Case Summary
| Case ID | 23F-H063-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2023-09-20 |
| Administrative Law Judge | Velva Moses-Thompson |
| Outcome | Petitioner prevailed on Issue 2 (Records Requests violation), resulting in the refund of the $500 filing fee. Respondent prevailed on Issue 1 (Failure to Hold Meetings, found moot) and Issue 3 (Board Legitimacy, insufficient evidence). No civil penalty was imposed. |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | John W. Gray | Counsel | — |
|---|---|---|---|
| Respondent | Mesa Coronado III Condominium Association | Counsel | Chad M. Gallacher, Esq. |
Alleged Violations
ARS § 33-1248(B), Bylaw Article 2.1
ARS § 33-1258, Bylaw Article 1.6
ARS § 33-1243(B), Bylaw Article 3.2
Outcome Summary
Petitioner prevailed on Issue 2 (Records Requests violation), resulting in the refund of the $500 filing fee. Respondent prevailed on Issue 1 (Failure to Hold Meetings, found moot) and Issue 3 (Board Legitimacy, insufficient evidence). No civil penalty was imposed.
Why this result: Petitioner lost Issue 1 because the failure to hold meetings was resolved and deemed moot. Petitioner lost Issue 3 due to insufficient evidence.
Key Issues & Findings
No meeting was held in 2020, 2021, or 2022
Petitioner alleged violation for failure to hold annual meetings in 2020, 2021, and 2022. The Board admitted meetings were not held due to the pandemic but held an annual meeting in 2023.
Orders: —
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
- ARS § 33-1248(B)
- Bylaw Article 2.1
- ARS § 33-1250(C)
Petitioner has received no response to multiple requests for information
Petitioner made multiple requests for information and records (including meeting minutes from 2018-2023 and fire suppression invoices from 2014-2023). Respondent failed to provide copies of minutes from 2018-2019 and records related to the sprinkler system.
Orders: Respondent ordered to pay Petitioner $500.00 filing fee refund within thirty (30) days and directed to comply with A.R.S. § 33-1258 and Bylaw Article 1.6 going forward.
Filing fee: $500.00, Fee refunded: Yes
Disposition: petitioner_win
- ARS § 33-1258
- Bylaw Article 1.6
The people claiming to be the Board are not legitimate, not duly elected, and have appointed themselves to successive terms of office
Petitioner alleged the board members were illegitimate because annual meetings lacked quorum (2018, 2019) or were not held (2020-2022), leading directors to continue in office unlawfully.
Orders: —
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
- ARS § 33-1243(B)
- Bylaw Article 3.2
- A.R.S. § 10-3805(E)
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Video Overview
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Decision Documents
23F-H063-REL Decision – 1081668.pdf
23F-H063-REL Decision – 1095241.pdf
23F-H063-REL Decision – 1081668.pdf
23F-H063-REL Decision – 1095241.pdf
This matter, *John W. Gray v Mesa Coronado III Condominium Association* (No. 23F-H063-REL), was heard before Administrative Law Judge (ALJ) Velva Moses-Thompson at the Office of Administrative Hearings (OAH) on August 31, 2023. The Petitioner, John W. Gray, alleged that the Mesa Coronado III Condominium Association violated Arizona Revised Statutes (A.R.S.) and its Bylaws across three issues.
Key Facts and Procedural History
The Petitioner, a unit owner, filed his petition on or about May 15, 2023. Prior to the hearing, the OAH denied the Petitioner’s motion for a Default Decision, noting that the Commissioner, not the OAH, holds jurisdiction for defaults based on failure to respond, and the Commissioner had already accepted the Respondent's response.
The Association admitted that it failed to hold annual board meetings in 2020, 2021, and 2022. Furthermore, prior meetings in 2018 and 2019 failed to achieve quorum. The Petitioner also made multiple requests for information and records (including meeting minutes and fire sprinkler system invoices dating back to 2014) which he contended were ignored or inadequately addressed.
Main Issues and Arguments
- Failure to Hold Annual Meetings (2020–2022) (A.R.S. § 33-1248(B) and Bylaw Article 2.1):
- *Respondent's Argument:* The failure was due to the COVID-19 pandemic and related health concerns. The Association argued it should not be penalized for trying to cope with an unprecedented situation, noting the difficulty of holding mandatory in-person voting (A.R.S. § 33-1250(C)) during the crisis. A meeting was successfully held in July 2023.
