Briefing Document: Krahn Living Trust v. Tonto Forest Estates HOA (Case No. 25F-H076-REL)

Executive Summary

This document synthesizes the proceedings and outcome of Case No. 25F-H076-REL, heard by the Arizona Office of Administrative Hearings (OAH). The case centered on a petition filed by the John R Krahn Living Trust (“Petitioner”) against the Tonto Forest Estates Homeowners Association (“Respondent”), alleging a violation of A.R.S. § 33-1805 for failing to provide association records within the statutory 10-business-day deadline.

The Petitioner’s case was built on the assertion that a valid written request was sent via email on June 1, 2025, to the HOA Secretary, followed by another email and two voicemails. The Petitioner presented extensive arguments based on the legal principle of “rebuttable presumption of receipt” and a statistical analysis claiming the probability of all communication attempts failing was astronomically low, thus evidencing bad faith and intentional non-compliance by the Respondent.

The Respondent’s defense was that they never received the email or voicemails in question. They argued that email is an unreliable communication method and that the burden of proof for delivery and receipt rested solely with the Petitioner. They further contended that established protocol required requests to be made through the community manager.

The final decision, issued by Administrative Law Judge (ALJ) Samuel Fox, found in favor of the Respondent. The ruling hinged on a Cease and Desist letter issued by the HOA to the Petitioner in March 2025. The ALJ determined this letter established a new, “reasonable” process for communication, requiring the Petitioner to submit all future correspondence via physical mail to the management office. By sending his request via email, the Petitioner disregarded this specific directive. Consequently, the ALJ concluded that the Petitioner failed to meet his burden of proof, as a reasonable method for submitting requests was available but was not used.

Case Overview

Case Number

25F-H076-REL

Tribunal

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Samuel Fox, Administrative Law Judge

Petitioner

John R Krahn Living Trust / Janet Krahn Living Trust (Represented by John R. Krahn)

Respondent

Tonto Forest Estates Homeowners Association (Represented by Dwight A. Jolivette, President)

Core Allegation

Violation of A.R.S. § 33-1805 by failing to provide requested association records within the statutory 10-business-day deadline.

Final Outcome

Respondent deemed the prevailing party.

Chronology of Key Events

March 21, 2025

Respondent issues a formal Cease and Desist letter to Petitioner, directing that future correspondence be submitted in writing and mailed to the management office.

June 1, 2025

Petitioner sends an email with a records request to three known email addresses for HOA Secretary Kenneth Riley.

June 3, 2025

Petitioner sends a follow-up email to the same three addresses.

June 16, 2025 (approx.)

The 10-business-day statutory deadline for a response passes.

June 23, 2025

Petitioner leaves voicemail messages for Secretary Riley and Community Manager Barbara Bonilla regarding the overdue request.

July 25, 2025

Petitioner files a petition with the Arizona Department of Real Estate alleging a violation of A.R.S. § 33-1805.

September 29, 2025

A subpoena is issued in the matter.

October 3, 2025

ALJ Fox issues an order quashing the September 29 subpoena.

October 6, 2025

Petitioner submits a Motion to Reconsider.

October 14, 2025

ALJ Fox denies the Motion to Reconsider and a motion for summary judgment, and sets preliminary disclosure deadlines for October 24, 2025.

October 29, 2025

The administrative hearing is held.

November 18, 2025

ALJ Fox issues the final decision, ruling in favor of the Respondent.

Petitioner’s Central Arguments and Evidence

The Petitioner’s case was built on the premise that multiple, redundant communication attempts were made in good faith and that the Respondent’s claim of non-receipt was statistically impossible and indicative of bad faith.

• Statutory Compliance: The Petitioner argued that A.R.S. § 33-1805 simply requires a “written request” and that his emails on June 1 and June 3 satisfied this requirement. He stated, “Email is in writing and is a method used extensively by respondent.”

• Proper Recipient: The request was directed to HOA Secretary Ken Riley, who, according to bylaw 5.5, “shall have charge of all of the association’s books, records, and papers.” The Petitioner included this bylaw in his email to the Secretary.

