STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JAMES C. LEWIS, JR., )
)
Petitioner, )
)
vs. ) CASE NO. 86-1427
)
DEPARTMENT OF BANKING AND ) FINANCE, DIVISION OF FINANCE, ) ABANDONED PROPERTY SECTION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for formal proceeding before P. Michael Ruff, duly designated Hearing Officer, on September 12, 1986, in Clearwater, Florida.
The appearances were as follows:
APPEARANCES
For Petitioner: Robert W. Breslin, Esquire
11151 - 66 Street, North, Suite 402-A Largo, Florida 33543
For Administrator Ad Litem of the Estate
of James C. Lewis: Leo F. Martinez, Jr., Esquire
For Respondent: Robert C. Sprenkle, Jr., Esquire
Department of Banking and Finance Office of the Comptroller
1302 The Capitol
Tallahassee, Florida 32399-0350
The Petitioner, James C. Lewis, Jr., of 2009 Pine Avenue, Manhattan Beach, California, is the sole child and heir of James C. Lewis, deceased. Probate of the estate of that decedent was completed in Dade County, Florida, in 1975, with discharge of the Petitioner as personal representative. The Petitioner received distribution of certain net assets of that estate.
Since that estate was closed, additional assets have been located which are represented to be those of James C. Lewis, deceased, the Petitioner's father.
Those assets consist of the sum of $666.58 in account number 2907243399 and the sum of approximately $223,767.20 in account number 58156 bearing the name of James Lewis. The funds represented by the second named account consist of cash which was discovered in a safe deposit box when it was opened by the custodial bank. The accounts were last held, and surrendered to the Respondent, by the Barnett Bank at 5875 Northwest 163rd Street, Miami Lakes, Florida 33014. The accounts were assigned the numbers 2223-1984-0059 and 2223-1983-0219 by the
State of Florida, Office of Comptroller (Respondent), in whose custody the funds now reside. The Respondent, through its Division of Finance, Abandoned Property Section, has previously approved the payment of the sum of $666.58 from account number 2223-1984-0059 consisting of the entire sum on deposit in that account maintained by the Respondent, which was originally a checking account of James
Lewis, the decedent and Petitioner's father.
The Petitioner claims the larger sum in the other account, which came from the safe deposit box registered in the name "James Lewis," which account did not bear the middle initial "C." Pursuant to the Petitioner's request, an informal hearing was conducted before James H. Allen, Director of the Division of Finance, on January 29, 1986, in Tallahassee, Florida. The issue for determination in that proceeding concerned whether James C. Lewis, deceased, the Petitioner's father, and James Lewis, were the same person. The subject bank accounts were located by investigation and research performed by the Martin- Young Private Investigative Agency, Inc., which contracted with the Petitioner for its services in locating assets and obtaining distribution thereof as Petitioner's agent. A principal of that firm, Leo M. Young, Sr., presented evidence in the form of video testimony as well as documentary evidence at that informal hearing in support of the Petitioner. The Respondent presented no evidence or testimony at the informal hearing. However, subsequent to that informal hearing and before the resultant order which, for purposes of this proceeding, constitutes initial agency action, the Respondent submitted a Florida Department of Law Enforcement report of an analysis of the handwriting of known samples of James Lewis and the decedent, James C. Lewis. The results of that analysis were inconclusive. Mr. Allen, of the Department, found that neither party had established a direct connection between James C. Lewis, deceased, and James Lewis, finding that the evidence presented was only circumstantial and that the two independent handwriting experts were unable to conclude whether or not the signatures of James C. Lewis and James Lewis submitted to them as exemplars had been executed by the same person. Mr. Allen then concluded in a "Final Order" that the Petitioner had not established its claim by the greater weight of the evidence.
The Petitioner, on April 21, 1986, petitioned for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The petition was forwarded to the Division of Administrative Hearings on April 24, 1986, with the Respondent being represented by Randall A. Holland, Esquire. On May 15, 1986, a Motion to Intervene by Robert L. Shevin, Esquire, as administrator ad litem of the estate of James C. Lewis was filed with the undersigned. In that motion it was alleged that Robert L. Shevin, Esquire, had been appointed administrator ad litem of the estate of James C. Lewis on November 15, 1985, when the estate was reopened. It was alleged that it was the intention of the Court presiding over that reopened estate that the administrator ad litem participate in the instant formal proceeding. The motion was unopposed and was granted by Order of the undersigned entered June 9, 1986. The Hearing Officer, by Notice entered June 9, 1986, set the cause for hearing for August 28, 1986, in Clearwater, Florida. Thereafter, by stipulation of the parties, an Amended Notice of Hearing was issued rescheduling the cause to be tried at Clearwater, Florida, on September 12, 1986, which Amended Notice was served on June 24, 1986.
The cause came on for hearing as noticed. The Petitioner presented Petitioner's Composite Exhibit 1 and Petitioner's Exhibits 2, 3, 4 and 5. These exhibits consist of, as to Petitioner's Composite 1, documentary evidence which had been adduced at the informal hearing held previously as well as testimony of Leo M. Young, adduced by video tape and used at the informal proceeding as well as the instant formal proceeding, which has been transcribed in the transcript
of this proceeding by the court reporter. The Petitioner's Composite Exhibit 3 consists of an affidavit by the decedent, James C. Lewis' sister and an accompanying letter. Petitioner's Exhibit 4 consists of a letter from James C. Lewis to his son, the Petitioner, dated February 7, 1972, and Petitioner's Exhibit 5 consists of an Order of the circuit court in and for Dade County, Florida, presiding over the reopened estate of James C. Lewis which authorizes the administrator ad litem, the Intervenor herein, to cooperate with the Respondent in attempting to resolve ownership of the assets at issue. These Petitioner's exhibits were admitted into evidence without objection and by stipulation of the parties.
