18-006673F Choice Plus, Llc, On Behalf Of The Heirs Of Gertrude Groning vs. Department Of Financial Services, Division Of Unclaimed Property Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Thursday, May 23, 2019.

CHOICE PLUS, LLC, ON BEHALF OF

THE HEIRS OF GERTRUDE GRONING,

Petitioner,

DFS Case No. 207903-17-FA

vs. DOAH Case No. 18-6673F

DEPARTMENT OF FINANCIAL SERVICES,

DIVISION OF UNCLAIMED PROPERTY FILED

Respondent, JUN 4 2019

Docketed by~

FINAL ORDER

The Department of Administrative Hearings, by Order dated May 23, 2019, has

relinquished jurisdiction of this matter. The parties have executed a Settlement Agreement which

is incorporated herein. The parties are ordered to comply with the tenns and conditions of the

Settlement Agreement.

Accordingly, it is hereby ORDERED and ADJUDGED that the Settlement Agreement is

hereby incorporated into this Final Order and therefore, this case is closed.

DATED this L day of June 2019 at Tallahassee, Leon County, Florida.

w~

Director of Division of Unclaimed Property

Florida Department of Financial Services

[Remainder of Page Intentionally Left Blank]

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Final Order

NOTICE OF RIGHTS

A party adversely affected by this final order may seek judicial review as provided in section

120.68, Florida Statutes, and Florida Rule of Appellate Procedure 9.190. Judicial review is

initiated by filing a notice of appeal with the Agency Clerk, and a copy of the notice of appeal,

accompanied by the filing fee, with the appropriate district court of appeal. The notice of appeal

must conform to the requirements of Florida Rule of Appellate Procedure 9.11 0( d), and must be

filed (i.e. received by the Agency Clerk) within thirty days of rendition ofthisfinal order. Filing

with the Department' s Agency Clerk may be accomplished via U.S. Mail, express overnight

delivery, hand delivery, facsimile transmission, or electronic mail.

Julie Jones

Agency Clerk

Department of Financial Services

612 Larson Building

200 E. Gaines Street

Tallahassee, FL 32399-0390

Facsimile: [phone]

Email: [e-mail]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy ofthe Final Order has been furnished by email

on this day of June 2019 to Michael J. Farrar, Esquire ([e-mail]).

'Michael A. Alao

Senior Attorney

Florida Department of Financial

Services

200 East Gaines Street

Tallahassee, Florida 32399-0333

Telephone: [phone]

Fax: [phone]

[e-mail]

CHOICE PLUS, LLC, ON BEHALF OF

THE HEIRS OF GERTRUDE GRONING,

Petitioner,

DFS Case No. 207903-17-FA

vs. DOAH Case No. 18-6673F

DEPARTMENT OF FINANCIAL SERVICES,

DIVISION OF UNCLAIMED PROPERTY

Respondent,

SETTLEMENT AGREEMENT

This Settlement Agreement ("Agreement") is made and entered into by and between the

Florida Depatiment of Financial Services, Division of Unclaimed Property ("Department"), and

Choice Plus, LLC ("Choice Plus"), on behalf of the heirs of Getimde Groning pursuant to a

limited power of attorney.

I. Background

1. The Depaliment is the state agency charged with the administration and

enforcement of the Florida Disposition of Unclaimed Propeliy Act, chapter 717, Florida Statutes,

and the rules adopted thereunder.

2. In May 2007, Citibank repmted and submitted to the Department unclaimed

propeliy in the name of Gelirude Groning and consisting of the contents (jewelry) of a safety

deposit box. The Department auctioned the jewelry which netted a balance of $119,836.55 in

unclaimed propetty account number 103130814.

3. Ms. Groning died on December 6, 2005.

4. In 1995, Ms. Groning executed a revocable inter vivos trust agreement. The trust

named several of Ms. Groning's heirs as primary beneficiaries of specified dollar amounts upon

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her death. The tmst named seven charities as residual trust beneficiaries. The trust named

Citicorp Trust, NA, as the cmvorate tmstee and a friend of Ms. Groning as co-trustee.

