Bernard and Jeanne Adler v. Save, N/K/A Save, a Friend to Homeless Animals

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0643-10T3

BERNARD and JEANNE ADLER,
APPROVED FOR PUBLICATION
Plaintiffs-Respondents,
August 5, 2013
v.
APPELLATE DIVISION

SAVE, n/k/a SAVE, A FRIEND
TO HOMELESS ANIMALS,

Defendant-Appellant.
____________________________________

Argued November 16, 2011 - Decided August 5, 2013

Before Judges Fuentes, Harris, and Koblitz.

On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No.
L-2611-07.

Sara F. Merin argued the cause for appellant
(McCarter & English, LLP, attorneys; Gerard G.
Brew, of counsel and on the briefs; Ms. Merin
and Carissa L. Rodrigue, on the briefs).

Stuart J. Polkowitz argued the cause for
respondents (Brach Eichler L.L.C., attorneys;
Mr. Polkowitz, of counsel and on the brief).

The opinion of the court was delivered by

FUENTES, P.J.A.D.

This appeal requires us to address the enforceability of a

conditional inter vivos gift. Guided by the facts presented

here, we hold that a charity that solicits and accepts a gift
from a donor, knowing that the donor's expressed purpose for

making the gift was to fund a particular aspect of the charity's

eleemosynary mission, is bound to return the gift when the

charity unilaterally decides not to honor the donor's originally

expressed purpose.

Absent the donor's consent, the recipient of the gift is

not at liberty to ignore or materially modify the expressed

purpose underlying the donor's decision to give, even if the

conditions that existed at the time of the gift may have

materially changed, making the fulfillment of the donor's

condition either impossible or highly impractical. When, as

here, the donor is alive and able to prove the conditional

nature of the gift through his or her testimony and other

corroborative evidence, a reviewing court's duty is to enforce

the donor's original intent, by directing the charity to either

fulfill the condition or return the gift.

Here, Judge Thomas W. Sumners, Jr., sitting also as the

trier of fact, came to the same legal conclusion after hearing

the evidence presented by the parties over a two-day period.

The following facts, derived from the evidence presented in this

bench trial, will inform our legal analysis.

2 A-0643-10T3
 I

Defendant SAVE, n/k/a SAVE, A Friend to Homeless Animals

(SAVE), was founded in 1941 as a non-profit animal shelter

located in the greater Princeton area. Recognized as a

charitable organization under 26 U.S.C.A. § 501(c)(3),

defendant's self-proclaimed mission is to provide for the

rescue, shelter, veterinary care, and adoption of stray

companion animals in the region.1 Plaintiffs Bernard and Jeanne

Adler shared defendant's concern for the welfare of animals,

especially for larger dogs and older cats.

Bernard Adler is a civil engineer and real estate developer

by profession. His interest in caring for dogs and cats has

spanned for at least thirty-eight years, the same amount of time

he has been married to his wife, co-plaintiff Jeanne Adler.

Over this timeframe, plaintiffs had three sons and cared for

"numerous dogs and cats."2 Plaintiffs lived in the Princeton

Township area throughout this entire time.

According to Mr. Adler, he and his wife became interested

in SAVE because it was "a no-kill shelter." This policy was

1
The term "region" includes the Borough of Princeton, which was
established on January 1, 2013, through the consolidation of the
Borough of Princeton and Princeton Township.
2
When asked to estimate the number of animals he and his wife
had adopted over their thirty-eight years of marriage, Mr. Adler
responded: "about 30 animals."

3 A-0643-10T3
extremely important to plaintiffs because "a lot of animals are

put into . . . shelters and if they don't get adopted quickly,

then they get euthanized."

At the time of trial in 2010, plaintiffs had recently

"rescued" a "120-pound Bernese Mountain Dog and a 105-pound

Newfoundland, both that wouldn't have been adopted from shelters

because they were too wild." The total number of animals they

have had living with them at any one time include three dogs and

four cats; one of their sons also had a Bernese Mountain Dog

that stayed with them "close to half a year." The smallest dog

weighed 82 pounds; the heaviest was the then recently rescued

120-pound Bernese Mountain Dog.

Plaintiffs' first involvement with SAVE began in the early

1990s, when a trainer they knew introduced them to the

organization. At first, their involvement with SAVE was limited

to bringing extra animal food and toys to SAVE's facility and

spending time with wayward and feral cats. Mr. Adler in

particular spent time attempting to humanize feral cats because,

otherwise, there is "little hope" of adoption. In addition to

these personal acts of kindness, commencing around 1992,

plaintiffs began making financial donations to SAVE.

Mr. Adler testified that the financial contributions were

relatively small at first. "It would be anywhere from a couple

4 A-0643-10T3
of hundred dollars to a thousand, fifteen hundred dollars."

They also began attending fundraisers, "getting as many things

as [they] could to get involved with, and give [SAVE] extra

donations that way." Plaintiffs made these financial donations

without specific conditions, expecting only that the funds would

be used "for the general maintenance of the animals. To buy

them food, shelter." Occasionally, plaintiffs would receive a

letter from SAVE informing them that "X number of dollars would

serve to handle X number of operations for dogs that needed it

or required it. Nothing specific, no."

II

Sara Nicolls served as SAVE's Executive Director from May

1999 to 2005. At the time the SAVE board of trustees hired her,

its main concern was how to address the problems associated with

renovating an antiquated facility that was constructed in the

1940s. Ms. Nicolls testified that, despite the minor

improvements that had been made over time, the building did not

meet modern housing standards and its internal physical layout

was inconsistent with basic notions of sound animal husbandry.3

3
By way of example, cats and dogs were housed in the same area,
which tended to increase the stress caused by being placed in a
shelter. Animals that were brought to the shelter from the
street by animal control officials were not properly isolated
from the general population; this facilitated the spread of
communicable diseases and made the "street animals'" adjustment
(continued)

5 A-0643-10T3
 Early in Ms. Nicolls's tenure, the board of trustees spent

a great of deal of time discussing the best way to resolve these

problems and remain consistent with the charity's core mission,

because "[t]he property was left in trust with lifetime income

based on the fact that the physical plant would continue to

operate in Princeton and also service the Animal Control of

Princeton Township."

