       Third District Court of Appeal
                               State of Florida

                            Opinion filed April 5, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-2192
                          Lower Tribunal No. 97-4918
                             ________________

    Glen Cyril Yergin, as personal representative of the Estate of
                          Richard Yergin,
                                      Appellant,

                                         vs.

                             Mary Georgopolos,
                                      Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Bernard S.
Shapiro, Judge.

     Michael Farrar, for appellant.

      Law 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), for appellee.


Before EMAS, LOGUE and LUCK, JJ.

     LUCK, J.
      Thirty-five 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.

      By then, the insurance company had turned over the forty-one thousand

dollar annuity to the Florida Department of Financial Services.1 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.

      Georgopolos 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

1  “Funds held or owing under any life or endowment insurance policy or annuity
contract which has matured or terminated are presumed unclaimed if unclaimed for
more than 5 years after the date of death of the insured, the annuitant, or the
retained asset account holder . . . .” § 717.107(1), Fla. Stat. (2015).

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department, and moved to dismiss the petition, which the trial court granted. This

is an appeal from the dismissal.

      The 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),2 but 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. (2015).3

2 The Florida Constitution provides that the “[c]ircuit courts . . . shall have
exclusive original jurisdiction in all actions at law not cognizable by the county
courts; of proceedings relating to the settlement of the estate of decedents and
minors, the granting of letters testamentary, guardianship, involuntary
hospitalization, the determination of incompetency, and other jurisdiction usually
pertaining to courts of probate . . . .” Art. V, § 20(c)(3), Fla. Const. The
declaratory judgment act provides that “the circuit and county courts have
jurisdiction within their respective jurisdictional amounts to declare rights, status,
and other equitable or legal relations whether or not further relief is or could be
claimed.” § 86.011, Fla. Stat. (2015). And the probate code provides that “[w]hen
property passes by intestate succession or the will is unclear and there is doubt
about . . . [w]ho is entitled to receive any part of the property . . . any interested
person may petition the court to determine beneficiaries or their shares.” Id. §
733.105(1)(a).
3 The Florida Constitution provides that “[t]he chief financial officer shall serve as

the chief fiscal officer of the state, and shall settle and approve accounts against the

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      The 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. § 717.126(1).

      Only 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


state, and shall keep all state funds and securities.” Art. IV, 4(c), Fla. Const. The
unclaimed property statute provides that “[a]ny person . . . claiming an interest in
any property paid or delivered to the department under this chapter may file with
the department a claim on a form prescribed by the department and verified by the
claimant or the claimant’s representative.” § 717.124(1), Fla. Stat. (2015).

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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.

      There, 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.4) The trial court dismissed, “finding that [the

former wife] had failed to exhaust her administrative remedy of filing a claim with

4That shouldn’t be a surprise. The former wife’s attorney in the O’Connor cases is
Glen’s attorney in this case.

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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.

      Here, 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

claim with the department, the trial court correctly dismissed his petition for

declaratory relief.5 We affirm.

5 Glen finally contends that the trial court cannot grant a motion to dismiss on
exhaustion grounds because exhaustion is an affirmative defense. Glen is
incorrect. The Florida courts have affirmed dismissal on exhaustion grounds
where it was clear from the face of the initial pleading. This is what the First
District did in O’Connor I. 79 So. 3d at 106 (“The circuit court dismissed the
motion [for a declaration], finding that Ms. O’Connor had failed to exhaust her

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administrative remedy of filing a claim with the department to recover the funds.
We affirm.”); see also Criterion Ins. Co. v. Fla. Dep’t of Ins., 458 So. 2d 22 (Fla.
1st DCA 1984) (affirming dismissal of amended complaint seeking declaratory
relief for failing to exhaust administrative remedies).

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