- *Petitioner's Argument:* The statutes and bylaws have no emergency exception. Meetings could have been conducted remotely or effectively via absentee ballot, which was already an accepted practice.
- Board Legitimacy (A.R.S. § 33-1243(B) and Bylaw Article 3.2):
- *Respondent's Argument:* The directors’ continuation in office was required by operation of law, specifically the Bylaws (Article 3.2) and the Nonprofit Corporation Act (A.R.S. § 10-3805(E)). These provisions dictate that directors shall continue to hold office until a successor is elected and qualified, preventing a lapse in governance when quorum is not met due to owner apathy. The current board members were validly elected in July 2023.
- *Petitioner's Argument:* The board improperly and unilaterally appointed themselves to successive terms for five years (2018–2022) by making only a single attempt at an annual election and failing to reschedule, largely due to cost concerns.
- Failure to Respond to Information Requests (A.R.S. § 33-1258 and Bylaw Article 1.6):
- *Respondent's Argument:* Some requests were for information rather than formal records, and some requests (like the fire system invoices back to 2014) were extensive and time-consuming to compile. They admitted they were still working on producing these records. They also noted that meeting minutes for 2020-2022 did not exist because no meetings were held.
- *Petitioner's Argument:* The law requires a timely response, which the Association failed to provide, constituting a violation of the Condo Act.
Final Decision and Outcome
The ALJ issued her decision on September 20, 2023.
- Issue 1 (Annual Meetings): The ALJ ruled the issue was moot because an annual meeting was held in 2023. Respondent was deemed the prevailing party on Issue 1.
- Issue 3 (Board Legitimacy): The Petitioner failed to establish by a preponderance of the evidence that the board members were not legitimate or duly elected, citing the legal principle allowing directors to hold office until successors are elected (A.R.S. § 10-3805(E)). Respondent was deemed the prevailing party on Issue 3.
- Issue 2 (Records Requests): The ALJ found that the Respondent failed to provide copies of minutes for meetings held in 2018 and 2019, and records reques
Questions
Question
If my HOA fails to hold an annual meeting, do the current directors automatically lose their positions?
Short Answer
No. Directors typically continue to serve until a successor is elected or qualified.
Detailed Answer
The ALJ concluded that board members may serve successive terms and, in the absence of a new election (often due to lack of quorum), existing members continue to serve. The failure to hold a meeting does not automatically illegitimate the board.
Alj Quote
Directors of a non-profit organization may be elected for successive terms, unless otherwise provided for in the articles of incorporation or bylaws.
Legal Basis
A.R.S. § 10-3805(B)
Topic Tags
- Board Legitimacy
- Elections
- Terms of Office
Question
Can I penalize my HOA for failing to hold meetings during a public health emergency like COVID-19?
Short Answer
Likely no, especially if the issue is resolved by the time of the hearing.
Detailed Answer
The ALJ found that failing to hold in-person meetings due to the pandemic was supported by the weight of evidence. Furthermore, because the HOA eventually held a meeting in 2023, the dispute regarding the missed meetings was considered moot.
Alj Quote
The weight of the evidence shows that the Board failed to hold in person board meetings from 2020 to 2022, due to the pandemic… Because there is no current dispute regarding the failure to hold an annual board meeting, the issue is now moot.
Legal Basis
Mootness Doctrine
Topic Tags
- Meetings
- COVID-19
- Mootness
Question
Does the HOA have a valid excuse for not providing old meeting minutes if they claim they are hard to find?
Short Answer
No. The HOA must justify any failure to provide requested minutes.
Detailed Answer
The ALJ ruled against the HOA for failing to provide minutes from 2018 and 2019, noting that the HOA provided no evidence to justify this failure, despite arguments about the difficulty of production.
Alj Quote
Although there were no board meetings from 2020-2022, Respondent provide no evidence to justify its failure to provide copies of the minutes of Association meetings from 2018 to 2019.
Legal Basis
A.R.S. § 33-1258
Topic Tags
- Records Requests
- Meeting Minutes
- HOA Obligations
Question
If I win my case against the HOA regarding records requests, can I get my filing fee back?
Short Answer
Yes, the ALJ can order the HOA to reimburse the filing fee.
