02-003359 Cecelia Robinson vs. Department Of Financial Services, Office Of Financial Institutions And Securities Regulation
 Status: Closed
Recommended Order on Tuesday, February 25, 2003.


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Summary: Children and estate of deceased had no claim on GIC fund because upon deaths of principals, the residual beneficiaries of the trusts were only the parties with standing.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8CECILIA ROBINSON, )

11)

12Petitioner, )

14)

15vs. ) Case No. 02 - 3359

22)

23DEPARTMENT OF FINANCIAL )

27SERVICES, OFFICE OF FINANCIAL )

32INSTITUTIONS AND SECURITIES )

36REGULATION, )

38)

39Respondent. )

41)

42RECOMMENDED ORDER

44Upon due notice, a disputed - fact hearing was heard in this

56case on October 25, 2002, in Tallahassee, Florida, before Ella

66Jane P. Davis, a duly - assigned Administrative Law Judge of the

78Division of Admi nistrative Hearings.

83APPEARANCES

84For Petitioner: Bruce G. Kaufmann, Esquire

908353 79th Avenue, North

94Seminole, Florida 33777

97For Respondent: Cynthia K. Maynard, Esquire, and

104Catherine Jones, Qualified Representative

108Dep artment of Banking and Finance

114The Fletcher Building

117101 East Gaines Street, Suite 526

123Tallahassee, Florida 32399

126STATEMENT OF THE ISSUE

130Whether Petitioner is entitled, pursuant to Section

137517.1203, Florida Statutes, to distribution of funds of the

146Securities Guaranty Fund which were set aside to reimburse

155investors for funds lost through investments with GIC Government

164Securities, Inc.

166PRELIMINARY STATEMENT

168This cause arises from a claim made in 1998, against "the

179GIC Fund," or "the New Fund," administered by the Department of

190Banking and Finance, Respondent's predecessor agency. The claim

198was repeatedly, but in some instances ineffectually, denied so

207as to obscure or compromise the windo w of opportunity to request

219a disputed - fact hearing pursuant to Section 120.57(1), Florida

229Statutes. To remedy any confusion, and to provide a fair

239opportunity to be heard, the Agency ultimately referred the case

249to the Division of Administrative Hearings on or about

258August 22, 2002.

261That said, this Preliminary Statement is restricted to

269procedural and evidentiary issues before the Division after

277August 22, 2002. Any procedural matters prior to August 22,

2872002, which have factual or legal significance f or resolution of

298the disputed issues of material fact between these parties are

308addressed in the Findings of Fact and/or Conclusions of Law.

318The case having been referred to the Division on August 22,

3292002, the parties' respective responses to the Initial Order

338were considered. By an Amended Notice of Hearing, mailed

347August 30, 2002, the disputed - fact hearing on the merits was

359scheduled for October 25, 2002, to accommodate the respective

368schedules of counsel for each party.

374No formal discovery ensued. N o Pre - hearing Stipulation was

385entered into by the parties, as required by the Order of Pre -

398hearing Instructions. However, Respondent Agency's Unilateral

404Pre - hearing Statement has been considered as an admission on

415behalf of the Agency, that a claim was fi led as set out in

429Finding of Fact 22, and Endnote 4.

436On October 5, 2002, Respondent served and filed a Request

446for Official Recognition of eight documents and a Motion to

456Dismiss for Lack of Subject Matter Jurisdiction. Pursuant to

465Rule 28 - 106.204, Flo rida Administrative Code, Petitioner was

475permitted until October 17, 2002, to file responses in

484opposition. No responses were served or filed. A ruling on the

495Motion for Official Recognition was reserved until the

503commencement of the October 25, 2002, di sputed - fact hearing on

515the merits. Likewise, argument on the Motion to Dismiss, based

525on the documents attached to the Motion for Official

534Recognition, was also reserved until October 25, 2002.

542A conference call was conducted at Petitioner's request a

551few hours prior to the scheduled hearing on October 25, 2002,

562during which it became apparent that no stipulations or

571agreement to continue had been reached. The commencement of the

581motion and merits hearing was extended by a half - hour to permit

594the parti es to meet and further discuss their options.

604At the commencement of the motion and merits hearing,

613counsel were given another 15 minutes to consult in private.

623They reached no agreements.

