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Another Unjust Homeowner Binding Arbitration Decision
Tuesday, 27 April 2010

Claims and counterclaims mar her dream house
"At every single level, not one person has done the right thing," Soccolich said. But Soccolich has no intention of retreating to New Jersey quietly.  She recently sent a letter to Judge Lee Haworth, who presides over the 12th Judicial Court, alleging that her arbitrator -- Sarasota attorney William G. Christopher -- prejudged her case in favor of the home builder and refused to let her attorney call a witness that was key to her counterclaim or review evidence showing the difference between the model home she thought she ordered and the house that was ultimately built..."The process of mandatory and binding arbitration may not give rise to fair and just dispute resolution," Hodges said. "The arbitrator's allegiances to the builder are overwhelming. He knows he will never see the owner again, but the builder might use his services many times."..."If he is so sure that this is the house I ordered, why wasn't he willing to sit down and prove it?" Soccolich said. "Why wasn't he willing to to show me why a 20-inch window would not fit in the house I ordered? Why wasn't he willing to explain that ours was the only house in the subdivision that did not have 10-foot ceilings?"

Claims and counterclaims mar her dream house
By Michael Braga
Monday, April 26, 2010
LAKEWOOD RANCH - All Mila Soccolich wanted was for her dream house to be built near her in-laws in Lakewood Ranch and for the chance to gradually relocate with her husband from Teaneck, N.J.But after three years of battling with her home builder, officials in Manatee County's building department, the independent engineer who inspected her house without her knowledge and the arbitrator chosen to hear her case, Soccolich realizes her dream will never come true.

      Mila Soccolich at her home in Lakewood Ranch.

Though she believes Bruce Williams Homes failed to build the house she was shown and contracted for, she has been unsuccessful in convincing the legal system that she was wronged.

"At every single level, not one person has done the right thing," Soccolich said.

But Soccolich has no intention of retreating to New Jersey quietly.

She recently sent a letter to Judge Lee Haworth, who presides over the 12th Judicial Court, alleging that her arbitrator -- Sarasota attorney William G. Christopher -- prejudged her case in favor of the home builder and refused to let her attorney call a witness that was key to her counterclaim or review evidence showing the difference between the model home she thought she ordered and the house that was ultimately built.

For their part, the people who Soccolich is targeting say they have been falsely accused.

"I don't like seeing anyone unhappy, and I'm sorry she still feels that way," said Britt Williams, chief executive of Bruce Williams Homes. "But she ordered a model and we built that model. We don't bait and switch."

Christopher, the arbitrator who presided over Soccolich's case, said the same thing in an interview with the Herald-Tribune and in court documents filed after hearing her case in July 2007.

"The contract was for a different model than what they looked at," Christopher said. "I cannot deal with this woman saying things about me that are not factual."

The real reason for Soccolich wanting to back out of her contract, Christopher said, is that the home builder refused to give her a $90,000 price reduction that it began offering to new customers a month before her house was finished -- an allegation that Soccolich and her husband deny.

Though Soccolich will never get what she wants, her tale is a cautionary one for those who are about to sign contracts with home builders. The moral of the story is that they should make absolutely sure they are buying what they think they are buying. Nothing should be taken for granted and everything should be put in writing.

Even then, the advantage may be the home builder's, said David Hodges, a private investigator with Fine Tooth Comb Investigations in Jacksonville, who Soccolich hired to help her with her case.

"The process of mandatory and binding arbitration may not give rise to fair and just dispute resolution," Hodges said. "The arbitrator's allegiances to the builder are overwhelming. He knows he will never see the owner again, but the builder might use his services many times."

The wrong house?

The way Soccolich tells it, she and her husband, Len, fell in love with a Bruce Williams' Silver Oaks model and believed they were sitting in that model in January 2006 when they ordered the same house to be built in the Greenbrook Ravines neighborhood.

When they later discovered the lot they chose would not accommodate a three-car garage, the Soccolichs asked for a larger lot in Greenbrook Preserve, agreeing to pay an extra $60,000, which brought their total cost to $600,000.

Soccolich, a sales representative in the fashion industry, admits she did not know much about home construction at the time. But several problems soon popped up that caused her to worry that the house was not being built according to expectations.

