Tag Archives: Carpenter, Hazlewood, Delgado & Bolen PLC

R.L. Whitmer v. Hilton Casitas HOA

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Case Summary

Case ID 22F-H2222043-REL
Agency ADRE
Tribunal OAH
Decision Date 2022-10-13
Administrative Law Judge Tammy L. Eigenheer
Outcome The ALJ granted Summary Judgment in favor of Petitioner, concluding that the plain language of Section 8.2 of the Declaration requires a majority of a quorum of all owners to vote to set the annual assessments, which the Respondent failed to obtain.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner R.L. Whitmer Counsel —
Respondent Hilton Casitas HOA Counsel Edith Rudder

Alleged Violations

Section 8.2

Outcome Summary

The ALJ granted Summary Judgment in favor of Petitioner, concluding that the plain language of Section 8.2 of the Declaration requires a majority of a quorum of all owners to vote to set the annual assessments, which the Respondent failed to obtain.

Key Issues & Findings

Failure to Obtain Owner Approval for Annual Assessment

Respondent adopted the 2022 annual budget and assessment without obtaining the affirmative approval of a majority of a quorum of homeowners.

Orders: Petitioner's petition is affirmed. Respondent ordered to reimburse Petitioner's $500.00 filing fee and directed to comply with Section 8.2 of the Declaration going forward.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • ARIZ. REV. STAT. § 33-1201
  • ARIZ. REV. STAT. § 33-1202
  • ARIZ. REV. STAT. § 33-1241
  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 38-551(5)

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Video Overview

Audio Overview

Decision Documents

22F-H2222043-REL Decision – 1005717.pdf

Uploaded 2026-04-24T11:50:30 (155.6 KB)

22F-H2222043-REL Decision – 1014946.pdf

Uploaded 2026-04-24T11:50:34 (40.7 KB)

22F-H2222043-REL Decision – 976124.pdf

Uploaded 2026-04-24T11:50:39 (46.1 KB)

22F-H2222043-REL Decision – 976252.pdf

Uploaded 2026-04-24T11:50:43 (5.5 KB)

22F-H2222043-REL Decision – 979285.pdf

Uploaded 2026-04-24T11:50:47 (50.0 KB)

22F-H2222043-REL Decision – 1005717.pdf

Uploaded 2026-02-27T14:42:04 (155.6 KB)

22F-H2222043-REL Decision – 1014946.pdf

Uploaded 2026-02-27T14:42:05 (40.7 KB)

22F-H2222043-REL Decision – 976124.pdf

Uploaded 2026-02-27T14:42:06 (46.1 KB)

22F-H2222043-REL Decision – 976252.pdf

Uploaded 2026-02-27T14:42:06 (5.5 KB)

22F-H2222043-REL Decision – 979285.pdf

Uploaded 2026-02-27T14:42:07 (50.0 KB)

Briefing Document: R.L. Whitmer v. Hilton Casitas HOA (Case No. 22F-H2222043-REL)

Executive Summary

This briefing document analyzes the administrative legal dispute between R.L. Whitmer (Petitioner) and Hilton Casitas HOA (Respondent), a 29-unit condominium association in Scottsdale, Arizona. The central conflict concerned the interpretation of the association's 1972 Declaration, specifically whether the "Council" authorized to set annual assessments refers to the Board of Directors or the collective body of Owners.

On October 13, 2022, the Administrative Law Judge (ALJ) ruled in favor of the Petitioner, determining that the plain language of the governing documents requires a majority of a quorum of all Owners to approve annual assessments. Because the Respondent failed to achieve a quorum during its 2022 budget ratification attempt, the assessment was deemed invalid. The Respondent was ordered to reimburse the Petitioner’s filing fee and comply with Owner-approval requirements moving forward.

Detailed Analysis of Key Themes

1. Linguistic Interpretation of "Council"

The crux of the legal dispute was the definition of the word "Council" as used in Section 8.2 of the Declaration.

  • Respondent’s Position: The HOA argued that "Council" is synonymous with the "Board of Directors" or the "Association" as a corporate entity. They contended that under modern Arizona statutes (the Condominium Act), the Board has the power to act on behalf of the association in all instances not explicitly reserved for members.
  • Petitioner’s Position: The Petitioner argued that the Declaration explicitly defines the Council as the entire membership of owners.
  • ALJ Finding: The ALJ upheld the Petitioner’s view, noting that Section 1.4 of the Declaration specifically states the Council "consists of all of the Owners of the Casitas."
2. Statutory Evolution vs. Contractual Fidelity

The case highlights the tension between historical governing documents and evolving state law.

  • The Horizontal Property Regime Act: This was the law in effect when the Hilton Casitas Declaration was recorded in 1972. It defined "Council of co-owners" as "all of the co-owners of the building."
  • The Condominium Act: Adopted in 1986, this Act replaced the previous regime. The Respondent argued that the modern Act allows Boards to adopt budgets and set assessments unless the documents state otherwise.
  • The Ruling: The ALJ concluded that because the association's governing documents constitute a contract, the intent of the parties at the time of the contract (1972) is paramount. The ALJ noted that despite the repeal of the old Act in 1985, the HOA had 36 years to amend its documents to clarify Board authority but failed to do so.
3. Procedural Failure and Quorum Requirements

The HOA attempted a "ratification" process for the 2022 budget that failed to meet the standards set by its own Bylaws.

  • Participation Numbers: Hilton Casitas consists of 29 Owners. A quorum (majority) requires 15 members.
  • The February 9, 2022 Meeting: Only 14 Owners participated (in person or by absentee ballot). Even though 11 of those 14 voted to approve the budget, the lack of a 15-person quorum rendered the vote legally ineffective.
  • The Difference in Standards: While the Declaration requires higher vote percentages for major changes (e.g., 51% to amend the Declaration or 75% for new construction), the ALJ clarified that for standard "Council" acts, a majority of a quorum is the minimum requirement.

Important Quotes with Context

Governing Document Definitions

"“Council” shall mean the Council of Co-owners as defined in the Horizontal Property Regime Act, and consists of all of the Owners of the Casitas."

— Declaration, Section 1.4

  • Context: This quote was the primary evidence used to defeat the Respondent’s claim that "Council" referred to the Board.
Assessment Authority

"The Owner of each Casita… agrees that each Casita shall be subject to an annual assessment in an amount to be determined by the Council…"

— Declaration, Section 8.2

  • Context: This provision establishes that the power to set the specific dollar amount of assessments resides with the "Council" (all Owners), not just the Board.
Conflict of Documents

"In case any of the provisions of these Bylaws conflict with the provisions of said Declaration, the provisions of said Declaration shall control."

— Bylaws, Article XI, Section 1

  • Context: This established the hierarchy of authority, ensuring that the Declaration's definition of "Council" overrode any broader powers the Board might claim under the Bylaws or general corporate law.
The ALJ's Conclusion

"The Administrative Law Judge concludes that, the plain language of the Declaration requires a majority of a quorum of all owners vote to set the annual assessments for Respondent."

— ALJ Decision, Conclusions of Law ¶ 22

  • Context: This was the final legal determination that invalidated the HOA's unilateral budgeting process.

Procedural History and Timeline

Date Event
Nov 5, 2021 Board notices meeting for "discussion and approval" of 2022 budget.
Jan 13–19, 2022 Petitioner repeatedly warns Board via email regarding non-compliance with Section 8.2.
Feb 9, 2022 Budget meeting held; 14 Owners participate (less than quorum).
May 27, 2022 Respondent requests additional time to respond to Summary Judgment motion.
June 8, 2022 ALJ denies Respondent’s Motion to Strike and sets a response deadline of June 20.
June 22, 2022 ALJ denies Petitioner’s Motion for Default Judgment but grants a continuance of the hearing.
Oct 13, 2022 Final Decision issued: Petitioner's motion affirmed; Respondent ordered to comply.
Nov 14, 2022 Respondent files Motion for Rehearing/Reconsideration.
Nov 28, 2022 ALJ issues Minute Entry refusing to consider the motion, stating the OAH can take no further action.

Actionable Insights

For Governance Compliance
  • Mandatory Owner Voting: The Board cannot unilaterally set annual assessments. A formal meeting must be called where at least 15 of the 29 owners (a quorum) are present in person or by proxy.
  • Approval Threshold: Once a quorum of 15 is met, at least 8 votes (a majority of that quorum) are required to legally set the assessment.
  • Document Amendments: If the association wishes to grant the Board the power to set assessments without a full membership vote, they must formally amend the Declaration. Per Section 23.3, this requires the signed concurrence of 51% of the Owners.
Legal and Financial Consequences
  • Reimbursement: The association is legally obligated to reimburse the Petitioner $500.00 for the filing fee.
  • Standard of Conduct: The ALJ emphasized that the HOA had decades to modernize its language regarding the "Council" and the "Board." Failure to align historical documents with current practices results in the historical contract language remaining binding.
  • Finality of Administrative Decisions: The OAH has limited jurisdiction for reconsiderations. Once a final order is issued and the timeframe for standard motions passes, the Office may refuse to hear further arguments, as seen in the November 28 Minute Entry.

Legal Analysis Study Guide: Whitmer v. Hilton Casitas HOA

This study guide provides a comprehensive overview of the administrative law case R.L. Whitmer v. Hilton Casitas HOA (No. 22F-H2222043-REL). It explores the intersection of homeowner association (HOA) governing documents, Arizona statutory law, and the principles of contractual interpretation.

Key Case Concepts

1. The Central Dispute

The primary legal question was whether the Hilton Casitas HOA Board had the authority to determine annual assessments unilaterally or if such assessments required an affirmative vote by a quorum of the homeowners. The dispute centered on the interpretation of the term "Council" as used in the association's 1972 Declaration.

2. Hierarchy of Governing Documents

The case underscores the priority of governing documents:

  • The Declaration: The foundational document (recorded in 1972). Section 8.2 states that annual assessments are "determined by the Council."
  • Bylaws: Article XI, Section 1 explicitly states that in the event of a conflict between the Bylaws and the Declaration, the Declaration shall control.
  • Statutory Law: While the Arizona Condominium Act provides general management powers to boards, it also allows for specific restrictions within a community's own Declaration.
3. Definitions and Interpretations
  • Council: Section 1.4 of the Declaration defines "Council" as the "Council of Co-owners… and consists of all of the Owners of the Casitas."
  • Quorum Requirements: According to Article III, Section 6 of the Bylaws, a quorum is a majority of members. For this association of 29 owners, a quorum is 15. The "acts of the Council" are defined as the acts of a majority of those present at a meeting where a quorum is established.
4. Statutory Transitions

The community was originally governed by the Horizontal Property Regime Act. Although this was replaced by the Condominium Act in 1986 (and applied retroactively in 2008), the Administrative Law Judge (ALJ) determined that the specific definitions and voting requirements established in the original 1972 Declaration remained binding.

Short-Answer Practice Questions

1. How does Section 1.4 of the Declaration define the "Council"?

Answer: It defines the "Council" as the Council of Co-owners, consisting of all the Owners of the Casitas.

2. Why was the February 9, 2022, "Budget Ratification" vote deemed invalid by the Administrative Law Judge?

Answer: Only 14 Owners participated (in person or by absentee ballot), which was one less than the 15 required to constitute a quorum of the 29-member association.

3. According to Section 6.5 of the Declaration, under what circumstances is an Owner’s right to vote suspended?

Answer: Voting rights are suspended if an Owner is in arrears on payments or in default of the Declaration terms for a period of fifteen (15) days.

4. What was the Respondent’s primary argument regarding the Board's authority to set the budget?

Answer: The Respondent argued that the term "Council" in Section 8.2 referred to the Board of Directors, and that under the Condominium Act (A.R.S. § 33-1243), the board has the power to act in all instances on behalf of the association unless specifically prohibited.

5. How did the ALJ address the fact that the Declaration used the term "Owners" for some actions (like amendments) and "Council" for others?

Answer: The ALJ noted that actions requiring a specific percentage of "Owners" (like terminating the Declaration) are inherently different from day-to-day operations and did not prove that "Council" was intended to mean only the Board of Directors.

Essay Prompts for Deeper Exploration

1. Contractual Interpretation in HOA Governance

Analyze the ALJ's application of the "plain language" rule in this case. How does the requirement to examine the "plain meaning of the words in the context of the contract as a whole" impact the interpretation of the term "Council"? Discuss why the ALJ found the 1972 definition of "Council" more compelling than the general management powers granted to boards under modern statutes.

2. The Impact of Statutory Evolution on Older Declarations

Hilton Casitas was formed under the Horizontal Property Regime Act, which was later repealed and replaced by the Condominium Act. Explore the challenges faced by HOAs when their founding documents (recorded under old statutes) conflict with or use different terminology than current state laws. Should an association be required to amend its documents to match modern statutory language, or should the original intent of the developers and early owners take precedence?

3. Quorum and Collective Decision-Making

Discuss the significance of the quorum in this case. The Respondent argued that 11 out of 14 votes were in favor of the budget, representing a clear majority of those who chose to participate. Evaluate the legal and ethical implications of requiring a strict quorum for financial decisions, particularly in small associations where owner apathy or absence can stall administrative functions.

Glossary of Important Terms

Term Definition
Administrative Law Judge (ALJ) A judge who serves as the trier of fact in administrative hearings, such as those held by the Office of Administrative Hearings.
Bylaws The rules adopted by the Council for the administration of the affairs of the association, subordinate to the Declaration.
Condominium Act The Arizona statutes (A.R.S. § 33-1201 et seq.) governing condominiums, effective January 1, 1986, and applicable to all condominiums regardless of their creation date.
Council of Co-owners Defined in the Horizontal Property Regime Act and the Hilton Casitas Declaration as all the owners of the casitas/units.
Declaration The Declaration of Horizontal Property Regime; the master contract recorded in the county recorder's office that governs the property and its members.
Horizontal Property Regime Act The precursor to the Condominium Act in Arizona, in effect when the Hilton Casitas Declaration was recorded in 1972.
Motion for Summary Judgment A request for the judge to rule in favor of one party without a full hearing because there are no genuine issues of material fact.
Owner The record owner of a Casita (unit) within the Hilton Casitas development.
Pro Rata Share The proportionate share of common expenses assigned to each Casita, as determined by the Declaration.
Quorum The minimum number of members required to be present (in person or by proxy) at a meeting to make the proceedings of that meeting valid.
Summary Judgment A legal decision made by a court without a full trial, based on the principle that no factual disputes exist and the law is clearly on one side.

When Homeowners Hold the Gavel: Lessons from Whitmer v. Hilton Casitas HOA

1. Introduction: The Power of the Purse in HOA Governance

In the world of community associations, there is often a simmering tension between the Board of Directors and the homeowners they serve, particularly when it involves the "power of the purse." Many Boards operate under the assumption that they possess the unilateral authority to dictate financial assessments and annual budgets. However, a recent legal victory for a vigilant homeowner serves as a stark reminder: the Board’s power is not absolute. It is strictly bounded by the community’s founding documents.

The case of R.L. Whitmer v. Hilton Casitas HOA (No. 22F-H2222043-REL) provides a masterclass in why the specific, recorded language of a community’s Declaration—rather than general state law—is the final word on budget matters. In this dispute, a failure to respect the precise definitions within a 50-year-old document led to an invalidated budget and a clear message from the court: when homeowners are given the gavel by their governing documents, the Board cannot simply take it away.

2. The Dispute: A Question of Authority

This case didn't reach a hearing because of a factual "he-said, she-said" argument. Instead, it was decided on a Motion for Summary Judgment, meaning the facts were undisputed, and the outcome rested entirely on the legal interpretation of the HOA's governing documents.

The Petitioner, a homeowner at Hilton Casitas, challenged the HOA’s 2022 annual assessment. He argued that the Board failed to obtain the mandatory affirmative approval from the homeowners as required by the community's Declaration. While the Board attempted a modern "budget ratification" process common in many newer associations, the Petitioner insisted that the association’s specific 1972 rules required a much higher level of homeowner participation.

Timeline of Events:

  • November 10, 2021: The Board met to discuss and approve a proposed 2022 budget.
  • Dec 30, 2021 – Jan 19, 2022: The Petitioner sent four separate, written reminders (Dec 30, Jan 13, Jan 16, and Jan 19) to the Board president and treasurer, warning them that they were not complying with Section 8.2 of the Declaration regarding the budget approval process.
  • January 25, 2022: The Board officially cancelled a previously scheduled (but improperly noticed) budget meeting and issued a new notice for a "Budget Ratification" meeting.
  • February 9, 2022: The HOA held the meeting to seek owner "ratification" of the assessment.
3. The Definition of "Council": Words That Cost $500

The entire legal dispute revolved around the interpretation of the word "Council." The HOA Board argued that "Council" was simply another term for the Board of Directors. The Petitioner argued it meant the entire body of owners. This single word was so central to the case that the Board’s misinterpretation ultimately led to the Administrative Law Judge (ALJ) ordering the HOA to reimburse the Petitioner’s $500 filing fee.

To find the truth, the ALJ went back to the source. The 1972 Declaration was written under the Horizontal Property Regime Act, which specifically defined the "Council of co-owners" as "all of the co-owners of the building." This historical context was the "smoking gun"—the term "Council" had a fixed legal meaning from the day the community was born.

Key Document Definitions

Term Source Context Definition
Council Consists of all of the Owners of the Casitas; defined by the Horizontal Property Regime Act as "all of the co-owners" (Section 1.4).
Owner The record owner of a Casita (Section 1.8).
Common Expenses Costs for which each Casita is subject to an annual assessment in an amount to be determined by the Council (Section 8.2).

Because Section 8.2 requires assessments to be "determined by the Council," the Board never had the unilateral authority to set the budget. That power belonged to the owners.

4. The Quorum Quagmire: Why 14 Ballots Weren’t Enough

Even when the Board finally attempted to involve the owners in the February 9, 2022, meeting, they failed to clear the procedural hurdles set by their own Bylaws.

Hilton Casitas consists of 29 condominium units. Article III, Section 6 of the Bylaws defines a quorum as a "majority of members."

  • The Math: To have a valid meeting of the Council, the HOA needed a quorum of 15 members (a majority of 29).
  • The Reality: Only 14 owners participated (in person or via absentee ballot).

Because they were one person short of a quorum, the meeting was legally a non-event. Even though 11 of those 14 owners voted in favor of the budget, the vote was invalid. The ALJ clarified that for an act of the "Council" to be valid, 15 members must be present, and at least 8 (a majority of the quorum) must vote in favor.

5. Legal Nuance: Governing Documents vs. The Condominium Act

The HOA’s primary defense was a reliance on modern statute. They argued that the Arizona Condominium Act (A.R.S. § 33-1243) grants Boards broad power to act on behalf of the association unless a power is specifically reserved for the members. Since the Act doesn't explicitly reserve "budget adoption" for members, the Board claimed they could act alone.

The ALJ rejected this, noting that the Condominium Act itself states that a Board may act "except as provided in the declaration." Essentially, the private contract of the Declaration overrides the general permissions of the statute.

Perhaps the most stinging part of the ruling was the ALJ's observation that the Board’s predicament was entirely avoidable. Since the Horizontal Property Regime Act was repealed in 1985, the Board had over 36 years to amend their Declaration to shift budget power from the owners to the Board. They chose not to do so, leaving the 1972 "Council" requirement in full effect.

