Category Archives: HOA Cases

Virgina Kostman v. Bella Tierra Community Association

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Case Summary

Case ID 25F-H084-REL
Agency ADRE
Tribunal OAH
Decision Date 2026-01-09
Administrative Law Judge Sondra J. Vanella
Outcome yes
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Virginia Kostman Counsel —
Respondent Bella Tierra Community Association Counsel Eric P. O'Connor

Alleged Violations

CC&Rs Article 6.9.1

Outcome Summary

The ALJ affirmed the petition, finding Petitioner established by a preponderance of the evidence that she timely paid the assessment. The failure of receipt was due to Respondent's management transition. Respondent was ordered to refund fees and remove charges.

Key Issues & Findings

Violation of CC&R 6.9.1 regarding assessments and delinquency fees

Petitioner paid the January 2025 assessment timely to the address listed on the bill. The management company changed abruptly, causing the payment to be returned. Respondent assessed delinquency fees despite the payment being timely made to the correct address known at the time.

Orders: Respondent must reimburse Petitioner the $500.00 filing fee, remove delinquency fees from Petitioner's account, and comply with CC&Rs Article 6.9.1.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Video Overview

Audio Overview

Decision Documents

25F-H084-REL Decision – 1373536.pdf

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25F-H084-REL Decision – 1384451.pdf

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25F-H084-REL Decision – 1392666.pdf

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Briefing Doc – 25F-H084-REL


Administrative Briefing: Kostman v. Bella Tierra Community Association (No. 25F-H084-REL)

Executive Summary

This document provides a comprehensive overview of the administrative hearing and subsequent decision in the matter of Virginia Kostman v. Bella Tierra Community Association. The dispute centered on a $20 delinquency fee assessed against a homeowner following a chaotic transition between property management companies.

The Administrative Law Judge (ALJ) ruled in favor of the Petitioner, Virginia Kostman, finding that the Bella Tierra Community Association (Respondent) violated its own Covenants, Conditions, and Restrictions (CC&Rs) by deeming a payment delinquent when it had been sent to the address provided on the official billing statement. The final order mandated the removal of the delinquency fees and required the Respondent to reimburse the Petitioner’s $500.00 filing fee. Subsequent filings indicate the Respondent has failed to comply with the reimbursement order.

Case Overview

• Petitioner: Virginia Kostman

• Respondent: Bella Tierra Community Association

• Management Entities: Platinum Management, Inc. (former); Agave Management Solutions (current).

• Primary Issue: Violation of CC&R Article 6.9.1 regarding the assessment of delinquency and late fees.

• Docket Number: 25F-H084-REL

• Hearing Date: December 30, 2025

Factual Background and Timeline

The dispute originated from the abrupt closure of the Association’s management firm and subsequent communication failures during the transition.

The Management Transition

• December 2024: Platinum Management, Inc. issued the first quarter 2025 assessment bills, which were due January 1, 2025. The bills directed homeowners to send payments to Platinum’s address.

• December 17, 2024: Platinum Management abruptly ceased operations.

• January 2025: Agave Management Solutions, founded by a former Platinum executive assistant, assumed management duties.

• Early January 2025: Agave mailed notices to homeowners regarding an updated mailing address for payments.

The Payment Conflict

• January 31, 2025: Petitioner initiated a bank bill-pay for the assessment. Because she had already received the December bill directing payment to Platinum, the payment was sent to the old address.

• March 4, 2025: Petitioner received notice from her bank—not the Respondent—that the check had been returned and destroyed due to an incorrect address.

• April 3, 2025: Petitioner attempted to notify the Respondent of the issue via their online portal. The Respondent claimed they did not receive this message because the portal was not yet fully operational.

• June 2025: Respondent assessed two delinquency fees totaling $20.00 to the Petitioner’s account for the “unpaid” January assessment.

• July 2025: Petitioner paid the January assessment a second time to resolve the balance.

Analysis of Arguments

Petitioner’s Position

Virginia Kostman argued that she was never delinquent because she followed the instructions provided on the official billing statement. She characterized the HOA’s actions as a “campaign of harassment” and an “extortion racket,” alleging that the management company knowingly assessed fees on homeowners who were victims of the management company’s own relocation errors.

Key Quotes from Petitioner:

• “I paid that assessment the minute I got the bill on time to the correct address. It’s a misstatement of fact to characterize it as an unpaid bill.”

• “They’ve been doing it knowingly… this was not a mistake. This was done on purpose.”

• “Being delinquent still prevents me from voting for the new HOA board… It is entirely possible they’re just doing this on purpose to keep me from being able to vote.”

Respondent’s Position

The Association, represented by counsel Eric O’Connor and witness Sarah Malovich (CFO of Agave Management), argued that the Petitioner was technically delinquent because the payment was not “received” by the current management by the January 31 deadline. They maintained that the delinquency fees were merely pass-through costs for administrative work (sending letters) and not penalties.

Key Quotes from Respondent Representatives:

• Eric O’Connor: “This case does not involve a refusal to accept the payment, a failure to communicate, or an improper assessment of penalties. It involves a delayed payment made unintentionally… and an association that exercised patience.”

• Sarah Malovich: “A delinquency fee is a fee that is charged to the association when letters have to go out to the homeowners… we add that fee to the homeowner’s account so that when the homeowner pays, the association recoups the money.”

Governing Provisions: CC&R Article 6.9.1

The hearing focused on the interpretation of Article 6.9.1, which states:

• Any assessment not paid within 15 days of the due date is deemed delinquent.

• Delinquent assessments bear interest at 12% per annum.

• The Board may establish a late fee not to exceed $15 or 10% of the unpaid amount.

• Late fees may only be imposed after providing notice to the owner that the assessment is overdue.

Administrative Law Judge’s Findings and Decision

The ALJ, Sondra J. Vanella, concluded that the Petitioner established by a preponderance of the evidence that the Respondent violated the CC&Rs.

Findings of Fact

1. Fault of Respondent: The ALJ found that the lack of receipt was due to the “abrupt change in management companies” and not any error by the Petitioner.

2. Timeliness: Because the Petitioner initiated payment by January 31 (the date the HOA considered payments “past due”), and sent it to the only address she had been officially provided at the time of the bill’s issuance, the payment was considered timely.

3. Communication Failures: The Respondent failed to respond to the Petitioner’s April 2025 email and did not notify her of the missing payment until the April statement. The ALJ noted it was “reasonable for Petitioner to have attempted to communicate via the portal in April 2025.”

Final Order

• Affirmation: The Petition was affirmed.

• Fee Removal: Respondent was ordered to remove the $20.00 in delinquency fees from Petitioner’s account.

• Reimbursement: Respondent was ordered to reimburse Petitioner for the $500.00 filing fee.

• Compliance: Respondent was directed to comply with CC&R Article 6.9.1 moving forward.

Post-Hearing Developments

On February 4, 2026, the Petitioner filed an inquiry with the Office of Administrative Hearings (OAH) stating that the HOA was not responding to her requests for the $500.00 payment ordered by the Judge. The OAH issued a Minute Entry stating it could not provide legal advice or take further action regarding a “writ of execution,” as its jurisdiction ended with the issuance of the final order.






Study Guide – 25F-H084-REL


Study Guide: Virginia Kostman v. Bella Tierra Community Association

This study guide provides a comprehensive review of the administrative hearing and subsequent legal decision regarding Case No. 25F-H084-REL. It examines the nuances of community association management, the application of Covenants, Conditions, and Restrictions (CC&Rs), and the procedural mechanics of the Arizona Office of Administrative Hearings.

Part 1: Short-Answer Quiz

Instructions: Answer the following questions in 2-3 sentences based on the provided source context.

1. What specific violation did the Petitioner allege against the Bella Tierra Community Association?

2. How did the timing of Platinum Management’s closure affect the January 2025 assessment payments?

3. What is the legal “burden of proof” in this administrative matter, and who was responsible for meeting it?

4. What was the distinction made by the Respondent’s witness between an “HOA late fee” and a “delinquency fee”?

5. On what date did the Petitioner initiate her bank payment, and why was this date significant to the Respondent’s argument?

6. Why did the Respondent claim they never received the Petitioner’s April 3, 2025, communication?

7. What was the Petitioner’s primary concern regarding her “delinquent” status beyond the $20 fee?

8. What did the Administrative Law Judge (ALJ) determine regarding the responsibility of the management transition?

9. What was the final order regarding the $500 filing fee and the delinquency fees?

10. How did the ALJ respond to the Petitioner’s February 4, 2026, inquiry regarding a “writ of execution”?

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Part 2: Answer Key

1. The Petitioner alleged that the Respondent violated CC&R Article 6.9.1 by failing to deposit her timely assessment payment and subsequently assessing improper delinquency and late fees. She argued that the management company returned her check without notification and refused to communicate for months despite her efforts to resolve the issue.

2. Platinum Management mailed the January 2025 billings in December 2024 but abruptly closed on December 17, 2024, shortly after the invoices were sent. Because the bills contained the old address for Platinum, payments sent by homeowners were returned or destroyed, as the new company, Agave Management, did not have a forwarding system fully in place at that time.

3. The burden of proof was upon the Petitioner, Virginia Kostman, to establish her case by a “preponderance of the evidence.” This standard requires the Petitioner to show that the facts she seeks to prove are more probable than not.

4. Sarah Malovich testified that a late fee is a penalty for delinquent assessments allowed by state statute and CC&Rs, which remains with the association as income. In contrast, a delinquency fee is a “pass-through” cost charged by the management company to the association to cover the expense of sending collection letters.

5. The Petitioner’s bank records showed the payment was initiated on January 31, 2025. The Respondent argued this was untimely because assessments were due January 1, while the ALJ eventually noted that the Association considered payments past due only after January 31, rendering the payment timely.

6. The Respondent claimed the management portal, Vanica, was brand new and not fully operational until April 1, 2025. Sarah Malovich testified that she never received the message and suggested that the transition from using QuickBooks to a formal portal may have caused communication gaps.

7. The Petitioner was concerned that being labeled “delinquent” would strip her of her right to vote during the transition of control from the builder to the homeowners. She argued that the management company was intentionally maintaining her delinquent status to exclude her from participating in the new HOA board elections.

8. The ALJ concluded that it was incumbent upon the Respondent to ensure no interruptions occurred during the management transition. Since the Respondent issued the billing with the Platinum Management address and did not notify residents of the change until January, the failure to receive the payment was not due to any error by the Petitioner.

9. The ALJ affirmed the Petitioner’s petition and ordered the Respondent to reimburse the $500 filing fee. Additionally, the Respondent was ordered to remove the delinquency fees from the Petitioner’s account and comply with CC&R 6.9.1 moving forward.

10. The ALJ issued a Minute Entry stating the office would not consider the inquiry because it was inappropriately sent to the OAH or no further action could be taken. The judge clarified that the Office of Administrative Hearings cannot provide legal advice to litigants.

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Part 3: Essay Questions

Instructions: Use the source materials to develop comprehensive responses to the following prompts. (No answers provided).

1. Systemic Failures in Management Transitions: Analyze how the transition from Platinum Management to Agave Management Solutions created a “perfect storm” of administrative errors. Discuss the responsibilities of a community association to maintain continuity of service and communication during a change in leadership.

2. The Interpretation of CC&R 6.9.1: Examine the language of Article 6.9.1 as provided in the judge’s decision. Evaluate how the specific wording regarding “notice” and “delinquency” applied to the facts of the Kostman case.

3. Good Faith vs. Strict Liability: The Respondent argued they acted in “good faith” and exercised “patience” by waving certain fees, while the Petitioner argued they acted in “bad faith” to prevent her from voting. Compare these two perspectives using evidence from the hearing transcripts.

4. Due Process in Administrative Hearings: Describe the procedural steps of the hearing as outlined by Judge Vanella, including the role of opening statements, witness testimony, cross-examination, and the admission of evidence. How do these procedures ensure a fair outcome for self-represented litigants?

5. Financial and Legal Remediation: Discuss the significance of the ALJ’s final order. Why is the reimbursement of a filing fee sometimes considered a more significant remedy than the removal of the original disputed fees?

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Part 4: Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over federal or state agency hearings, such as Sondra J. Vanella in this matter.

A.R.S. § 32-2199

The Arizona Revised Statute giving the Department of Real Estate jurisdiction to hear disputes between property owners and community associations.

Covenants, Conditions, and Restrictions; the governing documents that dictate the rules and financial obligations of a planned community.

Delinquency Fee

A fee charged to an association by a management company for the administrative cost of sending past-due notices, often passed through to the homeowner.

Department of Real Estate

The state agency responsible for overseeing real estate licenses and homeowner association disputes in Arizona.

Late Fee

A penalty fee (limited to $15 or 10% of the assessment in this case) charged to an owner for failing to pay an assessment on time.

Minute Entry

A brief written record of a court’s or judge’s decision, order, or direction that does not constitute a full formal opinion.

Office of Administrative Hearings (OAH)

An independent agency authorized to conduct hearings for contested matters arising out of state regulation.

Petitioner

The party who files a petition or complaint; in this case, Virginia Kostman.

Preponderance of the Evidence

The standard of proof in civil cases, meaning the evidence shows that a fact is “more probable than not.”

Respondent

The party against whom a petition or complaint is filed; in this case, Bella Tierra Community Association.

Writ of Execution

A court order granted to put in force a judgment of possession obtained by a plaintiff from a court.






Blog Post – 25F-H084-REL


The $20 Fee That Cost $500: A Masterclass in Standing Up to HOA Bureaucracy

1. Introduction: The Homeowner’s Nightmare

Imagine doing everything right: you receive a bill, you mail your payment to the address provided, and you assume the matter is settled. Then, months later, you discover you have been labeled “delinquent.” You try to call; no one answers. You use the company’s own online portal to explain the situation, and your message vanishes into a digital black hole. While you are being ghosted, the fees continue to pile up.