5. On August 19, 2015, the United Nations Children's Fund ("UNICEF"), through

its legal counsel, submitted a claim to the Department for a 1/7th share of Ms. Groning's

charitable residuat)' trust estate.

6. The Department subsequently approved and paid the UNICEF claim as well as

the claims of four additional Groning trust residual beneficiary charities. The Department paid

the claims from funds held in account number 103130814.

7. As of February 2016, after paying the five charity claims, the balance in account

number 103130814 was $34,239.03.

8. In November 2016, Choice Plus petitioned for summary administration of Ms.

Groning's estate in Pahn Beach County Circuit Court, case number 2016-CP-5318.

9. On January 3, 2017, a circuit court judge in case number 2016-CP-5318 issued an

Amended Order of Summary Administration (Intestate), and ordered the "immediate distribution

ofthe assets" of Ms. Groning's account held by the Department in the amount of$119,836.55 to

Ms. Groning's heirs.

l 0. On January 25, 2017, Choice Plus submitted to the Depa11ment claim number

C7115985 for the unclaimed property account number 103130814. Choice Plus claimed

$119,836.55.

11. On October 13,2017, the Department issued its Notice of Intent to approve the

Choice Plus claim number C7ll5985, but only for $34,239.03, which represented the amount

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remaining in the account after the Department's payment of claims filed by the tmst residual

beneficiaries. The Department denied Choice Plus's claim for the entire $119,836.55

12. Dissatisfied with the Department's decision, on October 20, 2017, Choice Plus

submitted a petition to the Depmiment under section 120.57(1 ), Florida Statutes (20 17), for a

formal evidentiary hearing involving disputed issues of material fact. The Depmiment denied

Choice Plus's request, concluding that the material dispute involved a question of law, not fact.

Accordingly, the Department initiated an informal proceeding under section 120.57(2), under

case number 207903-17-FA (the "Agency Case'').

13. On March 6, 2018, Choice Plus served a motion for attorneys' fees under section

57.105, Florida Statutes (20 17).

14. On May 15, 2018, an informal hearing under section 120.57(2) was held in the

agency case before Hearing Officer Kathy Gatzlaff.

15. On May 29, 2018, Choice Plus filed its sections 57.105 and 120.569(2)(e)

motions for sanctions.

16. On June 18, 2018, Departm.ent Hearing Officer Gatzlaff issued a written repot1

and recommended order.

17. On June 20, 2018, Hearing Officer Gatzlaff issued an order denying the section

120.569(2)(e) motion, and dismissed without prejudice the section 57.105 motion for lack of

jurisdiction.

18. No final order was issued in the Agency Case.

19. After reviewing the written repm1 and recommended order, the agency head

determined that disputed issues of material fact were present on one or more issues, and on

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October 5, 2018, the agency head issued an order transferring the matter to DOAH and a formal

administrative proceeding commenced pursuant to section 120.57(1 ).

20. Upon transfer to DOAH, the Department assigned the case to a senior attorney

who reviewed the case file and completed her own investigation. Review of the case file and

investigation disclosed that the jewelry could not have been tmst property. Accordingly, the

Department reversed its earlier decision and, on November 28, 2018, approved and paid Choice

Plus's full claim.

21. Upon receipt of payment of the full claim, Choice Plus and the Depmiment filed a

joint motion for DOAH to release jurisdiction except for Choice Plus's sanctions motions

pursuant to sections 57.105 and 120.569(2)( e).

22. DOAH held an evidentiary hearing on Choice Plus's sanctions motions on

February 13, 2019.

23. On March 27, 2019, Administrative Law Judge Danen Schwm1z entered an order

establishing that Choice Plus is entitled to attorney's fees from the Department pursuant to

sections 57.105 and 120.569(2)(e). Per ALJ Schwa11z's order, Choice Plus is entitled to

attorney's fees because the Depatiment lacked a reasonably clear justification in its Notice of

Intent for denying the entirety of Choice Plus's claim. ALJ Schwat1z also f()und that there was

no competent, substantial evidence introduced by the Department at hearing in suppm1 of the

Department's initial decision to deny the entirety of Choice Plus's claim.