"An association’s governing documents constitute a contract between the association and the owners. When interpreting contractual provisions, the Office of Administrative Hearings should not construe or interpret a contract if the intent of the parties is clear and unambiguous from its plain language." — Administrative Law Judge Decision

6. The Verdict and Its Implications

On October 13, 2022, the ALJ issued a Final Order that served as a total victory for homeowner vigilance:

  • Affirmation of the Petition: The judge ruled that the HOA violated Section 8.2 of the Declaration.
  • Financial Penalty: The HOA was ordered to reimburse the Petitioner’s $500 filing fee.
  • Future Compliance: The HOA was directed to strictly comply with Section 8.2 for all future assessments, ensuring the "Council" (the owners) determines the amounts.
7. Key Takeaways for HOA Members and Boards

The Whitmer case provides three essential lessons for community governance:

  1. Definitions are Decisive: Words like "Council," "Board," and "Association" are not interchangeable. Boards must look at their community’s specific definitions, particularly in older "legacy" documents, to understand where authority truly lies.
  2. Quorum is Non-Negotiable: A vote—even a unanimous one—is legally worthless if the minimum quorum requirement is not met. Boards must be meticulous in tracking attendance and proxies to ensure their actions are binding.
  3. Modern Statutes Don't Always Erase Old Declarations: While state laws provide a general framework, they often defer to the community’s Declaration. If your documents are outdated or restrictive, "standard practice" will not save you in court.
8. Conclusion

The Whitmer v. Hilton Casitas HOA case underscores a fundamental truth: the Declaration is the supreme law of the association. This was a "clean" legal victory achieved through a Motion for Summary Judgment because the governing documents were clear and unambiguous.

For homeowners, this case is a testament to the fact that vigilance and a thorough understanding of your documents can check a Board’s overreach. For Boards, it is a cautionary tale. Proactivity is key—if your 50-year-old documents no longer serve the practical needs of the community, you must amend them. Until then, you are bound by every word, every definition, and every procedural hurdle your predecessors put in writing.

Case Participants

Petitioner Side

  • R.L. Whitmer (petitioner)

Respondent Side

  • Edith Rudder (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (Commissioner)
    Arizona Department of Real Estate
  • Miranda Alvarez (Legal Secretary)
    Office of Administrative Hearings
  • c. serrano (Legal Secretary)
    Office of Administrative Hearings

Vance Gribble v. Legend Trail Community Association

Posted on by

Case Summary

Case ID 22F-H2221004-REL
Agency ADRE
Tribunal OAH
Decision Date 2021-11-04
Administrative Law Judge Velva Moses-Thompson
Outcome The petition was dismissed because the Petitioner failed to meet the burden of proof necessary to establish by a preponderance of the evidence that the Association violated A.R.S. § 33-1808(E), A.R.S. § 33-1808(F), or the cited Declaration Articles.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Vance Gribble Counsel —
Respondent Legend Trail Community Association Counsel Josh Bolen, Esq.

Alleged Violations

A.R.S. § 33-1808(E); Article 1 § 18 of the Declaration; Article 3 § 5 of the Declaration

Outcome Summary

The petition was dismissed because the Petitioner failed to meet the burden of proof necessary to establish by a preponderance of the evidence that the Association violated A.R.S. § 33-1808(E), A.R.S. § 33-1808(F), or the cited Declaration Articles.

Why this result: Petitioner failed to establish by a preponderance of the evidence that the Association violated A.R.S. § 33-1808(E), A.R.S. § 33-1808(F), or Article 3 § 5/Article 1 § 18 of the Declaration.

Key Issues & Findings

HOA rule adoption/enforcement regarding motorized vehicle use (ATVs/scooters)

Petitioner alleged the Association improperly prohibited the use of ATVs and motorized scooters on Association streets via e-mails (March 31, 2021, and June 21, 2021). The Association contended these were not rules and no formal enforcement action was taken.

Orders: Petitioner Vance Gribble’s petition against Respondent Legend Trail Community Association is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1808(E)
  • A.R.S. § 33-1808(F)
  • Article 1 § 18 of the Declaration
  • Article 3 § 5 of the Declaration

Analytics Highlights

Topics: Recreational Activity, Motorized Vehicles, ATVs, Scooters, Rule Adoption, Declaration, Common Area
Additional Citations:

  • A.R.S. § 33-1808(E)
  • A.R.S. § 33-1808(F)
  • Article 1 § 18 of the Declaration
  • Article 3 § 5 of the Declaration
  • A.R.S. § 32-2199(B)
  • Title 33, Chapter 16
  • A.R.S. §§ 33-3101 to 33-11702
  • A.R.S. § 10-3140
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04
  • A.R.S. § 41-1092.09
  • Vazanno v. Superior Court
  • Powell v. Washburn
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Video Overview

Audio Overview

Decision Documents

22F-H2221004-REL Decision – 922828.pdf

Uploaded 2026-01-23T17:39:42 (100.5 KB)

This summary pertains to the Administrative Law Judge Decision in the case of Vance Gribble v. Legend Trail Community Association. The hearing was held on October 15, 2021, before the Office of Administrative Hearings, concerning a petition filed under the authority of the Arizona Department of Real Estate.

Key Facts and Issues

Vance Gribble, a homeowner in Parcel A of the Legend Trail development, filed a petition alleging the Legend Trail Community Association (HOA) violated Arizona Revised Statutes (A.R.S.) § 33-1808(E) and specific provisions of the Declaration of Covenants, Conditions, and Restrictions (CC&Rs).

The core issue stemmed from two emails the Association sent concerning the use of ATVs and motorized scooters on community streets. The initial March 31, 2021, email broadly stated these vehicles were "not allowed" on Legend Trail streets. Gribble argued this communication prohibited the use of these vehicles, causing children to cease driving scooters on Association streets.

The Association responded, arguing the initial email was erroneously sent to the entire community and was intended only for Parcel A. A subsequent June 21, 2021, email was sent for clarification, specifying that restrictions regarding motorized vehicles applied only to private streets (Common Areas like Parcels A and E), where the respective Parcel Associations have a legal duty to maintain safety. The Association maintained it had not adopted a formal rule prohibiting the use of ATVs or scooters on the streets of Legend Trail and thus A.R.S. § 33-1808(E) (related to signs) was inapplicable.

Legal Points and Decision

The Petitioner bore the burden of proof to establish the Association violated the governing statutes or CC&Rs by a preponderance of the evidence.

The Administrative Law Judge focused on whether the Association took formal action to establish a rule or prohibition. A.R.S. § 10-3140 defines an "Act of the board of directors" or "Act of the members" as requiring a majority vote or written consent.

The conclusion of law found that there was no evidence presented showing the Association adopted a rule or took formal enforcement action regarding ATVs and scooters pursuant to A.R.S. § 10-3140. Furthermore, the preponderance of the evidence did not show that the Association prohibited children from engaging in recreational activity within Legend Trail (as potentially implied by A.R.S. § 33-1808(F)).

Outcome

Because the Petitioner failed to establish by a preponderance of the evidence that the Association violated A.R.S. § 33-1808(E), A.R.S. § 33-1808(F), or the cited articles of the Declaration, the Administrative Law Judge ordered that Vance Gribble’s petition be dismissed.

{ “case”: { “docket_no”: “22F-H2221004-REL”, “case_title”: “Vance Gribble vs. Legend Trail Community Association”, “decision_date”: “2021-11-04”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “What is the burden of proof required to win a hearing against an HOA?”, “short_answer”: “The petitioner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “Homeowners filing a petition bear the responsibility of proving that the HOA violated the law or the CC&Rs. The standard is ‘preponderance of the evidence,’ meaning the claim must be shown to be more probably true than not.”, “alj_quote”: “Petitioners bear the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)”, “topic_tags”: [ “legal standards”, “burden of proof”, “procedure” ] }, { “question”: “Can an HOA prohibit children from playing or riding scooters on residential streets?”, “short_answer”: “No, state law prevents HOAs from banning children’s recreational activities on residential roadways with speed limits of 25 mph or less.”, “detailed_answer”: “The decision notes that notwithstanding community documents, an association cannot prohibit resident children from engaging in recreational activity on residential roadways under the association’s jurisdiction where the speed limit is 25 mph or less.”, “alj_quote”: “Notwithstanding any provision in the community documents, an association shall not prohibit children who reside in the planned community from engaging in recreational activity on residential roadways that are under the jurisdiction of the association and on which the posted speed limit is twenty-five miles per hour or less.”, “legal_basis”: “A.R.S. § 33-1808(F) (cited as § 1803(F) in decision footnote)”, “topic_tags”: [ “homeowner rights”, “children”, “recreation” ] }, { “question”: “Does an email sent by the HOA automatically count as an official rule?”, “short_answer”: “No, an email does not constitute a formal rule if it was not adopted through an official act of the board.”, “detailed_answer”: “To be an official act, the board must usually vote at a meeting or provide written consent in accordance with statutes. In this case, emails sent in error or for clarification were not considered adopted rules or formal enforcement actions.”, “alj_quote”: “There was no evidence that the Association adopted a rule or took enforcement action against the residents… There was no evidence presented that the Association took formal action pursuant to A.R.S. §10-3140.”, “legal_basis”: “A.R.S. § 10-3140”, “topic_tags”: [ “procedural requirements”, “HOA communications”, “rulemaking” ] }, { “question”: “Can the HOA enforce traffic or safety violations on public streets?”, “short_answer”: “Generally no, unless the restriction is specifically in the CC&Rs (like parking).”, “detailed_answer”: “On public streets, the HOA’s authority is limited to enforcing restrictions explicitly contained in the CC&Rs. They do not have general authority to police moving violations or safety concerns; those are matters for local law enforcement.”, “alj_quote”: “Legend Trail Community Association may only enforce public street restrictions that are contained in the CC&R Declaration… the Association does not have the authority to address any moving violations or safety concerns on the public streets.”, “legal_basis”: “CC&R Declaration”, “topic_tags”: [ “public streets”, “enforcement”, “jurisdiction” ] }, { “question”: “What defines a ‘preponderance of the evidence’?”, “short_answer”: “It is proof that convinces the judge that a claim is ‘more probably true than not.'”, “detailed_answer”: “This legal standard does not require removing all doubt. It requires evidence that has superior weight and is sufficient to incline a fair mind to one side of the issue rather than the other.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “Morris K. Udall, Arizona Law of Evidence § 5”, “topic_tags”: [ “legal definitions”, “evidence” ] }, { “question”: “How are CC&Rs and restrictive covenants interpreted by the judge?”, “short_answer”: “They are interpreted as a whole to give effect to the underlying purpose and the intent of the parties.”, “detailed_answer”: “If a covenant is unambiguous, it is enforced based on the intent. The document is viewed in its entirety rather than isolating specific clauses.”, “alj_quote”: “Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.”, “legal_basis”: “Powell v. Washburn, 211 Ariz. 553”, “topic_tags”: [ “CC&Rs”, “legal interpretation” ] } ] }

{ “case”: { “docket_no”: “22F-H2221004-REL”, “case_title”: “Vance Gribble vs. Legend Trail Community Association”, “decision_date”: “2021-11-04”, “alj_name”: “Velva Moses-Thompson”, “tribunal”: “OAH”, “agency”: “ADRE” }, “questions”: [ { “question”: “What is the burden of proof required to win a hearing against an HOA?”, “short_answer”: “The petitioner must prove the violation by a “preponderance of the evidence.””, “detailed_answer”: “Homeowners filing a petition bear the responsibility of proving that the HOA violated the law or the CC&Rs. The standard is ‘preponderance of the evidence,’ meaning the claim must be shown to be more probably true than not.”, “alj_quote”: “Petitioners bear the burden of proof to establish that Respondent violated the Act or Respondent’s CC&Rs by a preponderance of the evidence.”, “legal_basis”: “A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1)”, “topic_tags”: [ “legal standards”, “burden of proof”, “procedure” ] }, { “question”: “Can an HOA prohibit children from playing or riding scooters on residential streets?”, “short_answer”: “No, state law prevents HOAs from banning children’s recreational activities on residential roadways with speed limits of 25 mph or less.”, “detailed_answer”: “The decision notes that notwithstanding community documents, an association cannot prohibit resident children from engaging in recreational activity on residential roadways under the association’s jurisdiction where the speed limit is 25 mph or less.”, “alj_quote”: “Notwithstanding any provision in the community documents, an association shall not prohibit children who reside in the planned community from engaging in recreational activity on residential roadways that are under the jurisdiction of the association and on which the posted speed limit is twenty-five miles per hour or less.”, “legal_basis”: “A.R.S. § 33-1808(F) (cited as § 1803(F) in decision footnote)”, “topic_tags”: [ “homeowner rights”, “children”, “recreation” ] }, { “question”: “Does an email sent by the HOA automatically count as an official rule?”, “short_answer”: “No, an email does not constitute a formal rule if it was not adopted through an official act of the board.”, “detailed_answer”: “To be an official act, the board must usually vote at a meeting or provide written consent in accordance with statutes. In this case, emails sent in error or for clarification were not considered adopted rules or formal enforcement actions.”, “alj_quote”: “There was no evidence that the Association adopted a rule or took enforcement action against the residents… There was no evidence presented that the Association took formal action pursuant to A.R.S. §10-3140.”, “legal_basis”: “A.R.S. § 10-3140”, “topic_tags”: [ “procedural requirements”, “HOA communications”, “rulemaking” ] }, { “question”: “Can the HOA enforce traffic or safety violations on public streets?”, “short_answer”: “Generally no, unless the restriction is specifically in the CC&Rs (like parking).”, “detailed_answer”: “On public streets, the HOA’s authority is limited to enforcing restrictions explicitly contained in the CC&Rs. They do not have general authority to police moving violations or safety concerns; those are matters for local law enforcement.”, “alj_quote”: “Legend Trail Community Association may only enforce public street restrictions that are contained in the CC&R Declaration… the Association does not have the authority to address any moving violations or safety concerns on the public streets.”, “legal_basis”: “CC&R Declaration”, “topic_tags”: [ “public streets”, “enforcement”, “jurisdiction” ] }, { “question”: “What defines a ‘preponderance of the evidence’?”, “short_answer”: “It is proof that convinces the judge that a claim is ‘more probably true than not.'”, “detailed_answer”: “This legal standard does not require removing all doubt. It requires evidence that has superior weight and is sufficient to incline a fair mind to one side of the issue rather than the other.”, “alj_quote”: “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”, “legal_basis”: “Morris K. Udall, Arizona Law of Evidence § 5”, “topic_tags”: [ “legal definitions”, “evidence” ] }, { “question”: “How are CC&Rs and restrictive covenants interpreted by the judge?”, “short_answer”: “They are interpreted as a whole to give effect to the underlying purpose and the intent of the parties.”, “detailed_answer”: “If a covenant is unambiguous, it is enforced based on the intent. The document is viewed in its entirety rather than isolating specific clauses.”, “alj_quote”: “Restrictive covenants must be construed as a whole and interpreted in view of their underlying purposes, giving effect to all provisions contained therein.”, “legal_basis”: “Powell v. Washburn, 211 Ariz. 553”, “topic_tags”: [ “CC&Rs”, “legal interpretation” ] } ] }

Case Participants

Petitioner Side

  • Vance Gribble (petitioner)
    Appeared on behalf of himself

Respondent Side

  • Josh Bolen (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
  • Terri Klein (witness)
    Association's Board of Directors
    President of the Association's Board of Directors

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Louis Dettorre (commissioner)
    Arizona Department of Real Estate
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • DGardner (ADRE staff)
    Arizona Department of Real Estate

Daniel J Coe v. Maricopa Meadows Homeowners Association

Posted on by

Case Summary

Case ID 21F-H2120029-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2021-10-12
Administrative Law Judge Adam D. Stone
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Daniel J Coe Counsel —
Respondent Maricopa Meadows Homeowners Association Counsel Edith Rudder

Alleged Violations

No violations listed

Outcome Summary

The Office of Administrative Hearings issued an order vacating the scheduled hearing and remanding the matter to the Department of Real Estate, based on the Petitioner's motion to withdraw the rehearing petition.

Why this result: Petitioner withdrew the rehearing petition.

Key Issues & Findings

Motion to Withdraw Rehearing Petition

Petitioner filed a Motion to Withdraw Rehearing Petition, advising that the scheduled hearing was not necessary.

Orders: Hearing vacated and matter remanded to the Department of Real Estate.

Filing fee: $0.00, Fee refunded: No

Disposition: procedural_closure

Analytics Highlights

Topics: withdrawal, procedural, remand

Video Overview

Audio Overview

Decision Documents

21F-H2120029-REL Decision – 916851.pdf

Uploaded 2026-04-28T10:55:51 (51.8 KB)

21F-H2120029-REL Decision – 890760.pdf

Uploaded 2026-04-28T10:56:07 (151.9 KB)

21F-H2120029-REL Decision – 916851.pdf

Uploaded 2026-04-24T11:32:32 (51.8 KB)

21F-H2120029-REL Decision – 890760.pdf

Uploaded 2026-04-24T11:32:40 (151.9 KB)

This summary details the administrative disposition of the legal matter between Daniel J Coe, Petitioner, and Maricopa Meadows Homeowners Association, Respondent, identified as Case No. 21F-H2120029-REL-RHG, before the Office of Administrative Hearings (OAH).

Key Facts and Proceedings:

The Petitioner, Daniel J Coe, was involved in a dispute with the Maricopa Meadows Homeowners Association. A hearing concerning this matter was scheduled before the OAH for October 12, 2021. However, the proceedings were terminated before the scheduled date. On October 8, 2021, the Petitioner filed a Motion to Withdraw Rehearing Petition with the OAH. In this motion, the Petitioner explicitly advised that the scheduled hearing was "not necessary".

Main Issues and Legal Points:

The central legal point addressed in the order was the disposition of the Petitioner’s request for a hearing. The Administrative Law Judge (ALJ), Adam D. Stone, determined that there was sufficient cause to act on the Petitioner's motion to withdraw the petition.

Outcome and Final Decision:

On October 12, 2021, the ALJ issued an ORDER VACATING HEARING. The Order formally vacated the scheduled hearing from the calendar of the Office of Administrative Hearings. Crucially, the Order FURTHER ORDERED remanding this matter to the Department of Real Estate for further action. This administrative decision concluded the OAH's involvement in the pending hearing request, shifting the responsibility for subsequent steps back to the Department of Real Estate.

Questions

Question

Does the number of homeowners ineligible to vote (due to delinquency) lower the number required for a quorum?

Short Answer

No. The quorum is generally calculated based on the total class of membership, and subtracting ineligible voters to lower the quorum threshold is not automatically accepted without specific support.

Detailed Answer

The ALJ rejected the homeowner's argument that the quorum threshold should be lowered by subtracting the 222 members who were ineligible to vote due to delinquent accounts. The quorum remained 10% of the total membership class (1,626), not 10% of the eligible voters.

Alj Quote

Petitioner’s argument that because only 1,404 Members were eligible to vote, that quorum was established at 140 voting Members is erroneous. Moreover, Petitioner provided no statute, regulation, governing document, or other binding case law to support his contention.

Legal Basis

Bylaws Article III Section 3.6

Topic Tags

  • Elections
  • Quorum
  • Voting Rights

Question

What happens to the results of an election if the required quorum is not met?

Short Answer

The election is invalid and no candidates are elected, even if votes were cast.

Detailed Answer

In this case, candidates received over 100 votes each, but because the total number of ballots cast (147) did not meet the quorum requirement (163), no one was elected to the Board.

Alj Quote

Although Alicia Chin received 109 votes, Randy Eilts received 103 votes, Petitioner received 103 votes… none were elected to the Board of Directors because the Association determined that quorum had not been met.

Legal Basis

Bylaws Article III Section 3.6

Topic Tags

  • Elections
  • Quorum
  • Board of Directors

Question

Are CC&Rs considered a legally binding contract?

Short Answer

Yes, CC&Rs constitute an enforceable contract between the HOA and the homeowner.

Detailed Answer

When a person buys a property in an HOA, they agree to be bound by the CC&Rs, creating a contractual relationship.

