Case Summary
| Case ID | 21F-H2121033-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2021-03-09 |
| Administrative Law Judge | Sondra J. Vanella |
| Outcome | none |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Carlos J. Sanchez & Marinda K. Minch | Counsel | — |
|---|---|---|---|
| Respondent | Tempe Villages Homeowners Association, Inc. | Counsel | Ashley Moscarello |
Alleged Violations
Bylaws Article 4 Section 1
Outcome Summary
The Petition was dismissed because Petitioners failed to prove the Respondent HOA violated the Bylaws regarding the filling of a vacant Board seat. The ALJ determined the Bylaws did not impose a timeframe for filling the vacancy and the Board acted according to Article IV, Section 3.
Why this result: Petitioners failed to meet the burden of proof to establish the violation by a preponderance of the evidence. The Bylaws do not contain a provision providing a timeframe in which a vacancy on the Board must be filled.
Key Issues & Findings
Violation of Bylaws regarding Board of Directors composition and appointment
Petitioners alleged the HOA violated Bylaws Article 4 Section 1 by leaving a Board seat open following a resignation (August 2020) and not filling it until November 2020. The ALJ found the Bylaws (Sections 1, 2, and 3) did not mandate a timeframe for filling a vacancy, and the HOA followed procedures for appointment.
Orders: Petitioners’ Petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: petitioner_loss
- A.R.S. § 32-2199
- A.R.S. § 41-1092.07(G)(2)
- A.A.C. R2-19-119(A)
- A.A.C. R2-19-119(B)(1)
- Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
- A.A.C. R2-19-119(B)(2)
- MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
- BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
- A.R.S. § 32-2199.02(B)
- A.R.S. § 32-2199.04
- A.R.S. § 41-1092.09
Analytics Highlights
- A.R.S. § 32-2199
- A.R.S. § 41-1092.07(G)(2)
- A.A.C. R2-19-119(A)
- A.A.C. R2-19-119(B)(1)
- Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
- A.A.C. R2-19-119(B)(2)
- MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
- BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
- A.R.S. § 32-2199.02(B)
- A.R.S. § 32-2199.04
- A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
21F-H2121033-REL Decision – 862059.pdf
Questions
Question
If a Board member resigns, does the HOA have to hold an election to fill the seat?
Short Answer
Not necessarily. Bylaws may allow the remaining Board members to appoint a successor for the unexpired term.
Detailed Answer
In this case, the Bylaws explicitly stated that in the event of a resignation, the remaining Board members select the successor. The ALJ found that the Board was not required to put this seat up for a general election, distinguishing it from seats with expiring terms.
Alj Quote
In the event of death, resignation or removal of a director, his successor shall be selected by the remaining members of the Board and shall serve for the unexpired term of his predecessor.
Legal Basis
Bylaws Article IV, Section 3
Topic Tags
- Board Vacancies
- Elections
- Bylaws
Question
Is there a specific deadline for the Board to fill a vacant seat after a resignation?
Short Answer
Only if the governing documents specify one. If the Bylaws are silent, there is no strict timeframe.
Detailed Answer
The ALJ ruled that because the community's Bylaws did not specify a deadline, the HOA did not violate the rules by waiting several months (from August to November) to fill the vacancy.
Alj Quote
The Bylaws do not contain a timeframe in which the Board must appoint a successor director after the resignation of a director.
Legal Basis
Bylaws Interpretation
Topic Tags
- Board Vacancies
- Timelines
- Bylaws
Question
Can the Community Manager appoint or remove Board members?
Short Answer
No. The authority to appoint or remove directors typically lies with the Board or the membership, not the manager.
Detailed Answer
The Community Manager testified that they lacked the authority to make such appointments, confirming that this power resides with the Board itself.
Alj Quote
Mr. Nurse further testified that he does not have the authority to appoint or remove members of the Board.
Legal Basis
Testimony / Findings of Fact
Topic Tags
- Community Manager
- Authority
- Board Composition
Question
What is the 'burden of proof' for a homeowner suing their HOA in an administrative hearing?
Short Answer
The homeowner (Petitioner) must prove the violation by a 'preponderance of the evidence'.
Detailed Answer
This legal standard requires the homeowner to show that their claims are 'more probably true than not.' It is not enough to simply make an allegation; superior evidentiary weight is required.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)
Topic Tags
- Legal Standards
- Burden of Proof
- Evidence
Question
Can I force the Board to hold a vote for a vacant seat if the term hasn't expired yet?
Short Answer
Generally, no. If the term is unexpired, it may not be eligible for a member vote if the Bylaws provide for appointment.
Detailed Answer
The ALJ accepted the explanation that a seat vacated by resignation was not eligible for the general member vote because the original term had not yet expired (it ran until 2022), whereas other seats were up for election because their terms had ended.
Alj Quote
Mr. Nurse explained that the term for the Board member who resigned does not expire until 2022, and as such was not eligible for a member vote.
Legal Basis
Findings of Fact / Bylaws
Topic Tags
- Elections
- Board Terms
- Voting
Question
Does personal dislike or bias by the Board constitute a violation of the Bylaws?
Short Answer
Not on its own. The homeowner must prove a specific violation of the governing documents.
Detailed Answer
Although the homeowner claimed the Board disliked her and was trying to keep her out, the ALJ dismissed the petition because the HOA followed the technical requirements of the Bylaws regarding elections and appointments.
Alj Quote
Petitioners failed to prove by a preponderance of the evidence that Respondent violated the Bylaws as alleged in the Petition.