After discussing the expansion of services required and the

limitations associated with operating within an urban

environment, the board retained an architectural firm to design

a new shelter facility. The architect the board selected had

designed a similar facility in Richmond, Virginia. As Ms.

Nicolls explained:

The reason why that one was chosen was
because it was essentially the same
situation. It was an urban setting where
they had a physical limitation. All of the
animals -- all of the animal process was
held indoors and we knew there was a
possibility, because of the close proximity
to neighbors and noise from that, that we
would need to design a building where all of
the functions for animal welfare would be
housed inside . . . And [that architect] was
chosen specifically because they were in a
similar situation.

(continued)
period more difficult. There were also problems with the
building's air exchange system, which caused "a huge outbreak"
of upper respiratory problems in kittens.

6 A-0643-10T3
 As approved by the board, the original plans the architect

prepared depicted a large facility, encompassing approximately

35,000 square feet. The facility would provide separate living

areas for cats and dogs, areas designed for isolation and

rehabilitation, and areas for spaying and neutering, including

an on-site veterinary clinic with x-ray equipment for treatment

and triage of sick and injured animals. Ms. Nicolls expected

this would greatly reduce SAVE's $40,000 annual medical

expenses, incurred mostly for transporting animals to off-site

facilities for treatment and day-to-day services. There were

also accommodations for larger dogs, designed as "dog living

rooms." These rooms provided "a more natural environment" for

dogs accustomed to a domestic setting. However, Ms. Nicolls did

not mention that any special arrangements had been made to

provide similar care for older cats.

Another major problem with the old facility, located at

Herrontown Road in Princeton Township, was a lack of space for

administrative staff and community educational services. The

proposed facility provided for a second floor designed to hold

classes for school children, conferences, and office space for

administrative staff. In response to a direct question from

plaintiffs' counsel, Ms. Nicolls confirmed that this was the

7 A-0643-10T3
"basic plan that was approved by the board before [she] went

into the fundraising campaign."

According to Ms. Nicolls, the capital campaign began by

first asking the board members to "put their money where their

mouth was" by way of matching grants. As the president of the

board of trustees, Carol Hildebrandt accepted the challenge with

gusto, by pledging one million dollars, "that she would match

dollar for dollar, [for] every dollar raised." The fundraising

campaign next focused on a select group of historically loyal

and generous supporters. This elite class of donors was invited

to a spring benefit event, where Ms. Nicolls personally

solicited their support for the proposed new facility at

Herrontown Road.

Plaintiffs were among the guests at this event. Ms.

Nicolls testified that plaintiffs approached her and "said that

they were very interested in the project." After she explained

all of the various features of the project, she showed them the

proposed plans and gave them a DVD that talked about the

challenge grants. Ms. Nicolls testified that plaintiffs, whom

she described as long time "very generous donors," told her that

they had adopted several animals and have a
couple of large dogs so they were very
specifically interested in the dog living
rooms and helping for the large dogs and
then they have elderly cats and they were
interested in a cat living room as well.

8 A-0643-10T3
Ms. Nicolls testified as follows in response to questions posed

by plaintiffs' counsel:

Q. Did you show them when you met with them
where on the proposed plans you had special
accommodations for large dogs?

A. Correct. We went over the plans in great
detail, and those are the areas they were
looking to be interested in.

Q. Okay. And [Mr. Adler] asked you
questions about the plans?

A. Yes.

Q. And did [Mrs. Adler] ask you questions
about the plan?

A. Correct.

Q. And you pointed out to them where there
was a special accommodation made for large
dogs?

A. Correct.

Q. And how about for cats? Did you go
through the same process with them?

A. Yes. As I said, they had adopted their
cats and they were very interested in that
particular (indiscernible).

Q. Now, at some point, did the Adlers commit
to a pledge with regard to the proposal that
you were showing for the new design at
Herrontown Road?

A. Yes. We had the kennels campaign, the
naming opportunity and those, in particular,
were the ones that they were interested in.

Q. Which one were they interested in?

9 A-0643-10T3
 A. The dog living room and a cat living
room.

Q. And they were specific about why they
were making these donations?

A. Yes.

Q. And besides yourself, are you aware of
anyone at SAVE that the Adlers met with in
connection with these contributions?

A. I'm sure that they met with Carol
Hildebrandt that they would begin matching
dollar for dollar.

As the last witness to testify,4 Ms. Nicolls's testimony

corroborated plaintiffs' account of events in all material

respects. According to Mr. Adler, Ms. Nicolls emphasized to him

that the new facility would have "different rooms in it, . . .

for keeping animals that would have more time in the shelter,

larger dogs, older cats that don't get an adoption that

readily." As soon as Mr. Adler told Ms. Nicolls that he and his

wife were interested in contributing to support the project, she

told him that "there were naming rights to certain things in the

facility." Although some of the naming rights to certain areas

had already been taken, Ms. Nicolls told him that "she felt that

4
The trial court permitted plaintiffs to call Ms. Nicolls out of
order. Therefore, she testified after defendant's one and only
witness had completed his testimony.

10 A-0643-10T3
[plaintiffs] could still get nam[ing] rights for a large dog and

older cat facility." (Emphasis added).

Marked in evidence as a joint exhibit at trial, and

included as part of the appellate record, is a document denoted:

"SAVE Expanding the Mission: Capital Campaign Case Statement."