Alj Quote

When a party buys a residential unit in the development, the party receives a copy of the CC&Rs and agrees to be bound by their terms. Thus, the CC&Rs form an enforceable contract between the Association and each property owner.

Legal Basis

Contract Law

Topic Tags

  • CC&Rs
  • Legal Standards
  • Contracts

Question

Who has the burden of proof in a hearing against an HOA?

Short Answer

The petitioner (the homeowner filing the complaint) bears the burden of proof.

Detailed Answer

The homeowner must prove that the HOA violated the statutes or documents by a 'preponderance of the evidence.'

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • Procedure
  • Burden of Proof
  • Evidence

Question

What evidence is required to win a dispute about interpreting bylaws?

Short Answer

You generally need to provide statutes, regulations, governing documents, or binding case law that supports your interpretation.

Detailed Answer

The ALJ denied the petition partly because the homeowner offered only an argument without supporting legal authority to counter the plain text of the bylaws.

Alj Quote

Petitioner provided no statute, regulation, governing document, or other binding case law to support his contention. Here, the clear authority lies within the plain text of Article III Section 3.6.

Legal Basis

Administrative Law

Topic Tags

  • Evidence
  • Legal Interpretation
  • Bylaws

Question

Does the Administrative Law Judge have the power to interpret the HOA's contract/CC&Rs?

Short Answer

Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.

Detailed Answer

The tribunal is authorized to hear disputes and interpret the governing documents (the contract) to resolve the case.

Alj Quote

Pursuant to ARIZ. REV. STAT. §§ 32-2199(2)… OAH has the authority to hear and decide the contested case at bar. OAH also has the authority to interpret the contract between the parties.

Legal Basis

ARIZ. REV. STAT. §§ 32-2199

Topic Tags

  • Jurisdiction
  • OAH Authority
  • Contracts

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

It is the greater weight of convincing evidence, enough to incline a fair mind to one side, even if doubts remain.

Alj Quote

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Legal Basis

Arizona Law of Evidence

Topic Tags

  • Legal Standards
  • Definitions
  • Evidence

Case

Docket No
21F-H2120029-REL
Case Title
Daniel J. Coe v. Maricopa Meadows Homeowners Association
Decision Date
2021-06-24
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Questions

Question

Does the number of homeowners ineligible to vote (due to delinquency) lower the number required for a quorum?

Short Answer

No. The quorum is generally calculated based on the total class of membership, and subtracting ineligible voters to lower the quorum threshold is not automatically accepted without specific support.

Detailed Answer

The ALJ rejected the homeowner's argument that the quorum threshold should be lowered by subtracting the 222 members who were ineligible to vote due to delinquent accounts. The quorum remained 10% of the total membership class (1,626), not 10% of the eligible voters.

Alj Quote

Petitioner’s argument that because only 1,404 Members were eligible to vote, that quorum was established at 140 voting Members is erroneous. Moreover, Petitioner provided no statute, regulation, governing document, or other binding case law to support his contention.

Legal Basis

Bylaws Article III Section 3.6

Topic Tags

  • Elections
  • Quorum
  • Voting Rights

Question

What happens to the results of an election if the required quorum is not met?

Short Answer

The election is invalid and no candidates are elected, even if votes were cast.

Detailed Answer

In this case, candidates received over 100 votes each, but because the total number of ballots cast (147) did not meet the quorum requirement (163), no one was elected to the Board.

Alj Quote

Although Alicia Chin received 109 votes, Randy Eilts received 103 votes, Petitioner received 103 votes… none were elected to the Board of Directors because the Association determined that quorum had not been met.

Legal Basis

Bylaws Article III Section 3.6

Topic Tags

  • Elections
  • Quorum
  • Board of Directors

Question

Are CC&Rs considered a legally binding contract?

Short Answer

Yes, CC&Rs constitute an enforceable contract between the HOA and the homeowner.

Detailed Answer

When a person buys a property in an HOA, they agree to be bound by the CC&Rs, creating a contractual relationship.

Alj Quote

When a party buys a residential unit in the development, the party receives a copy of the CC&Rs and agrees to be bound by their terms. Thus, the CC&Rs form an enforceable contract between the Association and each property owner.

Legal Basis

Contract Law

Topic Tags

  • CC&Rs
  • Legal Standards
  • Contracts

Question

Who has the burden of proof in a hearing against an HOA?

Short Answer

The petitioner (the homeowner filing the complaint) bears the burden of proof.

Detailed Answer

The homeowner must prove that the HOA violated the statutes or documents by a 'preponderance of the evidence.'

Alj Quote

In this proceeding, Petitioner bears the burden of proving by a preponderance of the evidence that Respondent violated ARIZ. REV. STAT. § 33-1243.

Legal Basis

ARIZ. ADMIN. CODE R2-19-119

Topic Tags

  • Procedure
  • Burden of Proof
  • Evidence

Question

What evidence is required to win a dispute about interpreting bylaws?

Short Answer

You generally need to provide statutes, regulations, governing documents, or binding case law that supports your interpretation.

Detailed Answer

The ALJ denied the petition partly because the homeowner offered only an argument without supporting legal authority to counter the plain text of the bylaws.

Alj Quote

Petitioner provided no statute, regulation, governing document, or other binding case law to support his contention. Here, the clear authority lies within the plain text of Article III Section 3.6.

Legal Basis

Administrative Law

Topic Tags

  • Evidence
  • Legal Interpretation
  • Bylaws

Question

Does the Administrative Law Judge have the power to interpret the HOA's contract/CC&Rs?

Short Answer

Yes, the Office of Administrative Hearings (OAH) has the authority to interpret the contract between the parties.

Detailed Answer

The tribunal is authorized to hear disputes and interpret the governing documents (the contract) to resolve the case.

Alj Quote

Pursuant to ARIZ. REV. STAT. §§ 32-2199(2)… OAH has the authority to hear and decide the contested case at bar. OAH also has the authority to interpret the contract between the parties.

Legal Basis

ARIZ. REV. STAT. §§ 32-2199

Topic Tags

  • Jurisdiction
  • OAH Authority
  • Contracts

Question

What does 'preponderance of the evidence' mean in an HOA hearing?

Short Answer

It means the evidence shows the claim is more probably true than not.

Detailed Answer

It is the greater weight of convincing evidence, enough to incline a fair mind to one side, even if doubts remain.

Alj Quote

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

Legal Basis

Arizona Law of Evidence

Topic Tags

  • Legal Standards
  • Definitions
  • Evidence

Case

Docket No
21F-H2120029-REL
Case Title
Daniel J. Coe v. Maricopa Meadows Homeowners Association
Decision Date
2021-06-24
Alj Name
Jenna Clark
Tribunal
OAH
Agency
ADRE

Case Participants

Petitioner Side

  • Daniel J. Coe (petitioner)
    Also a candidate for Board Member Elect
  • Randy Eilts (board member candidate)
    Also listed as an observer
  • Summer Wierth (board member candidate)
    Also listed as an observer
  • Alicia Chin (board member candidate)
  • Albert Barnes (board member candidate)

Respondent Side

  • Ed O’Brien (attorney)
    Maricopa Meadows Homeowners Association
  • Michael LaPoint (witness)
  • Lydia A. Peirce Linsmeier (attorney)
    Carpenter, Hazelwood, Delgado & Bolen LLP
    Counsel for Respondent
  • Edith Rudder (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
    Counsel for Respondent in later filing

Neutral Parties

  • Jenna Clark (ALJ)
    OAH
    Issued Administrative Law Judge Decision
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate
  • DGardner (ADRE staff)
    Arizona Department of Real Estate
  • Adam D. Stone (ALJ)
    OAH
    Issued Order Vacating Hearing
  • AHansen (ADRE staff)
    Arizona Department of Real Estate
  • djones (ADRE staff)
    Arizona Department of Real Estate
  • c. serrano (OAH staff)
    OAH
    Transmitting staff

Other Participants

  • Andrea Chin (observer)

Mary J Bartle vs. Saguaro West Owner’s Association

Posted on by
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 19F-H1919059-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-01-30
Administrative Law Judge Thomas Shedden
Outcome The Administrative Law Judge affirmed the original conclusion and dismissed the petition, finding that the Petitioner failed to meet the burden of proof that the Association violated Bylaws Article VIII, section 8(d) regarding the contested $49,000.50 fund transaction.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Mary J Bartle Counsel —
Respondent Saguaro West Owner's Association Counsel Nicole Payne, Esq.

Alleged Violations

Bylaws Article VIII, section 8(d)

Outcome Summary

The Administrative Law Judge affirmed the original conclusion and dismissed the petition, finding that the Petitioner failed to meet the burden of proof that the Association violated Bylaws Article VIII, section 8(d) regarding the contested $49,000.50 fund transaction.

Why this result: Petitioner failed to show by a preponderance of the evidence that the transactions violated the specific duties of the treasurer set out in Bylaws Article VIII, section 8(d).

Key Issues & Findings

Alleged violation of Treasurer duties regarding fund transactions

The petitioner alleged the Association violated Bylaws Article VIII, section 8(d) by withdrawing and redepositing $49,000.50 from the operating account. The ALJ concluded that Petitioner failed to show by a preponderance of the evidence that these transactions violated the specific duties of the treasurer set forth in that section.

Orders: Petitioner Mary J. Bartle’s petition is dismissed and Respondent is deemed the prevailing party in this matter.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section and title 12, chapter 7, article 6
  • ARIZ. REV. STAT. section 12-904(A)

Analytics Highlights

Topics: HOA, Bylaws, Treasurer Duties, Dismissal, Burden of Proof, Rehearing
Additional Citations:

  • ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
  • ARIZ. ADMIN. CODE § R2-19-119
  • McNally v. Sun Lakes Homeowners Ass’n #1, Inc., 241 Ariz. 1, 382 P.3d 1216 (2016 App.)
  • BLACK’S LAW DICTIONARY 1373 (10th ed. 2014)
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section and title 12, chapter 7, article 6
  • ARIZ. REV. STAT. section 12-904(A)

Video Overview

Audio Overview

Decision Documents

19F-H1919059-REL-RHG Decision – 767041.pdf

Uploaded 2026-01-23T17:29:24 (94.6 KB)

Briefing Document: Bartle vs. Saguaro West Owner’s Association (Case No. 19F-H1919059-REL-RHG)

Executive Summary

This briefing document analyzes the Administrative Law Judge Decision in the matter of Mary J. Bartle vs. Saguaro West Owner’s Association. The final order, issued on January 30, 2020, dismissed the petition brought by Ms. Bartle. The core of the case revolved around a financial transaction where $49,000.50 was withdrawn from the Association’s operating account on October 22, 2018, and redeposited on November 30, 2018.

The petitioner, Ms. Bartle, alleged this transaction violated a specific provision of the Association’s bylaws—Article VIII, section 8(d)—which outlines the duties of the Treasurer. Despite two hearings, the Administrative Law Judge consistently concluded that Ms. Bartle failed to meet her burden of proof. The central finding was that while evidence suggested the transaction “may have been in violation of the law or otherwise improper,” the petitioner did not demonstrate, by a preponderance of the evidence, how this transaction specifically violated any of the enumerated duties of the Treasurer as set forth in the cited bylaw. The decision underscores a critical legal distinction between a potentially improper act and a proven violation of the specific bylaw under which the complaint was filed.

Case Overview

Case Name

Mary J. Bartle, Petitioner, vs. Saguaro West Owner’s Association, Respondent

Case Number

19F-H1919059-REL-RHG

Jurisdiction

Arizona Department of Real Estate, Office of Administrative Hearings (OAH)

Presiding Judge

Administrative Law Judge Thomas Shedden

Petitioner

Mary J. Bartle (representing herself)

Respondent

Saguaro West Owner’s Association (represented by Nicole Payne, Esq.)

Rehearing Date

January 14, 2020

Final Decision Date

January 30, 2020

Procedural History and Core Allegation

The case proceeded through an initial hearing and a subsequent rehearing, following a specific timeline of events:

• April 22, 2019: Ms. Bartle filed the initial petition with the Arizona Department of Real Estate.

• August 29, 2019: The first hearing was held. At the outset, a discussion was held to narrow the scope of the hearing. Ms. Bartle agreed to limit her petition to a single issue.

• The Single Issue: Whether the Association violated Bylaws Article VIII, section 8(d) through a withdrawal of $49,000.50 on October 22, 2018, and a redeposit of the same amount on November 30, 2018.

• September 18, 2019: The initial Administrative Law Judge Decision was issued, dismissing Ms. Bartle’s petition.

• October 23, 2019: Ms. Bartle filed a request for a rehearing, asserting an error in the admission of evidence.

• November 18, 2019: The Department of Real Estate granted the request for a rehearing.

• January 14, 2020: The rehearing was convened. Ms. Bartle testified, while the Respondent presented no witnesses.

• January 30, 2020: The final Administrative Law Judge Decision was issued, reaffirming the dismissal of the petition.

At the rehearing, Ms. Bartle testified “to the effect that laws must have been violated by the withdrawal and redepositing of the $49,000.50 without the Association’s members being provided any notice of these transactions.”

Analysis of Bylaw and Judicial Findings

Bylaw Article VIII, Section 8(d): The Treasurer’s Duties

The entirety of the petitioner’s case rested on proving a violation of the specific duties outlined for the Treasurer in the Association’s bylaws. The text of the bylaw is as follows:

The Treasurer shall receive and deposit in the Association’s bank accounts all monies received by the Association and shall disburse such funds as directed by resolution [of] the Board of Directors; shall properly prepare and sign all checks before presenting them to be co-signed; keep proper books of account; cause an annual audit of the Association’s books to be made by a public accountant at the completion of each fiscal year; and shall prepare an annual budget to be presented to the membership at the annual meeting; to cause all Federal and State reports to be prepared; and shall prepare all monthly statements of finance for the Board of Directors.

Key Judicial Findings and Conclusions

The Administrative Law Judge’s decision hinged on the petitioner’s failure to connect the disputed financial transaction to a specific violation of the duties listed above. The judge made a clear distinction between the potential impropriety of the transaction and the narrow scope of the legal claim.

• Initial Hearing Conclusion: The decision from the first hearing, which the judge took notice of in the rehearing, established the core finding:

• Rehearing Conclusion: The final decision after the rehearing reinforced this exact point, stating:

Ultimately, the case was dismissed because Ms. Bartle did not meet the legal standard required to prove her specific claim.

Legal Framework and Final Order

Applicable Legal Standards

The decision was grounded in several key legal principles cited by the Administrative Law Judge:

• Jurisdiction: The Arizona Department of Real Estate possesses authority over the matter pursuant to ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11.

• Burden of Proof: Ms. Bartle, as the petitioner, bore the burden of proof on all issues.

• Standard of Proof: The standard was a “preponderance of the evidence,” defined as “The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

• Contractual Nature of Bylaws: Citing McNally v. Sun Lakes Homeowners Ass’n #1, Inc., the decision notes that “The Bylaws are a contract between the parties and the parties are required to comply with its terms.”

Final Order and Implications

Based on the failure to meet the burden of proof, the Administrative Law Judge issued a binding order with the following key points:

1. Dismissal: Petitioner Mary J. Bartle’s petition is dismissed.

2. Prevailing Party: The Respondent, Saguaro West Owner’s Association, is deemed the prevailing party.

3. Appeal Rights: A party wishing to appeal the order must seek judicial review with the superior court within thirty-five days from the date the order was served, as prescribed by ARIZ. REV. STAT. sections 12-904(A) and Title 12, Chapter 7, Article 6.

Study Guide: Bartle v. Saguaro West Owner’s Association

This guide provides a detailed review of the Administrative Law Judge Decision in case number 19F-H1919059-REL-RHG. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to facilitate a comprehensive understanding of the legal matter.

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Quiz: Short-Answer Questions

Instructions: Answer the following questions in two to three complete sentences, drawing all information directly from the case document.

1. Who were the primary parties in this legal matter, and what were their respective roles?

2. What specific financial transaction was the central subject of the petitioner’s complaint?

3. Which specific article and section of the Association’s Bylaws did the petitioner claim was violated?

4. What was the legal standard of proof that the petitioner was required to meet, and who had the burden of proof?

5. On what grounds did Ms. Bartle file her request for a rehearing after the initial decision?

6. According to the judge’s decision, what was the key failure in the petitioner’s argument regarding the financial transaction?

7. What was the final order issued by the Administrative Law Judge on January 30, 2020?

8. Although the judge dismissed the petition, what did the decision state about the nature of the financial transactions?

9. Which government department granted the request for a rehearing and has authority over this type of matter?

10. What options does a party have if they wish to appeal the final administrative law judge order?

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Answer Key

1. The primary parties were the Petitioner, Mary J. Bartle, and the Respondent, Saguaro West Owner’s Association. Ms. Bartle brought the petition against the Association, alleging a violation of its bylaws.

2. The central subject was the withdrawal of $49,000.50 from the Association’s operating account on October 22, 2018. The same amount was subsequently redeposited into the account on November 30, 2018.

3. The petitioner claimed the Association violated Bylaws Article VIII, section 8(d). This section outlines the specific duties and responsibilities of the Association’s Treasurer.

4. The standard of proof was a “preponderance of the evidence.” The burden of proof was on the petitioner, Ms. Bartle, to demonstrate that the Association had violated the bylaw.

5. Ms. Bartle filed her Rehearing Request on the grounds that there was an error in the admission of evidence. She specifically referenced documents dated July 5, August 6, and September 13, 2019, in her request.

6. The key failure was that Ms. Bartle did not show by a preponderance of the evidence that the withdrawal and redeposit specifically violated any of the treasurer’s duties as explicitly listed in Bylaws Article VIII, section 8(d). Her claim was too narrow for the evidence she presented.

7. The final order was that Petitioner Mary J. Bartle’s petition be dismissed. The Respondent, Saguaro West Owner’s Association, was deemed to be the prevailing party in the matter.

8. The decision stated that there was evidence to suggest that the withdrawal and redeposit of the $49,000.50 “may have been in violation of the law or otherwise improper.” However, this was not sufficient to prove a violation of the specific bylaw in question.

9. The Arizona Department of Real Estate granted the rehearing on November 18, 2019. This department has authority over the matter as established by ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11.

10. A party wishing to appeal the order must seek judicial review as prescribed by Arizona Revised Statutes. The appeal must be filed with the superior court within thirty-five days from the date the order was served upon the parties.

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Essay Questions

Instructions: Consider the following questions for a deeper analysis of the case. Formulate a comprehensive response based solely on the information provided in the source document.

1. Analyze the concept of “preponderance of the evidence” as defined in the decision. Explain why Mary J. Bartle failed to meet this standard, despite the judge’s acknowledgment that the transaction may have been “improper” or in “violation of the law.”

2. Discuss the procedural significance of limiting the hearing to the single issue of Bylaws Article VIII, section 8(d). How might the case’s outcome have differed if the scope of the hearing had been broader?

3. Trace the complete timeline of the case from the initial petition filing in April 2019 to the final order in January 2020. What do the key events and dates reveal about the process of administrative hearings and rehearings?

4. Based on the full text of Bylaws Article VIII, section 8(d), what specific types of evidence would the petitioner have needed to present to successfully prove that the treasurer’s duties were violated by the $49,000.50 transaction?

5. Evaluate the distinction made by the Administrative Law Judge between a transaction that is potentially illegal or improper and a transaction that specifically violates the duties enumerated in Bylaws Article VIII, section 8(d). Why is this distinction critical to the final order of dismissal?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, weighs evidence, and issues decisions on matters under the jurisdiction of a government agency. In this case, the ALJ was Thomas Shedden.

ARIZ. ADMIN. CODE

The Arizona Administrative Code, a compilation of rules and regulations of Arizona’s state agencies. Section R2-19-119 is cited as establishing the standard of proof.

ARIZ. REV. STAT.

