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Choice Plus, LLC v. Department of Financial Services

Florida Court of Appeals, First District

April 17, 2018

Choice Plus, LLC, Appellant,
Department of Financial Services, Bureau of Unclaimed Property; Bengt Roland Dahlqvist, Ann-Kristin Dahlqvist Berlin, Barbro Britt Marie Linden Barkman, Bert Erik Gore Linden, Carl Johan Tegge, Malin Caroline Charlotte Tegge, Lars Ragner Linden, Gunvor Marie Linden Wilhde, Marianne Elisabeth Linden Holm, and Anita Margaretha Nyberg, Appellees.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Department of Financial Services. Robert C. Kneip, Chief of Staff.

          Seann M. Frazier, of Parker Hudson Ranier & Dobbs, Tallahassee, for Appellant.

          Lori Lynn Jobe and Josephine A. Schultz, Assistant General Counsels, Tallahassee, for Appellees.

          ROBERTS, J.

         Choice Plus, LLC (Choice Plus), appeals a final order from the Department of Financial Services (the Department) denying its claim to recover funds from the estate of Mrs. Inez Eleanor Rigley that were being held by the Department. Choice Plus argues the Department improperly ignored a valid order from the Pinellas County Probate Court and made its own de novo determination regarding entitlement to the estate funds. We agree with Choice Plus that the Department overstepped its authority and reverse the final order.


         In 2005, Mrs. Rigley died in St. Petersburg, Florida. In 2007, the Pinellas County Probate Court determined that Mrs. Rigley died intestate, having no known beneficiaries. The probate court ordered "[t]hat under [section 732.107, Florida Statutes (2007)] the assets of the estate shall escheat to the State of Florida." Per section 732.107(2), Mrs. Rigley's real property was sold as provided in the Florida Probate Rules, and the proceeds were paid to the Chief Financial Officer for deposit into the State School Fund. The Department documented receipt of $98, 185.79 in cash proceeds from Mrs. Rigley's estate and marked it as an "escheated estate."

         Section 732.107(3) provides,

At any time within 10 years after the payment to the Chief Financial Officer, a person claiming to be entitled to the proceeds may reopen the administration to assert entitlement to the proceeds. If no claim is timely asserted, the state's rights to the proceeds shall become absolute.

         In 2013, before the ten-year deadline expired, Choice Plus took such action. Choice Plus is a private investigative agency registered with the Department as a claimant's representative. Choice Plus first petitioned the probate court to determine that ten individuals[1] (hereinafter the ten claimants), all of whom resided in Sweden, were Mrs. Rigley's beneficiaries. Attached to the petition to determine beneficiaries was a family genealogical chart as well as a researcher's report that included thirty-three endnotes referencing various records like death and birth records.[2] Choice Plus also petitioned the probate court to reopen the estate for administration and to declare the ten claimants were entitled to the funds deposited with the State. The Department was not a party to the probate proceedings; however, Choice Plus did notice the Attorney General's Office as required by section 733.816(3), Florida Statutes, which did not file any objections.

         In two 2013 orders, the probate court reopened the estate; determined that the ten claimants were indeed beneficiaries of Mrs. Rigley's estate; delineated the share of her estate each claimant was owed; and ordered that "after providing for payment of costs and fees, the State of Florida is hereby authorized and directed to pay the funds it holds on behalf of the Estate of [Mrs. Rigley]" to the ten claimants in the proportions set out in the court's order. As the claimants' representative, Choice Plus stood to receive $21, 500.53 in fees when the estate funds were paid.

         Choice Plus then filed with the Department a claim on behalf of each of the ten claimants, seeking payment of each claimant's portion of Mrs. Rigley's estate funds. The claim was submitted on the Department's required form and attached the required copies of the government-issued, photographic identification of the ten claimants as well as certified copies of the probate court order demonstrating the ten claimants' entitlement to the estate funds. Choice Plus later submitted Mrs. Rigley's death certificate. Choice Plus also filed limited powers of attorney for it to act on behalf of each claimant.

         In 2014, the Department issued a Notice of Intent to deny the claim (without prejudice) as incomplete because it did not include the appropriate documents in Florida Administrative Code Rule 69I-20.0022(3)(b) (2014)[3] to connect the ten claimants to Mrs. Rigley. In essence, the Department took the position that the genealogic charts and researcher's report that had been relied upon by the probate court were too ambiguous to demonstrate the ten claimants were entitled to disbursement of Mrs. Rigley's estate funds. The Department concluded as custodian of the estate funds under The Florida Disposition of Unclaimed Property Act, chapter 717, Florida Statutes, it had authority to determine the merits of each claim for funds, and the claim as submitted failed to meet the burden of establishing entitlement to Mrs. Rigley's estate funds by a preponderance of the evidence.

         Over the next two years, the parties disputed the Department's ability to deny the claim under chapter 717. The issues condensed into a purely legal question that was ultimately decided in the Department's 2015 final order on appeal. In its final order, the Department concluded that it had been vested with the sole jurisdiction to administer chapter 717 and to determine the merits of each claim for funds held in the State Treasury. The Department rejected Choice Plus's contention that it was under a ministerial duty to disburse the estate funds upon receipt of the probate court's order. Instead the Department determined that, despite the probate court's previous determination of entitlement, Choice Plus had failed to meet its burden of demonstrating entitlement to the Department by submitting the ...

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