The Respondent adduced Respondent's Exhibits 1 and 2 which, by stipulation, were also admitted into evidence, consisting of a computer printout of driver's license records for persons with the name James Lewis with varying middle initials and Respondent's Exhibit 2 is the handwriting analysis referenced above. The Petitioner adduced the testimony of Leo M. Young, Sr., both live and by video tape as well as the testimony of Vickie Jamison, the former wife of James C. Lewis and Harry B. Carson, the administrator of the abandoned property section of the Respondent agency. The Respondent and Intervenor produced no witnesses. Upon the conclusion of the testimony and evidence, the Department stipulated to the entry of a Recommended Order finding that the safe deposit box account at issue is that of James C. Lewis, the Petitioner's deceased father, and that the James Lewis who signed the signature or rental record card for the safe deposit box account is the same person as James C. Lewis, the Petitioner's deceased father. The Respondent stipulated that the Petitioner is the decedent James C. Lewis' sole heir and that the decedent, James C. Lewis, placed the subject funds in the safe deposit box in question. The Intervenor asserted at this time that it did not oppose the case presented by the Petitioner.
The parties were accorded the right to file Proposed Findings of Fact and conclusions of Law in the form of a Recommended Order. They indicated they would stipulate to their Recommended Order in view of the stipulation entered into by the parties at the conclusion of the hearing, with which Intervenor agreed. Subsequent to the hearing, however, the Department employed new counsel, one Miles J. Gopman. Mr. Gopman moved for an extension of time to file his Proposed Recommended Order, which was granted by Order of the Hearing Officer entered October 9, 1986, such that the parties were accorded twenty (20) days in which to file Proposed Recommended Orders with the due date being November 4, 1986. On October 31, 1986, the Petitioner timely filed its Proposed Recommended Order. Also on that date the Hearing Officer received a "Verified Motion to Reopen the Record and to Conduct Post Hearing Discovery" from the Respondent. Thereafter the Petitioner filed a Motion for Continuance seeking additional time to file a response to the "Verified Motion to Reopen the Record and to Conduct Post Hearing Discovery" filed by Mr. Gopman. The Hearing Officer allowed Petitioner until December 1, 1986, to respond to the Department's motion and that response was timely filed. Since that time various supplements to the original post hearing motion by the Department and responses thereto by the Petitioner have been filed. The latest such pleading was filed February 26, 1987. The Petitioner's Proposed Recommended Order has been considered and addressed in this Recommended Order and is addressed once again in the Appendix attached hereto and incorporated by reference herein. The pending motions and responses thereto are resolved in the Conclusions of Law below.
The issue to be resolved in this proceeding concerns whether James C. Lewis, who was the account holder and signator on a signature card for checking account number 297243399, which contained a sum of $666.58 and who was the Petitioner's father and testator, is the same person as the "James Lewis" whose
signature appears on a signature or safe deposit box rental record card for account number 58156, last in the custody of the Barnett Bank at 5875 Northwest 163rd Street, Miami Lakes, Florida, and which was originally a safe deposit box account consisting of approximately $223,767.20 and therefore whether the Petitioner, the son of James C. Lewis, deceased, is entitled to those funds.
FINDINGS OF FACT
The Petitioner is the sole heir of James C. Lewis and has been awarded the $666.58 contained in the checking account previously held by his father, James C. Lewis, at Barnett Bank in Miami, Florida. The Petitioner contends that James Lewis, the holder of the safe deposit box account number 58156 is the same person as his father, James C. Lewis, who held the checking account under with the Barnett Bank in Miami under that name with the middle initial "C" included in the signature of record. Therefore, the Petitioner contends he is entitled to the funds contained in the aforementioned safe deposit box account. The Respondent is an agency of the State of Florida charged with custody of abandoned bank accounts and other property such as, as pertinent hereto, accounts or funds for which the lawful owners or heirs have not been located. The Respondent has been represented with regard to this claim by Gregory J. Cummings up through and including the time of the informal proceeding conducted by the Respondent Department and thereafter by Randall A. Holland, Esquire, also an Assistant General Counsel for the Respondent and, as of the time of the hearing, by Robert C. Sprenkle, Jr., Esquire, a Department attorney. Subsequent to the hearing, the Respondent changed counsel once again and Miles J. Gopman, Esquire, entered his appearance on October 2, 1986.
The Petitioner, James C. Lewis, of 2009 Pine Avenue, Manhattan Beach, California, is the only child and sole heir of James C. Lewis, deceased, the holder of the checking account mentioned above. Probate of the estate of James
C. Lewis, deceased, was completed in Dade County, Florida, with discharge of the Petitioner as personal representative in 1975. At that time distribution of assets less attorney's fees was made to the Petitioner.
After the estate was closed, additional assets were located by the Martin-Young Private Investigative Agency, Inc., which had been retained by Petitioner to assist in locating assets and obtaining distribution thereof as the Petitioner's agent. One body of those assets consisted of the $666.58 checking account deposit (account number 2907243399) in the name of James C. Lewis. The other asset consisted of account number 58156 in the name of "James Lewis" containing, originally in a safe deposit box, approximately $223,767.20. Both accounts were last held by the Barnett Bank of 5875 Northwest 163rd Street, Miami Lakes, Florida 33014, prior to the accounts and their contents being surrendered to the custody of the Department pursuant to the pertinent provisions of Chapter 317, Florida Statutes.
In due course, the Respondent having obtained custody of the assets at issue pending location of the rightful owner or owners thereof, the Respondent determined to approve the payment of the $666.58 originating in the above- numbered checking account, to the Petitioner, especially since the Social Security number on that account matched the known Social Security number of the decedent, Petitioner's father. The existing bank records pertaining to the safe deposit box account do not contain a Social Security number, however. The Petitioner's claim to the account represented by the funds originally in the safe deposit box, which had been opened and which was found to contain the above large amount of cash, became the subject of an informal proceeding before James
H. Allen, Director of the Respondent's Division of Finance, on the above-
mentioned date. The Petitioner presented the above-mentioned documentary evidence or some of it at that informal proceeding, however, the Respondent submitted no evidence or testimony at that informal hearing. Subsequent to the informal hearing, the Respondent submitted the above-mentioned Department of Law Enforcement report concerning the handwriting analysis comparing known samples of James C. Lewis' signatures and the signature of James Lewis on the signature card or rental record related to the safe deposit box account. The handwriting analysis was inconclusive. The two handwriting experts were unable to determine whether or not the person who executed the exemplars of the signatures of James
C. Lewis and James Lewis were the same person. The experts, whose report is in evidence in the instant formal proceeding, were unable to say that they were the same person nor were they able to rule out that possibility.
