07-004397 Worldwide Research Services Corp. vs. Department Of Financial Services Status: Closed Recommended Order on Thursday, December 6, 2007.

Summary: Dismissal based on the discussion of lack of jurisdiction to decide contract disputes and untimeliness of the petition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WORLDWIDE RESEARCH SERVICES )

CORP., )

)

Petitioner, )

)

vs. ) Case No. 0 7 - 4397

)

DEPARTMENT OF FINANCIAL )

SERVICES, )

)

Respondent , )

)

and )

)

JENNIFER CHRISTINE MARGRAVE AND )

ANTHONY RICHARD MARGRAVE AS )

TRUSTEES OF THE FLORENCE A LICE )

CASSIDY TRUST, )

)

Intervenors. )

)

RECOMMENDED ORDER OF DISMISSAL

This cause may be determined upon the pleadings.

Accordingly, no preliminary statement has be en provided .

FINDINGS OF FACT

1. On August 15, 2007, Respondent, Department of Financial

Services (DFS) entered a Notice of Intent (the agency's proposed

final agency action) to the effect that it proposed to enter a

final order approving the claim for u nclaimed property filed by

“ Christine Margrave and Anthony Richard Margrave as Trustees of

the Florence Alice Cassidy Trust for the benefit of Peter

Cassidy ” and to withhold no amount on behalf of Petitioner. The

certificate of service of that Intent is d ated August 16, 2007 ,

as evidenced by its attachment to the Department's Motion to

Dismiss .

2. The Notice of Intent was received by Petitioner on

August 20, 2007, as evidenced by a signed "return receipt

requested" form , a copy of which is attached to th e Department's

Motion to Dismiss .

3. On September 11, 2007, Petitioner filed its Petition

with DFS. The date of receipt by the Agency is evidenced by the

Agency’s date stamp on the Petition , a copy of which is attached

to the Department's Motion to Dism iss .

4. On or about September 24, 2007, the cause was referred

to the Division of Administrative Hearings and assigned to the

undersigned. Enclosed in the referral packet was Respondent

Agency's timely Motion to Dismiss with all attached exhibits .

5. On October 3, 2007, an Order was entered, pointing out

(to Petitioner) that Respondent Agency's Motion to Dismiss had

been incorporated in the Agency referral packet received at the

Division on or about September 24, 2007, and that, in an

abundance of caut ion , Petitioner was being granted 12 days from

October 3, 2007 (that is, until October 15, 2007), to file any

response in opposition to the Agency’s Motion to Dismiss .

Petitioner filed no timely response. On October 25, 2007, an

Order was entered ta k ing the Agency’s Motion to Dismiss under

advisement.

6. On September 28, 2007, the “ Response of Jennifer

Christine Margrave and Anthony Richard Margrave ” was filed.

This item has been treated as the Trust’s m otion to i ntervene .

B y another October 3, 2007 Or der , Petitioner and Respondent w ere

granted the time provided in Florida Administrative Code Rule

28 - 106.204 , in which to respond in support or opposition to the

Trust’s motion to intervene. This would have been 12 days from

the date of the October 3, 200 7, Order. Respondent Agency filed

a timely response in support of the Trust’s intervention.

Petitioner has filed nothing to date.

7. On October 11, 2007, the Trust filed a Motion to

Dismiss , incorporating by reference Respondent's Motion to

Dismiss and relating that the Trust had declined to sign a power

of a ttorney to Petitioner which would have required it to pay

more than 40 percent of the value of the unclaimed asset here at

issue . Petitioner filed no timely response .

8. Because it appeared that the Trust had served its two

motions upon Petitioner by e - mail and to a street address which

was not Petitioner’s street address of record before the

Division of Administrative Hearings, the undersigned, in an

abundance of caution, utilized the following p rocedure to ensure

that Petitioner would have every opportunity to respond to those

motions or object to any of the exhibits attached to any motion .

By attachments to an Order entered October 25, 2007, the Trust’s

Motion to Intervene and Motion to Dismiss were re - served upon

Petitioner by U.S. Mail at the Petitioner’s correct street

address of record before the Division. The Order further

invited a timely response per rule. A timely response would

have to have been filed with the Division on or before

N ovember 6, 2007. Petitioner filed no timely response in

opposition, and has filed nothing to date.