The Arizona Revised Statutes, which are the codified laws of the state of Arizona. Various sections are cited to establish jurisdiction and the appeals process.

Bylaws

A set of rules established by an organization, such as a homeowners’ association, to regulate itself. In this case, the bylaws are treated as a binding contract between the parties.

Conclusion of Law

The section of a legal decision where the judge applies legal principles and statutes to the established facts of the case.

Finding of Fact

The section of a legal decision that lists the factual determinations made by the judge based on the evidence presented during the hearing.

Judicial Review

The process by which a court of law reviews the decision of a lower court or an administrative agency to determine if the decision was legally sound.

Office of Administrative Hearings (OAH)

A state agency that provides a neutral forum for conducting administrative hearings for other state agencies. The hearings in this matter were held at the OAH.

Petitioner

The party who initiates a lawsuit or files a petition seeking a legal remedy. In this case, the petitioner was Mary J. Bartle.

Preponderance of the Evidence

The standard of proof in most civil cases. It is met when the evidence presented has the most convincing force and is sufficient to incline a fair and impartial mind to one side of an issue over the other.

Prevailing Party

The party in a legal dispute who is successful and in whose favor the judgment is rendered. In this case, the Respondent was deemed the prevailing party.

Rehearing

A second hearing of a case to consider new evidence or to argue against the original decision on the basis of an error. Ms. Bartle’s request for a rehearing was granted.

Respondent

The party against whom a petition is filed. In this case, the respondent was the Saguaro West Owner’s Association.

A Homeowner Found a Mysterious $49,000 Transaction in Her HOA’s Books. The Reason She Lost in Court Is a Lesson for Everyone.

Introduction: The David-vs-Goliath Fight That Didn’t Go as Planned

For many homeowners, dealing with a Homeowners’ Association (HOA) can feel like a constant battle for transparency and fairness. It’s a common story: a resident raises concerns about financial decisions made behind closed doors, only to be met with resistance or silence. But what happens when a homeowner pushes back and takes that fight to an administrative hearing?

After an initial hearing and a persistent request for a rehearing, the final decision in Mary J. Bartle’s case against the Saguaro West Owner’s Association seemed, on the surface, like a clear-cut quest for accountability. The dispute centered on a single, alarming event: the withdrawal and subsequent redeposit of $49,000.50 from the association’s operating account without any notice to the members. It appeared to be a straightforward case of a concerned resident demanding answers.

However, the ruling from the administrative hearing offers a surprising and crucial lesson in how the legal system operates. The outcome reveals that suspicion, no matter how justified, is not enough to win. This article breaks down the top counter-intuitive takeaways from the judge’s decision and what they mean for any homeowner considering a legal challenge against their HOA.

Takeaway 1: A “Suspicious” Act Isn’t a Guaranteed Win

Feeling Something Is Wrong Isn’t the Same as Proving It.

The core facts of the case were not in dispute. On October 22, 2018, $49,000.50 was withdrawn from the Saguaro West Owner’s Association’s operating account. On November 30, 2018, the exact same amount was redeposited. Members were not notified of these transactions. To any reasonable observer, this activity raises immediate questions.

Even the Administrative Law Judge presiding over the case acknowledged the questionable nature of the transaction. In his final decision, he validated Ms. Bartle’s initial concerns with a striking statement:

The evidence shows that $49,000.50 was withdrawn from the Association’s account in October 2018 and the same amount was deposited in November 2018, and there is evidence to suggest that the transactions may have been in violation of the law.

This is the most stunning part of the case: the judge agreed that the transaction looked suspicious and might have broken the law, yet Ms. Bartle still lost. This reveals a critical distinction in legal proceedings. A judge is not an arbiter of general fairness but an interpreter of specific laws and rules. The judge’s comment shows he understood the spirit of Ms. Bartle’s complaint, but his hands were tied by the letter of her petition. The legal system requires more than a gut feeling; it demands specific proof that a specific rule was violated, which leads directly to the next critical lesson.

Takeaway 2: You Must Prove theExactRule Was Broken

Specificity Is Your Only Weapon.

Ms. Bartle’s case was ultimately narrowed to a single, highly specific issue: whether the $49,000.50 transaction violated Article VIII, section 8(d) of the association’s bylaws. This is a crucial detail because courts and administrative bodies require this rigid specificity to ensure fairness, prevent “moving goalposts,” and keep proceedings focused on the actual claims filed, not a general feeling of grievance.

Her entire case hinged on proving a violation of that specific section and no other. The rule in question outlines the treasurer’s duties, which include the power to: “receive and deposit…all monies,” “disburse such funds as directed,” “sign all checks,” and “keep proper books of account.”

The judge’s conclusion was brutally precise. He found that Ms. Bartle had “not shown by a preponderance of the evidence” that the transaction violated any of those specific, listed duties. She couldn’t prove the treasurer failed to deposit money or keep proper books; she could only prove a strange transaction occurred that wasn’t explicitly forbidden by the rule she cited. This is a critical lesson: it doesn’t matter if an HOA’s action feels wrong; what matters is whether you can prove it violated the precise rule you cited in your petition.

Takeaway 3: The Burden of Proof Rests Entirely on the Accuser

It’s Your Job to Build the Case, Not Theirs to Disprove It.

In a civil administrative hearing like this, the petitioner—Ms. Bartle—carries the “burden of proof.” The standard she had to meet was the “preponderance of the evidence.” The legal definition for this is:

“superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

In simple terms, she had to present enough convincing evidence to make the judge believe that her version of events was more likely true than not. The judge’s decision explicitly states that Ms. Bartle bore this burden and ultimately failed to meet it.

One of the most powerful details from the case file illustrates this point perfectly: the Saguaro West Owner’s Association, though represented by legal counsel, “presented no witnesses.” They didn’t have to. They didn’t need to explain the transaction or justify their actions because Ms. Bartle failed to build a strong enough case to prove her specific claim. The onus was completely on her to prove her argument, and when it fell short, the case was dismissed.

Conclusion: A Sobering Reminder for Homeowners

The case of Mary Bartle is a sobering reminder that winning a legal fight against a well-resourced entity like an HOA is less about moral rightness and more about meticulous legal strategy and precision.

While the judge acknowledged that Ms. Bartle’s concerns about the $49,000.50 transaction were potentially valid, her petition was dismissed not on a simple technicality, but because of a core principle of law: the failure to prove that the specific rule cited had actually been broken. Her case highlights the immense challenge for individual homeowners seeking transparency. It leaves us asking, if the legal bar is this specific, what practical recourse do residents have when they feel something is fundamentally wrong?

Case Participants

Petitioner Side

  • Mary J Bartle (petitioner)
    Appeared on her own behalf and testified

Respondent Side

  • Nicole Payne (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
    Counsel for Saguaro West Owner's Association
  • Edith Rudder (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
    Counsel for Saguaro West Owner's Association

Neutral Parties

  • Thomas Shedden (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Paul Herbert vs. Blackstone at Vistancia Community Association

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Case Summary

Case ID 18F-H1817002-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2018-01-03
Administrative Law Judge Diane Mihalsky
Outcome neutral
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Brian C. Herbert Counsel Jeffrey D. Harris
Respondent Blackstone at Vistancia Community Association Counsel Stewart F. Salwin

Alleged Violations

A.A.C. R2-19-111(3)

Outcome Summary

The case was resolved by settlement between the parties before adjudication, leading to the vacation of the scheduled hearing and remand to the ADRE.

Key Issues & Findings

Resolution by Settlement

The parties reached a settlement, resulting in a motion to vacate the hearing on the merits.

Orders: ORDER VACATING HEARING; matter remanded to the Director of the Arizona Department of Real Estate for further action.

Filing fee: $0.00, Fee refunded: No

Disposition: settlement

Cited:

  • A.A.C. R2-19-111(3)

Analytics Highlights

Topics: Settlement, Vacated Hearing, HOA Dispute
Additional Citations:

  • A.A.C. R2-19-111(3)

Video Overview

Audio Overview

Decision Documents

18F-H1817002-REL Decision – 609956.pdf

Uploaded 2026-04-27T09:30:16 (51.3 KB)

18F-H1817002-REL Decision – 584947.pdf

Uploaded 2026-04-27T09:30:23 (56.6 KB)

18F-H1817002-REL Decision – 609956.pdf

Uploaded 2026-04-24T11:06:51 (51.3 KB)

18F-H1817002-REL Decision – 584947.pdf

Uploaded 2026-04-24T11:06:55 (56.6 KB)

Briefing on Case No. 18F-H1817002-REL-RHG: Herbert v. Blackstone at Vistancia

Executive Summary

This briefing details the resolution of case number 18F-H1817002-REL-RHG, a dispute between Petitioner Brian C. Herbert and Respondent Blackstone at Vistancia Community Association. The central development is that the parties reached a settlement, leading their attorneys to jointly file a motion to vacate the scheduled hearing. On January 3, 2018, Administrative Law Judge Diane Mihalsky of the Arizona Office of Administrative Hearings granted this motion. The hearing scheduled for January 5, 2018, was officially vacated, and the case was remanded to the Director of the Arizona Department of Real Estate for subsequent action.

Case Overview

• Case Number: 18F-H1817002-REL-RHG

• Forum: The Office of Administrative Hearings, Phoenix, Arizona

• Petitioner: Brian C. Herbert

• Respondent: Blackstone at Vistancia Community Association

• Presiding Judge: Diane Mihalsky, Administrative Law Judge

Key Development: Settlement and Hearing Vacation

The primary catalyst for the case’s disposition was a mutual agreement between the parties.

• Settlement Reached: The document explicitly states that the parties “have reached a settlement.”

• Joint Motion: Following the settlement, the attorneys for both the Petitioner and the Respondent filed a joint motion to vacate the hearing on the merits of the case.

• Hearing Canceled: The order formally vacates the “continued hearing that had been scheduled on January 5, 2018, at 8:30 a.m.”

Judicial Orders and Disposition

On January 3, 2018, Judge Diane Mihalsky issued two definitive orders that concluded the proceedings at the Office of Administrative Hearings:

1. Order to Vacate: The first order vacates the hearing scheduled for January 5, 2018. The document states: “IT IS ORDERED vacating the continued hearing that had been scheduled on January 5, 2018, at 8:30 a.m.”

2. Order to Remand: The second order remands, or sends back, the matter to a different state body for final processing. It specifies: “IT IS FURTHER ORDERED remanding this matter under A.A.C. R2-19-111(3) to the Director of the Arizona Department of Real Estate for further action.”

Parties and Legal Representation

The following table details the key individuals and firms involved in the legal matter.

Name/Entity

Legal Counsel

Law Firm

Contact Information

Petitioner

Brian C. Herbert

Jeffrey D. Harris, Esq.

Titus Brueckner & Levine, PLC

[email protected]
8355 East Hartford Drive, Suite 200, Scottsdale, AZ 85255

Respondent

Blackstone at Vistancia Community Association

Stewart F. Salwin, Esq.
Lydia A. Peirce Linsmeier, Esq.

Carpenter, Hazlewood, Delgado & Bolen, PLC

[email protected]
[email protected]
1400 E. Southern Ave., Suite 400, Tempe, AZ 85282

Administrative Details

• Order Date: The order was issued on January 3, 2018.

• Transmission: The document was transmitted on January 3, 2018, by “M.Aguirre” via mail, email, or facsimile.

• Recipients of the Order:

◦ Arizona Department of Real Estate:

▪ Judy Lowe, Commissioner

▪ Additional staff: [email protected], [email protected], [email protected], [email protected], [email protected], [email protected]

◦ Legal Counsel: All attorneys listed in the table above.

Study Guide: Case No. 18F-H1817002-REL-RHG

This guide is designed to review the key facts, entities, and procedures detailed in the legal document concerning the case of Brian C. Herbert v. Blackstone at Vistancia Community Association.

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Quiz: Short Answer Questions

Instructions: Answer the following questions in two to three complete sentences, using only information found in the provided source document.

1. Who were the two primary parties involved in case number 18F-H1817002-REL-RHG?

2. What was the specific legal action taken by the Administrative Law Judge on January 3, 2018?

3. What was the stated reason for vacating the hearing?

4. On what date and at what time was the original hearing scheduled to take place before it was canceled?

5. Identify the Administrative Law Judge who signed the order and the administrative body she represents.

6. Following the order to vacate the hearing, to which government agency was the matter sent for further action?

7. Which attorney and law firm represented the Petitioner in this case?

8. Identify the attorneys and the law firm that represented the Respondent.

9. What is the full title of the legal document, and what is its case number?

10. Besides the legal representatives for the Petitioner and Respondent, to which organization were copies of the order transmitted?

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Answer Key

1. The two primary parties were the Petitioner, Brian C. Herbert, and the Respondent, Blackstone at Vistancia Community Association.

2. The Administrative Law Judge issued an order vacating the continued hearing that had been scheduled. The order also remanded the matter to the Director of the Arizona Department of Real Estate for further action.

3. The hearing was vacated because the attorneys for both the Petitioner and the Respondent filed a motion to vacate, indicating that the two parties had reached a settlement.

4. The canceled hearing had been scheduled to take place on January 5, 2018, at 8:30 a.m.

5. The order was signed by Diane Mihalsky, an Administrative Law Judge. She represents the Office of Administrative Hearings, located at 1400 West Washington, Suite 101, Phoenix, Arizona.

6. The matter was remanded to the Director of the Arizona Department of Real Estate. The order was transmitted to the department’s Commissioner, Judy Lowe, and several other individuals within the department.

7. The Petitioner, Brian C. Herbert, was represented by Jeffrey D. Harris, Esq. of the law firm Titus Brueckner & Levine, PLC.

8. The Respondent, Blackstone at Vistancia Community Association, was represented by Stewart F. Salwin, Esq. and Lydia A. Peirce Linsmeier, Esq. from the law firm Carpenter, Hazlewood, Delgado & Bolen, PLC.

9. The full title of the document is “ORDER VACATING HEARING.” The case number is No. 18F-H1817002-REL-RHG.

10. Copies of the order were transmitted to the Arizona Department of Real Estate. Specifically, they were sent to Commissioner Judy Lowe and six other email addresses associated with the department.

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Essay Questions

Instructions: The following questions are designed to encourage a deeper synthesis of the information in the document. Formulate a comprehensive response to each prompt.

1. Describe the procedural history of this case as presented in the order. Detail the sequence of events that led to the issuance of this order and explain the mandated next step for the case.

2. Analyze the roles and relationships of all named individuals and entities in the document. Discuss the functions of the Petitioner, Respondent, their respective legal counsel, the Administrative Law Judge, the Office of Administrative Hearings, and the Arizona Department of Real Estate within the context of this legal matter.

3. Explain the legal significance of a “settlement” in the context of this case. How did the settlement between Brian C. Herbert and the Blackstone at Vistancia Community Association directly influence the actions taken by the Office of Administrative Hearings?

4. Detail the formal communication process for this legal order. Identify who issued the order, the date of issuance, the methods of transmission, and the complete list of recipients, including their professional titles and affiliations where provided.

5. Based on the order’s text, discuss the legal authority under which the case was remanded. What does the citation of A.A.C. R2-19-111(3) and the subsequent remand to the Department of Real Estate suggest about the jurisdiction and procedural relationship between the Office of Administrative Hearings and the Arizona Department of Real Estate?

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Glossary of Key Terms

Definition

A.A.C.

An abbreviation for the Arizona Administrative Code, a set of state regulations. In this document, it is cited as A.A.C. R2-19-111(3) as the legal basis for remanding the case.

Administrative Law Judge

An official, in this case Diane Mihalsky, who presides over hearings at an administrative agency (the Office of Administrative Hearings) and makes legal rulings.

Attorney

A legal professional representing a client. The document lists Stewart F. Salwin, Lydia A. Peirce Linsmeier, and Jeffrey D. Harris as attorneys for the parties.

An abbreviation for “Esquire,” a courtesy title commonly used for practicing attorneys in the United States.

Hearing

A formal proceeding before a judge or administrative body to resolve a legal dispute. In this case, the hearing scheduled for January 5, 2018, was vacated.

Matter

A legal case or issue being considered by a court or administrative body.

Motion

A formal request made by a party to a judge or administrative body for an order or ruling. Here, the parties filed a “motion to vacate the hearing.”

Office of Administrative Hearings

The state agency in Phoenix, Arizona, responsible for conducting hearings for other state agencies. It is the body that issued this order.

A formal written direction from a judge or administrative body. This document is titled an “ORDER VACATING HEARING.”

Petitioner

The party who initiates a legal action or files a petition seeking a legal remedy. In this case, the Petitioner is Brian C. Herbert.

Remand

To send a case back to a lower court or another body for further action. This matter was remanded to the Director of the Arizona Department of Real Estate.

Respondent

The party against whom a petition is filed; the party who responds to the legal action. In this case, the Respondent is the Blackstone at Vistancia Community Association.

Settlement

An agreement reached between opposing parties in a legal dispute, resolving the issue without a full hearing or trial. The parties in this case reached a settlement, leading to the motion to vacate.

Vacate

To cancel or make void a scheduled legal proceeding. The order explicitly vacates the hearing that was scheduled for January 5, 2018.

What a Single Page of Legalese Reveals About How ConflictsReallyEnd

We’ve all seen it on screen: the dramatic courtroom showdown. A lawyer points an accusatory finger, a witness breaks down on the stand, and a judge slams a gavel to seal a dramatic verdict. It’s compelling television, but it bears little resemblance to how most conflicts in our society actually end. The real story is often much quieter, hidden in plain sight within documents that most of us would dismiss as bureaucratic fine print.

This single page, an “Order Vacating Hearing” filed away in a public record, is more than just paper. This seemingly inert document upends the Hollywood version of justice and reveals three powerful truths about how our society actually functions. It’s a window into the hidden world of negotiation, procedure, and resolution that keeps our civil society from grinding to a halt.

By closely examining this order, we can uncover a story not of courtroom battles, but of quiet compromise and the powerful machinery of resolution.

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1. The Real Drama Happens Off-Screen

The most pivotal moment in this legal dispute wasn’t a climactic courtroom argument; it was an event that happened entirely behind the scenes, just before the curtain was set to rise.

An order signed by Administrative Law Judge Diane Mihalsky shows that a formal hearing was scheduled for January 5, 2018. But the order canceling that hearing was issued on January 3, 2018—a mere two days before the parties were due in court. This two-day window is where the real lawyering happens. Imagine the flurry of phone calls, the redlined settlement drafts exchanged via email, and the strategic calculations of risk versus reward that led both sides to step back from the brink. This underscores a fundamental reality of the legal system: the primary goal is often resolution, not a zero-sum victory, in order to avoid the high cost of litigation, the uncertainty of a judge’s ruling, and the immense investment of time and emotional energy.

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2. Every Dispute is a Cog in a Larger Machine

While this case involved a dispute between an individual and a community association, the document reveals a surprisingly large cast of characters. Resolving the matter required the involvement of a complex network of official entities and professionals.

A quick scan of the order shows just how many parties are plugged into this single conflict:

• The Petitioner: Brian C. Herbert

• The Respondent: Blackstone at Vistancia Community Association

• The Adjudicating Body: The Office of Administrative Hearings

• The Law Firms: Carpenter, Hazlewood, Delgado & Bolen, PLC, and Titus Brueckner & Levine, PLC

• The Regulatory Body: The Arizona Department of Real Estate

But the story doesn’t end with a simple settlement between two parties. The order states the matter is being “remanded… to the Director of the Arizona Department of Real Estate for further action.” From a procedural standpoint, this is significant. Remanding means sending the case back to the original agency that handled it. What this signals is that a private agreement doesn’t necessarily end the state’s interest. The regulatory body still has a role to play, ensuring the settlement aligns with public rules or addressing any remaining compliance issues.