This was the reality for Virginia Kostman, a homeowner in Tucson’s Bella Tierra community. What began as a routine quarterly assessment spiraled into a legal battle over a $20 “delinquency fee.” In a display of sheer investigative grit, Kostman paid a $500 filing fee to take her Homeowners Association (HOA) to the Arizona Office of Administrative Hearings. Her story is more than a dispute over pocket change; it is a masterclass in how to dismantle bureaucratic gaslighting and hold faceless management companies accountable.

2. Takeaway 1: You Aren’t Responsible for “Management Ghosting”

The conflict began during a chaotic shell game between management firms. In late 2024, Platinum Management—the company then representing the community—abruptly closed its doors on December 17th. This was a week after bills were sent but before the January 1st due date, effectively setting a trap for every resident who followed the instructions on their statement.

A “new” firm, Agave Management Solutions, took over in January 2025. Investigative scrutiny reveals the players didn’t actually change: Agave was founded by Jaimie Petty, who had been the executive assistant to the owner of the defunct Platinum Management. Despite this “same players, different name” reality, Agave penalized Kostman because her check arrived at Platinum’s shuttered office. Administrative Law Judge Sondra J. Vanella ruled that the burden of business continuity rests on the HOA, not the resident.

3. Takeaway 2: The “Portal” is a Digital Shield for Incompetence

When Kostman realized her payment hadn’t been processed, she attempted to use Agave’s online portal to resolve the issue. On April 3rd, she sent an email through the site. Agave’s Chief Financial Officer, Sarah Malovich, later testified that the company never received the message because the company was “still getting up and running.”

The investigative “smoking gun” lies in the contradiction of Malovich’s own testimony. She claimed the portal went live on April 1st, yet suggested a message sent two days later on April 3rd vanished because of technical infancy. Agave created a digital black hole, then penalized a homeowner for falling into it. This discrepancy highlights a systemic HOA tactic: using “new technology” as a shield for administrative incompetence while continuing to issue automated delinquency notices.

4. Takeaway 3: “Delinquency” is a Political Tool, Not Just a Financial One

The most alarming revelation from the hearing transcripts is that this $20 fee was a gatekeeping mechanism. The Bella Tierra HOA was transitioning from “builder control” (KB Homes) to homeowner control. Under the community’s governing documents (CC&R 6.9.1), any homeowner labeled as “delinquent” can be barred from voting for the new HOA board.

Kostman’s testimony revealed a struggle for democracy. She feared the Petty family—acting as agents for KB Homes—was using the $20 delinquency status to silence dissent and prevent homeowners from voting them out. This elevates the case from a petty fee dispute to a David vs. Goliath battle over community governance. When an HOA labels you delinquent over a disputed $20, they aren’t just taking your money; they are taking your voice.

5. Takeaway 4: The $500 Gamble for a $20 Injustice

To a casual observer, spending $500 to dispute $20 is a mathematical failure. To a consumer advocate, it is a strategic strike. By paying the filing fee for an Administrative Hearing, Kostman forced the HOA to hire expensive legal counsel and defend their “extortion racket” (as she termed it) in a court of record.

The gamble paid off. Judge Vanella didn’t just order the removal of the $20 delinquency fees; she ordered the HOA to reimburse Kostman for the $500 filing fee. By standing her ground, Kostman turned the tables, making the Association’s predatory administrative practices a net financial loss for them.

6. Takeaway 5: The Court’s Cold Shoulder: When a Win is Just a Piece of Paper

Winning in court is only half the battle; collecting the judgment is the other. A “Minute Entry” filed in February 2026—over a month after the final order—revealed that the HOA had still not paid the $500 reimbursement. When Kostman asked the court how to file a “writ of execution” to force payment, the court’s response was a chilling reminder of the limits of the legal system.

The Judge noted that the court could not provide legal advice and that Kostman’s inquiry “will not be considered.” This is the sobering reality of consumer litigation: even with a signed order from an Administrative Law Judge, a recalcitrant board can remain defiant, leaving the homeowner holding a “paper victory” while the HOA ignores the debt.

7. Conclusion: The Power of the Paper Trail

Virginia Kostman’s victory rested on a single, unassailable fact: she kept the receipts. She produced a bank bill-pay record initiated on January 31st, proving her intent to pay the address provided on the only official bill she had received. Without that digital and paper trail, the management company’s ledger would have been the final word.

In an era of shifting management companies and automated portals that “malfunction” at convenient times, are you keeping the records necessary to protect your home? As this case proves, a $20 fee isn’t always about the money—it’s about control. And as of February 2026, with the HOA still refusing to cut the check, the question remains: are you prepared for the long game required to actually get paid?


Case Participants

Petitioner Side

  • Virgina Kostman (petitioner)
    Spelled 'Virginia' in body of decision; appeared on own behalf

Respondent Side

  • Eric P. O’Connor (HOA attorney)
    Gordon Rees Scully Mansukhani, LLP
    Represented Bella Tierra Community Association
  • Sarah Malovich (witness)
    Agave Management Solutions
    CFO of Agave Management Solutions
  • Jaimie Petty (property manager)
    Agave Management Solutions
    Founder of Agave; former executive assistant at Platinum Management
  • Kathleen Petty (property manager)
    Platinum Management, Inc.
    Owner of Platinum Management; retired

Neutral Parties

  • Sondra J. Vanella (ALJ)
    Office of Administrative Hearings
    Presiding Administrative Law Judge
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
    Received copy of decision

Jeremy Whittaker vs Val Vista Lakes Community Association

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Case Summary

Case ID 25F-H049-REL
Agency ADRE
Tribunal OAH
Decision Date 2025-12-02
Administrative Law Judge Adam D. Stone
Outcome none
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jeremy Whittaker Counsel —
Respondent Val Vista Lakes Community Association Counsel B. Austin Baillio

Alleged Violations

A.R.S. § 33-1811

Outcome Summary

The Administrative Law Judge denied the petition, ruling that the Association did not violate A.R.S. § 33-1811. The ALJ interpreted the statute's phrase 'action for compensation' to require proof that the conflicted director's relative received direct additional compensation (such as a bonus or raise) resulting from the contract. Since the Petitioner did not prove the relative received such specific compensation, the Tribunal concluded the statute was not triggered, despite acknowledging the relationship existed.

Why this result: Petitioner failed to prove by a preponderance of the evidence that the board members' relative received a direct financial benefit (compensation) from the specific contracts, which the ALJ deemed necessary to trigger the statutory disclosure requirement.

Key Issues & Findings

Conflict of interest; contracts

Petitioner argued contracts with CHDB Law were void because two directors were immediate family to a partner at the firm and failed to disclose this conflict in open meetings before action was taken.

Orders: Petition denied. Tribunal found Petitioner did not sustain burden of proof that a violation of A.R.S. § 33-1811 occurred.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1811

Audio Overview

Decision Documents

25F-H049-REL Decision – 1325671.pdf

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25F-H049-REL Decision – 1326128.pdf

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25F-H049-REL Decision – 1327595.pdf

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25F-H049-REL Decision – 1328824.pdf

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25F-H049-REL Decision – 1340610.pdf

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25F-H049-REL Decision – 1341273.pdf

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25F-H049-REL Decision – 1341623.pdf

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25F-H049-REL Decision – 1346067.pdf

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25F-H049-REL Decision – 1346912.pdf

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25F-H049-REL Decision – 1350318.pdf

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25F-H049-REL Decision – 1355212.pdf

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25F-H049-REL Decision – 1367233.pdf

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25F-H049-REL Decision – 1374019.pdf

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Briefing Doc – 25F-H049-REL


Briefing Document: Analysis of Whitaker v. Val Vista Lakes Community Association Hearing

Executive Summary

This document synthesizes testimony and arguments from the administrative hearing in the matter of Whitaker v. Val Vista Lakes Community Association (Docket 25F-H049-REL). The central issue is an alleged violation of Arizona Revised Statute (ARS) § 33-1811, which governs conflicts of interest for board members of homeowners associations. The petitioner, Jeremy Whitaker, alleges that board members Diana Evershower and Brody Herado failed to properly declare conflicts of interest arising from their familial relationships with Jonathan Evershower, a partner at the association’s legal counsel, Carpenter Hazlewood Delgado Bolan (CHDB).

The petitioner contends that numerous actions for compensation involving CHDB—including new engagements, litigation directives, rate increases, and invoice approvals—were undertaken without the required per-issue conflict declarations in an open meeting, as mandated by statute. The respondent, Val Vista Lakes, counters that the statute places the onus on individual directors, not the association, and that no violation occurred because there was no direct financial or other tangible benefit to the directors or their relative. Furthermore, the respondent argues that potential conflicts were disclosed, and that sensitive legal matters are appropriately handled in executive session to protect attorney-client privilege. The hearing featured conflicting testimony from current and former board members, centering on the interpretation of “benefit” under the statute, whether required disclosures were ever made publicly, and the procedural validity of the association’s engagement with its legal counsel.

Central Dispute: Interpretation and Application of ARS § 33-1811

The core of the case revolves around the specific requirements of ARS § 33-1811. The statute dictates that if a board action for compensation would “benefit” a director or their immediate family (including a spouse or child), that director “shall declare a conflict of interest for that issue.” The statute further specifies the declaration must be made “in an open meeting of the board of directors before the board discusses or takes action on that issue.”

Petitioner’s Position

• Per-Transaction Disclosure: The petitioner argues, citing the Arizona Court of Appeals case Arizona’s Biltmore Hotel Villas v. Tomlinfinny, that conflict disclosures must be transaction-specific and contemporaneous. A single, past disclosure is legally insufficient to cover all future actions.

• Broad Definition of “Benefit”: The word “financial” does not appear in the statute. The petitioner posits that “benefit” encompasses more than direct pecuniary gain, including reputational enhancement, shared overhead costs, and the overall economic health of the law firm, which benefits all partners.

• Open Meeting Mandate is Absolute: Disclosures made in executive session or implied through email votes do not satisfy the statute’s explicit “open meeting” requirement. The petitioner asserts that the proper procedure is to declare the conflict in an open session before recessing to an executive session for privileged discussion.

• Association Liability: The actions were taken by individuals acting in their official capacity as board members, making the association liable for the violations.

Respondent’s Position

• No Association Duty: The respondent’s counsel argues that ARS § 33-1811 imposes a duty on individual board members, not the association as an entity. Therefore, the association cannot, as a matter of law, violate the statute.

• No Proven Benefit: The central defense is that no benefit accrued to the directors or their relative. Testimony asserts Jonathan Evershower is a “named partner” but not a shareholder, receives no bonuses, and his salary is derived solely from his own billable hours on matters unrelated to Val Vista Lakes.

• Conflict with Attorney-Client Privilege: The respondent contends that forcing disclosures of legal engagements into open session would conflict with ARS § 33-1804, which authorizes legal discussions in executive session to protect attorney-client privilege.

• Superior Court Precedent: Counsel claims a Maricopa County Superior Court judge has already ruled in a related matter (Nathan Brown lawsuit) that no violation of the statute occurred.

The Alleged Conflict of Interest

The conflict centers on two board members and their relationship to a partner at the CHDB law firm.

• Diana Evershower: Board Treasurer and mother of Jonathan Evershower.

• Brody Herado: Board member and husband of Jonathan Evershower.

• Jonathan Evershower: Identified as a “named partner” at CHDB Law. Testimony indicates he is not a shareholder, receives no bonuses, and his compensation is based on his personal billable hours for clients other than Val Vista Lakes. He does not perform any work for the Val Vista Lakes account.

Key Areas of Contention and Evidence

1. The Nature of “Benefit”

A significant portion of testimony was dedicated to defining whether Jonathan Evershower and, by extension, his family on the board, benefited from CHDB’s work for the association.

Arguments for Benefit (Petitioner)

Arguments Against Benefit (Respondent)

Reputational Benefit: Witness Bill Satell, an attorney and former board president, testified that securing a large client like Val Vista Lakes (over 2,000 members) provides a significant “reputational benefit” that helps the firm attract more clients. He cited a CHDB legal brief where the firm touted itself as “one of the largest community association law firms in the southwest” as evidence of this marketing advantage.

No Financial Link: Brody Herado and Diana Evershower testified that their relative receives no direct financial gain, bonuses, or partnership distributions from Val Vista Lakes’ business. His salary is described as entirely separate from this revenue stream.

Shared Overhead and Firm Viability: Mr. Satell and Mr. Thompson testified that revenue from any client contributes to the firm’s overall health, paying for shared overhead (rent, utilities, malpractice insurance) and ensuring its continued existence, which benefits all partners.

Speculative and Intangible: Respondent’s counsel dismissed the idea of “reputational benefit” as vague, speculative, and not the intended scope of the statute, which was designed to prevent kickback schemes.

Statutory Language: The petitioner repeatedly emphasized that the statute uses the word “benefit” without the qualifier “financial,” implying a broader legislative intent.

“Amazon” Analogy: Respondent’s counsel offered a hypothetical: if a board member worked for Amazon, they would not be expected to declare a conflict every time the association bought lake chemicals from Amazon, as the benefit is too remote.

2. The Disclosure Controversy

Whether any valid disclosures were ever made is a central factual dispute.

• Petitioner’s Evidence: The petitioner claims that despite subpoenas for all open meeting conflict declarations and a review of all open meeting video recordings, the respondent produced no evidence of a valid, per-issue declaration being made in an open meeting. Witnesses Sharon Maiden and Mark Thompson testified they never saw such a disclosure.

• Respondent’s Evidence:

◦ Brody Herado and Diana Evershower testified they did disclose their “potential conflict” or relationship multiple times.

◦ Specific instances cited include a town hall meeting, a board training session, and a February 2023 or 2024 open meeting regarding the renewal of a contract for the management company, First Service Residential (FSR).

◦ However, both witnesses were unable to provide specific dates or point to meeting minutes or videos for most other alleged disclosures, particularly those related to specific legal engagements.

◦ A key piece of evidence introduced by the petitioner is a legal brief from a prior hearing (Exhibit C) where the respondent’s counsel, Joshua Bolan, stated that Mr. Herado and Mrs. Evershower “disclose[d] their conflict to the newly elected board as required by Arizona law” in the “first executive session.”