The history of James C. Lewis commences for purposes of this record in 1945. In that year he was a student at Syracuse University in New York and met Vickie Jamison, who later became his wife, a witness for Petitioner in this proceeding, and Petitioner's mother. James C. Lewis had been employed in the merchant marine and shortly after meeting Vickie Jamison he returned to sea duty with the merchant marine. He continued seeing Vickie Jamison upon return trips to New York while working on ocean going vessels. They married in 1947. His work at that time involved duty on steamships, primarily as a purser, or the ship's officer charged with maintaining the ship's funds. His voyages during these years chiefly took him from New York to the ports of Jacksonville, Miami, then on through the Carribean and the Panama Canal to the west coast of the United States, returning by the same route. The Petitioner's father phoned his former wife, Vickie Jamison, from Florida from the cities of Jacksonville and Miami while he was on these voyages. He apparently enjoyed working on ships at sea very much and engaged in such employment through the 1940s and a significant portion of the 1950s.
In approximately 1952, the decedent and his wife, now Vickie Jamison, had a son, the Petitioner, James C. Lewis, Jr. Eventually the decedent became a machinist and worked extensively in that employment and also was for a time a clothes buyer. The family was living in New Jersey at this time, where the decedent worked as a machinist. He progressed eventually from being a machinist to being an inspector of machined parts. The family also lived for a time in Bayshore, New York, and different places on Long Island, New York. The decedent had an old injury to his left shoulder related to a plane crash. This caused him frequent and chronic pain and was apparently a military service-connected disability or injury. The decedent also habitually used alcohol, apparently to excess, and often blamed his drinking on his shoulder injury and chronic pain therefrom. His wife apparently convinced him to move to a warmer climate in the southwestern United States to seek to alleviate his physical problem. The family moved for a short time to Arizona and then went on to settle in California. The decedent had initially wanted to relocate to Florida, but acceded to his wife's wishes, which resulted in the move to west coast area.
The decedent apparently had close friends in Florida and especially the Ft. Lauderdale area at that time.
Over the course of their marriage, the decedent experienced an increasing problem with alcoholism. He became successfully employed, however, and always earned a good income while the family was in California. He worked initially as an inspector and later as a quality control inspector and quality control engineer in the aerospace industry. He was a hard worker and considered an outstanding performer by his employers. He was often chosen by his employers to travel on behalf of the companies for whom he worked, apparently inspecting machined aerospace parts. These trips frequently took him to Florida and on
occasions when he was elsewhere on the eastern coast of the United States he would sometimes phone his wife and tell her he was going to make a "side trip" to Florida, either on behalf of his company or to look up a friend.
During the time he was married, the decedent habitually drove late model "flashy" cars. At the time of his divorce in 1969, he was driving a late model Cadillac convertible. He was also known to be an impeccable dresser and a habitual gambler. He regularly played poker, as well as gambled at the horse races. Although he was a frequent gambler, he also was a frequent winner, according to his former wife. He would often bring home substantial sums of money won at poker or at the tracks and would then buy her or her son gifts.
The decedent had a reputation for winning at gambling most of the time. He was known as an affable person, a good mixer and good talker but was also known as "the nice guy who drank too much." He had many friends during these years, but was not particularly close to anyone. Although he was never abusive to his wife in a physical sense, his drinking became more and more of a problem in their marriage, eventually resulting in their divorce in 1969. Prior to the divorce, the decedent was a member of Alcoholics Anonymous and he and his wife used to go to the AA meetings. At these meetings she would visit with the wives of members, and he would habitually sit in the back room playing poker and frequently winning.
The decedent earned a good income during his working life, but characteristically never would show his wife his pay check. He would cash his pay check and retain the money in his possession and give her a certain amount to operate the household and pay family expenses and bills. His wife opened a checking account at his behest, and paid all the family bills from that account with money he gave her to deposit therein. He habitually concealed the rest of his money earned from his employment or from his gambling winnings from her, although she never wanted for any material benefits during their marriage. She was never required to be employed outside their home during their marriage until some months prior to their divorce when he was drinking too much to be employable.
After their divorce in 1969, the decedent went to live in Arizona for a short period of time, then moved on to Florida. His former wife went back to the east to live in Massachusetts near her own family. She tried to avoid further contact with her former husband, the decedent, although he would call his sister, and sometimes Ms. Jamison's brother, frequently. The decedent also made a practice of telephoning or writing to his son at various times after he and Ms. Jamison were divorced. His former wife characterized him as not being a letter writer but that he would frequently phone people, including members of her own family. These letters revealed that he worked with ship lines in the Jacksonville and Miami areas. On February 7, 1972, he wrote a letter to his son, which is Petitioner's Exhibit 4, wherein he made mention of the fact that he now had friends who liked him for reasons other than the fact that he was a "big spender," an apparent reference to his former life-style. In that letter, he also informed his son that he had made application to go to work as a purser on cruise ships operating out of the port of Miami, thus indicating a desire to engage in his favorite vocation, that of a merchant mariner.
The decedent characteristically signed his name without using his middle initial if it was in a situation where someone might ask him what the middle initial meant. His middle name was Claire and he was quite embarrassed to reveal that as his middle name. This was a name given by his parents and apparently during his grammar school and high school days he was called by that name, which was distasteful to him. In fact he did not reveal that as his
middle name to his former wife until immediately prior to their marriage. Upon entering the military service, he used the name James or Jim in order not to reveal his middle name. The decedent most frequently signed his name as simply James Lewis without revealing his middle initial at all.