Detailed Answer
In this case, the Petitioner prevailed on the issue regarding records requests (Issue 2), and the ALJ ordered the Respondent to pay the Petitioner the $500 filing fee directly.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.
Legal Basis
Administrative Remedy
Topic Tags
- Remedies
- Filing Fees
- Costs
Question
Is the HOA required to allow in-person voting even if they want to hold virtual meetings?
Short Answer
Yes, the law requires providing for votes to be cast in person.
Detailed Answer
The decision highlights that state law requires the Board to allow members to vote in person, which was a factor in why the Board did not hold virtual-only meetings during the pandemic.
Alj Quote
The Board was required by law to allow members to vote in person.
Legal Basis
A.R.S. § 33-1250(C)
Topic Tags
- Voting
- In-Person Requirements
- Virtual Meetings
Question
What standard of proof do I need to meet to prove my HOA violated the law?
Short Answer
You must prove the violation by a 'preponderance of the evidence'.
Detailed Answer
The burden of proof lies with the Petitioner to show that their contention is more probably true than not.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent violated the Association’s Bylaws and applicable statutes by a preponderance of the evidence.
Legal Basis
A.A.C. R2-19-119(A)
Topic Tags
- Burden of Proof
- Legal Standards
- Evidence
Question
Can the HOA withhold records just because I didn't ask for them in a specific format?
Short Answer
The request must be for records/copies; a general inquiry for information might not trigger the statutory obligation.
Detailed Answer
The ALJ distinguished between requests for information (like names of directors) and requests to examine or copy specific records. The decision noted that some initial correspondence 'did not include a request to examine records or to make copies of records.'
Alj Quote
Mr. Gray’s attorney requested that the Board respond in within 30 days of receipt of the letter. However, the letter did not include a request to examine records or to make copies of records.
Legal Basis
A.R.S. § 33-1258
Topic Tags
- Records Requests
- Procedural Requirements
Case
- Docket No
- 23F-H063-REL
- Case Title
- John W. Gray v. Mesa Coronado III Condominium Association
- Decision Date
- 2023-09-20
- Alj Name
- Velva Moses-Thompson
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
If my HOA fails to hold an annual meeting, do the current directors automatically lose their positions?
Short Answer
No. Directors typically continue to serve until a successor is elected or qualified.
Detailed Answer
The ALJ concluded that board members may serve successive terms and, in the absence of a new election (often due to lack of quorum), existing members continue to serve. The failure to hold a meeting does not automatically illegitimate the board.
Alj Quote
Directors of a non-profit organization may be elected for successive terms, unless otherwise provided for in the articles of incorporation or bylaws.
Legal Basis
A.R.S. § 10-3805(B)
Topic Tags
- Board Legitimacy
- Elections
- Terms of Office
Question
Can I penalize my HOA for failing to hold meetings during a public health emergency like COVID-19?
Short Answer
Likely no, especially if the issue is resolved by the time of the hearing.
Detailed Answer
The ALJ found that failing to hold in-person meetings due to the pandemic was supported by the weight of evidence. Furthermore, because the HOA eventually held a meeting in 2023, the dispute regarding the missed meetings was considered moot.
Alj Quote
The weight of the evidence shows that the Board failed to hold in person board meetings from 2020 to 2022, due to the pandemic… Because there is no current dispute regarding the failure to hold an annual board meeting, the issue is now moot.
Legal Basis
Mootness Doctrine
Topic Tags
- Meetings
- COVID-19
- Mootness
Question
Does the HOA have a valid excuse for not providing old meeting minutes if they claim they are hard to find?
Short Answer
No. The HOA must justify any failure to provide requested minutes.
Detailed Answer
The ALJ ruled against the HOA for failing to provide minutes from 2018 and 2019, noting that the HOA provided no evidence to justify this failure, despite arguments about the difficulty of production.
Alj Quote
Although there were no board meetings from 2020-2022, Respondent provide no evidence to justify its failure to provide copies of the minutes of Association meetings from 2018 to 2019.
Legal Basis
A.R.S. § 33-1258
Topic Tags
- Records Requests
- Meeting Minutes
- HOA Obligations
Question
If I win my case against the HOA regarding records requests, can I get my filing fee back?
Short Answer
Yes, the ALJ can order the HOA to reimburse the filing fee.