3. Procedural and Contractual Disputes

The process by which CHDB was engaged and compensated was heavily scrutinized.

• The 2005 Engagement Letter: The respondent claims a 2005 engagement letter with Carpenter Hazelwood (CHDB’s predecessor) remains in effect and authorizes ongoing legal work without new board votes. Former board presidents Satell and Maiden testified that during their tenures, other firms were appointed as general counsel, superseding any prior agreement, and that they were unaware of the 2005 letter. The petitioner notes the letter is unsigned by any association representative and is not supported by any meeting minutes.

• Executive Session and Email Votes: Testimony and exhibits (emails, executive session minutes) showed that decisions to engage CHDB for specific matters, such as the Nathan Brown lawsuit, were made either via unanimous consent emails or in executive session. This prevented any possibility of an open meeting disclosure before the board acted.

• Rate Increases: Former director Mark Thompson testified that a CHDB rate sheet proposing new 2025 rates was provided to the board as part of an executive session packet and was never discussed in an open meeting. He affirmed that this constituted an “action for compensation” under the statute.

• Insurance Company Engagement: For the Nathan Brown lawsuit, the respondent argues the ultimate decision to hire CHDB was made by the association’s insurance carrier, not the board, thereby negating any conflict. The petitioner and witness Sharon Maiden counter-testified that the board first voted to engage CHDB on the matter in December 2023, months before it was turned over to insurance in February 2024.

Summary of Key Witness Testimonies

Witness

Key Testimony Points

Brody Herado

Board Member

Acknowledged his husband is a partner at CHDB but claimed there is no actual conflict due to a lack of financial benefit. Testified he disclosed the relationship in open and executive sessions “multiple times,” specifically citing a February 2023/2024 FSR meeting, but could not recall other specific dates.

Diana Evershower

Board Treasurer

Stated she does not believe a conflict exists but disclosed a “potential conflict” as advised during a board training. Denied personally approving a CHDB invoice despite her name appearing on the general ledger. Claimed disclosures were made but could not provide specific dates or meeting minutes.

Bill Satell

Former President, Attorney

Opined that a conflict exists under a broad reading of “benefit,” including reputational gain. Testified CHDB was not general counsel during his tenure and was superseded by other firms.

Sharon Maiden

Former President

Testified CHDB was not general counsel during her tenure. Stated she never witnessed Herado or Evershower make an open meeting conflict declaration on a CHDB matter. Confirmed votes to engage CHDB were taken in executive session or via email. Described a scheduled open meeting to discuss the conflict being canceled after the board majority became “unavailable.”

Mark Thompson

Former Director

Testified he never witnessed an open meeting declaration by Herado or Evershower regarding CHDB. Confirmed a CHDB rate sheet was discussed exclusively in executive session. Stated he received a letter from CHDB’s counsel, Joshua Bolan, which he perceived as threatening and intimidating regarding his testimony.






Study Guide – 25F-H049-REL


{ “case”: { “docket_no”: “25F-H049-REL”, “case_title”: “Jeremy Whittaker v. Val Vista Lakes Community Association”, “decision_date”: “2025-12-02”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If a board member’s relative works for a vendor hired by the HOA, is that automatically a conflict of interest requiring disclosure?”, “short_answer”: “Not necessarily. The ALJ ruled that if there is no evidence the relative received specific additional compensation (like a bonus or raise) from the contract, a violation may not exist.”, “detailed_answer”: “The ALJ determined that a conflict of interest under A.R.S. § 33-1811 requires evidence that the specific contract or decision resulted in compensation for the relative. In this case, testimony indicated the relative received a salary based on their own billable hours, not the HOA’s contract.”, “alj_quote”: “Mr. Whittaker did not present any evidence that Mr. Ebertshauser received any additional compensation such as a raise, a bonus or other incentive from CHDB Law once they were hired by Val Vista Lakes.”, “legal_basis”: “A.R.S. § 33-1811”, “topic_tags”: [ “conflict of interest”, “vendor contracts”, “compensation” ] }, { “question”: “Does a law firm paying for a relative’s office space or insurance count as ‘compensation’ that triggers a conflict of interest?”, “short_answer”: “No. The ALJ distinguished between a ‘benefit’ (like overhead) and ‘compensation,’ ruling that the statute requires the latter.”, “detailed_answer”: “The decision clarified that while professional overhead provided by a firm is a benefit to an employee/partner, it does not constitute ‘compensation’ under the statute’s requirement for a ‘contract, decision or other action for compensation.'”, “alj_quote”: “Further, the fact that a law firm pays for malpractice insurance, or an office space, is not compensation, rather it is a benefit.”, “legal_basis”: “A.R.S. § 33-1811”, “topic_tags”: [ “legal definitions”, “financial benefit” ] }, { “question”: “Is a board member legally required to abstain from voting if they have a conflict of interest?”, “short_answer”: “No. While the ALJ noted it is a ‘best practice’ to abstain, the statute only mandates disclosure, not recusal.”, “detailed_answer”: “The decision clarifies that Arizona law requires a board member to declare the conflict in an open meeting before the discussion or action, but it explicitly permits them to vote on the issue after doing so.”, “alj_quote”: “Admittedly, the best practice of a Board member would be to abstain from voting, however, the statute does not require the same.”, “legal_basis”: “A.R.S. § 33-1811”, “topic_tags”: [ “voting rights”, “board ethics”, “abstention” ] }, { “question”: “Does the type of partnership a relative holds in a firm matter for conflict of interest purposes?”, “short_answer”: “Yes. The ALJ indicated that a ‘true shareholder with profit sharing’ would create a conflict, whereas a partner receiving only a salary might not.”, “detailed_answer”: “The ALJ distinguished between partners who share in the firm’s overall profits (which would be affected by the HOA contract) and those who are salaried based on their own work. Without evidence of profit sharing, the conflict was not proven.”, “alj_quote”: “If Mr. Ebertshauser was a sole practitioner and/or a true shareholder with profit sharing, there would absolutely be a conflict of interest which would need to be disclosed by Ms. Ebertshauser and Mr. Hurtado.”, “legal_basis”: “A.R.S. § 33-1811”, “topic_tags”: [ “profit sharing”, “corporate structure”, “conflict of interest” ] }, { “question”: “Who has the burden of proof in an HOA dispute hearing?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof by a preponderance of the evidence.”, “detailed_answer”: “The homeowner filing the petition must prove that the HOA violated the statute or governing documents. In this case, the Petitioner failed to demonstrate the violation.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated A.R.S. § 33-1811 by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 41-1092.07(G)(2)”, “topic_tags”: [ “burden of proof”, “legal procedure” ] }, { “question”: “Can I recover my filing fee if I lose my hearing against the HOA?”, “short_answer”: “No. The filing fee is only awarded if the Petitioner prevails.”, “detailed_answer”: “Because the tribunal denied the petition, the homeowner was not entitled to reimbursement of the $500 filing fee.”, “alj_quote”: “IT IS ORDERED that Petitioners’ petition is denied as to a violation of A.R.S. 33-1811, and Petitioner is not entitled to his filing fee of $500.00.”, “legal_basis”: “A.R.S. § 32-2199”, “topic_tags”: [ “filing fees”, “penalties” ] } ] }






Blog Post – 25F-H049-REL


{ “case”: { “docket_no”: “25F-H049-REL”, “case_title”: “Jeremy Whittaker v. Val Vista Lakes Community Association”, “decision_date”: “2025-12-02”, “alj_name”: “Adam D. Stone”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “If a board member’s relative works for a vendor hired by the HOA, is that automatically a conflict of interest requiring disclosure?”, “short_answer”: “Not necessarily. The ALJ ruled that if there is no evidence the relative received specific additional compensation (like a bonus or raise) from the contract, a violation may not exist.”, “detailed_answer”: “The ALJ determined that a conflict of interest under A.R.S. § 33-1811 requires evidence that the specific contract or decision resulted in compensation for the relative. In this case, testimony indicated the relative received a salary based on their own billable hours, not the HOA’s contract.”, “alj_quote”: “Mr. Whittaker did not present any evidence that Mr. Ebertshauser received any additional compensation such as a raise, a bonus or other incentive from CHDB Law once they were hired by Val Vista Lakes.”, “legal_basis”: “A.R.S. § 33-1811”, “topic_tags”: [ “conflict of interest”, “vendor contracts”, “compensation” ] }, { “question”: “Does a law firm paying for a relative’s office space or insurance count as ‘compensation’ that triggers a conflict of interest?”, “short_answer”: “No. The ALJ distinguished between a ‘benefit’ (like overhead) and ‘compensation,’ ruling that the statute requires the latter.”, “detailed_answer”: “The decision clarified that while professional overhead provided by a firm is a benefit to an employee/partner, it does not constitute ‘compensation’ under the statute’s requirement for a ‘contract, decision or other action for compensation.'”, “alj_quote”: “Further, the fact that a law firm pays for malpractice insurance, or an office space, is not compensation, rather it is a benefit.”, “legal_basis”: “A.R.S. § 33-1811”, “topic_tags”: [ “legal definitions”, “financial benefit” ] }, { “question”: “Is a board member legally required to abstain from voting if they have a conflict of interest?”, “short_answer”: “No. While the ALJ noted it is a ‘best practice’ to abstain, the statute only mandates disclosure, not recusal.”, “detailed_answer”: “The decision clarifies that Arizona law requires a board member to declare the conflict in an open meeting before the discussion or action, but it explicitly permits them to vote on the issue after doing so.”, “alj_quote”: “Admittedly, the best practice of a Board member would be to abstain from voting, however, the statute does not require the same.”, “legal_basis”: “A.R.S. § 33-1811”, “topic_tags”: [ “voting rights”, “board ethics”, “abstention” ] }, { “question”: “Does the type of partnership a relative holds in a firm matter for conflict of interest purposes?”, “short_answer”: “Yes. The ALJ indicated that a ‘true shareholder with profit sharing’ would create a conflict, whereas a partner receiving only a salary might not.”, “detailed_answer”: “The ALJ distinguished between partners who share in the firm’s overall profits (which would be affected by the HOA contract) and those who are salaried based on their own work. Without evidence of profit sharing, the conflict was not proven.”, “alj_quote”: “If Mr. Ebertshauser was a sole practitioner and/or a true shareholder with profit sharing, there would absolutely be a conflict of interest which would need to be disclosed by Ms. Ebertshauser and Mr. Hurtado.”, “legal_basis”: “A.R.S. § 33-1811”, “topic_tags”: [ “profit sharing”, “corporate structure”, “conflict of interest” ] }, { “question”: “Who has the burden of proof in an HOA dispute hearing?”, “short_answer”: “The homeowner (Petitioner) bears the burden of proof by a preponderance of the evidence.”, “detailed_answer”: “The homeowner filing the petition must prove that the HOA violated the statute or governing documents. In this case, the Petitioner failed to demonstrate the violation.”, “alj_quote”: “Petitioner bears the burden of proof to establish that Respondent violated A.R.S. § 33-1811 by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 41-1092.07(G)(2)”, “topic_tags”: [ “burden of proof”, “legal procedure” ] }, { “question”: “Can I recover my filing fee if I lose my hearing against the HOA?”, “short_answer”: “No. The filing fee is only awarded if the Petitioner prevails.”, “detailed_answer”: “Because the tribunal denied the petition, the homeowner was not entitled to reimbursement of the $500 filing fee.”, “alj_quote”: “IT IS ORDERED that Petitioners’ petition is denied as to a violation of A.R.S. 33-1811, and Petitioner is not entitled to his filing fee of $500.00.”, “legal_basis”: “A.R.S. § 32-2199”, “topic_tags”: [ “filing fees”, “penalties” ] } ] }


Case Participants

Petitioner Side

  • Jeremy Whittaker (petitioner)
    Homeowner
    Appeared on his own behalf
  • Mark Thompson (witness)
    Former Board Member
    Called by Petitioner; testified regarding lack of disclosure
  • Sharon Maiden (witness)
    Former Board President
    Called by Petitioner; testified regarding lack of open meeting disclosures
  • Bill Suttell (witness)
    Former Board President/Attorney
    Called by Petitioner; testified regarding general counsel history and reputational benefit

Respondent Side

  • B. Austin Baillio (attorney)
    Maxwell & Morgan, P.C.
    Represented Val Vista Lakes Community Association
  • Brodie Hurtado (witness)
    Board Member
    Called by Petitioner; spouse of Jonathan Ebertshauser; denied conflict/financial benefit
  • Diana Ebertshauser (witness)
    Board Member/Treasurer
    Called by Petitioner; mother of Jonathan Ebertshauser; denied conflict/financial benefit
  • Jonathan Ebertshauser (attorney)
    CHDB Law
    Partner at CHDB Law; relative of directors Hurtado and Diana Ebertshauser
  • Josh Bolen (attorney)
    CHDB Law
    General Counsel for Association; mentioned in testimony regarding executive sessions
  • Laura Tannery (property manager)
    FirstService Residential
    General Manager
  • Bryan Patterson (board member)
    Board President
    Present at hearing as board representative
  • Karen Lewis (board member)
    Board Secretary
    Mentioned in meeting minutes
  • Brian Solomon (board member)
    Board Treasurer
    Mentioned in meeting minutes
  • Jacob Broderick (board member)
    Board Vice-President
    Mentioned in meeting minutes
  • Kevin McPhillips (board member)
    Director
    Mentioned in meeting minutes

Neutral Parties

  • Adam D. Stone (ALJ)
    Office of Administrative Hearings
    Presiding Administrative Law Judge
  • Susan Nicolson (commissioner)
    Arizona Department of Real Estate

Other Participants

  • Curtis Ekmark (attorney)
    Carpenter Hazlewood (former)
    Mentioned in testimony regarding past legal work
  • Lynn Krupnik (attorney)
    Krupnik & Speas
    Mentioned in testimony as former General Counsel

Jeremy Whittaker vs Val Vista Lakes Community Association

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Case Summary

Case ID 25F-H049-REL
Agency ADRE
Tribunal OAH
Decision Date 2025-12-02
Administrative Law Judge Adam D. Stone
Outcome none
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jeremy Whittaker Counsel —
Respondent Val Vista Lakes Community Association Counsel B. Austin Baillio

Alleged Violations

A.R.S. § 33-1811

Outcome Summary

The Administrative Law Judge denied the petition, ruling that the Association did not violate A.R.S. § 33-1811. The ALJ interpreted the statute's phrase 'action for compensation' to require proof that the conflicted director's relative received direct additional compensation (such as a bonus or raise) resulting from the contract. Since the Petitioner did not prove the relative received such specific compensation, the Tribunal concluded the statute was not triggered, despite acknowledging the relationship existed.