From some time in 1970 or 1971 until his death on approximately May 6, 1974, James C. Lewis, decedent, was located in Florida, living and working in Jacksonville and Miami, as evidenced by the phone calls and letters from those locations to his sister and to his son. His primary residence was Miami, where he went to work as a machinist for a company which manufactured automatic pilot equipment for ships. His employer, Mr. John Cyr, recalled that he often spoke of living and working in Jacksonville, which fit his life-style when he was single and in his early married years during the time when he served on ships which frequently called at both Jacksonville and Miami. During his years working in the merchant marine as a purser, it was his mode of living to not have a permanent residence or address of record, but rather to stay with friends or acquaintances when he was ashore for brief periods. This may explain why the Jacksonville address of "802 Laura Street" on the safe deposit box rental record ledger card is not traceable to a residence or to a residence of James Lewis. The Jacksonville address on the safe deposit box rental ledger card was for a car dealership and not a residence. It is not known whether the decedent ever worked at that car dealership or whether that address was given merely to conceal his identity as the owner of the large sum of money in the safe deposit box. In any event, his life-style was such, during his single life in Florida, on a casual basis before his marriage, and permanently after his divorce, such that he had few permanent addresses of record during his sojourns in Florida, either in the 1940s and 1950s or after 1970 or 1971.
During his married life, he would sometimes boast of having carried large amounts of cash ashore on his person when he was working in the merchant marine as a purser. It was thus a part of his life-style when he was single, and especially when he was in the merchant marine, and to some extent after he was married, to be mobile, without permanent addresses and to carry large amounts of cash on his person and to frequently, and often successfully, gamble. When the subject safe deposit box was drilled and opened by Barnett Bank personnel, some of the money was wrapped in bindings indicating that it had come from race tracks.
Mr. Lewis was a bright, skillful worker, and his employer, Mr. Cyr, observed that he never seemed to have financial problems during the time of his employment with Cyr's firm, which lasted through October 1973. This was true even though during this time Mr. Lewis was succumbing to alcoholism and ultimately was unable to work because of it. Mr. Cyr observed Lewis on a number of occasions conversing by telephone with his son, the Petitioner, in California. These phone conversations would often cause Lewis to become visibly emotionally upset. He remarked on a number of these occasions to Mr. Cyr that he had "put something aside for his son." He also remarked from time to time during his tenure with Mr. Cyr's firm to the effect that he had spent a lot of time in Jacksonville. Mr. Cyr was also aware that Mr. Lewis had a merchant mariner's "ticket" or license.
Mr. Cyr and his company manufactured parts for ships and marine vessels, and he was accustomed to dealing with people employed in the maritime shipping industry. It was in light of this experience that he related to witness Young his belief, after hearing of the dispute concerning the large amount of cash in the safe deposit box, that it would not be too unusual for a person with Lewis' life-style and history of maritime employment, to have a
large amount of cash secreted in a safe deposit box since many merchant mariners gambled, as the decedent habitually did, and often kept large amounts of cash outside of bank accounts so as not to have to report it for tax purposes. Given Mr. Lewis' life-style, characterized by seldom if ever having a permanent address of his own when he was working in the merchant marine during the '40s and '50s and again from the period 1971 to 1974 (when he apparently lived with friends and a lady friend), it would be unlikely that he would keep large amounts of cash where he lived with others
The decedent worked full-time for Mr. Cyr's firm from some time in early 1972 through October 1973 when he left full time employment, apparently due to his worsening alcoholism. He still worked part time for Mr. Cyr when he was able, however. Mr. Lewis had been attending "AA" meetings and had become acquainted with a "Captain Jim Humphrey" who worked for the Marine Sciences Division of the University of Miami, apparently operating marine vessels. Probably through this friendship, Lewis obtained a job with this branch of the University of Miami working as a crew member in some capacity on a University of Miami vessel. He still occasionally worked for Mr. Cyr's company.
In obtaining employment with the university, Mr. Lewis had to execute an employment application form which required him to give his full name or middle initial and his Social Security number for Internal Revenue Service "W-4 form" withholding purposes. He accordingly gave his name as James C. Lewis. He opened a checking account at this same time under the same name of James C. Lewis, likely so it would coincide with the name appearing on his university payroll records and his checks from the university. He opened the account with a $50 deposit, apparently so he would have a way to negotiate his payroll checks readily and possibly to have his banking business appear consistent with his payroll record for tax reasons.
Mr. Lewis attempted to work for the University of Miami on a full time basis from some time in January or February 1974 until some time in April 1974. His increasingly acute alcoholism prevented him from continuing after this time, however, and he was forced to resign. Some time during this period of time he sought medical attention at the Miami veterans Administration Hospital for the old problem of chronic pain in his left shoulder. He was registered at the VA Hospital under the name James Claire Lewis, with Social Security number 106-06- 4060. Some time in approximately April 1974, he checked himself into the Live Oak Nursing Home for treatment of his alcoholism, registering without the middle initial "C" but using the same Social Security number. Some few days later on May 2, 1974, he either "signed himself out" of the treatment center or convinced its staff to release him temporarily, because he obtained permission from his friend, Hal Jones, who was being treated at the center at the same time, to use his apartment. Four days later he was found dead in the apartment with no identification on his person or in the vicinity. Mr. Jones and the other friend of Mr. Lewis, who shared the apartment with Jones, identified the decedent for police.
When the Dade County Medical Examiner began investigating Mr. Lewis' identity and next of kin, he called the Veterans Administration Hospital and discovered that Mr. Lewis had been treated there under the name James Claire Lewis, but with the same Social Security number he had given the Live Oak Nursing Home. This was how the next of kin, including the decedent's sister, Ruth Karns, and the Petitioner were discovered.