On one visit to Florida, she noticed that a door to the pool looked smaller than the same door in the model. After measuring, she pointed out the discrepancy to the sales director. Despite the fact the changes required re-permitting and significant structural adjustments, the supervisor thanked her for pointing out the blueprint error and immediately set out to make the necessary changes so that the pool door matched the one in the model.

On a second trip, Soccolich noticed the kitchen cabinets she ordered did not fit the space allotted and the builder had to tear out the back wall of the kitchen to make room for them.

Fearing there would be other problems before the house was finished, Soccolich talked to her lender at SunTrust, who recommended she put a hold on her final $142,000 draw to ensure that the builder delivered what she wanted.

During her final walk-through in December 2006, however, Soccolich discovered a more serious problem.

The transom window separating the den from the kitchen looked smaller than the one in the model. It measured 14 inches -- 6 inches shorter than the 20-inch window called for on the blueprints and installed in the model.

When questioned about this discrepancy, the building superintendent explained that he could not fit the 20-inch window because the ceiling height of the Soccolich house was 9.4 feet, compared with 10 feet in the model.

Soccolich and her husband asked how long it would take to fix the problem and the supervisor told them that it would require removing the roof and adding a row of concrete blocks to the shell, an enormously expensive and time-consuming proposition.

Seeing the couple's reaction, the supervisor suggested the Soccolichs drive to the company's headquarters in Bradenton and ask top executives whether making such extensive changes was possible. But when they arrived, Soccolich said Britt Williams and other executives refused to see her.

"If he is so sure that this is the house I ordered, why wasn't he willing to sit down and prove it?" Soccolich said. "Why wasn't he willing to to show me why a 20-inch window would not fit in the house I ordered? Why wasn't he willing to explain that ours was the only house in the subdivision that did not have 10-foot ceilings?"

The suit

A few weeks later, Williams filed suit against the Soccolichs, stating his company had delivered what they wanted and demanded she release the final $142,000 draw. The Soccolichs responded by countersuing and preparing for mandatory arbitration.

Their initial feeling was that there was no way they could lose, and their confidence only grew when they learned that Bruce Williams Homes had not followed the law when it hired an independent engineer to inspect the house and issue a certificate of occupancy.

At that time, Manatee County's building department was still overwhelmed by the number of homes that were coming to market. Instead of adding more inspectors, the county allowed home builders to hire their own.

Under state law as interpreted by Soccolich's lawyer, if a home builder uses an independent inspector, it has to make sure the buyers agree with the arrangement. But no one at Bruce Williams told the Soccolichs that it had hired Bradenton engineer James Kent Kimes to handle the inspection.

Soccolich said her attorney believed that oversight, combined with the fact that she did not get the house she ordered, would be grounds for breaking her contract and forcing Bruce Williams to rebuild. But that did not happen.

During the arbitration, which occurred in July 2007 in the dining room of the house in question, Soccolich said she was astounded by what took place.

She said that Christopher started the day by complementing the home builder's attorney, Crystal Golm, on her marriage and tanned appearance from her recent honeymoon and told her not to worry about the Soccolich's counterclaim -- allegations that both Christopher and Golm fervently deny.

But Soccolich and her husband insist they heard what they heard. How else would they have known about Golm's honeymoon? Soccolich said.

"My husband and I looked at each other when he said that," Soccolich said. "And to this day, I do not know why we stayed. I guess we still believed that based on the evidence, justice would be served."

But Christopher refused to walk over to the Bruce Williams model two blocks away or across the room to look at the transom window in order to get an idea how the Soccolich house was different from the model they thought they ordered.

Soccolich also claims that Christopher denied her attorney's request to let Kimes -- the independent inspector -- testify.

"Our counterclaim was based in part on the fact that the builder allowed Kimes to inspect the house without our knowledge or consent," Soccolich said. "Why wouldn't we have wanted him to testify?"

In his testimony at the hearing, Manatee County Building Director George Devenport said Kimes was the one who should be testifying.

Christopher, however, maintains that Soccolich and her attorney could have called anyone they wanted as a witness and that he denied them nothing.

"If I prevented Ms. Soccolich from putting on Mr. Kimes, that would be grounds for reversing my award," Christopher said in an e-mail to the Herald-Tribune. "Her attorney never appealed my award. I later learned that the claimant had Kimes standing by in an adjacent room but did not call him."