24. ALJ Schwat1z set an evidentiary hearing for ·May 29, 2019, to determine the

amount of attorney's fees to which Choice Plus is entitled.

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25. On May 22, 20 I 9, the Department and Choice Plus reached an agreement on the

amount of attorney's fees and filed a joint motion for DOAH to cancel the evidentiary hearing.

26. On May 23, 2019, ALJ Schwat1z entered an order canceling the May 29, 2019,

hearing, closing the DOAH file, and relinquishing jurisdiction to the Department.

II. Settlement Agreement

27. In the interest of compromise and settlement, the pa11ies have determined that

their respective interests would best be served by completely resolving and settling the existing

controversy between them without additional delay or litigation, and agree to the following tenns

and conditions.

a. The Depm1ment agrees to pay Choice Plus $13,500 within 30 days of

execution of this Agreement, with execution being the date the last party's representative

signs this Agreement.

b. Upon full execution of this Agreement, each pat1y waives and releases the

other, its agents, representatives, attorneys, and employees fi·om any and all causes of

action that either party may have, now or in the fuhtre, arising from or relating to

unclaimed propel1y account number 103130814. The parties agree that for the sum

specified in paragraph 27.a. and for other valuable consideration, the parties and any legal

representatives, heirs, executors, administrators, successors, and assigns, hereby, without

reservation, vollmtarily release, waive, absolve, and forever discharge, to the full extent

permitted by law, the Department from any and all demands, causes of action, judgments,

or suits at law or in equity, of any kind or nahtre, arising from or relating to the claims for

unclaimed property account number 103130814, or any resulting action taken by the

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Depattment. The patties agree to accept this release on behalf of themselves, their

principals, their agents, representatives, and employees.

c. Each party is solely responsible for its attorney fees and costs incurred in

the defense, prosecution, or negotiation of this matter tluough the entry of the Final

Order. The parties expressly waive any right to claim attorney fees or costs under any

statute or authority.

d. If any provision of this Agreement or the application thereof is held

invalid, such invalidity shall not affect the other provisions of this Agreement which can

be given effect without the invalid provisions, and to this end, the provisions hereof are

declared severable.

e. The paliies acknowledge that they have read this Agreement and fully

understand the rights, obligations, terms, conditions, duties, and responsibilities with

respect to its contents and are acting on the advice of competent counsel.

f. This agreement is intended as full and complete settlement of the issues

raised in the administrative and legal proceeding identified above, and any other issues

that could have been raised resulting from the claims filed by Choice Plus on the behalf

of the heirs of Getirude Graining for unclaimed property account number 103130814.

The terms of this agreement are intended as full and complete settlement of the patties'

claims against each other for damages or relief of any type or form.

g. The paliies agree that this Agreement is entered into voluntarily and with

full authority of the parties. The undersigned representatives of the Depa11ment and

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Choice Plus represent that they have full authority to enter into and bind their principals

to the terms and conditions of this Agreement.

h. The parties agree not to challenge or contest this Agreement in any forum

that may now or in the future be available to them, including any administrative

proceeding, circuit, federal, or appellate comt action. Nothing herein shall be construed to

limit either parties' right to enforce the terms and conditions of this Agreement.

i. The Department's determination to enter into this Agreement is based on

the specific facts and circumstances of this· case and has no applicability to any other

matter arising or that may arise from actions taken by the Department under chapter 717,

Florida Statutes.

WHEREFORE, the parties being satisfied that the terms and conditions of this

Agreement set forth above are fair, reasonable, and adequate, and in consideration of the mutual

promises and other good and valuable consideration as set forth in this Agreement, the receipt

and sufficiency of which is hereby acknowledged, the patties, intending to be legally bound,

hereby acknowledge and agree to the foregoing terms and conditions of this Agreement by

written consent on the dates indicated below.

[Remainder of Page Intentionally Left Blank; Signature Page to Follow]

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DOAH No. I 8-6673F

Settlement Agl'eement

Choice Plus, LLC

By:

Rand''H } ,,

President

Department GfFinancial Services,.

Division of Unelaimed P1·operty

(1

Phillip ,, rlton

Assistant Director