His few friends and employer, Mr. Cyr, had only known him as simply James Lewis. Insofar as known records of his life in Florida after his divorce
are concerned, only the university and the Veterans Administration Hospital were ever given his full name, likely for purposes of establishing consistency with his earlier Internal Revenue Service and Veterans Administration records.
Thus, it has been established that James Claire Lewis, the Petitioner's father and the decedent herein, seldom used his middle name or initial and, in fact, had such an aversion to it that his friends were unaware of it and he did not even reveal it to his wife until the eve of their marriage. It has been demonstrated by his former wife's testimony and a letter to his son dated February 7, 1972, in evidence, that he worked for many years as a purser on merchant ships and indeed was attempting to return to that vocation and life- style as of the time he wrote that letter to his son. That letter also corroborates his former wife's testimony regarding his reputation as a "big spender," which testimony also establishes his habit of carrying large amounts of cash and reserving substantial portions of his salary in cash for purchases of necessities and luxuries for himself and his family, with the family bank account only being used for paying household expenses and bills. The decedent was a habitual gambler with quite a measure of success according to his former wife, and he obtained extra cash by this means as well. The cash in the safe deposit box bore evidence that it came in part from race tracks. His life-style during the time he worked on ships, as well as when he made trips to Florida on behalf of his employer, a California aerospace parts manufacturer, and again after he returned to Florida following his divorce, was to live with friends or acquaintances, leaving no record of addresses maintained in his own name. He often spoke to his employer, Mr. Cyr, of spending time in Jacksonville and often called his sister and former wife from that location. Additionally, the decedent informed Mr. Cyr on a number of occasions that he had "set aside something for his son" and had told Petitioner that as well. Finally, it should be pointed out that the bank where the safe deposit box and funds was maintained is proximate to the decedent's work places and usual haunts, both at the time he frequented the Miami area when serving in the merchant marine in the 1940s and '50s and the time after 1971 when he was living and working in Miami.
The above factors based upon circumstantial and direct evidence of record, admitted without objection and stipulated to, establish a sufficient nexus between the circumstances and locations under which the safe deposit box account was established and maintained under the name James Lewis and the domiciliary area, places and types of employment and all the other above- described elements of the life-style of James C. Lewis, the decedent and Petitioner's father, as to raise an inference that it was indeed his safe deposit box account. This inference was corroborated and borne out in turn by the testimony (by affidavit and letter stipulated into evidence) of Ruth Karns, his sister, and the Petitioner, his son, to the effect that the signature on the safe deposit box rental ledger card is indeed that of the Petitioner's father, James C. Lewis, as well as by the direct testimony to that effect by Vickie Anne Jamison, the former wife of James C. Lewis.
Having observed the candor and demeanor of Ms. Jamison, including her obviously sincere emotional distress caused by observing and identifying her former husband's signature on the safe deposit box ledger rental card and the recollection of their marriage and family life together, which was destroyed by his alcoholism, the Hearing Officer is constrained to accord her unequivocal testimony that her former husband, the Petitioner's father, signed the safe deposit box rental ledger card preponderant weight and credibility.
Accordingly, it has been established that the Petitioner's father, James C. Lewis, also known as James Claire Lewis, was the James Lewis who signed the subject safe deposit box rental ledger card and was the holder of the safe deposit box and owner of the disputed funds therein.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes, and Section 717.22, Florida Statutes.
Section 717.03, Florida Statutes, provides that the following property held or owing by a banking or financial organization is presumed abandoned property:
(4) Any funds or other personal property, tangible or intangible, removed from a safe deposit box, or agency or
collateral deposit box, in this state on which the lease or rental period has expired due to nonpayment of rental charges or other reason, or any surplus amounts arising from the sale thereof pursuant to law, that have been unclaimed by the owner for more than seven years from the date on which the lease or rental period expired."
It is then provided at Section 717.12 that every person holding funds or other property presumed abandoned under Chapter 717 shall annually report to the Department of Banking and Finance with respect to that property concerning the description of the property, the last known address of the owner and to show due diligence in attempting to ascertain the whereabouts and identity of the owner so as to prevent the presumption of abandonment from taking effect. It is then provided at Section 717.14, Florida Statutes, that after a certain period of time has elapsed the property shall be transferred to the Department if the rightful owner has not been located through the efforts of the holder, in this case a bank.
Once the abandoned property is transferred to the custody of the Department of Banking and Finance, Section 717.195 dictates that the property shall be administered by the Division of Finance of the Department of Banking and Finance. It is then provided at Sections 717.20-22 that persons may claim an interest in the property and that the Department shall determine the validity of any claim filed under those provisions, but that any person aggrieved by a decision of the Department or as to whose claim the Department has failed to act within 90 days after its filing may petition for a Chapter 120 proceeding to attempt to establish his claim. This is the means by which this action came before the Hearing Officer.
The preponderant weight of the evidence establishes, as shown by the above Findings of Fact, that James Lewis, the depositor of the funds in question in the safe deposit box, was the same person as James C. Lewis, the deceased father of the Petitioner herein. In this regard, the evidence adduced by the Petitioner was not refuted by the Respondent. The two exhibits admitted into evidence by Respondent, consisting of the driver license "printout" record and the reports of the handwriting experts were not conclusive. There is simply no
competent, substantial evidence to rebut the circumstantial and direct evidence and testimony adduced by the Petitioner, which establishes that James C. Lewis, the Petitioner's father, and James Lewis, the depositor of the funds in the safe deposit box at issue, were the same person. Moreover, the Respondent stipulated at the conclusion of the hearing, that Petitioner's claim had been established and that the James Lewis who owned the disputed safe deposit box account and funds was Petitioner's deceased father.
In this connection, after the hearing the Respondent changed counsel once again, after having had three previous attorneys represent the Department's interests in this matter. The counsel for the Department who assumed representation of the Respondent, post-hearing, filed a Motion for Extension of Time to file his Proposed Recommended Order, which was granted as requested and then filed a Motion to Reopen the Proceedings and to conduct further discovery, with various supplements to the motion and responses thereto, together with motions to strike, being filed through February 26, 1987. The Motion to Reopen the Proceedings is DENIED for the reasons found below.