Why this result: Petitioner failed to prove by a preponderance of the evidence that the board members' relative received a direct financial benefit (compensation) from the specific contracts, which the ALJ deemed necessary to trigger the statutory disclosure requirement.

Key Issues & Findings

Conflict of interest; contracts

Petitioner argued contracts with CHDB Law were void because two directors were immediate family to a partner at the firm and failed to disclose this conflict in open meetings before action was taken.

Orders: Petition denied. Tribunal found Petitioner did not sustain burden of proof that a violation of A.R.S. § 33-1811 occurred.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1811

Decision Documents

25F-H049-REL Decision – 1325671.pdf

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25F-H049-REL Decision – 1326128.pdf

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25F-H049-REL Decision – 1327595.pdf

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25F-H049-REL Decision – 1328824.pdf

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25F-H049-REL Decision – 1340610.pdf

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25F-H049-REL Decision – 1341273.pdf

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25F-H049-REL Decision – 1341623.pdf

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25F-H049-REL Decision – 1346067.pdf

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25F-H049-REL Decision – 1346912.pdf

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25F-H049-REL Decision – 1350318.pdf

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25F-H049-REL Decision – 1355212.pdf

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25F-H049-REL Decision – 1367233.pdf

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25F-H049-REL Decision – 1374019.pdf

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Briefing Doc – 25F-H049-REL


Briefing Document: Analysis of Whitaker v. Val Vista Lakes Community Association Hearing

Executive Summary

This document synthesizes testimony and arguments from the administrative hearing in the matter of Whitaker v. Val Vista Lakes Community Association (Docket 25F-H049-REL). The central issue is an alleged violation of Arizona Revised Statute (ARS) § 33-1811, which governs conflicts of interest for board members of homeowners associations. The petitioner, Jeremy Whitaker, alleges that board members Diana Evershower and Brody Herado failed to properly declare conflicts of interest arising from their familial relationships with Jonathan Evershower, a partner at the association’s legal counsel, Carpenter Hazlewood Delgado Bolan (CHDB).

The petitioner contends that numerous actions for compensation involving CHDB—including new engagements, litigation directives, rate increases, and invoice approvals—were undertaken without the required per-issue conflict declarations in an open meeting, as mandated by statute. The respondent, Val Vista Lakes, counters that the statute places the onus on individual directors, not the association, and that no violation occurred because there was no direct financial or other tangible benefit to the directors or their relative. Furthermore, the respondent argues that potential conflicts were disclosed, and that sensitive legal matters are appropriately handled in executive session to protect attorney-client privilege. The hearing featured conflicting testimony from current and former board members, centering on the interpretation of “benefit” under the statute, whether required disclosures were ever made publicly, and the procedural validity of the association’s engagement with its legal counsel.

Central Dispute: Interpretation and Application of ARS § 33-1811

The core of the case revolves around the specific requirements of ARS § 33-1811. The statute dictates that if a board action for compensation would “benefit” a director or their immediate family (including a spouse or child), that director “shall declare a conflict of interest for that issue.” The statute further specifies the declaration must be made “in an open meeting of the board of directors before the board discusses or takes action on that issue.”

Petitioner’s Position

• Per-Transaction Disclosure: The petitioner argues, citing the Arizona Court of Appeals case Arizona’s Biltmore Hotel Villas v. Tomlinfinny, that conflict disclosures must be transaction-specific and contemporaneous. A single, past disclosure is legally insufficient to cover all future actions.

• Broad Definition of “Benefit”: The word “financial” does not appear in the statute. The petitioner posits that “benefit” encompasses more than direct pecuniary gain, including reputational enhancement, shared overhead costs, and the overall economic health of the law firm, which benefits all partners.

• Open Meeting Mandate is Absolute: Disclosures made in executive session or implied through email votes do not satisfy the statute’s explicit “open meeting” requirement. The petitioner asserts that the proper procedure is to declare the conflict in an open session before recessing to an executive session for privileged discussion.

• Association Liability: The actions were taken by individuals acting in their official capacity as board members, making the association liable for the violations.

Respondent’s Position

• No Association Duty: The respondent’s counsel argues that ARS § 33-1811 imposes a duty on individual board members, not the association as an entity. Therefore, the association cannot, as a matter of law, violate the statute.

• No Proven Benefit: The central defense is that no benefit accrued to the directors or their relative. Testimony asserts Jonathan Evershower is a “named partner” but not a shareholder, receives no bonuses, and his salary is derived solely from his own billable hours on matters unrelated to Val Vista Lakes.

• Conflict with Attorney-Client Privilege: The respondent contends that forcing disclosures of legal engagements into open session would conflict with ARS § 33-1804, which authorizes legal discussions in executive session to protect attorney-client privilege.

• Superior Court Precedent: Counsel claims a Maricopa County Superior Court judge has already ruled in a related matter (Nathan Brown lawsuit) that no violation of the statute occurred.

The Alleged Conflict of Interest

The conflict centers on two board members and their relationship to a partner at the CHDB law firm.

• Diana Evershower: Board Treasurer and mother of Jonathan Evershower.

• Brody Herado: Board member and husband of Jonathan Evershower.

• Jonathan Evershower: Identified as a “named partner” at CHDB Law. Testimony indicates he is not a shareholder, receives no bonuses, and his compensation is based on his personal billable hours for clients other than Val Vista Lakes. He does not perform any work for the Val Vista Lakes account.

Key Areas of Contention and Evidence

1. The Nature of “Benefit”

A significant portion of testimony was dedicated to defining whether Jonathan Evershower and, by extension, his family on the board, benefited from CHDB’s work for the association.

Arguments for Benefit (Petitioner)

Arguments Against Benefit (Respondent)

Reputational Benefit: Witness Bill Satell, an attorney and former board president, testified that securing a large client like Val Vista Lakes (over 2,000 members) provides a significant “reputational benefit” that helps the firm attract more clients. He cited a CHDB legal brief where the firm touted itself as “one of the largest community association law firms in the southwest” as evidence of this marketing advantage.

No Financial Link: Brody Herado and Diana Evershower testified that their relative receives no direct financial gain, bonuses, or partnership distributions from Val Vista Lakes’ business. His salary is described as entirely separate from this revenue stream.

Shared Overhead and Firm Viability: Mr. Satell and Mr. Thompson testified that revenue from any client contributes to the firm’s overall health, paying for shared overhead (rent, utilities, malpractice insurance) and ensuring its continued existence, which benefits all partners.

Speculative and Intangible: Respondent’s counsel dismissed the idea of “reputational benefit” as vague, speculative, and not the intended scope of the statute, which was designed to prevent kickback schemes.

Statutory Language: The petitioner repeatedly emphasized that the statute uses the word “benefit” without the qualifier “financial,” implying a broader legislative intent.

“Amazon” Analogy: Respondent’s counsel offered a hypothetical: if a board member worked for Amazon, they would not be expected to declare a conflict every time the association bought lake chemicals from Amazon, as the benefit is too remote.

2. The Disclosure Controversy

Whether any valid disclosures were ever made is a central factual dispute.

• Petitioner’s Evidence: The petitioner claims that despite subpoenas for all open meeting conflict declarations and a review of all open meeting video recordings, the respondent produced no evidence of a valid, per-issue declaration being made in an open meeting. Witnesses Sharon Maiden and Mark Thompson testified they never saw such a disclosure.

• Respondent’s Evidence:

◦ Brody Herado and Diana Evershower testified they did disclose their “potential conflict” or relationship multiple times.

◦ Specific instances cited include a town hall meeting, a board training session, and a February 2023 or 2024 open meeting regarding the renewal of a contract for the management company, First Service Residential (FSR).

◦ However, both witnesses were unable to provide specific dates or point to meeting minutes or videos for most other alleged disclosures, particularly those related to specific legal engagements.

◦ A key piece of evidence introduced by the petitioner is a legal brief from a prior hearing (Exhibit C) where the respondent’s counsel, Joshua Bolan, stated that Mr. Herado and Mrs. Evershower “disclose[d] their conflict to the newly elected board as required by Arizona law” in the “first executive session.”

3. Procedural and Contractual Disputes

The process by which CHDB was engaged and compensated was heavily scrutinized.

• The 2005 Engagement Letter: The respondent claims a 2005 engagement letter with Carpenter Hazelwood (CHDB’s predecessor) remains in effect and authorizes ongoing legal work without new board votes. Former board presidents Satell and Maiden testified that during their tenures, other firms were appointed as general counsel, superseding any prior agreement, and that they were unaware of the 2005 letter. The petitioner notes the letter is unsigned by any association representative and is not supported by any meeting minutes.

• Executive Session and Email Votes: Testimony and exhibits (emails, executive session minutes) showed that decisions to engage CHDB for specific matters, such as the Nathan Brown lawsuit, were made either via unanimous consent emails or in executive session. This prevented any possibility of an open meeting disclosure before the board acted.

• Rate Increases: Former director Mark Thompson testified that a CHDB rate sheet proposing new 2025 rates was provided to the board as part of an executive session packet and was never discussed in an open meeting. He affirmed that this constituted an “action for compensation” under the statute.

• Insurance Company Engagement: For the Nathan Brown lawsuit, the respondent argues the ultimate decision to hire CHDB was made by the association’s insurance carrier, not the board, thereby negating any conflict. The petitioner and witness Sharon Maiden counter-testified that the board first voted to engage CHDB on the matter in December 2023, months before it was turned over to insurance in February 2024.

Summary of Key Witness Testimonies

Witness

Key Testimony Points

Brody Herado

Board Member

Acknowledged his husband is a partner at CHDB but claimed there is no actual conflict due to a lack of financial benefit. Testified he disclosed the relationship in open and executive sessions “multiple times,” specifically citing a February 2023/2024 FSR meeting, but could not recall other specific dates.

Diana Evershower

Board Treasurer

Stated she does not believe a conflict exists but disclosed a “potential conflict” as advised during a board training. Denied personally approving a CHDB invoice despite her name appearing on the general ledger. Claimed disclosures were made but could not provide specific dates or meeting minutes.

Bill Satell

Former President, Attorney

Opined that a conflict exists under a broad reading of “benefit,” including reputational gain. Testified CHDB was not general counsel during his tenure and was superseded by other firms.

Sharon Maiden

Former President

Testified CHDB was not general counsel during her tenure. Stated she never witnessed Herado or Evershower make an open meeting conflict declaration on a CHDB matter. Confirmed votes to engage CHDB were taken in executive session or via email. Described a scheduled open meeting to discuss the conflict being canceled after the board majority became “unavailable.”

Mark Thompson

Former Director

Testified he never witnessed an open meeting declaration by Herado or Evershower regarding CHDB. Confirmed a CHDB rate sheet was discussed exclusively in executive session. Stated he received a letter from CHDB’s counsel, Joshua Bolan, which he perceived as threatening and intimidating regarding his testimony.


Case Participants

Petitioner Side

  • Jeremy Whittaker (petitioner)
    Homeowner
    Appeared on his own behalf
  • Mark Thompson (witness)
    Former Board Member
    Called by Petitioner; testified regarding lack of disclosure
  • Sharon Maiden (witness)
    Former Board President
    Called by Petitioner; testified regarding lack of open meeting disclosures
  • Bill Suttell (witness)
    Former Board President/Attorney
    Called by Petitioner; testified regarding general counsel history and reputational benefit

Respondent Side

  • B. Austin Baillio (attorney)
    Maxwell & Morgan, P.C.
    Represented Val Vista Lakes Community Association
  • Brodie Hurtado (witness)
    Board Member
    Called by Petitioner; spouse of Jonathan Ebertshauser; denied conflict/financial benefit
  • Diana Ebertshauser (witness)
    Board Member/Treasurer
    Called by Petitioner; mother of Jonathan Ebertshauser; denied conflict/financial benefit
  • Jonathan Ebertshauser (attorney)
    CHDB Law
    Partner at CHDB Law; relative of directors Hurtado and Diana Ebertshauser
  • Josh Bolen (attorney)
    CHDB Law
    General Counsel for Association; mentioned in testimony regarding executive sessions
  • Laura Tannery (property manager)
    FirstService Residential
    General Manager
  • Bryan Patterson (board member)
    Board President
    Present at hearing as board representative
  • Karen Lewis (board member)
    Board Secretary
    Mentioned in meeting minutes
  • Brian Solomon (board member)
    Board Treasurer
    Mentioned in meeting minutes
  • Jacob Broderick (board member)
    Board Vice-President
    Mentioned in meeting minutes
  • Kevin McPhillips (board member)
    Director
    Mentioned in meeting minutes

Neutral Parties

  • Adam D. Stone (ALJ)
    Office of Administrative Hearings
    Presiding Administrative Law Judge
  • Susan Nicolson (commissioner)
    Arizona Department of Real Estate

Other Participants

  • Curtis Ekmark (attorney)
    Carpenter Hazlewood (former)
    Mentioned in testimony regarding past legal work
  • Lynn Krupnik (attorney)
    Krupnik & Speas
    Mentioned in testimony as former General Counsel

John R Krahn Living Trust / Janet Krahn Living Trust vs Tonto Forest Estates Homeowners Association

Posted on by

Case Summary

Case ID 25F-H057-REL
Agency ADRE
Tribunal OAH
Decision Date 2025-11-24
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John R. Krahn Living Trust / Janet Krahn Living Trust Counsel —
Respondent Tonto Forest Estates Homeowners Association Counsel —

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge dismissed the petition because the unredacted March 2025 check register was made available to all members via the online portal before the Petitioner filed the complaint, rendering the issue of the initially mailed redacted copy moot. The ALJ also found insufficient evidence that the error was purposeful, personal, or part of a negligent pattern.

