Briefing Document: Tober v. Civano 1 Homeowners Association

Executive Summary

This document synthesizes the legal proceedings and outcomes of the case Joan A. Tober v. Civano 1 Neighborhood 1 Homeowners Association (No. 19F-H1918042-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was Petitioner Joan A. Tober’s demand for records from her Homeowners Association (HOA), specifically a legal opinion letter concerning the “North Ridge wall.”

The Petitioner argued that the HOA violated Arizona statute A.R.S. § 33-1805 by failing to provide this letter and other “background information.” She contended the HOA waived attorney-client privilege by discussing the letter in an open board meeting and, in a subsequent rehearing, failed to provide records within the statutorily required 10-day timeframe.

The HOA maintained that the letter was a privileged communication with its attorney and therefore exempt from disclosure under A.R.S. § 33-1805(B). The HOA also argued that the Petitioner’s broader request for “any and all documentation” was overly vague and that she failed to clarify the request when asked.

Administrative Law Judge Kay Abramsohn ultimately ruled in favor of the HOA in both the initial hearing and a subsequent rehearing. The final decision affirmed that the legal letter was privileged and could be withheld. Crucially, the judge concluded the HOA did not violate the 10-day provision because the Petitioner’s request was “unreasonably broad” and she failed to respond to the HOA’s request for clarification, thereby preventing the HOA from being able to “reasonably make records available.” The HOA was declared the prevailing party in both instances.

——————————————————————————–

Case Overview

This matter involves a formal dispute between a homeowner and her homeowners’ association, brought before the Arizona Department of Real Estate and heard by the Office of Administrative Hearings (OAH).

Case Name

Joan A. Tober, Petitioner, vs. Civano 1 Neighborhood 1 Homeowners Association, Respondent.

Case Number

19F-H1918042-REL

Adjudicating Body

Office of Administrative Hearings (OAH)

Administrative Law Judge

Kay A. Abramsohn

Core Issue

Alleged violation of A.R.S. § 33-1805, which governs member access to association records.

Initial Hearing Date

June 5, 2019

Initial Decision Date

July 29, 2019

Rehearing Date

December 11, 2019

Final Decision Date

January 15, 2020

——————————————————————————–

Key Parties and Individuals

• Petitioner: Joan A. Tober

◦ A homeowner in the Civano 1 Neighborhood since 2001.

◦ Previously worked for the company that developed the land/homes in the association area.

◦ Has served as a past Board member for the HOA.

◦ Served as an alternate member on the Finance Committee in 2018.

◦ Exhibits a high level of engagement with HOA affairs, having taped and often transcribed every meeting since 2008.

• Respondent: Civano 1 Neighborhood 1 Homeowners Association (HOA)

◦ The governing body for the planned community.

◦ Represented by Diana J. Elston, Esq., of Jones, Skelton & Hochuli, P.L.C.

• Adjudicator: Kay Abramsohn

◦ The Administrative Law Judge for the Office of Administrative Hearings who presided over both the initial hearing and the rehearing.

——————————————————————————–

Chronology of the Dispute

Nov 20, 2018

At an HOA Board meeting, the Board President mentions receiving a letter (“the Letter”) from its attorney regarding the North Ridge wall, states it concerns the HOA’s legal responsibility, and suggests it can be sent out to residents.

Nov 26, 2018

Petitioner sends her first email request for a copy of the Letter.

Nov 27, 2018

Petitioner sends a second request. The HOA replies that it is waiting for clarification from its attorney.

Nov 29, 2018

At 4:58 a.m., Petitioner sends a third, formal request citing A.R.S. § 33-1805, demanding “any and all documentation to include the letter… regarding the structural integrity and the Association members’ responsibility for same and all background information.”

Nov 29, 2018

At 9:44 a.m., the HOA responds, stating the President misspoke and the Letter is a privileged legal opinion. The HOA asks if Petitioner needs a copy of “the original engineer report.” The judge later finds no evidence that Petitioner responded to this clarification query.

Dec 13, 2018

Petitioner writes to the Board, stating she will use “all means… to obtain the requested materials, to include a formal complaint.”

Dec 26, 2018

Petitioner files her single-issue petition with the Arizona Department of Real Estate.

Jan 15-16, 2019

The HOA forwards to Petitioner the “Civano historical erosion reports” (2013 and 2014) and an invoice related to the 2014 study.

June 5, 2019

The initial administrative hearing is held.

July 29, 2019

Initial Decision Issued: The Administrative Law Judge (ALJ) finds the Letter is privileged and the HOA is the prevailing party.

Aug 5, 2019

Petitioner files a request for rehearing, arguing the initial decision “did not address the timeliness aspect of the law.”

Aug 23, 2019

The Commissioner of the Arizona Department of Real Estate grants the rehearing request.

Dec 11, 2019

The rehearing is conducted.

Jan 15, 2020

Final Decision Issued: The ALJ again finds for the HOA, concluding it did not violate the statute because Petitioner’s request was overly broad and she failed to clarify it. The appeal is dismissed.

