Glen Cyril Yergin, as personal representative of the Estate of Richard Yergin, Appellant,
Mary Georgopolos, Appellee.
final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 97-4918, Bernard S. Shapiro, Judge.
Michael Farrar, for appellant.
Office of Shannon L. Akins, P.A., and Shannon L. Akins
(Orlando); Law Office of Diane B. McWhirter and Diane B.
McWhirter (Winter Park); Joseph Currier Brock (Winter Park),
EMAS, LOGUE and LUCK, JJ.
years ago, Richard Yergin took out a life insurance policy on
himself, and named as the beneficiary Mary Georgopolos, who
was listed as Richard's mother. The policy and the $41,
687.74 it paid out, however, were unknown to Georgopolos and
Richard's family. They didn't know about the money
when Richard died in 1997. They didn't know about the
money when Richard's estate was probated in the circuit
court the following year. And they didn't know about the
money for the next decade and a half, until 2015.
then, the insurance company had turned over the forty-one
thousand dollar annuity to the Florida Department of
Financial Services. In 2015, when he learned about the money,
Glen Yergin, Richard's half-brother, petitioned to reopen
Richard's estate, appoint himself the personal
representative, and for a declaration that the insurance
policy annuity: (1) was a failed transfer because Georgopolos
was not Richard's mother as stated on the policy; and (2)
belonged as part of the estate property. Glen also served his
declaratory judgment petition on ninety-two-year-old Mary
Georgopolos, in Fircrest, Washington.
remembered Richard as a tenant in her home many years before.
Richard, Georgopolos remembered, liked her cooking and left
his jacket when he moved out. She made a claim for the
annuity with the financial services department, and moved to
dismiss the petition, which the trial court granted. This is
an appeal from the dismissal.
issue in this appeal is whether an estate that seeks to
obtain money or property delivered to the financial services
department as unclaimed must first file a claim with the
department, and exhaust administrative remedies, before it
can file a lawsuit in the trial courts determining ownership
of the property. Richard contends that the circuit court must
decide first because Florida law gives it exclusive
jurisdiction to determine whether property is part of an
estate, Art. V, § 20(c)(3), Fla. Const.; § 86.011,
Fla. Stat. (2015); id. § 733.105(1)(a),
our constitution and statutes also give the financial
services department jurisdiction to make determinations as to
unclaimed property deposited in the state treasury, Art. IV,
§ 4(c); § 717.124(1), Fla. Stat.
Legislature reconciled these provisions in section
717.1242(1), finding that "consistent with [the]
legislative intent" to give jurisdiction to the circuit
court over the settlement of estates, and jurisdiction to the
financial services department over unclaimed property,
"any estate or beneficiary . . . of an estate seeking to
obtain property paid or delivered to the department . . .
must file a claim with the department." §
717.1242(1), Fla. Stat. (2015). The Legislature then laid out
an extensive administrative procedure for seeking unclaimed
property. The department must make a determination on a claim
within ninety days (with some exceptions), id.
§ 717.124(1)(c), and has a method for determining the
priority of conflicting claims, id. § 717.1241.
"In rendering a determination regarding the merits of an
unclaimed property claim, the [d]epartment shall rely on the
applicable statutory, regulatory, common, and case law."
Id. § 717.1244. And a person
"aggrieved" by the department's decision may
petition for an administrative hearing under the Florida
Administrative Procedures Act. Id. §
after a claimant has exhausted these administrative
procedures may she seek relief in the circuit court. See
Atwater v. Citibank Fed. Sav. Bank, 96 So.3d 1000, 1001
(Fla. 3d DCA 2012) ("The trial court is without
jurisdiction to compel the Department to disburse funds
without the Department first having determined the
entitlement of the claimant to the funds held by the
Department."); O'Connor v. Zane, 79 So.3d
105, 106 (Fla. 1st DCA 2012) (O'Connor I)
("[I]f Ms. O'Connor files a claim under section
717.124, the department must determine whether it is in
possession of unclaimed property belonging to Mr. Zane, and
if the property consists of cash, it must state the amount.
Ms. O'Connor may then obtain legal process or pursue
judicial remedies, if necessary, to execute her judgment
against the property."); State Dep't of Fin.
Servs. v. O'Connor, 155 So.3d 479, 481 (Fla. 1st DCA
2015) (O'Connor II) ("In O'Connor
I, this Court held that O'Connor had not exhausted
her administrative remedies because she did not file a claim
with the Department pursuant to Chapter 717."). The
O'Connor cases are good examples of this
interplay between the jurisdiction of the financial services
department and the circuit courts.
the department was holding thirty-two thousand dollars in the
name of a former husband. O'Connor I, 79 So.3d
at 105. The former wife, who was owed child support, moved in
the divorce case for a declaration that she was entitled to
the money being held by the department. Id. (The
same kind of declaration Glen sought in this
case.) The trial court dismissed, "finding
that [the former wife] had failed to exhaust her
administrative remedy of filing a claim with the department
to recover the funds." Id. at 106. The First
District Court of Appeal affirmed, explaining that because
the former wife had a claim on the money, she first had to
file a claim with the department, and only after a
determination was made could she "obtain legal process
or pursue judicial remedies." Id. The former
wife did that, and after she exhausted her remedies with the
financial services department and the department determined
the money belonged to the husband she sought judicial relief
in the circuit court. See O'Connor II, 155 So.3d
at 481-82. The First District affirmed the trial court's
post-exhaustion order to garnish the money to satisfy the
outstanding child support obligation. Id. at 485.
as the former wife in O'Connor, Glen first had
to file his claim for the insurance annuity with the
financial services department pursuant to section
717.1242(1), and exhaust his remedies under chapters 717 and
120. Only after he did that, and the department made a
determination, was he permitted to pursue his legal remedies
in the circuit court. Because it is undisputed that Glen did
not file a ...