Ms. Nicolls gave a copy of this brochure to Mr. Adler. The

document provides a narrative overview of SAVE's history, core

mission, expansion goals that incorporate the latest methods for

the humane treatment of wayward dogs and cats, with the ultimate

goal being adoption, and the spatial arrangement of the

facility, including areas designated as a "Dog Rehabilitation/

Holding Area."5

Of particular relevance here, the brochure includes a

paragraph denoted "SAVE's Request," which reads as follows:

Support as our public campaign gets
underway is vital. In gratitude for a major
gift we would be pleased to name the
building or a portion of it for the you
[sic] or anyone you would choose to honor.
A successful campaign will mean life itself
to the many strays we have to turn away.
Once in our care, they could bring much joy
to the new families who would meet them at
SAVE. Together we can build a shelter that

5
The brochure indicates that the facility would include: "A
quiet, stress-free environment where specially trained staff can
address individualized animals' needs becomes key to successful
recovery and future adoption. Plans for this area include prep
space, large dog and small dog kennels, and areas to accommodate
litters of puppies, mother dogs and their offspring."

11 A-0643-10T3
 truly reflects our mission to protect the
health and welfare of homeless animals and
strengthen the bonds between humans and
companion animals.

[(Emphasis added).]

This statement is immediately followed by a page listing

the donation amount required to receive naming rights to

particular areas or rooms in the new facility. For a donation

of one million dollars, the donor would get the honor of having

the building named after himself or herself, or anyone else the

donor chooses. The amount of the donation decreased relative to

the character of the naming area selected.6

Mr. Adler testified that Ms. Nicolls told him that, for a

gift of $25,000, he and his wife would receive the naming rights

of a particular facility. Mr. Adler agreed to donate a total of

$50,000. As he explained, "[t]he purpose was to have rooms for

large dogs and older cats that are not easily adopted and

specifically for the naming rights for those rooms at that

facility on Herrontown Road."

Mr. Adler conceded that he did not specifically discuss

with Ms. Nicolls what would occur if the facility were not

6
As the record shows, the president of the SAVE board of
trustees pledged a one million dollars matching gift, thus
acquiring the honor of naming the building after herself or
anyone else she designated. In the interest of clarity, we have
attached a copy of this document as Appellate Court Appendix I.

12 A-0643-10T3
constructed. However, Mr. Adler testified that, based on his

business background, he expected the recipient of the donation

to honor, in good faith, the express purpose of his gift. He

testified as follows:

There was no specific discussion, but I'm in
business and when you make a donation for a
specific purpose, specific naming rights in
this instance for a facility to be built, if
the facility doesn't get built, you return
the money. It's the same thing as in
buildings that we own. If a tenant wants
something done in a building and we agree to
an amount that it would cost them, they put
up the money and we do the facility for
them. If they don't put up the money, we
don't do it. And if they do put up the
money, we have to produce. Otherwise, we
give them their money back.

On December 23, 2002, plaintiffs issued a personal check to

SAVE in the amount of $5000. The memo of the check simply

stated: "Donation." A SAVE staff member issued a receipt to

plaintiffs with the caption: "General Donation." However, under

her signature, the staff person who acknowledged receipt of the

check wrote: "restricted for expansion."

Plaintiffs issued another personal check to SAVE on

December 30, 2003, in the amount of $10,000; the memo of the

check again merely stated: "Donation." On December 31, 2003,

plaintiffs issued a third personal check to SAVE in the amount

of $10,000; unlike the other two checks, however, this check did

not have a memo notation.

13 A-0643-10T3
 Plaintiffs made their final donation installment in the

form of a gift of shares of stock. A receipt from SAVE dated

July 2, 2004, shows that plaintiffs donated "455 shares [of] CBH

stock"; the SAVE representative who attested (but did not sign)

the receipt of the donation noted that the "average" price per

share of this stock was $53.13, resulting in a donation by

plaintiffs totaling $24,174.15 (where $53.13 per share at 455

shares equals $24,174.15).

On January 20, 2003, Ms. Nicolls wrote to plaintiffs in her

capacity as SAVE Executive Director, acknowledging their "very

generous gift of $5,000 on December 24, 2002 for SAVE's capital

campaign."

By letter dated December 31, 2003, written on SAVE's

stationary, Ms. Nicolls acknowledged receipt of plaintiffs'

$20,0000 donation. After thanking plaintiffs for their

generosity and continued commitment to the welfare of animals,

Ms. Nicolls stated that plaintiffs' donation would assist SAVE

"to accomplish a long-held vision for urgently needed capital

expansion with enhanced programs and services for cats and

dogs." Addressing plaintiffs' specific purpose underlying their

donation, Ms. Nicolls wrote:

I especially appreciate your commitment
to the project as we begin the public phase

14 A-0643-10T3
 of the campaign. Enclosed is a naming
[7]
opportunity form. Please return it to us
at your convenience. We are pleased to
honor the many pets you share your lives
with. We are especially touched that you
want to fund a space for large dogs that may
spend more time with us before they are
adopted.

[(Emphasis added).]

On July 22, 2004, again in her capacity as SAVE Executive

Director, Ms. Nicolls thanked the Adlers for their donation of

stock. Although she mentioned that "a new residence for

homeless animals will allow SAVE to take significant steps

forward to fulfill its mission of serving animals and humans in

the Greater Princeton Area," she did not mention plaintiffs'

specific interest in larger dogs and older cats.

Mrs. Adler's testimony corroborated her husband's account

of events in all material respects. She described how her

upbringing influenced her life-long commitment to philanthropic

activities; in her own words: "My family volunteers, we learned

it from my dad." Her activities safeguarding the welfare of

animals began early on in her life. She described rescuing

injured and malnourished stray dogs and nursing them back to

health. She also worked in an animal shelter when she lived in

7
Mr. Adler testified that he and his wife did not discuss in
great detail the naming form at the time, explaining as follows:
"Naming wasn't our big thing. It wasn't important yet and they
told us that we had plenty of time to do that."

15 A-0643-10T3
Whitehouse, an unincorporated community within Readington

Township. Mrs. Adler summarized her and Mr. Adler's commitment

to the welfare of animals as an integral part of their lives:

"That's what we do. That's who we are."

