|RULINGS OF INCOMPETENT ARBITRATOR COSTS HOA THOUSANDS OF DOLLARS -- AND IGNORES THE WILL OF THE MAJORITY OF OWNERS|
By Jan Bergemann,
In the 14 years I am dealing with HOA and Condo issues I have seen many incompetent Division arbitrators ignoring existing laws and/or inventing laws that never existed. But arbitrator Leah A. Simms really deserves to be crowned as the Queen of Incompetence.
In the case of Coco Wood Lakes Association, Inc. vs. Homeowners Voting for Recall she made one mistake after the other, obviously caused by the fact that she never fully reads the pleadings. And when the representative for the owners voting for recall, Terry Whitlock, reminded Simms in filings that she was totally wrong and that she ignored long-standing case law, she threatened to revoke his standing as the qualified representative for the owners. An absolutely disingenuous attempt to cover up her incompetence.
When the HOA Task Force (2003/2004) discussed adding the recall provisions from FS 718 into FS 720.303(10) -- I was a member of that Task Force -- we clearly decided that recall arbitration should be rather informal -- even allowing non-attorneys to represent the parties. Recalls were supposed to be a low-cost tool to allow a majority of homeowners to remove unwanted board members.
The case started on November 25, 2013 (5 months!!!), when the association law firm Katzman Garfinkel Berger (KGB -- now only KG) was served with a more than sufficient number of recall petitions -- recalling the seven members of the sitting board. On December 6, 2013 KGB filed the necessary papers to start the recall arbitration, required by law if the board fails to certify the recall.
This homeowners' association uses staggered terms, meaning that three (3) of these seven members were up for election in 2014, while the other four (4) were not effected by the next annual election. Pleadings filed by the owners' representative made this very clear. But instead of ruling on the recall case for these four board members, Simms found all kinds of irrelevant excuses to postpone making a final ruling. Personally I even doubt that she understood the facts. Various case law shows that there is absolutely no argument that would stop the recall case for minimum these four board members from going forward.
Make no mistake: The whole hoopla regarding the required annual meeting with election wouldn't have taken place if arbitrator Simms would have ruled accordingly. Instead Simms allowed the sitting board to create all kinds of shenanigans trying to avoid the inevitable, including a postponed election caused by obvious procedural mistakes and finally the resignation of two of these four board members, trying to convince that this actions would make the recall for these two board members moot. Honestly I have barely ever seen such incompetence by an arbitrator.
Now, nearly five month after the recall petitions were originally served, there is still total chaos in Coco Wood LakesAssociation -- courtesy of arbitrator Simms.
Simms clearly makes a mockery out of the legislative intent to create a simple tool to remove unwanted board members when the elections are still far away. And reading through the rulings she made in this case over the last few months it seems to me that she complicates these normally simple procedures even more -- at the expense of the homeowners of Coco Wood Lakes -- no matter which side they are on.
Honestly, with arbitrators like Simms we really shouldn't wonder why Florida's HOA system is such a mess!