NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-2578

_____________

JANE E. ADKINS,

Appellant

v.

JOHN B. SOGLIUZZO; DEUTSCHE BANK ALEX. BROWN; 

H. THOMPSON RODMAN; L. GAYE TORRANCE; TD BANK, N.A.;

HAVEN SAVINGS BANK

______________

On Appeal from the United States District Court

for the District of New Jersey

(District Court No. 2-09-cv-01123)

District Judge: The Honorable Susan D. Wigenton

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

February 6, 2017

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Before: McKEE, COWEN, and FUENTES, Circuit Judges.

(Filed: June 14, 2017)

_______________________

OPINION*

_______________________

 

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent. 
2

McKEE, Circuit Judge.

Jane Adkins appeals the District Court’s order denying her request for damages in 

her diversity action against her brother, John Sogliuzzo, for mismanagement of Mary 

Grimley’s estate. Adkins argues she and the estate are entitled to $391,040.05 in damages 

because Sogliuzzo is liable for undue influence, breach of fiduciary duty, negligence, 

fraud, and misrepresentation for taking cash from Grimley’s home for himself and 

redeeming Grimley’s bonds. For the reasons that follow, we reverse and remand to the 

District Court for a determination of damages. 

I

Jane Adkins is the current executor of the late Mary Grimley’s estate and also a 

beneficiary under Grimley’s will. This appeal concerns only Adkins’s action against her 

brother, John Sogliuzzo, for mismanaging the money of their mother’s elderly cousin,

Mary Grimley, during Grimley’s lifetime.

1 Sogliuzzo is an attorney who acted as 

Grimley’s power of attorney during her later years. Upon Grimley’s death in 2006, 

Sogliuzzo acted as executor of Grimley’s estate until he gave up the position in favor of 

Adkins. Once Adkins was appointed executor, she brought this diversity action in the 

 

1 This action originally included Adkins’s claim against Sogliuzzo for mismanaging their 

mother Jane Sogliuzzo’s estate. For that claim, the District Court held that Adkins was 

not entitled to more than the $520,414 awarded to her in state court, a decision Adkins 

does not appeal. Adkins v. Sogliuzzo (Adkins I), No. CIV.A. 09-1123 SDW, 2014 WL 

1343065, at *5 (D.N.J. Apr. 4, 2014). Adkins also originally named as defendants John 

Sogliuzzo’s wife, Gaye Torrance, and several financial institutions, including Deutsche 

Bank Alex. Brown, TD Bank, N.A., and Haven Savings Bank. Adkins’s claims against 

the financial institutions were dismissed prior to trial and the District Court held that 

Torrance was not liable after a bench trial. Adkins I, 2014 WL 1343065, at *4. We 

affirmed. Adkins v. Sogliuzzo (Adkins II), 625 F. App’x 565, 571 (3d Cir. 2015).
3

District of New Jersey against Sogliuzzo, alleging, among other things, that Sogliuzzo 

was liable for undue influence, breach of fiduciary duty, negligence, fraud, and 

misrepresentation under New Jersey law. Adkins’s claim is essentially that Sogluizzo 

unlawfully mismanaged Grimley’s estate by (1) taking for himself $70,000 in cash found 

in Grimley’s home in 2002, and (2) redeeming for himself $321,040.05 in bonds from 

Grimley’s accounts between 2004 to 2006. Adkins also brought suit against Sogliuzzo in 

state probate court, which stayed its action pending the outcome of the federal lawsuit. 

After a five-day bench trial, the District Court held that Sogliuzzo was liable for 

undue influence, breach of fiduciary duty, negligence, fraud, and misrepresentation for 

his mismanagement of Grimley’s estate.

2 Though the Court held that “Grimley’s Estate 

was reduced and Jane Adkins suffered damages,” it declined to award damages, instead 

deferring to the state court’s future determination of damages in the stayed probate

action.

3 On appeal, this Court affirmed the District Court’s findings of liability but 

remanded with instructions that the District Court “make explicit findings with respect to 

damages in this action.”

4

On remand, Adkins relied only on evidence of damages adduced in connection 

with her undue influence claim to support her other claims. Without holding a hearing, 

the District Court held that Adkins was not entitled to damages for undue influence, 

concluding that Adkins could not show an improper inter vivos gift to Sogliuzzo because 

 

2 Adkins I, 2014 WL 1343065, at *6–9. 

3

Id. at *9.

4 Adkins II, 625 F. App’x at 574. 
4

she failed to show either “that Sogliuzzo retained the [$70,000 in] cash for personal use 

or misappropriated the funds” or that the “bonds were deposited or used by Sogliuzzo.”5

The Court did not address damages for Adkins’ claims of breach of fiduciary duty, 

negligence, fraud, and misrepresentation. Adkins appeals.

6

II7

Because this is a diversity action, our analysis rests on New Jersey law.8Inasmuch 

as the District Court denied Adkins’s request for damages on the basis of her undue 

influence claim, we first turn to New Jersey law on undue influence.

In New Jersey, a finding of undue influence typically arises when an elderly or 

infirm individual transfers money or goods to another person during their lifetime (inter 

vivos) or by bequest in a will.9 The New Jersey Supreme Court has defined undue 

influence as “a mental, moral, or physical exertion of a kind and quality that destroys the 

free will of the testator [or donor] by preventing that person from following the dictates 

of his or her own mind as it relates to the disposition of assets, generally by means of a 

will or inter vivos transfer . . . .”10 In short, the undue influence inquiry is only relevant 

 

5 Adkins v. Sogliuzzo (Adkins III), No. CV091123SDWLDW, 2016 WL 1643406, at *2 

(D.N.J. Apr. 26, 2016).