Mrs. Adler testified that the decision to donate $50,000 to

SAVE represented, in historical terms, a significant expansion

of their financial support for the care of animals, especially

large dogs and older cats. She made this point clear in

response to a question posed by her attorney:

First of all, we had never given money
for that amount and so we were very specific
with [Ms. Nicolls] and to say that this is
what we would do for the shelter; you know,
that this was presented as real opportunity
to us because [Ms. Nicolls] knew that our
heart was with large dogs and older cats.

According to Mrs. Adler, representatives from SAVE told her

that, in recognition and appreciation for their $50,000

donation, SAVE would designate two rooms in the new facility,

one specifically designated for the care of large dogs and the

other exclusively dedicated for the care of older cats.

Finally, in addition to the satisfaction of having performed a

good deed, they would also have nameplates outside each room

recognizing them as the individuals responsible for their

creation.

16 A-0643-10T3
 As was the case with her husband, Mrs. Adler never

discussed with any representative from SAVE what would happen if

SAVE decided not to construct "the type of facility" described

to her and her husband. In her words: "Maybe I'm a little

Pollyanna8 but I really believed it was going to be built."

In February 2006, defendant announced to its donors,

including plaintiffs, that it was merging with another

charitable foundation. As a result, SAVE would not construct

its new shelter at its original Herrontown Road location. The

newly formed "merged charity" was transferring all operations

formerly housed at Herrontown Road to a location in Montgomery

Township, where it planned to construct a new animal shelter,

significantly smaller than the facility originally proposed to

be built at Herrontown Road.

This announcement came as a total surprise to plaintiffs.

Mr. Adler testified that he made several unsuccessful attempts

to speak to the executive director and played "telephone tag"

with board of trustee member John Sayer. Mr. Adler did not

8
"Pollyanna" is the main protagonist in a novel of the same
name. It was written by noted American fiction writer Eleanor
Porter and first published in 1913. The novel's popularity
transformed the character's name into a word that describes "a
person characterized by irrepressible optimism and a tendency to
find good in everything." Pollyanna, MIRRIAM-WEBSTER DICTIONARY,
http://www.merriam-webster.com/dictionary/pollyanna (last
visited July 29, 2013).

17 A-0643-10T3
suggest, however, that Mr. Sayer or anyone else at SAVE was

intentionally evading his efforts to get more information on the

merger and its implications regarding the construction of the

Herrontown Road shelter. Mr. Adler explained that the situation

with SAVE coincided with a number of personal issues that

prevented him from being as available as he would have been

otherwise.

Unable to reach a satisfactory resolution, Mr. Adler sent a

letter to SAVE requesting the return of his donation. He

finally met with Mr. Sayer and explained that he wanted the

donation returned "[b]ecause the facility on Herrontown Road was

not being built and the specific purpose of the donations w[as]

for the building of a facility on Herrontown Road for -- with

naming rights for large dogs and older cats." Although Mr.

Sayer spoke to him "about things that were being done," Mr.

Adler did not "see anything specific, but it didn't make any

difference. [Plaintiffs] were interested in a facility on

Herrontown Road."9

9
On cross-examination, Mr. Adler conceded that he and his wife
listed the donations they made to SAVE as charitable deductions
on their itemized tax returns for 2002, 2003, and 2004. We
presume this line of questioning was intended by SAVE to
undermine plaintiffs' credibility by showing that they took full
advantage of the tax benefits of their gift.

18 A-0643-10T3
 Mr. Adler also characterized the facility proposed to be

built in Montgomery Township as a "substantially" lesser

facility than the one originally proposed at Herrontown Road.

The first phase of the Montgomery facility called for the

construction of a 3000 square foot shelter, which is one tenth

the size of the 30,000 square foot facility Ms. Nicolls showed

the Adlers at the spring capital fundraising event.

III

On October 12, 2007, plaintiffs filed suit in the Law

Division in Mercer County, seeking the return of the donation

they had made to SAVE. Plaintiffs alleged that SAVE accepted

their donation fully aware that plaintiffs expected the funds to

be specifically earmarked for the stated purpose of constructing

two rooms exclusively designated for the care of large dogs and

older cats. These rooms were to be part of a larger facility to

be constructed at Herrontown Road, in Princeton.

Plaintiffs maintained that SAVE violated this material

aspect of their gift by deciding, without their knowledge or

approval, to use the funds plaintiffs donated to construct a

facility that did not meet plaintiffs' expressed animal-care

conditions and would be located in an area outside its original

service region. According to plaintiffs, despite several good

19 A-0643-10T3
faith attempts to convince defendant to voluntarily return their

funds, SAVE steadfastly and wrongfully refused to do so.

Defendant filed an answer disputing the conditional nature

of plaintiffs' charitable gift. After joinder of issue, the

parties conducted extensive discovery, at the conclusion of

which both sides moved for summary judgment. The trial court

denied summary judgment to both sides and the matter thereafter

proceeded to a bench trial.

John Sayer was the only witness called by defendant. A

member of SAVE's board of trustees since 2004, Mr. Sayer's

principal involvement with SAVE as of the time of trial had been

to serve as a member of the financial committee for the new

building. He testified that SAVE's "overriding mission" was to

operate "an adoption facility." To clarify his point, Mr. Sayer

contrasted SAVE's adoption mission to a "sanctuary," which he

stated keeps animals "regardless of their adoptability." Mr.

Sayer emphasized: "We are not a sanctuary. We are an adoption

facility."

Although he was involved in the capital campaign, Mr. Sayer

testified that he "was not part of the Adlers' solicitation."

In fact, he joined the board of trustees "just after" plaintiffs

had made their gift. Mr. Sayer described plaintiffs as "major

donors." According to Mr. Sayer, the goal of the capital

20 A-0643-10T3
campaign was to raise "seven and a half million dollars." The

campaign actually raised "one point three million dollars."