627Thereafter, Petitioner orally moved for a continuance or

635for the Division to relinquish jurisdiction to the Agency for an

646opportunity to amend, before the Agency, the "claim," an

655informal hearing before the Agency, and a new window of

665opportunity to return to the Division upon new disputed facts.

675Respondent Agency opp osed this motion.

681The grounds enunciated for Petitioner's foregoing oral

688motion were that Respondent's counsel had failed to comply with

698Petitioner's oral request to meet and exchange exhibits,

706pursuant to the Order of Pre - hearing Instructions. Responde nt's

717counsel stated that Respondent would be offering at trial no

727exhibits other than those attached to Respondent's two pending

736Motions, which Petitioner had received in early October. That

745being conceded, Petitioner was unable to demonstrate any

753surpris e or prejudice arising from Respondent's failure to meet

763and exchange exhibits pursuant to the Order of Pre - hearing

774Instructions.

775Petitioner did not envision a relinquishment of

782jurisdiction as constituting a withdrawal of Petitioner's

789request for hearing and presented no statute or rule, or case

800law to permit the amendment of a claim barred by statute after

812December 31, 1998, or permitting a new window of opportunity to

823return to the Division for an impartial evidentiary hearing

832after jurisdiction of a pen ding claim/case is relinquished to

842the Agency. For these reasons, and because the parties each

852maintained that there remained disputed issues of material fact,

861Petitioner's oral motion to continue/relinquish jurisdiction to

868the Agency was denied.

872Next, up on inquiry under oath, Ms. Catherine Jones

881demonstrated that by education, training, and experience, she

889could be recognized, pursuant to Rules 28 - 106.105, 28 - 106.106,

901and 28 - 106.107, Florida Administrative Code, as a Qualified

911Representative of Respondent , for purposes of this case.

919At hearing on the Motion for Official Recognition,

927Petitioner did not take issue with the validity of any document

938bearing an official seal of a court or the National Archives,

949but objected to their admission "simply because th ere's no

959verification as to whether or not anything was filed to correct

970or amend or change or reject these documents," obtained from and

981certified by the National Archives of Records Administration.

989(TR - 15 - 16.) The entire packet of eight exhibits was off icially

1003recognized over this objection. (TR - 16.) 1/

1011Petitioner disputed none of the facts alleged in the Motion

1021to Dismiss. (TR - 17 - 18.) All of the officially recognized

1033documents were considered for purposes of the Motion to Dismiss.

1043Ruling on the Moti on to Dismiss was reserved for resolution in

1055this Recommended Order. 2/

1059The case then proceeded on the merits. Many facts were

1069stipulated by counsel. Six of Petitioner's Exhibits were

1077admitted in evidence, some over Respondent's objection.

1084Petitioner's E xhibit 1 was not admitted in evidence. 3/

1094Petitioner was not permitted to present the oral testimony

1103of Leo Young, over objection, it appearing that Mr. Young had

1114not been disclosed as a potential witness, pursuant to the Order

1125of Pre - hearing Instructions and would be testifying as an "heir

1137finder," to hearsay communications or documents not in evidence.

1146(TR - 61 - 63.)

1151Respondent's eight documents which had been officially

1158recognized were also admitted in evidence. (R - 1 through R - 8,

1171See Endnote 1.)

1174Respon dent's oral motion for a directed verdict was denied.

1184Respondent's oral motion for a summary recommended order was

1193also denied.

1195A Transcript was filed on December 2, 2002. Respondent

1204timely - filed its Proposed Recommended Order, pursuant to the

1214parties' a greement for a January 2, 2003, filing date.

1224Petitioner's Proposed Recommended Order was filed late, on

1232January 8, 2003, but in the absence of any motion to strike, it

1245has been considered.

1248FINDINGS OF FACT

12511. This proceeding arises under Section 517.1203 , Florida

1259Statutes, administered by the Agency. Under the terms of the

1269statute, the Agency is responsible for evaluating claims filed

1278by investors who suffered financial loss due to the actions of

1289GIC Government Securities, Inc. (GIC). Basically, the Flo rida

1298Legislature decided to extend, through this statute, some relief

1307to investors who were "scammed" by a specific fraudulent

1316security company or security company behaving fraudulently,

1323which company ended up in bankruptcy in the 1980's. The statute

1334enab les investors to file claims to recover from the "New Fund"

1346the portion of their proven investments which were not recovered

1356from the Bankruptcy Court, GIC or its agents, or the Securities

1367Guaranty Fund. The "New Fund" or "GIC Fund" is funded with

1378monies generated by the sale of bonds issued by Investment Fraud

1389Restoration Financing Corporation, a corporation created by

1396statute to generate funds to reimburse GIC investors for their

1406lost investments.