Why this result: Mootness, insufficient evidence of willful violation.

Key Issues & Findings

Whether the association violated ARS 33-1805 by willfully withholding of association records.

Petitioner alleged Respondent violated A.R.S. § 33-1805 by mistakenly mailing a redacted March 2025 check register in response to a records request. Respondent contended the error was clerical and that the unredacted check register was uploaded to the community portal and available to all members within the statutory time frame or shortly thereafter. The ALJ found insufficient evidence of willful or purposeful withholding.

Orders: The petition was dismissed. Petitioner's request for subpoena with in camera review was denied. Petitioner's Motion to Order Exchange of Position Statements was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805

Analytics Highlights

Topics: HOA records, Check Register, Statutory Deadline, Mootness, Redaction, Clerical Error
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.A.C. R2-19-119




Briefing Doc – 25F-H057-REL


Briefing Document: Krahn Living Trust vs. Tonto Forest Estates HOA (Case No. 25F-H057-REL)

Executive Summary

This document synthesizes the proceedings and final decision in case number 25F-H057-REL, a dispute between the John R. Krahn Living Trust (Petitioner) and the Tonto Forest Estates Homeowners Association (Respondent). The core of the dispute was an allegation that the Respondent violated Arizona Revised Statute (A.R.S.) § 33-1805 by providing an improperly redacted version of the March 2025 check register in response to a formal records request.

The Petitioner argued that the redaction was unjustified, targeted, and part of a larger pattern of non-compliance and bad faith by the HOA’s board. The Respondent countered that mailing the redacted document was a clerical error and that it fulfilled its statutory duty by making the complete, unredacted check register available to all members on its online portal within the 10-day legal timeframe.

The Administrative Law Judge (ALJ) ultimately dismissed the petition. The decision found that while the Respondent had mistakenly mailed a redacted document, the subsequent posting of the unredacted version on the community portal rendered the issue moot. The ALJ concluded there was insufficient evidence to prove the Respondent’s actions were purposeful, “personal,” or part of a negligent pattern of behavior.

Case Overview

Detail

Description

Case Number

25F-H057-REL

Petitioner

John R. Krahn Living Trust / Janet Krahn Living Trust (represented by John Khran)

Respondent

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

Adjudicating Body

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Administrative Law Judge Velva Moses-Thompson

Core Statute

A.R.S. § 33-1805: Association financial and other records

Chronology of Key Events

• March 31, 2025: John Khran submits a written request to the HOA for the March 2025 check register and specific legal invoices from Maxwell & Morgan.

• c. April 10, 2025: The HOA responds via U.S. Mail, sending a packet that includes a partially redacted version of the March 2025 check register.

• April 14, 2025: The statutory 10-business-day deadline for the records request. The HOA asserts it uploaded the unredacted check register to its online portal on this date.

• April 14 – April 21, 2025: The ALJ’s final decision establishes that the unredacted check register was made available on the portal during this period.

• May 19, 2025: Mr. Khran files a petition with the Arizona Department of Real Estate, alleging a violation of A.R.S. § 33-1805.

• September 17, 2025: The ALJ denies the Petitioner’s request for a subpoena requiring an in camera review, deeming it unnecessary.

• September 26, 2025: The ALJ denies the Petitioner’s motion to order an exchange of position statements but allows parties to file prehearing memorandums.

• October 22, 2025: The evidentiary hearing is held. Both John Khran and Dwight Jolivette provide sworn testimony.

• November 3, 2025: The official record for the hearing closes after a period allowing for the submission of post-hearing exhibits and responses.

• November 24, 2025: ALJ Velva Moses-Thompson issues the final decision, dismissing the petition.

Petitioner’s Position and Arguments

The Petitioner, represented by John Khran, contended that the HOA willfully withheld records and acted in bad faith, violating both the letter and spirit of state law.

Core Allegation: Violation of A.R.S. § 33-1805

The central claim was that the HOA failed to make records “reasonably available” by providing a version of the March 2025 check register with a blacked-out line item. Khran argued this act constituted a direct violation of the statute.

Argument 1: Improper and Targeted Redaction

• The redacted information consisted of routine financial metadata: general ledger code (5703), budget category (“Legal General”), and an invoice number (53189).

• Khran demonstrated that this information was not privileged by showing it was unredacted on other parts of the same document, in the prior month’s (February 2025) check register, and on the legal invoice itself.

• He argued the redaction served no lawful purpose and was applied specifically to his request, as evidenced by the HOA later publishing the full, unredacted version to the community portal.

• Key Quote: “This kind of inconsistent, personal and excessive reaction is not only justified, his violate the RS 331805A and respond statutory duty to treat all members fairly.”

Argument 2: Pattern of Non-Compliance and Bad Faith

• Khran asserted this was the HOA’s third violation of A.R.S. § 33-1805, citing cases 24F13 and 25FH11.

• He accused the board of adopting a “litigate every ing strategy,” escalating every complaint to the OAH rather than seeking resolution through mediation or negotiation, which he claimed caused “serious and lasting harm” to the 52-member community.

• He noted that the HOA ignored a subpoena’s explicit warning that “excessive or unjustified redactions” could be deemed bad faith.

Requested Relief

The Petitioner requested four specific orders from the court:

1. A finding that the Petitioner was the prevailing party.

2. Reimbursement of the $500 filing fee.

3. An order mandating the HOA’s future compliance with A.R.S. § 33-1805.

4. Imposition of a symbolic $1 civil penalty to deter future non-compliance and prevent the board from claiming vindication.

Respondent’s Position and Arguments

The Respondent, represented by its President Dwight Jolivette, maintained that it had complied with its statutory obligations and that the incident was an unintentional error.

Core Defense: Compliance via Portal Publication

• The HOA’s primary defense was that the unredacted March 2025 check register was made available for review by all members on the community portal on April 14, 2025, within the 10-day statutory deadline.

• Jolivette argued this action satisfied the requirement to make records “reasonably available for examination.”

• Key Quote: “Our sole question today is whether or not the board provided the March 2025 check register as requested by the petitioner under ARS 331805 for review within the 10day time frame specified by the law. Our position is we did.”

Argument 1: Clerical Error and Miscommunication

• Jolivette testified that sending the redacted check register was not intentional but was “simply a mistake caused by miscommunication.”

• He explained that both redacted and unredacted versions were prepared, and a clerk mistakenly included the redacted version in the mail packet sent to Khran. The board was unaware of the error until the complaint was filed.

Argument 2: Lack of Malicious Intent

• Jolivette argued that since the HOA publishes the check register unredacted for the entire community every month, there was no logical reason to single out Khran’s request for redaction.

• Key Quote: “Why? Why would we suddenly want to redact this stuff? We’re hoping for a little common sense here today to go along with the law.”

Argument 3: Petitioner’s Failure to Mitigate

• The Respondent pointed out that Khran, a former board member familiar with the process, did not contact the board to report the error. Had he done so, Jolivette stated, the issue would have been corrected immediately without the need for a formal hearing.

Administrative Law Judge’s Decision and Rationale

The ALJ’s final decision focused on the material facts and the legal concept of mootness, ultimately dismissing the Petitioner’s case.

Summary of Findings

1. Request and Response: The Petitioner submitted a records request on March 31, 2025. On or about April 10, 2025, the Respondent mailed copies of the requested items but “mistakenly gave Petitioner a redacted 2025 check register.”

2. Portal Publication: The Respondent uploaded an unredacted March 2025 check register to its online portal, making it available to all members, sometime between April 14, 2025, and April 21, 2025.

3. Lack of Evidence for Intent: The ALJ found “insufficient evidence to establish that Respondent purposefully neglected to mail Khran an unredacted March 2025 check register or that the failure to include the correct check register…was ‘personal.'”

4. No Pattern of Negligence: The decision also stated there was “insufficient evidence to establish that Respondent had a negligent pattern of responding to records requests in error or untimely.”

Central Legal Conclusion: Mootness

The core of the legal decision rested on the issue being moot. The ALJ determined that because the unredacted document was made available on the online portal before the Petitioner filed the complaint, the underlying issue was resolved.

• Key Quote from Decision: “It is undisputed that the unredacted March 2025 check register was uploaded to Respondent’s online portal which is available to all members before the petition was filed… Even if the unredacted check register was made available on its website after the 10-day statutory period, the issue is now moot.”

Final Order

“IT IS ORDERED that John R Krahn Living Trust / Janet Krahn Living Trust’s petition against Respondent Tonto Forest Estates Homeowners Association is dismissed.”


John R Krahn Living Trust / Janet Krahn Living Trust vs Tonto Forest

Posted on by

Case Summary

Case ID 25F-H057-REL
Agency ADRE
Tribunal OAH
Decision Date 2025-11-24
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John R. Krahn Living Trust / Janet Krahn Living Trust Counsel —
Respondent Tonto Forest Estates Homeowners Association Counsel —

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Administrative Law Judge dismissed the petition because the unredacted March 2025 check register was made available to all members via the online portal before the Petitioner filed the complaint, rendering the issue of the initially mailed redacted copy moot. The ALJ also found insufficient evidence that the error was purposeful, personal, or part of a negligent pattern.

Why this result: Mootness, insufficient evidence of willful violation.

Key Issues & Findings

Whether the association violated ARS 33-1805 by willfully withholding of association records.

Petitioner alleged Respondent violated A.R.S. § 33-1805 by mistakenly mailing a redacted March 2025 check register in response to a records request. Respondent contended the error was clerical and that the unredacted check register was uploaded to the community portal and available to all members within the statutory time frame or shortly thereafter. The ALJ found insufficient evidence of willful or purposeful withholding.

Orders: The petition was dismissed. Petitioner's request for subpoena with in camera review was denied. Petitioner's Motion to Order Exchange of Position Statements was denied.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1805

Analytics Highlights

Topics: HOA records, Check Register, Statutory Deadline, Mootness, Redaction, Clerical Error
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 32-2199(B)
  • A.R.S. § 33-1803
  • A.A.C. R2-19-119

Audio Overview

Decision Documents

25F-H057-REL Decision – 1345301.pdf

Uploaded 2026-01-23T18:25:05 (64.7 KB)

25F-H057-REL Decision – 1348059.pdf

Uploaded 2026-01-23T18:25:09 (49.0 KB)

25F-H057-REL Decision – 1351266.pdf

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25F-H057-REL Decision – 1354250.pdf

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25F-H057-REL Decision – 1354340.pdf

Uploaded 2026-01-23T18:25:24 (46.2 KB)

25F-H057-REL Decision – 1364599.pdf

Uploaded 2026-01-23T18:25:29 (45.9 KB)

25F-H057-REL Decision – 1364611.pdf

Uploaded 2026-01-23T18:25:32 (6.2 KB)

25F-H057-REL Decision – 1372120.pdf

Uploaded 2026-01-23T18:25:37 (117.0 KB)





Briefing Doc – 25F-H057-REL


Briefing Document: Krahn Living Trust vs. Tonto Forest Estates HOA (Case No. 25F-H057-REL)

Executive Summary

This document synthesizes the proceedings and final decision in case number 25F-H057-REL, a dispute between the John R. Krahn Living Trust (Petitioner) and the Tonto Forest Estates Homeowners Association (Respondent). The core of the dispute was an allegation that the Respondent violated Arizona Revised Statute (A.R.S.) § 33-1805 by providing an improperly redacted version of the March 2025 check register in response to a formal records request.

The Petitioner argued that the redaction was unjustified, targeted, and part of a larger pattern of non-compliance and bad faith by the HOA’s board. The Respondent countered that mailing the redacted document was a clerical error and that it fulfilled its statutory duty by making the complete, unredacted check register available to all members on its online portal within the 10-day legal timeframe.

The Administrative Law Judge (ALJ) ultimately dismissed the petition. The decision found that while the Respondent had mistakenly mailed a redacted document, the subsequent posting of the unredacted version on the community portal rendered the issue moot. The ALJ concluded there was insufficient evidence to prove the Respondent’s actions were purposeful, “personal,” or part of a negligent pattern of behavior.

Case Overview

Detail

Description

Case Number

25F-H057-REL

Petitioner

John R. Krahn Living Trust / Janet Krahn Living Trust (represented by John Khran)

Respondent

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

Adjudicating Body

Arizona Office of Administrative Hearings (OAH)

Presiding Judge

Administrative Law Judge Velva Moses-Thompson

Core Statute

A.R.S. § 33-1805: Association financial and other records

Chronology of Key Events

• March 31, 2025: John Khran submits a written request to the HOA for the March 2025 check register and specific legal invoices from Maxwell & Morgan.

• c. April 10, 2025: The HOA responds via U.S. Mail, sending a packet that includes a partially redacted version of the March 2025 check register.

• April 14, 2025: The statutory 10-business-day deadline for the records request. The HOA asserts it uploaded the unredacted check register to its online portal on this date.

• April 14 – April 21, 2025: The ALJ’s final decision establishes that the unredacted check register was made available on the portal during this period.

• May 19, 2025: Mr. Khran files a petition with the Arizona Department of Real Estate, alleging a violation of A.R.S. § 33-1805.

• September 17, 2025: The ALJ denies the Petitioner’s request for a subpoena requiring an in camera review, deeming it unnecessary.

• September 26, 2025: The ALJ denies the Petitioner’s motion to order an exchange of position statements but allows parties to file prehearing memorandums.

• October 22, 2025: The evidentiary hearing is held. Both John Khran and Dwight Jolivette provide sworn testimony.

• November 3, 2025: The official record for the hearing closes after a period allowing for the submission of post-hearing exhibits and responses.

• November 24, 2025: ALJ Velva Moses-Thompson issues the final decision, dismissing the petition.

Petitioner’s Position and Arguments

The Petitioner, represented by John Khran, contended that the HOA willfully withheld records and acted in bad faith, violating both the letter and spirit of state law.

