DISPUTE OVER RECALL OF DIRECTORS --
IN A MARION COUNTY CIRCUIT COURT?
Opinion By Jan Bergemann
Published June 26, 2012
I have to admit, I was pretty proud when Governor Jeb Bush signed SENATE BILL 1184 into law in 2004. This bill, written and sponsored by the HOA TASK FORCE, created many owner-friendly provisions in FS 720 -- among them the recall of directors provisions in FS 720.303(10). Not only did it create clear provisions, explaining in detail how recalls should be conducted and how recall disputes should be litigated, it created as well mandatory binding arbitration for recall disputes. The language was taken directly from the Condo Act -- FS 718.112(2)(j), making the provisions easy to use, since lots of case law was available from condo arbitration. Further guidelines were created by establishing Florida Administrative Code 61B-81 [Substantive Rules for Recalls in Homeowners’ Associations].
During the meetings of the HOA TASK FORCE we discussed at length a very costly court case of SOUTHCHASE PARCEL 45, which ended in a MALPRACTICE LAWSUIT against the law firm of Wean & Malchow P.A. In order to avoid such costly messes, recall disputes were put under the jurisdiction of the Department of Business and Professional Regulation -- see FS 720.303(10)(d): ... file with the department a petition for binding arbitration pursuant to the applicable procedures in ss. 718.112(2)(j) and 718.1255 and the rules adopted thereunder.
Both chapters -- FS 720.303(10) and FS 720.311(1) -- clearly demand that any recall disputes in HOAs have to be filed with the DBPR -- not with a local court.
worked well for many years, until I was aware of a court proceeding filed in the Circuit Court Fifth Judicial Circuit in and for Marion County, Florida.
It was bad enough that attorney R. Gregg Jerald from the law firm Landt, Wiechens, LaPeer, Ayres & Jerald LLP in Ocala filed a HOA recall dispute in Circuit Court, clearly circumventing FS 720.303(10), but it was even worse that Circuit Court Judge Frances S. King assumed jurisdiction and allowed this lawsuit to be accepted in her court, despite being advised that she had no jurisdiction according to Florida statutes.
looking at the documents provided in the case, I understand why attorney
Jerald didn't file with the Division Arbitration Section. His so-called
recall would have never been certified by any halfway knowledgeable
arbitrator. There never was a real recall and much less any valid
certification of a recall, as required. Jerald obviously hoped that a
circuit judge, not familiar with recall arbitration cases, would fall for
his lengthy explanations. Never forget, he claimed that he represents the
HEATH BROOK HILLS OWNERS' ASSOCIATION, INC., but sued the board members
that were never really recalled. Nobody ever certified this so-called
recall. In reality Jerald sued his own clients, the owners who are still
the board members until a recall would actually be certified. If Jerald
considered the attempt of his actual clients a certifiable
"recall," he must have never read FS 720.303(10) or FAC 61B-81.
reading the available court documents, I wrote a
polite letter to Judge Frances S. King, asking for an explanation why she
assumed jurisdiction over a recall dispute [LETTER
TO JUDGE KING REQUESTING EXPLANATION (06-09-2012)]. I
thought I might have missed special circumstances in the case that the
judge might have considered.
First, I am clearly not a party to these proceedings, meaning my letter definitely is not an improper ex parte communication that the Judge is not permitted to review. Second, since I am not a party to these proceedings, how can I file a "request in form of a motion and filed with the Clerk of Court with copies to opposing party/counsel"?
But this sentence in the letter surely got my attention: "The Code of Judicial Conduct prohibits a Judge from considering an ex parte communication and also prohibits the Court from giving legal advice to a litigant." Gee, now I'm suddenly a litigant?
Not sure what I should call this letter? Another sign of total incompetence?
I am really not sure what to make out of this case. In my opinion everything that could have been done wrong was done wrong.
The HOA TASK FORCE tried to avoid costly litigation in recall procedures. That's why we opted for mandatory binding arbitration by arbitrators who deal with these cases on a daily basis. But the best laws don't help if judges and attorneys ignore the laws and make up their own rules, ignoring Florida statutes. The task force members tried to avoid burdening homeowners with high litigation costs. In this case a judge and an attorney did exactly what the HOA Task Force tried to prevent: Giving a court of law jurisdiction over a HOA recall case. In my opinion this case is judicial misconduct at the expense of homeowners.