UNPROFESSIONAL PROFESSIONALS?

Or just plainly incompetent?

An Opinion By Jan Bergemann 
President, Cyber Citizens For Justice, Inc. 

Published September 19, 2007 

We know that many of the board members have never tried to read the Florida Statutes governing their associations -- it's only too obvious. We hear often enough from board members that they are not interested in following these statutes -- since they are making their own rules.

But then you hope there are minimum the so-called professionals who should point these misguided people in the right direction. Guess again!

For quite a while owners in the DRAYTON PLACE OWNERS ASSOCIATION, INC. in Jacksonville have complained about a dictatorial -- even abusive -- board, backed by the husband of one of the board members, board secretary Denise Nicholas.  Her husband is an attorney in good standing with the Florida BAR: 

Daniel A. Nicholas from the well-known law firm of Broad & Cassel.

Because of the many problems in the association, owners waited all June and most of July for the announcement of the annual meeting with election to vote in a more knowledgeable -- and less dictatorial -- board.  When this didn't happen and board members circulated e-mails such as this one from Board President Sandy Taylor, dated June 23, 2007: "We have to have an annual meeting within the calendar year (2007).  We have been unable to schedule it as yet.  We have been unable to reach a date to have the required quorum present.  With Denise being unable to travel, and several of us are traveling due to work issues, we have not scheduled it as yet, but we have several months to do so.  As for officers, I am unsure if anyone will be leaving the BOD for any elections to be held," owners were unwilling to wait any longer and served the board with the recall petition that was already being prepared.

No matter how good or bad the recall petition was, the board clearly failed to follow procedures. Nothing new, but in this case the board was advised by the association attorney who was present by phone during the "first" recall meeting and came up with some real "dubious" interpretations. Just read the MINUTES OF THE RECALL MEETING and the PETITION FOR RECALL DISPUTE ARBITRATION, filed by attorney Dan Nicholas. It just speaks for itself -- doesn't need any more comments. 

Add the motions Dan Nicholas filed and you might wonder if he ever read the Florida Statutes ( FS 720.303(10) ) or the HOA RECALL PROCEDURE GUIDELINES published by the DBPR.

Attorney Nicholas filed 5 (five) motions:

1.) MOTION TO DISMISS RECALL FOR IMPROPER SERVICE OF PROCESS

2.) MOTION TO CONDUCT DISCOVERY

3.) MOTION TO DISQUALIFY

4.) MOTION FOR DEFAULT

5.) MOTION FOR ATTORNEY'S FEES AND COSTS

 

All motions were denied by the arbitrator. Please see: 

ORDER ON PENDING MOTIONS AND REQUIRING SUPPLEMENTAL FILING

If attorney Nicholas had done a little research, he would have saved himself the effort to file these motions in the first place and the association would have saved a lot of money. There is sufficient recall arbitration case law to know that these motions wouldn't fly! Trying to disqualify the homeowners' representative with wild accusations of being a threat to directors, being violent and not being "qualified to objectively represent the residents to protect their interest" has absolutely no place in recall proceedings.

 

How about an attorney who claims to represent the interests of the association in recall arbitration where his wife is one of the recalled board members? How about that for CONFLICT OF INTEREST?

And when you look at the initial ballots and recall filings, you can see that homeowners' representative William Davis surely did his homework, even if he is not an attorney, while the attorney delivered some paperwork that I consider unprofessional. But then Nicholas argues the competency of the homeowners' representative.

Character assassination is not a way to deal with issues -- and that is exactly what Nicholas' MOTION TO DISQUALIFY is. Considering the circumstances, I would strongly suggest that Nicholas should disqualify himself for conflict of interest!

It is remarkable that attorney Nicholas threatens the homeowners' representative Bill Davis and the owners who signed the recall with high legal fees if they go forward with the recall. E-mail from Dan Nicholas to Bill Davis dated August 11, 2007(quote): "However, any and all such proceedings necessitated by the defects will result in the incurment of significant legal fees and costs for which the DPHOA will seek recovery against you as the designated representative for ultimate taxation against the signatories."

As an attorney, Nicholas should know that there will be no award for legal fees to the prevailing party, as has been established in different recall arbitration rulings, such as: PLANTER'S WALK HOMEOWNERS' ASSOCIATION, INC. v. Homeowners Voting For Recall

What is it? Scare tactics or incompetence?

 

As soon as Nicholas realized that all his "excuses" for not certifying the recall wouldn't fly, he pulled another rabbit out of the hat! Announcement of upcoming election -- knowing that an election will make the recall moot. It's obvious that without the recall ballots being served, there would not have been an election announcement.

In my opinion it's obvious what game is being played here. This game is being played in this association -- like in many others -- much too long. We homeowners just can't afford that these games are being played in our associations at our expense. Private agendas and board members that profit (or the husbands like in this case) would be a clear conflict of interest and a breach of fiduciary duty. 

Even the most ethical attorney surely would have a problem representing the interests of the association and its membership, if the wife is a board member and is being recalled by the majority of the homeowners -- for obvious reasons!

Homeowners wanting to represent their neighbors are supposed to fill out a form called "QUALIFIED REPRESENTATIVE APPLICATION."  Maybe there should be as well a form for attorneys requiring them to sign a form that they have "minimum" read the recall provisions in the Florida Statutes and the guidelines published by the DBPR!

It might prevent future filings and motions like we have seen in the recall arbitration case of the Drayton Place Owners' Association.


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