Core Allegation: Violation of A.R.S. § 33-1805

The central claim was that the HOA failed to make records “reasonably available” by providing a version of the March 2025 check register with a blacked-out line item. Khran argued this act constituted a direct violation of the statute.

Argument 1: Improper and Targeted Redaction

• The redacted information consisted of routine financial metadata: general ledger code (5703), budget category (“Legal General”), and an invoice number (53189).

• Khran demonstrated that this information was not privileged by showing it was unredacted on other parts of the same document, in the prior month’s (February 2025) check register, and on the legal invoice itself.

• He argued the redaction served no lawful purpose and was applied specifically to his request, as evidenced by the HOA later publishing the full, unredacted version to the community portal.

• Key Quote: “This kind of inconsistent, personal and excessive reaction is not only justified, his violate the RS 331805A and respond statutory duty to treat all members fairly.”

Argument 2: Pattern of Non-Compliance and Bad Faith

• Khran asserted this was the HOA’s third violation of A.R.S. § 33-1805, citing cases 24F13 and 25FH11.

• He accused the board of adopting a “litigate every ing strategy,” escalating every complaint to the OAH rather than seeking resolution through mediation or negotiation, which he claimed caused “serious and lasting harm” to the 52-member community.

• He noted that the HOA ignored a subpoena’s explicit warning that “excessive or unjustified redactions” could be deemed bad faith.

Requested Relief

The Petitioner requested four specific orders from the court:

1. A finding that the Petitioner was the prevailing party.

2. Reimbursement of the $500 filing fee.

3. An order mandating the HOA’s future compliance with A.R.S. § 33-1805.

4. Imposition of a symbolic $1 civil penalty to deter future non-compliance and prevent the board from claiming vindication.

Respondent’s Position and Arguments

The Respondent, represented by its President Dwight Jolivette, maintained that it had complied with its statutory obligations and that the incident was an unintentional error.

Core Defense: Compliance via Portal Publication

• The HOA’s primary defense was that the unredacted March 2025 check register was made available for review by all members on the community portal on April 14, 2025, within the 10-day statutory deadline.

• Jolivette argued this action satisfied the requirement to make records “reasonably available for examination.”

• Key Quote: “Our sole question today is whether or not the board provided the March 2025 check register as requested by the petitioner under ARS 331805 for review within the 10day time frame specified by the law. Our position is we did.”

Argument 1: Clerical Error and Miscommunication

• Jolivette testified that sending the redacted check register was not intentional but was “simply a mistake caused by miscommunication.”

• He explained that both redacted and unredacted versions were prepared, and a clerk mistakenly included the redacted version in the mail packet sent to Khran. The board was unaware of the error until the complaint was filed.

Argument 2: Lack of Malicious Intent

• Jolivette argued that since the HOA publishes the check register unredacted for the entire community every month, there was no logical reason to single out Khran’s request for redaction.

• Key Quote: “Why? Why would we suddenly want to redact this stuff? We’re hoping for a little common sense here today to go along with the law.”

Argument 3: Petitioner’s Failure to Mitigate

• The Respondent pointed out that Khran, a former board member familiar with the process, did not contact the board to report the error. Had he done so, Jolivette stated, the issue would have been corrected immediately without the need for a formal hearing.

Administrative Law Judge’s Decision and Rationale

The ALJ’s final decision focused on the material facts and the legal concept of mootness, ultimately dismissing the Petitioner’s case.

Summary of Findings

1. Request and Response: The Petitioner submitted a records request on March 31, 2025. On or about April 10, 2025, the Respondent mailed copies of the requested items but “mistakenly gave Petitioner a redacted 2025 check register.”

2. Portal Publication: The Respondent uploaded an unredacted March 2025 check register to its online portal, making it available to all members, sometime between April 14, 2025, and April 21, 2025.

3. Lack of Evidence for Intent: The ALJ found “insufficient evidence to establish that Respondent purposefully neglected to mail Khran an unredacted March 2025 check register or that the failure to include the correct check register…was ‘personal.'”

4. No Pattern of Negligence: The decision also stated there was “insufficient evidence to establish that Respondent had a negligent pattern of responding to records requests in error or untimely.”

Central Legal Conclusion: Mootness

The core of the legal decision rested on the issue being moot. The ALJ determined that because the unredacted document was made available on the online portal before the Petitioner filed the complaint, the underlying issue was resolved.

• Key Quote from Decision: “It is undisputed that the unredacted March 2025 check register was uploaded to Respondent’s online portal which is available to all members before the petition was filed… Even if the unredacted check register was made available on its website after the 10-day statutory period, the issue is now moot.”

Final Order

“IT IS ORDERED that John R Krahn Living Trust / Janet Krahn Living Trust’s petition against Respondent Tonto Forest Estates Homeowners Association is dismissed.”


Case Participants

Petitioner Side

  • John R. Krahn (petitioner)
    John R. Krahn Living Trust / Janet Krahn Living Trust
    Appeared and testified on behalf of Petitioner
  • Janet Krahn (petitioner)
    John R. Krahn Living Trust / Janet Krahn Living Trust

Respondent Side

  • Dwight A. Jolivette (HOA president)
    Tonto Forest Estates Homeowners Association
    Appeared and testified on behalf of Respondent
  • Lori P. (HOA representative)
    Tonto Forest Estates Homeowners Association
    Email contact for Respondent HOA
  • Barbara B. (HOA representative)
    Tonto Forest Estates Homeowners Association
    Email contact for Respondent HOA

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    OAH
  • Susan Nicolson (Commissioner)
    ADRE
  • ALJ Stone (former ALJ)
    OAH
    Mentioned regarding prior consolidated cases

Other Participants

  • Judge Vanell (Judge)
    Cited regarding civil penalty guidelines

R.L. Whitmer v. Hilton Casitas Council of Homeowners

Posted on by

Case Summary

Case ID 25F-H056-REL
Agency ADRE
Tribunal OAH
Decision Date 2025-11-19
Administrative Law Judge Jenna Clark
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $167.00

Parties & Counsel

Petitioner R.L. Whitmer Counsel —
Respondent Hilton Casitas Council of Homeowners Counsel Emily Mann, Esq.

Alleged Violations

ARIZ. REV. STAT. § 33-1248(A)

Outcome Summary

Petitioner's petition was granted in part, finding Respondent violated ARIZ. REV. STAT. § 33-1248(A) by failing to afford Petitioner an opportunity to speak before the vote ratification during the special meeting. The tribunal found no violations of ARIZ. REV. STAT. §§ 33-1248(E)(1), 33-1248(E)(4), or Art. 23, sec. 23.9. Petitioner was awarded a civil penalty of $167.00, but reimbursement of the filing fee was denied.

Why this result: Petitioner lost claims regarding the lack of meeting agenda (ARIZ. REV. STAT. § 33-1248(E)(1)) because the statute applies to board meetings, not special member meetings; regarding the unnoticed Town Hall (ARIZ. REV. STAT. § 33-1248(E)(4)) because the gathering was not considered an informal meeting to discuss Association business; and the claim regarding Art. 23, sec. 23.9 was abandoned/plead in error.

Key Issues & Findings

Member right to speak during noticed meeting

Petitioner alleged violation by refusing to permit him to speak during a noticed meeting. The Tribunal found Respondent in violation because Petitioner unequivocally indicated he wished to be heard ('waiting for the public comment') prior to vote ratification, but was not afforded a clear opportunity to do so.

Orders: Respondent shall tender $167.00 to the Department, in certified funds, as a civil penalty for its violation of ARIZ. REV. STAT. § 33-1248(A) within thirty (30) days of this Order. Respondent shall not violate this statutory provision henceforth.

Filing fee: $500.00, Fee refunded: No, Civil penalty: $167.00

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1248(A)

Analytics Highlights

Topics: HOA, Condominium, Open Meeting Law, Right to Speak, Civil Penalty
Additional Citations:

  • ARIZ. REV. STAT. § 33-1248(A)
  • ARIZ. REV. STAT. § 33-1248(E)(1)
  • ARIZ. REV. STAT. § 33-1248(E)(4)
  • Art. 23, sec. 23.9

Audio Overview

Decision Documents

25F-H056-REL Decision – 1335493.pdf

Uploaded 2026-01-23T18:24:21 (847.7 KB)

25F-H056-REL Decision – 1335502.pdf

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25F-H056-REL Decision – 1335656.pdf

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25F-H056-REL Decision – 1352057.pdf

Uploaded 2026-01-23T18:24:35 (53.9 KB)

25F-H056-REL Decision – 1352067.pdf

Uploaded 2026-01-23T18:24:39 (7.8 KB)

25F-H056-REL Decision – 1353232.pdf

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25F-H056-REL Decision – 1357681.pdf

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25F-H056-REL Decision – 1360270.pdf

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25F-H056-REL Decision – 1369834.pdf

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Briefing Doc – 25F-H056-REL


Briefing Document: Whitmer v. Hilton Casitas Council of Homeowners

Executive Summary

This briefing document synthesizes the legal dispute between homeowner R.L. Whitmer (Petitioner) and the Hilton Casitas Council of Homeowners (Respondent), culminating in a decision by an Arizona Administrative Law Judge (ALJ). The case, docket number 25F-H056-REL, centered on allegations that the Homeowners Association (HOA) violated Arizona’s open meeting laws during and after a special meeting of the members on April 7, 2025.

The Petitioner alleged three primary statutory violations of A.R.S. § 33-1248: (1) failure to provide a meeting agenda, (2) denial of the opportunity to speak, and (3) holding an unnoticed informal meeting with a quorum of the board present. The Respondent countered that the meeting was a special meeting of the members, not a board meeting, that the petitioner never explicitly requested to speak, and that the post-meeting gathering was an informal discussion among neighbors, not an official meeting.

The ALJ’s final decision, issued on November 19, 2025, resulted in a partial victory for the Petitioner. The judge found the HOA in violation of A.R.S. § 33-1248(A) for failing to provide an opportunity for the Petitioner to speak, deeming the HOA’s argument that he did not make an explicit request “disingenuous.” The other two allegations were dismissed. Consequently, a civil penalty of $167.00 was imposed on the Respondent, but the Petitioner’s request for reimbursement of his $500.00 filing fee was denied.

I. Case Overview

Case Name

In the Matter of R.L. Whitmer, Petitioner, v. Hilton Casitas Council of Homeowners, Respondent

Docket Number

25F-H056-REL

Adjudicating Body

Arizona Office of Administrative Hearings (OAH)

Administrative Law Judge

Jenna Clark

Referring Agency

Arizona Department of Real Estate (ADRE)

Petitioner

R.L. Whitmer (appearing on his own behalf)

Respondent

Hilton Casitas Council of Homeowners

Respondent’s Counsel

Emily Mann, Esq. (Phillips Maceyko & Battock, PLLC)

Respondent’s Witness

Robert Westbrook (HOA President)

Date of Incident

April 7, 2025

Petition Filed

April 9, 2025

Hearing Date

November 3, 2025

ALJ Decision Date

November 19, 2025

II. Petitioner’s Allegations and Requested Relief

On April 9, 2025, R.L. Whitmer filed a Homeowners Association Dispute Process Petition with the ADRE, alleging violations stemming from a “special meeting” presided over by HOA President Bob Westbrook on April 7, 2025.

Core Allegations:

• Failure to Provide an Agenda (A.R.S. § 33-1248(E)(1)): The Petitioner alleged that the HOA failed to provide an agenda for the meeting. The petition states, “When asked for the agenda…Mr. Westbrook stated there was no agenda.”

• Denial of Opportunity to Speak (A.R.S. § 33-1248(A)): The Petitioner claimed he was denied the opportunity to speak during the noticed session. The petition reads, “When asked for the opportunity to speak during the noticed session, Mr. Westbrook stated there would not be such an opportunity.”

• Unnoticed Meeting (A.R.S. § 33-1248(E)(4)): The Petitioner alleged that after the special meeting was adjourned, the board “unlawfully proceeded to hold an unnoticed meeting with a quorum of the board present.”

• Violation of Association Declaration: The petition initially cited a violation of “Article 23 § 23.9 of the Declaration of Horizontal Property Regime for Hilton Casitas.” During the hearing, the Petitioner acknowledged this was included in error and abandoned the claim.

Requested Relief:

1. An order directing the Respondent to abide by the Arizona statutes specified in the complaint.

2. The imposition of a civil penalty against the Respondent for the alleged violations.

III. Respondent’s Position and Defense

The Hilton Casitas HOA, represented by counsel, denied all allegations and argued for the petition’s complete dismissal.

Core Defense Arguments:

• Agenda Not Required for Member Meeting: The Respondent contended that the April 7, 2025 meeting was a “special meeting of the members” for the sole purpose of ratifying a revised budget, not a “meeting of the board of directors.” Therefore, the specific agenda requirements of A.R.S. § 33-1248(E)(1) did not apply.

• Ballot Packet Served as Agenda: Even if an agenda were required, the absentee ballot packet—which included a letter explaining the budget, the revised budget itself, and the ballot—sufficiently notified the membership of the meeting’s sole purpose.

• Petitioner Never Explicitly Requested to Speak: The Respondent argued that the Petitioner never made a formal request to speak. Citing the hearing transcript, they noted that in response to being asked if he cared to vote, the Petitioner stated, “I’m waiting for the public comment.” The defense argued this statement was not a direct request to speak.

• “Town Hall” Was Not a Board Meeting: The HOA characterized the gathering after the formal meeting as an “informal town hall discussion” where President Westbrook invited neighbors to stay at his home for a “neighborly conversation.” They asserted that no association business was conducted and that the mere presence of a quorum of board members did not transform the gathering into a formal, unnoticed board meeting, which would lead to the “absurd result” of directors being prohibited from attending member events.

IV. Procedural History and Hearing Chronology

• April 9, 2025: Petition filed by R.L. Whitmer.

• April 30, 2025: Petitioner pays the $500.00 single-issue filing fee.

• June 6, 2025: Respondent files its answer, denying all complaint items.

• June 24, 2025: ADRE issues a Notice of Hearing, scheduling it for August 1, 2025.