The document’s final page reinforces this, showing it was formally transmitted not just to the lawyers, but to a list of at least six different officials at the Arizona Department of Real Estate, ensuring the entire regulatory apparatus was kept in the loop. This machinery, while complex, ensures that even a local conflict is handled within a structured, accountable system of oversight.

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3. The Most Powerful Words Aren’t in the Verdict

We often search for resolution in a judge’s lengthy, detailed ruling, full of complex legal reasoning and citations. But in this case, the single phrase that resolves the entire matter is disarmingly simple. It’s a quiet declaration of fact, not a thundering judgment.

The order states that the hearing is being vacated for one direct reason:

…because they have reached a settlement.

This short clause is far more than procedural boilerplate; it represents a fundamental shift in power. A verdict is an imposed resolution, where a third party dictates the ending. A settlement, however, is an act of agency and control. It signifies that the parties have chosen to take the outcome out of a judge’s hands and write their own ending. These six words represent the power of negotiated resolution over imposed confrontation—a conclusion built by the parties themselves, who chose compromise to avoid the risks and costs of continued conflict.

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Conclusion: The Story in the Silence

A single, seemingly mundane administrative order tells a profound story about how our society manages conflict. It reveals that the real work often happens not in a noisy courtroom, but in a quiet agreement. It shows that even small disputes are handled by a vast, interconnected system designed to ensure fairness and order. And it reminds us that the most powerful outcome is often the one achieved through mutual consent.

This perceived lack of drama is not a bug in the system; it is the core feature of a stable civil society. The quiet, predictable processes and behind-the-scenes compromises are what we value over chaotic and uncertain public battles. The next time you encounter a piece of official jargon or a formal notice, what hidden story of conflict and resolution might be waiting to be discovered?

Case Participants

Petitioner Side

  • Paul Herbert (petitioner)
    Original petitioner in the related docket (18F-H1817002-REL); conceded he is the beneficiary, not the owner/trustee.
  • Brian C. Herbert (petitioner)
    Petitioner in docket 18F-H1817002-REL-RHG; identified as the trustee of the trust that owns the property.

Neutral Parties

  • Suzanne Marwil (ALJ)
    OAH
    Administrative Law Judge who issued the Recommended Order of Dismissal.
  • Diane Mihalsky (ALJ)
    OAH
    Administrative Law Judge who issued the Order Vacating Hearing due to settlement.
  • Judy Lowe (Commissioner)
    ADRE
  • M. Aguirre (staff)
    Listed in electronic transmission.
  • LDettorre (staff)
    ADRE
    Electronic transmission recipient.
  • AHansen (staff)
    ADRE
    Electronic transmission recipient.
  • djones (staff)
    ADRE
    Electronic transmission recipient.
  • DGardner (staff)
    ADRE
    Electronic transmission recipient.
  • ncano (staff)
    ADRE
    Electronic transmission recipient.

Other Participants

  • Stewart F. Salwin (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
  • Lydia A. Peirce Linsmeier (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
  • Jeffrey D. Harris (attorney)
    Titus Brueckner & Levine, PLC

William M. Brown vs. Terravita Country Club, Inc.

Posted on by

Case Summary

Case ID 17F-H1717032-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-07-14
Administrative Law Judge Velva Moses-Thompson
Outcome The Tribunal concluded that the Respondent violated A.R.S. § 33-1805. The Petitioner was deemed the prevailing party. The Respondent was ordered to comply with the statute within 10 days and refund the $500.00 filing fee. No civil penalty was found appropriate.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William M. Brown Counsel —
Respondent Terravita Country Club, Inc. Counsel Joshua Bolen, Esq.

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Tribunal concluded that the Respondent violated A.R.S. § 33-1805. The Petitioner was deemed the prevailing party. The Respondent was ordered to comply with the statute within 10 days and refund the $500.00 filing fee. No civil penalty was found appropriate.

Key Issues & Findings

Failure to timely provide access to association records

The Respondent failed to fulfill the Petitioner's February 6, 2017, records request within 10 business days. The Respondent argued that disclosure was prohibited under A.R.S. § 33-1805(B)(2) due to pending criminal litigation against the Petitioner. The ALJ determined that the exception applies only to pending litigation between the association and the member, not a criminal case in which the association was not a party.

Orders: Respondent ordered to comply with A.R.S. § 33-1805 regarding the records request within 10 days and pay the Petitioner the $500.00 filing fee within 30 days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(2)

Analytics Highlights

Topics: records request, access to records, pending litigation exception, HOA records, planned community
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(2)
  • A.R.S. § 41-2198.01

Video Overview

Audio Overview

Decision Documents

17F-H1717032-REL Decision – 575932.pdf

Uploaded 2026-01-23T17:20:09 (79.9 KB)

17F-H1717032-REL Decision – 578529.pdf

Uploaded 2026-01-23T17:20:12 (726.4 KB)

17F-H1717032-REL Decision – 586360.pdf

Uploaded 2026-01-23T17:20:15 (95.9 KB)

Briefing Document: Brown v. Terravita Country Club, Inc.

Executive Summary

This briefing document analyzes the administrative case of William M. Brown v. Terravita Country Club, Inc., focusing on a homeowner association’s (HOA) obligation to provide records to a member under Arizona law. The core issue was the interpretation of the “pending litigation” exemption within A.R.S. § 33-1805, which allows an association to withhold certain records.

Terravita Country Club, Inc. (“Terravita”) denied a records request from its member, William M. Brown, citing a pending criminal case against him. However, Terravita was not a party to this criminal litigation. Mr. Brown contended this denial violated state law, arguing the exemption only applies when the association itself is a party to the litigation. Terravita argued for a broader interpretation, claiming the statute did not require the association to be a party.

The Administrative Law Judge (ALJ) ruled decisively in favor of Mr. Brown. The judge concluded that Terravita’s interpretation would lead to an “absurd result,” effectively allowing any HOA to deny records related to any litigation anywhere. The judge established that the sensible and plain meaning of the statute is that the exemption for “pending litigation” applies only to legal disputes between the association and the member.

The Arizona Department of Real Estate adopted the ALJ’s decision in a Final Order. Terravita was found in violation of A.R.S. § 33-1805, ordered to produce the requested records, and mandated to reimburse Mr. Brown’s $500 filing fee.

Case Timeline and Factual Background

The dispute followed a clear sequence of events, beginning with the records request and culminating in a final administrative order.

February 6, 2017

William M. Brown, a member of Terravita, formally requests records from the association.

February 14, 2017

Terravita sends an email to Mr. Brown denying the request. The denial cites a “pending criminal litigation” against him and invokes A.R.S. § 33-1805(B)(2) as justification.

Post-Feb. 6, 2017

Terravita fails to fulfill the records request within the statutory 10-business-day deadline.

April 13, 2017

The Arizona Department of Real Estate receives a Petition for Hearing from Mr. Brown, alleging Terravita’s failure to timely respond.

May 2, 2017

Terravita files its response, formally asserting as an affirmative defense that it was not required to disclose the records due to the pending criminal litigation against Mr. Brown.

May 3, 2017

The Department issues a Notice of Hearing, setting the matter for June 26, 2017, before the Office of Administrative Hearings.

June 26, 2017

The administrative hearing is conducted. Both parties present their arguments.

July 14, 2017

Administrative Law Judge Velva Moses-Thompson issues a decision finding in favor of the Petitioner, Mr. Brown.

July 24, 2017

Judy Lowe, Commissioner of the Department of Real Estate, issues a Final Order adopting the ALJ’s decision in its entirety.

Core Dispute: Interpretation of A.R.S. § 33-1805

The central conflict was the proper application of Arizona Revised Statute § 33-1805, which governs a member’s right to access association records. Subsection (A) mandates that records be made available for examination within 10 business days. Subsection (B) provides exemptions, including for records related to “pending litigation.”

Petitioner’s Position (William M. Brown)

Mr. Brown’s argument was straightforward and focused on a narrow interpretation of the statutory exemption.

• Violation of A.R.S. § 33-1805(A): Terravita failed to fulfill his February 6, 2017 records request within the legally mandated 10 business days.

• Limited Scope of Exemption: He contended that the exemption for “pending litigation” under A.R.S. § 33-1805(B)(2) applies only to litigation in which the association itself is a party.

• Factual Basis: Since Terravita was not a party to the criminal case brought against him by the City of Scottsdale, the exemption was inapplicable.

• Legislative Intent: Mr. Brown noted that the statute had been amended to remove the phrase “contemplated litigation,” suggesting the legislature intended to narrow, not broaden, the scope of the exemption.

Respondent’s Position (Terravita Country Club, Inc.)

Terravita argued for a broader interpretation of the statute, asserting that its non-party status was irrelevant.

• “Plain Meaning” of the Statute: Terravita’s position was that the plain meaning of A.R.S. § 33-1805(B)(2) does not explicitly require the association to be a party to the pending litigation.

• Relevance of the Litigation: The association argued the criminal case was germane because it was “based upon an allegation that Mr. Brown threated Terravita’s board members and property.”

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision provided a comprehensive legal analysis, ultimately rejecting Terravita’s interpretation of the law and finding that Mr. Brown had established his case by a preponderance of the evidence.

Statutory Interpretation and the “Absurd Result” Doctrine

The decision hinged on the principle that legislation must be given a “sensible construction that avoids absurd results.” The judge analyzed the consequences of Terravita’s interpretation:

“Terravita’s interpretation of A.R.S. § 33-1805(B)(2) would allow the association to deny records request of documents that relate to pending litigation between any parties. Such an interpretation would lead to the absurd result of denying records requests of all documents that relate to pending litigation anywhere, between any two parties.”

Based on this reasoning, the judge rejected Terravita’s argument and established a clear standard for applying the exemption.

The Correct Interpretation of the Law

The ALJ articulated the “plain meaning” of the statute, establishing a critical precedent for its application:

“The plain meaning of A.R.S. § 33-1805(B)(2) is that while homeowners’ associations must provide access to financial and other documents to its members within 10 business days, an association may withhold documents that relate to pending litigation between the association and the member.”

Final Conclusion

The judge applied this correct interpretation to the undisputed facts of the case:

1. At the time of Mr. Brown’s request, he was facing criminal charges initiated by the City of Scottsdale.

2. Terravita was not a party to that criminal case.

3. Therefore, the exemption did not apply, and Terravita violated A.R.S. § 33-1805 by failing to fulfill the records request within 10 business days.

Final Order and Mandates

The decision issued by the ALJ on July 14, 2017, became the basis for the Final Order issued by the Arizona Department of Real Estate on July 24, 2017. The Commissioner accepted and adopted the ALJ’s decision, making its mandates binding and effective immediately.

The key directives of the order were:

• Prevailing Party: Petitioner William M. Brown was formally deemed the prevailing party.

• Compliance: Terravita was ordered to comply with the applicable provisions of A.R.S. § 33-1805 regarding the records request within 10 days of the order.

• Reimbursement of Fees: Terravita was ordered to pay Mr. Brown his filing fee of $500.00 directly within 30 days of the order.

• No Civil Penalty: The judge found that a civil penalty was not appropriate in the matter.

Study Guide: Brown v. Terravita Country Club, Inc.

This guide provides a detailed review of the administrative case William M. Brown v. Terravita Country Club, Inc. (No. 17F-H1717032-REL), heard before the Arizona Office of Administrative Hearings. It covers the central conflict, the legal arguments, the statutory interpretations, and the final resolution of the dispute.

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Short Answer Quiz

Instructions: Answer the following ten questions based on the provided source documents. Each answer should be approximately 2-3 sentences.

1. What was the initial action taken by William M. Brown on February 6, 2017, and what was Terravita Country Club’s response?

2. On what legal grounds did Terravita justify its refusal to provide the requested records?

3. What was William M. Brown’s primary legal argument against Terravita’s position during the hearing?

4. What was the Administrative Law Judge’s interpretation of Terravita’s argument regarding A.R.S. § 33-1805(B)(2), and why was it rejected?

5. What is the “preponderance of the evidence” standard, and who bore the burden of proof in this case?

6. What key fact regarding the “pending litigation” was central to the Judge’s final decision?

7. What was the final conclusion reached by the Administrative Law Judge regarding Terravita’s actions?

8. Identify the three specific orders issued by the Administrative Law Judge in the “Recommended Order.”

9. What state department adopted the Administrative Law Judge’s decision, making it a “Final Order”?

10. Besides complying with the records request and paying the filing fee, what specific penalty was explicitly not levied against Terravita?

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Answer Key

1. On February 6, 2017, William M. Brown requested records from Terravita Country Club. On February 14, 2017, Terravita responded via email, refusing to disclose the records because they were allegedly part of pending criminal litigation against Mr. Brown.

2. Terravita justified its refusal by citing Arizona Revised Statute (A.R.S.) § 33-1805(B)(2). The club argued that this statute allows an association to withhold records related to “pending litigation.”

3. Mr. Brown’s primary argument was that Terravita had violated A.R.S. § 33-1805(A) by failing to provide records within 10 business days. He contended that the exemption for “pending litigation” in § 33-1805(B)(2) applies only when the association itself is a party to that litigation, which Terravita was not in his criminal case.

4. The Judge interpreted Terravita’s argument to mean that an association could deny any records request if the documents related to pending litigation between any two parties anywhere. This interpretation was rejected because it would lead to the “absurd result” of broadly denying access to records, which was not the statute’s intent.

5. “Preponderance of the evidence” is the evidentiary standard where the trier of fact must be convinced that a contention is more probably true than not. In this case, the Petitioner (Mr. Brown) bore the burden of proving that Terravita violated the statute, while the Respondent (Terravita) bore the burden of proving its affirmative defenses.

6. The central fact was that Terravita Country Club was not a party to the criminal case brought against Mr. Brown by the City of Scottsdale. Because the association was not a party, the judge ruled that the statutory exemption for withholding records related to pending litigation did not apply.

7. The Administrative Law Judge concluded that Mr. Brown had established by a preponderance of the evidence that Terravita failed to fulfill his records request within the required 10 business days. Therefore, the Tribunal concluded that Terravita violated the charged provision of A.R.S. § 33-1805.

8. The Judge ordered that: (1) the Petitioner (Mr. Brown) be deemed the prevailing party; (2) Terravita must comply with the records request within 10 days of the Order; and (3) Terravita must pay the Petitioner’s $500.00 filing fee within 30 days of the Order.

9. The Commissioner of the Arizona Department of Real Estate adopted the Administrative Law Judge’s decision. This action, dated July 24, 2017, made the decision a binding Final Order.

10. The Recommended Order, which was adopted as the Final Order, explicitly states that “No Civil Penalty is found to be appropriate in this matter.”

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Essay Questions

Instructions: The following questions are designed to test a deeper, more analytical understanding of the case. Formulate a comprehensive response for each, drawing upon the facts, legal principles, and arguments presented in the source documents.

1. Analyze the conflicting interpretations of A.R.S. § 33-1805(B)(2) presented by William M. Brown and Terravita Country Club. Explain the legal reasoning the Administrative Law Judge used to resolve this dispute, including the principle of avoiding “absurd results.”

2. Describe the complete timeline of the case, from the initial records request to the issuance of the Final Order. For each key date, explain the event’s significance to the progression and outcome of the dispute.

3. Discuss the legal standard of “preponderance of the evidence” as defined in the case documents. Explain how this standard was applied to both the Petitioner’s claim and the Respondent’s affirmative defense and why the Judge ultimately found that the Petitioner had met this burden.

4. Examine the role of the Office of Administrative Hearings and the Department of Real Estate in resolving disputes within planned communities, as demonstrated by this case. How does the process flow from an initial petition to a binding order?

5. Based on the Judge’s decision, formulate an argument about the balance between a homeowner’s right to access association records and an association’s right to protect its interests in legal matters. How does A.R.S. § 33-1805 attempt to strike this balance, and how did the ruling in this case clarify its limits?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over hearings at the Office of Administrative Hearings. In this case, Velva Moses-Thompson served as the ALJ.

Affirmative Defense

A set of facts or legal arguments raised by the respondent that, if proven, can defeat or mitigate the petitioner’s claim. Terravita’s claim that A.R.S. § 33-1805(B)(2) exempted them was their affirmative defense.

A.R.S. § 33-1805(A)

The section of Arizona Revised Statutes that requires a planned community association to make financial and other records available for member examination within 10 business days.

A.R.S. § 33-1805(B)(2)

The section of Arizona Revised Statutes that allows an association to withhold books and records from disclosure if the portion withheld relates to “pending litigation.”

A.R.S. § 41-2198.01

The Arizona statute that permits an owner or planned community organization to file a petition with the Department of Real Estate for a hearing concerning violations of statutes or community documents.

Burden of Proof

The obligation on a party in a trial to produce the evidence that will prove the claims they have made against the other party. The Petitioner bore the burden to prove the violation, and the Respondent bore the burden to establish its defense.

Department of Real Estate

The Arizona state agency that received the Petition for Hearing from Mr. Brown and ultimately adopted the ALJ’s decision, making it final.

Final Order

The binding decision issued by the Commissioner of the Department of Real Estate, which adopted the ALJ’s Recommended Order. This order is an administrative action and is effective immediately upon service.

Office of Administrative Hearings

An independent state agency in Arizona where administrative law judges conduct hearings on disputes, such as the one between Mr. Brown and Terravita.

Petitioner

The party who initiates a lawsuit or hearing by filing a petition. In this case, William M. Brown was the Petitioner.

Preponderance of the Evidence

The standard of proof in most civil cases. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and represents “the greater weight of the evidence.”

Prevailing Party

The party who is successful in a legal case. The Final Order deemed William M. Brown the prevailing party.

Recommended Order

The initial decision and orders issued by the Administrative Law Judge following a hearing. This decision is then sent to the relevant state agency (in this case, the Department of Real Estate) for adoption.

Respondent

The party against whom a petition is filed; the party who must respond to the claims. In this case, Terravita Country Club, Inc. was the Respondent.

Your HOA Can’t Use “Pending Litigation” to Hide Records. This Homeowner Proved It.

Introduction: The Wall of Secrecy

For many homeowners, dealing with a Homeowners Association (HOA) can feel like confronting an organization that operates with total authority and little transparency. Board decisions can seem arbitrary, and getting straight answers or access to official documents can be a frustrating, uphill battle. But what happens when an HOA flatly denies a simple request for records, citing a vague legal reason?

One homeowner decided to find out. The case of William M. Brown versus the Terravita Country Club provides a fascinating look at how a single individual challenged his HOA’s interpretation of state law. In doing so, he not only won access to the records he sought but also revealed a crucial limit on an HOA’s power to operate in secret.

The Takeaways: Four Lessons from a Landmark HOA Dispute

This case offers several powerful and practical lessons for any homeowner who has ever felt stonewalled by their association’s board.

Takeaway 1: “Pending Litigation” Isn’t a Blank Check to Deny Records

At the heart of the dispute was a simple request. On February 6, 2017, William M. Brown asked his HOA, Terravita, for access to association records. The HOA denied the request, citing an exemption in Arizona law (A.R.S. § 33-1805(B)(2)) that allows an association to withhold records related to “pending litigation.”

Terravita’s argument was that this exemption applied because of a pending criminal case against Mr. Brown. Crucially, they argued this was not just any unrelated case; the criminal charges stemmed from allegations that Mr. Brown had threatened the HOA’s board members and property. From their perspective, the records request was directly linked to a hostile legal situation involving the association’s leadership. However, the critical fact remained that the HOA itself was not a formal party to the criminal case.

The judge’s ruling was definitive and clear: the “pending litigation” exemption can only be used to withhold records if the litigation is between the association and the member. Because Terravita was not a party to Mr. Brown’s criminal case, it had no legal grounds to use that case as an excuse to withhold its records from him. This ruling draws a bright line: The “pending litigation” shield cannot be borrowed from a separate case, even one that feels highly relevant to the HOA.