14082. Pursuant to Section 517.1203(2)(a), Florida Statutes,

1415investors must have done the following, in order to be

1425considered for reimbursement:

1428. . . filed claims with the Department

1436of Banking and Finance after October 1,

14431996, and on or before December 31, 1998

1451[and have either]:

14541. Received a final judgment against an

1461associated person of GIC Government

1466Securities, Inc., based upon allegations

1471which would amount to a violation of s.

1479517.07 or s. 517.301; or

14842. Demonstrated to the department that

1490the claimant has suffered monetary damages

1496as a result of the acts or actions of GIC

1506Government Securities, Inc., or any

1511associated person thereof, based upon

1516allegations which would amount to a

1522violation of s. 517.07 or s. 517.301.

15293. "Investor" is not defined in Chapter 517, Florida

1538Statutes. See , Section 517.0 21, Florida Statutes.

15454. Section 517.1203(3), Florida Statutes, provides that in

1553evaluating the investors' claims against the GIC Fund, "the

1562department may rely on records from the bankruptcy proceeding

1571regarding GIC Government Securities, Inc., unless t here is good

1581cause to believe that the record is not genuine."

15905. Minnie Moss was the daughter of Pauline Kline and the

1601sister of Cecilia Robinson a/k/a Cecelia Robinson a/k/a Celia

1610Robinson. Minnie Moss predeceased both her mother and sister

1619and died te state (leaving a will), on November 16, 1980.

16306. Cecilia Robinson was the daughter of Pauline Kline.

1639She was the sister of Minnie Moss. She was the mother of

1651Jessica Robinson and Michael Robinson a/k/a Spencer Michael

1659Robinson.

16607. Cecilia Robinson died on November 11, 1998. She is

1670survived by her two children, Jessica and Michael.

16788. When Cecilia's sister, Minnie Moss, had died on

1687November 16, 1980, she left a will dated September 19, 1969, as

1699amended by four codicils (collectively, "the Will"). Unde r the

1710terms of the Will, Mrs. Moss's estate was divided into two equal

1722parts, designated Part A and Part B.

17299. Part A of Mrs. Moss's estate consisted of $100,000,

1740which was divided into two equal parts to be distributed, one

1751part each, to equal trusts cre ated for the benefit of Jessica

1763and Michael Robinson, Mrs. Moss's niece and nephew.

177110. Part B of Mrs. Moss's estate, consisting of her

1781remaining estate, was also divided into two equal parts which

1791were, in turn, utilized to create two charitable unitrust s. One

1802unitrust provided life benefits for Cecilia Robinson. The other

1811unitrust provided life benefits for Pauline Kline. By the terms

1821of the Will, when either Cecilia or Pauline died, the survivor

1832of the two would receive the benefits from the decedent 's

1843unitrust for the remainder of the survivor's life, and upon the

1854death of the survivor (either Cecilia or Pauline), the

1863unitrusts' combined balances were to be distributed as follows:

1872five percent to Jacksonville Jewish Center; five percent to

1881River Gard en Hebrew Home for the Aged, and ninety percent to

1893Hadassah.

189411. Put another way, the Will intended that if Pauline

1904Kline died first, Cecilia Robinson was to continue to be able to

1916draw on the Robinson unitrust and also have a life estate in the

1929Kline u nitrust, and when Cecilia Robinson died, the Will

1939intended that the remainder/balance of the Kline unitrust and

1948the remainder/balance of the Robinson unitrust were to be

1957combined, and the total remainder/balance of the combined

1965trusts' balances were to pas s to the three residual charities in

1977the respective named percentages.

198112. In fact, when Pauline Kline predeceased Cecilia

1989Robinson, that event left Cecilia as the lifetime beneficiary of

1999both the Robinson and Kline unitrusts, but her interest was only

2010a life estate in the two trusts.

201713. Mrs. Moss's Will had nominated Robert Rieders to serve

2027as personal representative of her estate and as trustee for each

2038of the unitrusts established by the Will for Pauline Kline and

2049Cecilia Robinson.