The Respondent, in its Motion to Reopen the Hearing (or record), in essence complains that there was insufficient evidence adduced by Petitioner to prove its claim and that the evidence adduced is of suspect credibility and reliability.
Additionally, the Respondent asserts that evidence discovered since the formal hearing in this matter would disprove the claim of the Petitioner. Finally, the Respondent asserts that it was the victim of mistake, inadvertence, surprise or excusable neglect during the course of the hearing by its then counsel and that the Petitioner, Petitioner's counsel and witness, Leo M. Young, Sr., have sought to perpetrate a fraud on these proceedings. The Respondent contends that its own attorney acted contrary to the Department's instructions and compromised the Respondent's position by stipulating without authority to evidence proving the Petitioner's claim.
Concerning the element of surprise, relied on in part by the Respondent as a basis for its motion for rehearing or to reopen the proceeding, it is observed that this ground is rarely accepted as the basis to grant a new trial or rehearing because it can be so easily used as a cover for careless preparation. See Rule 1.530, Florida Rules of Civil Procedure, Vining vs. American Bakeries Company, 163 So. 396 (1935) Reh. den. 163 So. 519; Dade National Bank of Miami vs. Kay, 131 So.2d 24 (3rd Fla. DCA 1961), cert. den. 135 So.2d 746; King vs. Harrington, 411 So.2d 912 (2nd DCA 1982); and Trawick's Florida Practice and Procedure, 1986 edition, Section 26-1, page 371. Indeed, much of the surprise claimed by the Respondent herein might have been alleviated by careful preparation. The record reflects that counsel representing Respondent at the hearing was the third attorney of record representing the Respondent's interests in this matter and the record reflects a dearth of discovery by any of Respondent's counsel whereby the Respondent might have learned the identity of the witnesses to be presented by Petitioner and the subject matter concerning which they would testify. Had the Respondent and its three various attorneys representing it up through the trial elected, prior to hearing, to take the adversarial stance that it apparently elected to take post hearing, it doubtless would have seen fit to avail itself of its discovery rights and learn more of the gravamen of the Petitioner's case. Its failure to do so prior to trial, however, obviates any legitimate basis it might have to now claim surprise as a basis for reopening this proceeding and the record thereof. See Standard Accident Insurance Company vs. Hancock, 124 Fla. 725, 169 So. 617 (1936).
The case of Florida Department of Transportation vs. J.W.C., Inc., 396 So.2d 778 (Fla. 1st DCA 1981), speaks to the question of the propriety of reopening a hearing. In that case, upon receipt of the Hearing Officer's Recommended Order, the Department of Transportation, which was seeking a permit from the Department of Environmental Regulation, filed exceptions to the Recommended Order and also a "Motion to Consider New Information." It thereby requested permission to submit directly to the Secretary of the Department of Environmental Regulation new information consisting of a graph and affidavit of an expert witness who had testified in the administrative hearing. The motion for permission to introduce the graph and the additional expert evidence was denied. The Court found therein that there was no provision in the statutes or rules of procedure involved (Chapter 120, Florida Statutes, and Chapter 28-5, Florida Administrative Code), which authorized reopening of a hearing. The Court stated:
"Neither this statute nor the model rules of procedure suggest the procedure urged by DOT of allowing the agency to receive additional or cumulative evidence on matters as to which evidence has already been received and evaluated by the Hearing Officer.
Furthermore, this Court has indicated, albeit indirectly, that this may not be done. (MacDonald vs. Department of Banking and Finance, 346 So.2d (Fla. 1st DCA 1977) at page 586, (cited in the Court's footnote 11).) If one side were
permitted to introduce additional evidence as suggested by DOT, then the other side will necessarily have to be given the same privilege and each side would of necessity have to be given the right of confrontation and cross-examination of the additional witnesses and possibly rebuttal. We do not envision the Administrative
Procedures Act as permitting such a never- ending process"
The Court went on to hold that, "substantial authority holds that there is no abuse of discretion in denying a rehearing (or remand) sought for the purpose of introducing evidence that could, in the exercise of due diligence, have been offered at the original hearing. 2 Am.Jur.2d Administrative Law, Section 537; Bowman Transportation, Inc. vs. Arkansas Best Freight System, 419 U.S. 281, 95 Sup.Ct. 438, 42 L.Ed.2d 447 (1974).
In the case of Henderson Signs vs. Florida Department of Transportation, 397 So.2d 769 (Fla. 1st DCA 1981), the Court cited with approval the above-quoted language from J.W.C. Company, supra, in determining that there is no right to a rehearing or to a remand to consider additional or cumulative evidence on matters as to which evidence has already been received and evaluated by a Hearing Officer. The Court also cited with approval the language of the Hearing Officer in his Recommended Order in that case wherein he stated:
"It is as inherent in the administrative pro- cess as it is in the judicial process that eventually proceedings must come to an end.
It works a substantial and unfair hardship on a Respondent to permit the agency by trial
and error to perfect piece meal its case against a Respondent. It is a denial of due process for the agency to proceed in such a manner."
These cases are directly applicable to the case at bar, the only difference being that the instant case is the subject of a Motion to Reopen the Hearing before the rendition of the Recommended Order and the cited cases concerned motions to reopen or for rehearing after a Recommended Order had been submitted. Nevertheless, the critical juncture in the cited cases was not whether or not the Recommended Orders had been submitted, but rather that the hearing had already been completed and the opportunity had been fairly afforded to all parties, as it has in the instant case, to develop their positions and their theories and to secure and adduce evidence in support thereof. It is likewise worth mentioning in passing that Section 120.57(1)(b)4-9 contains no statutory right to a rehearing or reopening of the evidence or reconsideration thereof. That provision lists the rights to present evidence and argument, to conduct cross examination, submit rebuttal evidence, to submit proposed findings of fact and orders and to file exceptions to any order or Hearing Officer's Recommended Order. There is no statutory right, then, to reopen a hearing or the evidence either before or after the entry of a Recommended Order. There is no statutorily granted authority to reopen the evidence at any time following completion of the hearing itself.