Takeaway 2: Legal Interpretations Must Be Sensible, Not Absurd

The HOA argued for a literal interpretation of the law, claiming the statute didn’t explicitly state that the association had to be a party to the litigation. Administrative Law Judge Velva Moses-Thompson rejected this line of reasoning, stating that it would lead to an “absurd result.”

This is a critical lesson for homeowners. Judges are tasked with ensuring laws are applied sensibly. When an HOA’s interpretation of a rule would create an illogical or unfair outcome, it is vulnerable to legal challenge. The judge highlighted the flaw in the HOA’s logic with a powerful statement in her decision:

Terravita’s interpretation of A.R.S. § 33-1805(B)(2) would allow the association to deny records request of documents that relate to pending litigation between any parties. Such an interpretation would lead to the absurd result of denying records requests of all documents that relate to pending litigation anywhere, between any two parties.

Takeaway 3: A Single Homeowner Can Successfully Challenge Their HOA

Perhaps the most empowering aspect of this case is who argued it. The court documents show that while the HOA was represented by legal counsel (“Joshua Bolen, Esq. appeared on behalf of Respondent Terravita Country Club, Inc.”), Mr. Brown represented himself (“Petitioner William M. Brown appeared on behalf of himself”).

Despite being outmatched on paper, Mr. Brown successfully researched the law, presented a logical argument, and held his ground. His victory demonstrates that the legal process is not just for lawyers. A well-researched, logical argument from a homeowner can be more powerful than a law firm’s flawed interpretation of a statute. The judge ultimately found that “Mr. Brown established by a preponderance of the evidence that Terravita failed to fulfill his February 6, 2017 records request within 10 business days.”

Takeaway 4: Misapplying the Law Can Have Financial Consequences

This wasn’t just a moral victory. The final order, adopted by the Arizona Department of Real Estate on July 24, 2017, came with tangible consequences for the HOA. For its failure to correctly apply the law, Terravita faced direct and tangible consequences.

• The HOA was ordered to provide the requested records within 10 days.

• The homeowner, Mr. Brown, was deemed the “prevailing party.”

• The HOA, Terravita, was ordered to pay Mr. Brown his filing fee of $500.00.

This outcome underscores a critical point: when an HOA oversteps its authority or misinterprets the law, it can be held financially responsible for the costs incurred by the homeowner forced to challenge its actions.

Conclusion: Knowledge is Power

The story of William M. Brown’s dispute with his HOA serves as a powerful reminder that HOAs do not have unlimited power. They are governed by specific state laws, and understanding those laws is the most effective tool a homeowner possesses.

The central lesson is that an HOA’s authority is not absolute, and its interpretation of its own rules—and, more importantly, state law—must be reasonable and sensible. This case affirms the right of members to transparency and proves that a single, well-prepared homeowner can successfully stand up for those rights.

After seeing how one homeowner held his board accountable, will you take the time to learn your rights before you need them?

Case Participants

Petitioner Side

  • William M. Brown (petitioner)
    Appeared on behalf of himself

Respondent Side

  • Joshua Bolen (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Abby Hansen (HOA coordinator)
    Arizona Department of Real Estate

William M. Brown vs. Terravita Country Club, Inc.

Posted on by

Case Summary

Case ID 17F-H1716005-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-07-10
Administrative Law Judge Velva Moses-Thompson
Outcome The Petitioner was deemed the prevailing party after the Tribunal concluded that the Respondent, Terravita Country Club, Inc., violated A.R.S. § 33-1805 by failing to timely provide access to records within the mandated 10 business days. The Respondent was ordered to comply with the statute and refund the Petitioner's $500.00 filing fee. No civil penalty was imposed.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William M. Brown Counsel —
Respondent Terravita Country Club, Inc. Counsel Joshua Bolen

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Petitioner was deemed the prevailing party after the Tribunal concluded that the Respondent, Terravita Country Club, Inc., violated A.R.S. § 33-1805 by failing to timely provide access to records within the mandated 10 business days. The Respondent was ordered to comply with the statute and refund the Petitioner's $500.00 filing fee. No civil penalty was imposed.

Key Issues & Findings

Failure to timely respond to records request

Petitioner alleged Respondent failed to timely respond to his July 30, 2016 records request, pursuant to A.R.S. § 33-1805(A). The Tribunal found that Petitioner established by a preponderance of the evidence that Respondent failed to fulfill the request for examination of records within 10 business days, violating A.R.S. § 33-1805.

Orders: Respondent is ordered to comply with A.R.S. § 33-1805 regarding Petitioner’s request for records within 10 days of the Order. Respondent is ordered to pay Petitioner his filing fee of $500.00 within thirty (30) days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)

Analytics Highlights

Topics: HOA Records Request, Failure to Respond, Statutory Violation, Filing Fee Refund
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.01

Video Overview

Audio Overview

Decision Documents

17F-H1716005-REL Decision – 574630.pdf

Uploaded 2026-04-26T09:42:37 (87.9 KB)

17F-H1716005-REL Decision – 575115.pdf

Uploaded 2026-04-26T09:42:43 (789.4 KB)

17F-H1716005-REL Decision – 574630.pdf

Uploaded 2026-01-23T17:17:51 (87.9 KB)

17F-H1716005-REL Decision – 575115.pdf

Uploaded 2026-01-23T17:17:55 (789.4 KB)

Briefing Document: Brown v. Terravita Country Club, Inc.

Executive Summary

This document summarizes the administrative hearing and final order in the case of William M. Brown (Petitioner) versus Terravita Country Club, Inc. (Respondent), Case No. 17F-H1716005-REL. The central issue was Terravita’s failure to respond to a member’s request for records within the 10-business-day timeframe mandated by Arizona Revised Statutes (A.R.S.) § 33-1805.

The Administrative Law Judge (ALJ) found the Petitioner’s testimony and evidence to be credible, establishing that Mr. Brown submitted a valid records request via e-mail on July 30, 2016, to which Terravita did not timely respond. The ALJ found the testimony of Terravita’s key witness to be unreliable and rejected Terravita’s defenses, which included claims of non-receipt, improper submission procedure, and falsified evidence.

Ultimately, the ALJ ruled in favor of the Petitioner, concluding that Terravita violated A.R.S. § 33-1805. The recommended order, which was subsequently adopted as a Final Order by the Commissioner of the Department of Real Estate, mandated that Terravita comply with the records request, reimburse the Petitioner’s $500 filing fee, and deemed the Petitioner the prevailing party. No civil penalty was assessed.

Case Overview

Case Detail

Information

Case Number

17F-H1716005-REL (OAH) / HO 17-16/005 (DRE)

Petitioner

William M. Brown (Appeared on behalf of himself)

Respondent

Terravita Country Club, Inc. (Represented by Joshua Bolen, Esq.)

Adjudicating Body

Arizona Office of Administrative Hearings

Adopting Authority

Arizona Department of Real Estate

Administrative Law Judge

Velva Moses-Thompson

Commissioner

Judy Lowe

Hearing Date

June 19, 2017

ALJ Decision Date

July 10, 2017

Final Order Date

July 11, 2017

Chronology of Events

• February 12, 2016: Anita Bell requests records from Terravita via Mr. Brown’s e-mail account. The request is forwarded to General Manager Tom Forbes.

• February 19, 2016: Mr. Forbes informs Ms. Bell that the records will be ready on February 22.

• March 14, 2016: Ms. Bell submits another records request from Mr. Brown’s e-mail account.

• March 18, 2016: Cici Rausch, Terravita’s Director of Administration, informs Ms. Bell when the records can be retrieved.

• July 29, 2016: Date of the records request at the center of the legal dispute.

• July 30, 2016: Mr. Brown e-mails the records request to Terravita’s Secretary, Fran Wiley. On the same day, he separately requests records from the Terravita Community Association, Inc. (TCA).

• August 6, 2016: Mr. Brown sends another records request to Ms. Wiley.

• August 8, 2016: TCA responds to Mr. Brown’s July 30 request.

• August 12, 2016: Terravita responds to Mr. Brown’s August 6 request.

• August 18, 2016: Mr. Brown files a Petition for Hearing with the Arizona Department of Real Estate, alleging Terravita’s failure to timely respond to his July 30 request.

• September 9, 2016: Terravita files a response, alleging it did not receive the July 30 records request.

• June 19, 2017: The administrative hearing is held.

• July 10, 2017: The ALJ issues a decision finding in favor of Mr. Brown.

• July 11, 2017: The Commissioner of the Department of Real Estate accepts the ALJ’s decision and issues a Final Order.

Analysis of the Central Dispute

The core of the case revolved around whether Terravita violated its statutory duty to respond to Mr. Brown’s records request dated July 29, 2016, which he e-mailed on July 30, 2016.

Petitioner’s Position and Evidence

• Core Allegation: Mr. Brown testified that he sent the records request via e-mail to Terravita’s Secretary, Fran Wiley, on July 30, 2016, and that Terravita failed to respond within the 10-business-day period mandated by law.

• Evidence: Mr. Brown submitted an August 12, 2016 forwarded e-mail (Exhibit P2) that contained the original July 30, 2016 e-mail sent to Ms. Wiley.

• Judicial Finding: The ALJ found Mr. Brown’s testimony to be “credible.”

Respondent’s Defenses and the Court’s Findings

Terravita presented several arguments to contest the allegation, all of which were ultimately unpersuasive to the court.

1. Claim of Non-Receipt: Terravita contended it never received the July 30, 2016 request. Ms. Wiley testified she did not receive a request from Mr. Brown on July 29 or July 30.

◦ Court’s Finding: The ALJ found Ms. Wiley’s testimony to be “unreliable.” The decision noted that Ms. Wiley testified that Terravita was “indirectly” informed around August 5 that “perhaps Mr. Brown had made the request,” which undermined the claim of complete non-awareness.

2. Use of an Incorrect E-mail Address: Ms. Wiley testified that she did not use the e-mail address to which Mr. Brown sent the request for Terravita affairs, claiming she used a different one in her official capacity as Secretary.

◦ Court’s Finding: This argument was implicitly rejected, as the ALJ concluded that Mr. Brown had successfully proven he submitted the request “to its Secretary, Ms. Wiley.”

3. Allegation of Falsified Evidence: Terravita contended that the forwarded e-mail evidence offered by Mr. Brown was falsified.

◦ Court’s Finding: The ALJ noted an inconsistency in Terravita’s position, stating, “Terravita did not contend that the written evidence of Mr. Brown’s August 5, 2016 records request, sent by e-mail to Ms. Wiley, was falsified.” This weakened the credibility of the falsification claim against the July 30 e-mail.

4. Non-Compliance with Internal Policy: Terravita argued that its own Rules, Policies, and Procedures required members to submit records requests to the General Manager and/or Director of Administration, not the Secretary.

◦ Court’s Finding: The decision focused entirely on the violation of the state statute, A.R.S. § 33-1805, indicating that the statutory obligation superseded the association’s internal procedural preferences.

Legal Framework and Conclusions of Law

• Governing Statute: A.R.S. § 33-1805(A) mandates that a homeowners’ association “shall have ten business days to fulfill a request for examination” of its financial and other records by a member.

• Burden of Proof: The Petitioner was required to prove the violation by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

• Conclusion of Law: The ALJ determined that Mr. Brown successfully established by a preponderance of the evidence that:

1. He submitted a request for records to Terravita’s Secretary via e-mail on July 30, 2016.

2. Terravita failed to fulfill this request within the statutory 10-business-day deadline.

• Final Judgment: The Tribunal concluded that “Terravita violated the charged provision of A.R.S. § 33-1805.” It was also noted that Terravita did not contend that any of the statutory exceptions to disclosure, such as privileged communication or pending litigation, applied.

Final Order and Directives

The ALJ’s decision was formally adopted by the Commissioner of the Department of Real Estate on July 11, 2017, making it a Final Order with the following mandates:

• Prevailing Party: Petitioner William M. Brown was deemed the prevailing party.

• Compliance with Request: Terravita was ordered to “comply with the applicable provisions of A.R.S. § 33-1805 regarding Petitioner’s request of Terravita’s records” within 10 days of the Order.

• Reimbursement of Filing Fee: Terravita was ordered to pay the Petitioner his filing fee of $500.00 directly to him within thirty (30) days.

• Civil Penalty: The court determined that “No Civil Penalty is found to be appropriate in this matter.”

• Effective Date: The Order was made effective five (5) days from the date of its certification. The Final Order itself is effective immediately from the date of service, July 11, 2017.

Study Guide: Brown v. Terravita Country Club, Inc. (Case No. 17F-H1716005-REL)

This study guide provides a comprehensive review of the administrative hearing decision concerning William M. Brown’s records request to the Terravita Country Club. The case centers on the interpretation and application of Arizona Revised Statute § 33-1805, which governs a member’s right to access association records. The guide includes a short-answer quiz, essay questions for deeper analysis, and a glossary of key terms as defined and used within the legal documents.

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Short-Answer Quiz

Instructions: Answer the following questions in two to three complete sentences, drawing information exclusively from the provided case documents.

1. Who were the Petitioner and Respondent in this case, and what was their established relationship?

2. What specific failure by Terravita Country Club, Inc. led Mr. Brown to file his Petition for Hearing with the Arizona Department of Real Estate?

3. According to A.R.S. § 33-1805, what is the required timeframe for an association to fulfill a member’s request to examine its records?

4. What were the primary arguments Terravita presented to defend its failure to provide the requested records?

5. How did the Administrative Law Judge assess the credibility of the testimony provided by Mr. Brown and Terravita’s witness, Ms. Fran Wiley?

6. What piece of documentary evidence did Mr. Brown submit to prove he had sent the records request on July 30, 2016?

7. What is the standard of proof required in this hearing, and how is that standard defined in the decision?

8. What two specific actions did the final Recommended Order compel Terravita to take as a result of the ruling?

9. Why was Terravita’s argument that Mr. Brown failed to follow its internal rules for submitting records requests ultimately unsuccessful?

10. What was the role of the Commissioner of the Department of Real Estate after the Administrative Law Judge issued her decision?

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Answer Key

1. The Petitioner was William M. Brown, and the Respondent was Terravita Country Club, Inc. At all times relevant to the matter, Mr. Brown was a member of the Terravita Country Club.

2. Mr. Brown filed the petition because Terravita failed to respond to his July 30, 2016, request for records within the 10-business-day timeframe mandated by A.R.S. § 33-1805(A). This failure to provide timely access to the records was the central violation alleged.

3. A.R.S. § 33-1805(A) states that the association must fulfill a request for examination of its records within ten business days. If copies are requested, the association has ten business days to provide them and may charge up to fifteen cents per page.

4. Terravita argued that it never received the July 30, 2016, request from Mr. Brown. They also contended that his email evidence was falsified and that he failed to comply with their internal policy requiring such requests be sent to the General Manager or Director of Administration.

5. The Administrative Law Judge found Mr. Brown’s testimony to be credible. Conversely, the Judge found the testimony of Ms. Wiley, who testified on behalf of Terravita, to be unreliable.

6. Mr. Brown submitted an August 12, 2016, forwarded email that contained his original July 30, 2016, email to Ms. Wiley. This original email contained the records request dated July 29, 2016.

7. The standard of proof was a “preponderance of the evidence.” The decision defines this as “such proof as convinces the trier of fact that the contention is more probably true than not” and as having “the most convincing force” or “superior evidentiary weight.”

8. The Recommended Order compelled Terravita to pay Mr. Brown’s $500 filing fee within thirty days of the order. It also ordered Terravita to comply with the records request and provide the documents within ten days of the order.

9. The argument was unsuccessful because the Judge concluded that Terravita violated the plain meaning of the state statute, A.R.S. § 33-1805. The ruling focused on this statutory violation, noting that Terravita did not contend that any of the law’s specific exceptions for withholding records applied.

10. The Commissioner of the Department of Real Estate, Judy Lowe, was responsible for reviewing the Administrative Law Judge’s decision. The Commissioner accepted the decision and issued a Final Order, which made the Judge’s recommendations legally binding and enforceable.

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Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate comprehensive responses based solely on the provided source documents.

1. Analyze Terravita’s defense strategy. Discuss the strengths and weaknesses of their arguments regarding not receiving the email, the alleged falsification of evidence, and the club’s internal policies for records requests.

2. Explain the concept of “preponderance of the evidence” as defined in the case documents. How did the Administrative Law Judge apply this standard to the conflicting testimonies of William Brown and Fran Wiley to reach her conclusion?

3. Discuss the significance of A.R.S. § 33-1805 in the context of planned communities. Based on the details in the case, why is a member’s right to access association records important, and what protections does this statute provide?

4. Trace the procedural path of this dispute from Mr. Brown’s initial records request to the Final Order. What roles did the Petitioner, the Respondent, the Office of Administrative Hearings, and the Department of Real Estate play in this process?

5. The Administrative Law Judge’s decision rested heavily on findings of credibility. Explore the factors detailed in the case documents that might have led the judge to find Mr. Brown’s testimony “credible” and Ms. Wiley’s “unreliable.”

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official (Velva Moses-Thompson) who presides over hearings at the Office of Administrative Hearings, evaluates evidence and testimony, and issues a recommended decision based on the law.

A.R.S. § 33-1805

The Arizona Revised Statute at the heart of the case. It mandates that a planned community association must make all financial and other records reasonably available for a member’s examination within ten business days of a request.

Burden of Proof

The obligation to prove an assertion. The Petitioner (Mr. Brown) bore the burden of proving that the Respondent (Terravita) violated the statute.

Department of Real Estate

The Arizona state agency where Mr. Brown filed his Petition for Hearing. Its Commissioner (Judy Lowe) has the authority to accept an ALJ’s decision and issue a final, binding order.

Office of Administrative Hearings (OAH)

An independent agency that conducts formal hearings for disputes concerning violations of planned community statutes, as authorized by A.R.S. § 41-1092.01.

Petitioner

The party who initiates a legal action by filing a petition. In this matter, the Petitioner was William M. Brown.

Preponderance of the Evidence

The evidentiary standard required for the Petitioner to prove his case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”

Prevailing Party

The party who is successful and wins the legal dispute. The Administrative Law Judge’s order deemed the Petitioner, William M. Brown, to be the prevailing party.

Respondent

The party against whom a petition is filed and who must respond to the allegations. In this matter, the Respondent was Terravita Country Club, Inc.

He Sued His HOA Over an Unanswered Email—And Won. Here Are 4 Lessons from the Judge’s Ruling.

1. Introduction: The Black Hole of Bureaucracy

We’ve all been there. You draft a clear, important request, send it to a large organization, and wait. And wait. The silence that follows can feel like your message was sent into a black hole. This frustration is especially common for homeowners dealing with their Homeowners’ Association (HOA), where getting a straight answer or a timely response can seem impossible.

But what if being ignored is more than just frustrating? What if it’s a violation of the law? The case of William M. Brown versus the Terravita Country Club provides a powerful real-world example of one member who fought back against being ignored—and won. His persistence offers crucial lessons for any homeowner who has ever felt powerless against their association’s bureaucracy.

2. Takeaway 1: The “We Never Got the Email” Defense Isn’t Bulletproof

When faced with Mr. Brown’s petition, Terravita’s primary defense was simple: they claimed they never received his July 30, 2016, email requesting association records. They went even further, contending that the email evidence he provided was falsified.

This defense crumbled under scrutiny. Mr. Brown presented a forwarded email as evidence of his original request. In the end, the case came down to witness testimony, and the Administrative Law Judge’s conclusion was direct and unambiguous. The judge made two critical findings on the credibility of the parties involved:

I find Mr. Brown’s testimony to be credible.