205114. On November 29 , 1985, Rieders filed a claim in the

2062Tampa Division of the United States Bankruptcy Court, for the

2072Middle District of Florida, in the bankruptcy case of In re:

2083G.I.C. Government Securities, Inc. , Case No. 85 - 2784 - 887,

2094stating, in relevant part:

2098I, the unde rsigned, ROBERT M. RIEDERS,

2105WHO RESIDES AT Jacksonville, Florida, am the

2112Trustee for CECILIA ROBINSON, under Trust,

2118created by Will and Codicils thereto of

2125Minnie Moss, Deceased and I am authorized to

2133make this Proof of Claim on behalf of said

2142trust, throu gh my undersigned attorney.

2148(Emphasis supplied)

215015. In support of the foregoing bankruptcy claim, which

2159was filed in the amount of $190,912.86, Rieders attached copies

2170of various documents, including investment receipts and canceled

2178checks from the Robi nson unitrust account, establishing that the

2188investments were made on behalf of "Robinson under trust created

2198by will and codicils of Minnie Moss, deceased."

220616. Four years later, on or about February 21, 1989,

2216Rieders joined in filing a "Motion for Subst itution of Counsel

2227and Substitution of Trustee for Creditor" in the GIC bankruptcy

2237case. The Motion sought to have the bankruptcy court substitute

2247Florida National Bank as trustee "of the trusts created for the

2258benefit of Cecilia Robinson and Pauline Klin e under the will and

2270codicils thereto of Minnie Moss, deceased (the 'Trusts'), which

2279are creditors of the debtor's estate herein." It further

2288represented that "The Trusts, Ritz and Post & King each filed

2299timely proofs of claim in this proceeding and have received

2309periodic distributions from the estate. The Trusts own the

2318stock of Ritz and Post & King."

232517. The foregoing Motion also attached, as an exhibit

2334thereto, a copy of an agreement of compromise between Rieders,

2344as "trustee of the trusts under the w ill and codicils of Minnie

2357Moss," and Hadassah, one of the three residual charity -

2367beneficiaries of both unitrusts. The agreement set forth "Facts

2376Giving Rise to Agreement" which stated, in part, referring to

2386Moss's Will:

2388Under the said Will, the residuary

2394estate was divided into two equal parts.

2401One part was bequeathed to a charitable

2408remainder unitrust for the benefit of

2414Pauline Kline, the mother of decedent, and

2421the other part bequeathed to a charitable

2428unitrust for the benefit of Celia [sic]

2435Robinson, the sister of decedent. Upon the

2442death of the last to die of Pauline Kline or

2452Celia [sic] Robinson, the remainder of the

2459trusts is distributable as follows: Five

2465percent to Jacksonville Jewish Center, five

2471percent to River Garden Hebrew Home for the

2479Aged and ninety percent to Hadassah.

2485Pauline Kline has died, and Celia [sic]

2492Robinson is still alive. (Emphasis supplied)

249818. On March 7, 1989, the Bankruptcy Court issued an

"2508Order for Substitution of Counsel and Substitution of Trustee

2517for Creditor," grant ing Rieders' Motion and accepting the

2526agreement of compromise and the facts set forth therein, without

2536comment.

253719. While the evidence demonstrates that disbursements

2544were made by the Bankruptcy Court to the trusts and their

2555corporate possessions ( see Fin ding of Fact 16), no competent,

2566credible evidence was adduced that the Bankruptcy Court ever

2575made any determination that Cecilia Robinson, individually, was

2583entitled to, or collected, any amount from Debtor GIC.

259220. Petitioner's counsel represented that there appear to

2600be no remaining records of the Bankruptcy case, In re: G.I.C.

2611Government Securities, Inc. , Case No. 85 - 2784 - 887, except for

2623those left with a Victims Advocacy Group. (TR - 84)

263321. Cecilia Robinson died on November 11, 1998.

264122. Jessica Ro binson had received a Durable Power - of -

2653Attorney from Cecilia on June 17, 1986. It was not effective

2664after Cecilia died, but pursuant to it, Jessica filed a claim,

2675or caused a claim to be filed, with the Agency's GIC Fund on

2688December 22, 1998. 4/

269223. The statutory time limit for filing claims with the

2702GIC Fund ended on December 31, 1998.