When asked by SAVE's attorney "[h]ow much money was spent

trying to pursue approvals at the Princeton level," Mr. Sayer

responded: "We have insufficient records for all that, but my

best guess would be about a quarter of a million dollars that

was put into plans and the efforts to deal with the township."

(Emphasis added). Mr. Sayer did not attend any planning board

meetings; his knowledge of the planning board's reaction to the

proposed new facility was based exclusively on the reports given

to the SAVE board of trustees by its paid "facilitator."

Overruling plaintiffs' counsel's objection on hearsay

grounds, the trial court permitted Mr. Sayer to testify about

what the facilitator told the SAVE board of trustees:

[MR. SAYER]. He reported that the township
viewed the new shelter as a new project,
because we were going to tear down the
entirety of what was there, and their view
was, even though the concept of a shelter
was grandfathered, it was not a "highest
use" for the property and they discouraged
us from trying to build such a large
facility at that location.

Q. Were there any other issues about the
property itself that w[ere] a concern to
Princeton, as far you know?

[MR. SAYER]. Well, a lot of that property is
wetlands and it also, of course, is very
close to the neighbors who had a long
history of complaining. And I think that,

21 A-0643-10T3
 had we gone forward with that, we would have
been unsuccessful.

[(Emphasis added).]

In addition to serving on the capital campaign committee,

Mr. Sayer also served on the committee responsible for annual

fundraising efforts. The monies raised from these activities

were intended to defray SAVE's operating expenses. Mr. Sayer

testified that two years after he began serving in this

committee he realized that there was "a serious financial

problem as respects operating funds."

According to Mr. Sayer, during Ms. Nicolls's tenure as

SAVE's executive director, the charity's base of support had

shrunk "from about 600 people, mostly local, to just over 200

people." Although the remaining 200 individuals were SAVE's

largest supporters, according to Mr. Sayer, the charity was

losing money, requiring it to draw down from its reserve funds

"to meet [its] operating expenses."

At this point in the trial, plaintiffs' counsel objected to

defense counsel's "line of questioning." Plaintiffs' counsel

argued that whether the charity was operating at a deficit had

nothing to do with the specific circumstances "under which the

Adlers made a contribution towards the capital campaign and

whether the contribution was conditional." The following

colloquy ensued:

22 A-0643-10T3
[DEFENSE COUNSEL]: This is a charity, Your
Honor. The issue that's going to be
ultimately [decided involves] whether it
would be against public policy to . . .
require SAVE to return $50,000 in donations.
I think Your Honor is entitled to hear about
the history of the struggle that they had
raising funds.

THE COURT: So are you saying to me my
decision should be based on the financial
stability or instability of this
organization?

[DEFENSE COUNSEL]: No, but I think all the
background you have about the Herrontown
Road facility is useful. . . .

. . . .

[PLAINTIFFS' COUNSEL]: Your Honor, this case
comes down to the solicitation that was made
to my clients, the discussions they had with
Ms. Nicolls, their understanding of what was
being proposed, what they were getting, as
was Ms. Nicolls'[s] testimony in the future
as to the nature of the conversations, what
she proposed, her understanding of the
conditions under which the monies were being
donated. While I appreciate there may be
other economic issues involving SAVE, that's
not part of why we're here today. We're
here because my clients are presented a
particular program and an opportunity to
fund a portion of that program. [SAVE] [is]
not following through with that program and
[plaintiffs] are seeking [the] return of
their money, because [plaintiffs] believe
that they donated the money on the basis of
what was proposed to them, not on the basis
of the strength or lack thereof of SAVE,
outside of this particular capital program.

THE COURT: Well, I'll allow limited
testimony on the financial stability of SAVE
as it relates to the ability or the

23 A-0643-10T3
 inability to go forward with the particular
plans that were solicited, these plans upon
which the Adlers were solicited, but only if
it relates to the testimony in terms of the
operating fund, only if it relates to the
decision-making process on going forward
with these claims.

[DEFENSE COUNSEL]: That's all I was
intending, Your Honor.

From this point, Mr. Sayer testified regarding the

overcrowding conditions that existed at the old Herrontown Road

facility. Although uncertain as to the actual number of animals

that were housed at the time of these alleged deteriorating

conditions, Mr. Sayer nonetheless characterized the conditions

as bordering on "animal abuse." Mr. Sayer claimed that the

Princeton Township Health Department and "the State of New

Jersey" were "very concerned about the number of animals and the

small space." In response, the board "put a freeze on taking

new animals" and set a goal of keeping no more than "15-20 dogs

and 55 cats."

Because several of the dogs were not adoptable, Mr. Sayer

stated that they were "sent out to sanctuaries." According to

Mr. Sayer, they had one case involving a dog that was "so

violent," that not even a sanctuary would accept it. SAVE was

forced to violate its core founding principle, and the dog was

euthanized. "But, other than that, [SAVE] managed to raise the

funds to take and reduce the population of animals, to only

24 A-0643-10T3
adoptable animals. And, from that point on, [SAVE] had

excellent operating results with the animals."

Defense counsel asked Mr. Sayer to explain the decision to

abandon the Herrontown Road project, merge with "Friends of

Homeless Animals," and relocate to Montgomery Township. The

decision was driven primarily by an alleged community inability

to "discriminate between the two organizations." There was also

an implicit -- if not outright -- acknowledgement that both

groups were competing for the same limited charitable dollar.

In Mr. Sayer's own words: "Both organizations had parallel goals

and very parallel fundraising mechanisms."

According to Mr. Sayer, Friends of Homeless Animals had

also been "very, very . . . clever and pro-active," by entering

into an agreement with the State Department of Corrections

(DOC). Through this agreement, the DOC made "a little less than

14 acres" available in Montgomery Township to build an animal

shelter. The property also includes a house known as the Van

Sant Mansion. Mr. Sayer testified that the first phase of the

project would be to renovate and restore the house, which would

provide approximately 7000 square feet, "not for animals but for

office space and storage." Mr. Sayer specifically noted that

SAVE had "a specific million dollars set aside for the

restoration of the Van Sant Mansion." (Emphasis added).