• Rebuttable Presumption of Receipt: The Petitioner cited Arizona case law (Lee v. State) and the “mailbox rule,” arguing that sending an email to a correct, functioning address without a bounce notification creates a legal presumption of receipt. This, he claimed, shifted the burden to the Respondent to prove non-receipt with evidence such as server logs, which they failed to provide.

• Evidence of Intentional Evasion: The Petitioner introduced an email from Secretary Riley dated October 13, 2025 (Exhibit 6), as proof of intentional obstruction. In it, Mr. Riley stated:

◦ “You are currently blocked from sending emails to my work and will continue to be blocked.”

◦ “since your email earlier email did not bounce you clearly know I have seen it.” The Petitioner argued this was a “direct admission that the absence of a bounce notification to a known good email address confirms receipt.”

• Statistical Improbability of Failure: A core part of the Petitioner’s argument was a mathematical analysis suggesting the probability of all communication attempts failing was infinitesimal.

◦ The odds of four emails failing was calculated as 1 in 6.25 million.

◦ The odds of two independent voicemails failing was calculated as 1 in 10,000.

◦ The combined probability of all six attempts failing was stated to be “approximately 1 in 62.5 billion.”

• Pattern of Non-Compliance: The Petitioner claimed this was the Respondent’s “fourth time they violate 1805” and that this pattern justified a civil penalty to deter future misconduct.

Respondent’s Central Arguments and Evidence

The Respondent’s defense was centered on a simple claim of non-receipt, the unreliability of electronic communication, and the assertion that the Petitioner failed to follow the proper procedure for requests.

• Claim of Non-Receipt: The Respondent’s primary position was, “Our position is very simple, straightforward. We didn’t get it.” They framed the dispute as a “he said she said situation where neither side can definitively prove their position.”

• Unreliability of Technology: Respondent’s representative, Dwight Jolivette, drew on his military background in information systems to argue that technology is not perfectly reliable. He cited potential issues like work-controlled laptops, server filters, travel, and other variables as reasons the email may not have been delivered. He stated, “technology especially in the communications area as much as we like to believe opposite is not as reliable as people think.”

• Burden of Proof: The Respondent consistently maintained that the burden was on the Petitioner to prove that the “email reached its intended destination.” They argued, “How are we supposed to respond to an email that we don’t have?”

• Cease and Desist Directive: The Respondent argued that a cease and desist letter sent in March 2025 established a specific communication protocol for the Petitioner, requiring him to use U.S. mail for all correspondence with the management company.

• Established Protocol: Mr. Jolivette testified that the unwritten “best practice” was for records requests to be sent to the community manager, who holds the documents, rather than the volunteer board secretary.

• Submitted Evidence: Respondent submitted written statements (Exhibits A and B) from Secretary Ken Riley and Community Manager Barbara Bonilla, both stating they had no record of receiving the emails or voicemails in question.

Final Decision and Rationale

ALJ Samuel Fox’s decision on November 18, 2025, sided with the Respondent. The ruling did not focus on the technical arguments about email delivery but on the legal standard of “reasonability” established by A.R.S. § 33-1805.

• Key Findings of Fact:

◦ On March 21, 2025, Respondent issued a Cease and Desist letter demanding the Petitioner stop email communication with the community manager.

◦ The letter specified a new procedure: “any concerns or correspondence must be submitted in written form and mailed to the Association’s management office at the following address.”

◦ The letter also stated that Respondent would continue to comply with records requests.

◦ Prior to this letter, it was undisputed that the community manager was the appropriate recipient for such requests.

• Conclusions of Law and Rationale:

◦ The ALJ determined that A.R.S. § 33-1805 does not prohibit an association from establishing a specific, reasonable process for requesting documents.

◦ The Cease and Desist letter provided a “clear process for future requests” for this specific Petitioner.

◦ The requirement to submit requests via physical mail was deemed “reasonable.”

◦ The decision states, “the preponderance of the evidence established that Respondent informed Petitioner about how to submit future requests, and Petitioner disregarded that information.”

◦ The final conclusion was that the Petitioner “failed to meet his burden that the documents were not made reasonably available and that Respondent failed to meet their requirement to produce those documents within ten days.”

The judge noted that the outcome would have been different if the Petitioner had been completely prohibited from contacting the community manager, but the letter provided a specific, alternative method of contact (mail) which the Petitioner chose not to use.