270924. There is no evidence of any other relevant timely

2719claims being filed by Jessica Robinson or anyone else.

272825. There is no evidence of any other claims being filed

2739on behalf of Cecilia Robinson, in any capacity, timely or

2749otherwise.

275026. There is no evidence that a claim was made on the

2762Agency's GIC Fund on behalf of Cecilia Robinson's Estate prior

2772to December 31, 1998.

277627. Jessica's December 22, 1998, claim apparen tly was made

2786in the name of "Cecelia [sic] Robinson, Ritz Enterprises, and

2796Post & King Liquors," because on December 13, 2001, the Agency

2807entered a Notice of Intent to Enter a Final Order Granting or

2819Denying Recovery (NOI), with an attachment referencing

" 2826Robinson, Cecelia; Ritz Enterprises; Post & King Liquors:

2834853,854,855 - claim by Jessica Attorney in Fact for

2845Cece . . . ." 5/

285128. On May 1, 2002, a similar NOI was entered with the

2863same attachment concerning Jessica as attorney in fact and som e

2874withdrawals of other claims not relevant here. 6/

288229. On June 17, 2002, the Agency entered an Order Amending

2893Final Order and Notice of Rights, stating the May 1, 2002, NOI

2905had contained scrivener's errors, and removing references to

2913Ritz Enterprises, Po st & King Liquors, and Cecelia Robinson,

2923because those claimants had requested a disputed - fact hearing. 7/

293430. Jessica Robinson qualified as Personal Representative

2941of Cecilia Robinson's Estate by Letters of Administration

2949entered June 18, 2002.

295331. On Ju ly 23, 2002, the Agency entered an Order

2964Dismissing Petition for Hearing With Leave to Amend, finding, in

2974pertinent part,

29763. Claimant's counsel filed a letter

2982with the Department in response to the NOI

2990advising of Claimant's intent to instigate

2996probate p roceedings on behalf of the estate.

3004The Department accepts this letter as a

3011nonconforming Petition for Hearing.

3015and ordering that:

3018Based on the foregoing Findings of Fact

3025and Conclusions of Law, Claimant's Petition

3031for hearing is Dismissed with leave to

3038amend. Claimant is granted fifteen (15)

3044days from the date of this Order in which to

3054file a Petition for Hearing in compliance

3061with the administrative rules. 8/

306632. The Division Case File reflects that on August 10,

30762002, a Petition for Hearing, with att achments, was served by

3087mail upon the Agency. It was brought by "Jessica Robinson,

3097Personal Representative of the Estate of Cecilia Robinson, . . .

3108on behalf of herself and her brother Spencer Robinson." It

3118claimed $184,325.46, on the basis of a bankrupt cy court judgment

3130because "on several occasions, the necessary claim and proof was

3140provided to the Office of the Comptroller but the claim was

3151denied." 9/

315333. The Agency referred the matter to the Division of

3163Administrative Hearings on August 22, 2002, enc losing the

3172August 10, 2002, Petition for Hearing and the December 13, 2001,

3183Order, which had been repeatedly superceded, as set out above.

3193CONCLUSIONS OF LAW

319634. The Division of Administrative Hearings has

3203jurisdiction over the parties and subject matte r of this cause,

3214pursuant to Section 120.57 (1), Florida Statutes.

322135. Finding of Fact 2 is incorporated here as Conclusion

3231of Law 35.

323436. Finding of Fact 4 is incorporated here as Conclusion

3244of Law 36.

324737. Notwithstanding the confusion occasioned by t he

3255juxtaposed documents referred to the Division and the style of

3265the case as requested by the Agency ( See Finding of Fact 33), it

3279is concluded, upon the foregoing Findings of Fact, that the real

3290party in interest in the instant cause is the Estate of Ceci lia

3303Robinson.

330438. Petitioner has the duty to go forward and the burden

3315to prove entitlement to the funds claimed, by a preponderance of

3326the evidence.

332839. Petitioner asserts that equity requires that

3335$184,325.46 be paid to Jessica Robinson, as the Robins on

3346Estate's Personal Representative, and further asserts that

3353Jessica, daughter of Cecilia Robinson, pursuant to a Power - of -

3365Attorney received from Cecilia prior to Cecilia's death on

3374November 11, 1998, filed a GIC Fund claim with the Agency timely

3386on Decem ber 22, 1998, and then, pursuant to her status as

3398Personal Representative of Cecilia Robinson's Estate, filed a

3406Petition for Hearing on August 10, 2002, seeking to continue

3416pursuit of the earlier claim.