• August 1, 2025: Petitioner moves to continue the hearing to amend his petition.

• August 11, 2025: Petitioner submits an Amended HOA Dispute Petition.

• September-October 2025: A series of motions are filed, including a Motion for Summary Judgment by the Petitioner and a Cross-Motion for Summary Judgment by the Respondent.

• October 8, 2025: The OAH issues an order denying the Petitioner’s motion and dismissing his Amended Petition with prejudice, but allowing the original petition to proceed.

• November 3, 2025: The continued hearing is held remotely before ALJ Jenna Clark. R.L. Whitmer testifies on his own behalf, and Robert Westbrook testifies for the Respondent.

• November 19, 2025: ALJ Clark issues the final Administrative Law Judge Decision.

V. Administrative Law Judge’s Final Decision and Rationale

The ALJ granted the petition in part and denied it in part, finding the Respondent in violation of one of the three alleged statutory provisions.

The ALJ found that the Respondent violated the Petitioner’s right to speak. The decision concluded that although the Petitioner did not make an explicit request, his statement, “I’m waiting for the public comment,” was a clear and unequivocal indication of his desire to be heard.

• Rationale: The judge found the Respondent’s counterargument to be “disingenuous,” stating, “It cannot be faithfully argued that the HOA President was unaware Petitioner was desirous of speaking. Animosity notwithstanding, Petitioner should have been afforded a reasonable amount of time to be heard prior to adjournment.”

The ALJ ruled that the Respondent did not violate the statute regarding meeting agendas.

• Rationale: The decision affirms the Respondent’s position, stating, “the record clearly reflects that the April 07, 2025, special meeting was not a meeting of the board of directors, and did have an agenda issued to members in advance – as evidenced by the ballot and memorandum which provided objectively reasonable detail regarding the purpose and scope of the meeting.”

The ALJ determined that the post-meeting gathering did not constitute an illegal unnoticed meeting.

• Rationale: The judge concluded that “the existence of a quorum, intentional or otherwise, absent open discussion of Association business does not a meeting make.” The decision further supported the Respondent’s argument that holding otherwise “would unintentionally result in absurdity.”

VI. Final Order and Sanctions

Based on the findings, the final order established the following:

1. Petition Status: The petition was granted in part (for the A.R.S. § 33-1248(A) violation) and denied and dismissed for all other allegations.

2. Civil Penalty: The Respondent was ordered to pay a civil penalty of $167.00 to the ADRE within thirty days for the violation.

3. Filing Fee Reimbursement: The Petitioner’s request to be reimbursed for the $500.00 filing fee was denied.

4. Future Compliance: The Respondent was ordered to not violate A.R.S. § 33-1248(A) henceforth.


Case Participants

Petitioner Side

  • Rial Lamar Whitmer (petitioner)

Respondent Side

  • Emily Mann (respondent attorney)
    Phillips Maceyko & Battock, PLLC
  • Robert Westbrook (HOA president/board member/witness)
    Hilton Casitas Council of Homeowners
  • John Brooke (board member)
    Hilton Casitas Council of Homeowners
    Director
  • Curt Richard Roberts (board member)
    Hilton Casitas Council of Homeowners
    Secretary
  • Jay Panzer (board member)
    Hilton Casitas Council of Homeowners
    Director
  • James Cox (board member)
    Hilton Casitas Council of Homeowners
    Treasurer

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate
  • Liz Recchia (Division Manager/ADRE staff)
    Arizona Department of Real Estate
  • V. Nunez (ADRE staff)
    Arizona Department of Real Estate
    Listed on distribution list
  • D. Jones (ADRE staff)
    Arizona Department of Real Estate
    Listed on distribution list
  • L. Abril (ADRE staff)
    Arizona Department of Real Estate
    Listed on distribution list
  • M. Neat (ADRE staff)
    Arizona Department of Real Estate
    Listed on distribution list
  • G. Osborn (ADRE staff)
    Arizona Department of Real Estate
    Listed on distribution list

Other Participants

  • Eli (homeowner/witness)
    Hilton Casitas Council of Homeowners
    Attendee at special meeting
  • Mike Benson (former board member/homeowner)
    Hilton Casitas Council of Homeowners
    Attendee at Town Hall
  • Katie Hobbs (Governor)

Robert E. Wolfe v. Warner Ranch Association

Posted on by

Case Summary

Case ID 25F-H062-REL
Agency ADRE
Tribunal OAH
Decision Date 2025-11-11
Administrative Law Judge Kay Abramsohn
Outcome none
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Robert E. Wolfe Counsel —
Respondent Warner Ranch Association Counsel Chandler W. Travis

Alleged Violations

Ariz. Rev. Stat. § 33-1804(D)

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the March 28, 2025, 'Kick Start' meeting was not an official HOA Board meeting because no HOA business was transacted and it was arranged prior to the new management company being fully contracted. Therefore, the 48-hour advance notice requirement under A.R.S. § 33-1804(D) was not required.

Why this result: Petitioner failed to meet the burden of proving by a preponderance of the evidence that the respondent violated A.R.S. § 33-1804(D), as the meeting was concluded to be informal and not subject to the statutory notice requirements for official Board meetings.

Key Issues & Findings

HOA Board Meeting Notice Requirement

Petitioner alleged that the HOA violated A.R.S. § 33-1804(D) by holding a 'kick start' meeting on March 28, 2025, after notice was sent on March 26, 2025, failing to meet the 48-hour advance notice requirement for a Board meeting. The ALJ concluded the meeting was an informal 'meet and greet' arranged by the incoming management company and was not an official HOA Board meeting where business was transacted; thus, the statute did not apply.

Orders: Petitioner's petition in 25F-H062-REL is dismissed, and Petitioner bears the $500.00 filing fee.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • Ariz. Rev. Stat. § 33-1804(D)
  • Ariz. Rev. Stat. § 32-2102
  • Ariz. Rev. Stat. § 32-2199
  • Ariz. Rev. Stat. § 32-2199.05
  • Ariz. Rev. Stat. § 32-2199(2)
  • Ariz. Rev. Stat. § 32-2199.01(D)
  • Ariz. Rev. Stat. § 32-2199.02
  • Ariz. Rev. Stat. § 41-1092
  • ARIZ. ADMIN. CODE R2-19-119

Analytics Highlights

Topics: HOA Governance, Board Meeting Notice, Open Meeting Law, Planned Communities Statute, Management Company Transition
Additional Citations:

  • Ariz. Rev. Stat. § 33-1804(D)
  • Ariz. Rev. Stat. § 32-2102
  • Ariz. Rev. Stat. § 32-2199
  • Ariz. Rev. Stat. § 32-2199.05
  • Ariz. Rev. Stat. § 32-2199(2)
  • Ariz. Rev. Stat. § 32-2199.01(D)
  • Ariz. Rev. Stat. § 32-2199.02
  • Ariz. Rev. Stat. § 41-1092
  • ARIZ. ADMIN. CODE R2-19-119

Audio Overview

Decision Documents

25F-H062-REL Decision – 1341648.pdf

Uploaded 2026-01-23T18:26:06 (43.0 KB)

25F-H062-REL Decision – 1341651.pdf

Uploaded 2026-01-23T18:26:10 (6.4 KB)

25F-H062-REL Decision – 1347681.pdf

Uploaded 2026-01-23T18:26:14 (59.7 KB)

25F-H062-REL Decision – 1355633.pdf

Uploaded 2026-01-23T18:26:18 (48.6 KB)

25F-H062-REL Decision – 1367124.pdf

Uploaded 2026-01-23T18:26:24 (133.4 KB)





Briefing Doc – 25F-H062-REL


Briefing Document: Wolfe v. Warner Ranch Association (Case No. 25F-H062-REL)

Executive Summary

This document synthesizes the key proceedings, arguments, and final judgment in the administrative case of Robert E. Wolfe v. Warner Ranch Association, Case No. 25F-H062-REL, adjudicated by the Arizona Office of Administrative Hearings. The petitioner, Robert E. Wolfe, alleged that the Warner Ranch Association (HOA) violated Arizona’s open meeting law (A.R.S. § 33-1804(D)) by failing to provide the requisite 48-hour advance notice for a “kickstart meeting” held on March 28, 2025.

The Administrative Law Judge (ALJ) ultimately dismissed the petition. The central finding of the decision was that the event in question was not a formal HOA Board meeting at which official business was transacted. Instead, it was characterized as an informal “meet and greet” arranged by the incoming management company, Spectrum, prior to its official contract start date. Consequently, the 48-hour notice requirement for Board meetings was deemed not applicable. The ALJ concluded that the petitioner failed to meet his burden of proof, and he was ordered to bear the $500 filing fee.

Case Overview

• Parties:

◦ Petitioner: Robert E. Wolfe, a resident and member of the Warner Ranch Association.

◦ Respondent: Warner Ranch Association (HOA), represented by board members and its management company, Spectrum Association Management.

• Case Number: 25F-H062-REL

• Adjudicating Body: Arizona Office of Administrative Hearings (OAH), following a referral from the Arizona Department of Real Estate.

• Presiding Judge: Kay A. Abramsohn, Administrative Law Judge.

• Core Dispute: Whether the “kickstart meeting” held on March 28, 2025, constituted an official Board of Directors meeting subject to the 48-hour advance notice requirement under A.R.S. § 33-1804(D).

Procedural History

The case involved several procedural adjustments regarding the hearing format and date, primarily initiated by the petitioner. Notably, several of the petitioner’s requests were made without copying the respondent, a point of order noted by the ALJ.

Action

Outcome

Aug 11, 2025

Petitioner requests a continuance, citing unavailability.

Aug 21, 2025

An order is issued continuing the hearing to October 7, 2025, to be held virtually.

Aug 27, 2025

Petitioner agrees to the date but requests the hearing be conducted in-person.

Sep 7, 2025

An order is issued confirming the October 7 date and changing the format to in-person.

Sep 30, 2025

Respondent’s counsel requests a virtual option for an unavailable witness.

Sep 30, 2025

A final order is issued establishing a hybrid hearing format (in-person and virtual) for October 7, 2025.

Petitioner’s Allegations and Arguments (Robert E. Wolfe)

The petitioner’s case was singularly focused on the alleged violation of the 48-hour notice rule for Board meetings.

• Core Claim: The HOA held a Board meeting on Friday, March 28, 2025, at 1:00 PM but provided notice less than 48 hours in advance, in direct violation of A.R.S. § 33-1804(D).

• Evidence of Insufficient Notice:

◦ Email notifications for the meeting were sent on Wednesday, March 26, 2025.

◦ Documentary evidence showed computer-generated receipt times ranging from 1:36 PM to 1:45 PM on March 26, which is less than 48 hours before the 1:00 PM meeting on March 28.

◦ The petitioner himself did not receive the initial email notice and was forwarded a copy by the HOA President, Melanie Zimmer.

• Evidence the Event was a Board Meeting:

◦ The petitioner argued the event’s structure and attendance qualified it as a formal Board meeting. The meeting notification included a formal agenda with items such as “Call to Order,” “Establishment of a Quorum,” and “Adjournment.”

◦ He contended that the meeting minutes listed Board members as present, indicating a quorum was established.

◦ In his testimony, the petitioner stated, “when you have a quorum of board of directors, it requires notice of open meeting.”

◦ He summarized his position with an analogy:

• Requested Relief:

1. Reimbursement of the $500 filing fee.

2. An order requiring that a copy of the open meeting law be given to each board member.

Respondent’s Position and Testimony (Warner Ranch Association & Spectrum)

The respondent’s defense centered on the informal nature and purpose of the meeting, arguing it did not constitute official Board business.

• Characterization of the Meeting: The event was consistently described as an “informal kickstart meeting” and a “meet and greet,” not a formal Board meeting.

• Purpose of the Meeting:

◦ The meeting was arranged by the incoming management company, Spectrum, to introduce its team to the Board and homeowners.

◦ This was deemed necessary due to severe operational issues with the previous management company, which was described as “very, very delinquent.”

• Absence of Official Business:

◦ Testimony from multiple representatives, including HOA President Melanie Zimmer and Spectrum’s Brenda Steel, asserted that no official Board business, decision-making, motions, or votes were conducted.

◦ The meeting minutes reflected discussions about the management transition, roles, and expectations, but contained no record of official Board actions.

• Context of Management Transition:

◦ The contract with Spectrum was signed prior to the “kickstart” meeting.

◦ However, Spectrum’s official management duties were not set to begin until April 1, 2025. The March 28 meeting occurred before Spectrum formally took over management.

• Acknowledgement of Procedural Issues:

◦ A Spectrum representative testified that the meeting “could have been noticed differently” and that they did not have a complete list of homeowner email addresses from the prior company.

◦ HOA Treasurer Bonnie S. acknowledged receiving her own notice late (36 minutes after the 48-hour mark) and offered an apology:

Administrative Law Judge’s Decision and Rationale

The ALJ’s final decision, issued on November 11, 2025, sided with the respondent and dismissed the petition.

• Final Order:

◦ The petitioner’s petition in case 25F-H062-REL was ordered dismissed.

◦ The petitioner, Robert E. Wolfe, was ordered to bear the $500.00 filing fee.

• Key Finding: The ALJ concluded that the March 28, 2025 “Kick Start” meeting was not an official HOA Board meeting where business was transacted.

• Legal Rationale: Because the event was not a Board meeting as defined by statute, the 48-hour advance notice requirement stipulated in A.R.S. § 33-1804(D) did not apply.

• Evidentiary Basis for Decision:

◦ The finding was supported by testimony from the HOA and Spectrum characterizing the event as an informal “meet and greet.”

◦ A review of the meeting minutes confirmed that they “do not reflect any motions, votes, or actions taken by the Board at the meeting on behalf of the HOA.”

◦ The decision noted that Spectrum had also mailed a postcard regarding the meeting to each of the 803 HOA members.

• Conclusion on Burden of Proof: The petitioner bore the burden of proving a violation by a preponderance of the evidence. The ALJ ruled that this burden was not met.