Christopher suggested that the Herald-Tribune call Soccolich's attorney, Arthur Weitzner, and ask him why Kimes was not called to testify.

Weitzner declined to comment.

As to his refusal to walk over to the builder's model, Christopher said he did not need to because both sides had agreed the model was different from the house built for the Soccolichs and the couple had initialed sketches proving they knew what they were getting.

The 14-inch transom window, Christopher said, was simply a blueprint error.

In a direct rebuttal to Soccolich's accusations, he said he did in fact walk across the room to look at the window during the arbitration, but he did not consider it enough of an error to void the contract.

Christopher also said that Soccolich's attorney was wrong about his reading of the law regarding getting consent from homeowners for independent inspections.

"The inspection that was done to their house was not one that required their signature," Christopher said.

"At the conclusion of the arbitration, I asked both sides if they had anything further to present, Christopher said. "They both said they did not. I then closed the proceeding. The Soccolichs never asked me to reopen the proceeding for the purpose of presenting additional testimony."

Questions about communication

Soccolich said she might have let things rest at that point if her attorney had not provided her with an e-mail sent by Christopher to opposing counsels the night before the arbitration.

In the e-mail, Christopher said the home builder's attorney did not have to be the first to present her case.

"The reason is that I do not want to waste our time having Crystal prove that if she is right, the Soccolichs are obligated to close and owe $142,171.50," Christopher wrote. "It seems to me that is uncontroverted."

To Soccolich, that paragraph is proof that Christopher had made up his mind the day before the arbitration.

But Christopher denies that he prejudged the case.

"In their pre-hearing memos, both sides agreed that the Soccolichs had signed the agreement and did not make the final payment under the contract," Christopher said in an e-mail to the Herald-Tribune.

An arbitrator's job, Christopher continued, is to speed up the process.

"That is what arbitration is all about -- flexibility and speed," Christopher wrote. "As you will see from my award, I did not disregard any of the Soccolichs' defenses."

After reading the e-mail, the Soccolichs hired a private investigator who specializes in construction disputes to help file complaints with the Florida Department of Business and Professional Regulations against Bruce Williams Homes and Kimes, the independent inspector.

The couple later learned that the lawyer hired by Kimes to oppose their complaint was Christopher. To the Soccolichs, that was a clear conflict of interest.

Under the Florida Bar's rules of professional conduct, a former judge or "third party neutral" cannot represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer unless all parties to the proceeding give informed consent, confirmed in writing.

Christopher said in an e-mail that he did not immediately realize the claim against Kimes had come from Soccolich.

"Soccolich's name was not used in the complaint and it took me some time to realize we were talking about the same house," Christopher wrote. "When I did, I fully disclosed to Kimes that I was the arbitrator in that case over six months ago. With that knowledge, he wanted me to represent him and I did."

Christopher said he had no responsibility to the Soccolichs in the matter because they were not parties to the complaint. The parties were Kimes and the Florida Board of Professional Engineers, he said.

Soccolich, however, provided documents showing that her name and address does appear on the complaint against Kimes and she insists that she and her husband were parties to that complaint.

"Mr. Christopher sat as an arbitrator in my house and then went on to defend Kimes," Soccolich said. "Why out of all the attorneys in the state would he be hired to defend Kimes?"

The Florida Board of Professional Engineers eventually cited Kimes for failure to detect obvious violations of the Florida Building Code in connection to his inspection of the Soccolich house and an unrelated property. He was fined $3,318. His license was suspended for 30 days and he was required to take a board approved course in professionalism and ethics.

Soccolich knows there is little she can do now and legal experts agree that it would be impossible for her to get the house she thought she ordered.

Darren Inverso, a Sarasota attorney who litigates construction disputes, said the fact that Soccolich got 9.4-foot ceilings instead of 10-foot ceilings is not insignificant.

"That's a big number," Inverso said. "It is substantially different from what she thought she signed up for. But whether it's enough of an issue to make her contract not-enforceable is open to question."

"There is no formula. No bright line test," Inverso said. "Arbitrators can go either way."

Soccolich plans to get rid of her empty house in Greenbrook Preserve and to leave Southwest Florida. "At this point, I have no confidence in anyone," she said.
http://www.heraldtribune.com/article/20100426/ARTICLE/4261013/2416/NEWS?p=all&tc=pgall&tc=ar

 
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