And regarding the testimony from Terravita’s representative, the Secretary Ms. Wiley:

I find Ms. Wiley’s testimony to be unreliable.

The judge’s conclusion was not arbitrary; it was based on a clear contradiction in the evidence. Ms. Wiley testified that she did not use the specific email address where Mr. Brown sent the request for association business. However, evidence presented to the court showed that just a few months prior, she had successfully received and processed two separate records requests sent to that very same email address, proving it was a valid and functioning channel for communication. This detail demonstrates how an individual’s careful documentation can expose an organization’s flawed defense.

3. Takeaway 2: State Law Overrules Internal Red Tape

Terravita offered a second line of defense: even if they had received the email, Mr. Brown hadn’t followed their internal “Rules, Policies and Procedures.” The association argued that members were required to submit records requests to the General Manager or Director of Administration, not the association’s Secretary, whom Mr. Brown had emailed.

This argument was deemed irrelevant by the judge. The decision hinged not on Terravita’s internal rules, but on the plain language of Arizona state law, A.R.S. § 33-1805. The statute simply requires the association to make records available within ten business days of a request; it does not specify which officer or employee must receive that request.

By failing to respond, Terravita violated the statute, regardless of its own procedural preferences. This is a critical reminder for all homeowners: your rights are often enshrined in state law, and those rights cannot be diminished or negated by an HOA’s internal bylaws or policies.

4. Takeaway 3: A Simple Request Has a Firm Deadline

The core violation in this case was a failure to meet a specific, legally mandated deadline. Under Arizona law A.R.S. § 33-1805, an association has ten business days to fulfill a member’s request for the examination of records.

The timeline of events was clear:

• Mr. Brown sent his records request via email on July 30, 2016.

• The judge found that “Terravita did not respond to Mr. Brown’s records request within 10 business days.”

Adding weight to this was the fact that the association had previously proven itself more than capable of handling requests sent from Mr. Brown’s email account. Earlier that year, another individual had successfully requested records through the same channel. In those instances, Terravita had been prompt, often acknowledging requests within a day or two and making records available well within the legal deadline. This history undermined any claim of inability to respond. The law’s ten-day deadline is not a vague guideline; it is a specific and enforceable protection for members’ right to information.

5. Takeaway 4: Persistence Can Literally Pay Off

After reviewing the evidence, the judge ruled that Mr. Brown was the “prevailing party.” This victory was not just symbolic; it came with concrete orders that held the association accountable.

The judge’s final decision included the following orders:

• Terravita was ordered to comply with the records request within 10 days.

• Terravita was ordered to pay Mr. Brown his filing fee of $500.00.

Mr. Brown’s persistence didn’t just get him the documents he was legally entitled to; it also resulted in the full reimbursement of his filing costs. This outcome serves as a powerful example that standing up for your rights as a homeowner is not always a futile or expensive endeavor. With proper documentation and an understanding of the law, a single member can hold their association accountable.

6. Conclusion: Your Rights Are Written in Law

While homeowners are obligated to follow their HOA’s rules, the association is equally obligated to follow state law. These laws provide clear rights and protections designed to ensure transparency and fairness. The case of William M. Brown is a testament to the power of a single, well-documented request and the importance of understanding the laws that govern your association.

The next time you feel ignored by a large organization, what’s the one simple step you can take to ensure your request is not only heard, but documented?

Case Participants

Petitioner Side

  • William M. Brown (petitioner)
    Appeared on behalf of himself
  • Anita Bell (records requester)
    Requested records via Mr. Brown's e-mail account

Respondent Side

  • Joshua Bolen (attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
    Appeared for Respondent Terravita Country Club, Inc.
  • Fran Wiley (secretary/witness)
    Terravita Country Club, Inc.
    Terravita Secretary; testified on behalf of Terravita
  • Tom Forbes (general manager)
    Terravita Country Club, Inc.
  • Cici Rausch (director of administration)
    Terravita Country Club, Inc.

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Signed the Final Order
  • Abby Hansen (HOA coordinator)
    Arizona Department of Real Estate
    Addressed for rehearing requests and signed mailing notice

Jason West vs. Desert Sage Two Homeowners Association

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Case Summary

Case ID 17F-H1716031-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-06-28
Administrative Law Judge Diane Mihalsky
Outcome The Administrative Law Judge denied the homeowner’s petition alleging the HOA failed to fill board vacancies (Bylaw § 3.6 violation), finding that the HOA had made reasonable efforts, but vacancies could not be filled because no eligible members were willing to serve, partly due to the Petitioner's actions.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jason West Counsel —
Respondent Desert Sage Two Homeowners Association Counsel Stewart F. Salwin, Esq.

Alleged Violations

Bylaw § 3.6

Outcome Summary

The Administrative Law Judge denied the homeowner’s petition alleging the HOA failed to fill board vacancies (Bylaw § 3.6 violation), finding that the HOA had made reasonable efforts, but vacancies could not be filled because no eligible members were willing to serve, partly due to the Petitioner's actions.

Why this result: Respondent established that the Board performed all reasonable actions to fill vacancies, but no eligible members were willing to serve, in part due to Petitioner's obstructionist tactics, rendering enforcement of the Bylaw impossible as it would lead to an absurdity.

Key Issues & Findings

Refusing to fill vacancies on Respondent’s Board of Directors

Petitioner alleged Respondent violated Bylaw § 3.6 by refusing to fill vacancies on the Board of Directors. The Administrative Law Judge determined that the Board had done all it could to fill vacancies, but no eligible members were willing to serve, and Bylaw § 3.6 does not empower the Board to conscript unwilling members.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952)
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY at page 1220 (8th ed. 1999)
  • Mail Boxes v. Industrial Comm’n of Arizona, 181 Ariz. 119, 122, 888 P.2d 777, 780 (1995)
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04

Analytics Highlights

Topics: HOA Board Vacancies, Bylaw 3.6, Obstructionist Tactics, Refusal to Serve
Additional Citations:

  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • Vazanno v. Superior Court
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960)
  • BLACK’S LAW DICTIONARY
  • Mail Boxes v. Industrial Comm’n of Arizona
  • A.R.S. § 32-2199.02(B)
  • A.R.S. § 32-2199.04

Video Overview

Audio Overview

Decision Documents

17F-H1716031-REL Decision – 572314.pdf

Uploaded 2026-04-24T11:04:00 (137.9 KB)

17F-H1716031-REL Decision – 576049.pdf

Uploaded 2026-04-24T11:04:04 (1160.4 KB)

17F-H1716031-REL Decision – 572314.pdf

Uploaded 2026-01-23T17:19:29 (137.9 KB)

17F-H1716031-REL Decision – 576049.pdf

Uploaded 2026-01-23T17:19:32 (1160.4 KB)

Briefing Document: West v. Desert Sage Two Homeowners Association (Case No. 17F-H1716031-REL)

Executive Summary

This briefing document analyzes the administrative hearing and final order concerning a petition filed by homeowner Jason West (“Petitioner”) against the Desert Sage Two Homeowners Association (“Respondent”). The Petitioner alleged that the HOA’s Board of Directors violated its own Bylaw § 3.6 by failing to fill vacant board positions.

The Administrative Law Judge (ALJ) denied the petition, a decision that was subsequently adopted as a Final Order by the Commissioner of the Arizona Department of Real Estate. The central finding was that the Respondent had made repeated and reasonable efforts to fill the vacancies but was unsuccessful due to a lack of willing and eligible candidates. The ALJ concluded that the governing bylaw mandates the appointment of willing members but does not grant the power to conscript individuals to serve against their will. Furthermore, the decision determined that the shortage of volunteers was attributable, in part, to the Petitioner’s own “obstructionist tactics,” which created a hostile and dysfunctional environment, leading to a series of board member resignations and deterring potential candidates.

Case Overview

• Case Number: 17F-H1716031-REL

• Petitioner: Jason West, a homeowner and member of the Desert Sage Two Homeowners Association.

• Respondent: Desert Sage Two Homeowners Association, representing a small community of approximately 40 homes.

• Core Allegation: On April 10, 2017, the Petitioner filed a single-issue petition alleging the Respondent violated Bylaw § 3.6 by refusing to fill vacancies on its Board of Directors.

• Hearing Date: June 21, 2017, before Administrative Law Judge Diane Mihalsky.

• Final Disposition: The Petitioner’s petition was denied in a decision dated June 28, 2017. This decision was adopted as a Final Order by the Arizona Department of Real Estate on July 12, 2017, making it binding on the parties.

Governing Bylaw in Dispute

The central issue revolved around the interpretation of Section 3.6 of the HOA’s Bylaws, which states:

Vacancies. Vacancies on the Board caused by any reason other than the removal of a director in accordance with the provisions of Section 3.3 of these Bylaws shall be filled by a majority vote of the remaining directors at the first regular or special meeting of the Board held after the occurrence of such vacancy, even though the directors present at such meeting may constitute less than a quorum. Each person so elected shall serve the unexpired portion of the prior director’s term.

Key Parties and Witnesses

Role / Affiliation

Key Testimony / Actions

Jason West

Petitioner, Homeowner, Former Board President

Filed the petition alleging bylaw violation. Previously filed recall petitions against other board members, resigned from the board himself, and proposed a bylaw amendment that disqualified newly elected members.

Eugenia (“Gina”) Murray

Respondent’s Board President

Testified that the board made repeated efforts to find volunteers, but no one was willing to serve, citing the Petitioner’s behavior as a major cause for resignations and lack of interest.

Edward (“Eddie”) Padilla

Community Manager, National Property Service (NPS)

Testified about sending multiple email requests for board candidates on behalf of the board, which yielded no interested parties other than those who would later be disqualified.

Christina Van Soest

Former Board Member

Resigned on Feb. 8, 2017, stating, “I have found the direction of some of the board does not appear to be in the best interest of the community as a whole.” Testified she was uncomfortable with the Petitioner.

Elizabeth Mayhew

Former Board Member

Resigned on Apr. 4, 2017, citing stress directly related to the Petitioner: “I have enough stress daily with my job and cannot handle this or him. It is making me physically ill and he is not worth that.”

Myron (“Ray”) Elmer

Former Board Member

Resigned on Apr. 5, 2017, with the stated reason: “[d]ue to continued problems Jason etc.”

Korey Hjelmeir & Debra Epstein

Former Board Members

Testified for the Petitioner’s rebuttal. Both had previously resigned in June 2016 in response to the Petitioner’s recall petitions and were later disqualified from serving by a bylaw amendment he proposed.

Chronology of Board Destabilization and Resignations

The hearing evidence established a pattern of significant board turnover and dysfunction between June 2016 and June 2017.

• June 23, 2016: Board members Adrian Justiniano, Debra Epstein, and Korey Hjelmeir resigned after the Petitioner filed recall petitions against them.

• August 3, 2016: The Petitioner, June Thompson, and Christina Van Soest were elected to the Board. The Petitioner served as president.

• August 18, 2016: The Board expanded from 3 to 5 members, appointing Gina Murray and Ray Elmer.

• August 29, 2016: June Thompson resigned.

• February 8, 2017: Christina Van Soest resigned, citing the board’s direction and her discomfort with the Petitioner’s “research into members’ backgrounds and history, and the way he was making Board decisions.”

• February 18, 2017: The Petitioner resigned from the Board because he had “more important things to worry about than the management of this dysfunctional community.”

• April 4, 2017: Elizabeth Mayhew resigned, stating she could not handle the stress caused by the Petitioner and his “verbal assaults, constant lashing out, and personal attacks.”

• April 5, 2017: Ray Elmer resigned, attributing his departure to “continued problems Jason etc.” This left Gina Murray as the sole remaining board member.

Respondent’s Efforts to Fill Vacancies

The Respondent provided evidence of multiple, documented attempts to recruit new board members.

• February 23, 2017: Following the resignations of Ms. Van Soest and the Petitioner, Community Manager Eddie Padilla sent an email requesting “motivated and dedicated individuals” to serve on the Board. No one responded.

• March 31, 2017: At an open Board Meeting with “Board appointments” on the agenda, Gina Murray asked for volunteers and nominations from the floor. No one responded.

• April 4 & 18, 2017: Mr. Padilla sent two further emails requesting members interested in serving on the board to submit biographies for an upcoming annual meeting. The only individuals to respond and submit biographies were Mr. Justiniano and Ms. Hjelmeir.

• May 15, 2017: At the annual meeting, Ms. Murray again accepted nominations from the floor. Debra Epstein was nominated.

• June 5, 2017: After the newly elected board was disqualified, Mr. Padilla sent another email asking for volunteers.

Petitioner’s Actions and Their Consequences

The Administrative Law Judge’s decision identified the Petitioner’s own actions as a primary cause for the board’s inability to fill vacancies.

• Instigation of Resignations: The Petitioner’s recall petitions in June 2016 and behavior cited in the 2017 resignation letters from Van Soest, Mayhew, and Elmer directly contributed to the board vacancies.

• Contradictory Claims: The Petitioner testified that four individuals (Linda Siedler, Teresa Price, Bret Morse, and Bryan Brunatti) were interested in serving. However, the sign-in sheet for the March 31, 2017 meeting, where appointments were to be made, showed none of these individuals were present.

• Disqualifying Bylaw Amendment: The Petitioner proposed a new bylaw, § 3.12, which was passed at the May 15, 2017 meeting. It stated:

• Attempted Removal of Remaining Director: On June 12, 2017, the Petitioner submitted a petition to remove Gina Murray, the last remaining original board member, which would have left the board entirely vacant.

Administrative Law Judge’s Findings and Decision

The ALJ’s conclusions of law were decisive in denying the petition.

1. Burden of Proof: The Petitioner bore the burden of proving by a preponderance of the evidence that the Respondent had violated its bylaws.

2. Interpretation of Bylaw § 3.6: The Judge ruled that while the bylaw requires the Board to appoint members to fill vacancies, “it does not empower the Board to conscript members who are not willing to serve on the Board.”

3. Principle of Absurdity: Citing legal precedent, the decision stated that bylaws must be construed to avoid an absurd result. Forcing an HOA to operate without a board because no eligible members are willing to serve, especially when the situation is exacerbated by the Petitioner, would be such an absurdity.

4. Respondent’s Due Diligence: The Judge found that “Respondent established that the Board has done all it could to fill vacancies.”

5. Petitioner’s Culpability: The final conclusion explicitly states that “at this time, no eligible members are willing to serve, in part due to Petitioner’s obstructionist tactics, including Petitioner and his claimed supporters.”

Based on these findings, the ALJ ordered that the Petitioner’s petition be denied. The order became final and binding upon adoption by the Arizona Department of Real Estate on July 12, 2017.

Study Guide: West v. Desert Sage Two Homeowners Association

This study guide provides a review of the administrative hearing case No. 17F-H1716031-REL, Jason West v. Desert Sage Two Homeowners Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms based on the provided legal documents.

Short-Answer Quiz

Answer the following questions in 2-3 sentences each, based on the information in the case documents.

1. What was the specific allegation made by the Petitioner, Jason West, in his April 10, 2017 petition?

2. According to the text of Bylaw § 3.6, how are vacancies on the Board of Directors supposed to be filled?

3. Who was the sole remaining member of the Board of Directors at the time of the mass resignations in April 2017, and what was her stated reason for not resigning?

4. Describe the circumstances that led to the resignations of board members Christina Van Soest and Jason West in February 2017.

5. What was the immediate and paradoxical outcome of the May 15, 2017 annual meeting election?

6. Explain the purpose and effect of the proposed Bylaw § 3.12, which was sponsored by the Petitioner.

7. What efforts did the Respondent’s management company, National Property Service (NPS), make to recruit new board members?

8. On what grounds did Administrative Law Judge Diane Mihalsky deny the Petitioner’s petition?

9. According to the Petitioner’s testimony, why were certain individuals he named hesitant to volunteer for the Board?

10. What action did the Commissioner of the Arizona Department of Real Estate take regarding the Administrative Law Judge’s decision?

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Answer Key

1. Jason West’s single-issue petition alleged that the Desert Sage Two Homeowners Association (the Respondent) had violated Bylaw § 3.6 by refusing to fill vacancies on its Board of Directors.

2. Bylaw § 3.6 states that vacancies on the Board (for reasons other than removal) shall be filled by a majority vote of the remaining directors at the next meeting. The person elected serves the unexpired portion of the prior director’s term.

3. Eugenia (“Gina”) Murray was the sole remaining board member. She stated she had no intention of resigning because it was important for someone to serve the community’s interests, such as negotiating the insurance contract and handling other community affairs.

4. Christina Van Soest resigned on February 8, 2017, stating the board’s direction was not in the community’s best interest and she was uncomfortable with the Petitioner’s methods. On February 18, 2017, Jason West resigned, citing his belief that he had “more important things to worry about than the management of this dysfunctional community.”

5. At the May 15, 2017 meeting, Eugenia Murray, Debra Epstein, Adrian Justiniano, and Korey Hjelmeir were elected to the Board. However, a bylaw amendment proposed by the Petitioner also passed at the same meeting, which made Epstein, Justiniano, and Hjelmeir ineligible to serve because they had resigned within the previous year.

6. The proposed Bylaw § 3.12 was designed to ban any director who resigns or is removed from serving on the board again for one year. Its passage at the May 15, 2017 meeting had the immediate effect of disqualifying three of the four newly elected board members.

7. NPS, through Community Manager Edward Padilla, sent out multiple emails requesting that interested individuals submit biographies to be considered for board positions. These requests were sent on February 23, April 4, April 18, and June 5, 2017.

8. Judge Mihalsky denied the petition because the Respondent had established that the Board did all it could to fill the vacancies. The judge concluded that the Bylaws cannot be construed to empower the Board to conscript unwilling members and that the lack of volunteers was due in part to the Petitioner’s own “obstructionist tactics.”

9. The Petitioner testified that Linda Siedler, Teresa Price, Bret Morse, and Bryan Brunatti were interested but had two conditions. They were concerned about serving with certain other members (Murray, Hjelmeir, Justiniano, or the Epsteins) and wanted assurance that the directors’ insurance policy would be renewed, which was questionable due to petitions filed by West himself.

10. On July 12, 2017, the Commissioner of the Department of Real Estate, Judy Lowe, issued a Final Order adopting the Administrative Law Judge’s decision. This order made the denial of the Petitioner’s petition binding on the parties.

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Suggested Essay Questions

The following questions are designed for a more in-depth analysis of the case. No answers are provided.

1. Analyze the role of Jason West in the series of board resignations and the difficulty in finding new board members, citing specific evidence presented by the Respondent and testimony from former board members.

2. Discuss the Administrative Law Judge’s interpretation of Bylaw § 3.6. How does the judge balance the literal requirement to fill vacancies with the practical realities faced by the Board, and what legal principles support this interpretation?

3. Trace the timeline of board membership from March 2016 to May 2017. What patterns emerge regarding appointments, resignations, and elections, and how do these events illustrate the internal conflict within the Desert Sage Two community?

4. Evaluate the effectiveness of the Bylaw amendment (§ 3.12) proposed by Jason West. Did it achieve its likely intended purpose, and what were its immediate, perhaps unintended, consequences for the governance of the homeowners’ association?

5. Based on the evidence presented, construct an argument for why the Respondent, Desert Sage Two Homeowners Association, successfully defended itself against the Petitioner’s claim. Your answer should focus on the actions taken by the Board and its management company and the legal conclusions drawn by the judge.

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Glossary of Key Terms

Term / Entity

Definition

Administrative Law Judge (ALJ)

The official, in this case Diane Mihalsky, who presides over an administrative hearing at the Office of Administrative Hearings and issues a decision.

Arizona Department of Real Estate (“the Department”)

The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations.

Bylaw § 3.12 (Proposed)

An amendment proposed by the Petitioner that would ban any director who resigns or is removed from the board from serving again for a period of one year. This amendment was passed at the May 15, 2017 annual meeting.