342140. However, this is not a court of equity. This forum

3432can only determine the validity of a proposed final agency

3442action, which in this case is the denial of payment of any

3454monies from the GIC Fund to, or on behalf of, Cecilia Robinson.

346641. Respondent denies the basic legitimacy of the

3474December 22, 1998 claim, since Jessica's attorney - in - fact

3485authority to file the claim on Cecilia's behalf terminated upon

3495Cecilia's death, and her authority to bring the claim on behalf

3506of Cecilia's Estate did not go into effect until after the

3517December 31, 1998, statutory bar to GIC Fund claims. Neither

3527party has adequately addressed this issue in the Proposed

3536Recommended Orders. Fortunately, it is a conundrum that need

3545not be addressed in order to resolve this case, because the

3556Motion to Dismiss is well - taken.

356342. Upon Cecilia's death, neither Jessica and Michael

3571individually, nor Cecilia's Estate, had any claim on investments

3580made by the Robinson unitrust, or, in fact, made by either the

3592Kline or Robinson unitrusts. Pursuant to the terms of the Moss

3603Will and the respe ctive trust arrangements, as of the moment of

3615Cecilia's demise, Cecilia's life estates in the two unitrusts,

3624which would have given rise to any claim against GIC or the

3636Agency's GIC Fund in the first place, ended. To the extent that

3648the bankruptcy records in evidence prove anything, they only

3657prove that claims were made against GIC in the bankruptcy court

3668for investments made in trust for Cecilia, not by Cecilia in her

3680individual capacity.

368243. "Standing" is conferred on persons whose substantial

3690interes ts will be affected by proposed final agency action.

3700Friends of the Everglades, Inc. v. Board of Trustees of the

3711Internal Improvement Trust Fund, 595 So. 2d 186 (Fla. 1st DCA

37221992), citing Agrico Chemical Co. v. Dept. of Environmental

3731Regulation, 406 So. 2d 478 (Fla. 2d DCA 1981), rev. den. 415

3743So. 2d 1359 (Fla. 1982), and 415 So. 2nd 1361 (Fla. 1982). "In

3756the administrative context, standing has been equated with

3764jurisdiction of the subject matter of litigation and has been

3774held subject to the same rules ." Department of Revenue v.

3785Daystar Farms, Inc. 803 So 2d 892 (Fla. 5th DCA 2002).

379644. Cecilia Robinson's estate cannot be adversely affected

3804by the proposed agency decision to deny the 1998 claim, and

3815therefore the estate has no standing here. The unco ntroverted

3825evidence is that Cecilia's estate would not be the beneficiary

3835of either the Kline or the Robinson unitrust. Upon Robinson's

3845death, as the last survivor between Kline and Robinson, the

3855corpus of the Robinson and Kline unitrusts created from the

3865remainder of Minnie Moss's estate, Part B, passed, by operation

3875of law, directly to the residual charities, and not to Cecilia's

3886descendents or the heirs of her estate. The Florida National

3896Bank or the residual charities may have had standing to bring a

3908claim against the Agency's GIC Fund, had one been brought

3918timely, but Cecilia's estate did not then, and does not now,

3929have standing to claim or receive any monies from the GIC Fund.

3941Likewise, neither of Cecilia's children had then, or has now,

3951standing t o claim or receive any GIC Fund monies.

396145. Because the Petition for Hearing was not brought on

3971behalf of Ritz or King & Post Liquors, because Petitioner herein

3982made no argument claiming on behalf of Ritz or King & Post

3994Liquors, and because the bankrupt cy records in evidence show

4004that the trusts owned stock in those other corporate creditors

4014of GIC, it is not necessary to address any claim on their behalf

4027against the GIC Fund.

403146. The Petition should be dismissed for lack of standing.

4041RECOMMENDATION

4042Based on the foregoing Findings of Facts and Conclusions of

4052Law, it is

4055RECOMMENDED: That the Department of Financial Services,

4062Office of Financial Institutions and Securities Regulation,

4069enter a final order denying the Claim/Petition brought in the

4079name o f Cecilia Robinson and/or her Estate.

