] is not applied so

strictly."). Accordingly, the trial court did not abuse its discretion when it

decided to award defendant legal fees associated with her defense of this

litigation. See Est. of Bloomer, 43 N.J. Super. at 416.

Plaintiff also "requests that this court award counsel fees to [him] and

order [defendant] be responsible for the payment of said fees." Alternatively,

he requests his fees be paid by the Trust. We see no evidence in the record

that plaintiff made a fee application to the trial court. We will not address that

claim. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (holding

an appellate court will decline to consider issues not properly presented to the

trial court).

G

Lastly, plaintiff argues the trial court abused its discretion in refusing to

allow him to testify as a rebuttal witness. The argument is without merit and

does not warrant further discussion. R. 2:11-3(e)(1)(E). Plaintiff made no

proffer as to what rebuttal testimony he would have offered; accordingly, he

did not establish the trial court abused its discretion. His reliance on Wyatt by

Caldwell v. Wyatt, 217 N.J. Super. 580 (App. Div. 1987), is misplaced. There

the plaintiff set forth specific facts to which the rebuttal witness would have

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testified, all of which may have impacted the trial's outcome. See id. at 590-

91.

Affirmed.

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