There remains then the question of a discretionary right to a rehearing or the reopening of a record, which was implicitly envisioned in the
J.W.C. opinion where it discussed the absence of an abuse of such discretion when a rehearing is denied, when it is merely sought for the purpose of introducing evidence that could, in the exercise of due diligence, have been offered at the original hearing. The other basis commonly allowed by the decisional law as justification for reopening of a hearing, that of surprise, has been dealt with above. The issue of newly discovered evidence will now be analyzed.
In order to allow a rehearing or reopening of the record under Rules
1.530 or Rule 1.540 of the Florida Rules of Civil Procedure, also relied upon by the Respondent, assuming arguendo that those rules apply to this proceeding, the newly discovered evidence must be discovered after the trial and must be of such a nature as to probably change the result if a new hearing or reopening of the evidence were granted. The evidence also must be of such a nature and circumstance that it could not have been discovered prior to trial by the exercise of due diligence. It must be material and not merely cumulative. It may not be merely evidence by which the movant seeks to impeach testimony offered by the adverse party at trial. Further, it is consistently held that new trials or hearings based upon newly discovered evidence are not favored in the law. If that were the case, looseness in practice and encouragement of careless preparation for trial would result. The cases hold that such a ground for reopening the evidence or granting a new hearing should be used with caution and only on the strongest possible showing. See Vining vs. American Bakeries Company, supra.; Dade National Bank of Miami vs. Kay, supra.; King vs. Harrington, supra.; and Drew vs. Chambers, 133 So.2d 589 (Fla. 1st DCA 1961).
In Drew vs. Chambers, cited above, it was alleged that the verdict against the appellant therein was derived from perjured testimony introduced by the appellee at trial. In affirming the denial of a new trial the First District Court of Appeal stated in relation to one of the perjury issues:
"All the evidence on which the appellant now relies to show perjury was available to him prior to the trial of this cause. All such evidence could have been employed during the trial to discredit defendant's testimony if plaintiff had seen fit to use it. No just cause or excuse is shown by this record for plaintiff's failure to discover this evidence and utilize it at the proper time.
See also Mahan vs. Parliament Insurance Company, 382 So.2d 402, at 405 (4th DCA 1980); Cf. Louisville and Nashville Railroad Company vs. Hickman, 445 So.2d 1023, (1st DCA 1983).
Likewise, in the instant case, no just cause has been shown to account for the Respondent's failure to discover any other evidence it now feels might be supportive of its position, in opposition to the Petitioner's claim. The Respondent has failed to show that the evidence it supposedly has now unearthed could not have been obtained before the trial herein by the exercise of due diligence, especially if the Respondent had exercised its rights to conduct discovery during the period of more than four months during which the cause was pending before the Hearing Officer and during which one hearing was set and continued by agreement of the parties. Ample time was available to conduct discovery, which should have disclosed the evidence which Respondent now seeks to offer. The Respondent has simply shown no cogent reason for any inability to produce such evidence in time for the hearing herein. "It is the movant's burden to establish the exercise of due diligence." King vs. Harrington, supra.
Moreover, the evidence, while it may be material, has not been shown to be other than merely cumulative and of an impeaching nature. The gravamen of the Respondent's motion, and supplements thereto, in which the nature of the evidence and testimony it seeks to offer is revealed, is that it would impeach that offered by the Petitioner at hearing. Moreover, the evidence, especially that concerning the additional exemplars of the decedent James C. Lewis' signature, would largely be cumulative. Such "newly discovered evidence" is not sufficient to justify reopening a proceeding such as this, even if the requirement of due diligence has been met, which it has not, Drew vs. Chambers, supra. The Respondent and its various counsel simply did not timely exercise discovery rights and otherwise seek to ascertain the basis for the Petitioner's claim nor to discover and prepare evidence to countervail it. This may have been because, as Mr. Sprenkle indicated at hearing, the Department at that time was assuming a relatively non-adversarial role in merely attempting to "arrive at the truth." Unfortunately, the Department did so at its peril. Its dissatisfaction with the performance of the role of its counsel at hearing cannot be the basis for a reopening of that hearing. A dispute concerning counsel's representation of the Respondent, his client, is a matter between those two parties and cannot be a justification for altering the due process and progress of this proceeding.
In any event, the allegations in the Respondent's Motion and the various supplements thereto, at best, proffer cumulative evidence designed to impeach the evidence adduced by the Petitioner, none of which "new" evidence was shown to have been undiscoverable prior to the hearing in this cause.
Concerning the allegations of fraud and the like against the Petitioner's chief
witness, Mr. Young, and Petitioner's counsel, the factual allegations with regard thereto are insufficient, even if taken to be true, to make out a case of fraudulent or collusive conduct. In short, no legitimate basis whatever has been demonstrated by the Respondent for reopening this proceeding and the motion is DENIED.
It should also be pointed out that the Respondent has filed the above pleadings in the face of stipulations to the effect of the Petitioner's evidence entered into by Petitioner and Respondent's counsel at the conclusion of the hearing. The Respondent had a full opportunity to investigate and prepare to defend against the Petitioner's case prior to the formal hearing herein and the Respondent chose, through its counsel at hearing (and possibly in concert with its prior two attorneys), to only offer the two exhibits in defense of the claim. In that regard, the stipulation merely confirms the effect of the Petitioner's evidence, which was unopposed in any event. The Respondent, after the hearing, sought to recede from the stipulation entered into by its prior counsel, relying on the case of Dixie Operating Company vs. Exxon Company, 11 FLW 1844 (Fla. 1st DCA 1986), to avoid the binding effect of the stipulation. That case differs from the case at bar in that that case was based upon the concept of "settlement" of a law suit. In the case at bar there was no settlement, rather there was an open court stipulation on the record as to the validity, weight and effect of Petitioner's evidence, as establishing the Petitioner's claim to the funds at issue. In the case of Montgomery vs. Cribb,
11 FLW 2167 (Fla. 2nd DCA 1986), a similar factual situation to that in the Dixie Operating Company case supra, the Court concluded that a settlement agreed to by counsel was conclusive and that a client's remedy, if any, lay against the client's attorney.