4087DONE AND ENTERED this 25th day of February, 2003, in

4097Tallahassee, Leon County, Florida.

4101___________________________________

4102ELLA JANE P. DAVIS

4106Administrative Law Judge

4109Division of Administrative Hearings

4113The DeSot o Building

41171230 Apalachee Parkway

4120Tallahassee, Florida 32399 - 3060

4125(850) 488 - 9675 SUNCOM 278 - 9675

4133Fax Filing (850) 921 - 6847

4139www.doah.state.fl.us

4140Filed with the Clerk of the

4146Division of Administrative Hearings

4150this 25th day of February, 2003.

4156ENDNOTES

41571/ These items were officially recognized, for all purposes,

4166pursuant to the Motion for Official Recognition: Exhibit R - 1 is

4178a Proof of Claim in U. S. Bankruptcy Court; R - 2 is a Bankruptcy

4193Court Motion for Substitution of Counsel and Trustee; R - 3 is a

4206B ankruptcy Court Order of Substitution of Counsel and

4215Substitution of Trustee for Creditor; R - 4 is the Moss Will; R - 5

4230is the First Codicil of the Moss Will; R - 6 is the Second Codicil

4245of the Moss Will; R - 7 is the Third Codicil of the Moss Will; R - 8

4263is the Fo urth Codicil of the Moss Will.

42722/ In addition to the foregoing officially recognized documents

4281listed in Endnote 1, the following items were tendered by the

4292Agency and only marked for identification during argument on the

4302Motion to Dismiss: Respondent's Motion Exhibit 1 (a

4310December 13, 2001, Notice of Intent to Enter a Final Order

4321Granting or Denying Recovery From the Securities Guaranty Fund

4330and Notice of Rights, with attachment); Respondent's Motion

4338Exhibit 2 (a May 1, 2002 Agency Final Order Denying R ecovery

4350from the Securities Guaranty Fund, with attachments);

4357Respondent's Motion Exhibit 3 (a June 17, 2002, Order Amending

4367Final Order and Notice of Rights, with attachments); and

4376Respondent's Motion Exhibit 4 (a July 23, 2002, Agency Order

4386Dismissing Pe tition for Hearing With Leave to Amend, with

4396attachments). However, because these are all items subject to

4405Official Recognition, the undersigned hereby, sua sponte , within

4413this Recommended Order, takes official recognition of them for

4422all purposes, so as to resolve the procedural history of this

4433case. See Findings of Fact 27 - 33.

44413/ Petitioner's Exhibits 3 through 8 were admitted in evidence.

4451P - 3 is a June 17, 1986 Durable Family Power of Attorney. P - 4 is

4468a July 17, 2002, Proof of Publication of Formal Notice of

4479Petition for (Probate) Administration. P - 5 is the June 18,

44902002, Letters of Administration for Jessica Robinson. P - 6 is

4501the Last Will and Testament of Cecilia Robinson. P - 7 is the

4514June 10, 2002, Petition for Administration. P - 8 is Cecilia

4525Robi nson's Death Certificate.

4529Exhibit P - 1 purported to be a Bankruptcy Trustee's Proposed

4540Distribution. It was not admitted for the reasons given on the

4551record. (TR - 51 - 52; 74 - 82.)

4560Exhibit P - 2 was marked, but not admitted. It was

4571apparently retained by Petitioner. (TR - 64 - 67). To the extent

4583its purpose was to show that P - 1 (which purports to be a

4597Bankruptcy Trustee's Proposed Distribution) was one of many

4605exhibits attached to the August 10, 2002, Petition for Hearing

4615which was referred, on August 22, 2002, to the Division, it is

4627noted that the Petition for Hearing in the Division's Case File

4638reflects that P - 1 was attached to the Petition for Hearing.

4650( See Finding of Fact 32.) This does not prove, or otherwise

4662establish, that P - 1 or any other attachm ent to the August 10,

46762002, Petition for Hearing was filed with the original

4685December 22, 1998, GIC Fund claim.

46914/ The Agency conceded as much in its Unilateral Pre - hearing

4703Statement, and it will not be permitted to suggest otherwise in

4714its Proposed Rec ommended Order. The contents of the claim is

4725shown by the attachments to the Agency's own Orders. See

4735Endnote 2 and Findings of Fact 27 - 33.