9. On November 6, 2007, an Order was entered , granting the

Trust’s m otion to i ntervene and taking the Trust’s M otion to

D ismiss under advisement.

10. Th is Recommended Order of Dismissal is entered without

oral argument, as permitted by Florida Administrative Code Rule

28 - 106.204.

1 1 . The pleadings of record show that on or about

April 12, 2006, " P. (Peter) Cassidy " had executed a written

p ower of a ttorn ey to Petitioner Corporation restricted to

authorizing Petitioner to effect distribution of assets legally

belonging to the estate of his father, Jerome G. Cassidy, to

which Peter was legally entitled as sole legal beneficiary. The

agreement specified a f ee of $6,845.57 to Petitioner and a net

of $10,000.00 to Peter. However, Peter, in proper person, was

not the legal owner of the asset . The Florence Alice Cassidy

Trust for the benefit of Peter Cassidy , is the beneficiary.

12. Oral agreements are recogn ized by the Florida Statutes

as follows:

Section 717.1381

(a) Any oral or written agreement or power

of attorney for compensation or gain or in

the expectation of compensation or gain,

that includes an unclaimed property account

valued at more than $250 which was made on

or before 45 days after the holder or

examination report was processed and added

to the unclaimed property database,

subsequent to a determination that the

report was accurate and that the reported

property was the same as the remitted

pr operty, is void as contrary to public

policy.

(b) Any oral or written purchase agreement

that includes an unclaimed property account

valued at more than $250, owned by another

and made on or before 45 days after the

holder or examination report was proce ssed

and added to the unclaimed property

database, subsequent to a determination that

the report was accurate and that the

reported property was the same as the

remitted property, is void as contrary to

public policy.

(2) A person may not enter into a po wer of

attorney or an agreement, or make

solicitation to enter into a power of

attorney or an agreement, that is void under

this section.

1 3 . However , there is nothing in Chapter 717 , Florida

Statutes, that makes the Department or the Division the

determ inor of such oral agreements.

1 4 . The Petition herein represents that an oral agreement

existed between Petitioner and Intervenors (the Trust) , whereby

the Trust as "Claimant" agreed to pay Petitioner a "fee" or

"costs" (the Petition uses both terms) for the Petitioner's

services for locating the account (asset) at issue; for

obtaining the necessary documents to successfully claim the

account; and by Petitioner doing any and all other acts

necessary in the procurement of any additional items as might be

re quired for Petitioner to file a complete claim on Intervenors'

behalf.

1 5 . Petitioner bases th e instant claim on a February 9,

2007, e - mail transmission from Intervenors to Petitioner and the

circumstances surrounding it, the most notable circumstance

b eing that prior to th e February 9 , 2007, e - mail, Petitioner had

advised Intervenors that all necessary documents had been

secured and would be forwarded to them .

16. The Trust's February 9, 2007, e - mail reads:

I can confirm however that I have now

obt ained a certified death certificate for

Mr. Cassidy which has a similar seal to th a t

which you describe. All the documents I

shall be sending you, including the death

certificates for Mr. & Mrs. Cassidy, will be

copies of the originals and which will have

been certified and sealed by a Notary

Public. You have confirmed that the copy

[sic] driving licenses of Mr. & Mrs.

Margrave which I will provide as proof of

identity do not need to be certified.

Perhaps you would kindly confirm that all

the above will be in order and on receipt of

the document by mail you will be able to

complete the claim. Perhaps you could also

let me know how long completion of the claim

and issue of the funds will take.

On a final note I, like you, have been

christened with the m ale version of my name

but am in fact Mrs. Gabriel Gray!

1 7 . Petition er also relies on its own February 12, 2007,

e - mail transmission to Intervenors, which sets forth as follows:

As a reminder, the Limited Powers of

Attorney must also accompany the docum ents .

. .

Upon receipt of the documents and Limited

Powers of Attorney the claim will be

submitted for approval.

1 8 . Intervenors /Trustees and their English solicitor never

execute d a written power of attorney on behalf of the T rust .

19 . On or about M arch 19, 2007, Intervenors filed their

own claim , as Trustees of the Florence Alice Cassidy Trust for

the B enefit of Peter Cassidy , for the unclaimed property of

Jerome G. Cassidy. Intervenors have presented documentation to

satisfy the Agency that Jerome Cassidy pre - deceased his spouse,

Florence Alice Cassidy, who is also deceased; that both Jerome

and Florence died in England; that Ms. Margrave is the personal

representative of the estate of Florence Alice Cassidy for the

benefit of Peter Cassidy, who is the son of the decedents .

