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.
Recommended Order on Tuesday, February 25, 2003.
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.
- Date
- Proceedings
- 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).
- Date: 12/02/2002
- Proceedings: Transcript filed.
- Date: 10/25/2002
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
- 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: 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: 08/28/2002
- Proceedings: Notice of Hearing issued (hearing set for October 22, 2002; 9:30 a.m.; Tallahassee, FL).
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
-
Bruce G. Kaufmann, Esquire
Address of Record -
Cynthia K Maynard, Esquire
Address of Record