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Wachovia Bank, N.A., As Assignee of Ann J. Herrera, Conservator For v. Richard J. Weiner

February 10, 2012

WACHOVIA BANK, N.A., AS ASSIGNEE OF ANN J. HERRERA, CONSERVATOR FOR JALIL NAGER JONES, A MINOR, PLAINTIFF-APPELLANT,
v.
RICHARD J. WEINER, ESQ., DEFENDANT-RESPONDENT, AND WEINER, CARROLL & STRAUSS, SUCCESSOR TO WEINER & GALL, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5757-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 11, 2012

Before Judges Fuentes, Graves, and Harris.

This appeal addresses Wachovia Bank, N.A.'s (Wachovia) standing to pursue assigned causes of action in its two-count complaint to recover at least $647,156.96 from defendants for the supposed improper disbursement of settlement proceeds to a minor. We provisionally affirm.

I.

The genesis of this case is found in the Law Division action filed in the Essex Vicinage in 1996: Jalil Jones, an Infant by his Guardian Ad Litem, Wadia Hill[*fn1 ] and Wadia Hill, Individually v. Ruth Bey, and Public Service Electric & Gas Company, Superior Court of New Jersey, Law Division, Essex County, Docket No. ESX-L-10777-96 (the personal injury action). Defendant Weiner & Gall was the attorney of record and defendant Richard J. Weiner, Esq. was individually assigned to represent the plaintiffs in the personal injury action.

On March 20, 2001, the Law Division entered an order (the Jones order) approving a structured settlement in favor of the minor, Jalil Jones (Jones), pursuant to Rule 4:44-3. A separate order approved a structured settlement in favor of Wadia Hill (Hill) individually.*fn2

The Jones order entered judgment in favor of the minor in the amount of $4,500,000. This amount was expressly ordered to be satisfied in the following manner:

a. The amount of $2,366,667.00 shall be paid by the defendant PSE&G, to procure a lifetime annuity for infant plaintiff, Jalil Jones;

b. The amount of $2,133,333.00 shall be paid to Jalil Jones, an infant by his guardian ad litem, and Weiner & Gall, Attorneys and shall be distributed as follows: $647,156.96 shall be paid for the benefit of the infant Jalil Jones and held in accordance with the dictates of the appropriate authorities in the State of Georgia;[*fn3 ] $129,895.72 shall be paid to satisfy the Medicaid lien of the State of New Jersey; $1,227,300.00 shall be distributed to the firm of Weiner & Gall on account of legal fees; and $128,980.32 shall be paid to the firm of Weiner & Gall on account of expenses.

On April 10, 2001, a check in the amount of $647,156.96 was issued from an attorney trust account entitled, "Richard J. Weiner, P.C. Trust Account," payable to "Wadia Hill, as guardian for infant Jalil Jones." At that time Hill had not qualified to serve as Jones's guardian under Georgia law. On April 11, 2001, this check was deposited in a guardianship account at Wachovia's predecessor, First Union National Bank. The guardianship account was entitled, "Gdnship of Jalil N. Jones, Wadia Hill Guardian." On the same day, Hill withdrew $350,000 from this account and thereafter deposited that sum in her personal "CAP Account" at an affiliate of First Union National Bank. She then paid Weiner $280,000 from her personal account.

In January 2007, the Probate Court of Fulton County, Georgia initiated a proceeding to inquire into the disposition of the settlement proceeds generated by the personal injury action in New Jersey. It does not appear that any of the parties to this appeal were parties in the probate proceedings. After conducting a testimonial hearing, the Georgia court appointed a conservator for Jones: Ann J. Herrera (Herrera), as the Fulton County Conservator. In its order of appointment, the Judicial Hearing Officer noted the following:

Ms. Hill expressed frustration with how financial matters were handled and that she had been mislead by prior counsel. She stated that the personal injury attorney requested additional fees from the trial court at the time of settlement, that court had denied the request, however the personal injury attorney compelled her to pay those fees without the knowledge of the trial court. She stated that the personal injury attorney set up guardianship bank accounts in New Jersey into which funds were ...


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