The Petitioner, in demonstrating the binding effect of this stipulation, cites Curr vs. Helene Transportation Company, 287 So.2d 695 (Fla. 3rd DCA 1974). In that case, the Court was concerned with an admission by a defense counsel of liability of all defendants named in an action for injuries resulting from an auto accident. The trial court set aside the judgement later against two of the defendants based upon a showing that they had no ownership interest in the vehicle involved. The appellate court reversed the trial court with instructions to reinstate the judgement against all defendants stating that, "We hold that the sanctity of the admission at the time of trial must be preserved." So to in the case of Lopez vs. The Dublin Company, 11 FLW 1198 (Fla. 3rd DCA 1986), a pretrial stipulation was entered into providing that the defendant would be bound by testimony of the plaintiff and his witnesses concerning liability issues and would not offer witnesses or evidence to contest the plaintiff's version of the manner in which an accident occurred.
The defendant was motivated to agree to that stipulation because it lacked information to respond to the plaintiff's discovery. At the trial, however, the defendant was permitted to impeach the plaintiff's testimony and attack his credibility by demonstrating apparent inconsistencies between his testimony and his prior discovery deposition. In reversing the trial court's ruling, the Third District Court of Appeals concluded that it makes no difference whether a case is tried on stipulated facts or whether a party, in lieu of stipulating to specific facts, agrees to be bound by facts which the opposing party will give at trial. In either case, according to the Court, the parties as well as the Courts, are bound by that stipulation. A review of the Stipulations of Fact in the case at bar by Respondent's counsel, Mr. Sprenkle, as they appear on page 87, 92 and 98 of the transcript, demonstrates their conclusiveness.
In keeping with the above decisional authority, there is now no room for a construction of that stipulation such that the evidence submitted is "subject to question for trustworthiness." This proposition is clearly true in instances where the stipulation precedes the trial of the case, as is demonstrated by the above-cited cases. It is doubly true in the case at bar where the stipulation follows presentation of the Petitioner's evidence. Here the evidence was presented in open court with a full opportunity by the Respondent to offer evidence of its own, to contest the documentary evidence, testimony and credibility of witnesses proffered by the Petitioner, as well as to cross examine them. Respondent, through its attorney, instead chose to stipulate to the truth and binding effect of the Petitioner's evidence as establishing conclusively the claim to the funds in question, a significant additional reason why a Motion to Reopen these Proceedings cannot lie.
Finally, on authority of Hollywood, Inc. vs. Clark, 15 So.2d 175 (Fla. 1943), and its numerous progeny, it is well established that motions for a rehearing or for reopening the proceeding do not serve to stay the proceedings pending before the Court or the Hearing Officer, as the case may be. In the instant proceeding the Respondent and Respondent's present counsel, subsequent to the hearing, moved for an extension of time to file its proposed recommended order. Shortly before that extended period of time expired, the subject Motion to Reopen the Proceedings was filed and subsequently thereto the various supplements to the motion. The Respondent thus had ample time to file its Proposed Recommended Order and failed to do so. It had the opportunity to file its Proposed Recommended Order which opportunity did not preclude it from also filing its Motion to Reopen the Proceedings. By its failure to timely file the Proposed Recommended Order, the Respondent has waived the right to file it inasmuch as the Motion to Reopen the Proceedings, under the above authority, cannot serve to stay the proceedings so that the time for filing the Proposed Recommended Order was tolled. The time, therefore, having elapsed, a Proposed Recommended Order cannot be accepted. The Motions for Oral Argument and for Continuance are DENIED, in light of the above result and for the further reason that the Motion for Continuance was not filed in accordance with Rule 22I-6.16, Florida Administrative Code.
In summary, there was no evidence adduced at the hearing to refute the direct testimony of Vickie Anne Jamison or the stipulated affidavits and accompanying handwritten letter of Ruth Karns, the decedent's sister, and the Petitioner to the effect that the handwritten signature of James Lewis on the deposit box rental record was that of the witness's and affiants' former husband, brother and father, James C. Lewis. Instead, the Respondent, through its attorney, stipulated to the validity and effect of the evidence adduced, including the other circumstantial evidence linking the identity of James Lewis, the holder of the safe deposit box, with James C. Lewis, the Petitioner's father. This establishes conclusively the claim of Petitioner to the funds in question.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor add demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore
RECOMMENDED that a Final Order be entered approving the claim of the Petitioner to the approximate sum of $223,767.20 held by Respondent in its account number 2223-1983-0219.
DONE and ORDERED this 13th day of May, 1987, in Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1987.
COPIES FURNISHED:
Robert W. Breslin, Esquire Suite 402-A
11151 - 66 Street, North
Largo, Florida 33543
Robert L. Shevin, Esquire SPARBER, SHEVIN, SHAPO,
HEILBRONNER & BOOK, P.A.
30th Floor, AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131
Miles J. Gopman, Esquire Senior Attorney
Office of the Comptroller 1302 The Capitol
Tallahassee, Florida 32399-0350
Honorable Gerald Lewis, Comptroller Department of Banking and Finance The Capitol
Tallahassee, Florida 32399-0305
Charles Stutts, Esquire General Counsel
Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32399-0305
| Issue Date | Proceedings |
|---|---|
| May 13, 1987 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 02, 1987 | Agency Final Order | |
| May 13, 1987 | Recommended Order | Petitioner's dead father was owner of safe deposit account and sum of cash therein. Agency counsel stipulated to effect of petitioner's evidence.Can't later reopen case to show contradict. |