25 A-0643-10T3
 The second phase of this venture would involve the

construction of an animal shelter in Montgomery Township. The

merged charities have approval from Montgomery Township to

construct a 3000 square foot facility as the first phase of the

animal care project. Mr. Sayer acknowledged that such a

structure would be "totally inadequate for [SAVE's] means."

Defendant has thus secured approval to construct a 15,000 square

foot facility. However, Mr. Sayer testified that he does not

believe SAVE "will build a 15,000 square foot shelter" because

it is not needed.

With respect to the funds raised by the capital campaign to

construct a 30,000 square foot state-of-the-art animal shelter

at Herrontown Road in Princeton Township, the campaign to which

plaintiffs donated $50,000 to ensure for the long-term care of

large dogs and older cats, Mr. Sayer testified as follows:

We have approximately $967,000 of the
original money that was raised for the new
shelter left to start on the first phase,
whenever that may be, of the new shelter.
From the planning prospective [sic], I think
we will finish the VanSant mansion, have the
foundation work done on the new shelter, and
start the new campaign at that point in
time.

When asked by defense counsel whether the proposed 15,000

square foot facility in Montgomery Township would "have rooms

available of the types of rooms that the Adlers had indicated

26 A-0643-10T3
that they were -- that they found important," Mr. Sayer

answered emphatically: "Absolutely." However, the extensive

narrative amplification Mr. Sayer gave as a follow up to this

one word answer did not, in any meaningful sense, corroborate or

otherwise support his testimony. We therefore decline to

belabor this point. Based on Mr. Sayer's testimony and the

letter announcing the merger between SAVE and Friends of

Homeless Animals, we are satisfied that the 15,000 square foot

shelter proposed to be constructed in Montgomery Township does

not include two rooms specifically designated for the long-term

care of large dogs and older cats.

IV

After considering the testimony of the witnesses,

documentary exhibits admitted into evidence, and the arguments

of counsel, Judge Sumners held in plaintiffs' favor, finding

that they were entitled to the full return of their charitable

gift. By order dated August 26, 2010, Judge Sumners entered

final judgment against defendant in the amount of $49,174.15 and

denied plaintiffs' application for pre-judgment interest.

Judge Sumners found plaintiffs' and Ms. Nicolls's testimony

credible and noted "the lack of any testimony by SAVE

contradicting their testimony." He found

apparent that the Adler's [sic] donation was
motivated by a desire to provide better

27 A-0643-10T3
 conditions for large dogs and older cats.
They put their money where their hearts
were. Although, all of the Ts were not
crossed, and all of the Is were not dotted,
it was clear from the Adlers, and Nichols
[sic], and the documentary evidence
presented at trial, they were only making
donations for these reasons.

In this appeal, defendant argues that Judge Sumners erred

in finding that plaintiffs' donation was a conditional gift.

Alternatively, defendant argues that, even if the gift was

conditional, returning the funds to plaintiffs is not warranted

because "the condition has been or will be met." Finally,

assuming arguendo the absence of merit in these arguments,

defendant maintains that the trial court should have reformed

plaintiffs' gifts under the doctrine of equitable deviation.

Stated differently, in lieu of returning the funds to

plaintiffs, defendant maintains the trial court should have

crafted a remedy that would have permitted the charity to spend

the funds in order "to effectuate the original purpose of the

gift as close as possible." According to defendant, public

policy demands that we reverse the trial court because, if we

permit this decision to stand, it would be detrimental to

charities throughout this State.

We are not persuaded by any of defendant's arguments. We

begin our analysis by reaffirming our standard of review. We

are bound to defer to the trial court's factual findings, as

28 A-0643-10T3
long as they are supported by adequate, substantial and credible

evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am.,

65 N.J. 474, 483-84 (1974). In a case in which the trial judge

also sat as the trier of fact, we are precluded from disturbing

the trial judge's factual findings and legal conclusions,

"'unless we are convinced that they are so manifestly

unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of

justice[.]'" Seidman v. Clifton Sav. Bank, 205 N.J. 150, 169

(2011) (alteration in original) (quoting Ex rel Johnson, 194

N.J. 276, 284 (2008)).

We are also bound to defer to the trial judge's findings

that are "substantially influenced by his opportunity to hear

and see the witnesses and to have the 'feel' of the case, which

a reviewing court cannot enjoy." State v. Locurto, 157 N.J.

463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62

(1964)). However, we do not owe any deference to the legal

conclusions reached by the trial court, because our review of

the law is de novo. Borough of Harvey Cedars v. Karan, ___ N.J.

___, ___ (2013) (slip. op. at 33) (citing Manalapan Realty v.

Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)).

Here, the evidence presented at trial can safely be

characterized as overwhelmingly supporting Judge Sumners's

29 A-0643-10T3
credibility findings in favor of the Adlers. Distilled to its

essence, the record is uncontroverted that commencing in 2002,

SAVE launched a sophisticated fundraising capital campaign,

targeting an elite class of historically generous donors.

SAVE wooed these "major donors" with professionally

designed brochures containing strategically placed photographs

of happy children and their family warmly embracing puppies,

kittens, and vulnerable-looking older animals. The caption,

prominently appearing next to one of these photographs,

contained the following message: "Young Philanthropists. SAVE

benefits greatly from the interest of children who become

donors. Their highly creative approaches to philanthropy help

SAVE's cats and dogs in a variety of ways."

Another section of the brochure labeled "Community

Partners" included a photograph of "a retired chemist" who

"stays in shape by walking dogs at SAVE." Next to this

gentleman's picture was a close-up photograph of a wide-eyed

kitten. Of particular relevance to this case, the brochure also

mentioned that the retired chemist's "volunteer services to the

Princeton community [also] include . . . serving in the

reference department of the Princeton Public Library, and doing

chemistry demonstrations at local elementary schools." Thus,

30 A-0643-10T3
SAVE wanted to be perceived as an integral part of Princeton's

philanthropic community.