47445/ See Endnote 2, officially recognized Respondent's Motion

4752Exhibit 1.

47546/ See Endnote 2, officially recognize d Respondent's Motion

4763Exhibit 2.

47657/ See Endnote 2, officially recognized Respondent's Motion

4773Exhibit 3.

47758/ See Endnote 2, officially recognized Respondent's Motion

4783Exhibit 4.

47859/ It is noted that even if this amended Petition for Hearing

4797was filed wit h the Agency on the date of service by mail, which

4811is unlikely since August 10, 2002, was a Saturday, it was late

4823under the terms of the July 23, 2002, Order permitting the

4834amendment, but this issue has not been raised by Respondent.

4844COPIES FURNISHED :

4847B ruce G. Kaufmann, Esquire

48528353 79th Avenue, North

4856Seminole, Florida 33777

4859Cynthia K. Maynard, Esquire

4863Department of Financial Services

4867Office of Financial Institutions and

4872Security Regulation

4874101 East Gaines Street, Suite 526

4880Tallahassee, Florida 3239 9 - 0379

4886Honorable Tom Gallagher

4889Chief Financial Officer

4892Department of Financial Services

4896The Capitol, Plaza Level 11

4901Tallahassee, Florida 32399 - 0300

4906Mark Casteel, General Counsel

4910Department of Financial Services

4914The Capitol, Lower Level 11

4919Tallahassee, F lorida 32399 - 0300

4925NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

4931All parties have the right to submit written exceptions within

494115 days from the date of this Recommended Order. Any exceptions

4952to this Recommended Order should be filed with the agency that

4963will i ssue the final order in this case.

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Date
Proceedings
PDF:
Date: 03/28/2003
Proceedings: Final Order filed.
PDF:
Date: 03/27/2003
Proceedings: Agency Final Order
PDF:
Date: 02/25/2003
Proceedings: Recommended Order
PDF:
Date: 02/25/2003
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 02/25/2003
Proceedings: Recommended Order issued (hearing held October 25, 2002) CASE CLOSED.
PDF:
Date: 01/17/2003
Proceedings: Motion to Substitute Party, Fla.R.Civ.P. 1.260 (d) and Notice of Change of Address (filed by Respondent via facsimile).
PDF:
Date: 01/08/2003
Proceedings: Petitioner`s Proposed Final Order filed.
PDF:
Date: 01/08/2003
Proceedings: Notice of Filing filed by Petitioner.
PDF:
Date: 01/02/2003
Proceedings: Respondent`s Proposed Final Order filed.
PDF:
Date: 12/06/2002
Proceedings: Post-Hearing Order issued.
Date: 12/02/2002
Proceedings: Transcript filed.
PDF:
Date: 12/02/2002
Proceedings: Notice of Filing Transcript sent out.
Date: 10/25/2002
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 10/07/2002
Proceedings: Respondent`s Pre-hearing Stipulation filed.
PDF:
Date: 10/07/2002
Proceedings: Motion to Dismiss for Lack of Subject Matter Jurisdiction and for Lack of Standing filed by Respondent.
PDF:
Date: 10/07/2002
Proceedings: Respondent`s Request for Official Recognition filed.
PDF:
Date: 08/30/2002
Proceedings: Amended Notice of Hearing issued. (hearing set for October 25, 2002; 1:00 p.m.; Tallahassee, FL, amended as to Date and Time).
PDF:
Date: 08/30/2002
Proceedings: Response to Initial Order (filed by Respondent via facsimile).
PDF:
Date: 08/28/2002
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 08/28/2002
Proceedings: Notice of Hearing issued (hearing set for October 22, 2002; 9:30 a.m.; Tallahassee, FL).
PDF:
Date: 08/23/2002
Proceedings: Initial Order issued.
PDF:
Date: 08/22/2002
Proceedings: Notice of Intent to Enter a Final Order Granting or Denying Recovery From the Securities Guaranty Fund and Notice of Rights filed.
PDF:
Date: 08/22/2002
Proceedings: Petition for Hearing filed.
PDF:
Date: 08/22/2002
Proceedings: Agency referral filed.

Case Information

Judge:
ELLA JANE P. DAVIS
Date Filed:
08/22/2002
Date Assignment:
08/23/2002
Last Docket Entry:
03/28/2003
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (3):