——————————————————————————–

Core Dispute and Arguments

Petitioner’s Position (Joan A. Tober)

1. Waiver of Privilege: The Petitioner’s central argument was that the HOA intentionally waived attorney-client privilege regarding the Letter when the Board President mentioned it in an open meeting and offered to distribute it, with the other Board members not objecting, thereby showing “unanimous consent to waive confidentiality.”

2. Right to “Background Information”: Petitioner argued that because the North Ridge wall issue had been ongoing since 2013, her request for “any and all documents” and “background information” was justified, and that more than just two prior engineering reports must exist.

3. Untimely Response (Rehearing Argument): In her request for rehearing, Petitioner’s primary argument shifted to timeliness, asserting that even if the HOA “eventually” provided some records, it failed to do so within the 10-business-day period mandated by A.R.S. § 33-1805(A).

Respondent’s Position (Civano 1 HOA)

1. Attorney-Client Privilege: The HOA’s primary defense was that the Letter constituted “privileged communication between an attorney for the association and the association,” which may be withheld from members under A.R.S. § 33-1805(B).

2. No Waiver: The HOA contended that the “mere mention” of the Letter by the Board President at a meeting did not constitute a legal waiver of the attorney-client privilege.

3. Vague and Overly Broad Request: The HOA argued that the Petitioner’s request for “any and all” documents was too broad to know what she wanted.

4. Prior Possession of Documents: The HOA indicated that it could be determined from the Petitioner’s own exhibits that she had already received or possessed copies of key requested documents, such as the 2013 and 2014 erosion reports.

——————————————————————————–

Key Findings of Fact and Evidence

The Administrative Law Judge made several critical findings of fact based on the evidence presented across both hearings.

• The Nature of the “Letter”: The document at the center of the dispute was confirmed to be a legal opinion from the HOA’s attorney. It had been discussed by the Board in an executive session prior to the November 20, 2018 meeting. The letter advised that the HOA was responsible for the land below the wall and recommended hiring a “licensed bonded engineer.”

• Petitioner’s Pre-existing Knowledge: The Petitioner was well-informed on the North Ridge wall issue. She acknowledged at the rehearing that at the time of her November 29, 2018 request, she already possessed copies of the 2013 and 2014 engineering reports, which she had obtained from the city in 2014.

• Petitioner’s Request and Failure to Clarify:

◦ The Petitioner’s initial requests on November 26 and 27 were solely for the attorney’s Letter.

◦ Her formal request on November 29 expanded to “any and all documentation… and all background information.”

◦ On the same day, the HOA asked for clarification, specifically inquiring if she “still need[ed] a copy of the original engineer report.”

◦ The ALJ found “no document supporting” the Petitioner’s claim that she responded to this email. During the rehearing, the Petitioner was unable to produce such a response. This failure to clarify was a key factor in the final ruling.

• Lack of Other Documents: The hearing record contained no evidence of any other erosion reports besides the 2013 and 2014 reports. The HOA President, Mr. Mastrosimone, testified that “there were no documents other than the Letter that would have been responsive” to the request.

——————————————————————————–

Legal Rulings and Conclusions of Law

Initial Decision (July 29, 2019)

• Jurisdiction: The OAH confirmed its authority to hear the dispute under Arizona statutes.

• Privilege: The ALJ concluded that under A.R.S. § 33-1805(B), “privileged communication between an attorney for the association and the association” may be withheld. Therefore, the HOA was “not statutorily required to provide access or a copy of the Letter to Petitioner.”

• Outcome: The ALJ concluded that the HOA provided records in compliance with the statute and was deemed the prevailing party.

Final Decision on Rehearing (January 15, 2020)

• Issue for Rehearing: The sole issue on rehearing was whether the HOA violated A.R.S. § 33-1805 by failing to provide access to records within 10 business days.

• Privileged Communication: The ALJ reaffirmed that the Letter was privileged communication and the HOA was not required to provide it “within any time period.”

• Unreasonably Broad Request: The ALJ concluded that the Petitioner’s formal request was “unreasonably broad and remained unclarified.”

• Failure to Clarify: The ruling explicitly states: “Petitioner failed to respond to the HOA request for clarification of her unreasonably broad request, preventing the HOA from being able to reasonably make records available. An association is not required to guess what records are being requested.”

• No Violation of Timeliness: Because the request was unclarified, the ALJ found the HOA did not violate the 10-day rule in A.R.S. § 33-1805(A). The decision notes that the initial ruling “inartfully stated” that the HOA had provided records in compliance, and that it “should have simply stated that the HOA acted in compliance with A.R.S. § 33-1805.”

• Final Outcome: The ALJ concluded that the HOA acted in compliance with both subsections (A) and (B) of the statute. The HOA was again declared the prevailing party, and the Petitioner’s appeal was dismissed. The decision was declared binding on the parties, subject to judicial review in superior court.