This presentation inexorably leads to the final and most

important part of the brochure: "Where We Are Going in the

Future." Here, SAVE depicted an artistic rendition of its

"long-awaited new shelter," which would include

dedicated spaces for SAVE's programs of
Rescue, Shelter, Health and Welfare,
Spay/Neuter, Adoption and Humane Education.
Highlights include improved spaces for
adoption, animal display and cat
rehabilitation. New features will include a
Humane Education wing with an Atrium that
will allow bonding spaces for people and
pets, ongoing dog training classes, meetings
and celebrations.

Armed with these sophisticated weapons of persuasion, SAVE

aggressively solicited the Adlers to contribute to its capital

campaign fundraising drive, with the promise of constructing a

state-of-the-art animal shelter, approximately 30,000 square

feet in size, located at SAVE's historical birthplace,

Herrontown Road in Princeton Township.

As a means of attracting their most loyal and generous

donors, SAVE conceived "the naming rights" incentive, through

which donors able and willing to give "a major gift" ranging

from one million dollars to $15,000, received special

recognition by having a portion of the building named for the

donor or anyone the donor chose.

31 A-0643-10T3
 For plaintiffs, their most important preoccupation was to

provide a space for large dogs and older cats. Because they

believed these types of animals were highly unlikely to be

adopted, they wanted to provide a humane environment for their

long-term care. Their moral commitment to these animals was so

strong that they were willing to donate $50,000 to make this a

reality. In the words of Mrs. Adler: "That's what we do.

That's who we are."

Ms. Nicolls's uncontroverted testimony established, beyond

a rational doubt, that SAVE accepted plaintiffs' generosity,

fully aware that it was expressly conditioned upon fulfilling

these material conditions. Ms. Nicolls's testimony was

corroborated by the letters she wrote, as SAVE's executive

director, acknowledging the conditional nature of plaintiffs'

donations.

Equally clear is SAVE's unilateral decision not to honor

plaintiffs' conditions and rededicate their donations to serve a

purpose unrelated to plaintiffs' expressed wishes. To be clear,

the record shows that SAVE: (1) decided to construct a

substantially smaller facility; (2) outside the Princeton area;

(3) without any specifically designated rooms to serve the needs

of large dogs and older cats; and (4) without any mention of

plaintiffs' names.

32 A-0643-10T3
 Citing 15 Am. Jur. 2d Charities § 145 (2000), SAVE argues

that "[c]onditions with a right of reverter or right to demand

forfeiture 'will not be implied unless the intendment is

clear.'" Accepting, arguendo, this statement to be a correct

articulation of New Jersey law, a notion we do not implicitly

endorse, the record here makes it clear that plaintiffs

expressly announced their conditions at the time they made their

gift, and defendant expressly acknowledged those conditions at

the time it accepted plaintiffs' gift. Indeed, some of the most

salient of plaintiffs' conditions (continued servicing of the

Princeton region and naming rights) were offered by defendant as

promotional incentives to entice donors like plaintiffs to give

generously to its campaign. Under these circumstances, it can

reasonably be argued that returning the gift is the most lenient

sanction defendant may receive from a menu that includes breach

of fiduciary duty and civil fraud.

Returning to the issue before us, the parties have not

cited, and we have not found through our own independent

research, a published opinion in this State directly addressing

the right of a live donor to demand the return of a conditional

inter vivos gift based on the recipient's failure to honor the

donor's conditions. We will thus approach this question guided

33 A-0643-10T3
by our collective jurisprudential experience and general sense

of fairness.

Based on the unquestioned realization that the recipient

accepted the gift fully aware of the donor's conditions and did

not express any reservation to the donor about its ability to

meet those conditions, we conclude that this created a

reasonable expectation in the donor's mind that: (1) the

recipient would attempt to meet those conditions in good faith;

(2) absent the donor's consent, the recipient did not have the

right to ignore or disregard any of the material conditions of

the gift; and (3) if the recipient of the gift decides to

unilaterally disregard the donor's expressed condition, basic

fairness dictates that the gift must be returned to the donor.

This analytical paradigm is also consistent with the

principles governing a fiduciary relationship. As the Court

noted in F.G. v. McDonell, 150 N.J. 550, 563 (1997), "[t]he

essence of a fiduciary relationship is that one party places

trust and confidence in another who is in a dominant or superior

position." Here, plaintiffs placed their trust in SAVE to meet

the conditions of their gift. By virtue of their control of the

funds, SAVE was in a superior position to determine to either

meet plaintiffs' conditions, request their consent to rededicate

34 A-0643-10T3
the funds to another purpose acceptable to plaintiffs, or return

the gift.

By opting to disregard plaintiffs' conditions, SAVE

breached its fiduciary duty to plaintiff. Under these

circumstances, requiring SAVE to return the gift appears not

only eminently suitable, but a mild sanction. After all, it can

be argued that not every donor who may have cause to question

the reasonableness of a charity's actions has the tenacity and

wherewithal to pursue a claim. Furthermore, depending on the

amount of the gift involved, some donors may come to the

conclusion that initiating legal action is not a cost-effective

means of obtaining redress.

Here, the trial court denied plaintiffs' application for

prejudgment interest and plaintiffs opted not to seek appellate

review of this decision by way of cross-appeal. We therefore

decline to address this issue.