Case Participants

Petitioner Side

  • Robert E. Wolfe (petitioner)

Respondent Side

  • Melanie Zimmer (board president)
    Warner Ranch Association
    Appeared on behalf of Respondent
  • Bonnie Strike (board member)
    Warner Ranch Association
    Treasurer
  • Brenda Steel (community manager/witness)
    Spectrum Association Management
    HOA Community Manager
  • Elizabeth Wicks (legal services manager/witness)
    Spectrum Association Management
  • Diana Treantos (division president/witness)
    Spectrum Association Management
  • Chandler W. Travis (HOA attorney)
    The Travis Law Firm PLC
    Counsel for Respondent

Neutral Parties

  • Kay Abramsohn (ALJ)
    OAH
  • Susan Nicolson (ADRE Commissioner)
    Arizona Department of Real Estate
  • vnunez (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • djones (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • labril (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • mneat (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • lrecchia (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • gosborn (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission
  • dmorehouse (ADRE staff)
    Arizona Department of Real Estate
    Recipient of transmission

Other Participants

  • Renee Malcolm (HOA member/recipient)
    Warner Ranch Association
    Referenced in testimony regarding notice delivery timing
  • Bill Carlson (HOA member/recipient)
    Warner Ranch Association
    Referenced in testimony regarding notice delivery timing (one of the Carlsons)

Sally Magana v. Wynstone Park Homeowners Association

Posted on by

Case Summary

Case ID 25F-H070-REL
Agency ADRE
Tribunal OAH
Decision Date 2025-10-29
Administrative Law Judge Velva Moses-Thompson
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Sally Magana Counsel —
Respondent Wynstone Park Homeowners Association Counsel Ashley Turner

Alleged Violations

Title 8, Chapter 6, Article I – 8-6-3(T)
CC&Rs Section 7.1

Outcome Summary

The Administrative Law Judge dismissed the Petitioner's two-issue petition. The OAH lacked jurisdiction over the alleged violation of the City of Mesa Code Ordinance (parking/nuisance). On the CC&R violation claim (mischaracterizing maintenance), Petitioner failed to prove the HOA violated CC&Rs Section 7.1, as the evidence established that Petitioner made unapproved changes/alterations to the driveway extension.

Why this result: Petitioner failed to meet the burden of proof that the Respondent HOA violated CC&Rs, and the tribunal lacked jurisdiction to hear the municipal code violation claim.

Key Issues & Findings

HOA assessed a fine for public nuisances for parking on approved driveway extension

Petitioner alleged the HOA violated the Mesa City Ordinance by fining her for parking on her approved driveway extension. The extension approval dated back to 1998 and 2018.

Orders: Petition dismissed. The OAH determined it lacked jurisdiction to rule on alleged violations of City of Mesa Code Ordinances.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • Title 8, Chapter 6, Article I – 8-6-3(T)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 32-2199.01(A)
  • A.R.S. § 33-1803

HOA mischaracterizing maintenance as an unauthorized modification

Petitioner claimed the work performed (lifting pavers, replacing sand with gravel/decomposed granite, and altering slope) was routine maintenance. Respondent argued this constituted an exterior change or alteration requiring prior written architectural approval, which Petitioner failed to obtain.

Orders: Petition dismissed. Petitioner failed to establish Respondent violated CC&Rs 7.1. Evidence showed Petitioner made changes to the surface under the pavers and the slope of the driveway extension without prior approval.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • CC&Rs Section 7.1
  • CC&Rs Section 10.1
  • Powell v. Washburn
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.
  • A.R.S. § 41-1092.07(G)(2)

Analytics Highlights

Topics: HOA Enforcement, Architectural Review, Maintenance vs Modification, Jurisdiction, Mesa Code Ordinance, Pavers, Driveway Extension
Additional Citations:

  • Title 8, Chapter 6, Article I – 8-6-3(T)
  • CC&Rs Section 7.1
  • CC&Rs Section 10.1
  • A.R.S. § 32-2199(B)
  • A.R.S. § 32-2199.01(A)
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A) and (B)(1)
  • 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)
  • Powell v. Washburn
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Audio Overview

Decision Documents

25F-H070-REL Decision – 1350920.pdf

Uploaded 2026-01-23T18:26:35 (50.9 KB)

25F-H070-REL Decision – 1352025.pdf

Uploaded 2026-01-23T18:26:40 (48.7 KB)

25F-H070-REL Decision – 1355826.pdf

Uploaded 2026-01-23T18:26:45 (59.1 KB)

25F-H070-REL Decision – 1363586.pdf

Uploaded 2026-01-23T18:26:50 (144.5 KB)





Briefing Doc – 25F-H070-REL


Briefing Document: Magana v. Wynstone Park Homeowners Association

Executive Summary

This document provides a comprehensive analysis of the administrative hearing and final decision in case number 25F-H070-REL, Sally Magana v. Wynstone Park Homeowners Association. The petitioner, Sally Magana, filed a two-issue petition alleging the Homeowners Association (HOA) improperly fined her for a public nuisance related to parking and mischaracterized necessary property maintenance as an unauthorized architectural modification.

The respondent, Wynstone Park HOA, countered that the Office of Administrative Hearings (OAH) lacked jurisdiction over the alleged city ordinance violation and that the work performed by the petitioner was, in fact, an unapproved “alteration” under the community’s Covenants, Conditions, and Restrictions (CC&Rs). The HOA maintained its enforcement actions were authorized and appropriate.

The Administrative Law Judge (ALJ) ultimately dismissed the petitioner’s case in its entirety. The decision was based on two key findings: 1) The OAH does not have the jurisdiction to rule on violations of a municipal (City of Mesa) ordinance, and 2) The petitioner failed to meet her burden of proof to establish that the HOA violated its own governing documents. The ALJ concluded that the work performed—which included removing the original paver base, installing a new gravel surface, and altering the slope of the driveway—constituted a “change or alteration” requiring prior approval under CC&R Section 7.1, which the petitioner did not obtain.

Case Overview

Entity / Individual

Petitioner

Sally Magana (Homeowner)

Respondent

Wynstone Park Homeowners Association (HOA)

Presiding Judge

Velva Moses-Thompson, Administrative Law Judge (ALJ)

Case Number

25F-H070-REL

Hearing Date

October 9, 2025

Decision Date

October 29, 2025

Timeline of Key Events

July 3, 2019

HOA granted a variance allowing Ms. Magana to park anywhere on her driveway extension.

Feb 26, 2021

HOA sent a notice to Ms. Magana for parking past the garage, citing nuisance under CC&R Section 8.4.

Jan 27, 2025

Ms. Magana submitted a Design Review Application to modify drainage under her paver extension.

Feb 11, 2025

HOA’s Architectural Review Committee (ARC) disapproved the application, citing the 50% lot coverage rule and nuisance complaints from a neighbor.

March 12, 2025

The HOA Board met with Ms. Magana at her property to discuss the matter.

May/June 2025

Ms. Magana proceeded with work on the pavers without ARC approval.

June 2, 2025

HOA issued a courtesy notice for an unapproved architectural change under CC&R Section 7.1.

June 11, 2025

HOA issued a Violation Notice with a $25 fine for the unapproved change.

July 14, 2025

HOA issued a second Violation Notice with a $50 fine.

July 17, 2025

Ms. Magana filed her petition with the Arizona Department of Real Estate.

Oct 29, 2025

The ALJ issued a decision dismissing the petition.

Petitioner’s Allegations and Arguments

Ms. Magana’s case was centered on two primary allegations:

1. Violation of Public Nuisance Ordinance: The petitioner alleged the HOA violated “Title 8, Chapter 6, Article I, 8-6-3: PUBLIC NUISANCES PROHIBITED” of the City of Mesa code by fining her for parking on her driveway extension. She argued that the extension was approved in 1998 and reaffirmed by an HOA variance in 2019, making the fine improper.

2. Violation of CC&R Section 7.1 (Architectural Approval): The petitioner contended that the HOA mischaracterized routine maintenance as an “unauthorized modification.” She argued the work was necessary to correct a drainage issue causing water pooling against her foundation and creating a risk of termites. Her position was that since no new pavers were installed and the layout was not changed, the work did not constitute an architectural change requiring ARC approval. She also raised the issue of selective enforcement, providing photos of other homes with alleged violations that had not been cited.

Respondent’s Position and Defense

The HOA’s defense, presented by attorney Ashley Turner and Board President Andrew Hancock, rested on the following points:

1. Jurisdictional Challenge: The HOA argued that the OAH does not have jurisdiction to decide whether the association violated a City of Mesa ordinance, and that this issue should be dismissed on that basis alone.

2. The Work Was an “Alteration,” Not “Maintenance”: The HOA asserted that the work performed went beyond simple maintenance. Testimony revealed that the original play sand base was removed, a new decomposed granite base was installed, and the grade of the surface was altered to change the slope and water flow. The HOA considered these actions a “change or alteration” as defined in CC&R Section 7.1, which explicitly requires prior written approval from the ARC.

3. Proper Denial and Enforcement: The HOA’s denial of Ms. Magana’s initial application was based on established Design Guidelines, specifically that the total parking area “may not exceed… fifty percent (50%) of the lot width.” The denial also cited ongoing nuisance complaints from a neighbor regarding noise and access issues caused by vehicles parked on the extension. The subsequent fines were issued in accordance with the HOA’s enforcement policy after Ms. Magana completed the work without approval.

4. Authority to Enforce: The HOA cited CC&R Section 10.1, which grants it the right to enforce all covenants and restrictions in the governing documents.

Key Testimonies and Evidence

Witness Testimony

• Rita Elizalde (Petitioner’s Witness; Owner, JLE Heartscape and Design):

◦ Testified that the initial proposal, which included drains, was not executed due to the HOA’s denial.

◦ Characterized the work performed as “a maintenance on what you already had” to correct sinking pavers and water pooling against the foundation.

◦ Confirmed that the previous installer had used an improper “play sand base,” which her company removed.

◦ Stated they installed a new base of “decomposite granite,” replaced the original pavers in the same design, and added polymeric sand to lock them in.

◦ Confirmed the ground “had to be sloped back a little bit” to ensure water ran toward the street and not toward the neighbor’s property or the house foundation.

• Andrew Hancock (Respondent’s Witness; HOA Board President):

◦ Testified that the board considered the work a “change to the design of the pavers” because it addressed slope and drainage issues, which is more than basic maintenance.

◦ Stated that the board denied the initial application due to the 50% lot coverage rule and nuisance complaints from the neighbor, which included “the sound of the vehicle’s wake child” and the car blocking the neighbor’s access for taking out trash cans.

◦ Clarified that the board offered Ms. Magana two potential compromises: stopping the pavers at the garage line or bringing her fence/gate forward to be in line with the garage.

◦ Testified that photos of the work in progress (Exhibit G) showed all pavers removed and the base grading “manipulated.” He also noted what appeared to be new PVC piping.

◦ Referencing a photo of the pre-maintenance water pooling (Exhibit E), he testified that it showed water flowing “over the end border into the gravel and the neighbor’s yard.”

Key Exhibits

Exhibit #

Description & Significance

Respondent

The HOA’s CC&Rs, establishing the rules for architectural approval (Sec 7.1) and enforcement (Sec 10.1).

Respondent

Ms. Magana’s initial Design Review Application (denied) and a photo showing significant water pooling on the pavers and onto the neighboring lot.

Petitioner

Before and after photos of the paver extension, intended to show no visual change in design.

Respondent

Photos taken during the project showing all pavers removed, piled up, and the underlying base exposed and re-graded.

H, I, K

Respondent

The series of enforcement letters: Courtesy Notice (June 2), $25 Fine (June 11), and $50 Fine (July 14) for the unapproved alteration.

Petitioner

The HOA’s Design Guidelines, which include the 50% lot width limitation for parking areas.

Administrative Law Judge’s Decision and Rationale

The ALJ’s final decision dismissed Ms. Magana’s petition. The ruling was grounded in the following conclusions of law:

• Lack of Jurisdiction over Municipal Ordinance: The ALJ determined that “The OAH does not have jurisdiction to determine whether a planned community organization has violated a City of Mesa Code Ordinance.” This effectively dismissed the first issue of the petition without ruling on its merits.

• Petitioner’s Failure to Meet Burden of Proof: For the second issue, the ALJ found that the petitioner bore the burden of proving the HOA violated its CC&Rs and failed to do so. The decision noted:

◦ CC&R Section 7.1 regulates homeowners, requiring them to obtain prior approval for any “exterior addition, change, or alteration.”

◦ The preponderance of evidence, including testimony from the petitioner’s own witness (Ms. Elizalde), showed that changes were made to the surface under the pavers and to the slope of the driveway.

◦ These actions constitute an “alteration” under the CC&Rs.

◦ Because Ms. Magana made these changes without prior approval, she did not establish that the HOA mischaracterized her actions or violated Section 7.1.

• HOA’s Authority to Enforce: The decision affirmed that CC&R Section 10.1 authorizes the respondent to enforce its governing documents.

The final order concluded: “Petitioner has failed to meet her burden to establish that Respondent violated Respondent’s CC&Rs, governing document, or any statutes that regulate planned communities. Petitioner’s petition should be dismissed.”


Case Participants

Petitioner Side

  • Sally Magana (petitioner)
    Also referred to as Complainant
  • Rita Elizalde (witness)
    JLE Heartscape and Design
    Also referred to as Rita Estelle
  • Jesus Ortiz (witness)
  • Adeline Escudero-Mendoza (witness)
    Also referred to as Adeline Escudero

Respondent Side

  • Ashley Turner (HOA attorney)
    CHDB Law
  • Andrew Hancock (board president/witness)
    Wynstone Park Homeowners Association
    President of Respondent's Board
  • Jennifer Irving (board member)
    Wynstone Park Homeowners Association
    Vice President of the HOA Board
  • Dawn Feigert (property manager)
    Trestle Management Group
    Community Manager
  • Lea Austin (property manager)
    Trestle Management Group
    Community Manager

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Susan Nicolson (Commissioner)
    Arizona Department of Real Estate