6 On appeal from a non-jury trial, we review the District Court’s findings of fact for clear 

error and exercise de novo review of conclusions of law. VICI Racing, LLC v. T-Mobile 

USA, Inc., 763 F.3d 273, 282–83 (3d Cir. 2014).

7 The District Court had jurisdiction under 28 U.S.C. § 1332. This Court has jurisdiction 

pursuant to 28 U.S.C. § 1291.

8 Erie R. Co. v. Thompkins, 304 U.S. 64, 78 (1938).

9 5 Alfred C. Clapp & Dorothy G. Black, New Jersey Practice Series, Wills And 

Administration § 62 (Rev. 3d ed. 2016).

10 In re Estate of Stockdale, 953 A.2d 454, 470 (N.J. 2008).
5

insofar as it tells us whether a gift or testamentary bequest is valid. Thus, in cases where 

the disputed transfer occurred during the donor’s lifetime, an inter vivos gift must have 

occurred for the donee to be liable for undue influence.

11 If a gift or transfer is not shown, 

it follows that the wrongdoer did not succeed in nefariously influencing the donor.

Here, the District Court found that Sogliuzzo was liable for undue influence for 

losses to Grimley’s estate that occurred during Grimley’s lifetime, including the $70,000 

in cash, and $321,040.05 in redeemed bonds.12 We affirmed this finding of liability.13 As 

discussed above, when liability for undue influence is found based on transfers made 

during the donor’s lifetime, this finding is predicated on the assumption that an inter 

vivos gift was made. Yet, on remand, the District Court held that it could not award 

damages because there was “insufficient evidence” that a gift was made, stating that

“Plaintiff’s failure to prove a gift or transfer of the cash or bonds at issue to Defendant 

prevents this Court from awarding her damages.”

14 This holding conflicts with the 

previous finding of liability. To be sure, the record shows that Adkins presented little to 

no evidence that Grimley delivered the bonds or cash to Sogliuzzo with donative intent as 

is required to meet the definition of a gift under New Jersey law.

15 However, as a result 

 

11 In re Estate of Folcher, 135 A.3d 128, 137 (N.J. 2016) (“A challenger can set aside a 

decedent’s will or inter vivos transfer on the basis of undue influence.”).

12 Adkins I, 2014 WL 1343065, at *7.

13 Adkins II, 625 F. App’x at 574 (“[W]e will affirm the District Court’s judgment with 

respect to liability . . . .”).

14 Adkins III, 2016 WL 1643406, at *2.

15 Pascale v. Pascale, 549 A.2d 782 786 (N.J. 1988) (“In general, a valid gift has three 

elements. First, the donor must perform some act constituting the actual or symbolic 

delivery of the subject matter of the gift. Second, the donor must possess the intent to 
6

of the previous District Court and Third Circuit decisions, Sogliuzzo is liable for undue 

influence, and that liability is predicated on a finding of an inter vivos gift. 

The District Court recognized this conflict and attempted to address it by saying:

“[T]his Court’s conclusion that Plaintiff presented insufficient evidence to support 

damages is not inconsistent with its finding of liability.”16 For this proposition, the 

District Court cited this Court’s previous decision in this case, in which we wrote: “If 

after a hearing, the District Court concludes that insufficient evidence has been presented 

to support damages, such a finding is not inconsistent with a finding of liability.”

17 We 

cited Carpet Group International v. Oriental Rug Importers Association,

18 noting that it 

was possible for the District Court to find liability but no damages such as when, as in

Carpet Group, the plaintiff was not injured as a result of the defendant’s actions.

19

But relying on Carpet Group to support the District Court’s reasoning here misses 

the mark. In Carpet Group, the jury specifically found that the defendants were liable 

because they had conspired to restrain trade and persuaded others not to deal with the 

plaintiffs.20 However, the jury also determined that the conspiracy did not cause injury to 

the plaintiffs because the “plaintiffs’ business endeavors were unsuccessful for reasons 

 

give. Third, the donee must accept the gift. Our cases also recognize an additional 

element, the relinquishment by the donor of ownership and dominion over the subject 

matter of the gift.” (internal citation and quotation marks omitted)).

16 Adkins III, 2016 WL 1643406, at *2.

17 Adkins II, 625 F. App’x at 574 n.11.

18 173 F. App’x. 178 (3d Cir. 2006).

19 Id. at 180.

20 Id. 
7

unrelated to the defendants’ conduct.”21 Here, however, the District Court’s denial of 

damages rests on the conclusion that the Plaintiff failed to sufficiently prove that an inter 

vivos gift or transfer occurred—a conclusion that contradicts an element already 

necessarily established in not one, but two previous opinions in this case. Accordingly, 

we must vacate the District Court’s order and again remand for a determination of 

damages.22

We additionally note that insofar as the Plaintiff is not entitled to damages for her 

undue influence claim, the District Court is instructed to consider Plaintiff’s claims of 

breach of fiduciary duty, negligence, fraud, and misrepresentation, for which the Court 

also previously found the Defendant liable. 

III

For the reasons set forth above, we vacate the District Court’s order and remand 

for a determination of damages. 

 

21 Id. 

22 We note that it is possible for the District Court to find, consistent with Carpet Group,

that despite finding liability, the plaintiff suffered no damages. For example, neither 

Grimley’s estate nor Adkins suffered damages if Sogliuzzo used the cash and redeemed 

bonds for Grimley’s benefit. But the Court may not now revoke its previous finding that 

inter vivos transfers were made in order to deny damages.