We do note SAVE's alternative arguments under the so-called

cy pres doctrine, (which translates as "as near as may be"),

also referred to as equitable deviation. As expressed by the

then court of equity in McKenzie v. Trustees of the Presbytery

of Jersey City, 67 N.J. Eq. 652, 672-73 (N.J. 1905):

The doctrine of cy pres is therefore the
doctrine of nearness or approximation, and
it appears in English jurisprudence in three
separate departments, yet with similar

35 A-0643-10T3
 operation and effect. Firstly, in the law
of testaments, where a personal legacy has
been given upon a condition precedent, and
the literal performance of this condition
has become impossible from unavoidable
circumstances and without fault of the
person to be benefited. Here, it is
sufficient if the condition be performed as
nearly as it can be. Secondly, in the law
of private trusts, where lands are limited
to an unborn person for life, with remainder
to his first and other sons, successively,
in tail. Here, in order to secure the
flowing of the testator's bounty to the
issue, the limitations may be held to create
an estate in tail in the first taker.
Thirdly, in the law of charitable trusts,
where gifts have been made for charitable
purposes which, either originally or in the
course of time, cannot be literally
executed. Here the gift will be
administered, as nearly as may be, according
to the donor's purpose, under general rules
of law. In all of these instances it is to
be observed that the underlying principle is
this: Where the testator or donor had two
objects in view -- one primary or general,
and the other secondary or particular -- and
these are, literally speaking, incompatible,
the particular object must be sacrificed in
order that effect may be given to the
general object, according to law, and "as
near as may be" to the testator's or donor's
intention. Again, the principle may be more
briefly stated as that of applying property,
as nearly as possible, according to the
donor's intentions, when those intentions
cannot be exactly carried out.

[(Citations in original omitted).]

Relying on these ancient principles of probate law, SAVE

argues that the trial court "should not have allowed plaintiffs'

gift to fail." According to SAVE, Judge Sumners should have

36 A-0643-10T3
applied plaintiffs' donation to a charitable purpose "as nearly

as possible to the particular purpose." SAVE's argument in this

respect crumbles under the weight of its own logic. As

emphasized repeatedly by the court in McKenzie, in the law of

charitable trusts, where the gift has been made for a charitable

purpose, and either originally or in the course of time cannot

be literally executed, the gift will be administered, as nearly

as may be, "according to the donor's intentions." Ibid.

(emphasis added).

Under the facts presented here, it would be a perversion of

these equitable principles to permit a modern charity like SAVE

to aggressively solicit funds from plaintiffs, accept

plaintiffs' unequivocally expressed conditional gift, and

thereafter disregard those conditions and rededicate the gift to

a purpose materially unrelated to plaintiffs' original purpose,

without even attempting to ascertain from plaintiffs what, in

their view, would be "a charitable purpose as nearly possible"

to their particular original purpose.

Finally, we categorically reject SAVE'S so-called public

policy argument. According to SAVE, if we permit Judge

Sumners's decision to stand, "New Jersey charities will risk

losing contributions committed to them merely because they take

longer than anticipated to raise funds needed to build a new

37 A-0643-10T3
facility or start a new initiative." This "parade of horrible

consequences" argument is based on mere speculation and is not

rooted to the salient facts of this case.

Plaintiffs did not demand the return of their $50,000

donation because SAVE's Herrontown Road, state-of-the-art animal

welfare facility designed to serve the Princeton region took

longer to build than anticipated, or because SAVE decided to

start a new initiative. Plaintiffs demanded the return of their

money because SAVE unilaterally decided to violate the expressed

conditions of their gift. We believe that responsible charities

will welcome this decision because it will assure prospective

donors that the expressed conditions of their gift will be

legally enforceable. Thus, the trust relationship necessary to

promote generous gift giving has been strengthened by the

tenacious efforts of two people who love large dogs and older

cats.

Affirmed.

38 A-0643-10T3
Appellate Court Appendix I — SAVE Naming Opportunities Brochure

SAVE
Princeton's Animal Shelter
established 1941

Naming Opportunities
_______________________________________________________________________________________________________

The Facility:
 Building ($1,000,000) -- Funded
 Vestibule ($10,000) -- Funded
 Lobby ($20,000)
_______________________________________________________________________________________________________

Spay/Neuter Clinic:
 Surgery Suite ($250,000)  Preparation Room ($55,000)
 Lab/Pharmacy ($100,000)  Veterinarian Offices ($30,000)
 X-Ray Room ($65,000)
_______________________________________________________________________________________________________

Administrative Support:
 Administrative Wing ($100,000)
 Board Room ($20,000) -- Temporarily held
_______________________________________________________________________________________________________

Education Wing:
 Auditorium ($50,000)  Education Offices ($35,000)
 A/V Room/Computer Lab ($25,000)  Humane Library ($25,000)
 Catering Room ($15,000)
_______________________________________________________________________________________________________

Recovery/Rehabilitation:

Canine Recovery:  Maternity/Puppies ($35,000)
 Canine Rehab Room ($25,000) Feline Recovery:
 Canine Rehab Room ($25,000)  General Rehab ($50,000)
 Vet Exam Room ($15,000)  Quarantine Cages ($50,000)
 Hospital ($25,000)  Quarantine work room ($15,000)
 Isolation ($25,000)  Vet Exam Room ($15,000)
 Isolation ($25,000)  Long-term, chronic, feral ($25,000)
 Grooming ($15,000)
_______________________________________________________________________________________________________

Adoption:
 Canine Living Room ($20,000) -- Funded  Canine get-acquainted room ($15,000)
 Canine Living Room ($20,000) -- Funded  Feline get-acquainted room ($15,000)
 Canine Living Room ($20,000) -- Funded  Puppy corrals ($25,000) -- Funded
 Feline Living Room ($20,000) -- Funded  Puppy night cages ($15,000)
 Kitten Living Room ($25,000) -- Funded  Large Canine Run ($25,000) -- Funded
 Kitten Living Room ($25,000) -- Funded  Cage display room for felines ($25,000) -- Funded
 Canine Play Space ($50,000)  Adoption support areas ($50,000)
_______________________________________________________________________________________________________

Other Shelter Support:
 Laundry ($20,000)
_______________________________________________________________________________________________________

**Additional Naming Opportunities are available. All gifts of $1,000 or more will be recognized on our donor wall.**