Ms. Margrave and Anthony Richard Margrave a re trustee s o f the

discretionary trust.

20. The Petition represents that it would have been

impossible for Intervenors to have obtained the necessary

origination of the asset (bank acc ount) in question using the

Respondent Agency's database alone.

2 1 . Upon the foregoing and other information, Respondent

Agency has determined that Petitioner has no standing and that

disbursement of the asset should be made exclusively to the

Trust/ Inter venors.

CONCLUSIONS OF LAW

2 2 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this case

only pursuant to Sections 120.569 and 120.57(1), Florida

Statutes (2006).

2 3 . The Agency's Motion to Dismiss is based on the

concepts that: (a) the Petition was untimely; (b) Petitioner

does not have standing because no injury in fact can be

demonstrated, and the injury is not of a type or nature that

this proceeding is designed to protect; (c) the filing of the

claim b y the Intervenors had the effect of revoking the alleged

oral power of attorney; and (d) neither the Respondent Agency,

nor the Division of Administrative Hearings has statutory

authority to adjudicate the merits of private oral contracts.

2 4 . The certifi ed mail receipt shows that the Notice of

Intent (proposed final agency action) was received by Petitioner

on August 20, 2007. The Agency's date stamp on the Petition

shows it was received by the Agency on September 11, 2007.

Twenty - one days from August 2 0, 2007, would have been

September 10, 2007. Therefore, the Petition was late by one

day. Petitioner has had every opportunity to explain any

legally cognizable reason for this tardiness and has not done

so. Therefore, the case should be dismissed pursu ant to Section

120.569(2)(c), Florida Statutes.

2 5 . Regardless of any power of attorney from Peter, there

is no power of attorney or written agreement/contract between

the Trust/Intervenors and Petitioner. Petitioner here attempts

to exercise an "oral co ntract," based upon an e - mail pre - dating

the blank power of attorney Petitioner sent to Intervenors,

which power of attorney was never signed by them in any of their

official capacities . F or that matter, the power of attorney

sent to the Trustees was neve r signed at all. From the record

as a whole, it would appear that even Petitioner recognized that

without an executed power of attorney from the correct party,

Petitioner had no enforceable contract.

2 6 . The proposed final agency action herein involves w ho

is entitled to receive the proceeds of Peter Cassidy’s

ancestors' funds which remain located in the State of Florida.

That is a decision of the Agency subject to its jurisdiction ,

and may be referred to the Division .

2 7 . However, Petitioner seeks to h ave a contract dispute

between itself and the trust for Peter Cassidy resolved in this

forum. Be it an oral or written contract, the resolution of

contract disputes is the exclusive jurisdiction of Article V

courts. Even though Chapter 717 contains langu age that a

circuit court might apply in order to declare that an oral

contract existed or did not exist between these parties , Chapter

717 , cannot vary the constitutional jurisdiction of a circuit

court for applying that statutory language.

2 8 . This case may be dismissed for lack of jurisdiction ,

based on untimeliness of the Petition and upon lack of subject

matter jurisdiction. Therefore, it is not necessary to address

the remainder of the issues or any other arguments raised by the

Respondent’s and Inte rvenors’ Motions to Dismiss.

R ECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Department of Financial Services enter

a final order dismissing the Petition herein.

DONE AND ENTERED this 6th day of December , 200 7 , in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of December , 200 7 .

COPIES FURNISHED:

Paul C. Stadler, Jr., Esquire

Department of Financial Services

200 E. Gaines Street

Tallahassee, Florida 32399 - 0333

Gerald E. Daugherty

Worldwide Research Services Corporation

3221 Hansen Court

Tallahassee, Florida 32301

Anthony Richard Margrave

Jennifer Christine Margrave

Courtyard Entrance, the Old Post Office

1 30 Epsom Road, Merrow, Guildford, Surrey GU1 2PX

Honorable Alex Sink

Chief Financial Officer

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

Daniel Sumner, General Counsel

Department of Financial Services

T he Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0300

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order sh ould be filed with the agency that

will issue the final order in this case.