Detailed Answer
In this case, the Petitioner prevailed on the issue regarding records requests (Issue 2), and the ALJ ordered the Respondent to pay the Petitioner the $500 filing fee directly.
Alj Quote
IT IS FURTHER ORDERED that Respondent pay Petitioner his filing fee of $500.00, to be paid directly to Petitioner within thirty (30) days of this Order.
Legal Basis
Administrative Remedy
Topic Tags
- Remedies
- Filing Fees
- Costs
Question
Is the HOA required to allow in-person voting even if they want to hold virtual meetings?
Short Answer
Yes, the law requires providing for votes to be cast in person.
Detailed Answer
The decision highlights that state law requires the Board to allow members to vote in person, which was a factor in why the Board did not hold virtual-only meetings during the pandemic.
Alj Quote
The Board was required by law to allow members to vote in person.
Legal Basis
A.R.S. § 33-1250(C)
Topic Tags
- Voting
- In-Person Requirements
- Virtual Meetings
Question
What standard of proof do I need to meet to prove my HOA violated the law?
Short Answer
You must prove the violation by a 'preponderance of the evidence'.
Detailed Answer
The burden of proof lies with the Petitioner to show that their contention is more probably true than not.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent violated the Association’s Bylaws and applicable statutes by a preponderance of the evidence.
Legal Basis
A.A.C. R2-19-119(A)
Topic Tags
- Burden of Proof
- Legal Standards
- Evidence
Question
Can the HOA withhold records just because I didn't ask for them in a specific format?
Short Answer
The request must be for records/copies; a general inquiry for information might not trigger the statutory obligation.
Detailed Answer
The ALJ distinguished between requests for information (like names of directors) and requests to examine or copy specific records. The decision noted that some initial correspondence 'did not include a request to examine records or to make copies of records.'
Alj Quote
Mr. Gray’s attorney requested that the Board respond in within 30 days of receipt of the letter. However, the letter did not include a request to examine records or to make copies of records.
Legal Basis
A.R.S. § 33-1258
Topic Tags
- Records Requests
- Procedural Requirements
Case
- Docket No
- 23F-H063-REL
- Case Title
- John W. Gray v. Mesa Coronado III Condominium Association
- Decision Date
- 2023-09-20
- Alj Name
- Velva Moses-Thompson
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- John W. Gray (petitioner)
Mesa Coronado III Condominium Association (Member)
Appeared on behalf of himself. - David Bacon (petitioner's attorney)
Davis Ma Magcguire Gardner
Wrote letter on behalf of Petitioner John W. Gray.
Respondent Side
- Chad M. Gallacher (HOA attorney)
HOALaw.biz
Attorney for Mesa Coronado III Condominium Association. - Adriana Lacombe (Community Manager/Witness)
Curtis Management
Community Manager for Mesa Coronado III Condominium Association. Also referred to as Andrea Lome in testimony. - Jim Reid (property manager)
Curtis Management
Contact listed for Mesa Coronado III Condominium Association. - Rita Ali (board member/president)
Mesa Coronado III Condominium Association
Board President; reelected July 18, 2023. - Cassandra Miller (board member)
Mesa Coronado III Condominium Association
Appointed/elected board member. - Richard Randolph (board member)
Mesa Coronado III Condominium Association
Re-elected July 18, 2023. - Carl Fleming (former board member)
Mesa Coronado III Condominium Association
Moved out, creating a vacancy. - Derek Blackman (former board member/president)
Mesa Coronado III Condominium Association
Sold unit in 2016.
Neutral Parties
- Velva Moses-Thompson (ALJ)
Office of Administrative Hearings
Administrative Law Judge. - Susan Nicolson (Commissioner)
Arizona Department of Real Estate - AHansen (ADRE staff)
Arizona Department of Real Estate
Recipient of official communication. - vnunez (ADRE staff)
Arizona Department of Real Estate
Recipient of official communication. - djones (ADRE staff)
Arizona Department of Real Estate
Recipient of official communication. - labril (ADRE staff)
Arizona Department of Real Estate
Recipient of official communication.
Other Participants
- Andrea West (proposed board member)
Mesa Coronado III Condominium Association (Member)
Requested appointment to the board in 2018; presence noted by Petitioner at 2018 meeting. - Jennifer Dulick (homeowner/member)
Mesa Coronado III Condominium Association (Member)
Attended 2018 annual meeting attempt.