Legal Basis
Conclusions of Law
Topic Tags
- Discrimination/Bias
- Enforcement
- Board Conduct
Case
- Docket No
- 21F-H2121033-REL
- Case Title
- Carlos J. Sanchez & Marinda K. Minch v. Tempe Villages Homeowners Association, Inc.
- Decision Date
- 2021-03-09
- Alj Name
- Sondra J. Vanella
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
If a Board member resigns, does the HOA have to hold an election to fill the seat?
Short Answer
Not necessarily. Bylaws may allow the remaining Board members to appoint a successor for the unexpired term.
Detailed Answer
In this case, the Bylaws explicitly stated that in the event of a resignation, the remaining Board members select the successor. The ALJ found that the Board was not required to put this seat up for a general election, distinguishing it from seats with expiring terms.
Alj Quote
In the event of death, resignation or removal of a director, his successor shall be selected by the remaining members of the Board and shall serve for the unexpired term of his predecessor.
Legal Basis
Bylaws Article IV, Section 3
Topic Tags
- Board Vacancies
- Elections
- Bylaws
Question
Is there a specific deadline for the Board to fill a vacant seat after a resignation?
Short Answer
Only if the governing documents specify one. If the Bylaws are silent, there is no strict timeframe.
Detailed Answer
The ALJ ruled that because the community's Bylaws did not specify a deadline, the HOA did not violate the rules by waiting several months (from August to November) to fill the vacancy.
Alj Quote
The Bylaws do not contain a timeframe in which the Board must appoint a successor director after the resignation of a director.
Legal Basis
Bylaws Interpretation
Topic Tags
- Board Vacancies
- Timelines
- Bylaws
Question
Can the Community Manager appoint or remove Board members?
Short Answer
No. The authority to appoint or remove directors typically lies with the Board or the membership, not the manager.
Detailed Answer
The Community Manager testified that they lacked the authority to make such appointments, confirming that this power resides with the Board itself.
Alj Quote
Mr. Nurse further testified that he does not have the authority to appoint or remove members of the Board.
Legal Basis
Testimony / Findings of Fact
Topic Tags
- Community Manager
- Authority
- Board Composition
Question
What is the 'burden of proof' for a homeowner suing their HOA in an administrative hearing?
Short Answer
The homeowner (Petitioner) must prove the violation by a 'preponderance of the evidence'.
Detailed Answer
This legal standard requires the homeowner to show that their claims are 'more probably true than not.' It is not enough to simply make an allegation; superior evidentiary weight is required.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.
Legal Basis
A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A)
Topic Tags
- Legal Standards
- Burden of Proof
- Evidence
Question
Can I force the Board to hold a vote for a vacant seat if the term hasn't expired yet?
Short Answer
Generally, no. If the term is unexpired, it may not be eligible for a member vote if the Bylaws provide for appointment.
Detailed Answer
The ALJ accepted the explanation that a seat vacated by resignation was not eligible for the general member vote because the original term had not yet expired (it ran until 2022), whereas other seats were up for election because their terms had ended.
Alj Quote
Mr. Nurse explained that the term for the Board member who resigned does not expire until 2022, and as such was not eligible for a member vote.
Legal Basis
Findings of Fact / Bylaws
Topic Tags
- Elections
- Board Terms
- Voting
Question
Does personal dislike or bias by the Board constitute a violation of the Bylaws?
Short Answer
Not on its own. The homeowner must prove a specific violation of the governing documents.
Detailed Answer
Although the homeowner claimed the Board disliked her and was trying to keep her out, the ALJ dismissed the petition because the HOA followed the technical requirements of the Bylaws regarding elections and appointments.
Alj Quote
Petitioners failed to prove by a preponderance of the evidence that Respondent violated the Bylaws as alleged in the Petition.
Legal Basis
Conclusions of Law
Topic Tags
- Discrimination/Bias
- Enforcement
- Board Conduct
Case
- Docket No
- 21F-H2121033-REL
- Case Title
- Carlos J. Sanchez & Marinda K. Minch v. Tempe Villages Homeowners Association, Inc.
- Decision Date
- 2021-03-09
- Alj Name
- Sondra J. Vanella
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Carlos J. Sanchez (petitioner)
Candidate for Board election - Marinda K. Minch (petitioner)
Candidate for Board election; considered for vacancy appointment; testified
Respondent Side
- Ashley Moscarello (HOA attorney)
Goodman Lawgroup - Bradley Hudson (board member)
Tempe Villages Homeowners Association, Inc. Board
President of the Board; testified as witness - Shawn Nurse (community manager)
Tempe Villages Homeowners Association, Inc.
Testified as witness; received ballots for election - William Skanadore (board member)
Tempe Villages Homeowners Association, Inc. Board
Incumbent candidate; elected - Will Terrick (board member)
Tempe Villages Homeowners Association, Inc. Board
Incumbent candidate; elected - Wendelyn Neal (board member)
Tempe Villages Homeowners Association, Inc. Board
Made motion to appoint Marinda Minch - Joel Krick (board member)
Tempe Villages Homeowners Association, Inc. Board - Kathy Hudson (board member)
Tempe Villages Homeowners Association, Inc. Board - Christiane Pieraggi (board member)
Tempe Villages Homeowners Association, Inc. Board
Appointed to fill vacancy
Neutral Parties
- Sondra J. Vanella (ALJ)
OAH - Judy Lowe (commissioner)
ADRE
Other Participants
- John Neelsen (unknown)
Candidate for Board election - Tania Almonte (board member)
Tempe Villages Homeowners Association, Inc. Board
Former Board member whose resignation created a vacancy - Ruby (witness assistant)
Aided in counting votes