Bylaw § 3.6

The section of the Respondent’s bylaws that was the central issue of the petition. It requires the remaining directors to fill board vacancies by a majority vote at the next regular or special meeting.

Desert Sage Two Homeowners Association

The Respondent in the case; a small homeowners’ association for a development of approximately 40 condominium homes.

Final Order

The binding decision issued by the Commissioner of the Department of Real Estate, which formally adopts the ALJ’s decision. This order makes the ruling effective and outlines the process for requesting a rehearing.

Jason West

The Petitioner in the case. He is a homeowner and member of the Respondent association who filed a petition alleging the Board violated Bylaw § 3.6.

National Property Service (NPS)

The management company employed by the Respondent, represented in the hearing by Community Manager Edward (“Eddie”) Padilla.

Office of Administrative Hearings

An independent state agency that conducts evidentiary hearings for cases referred by other state agencies, such as the Department of Real Estate.

Petitioner

The party who files a petition initiating a legal action. In this case, Jason West.

Preponderance of the evidence

The standard of proof required for the Petitioner to win the case. It is defined as evidence that is more convincing and has the greater weight, inclining an impartial mind to one side of the issue rather than the other.

Respondent

The party against whom a petition is filed. In this case, the Desert Sage Two Homeowners Association.

Study Guide: West v. Desert Sage Two Homeowners Association

This study guide provides a review of the administrative hearing case No. 17F-H1716031-REL, Jason West v. Desert Sage Two Homeowners Association. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms based on the provided legal documents.

Short-Answer Quiz

Answer the following questions in 2-3 sentences each, based on the information in the case documents.

1. What was the specific allegation made by the Petitioner, Jason West, in his April 10, 2017 petition?

2. According to the text of Bylaw § 3.6, how are vacancies on the Board of Directors supposed to be filled?

3. Who was the sole remaining member of the Board of Directors at the time of the mass resignations in April 2017, and what was her stated reason for not resigning?

4. Describe the circumstances that led to the resignations of board members Christina Van Soest and Jason West in February 2017.

5. What was the immediate and paradoxical outcome of the May 15, 2017 annual meeting election?

6. Explain the purpose and effect of the proposed Bylaw § 3.12, which was sponsored by the Petitioner.

7. What efforts did the Respondent’s management company, National Property Service (NPS), make to recruit new board members?

8. On what grounds did Administrative Law Judge Diane Mihalsky deny the Petitioner’s petition?

9. According to the Petitioner’s testimony, why were certain individuals he named hesitant to volunteer for the Board?

10. What action did the Commissioner of the Arizona Department of Real Estate take regarding the Administrative Law Judge’s decision?

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Answer Key

1. Jason West’s single-issue petition alleged that the Desert Sage Two Homeowners Association (the Respondent) had violated Bylaw § 3.6 by refusing to fill vacancies on its Board of Directors.

2. Bylaw § 3.6 states that vacancies on the Board (for reasons other than removal) shall be filled by a majority vote of the remaining directors at the next meeting. The person elected serves the unexpired portion of the prior director’s term.

3. Eugenia (“Gina”) Murray was the sole remaining board member. She stated she had no intention of resigning because it was important for someone to serve the community’s interests, such as negotiating the insurance contract and handling other community affairs.

4. Christina Van Soest resigned on February 8, 2017, stating the board’s direction was not in the community’s best interest and she was uncomfortable with the Petitioner’s methods. On February 18, 2017, Jason West resigned, citing his belief that he had “more important things to worry about than the management of this dysfunctional community.”

5. At the May 15, 2017 meeting, Eugenia Murray, Debra Epstein, Adrian Justiniano, and Korey Hjelmeir were elected to the Board. However, a bylaw amendment proposed by the Petitioner also passed at the same meeting, which made Epstein, Justiniano, and Hjelmeir ineligible to serve because they had resigned within the previous year.

6. The proposed Bylaw § 3.12 was designed to ban any director who resigns or is removed from serving on the board again for one year. Its passage at the May 15, 2017 meeting had the immediate effect of disqualifying three of the four newly elected board members.

7. NPS, through Community Manager Edward Padilla, sent out multiple emails requesting that interested individuals submit biographies to be considered for board positions. These requests were sent on February 23, April 4, April 18, and June 5, 2017.

8. Judge Mihalsky denied the petition because the Respondent had established that the Board did all it could to fill the vacancies. The judge concluded that the Bylaws cannot be construed to empower the Board to conscript unwilling members and that the lack of volunteers was due in part to the Petitioner’s own “obstructionist tactics.”

9. The Petitioner testified that Linda Siedler, Teresa Price, Bret Morse, and Bryan Brunatti were interested but had two conditions. They were concerned about serving with certain other members (Murray, Hjelmeir, Justiniano, or the Epsteins) and wanted assurance that the directors’ insurance policy would be renewed, which was questionable due to petitions filed by West himself.

10. On July 12, 2017, the Commissioner of the Department of Real Estate, Judy Lowe, issued a Final Order adopting the Administrative Law Judge’s decision. This order made the denial of the Petitioner’s petition binding on the parties.

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Suggested Essay Questions

The following questions are designed for a more in-depth analysis of the case. No answers are provided.

1. Analyze the role of Jason West in the series of board resignations and the difficulty in finding new board members, citing specific evidence presented by the Respondent and testimony from former board members.

2. Discuss the Administrative Law Judge’s interpretation of Bylaw § 3.6. How does the judge balance the literal requirement to fill vacancies with the practical realities faced by the Board, and what legal principles support this interpretation?

3. Trace the timeline of board membership from March 2016 to May 2017. What patterns emerge regarding appointments, resignations, and elections, and how do these events illustrate the internal conflict within the Desert Sage Two community?

4. Evaluate the effectiveness of the Bylaw amendment (§ 3.12) proposed by Jason West. Did it achieve its likely intended purpose, and what were its immediate, perhaps unintended, consequences for the governance of the homeowners’ association?

5. Based on the evidence presented, construct an argument for why the Respondent, Desert Sage Two Homeowners Association, successfully defended itself against the Petitioner’s claim. Your answer should focus on the actions taken by the Board and its management company and the legal conclusions drawn by the judge.

——————————————————————————–

Glossary of Key Terms

Term / Entity

Definition

Administrative Law Judge (ALJ)

The official, in this case Diane Mihalsky, who presides over an administrative hearing at the Office of Administrative Hearings and issues a decision.

Arizona Department of Real Estate (“the Department”)

The state agency authorized by statute to receive and decide Petitions for Hearings from members of homeowners’ associations.

Bylaw § 3.12 (Proposed)

An amendment proposed by the Petitioner that would ban any director who resigns or is removed from the board from serving again for a period of one year. This amendment was passed at the May 15, 2017 annual meeting.

Bylaw § 3.6

The section of the Respondent’s bylaws that was the central issue of the petition. It requires the remaining directors to fill board vacancies by a majority vote at the next regular or special meeting.

Desert Sage Two Homeowners Association

The Respondent in the case; a small homeowners’ association for a development of approximately 40 condominium homes.

Final Order

The binding decision issued by the Commissioner of the Department of Real Estate, which formally adopts the ALJ’s decision. This order makes the ruling effective and outlines the process for requesting a rehearing.

Jason West

The Petitioner in the case. He is a homeowner and member of the Respondent association who filed a petition alleging the Board violated Bylaw § 3.6.

National Property Service (NPS)

The management company employed by the Respondent, represented in the hearing by Community Manager Edward (“Eddie”) Padilla.

Office of Administrative Hearings

An independent state agency that conducts evidentiary hearings for cases referred by other state agencies, such as the Department of Real Estate.

Petitioner

The party who files a petition initiating a legal action. In this case, Jason West.

Preponderance of the evidence

The standard of proof required for the Petitioner to win the case. It is defined as evidence that is more convincing and has the greater weight, inclining an impartial mind to one side of the issue rather than the other.

Respondent

The party against whom a petition is filed. In this case, the Desert Sage Two Homeowners Association.

Case Participants

Petitioner Side

  • Jason West (petitioner)
    Appeared on his own behalf; testified on his own behalf
  • Linda Siedler (witness, member)
    Allegedly interested in serving on the Board; signed petition to remove Ms. Murray
  • Teresa Price (witness, member)
    Allegedly interested in serving on the Board; signed petition to remove Ms. Murray
  • Bret Morse (witness, member)
    Allegedly interested in serving on the Board; submitted absentee ballot; signed petition to remove Ms. Murray
  • Bryan Brunatti (witness, member)
    Allegedly interested in serving on the Board; attended meeting and counted ballots; signed petition to remove Ms. Murray

Respondent Side

  • Stewart F. Salwin (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
    Represented the Respondent
  • Eugenia Murray (board president, witness)
    Only current Board member at the time of hearing; testified for Respondent
  • Edward Padilla (property manager, witness)
    National Property Service (NPC)
    Community Manager; testified for Respondent

Neutral Parties

  • Diane Mihalsky (ALJ)
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    ADRE Commissioner who adopted the ALJ Decision

Other Participants

  • Korey Hjelmeir (witness, former board member)
    Testified for Petitioner as former Board member; resigned and later sought re-election
  • Debra Epstein (witness, former board member)
    Testified for Petitioner as former Board member; resigned and later sought re-election; appeared via Skype at a meeting
  • Adrian Justiniano (former board member)
    Resigned and later sought re-election
  • June Thompson (former board member)
    Elected and resigned in 2016
  • Christina Van Soest (former board member)
    Elected and resigned in 2017
  • Myron Elmer (former board member)
    Appointed and resigned in 2017
  • Elizabeth Mayhew (former board member)
    Appointed and resigned in 2017
  • David Epstein (member)
    Appeared via Skype at a meeting; expressed interest in serving on Board
  • Abby Hansen (HOA coordinator)
    Individual to whom requests for rehearing should be addressed

John Sellers vs. Rancho Madera Condominium Association

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Case Summary

Case ID 17F-H1716021-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-03-30
Administrative Law Judge Diane Mihalsky
Outcome The Administrative Law Judge denied the Petitioner's request, finding that the Respondent HOA complied with A.R.S. § 33-1258 by providing documents related to expenditures, and was not required to provide bank signature cards or read-only online access credentials.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John Sellers Counsel —
Respondent Rancho Madera Condominium Association Counsel Lydia Peirce Linsmeier, Esq.

Alleged Violations

A.R.S. § 33-1258

Outcome Summary

The Administrative Law Judge denied the Petitioner's request, finding that the Respondent HOA complied with A.R.S. § 33-1258 by providing documents related to expenditures, and was not required to provide bank signature cards or read-only online access credentials.

Why this result: Petitioner failed to meet the burden of proof that Respondent violated A.R.S. § 33-1258 because the statute does not require the association to provide records (like signature cards or usernames/passwords) which are not financial records showing actual expenditures and are often held by the financial institution.

Key Issues & Findings

Association financial and other records; applicability

Petitioner, a member of the HOA, alleged the HOA violated A.R.S. § 33-1258 by refusing access to bank account signature cards and read-only user names/passwords. The ALJ found that these items were not 'financial and other records' that the association was statutorily required to provide, as they related to mechanisms for disbursement rather than actual expenditure, and would be maintained by the bank, not the association.

Orders: Petitioner's petition was denied and dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 41-2198.01

Analytics Highlights

Topics: Records Request, Condominium Act, Access to Records, Financial Records, Bank Records
Additional Citations:

  • A.R.S. § 33-1258
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.08

Video Overview

Audio Overview

Decision Documents

17F-H1716021-REL Decision – 549566.pdf

Uploaded 2026-04-24T11:03:00 (60.9 KB)

17F-H1716021-REL Decision – 554490.pdf

Uploaded 2026-04-24T11:03:04 (88.6 KB)

17F-H1716021-REL Decision – 558591.pdf

Uploaded 2026-04-24T11:03:09 (757.3 KB)

17F-H1716021-REL Decision – 549566.pdf

Uploaded 2026-01-23T17:18:59 (60.9 KB)

17F-H1716021-REL Decision – 554490.pdf

Uploaded 2026-01-23T17:19:02 (88.6 KB)

17F-H1716021-REL Decision – 558591.pdf

Uploaded 2026-01-23T17:19:05 (757.3 KB)

Administrative Hearing Briefing: Sellers v. Rancho Madera Condominium Association

Executive Summary

This document synthesizes the proceedings and outcome of the administrative case John Sellers v. Rancho Madera Condominium Association. The core of the dispute was Petitioner John Sellers’s allegation that the Respondent, Rancho Madera Condominium Association, violated Arizona Revised Statute (A.R.S.) § 33-1258 by refusing to produce specific records: bank account signature cards and read-only online banking credentials for the association’s account with Mutual of Omaha.

The Administrative Law Judge (ALJ) ultimately recommended the petition be denied, a decision that was formally adopted by the Commissioner of the Arizona Department of Real Estate. The ruling hinged on a narrow interpretation of the statute. The ALJ concluded that the requested items were not “financial and other records of the association” as required by law. Key findings supporting this conclusion were:

• Custody: The signature cards, if they exist, are records held by the bank (Mutual of Omaha), not the association.

• Nature of Request: Online user names and passwords constitute “information,” not a “document” or “record” in the statutory sense.

• Sufficient Disclosure: The association had already provided a comprehensive set of financial documents (bank statements, contracts, resolutions, etc.) sufficient for a member to ascertain whether the association was prudently managing its funds, thereby satisfying the plain-meaning purpose of A.R.S. § 33-1258.

The petitioner’s arguments that such records must exist under federal banking regulations and that electronic access is superior to paper records were deemed policy arguments to be addressed to the legislature, not grounds for finding a statutory violation.

Case Overview

Case Name

John Sellers, Petitioner, vs. Rancho Madera Condominium Association, Respondent

Case Number

No. 17F-H1716021-REL (also listed as DOCKET NO. 17F-H1716021-REL and CASE NO. HO 17-16/021)

Petitioner

John Sellers (Appeared on his own behalf)

Respondent

Rancho Madera Condominium Association

Respondent’s Counsel

Lydia Peirce Linsmeier, Esq., Carpenter, Hazlewood, Delgado & Bolen, PLC

Adjudicating Body

Arizona Office of Administrative Hearings

Reviewing Body

Arizona Department of Real Estate

Administrative Law Judge

Diane Mihalsky

Commissioner

Judy Lowe, Arizona Department of Real Estate

Core Allegation and Legal Framework

Petitioner’s Claim

On or about December 20, 2016, John Sellers, a condominium owner and member of the Rancho Madera Condominium Association, filed a petition with the Arizona Department of Real Estate. The petition alleged that the association had violated A.R.S. § 33-1258 by refusing to provide two specific items related to its bank account at Mutual of Omaha:

1. Bank account signature cards.

2. Read-only user names and passwords for online access to the account.

Sellers argued that these documents must exist, citing federal banking statutes and regulations intended to combat terrorism.

Governing Statute: A.R.S. § 33-1258

The case revolved around the interpretation of A.R.S. § 33-1258, “Association financial and other records.” The key provisions of this statute state:

• A. Right to Examine: “Except as provided in subsection B of this section, all financial and other records of the association shall be made reasonably available for examination by any member…”

• Timeline: An association has ten business days to fulfill a request for examination and ten business days to provide copies upon request.

• Fees: An association may charge a fee of not more than fifteen cents per page for copies.

• B. Withholdable Records: The statute allows an association to withhold records related to:

1. Privileged attorney-client communication.

2. Pending litigation.

3. Records of board meetings not required to be open to all members.

4. Personal, health, or financial records of individual members or employees.

5. Records related to job performance or complaints against employees.

• C. Legal Prohibitions: An association is not required to disclose records if doing so would violate state or federal law.

The Uniform Condominium Act, of which this statute is a part, does not provide a more specific definition of “financial and other records.”

Factual Findings and Evidence Presented

Records Provided by the Association

Prior to the hearing, the Respondent had already provided the Petitioner with a substantial volume of financial records. Emails attached to the initial petition indicated that the following documents were furnished:

• All bank statements

• Account opening documentation

• Forms for members’ direct debit authorizations

• The Board’s resolution authorizing the opening of the bank account

• Agreements between the property management company, Trestle Management Group, and Mutual of Omaha regarding fees, indemnities, and netting

• The association’s insurance certificate

• The association’s management contract with Trestle Management Group

Witness Testimony

A hearing was held on March 7, 2017, where testimony was presented by both parties.

• Petitioner’s Testimony: John Sellers testified on his own behalf and submitted ten exhibits.

• Respondent’s Witnesses:

◦ Marc Vasquez (Vice President of Trestle Management Group): Testified that all signature cards for the association’s bank accounts were held by the bank at which the accounts were opened. He stated that Mutual of Omaha was the custodian of those cards.

◦ Alan Simpson (Vice President of Respondent’s Board) & Marc Kaplan (President of Respondent’s Board): Both testified that they did not have user names and passwords for the association’s Mutual of Omaha account. They believed, however, that the association’s treasurer may have had such credentials to access the account online.

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision, issued on March 29, 2017, denied the Petitioner’s petition. The reasoning was based on a direct interpretation of A.R.S. § 33-1258 and the evidence presented.

• Burden of Proof: The decision established that the Petitioner bore the burden of proving by a “preponderance of the evidence” that the Respondent had violated the statute. A preponderance of the evidence is defined as proof that “convinces the trier of fact that the contention is more probably true than not.”

• Statutory Interpretation: The ALJ determined that the “plain meaning” of A.R.S. § 33-1258 is to provide members with access to documents that allow them to “ascertain whether the association is prudently managing its members’ assessments.” The decision explicitly states that the numerous documents already provided by the Respondent fulfilled this purpose.

• Custody and Control: A central finding was that the requested items were not “records of the association.” The signature cards were records held and maintained by a third party, Mutual of Omaha. The statute does not compel an association to produce records that are not in its possession or under its control.

• Information vs. Documents: The decision drew a distinction between records and information, stating, “The user names and passwords are information, not a document.” Furthermore, it noted that these items “do not relate to Respondent’s actual expenditure of members’ assessments” but rather to the mechanisms for disbursing funds.

• Scope of the Statute: The ALJ concluded that A.R.S. § 33-1258 does not require an association to “create, maintain, or provide this information or documentation to Petitioner, either to serve his convenience or to allow him to ascertain Respondent’s or Mutual of Omaha’s compliance with federal banking statutes that are not incorporated in the Uniform Condominium Act.”

• Policy Arguments: The Petitioner’s contention that “paper access to the account information is inferior to electronic access” was dismissed as “a policy argument that should be addressed to the Legislature.” The statute only requires that records be made “reasonably available,” which the Respondent had done.

Procedural History and Final Outcome

c. Dec. 20, 2016

John Sellers files a petition with the Arizona Department of Real Estate.

Mar. 7, 2017

An evidentiary hearing is held before ALJ Diane Mihalsky. An order is issued holding the record open for the parties to submit legal memoranda regarding the scope of A.R.S. § 33-1258.

Mar. 21, 2017

The deadline for submitting legal memoranda passes, and the record on the matter is closed.

Mar. 29, 2017

ALJ Diane Mihalsky issues the “Administrative Law Judge Decision,” which includes Findings of Fact, Conclusions of Law, and a Recommended Order to deny the Petitioner’s petition.

Mar. 30, 2017

Judy Lowe, Commissioner of the Department of Real Estate, issues a “Final Order.” This order formally accepts and adopts the ALJ’s decision, and the petition is denied.

The Final Order, effective immediately upon service, represented the final administrative action in the matter. The order noted that parties could file a motion for rehearing within 30 days or appeal the final administrative decision through judicial review.

Study Guide:Sellers v. Rancho Madera Condominium Association

This study guide provides a comprehensive review of the administrative case John Sellers v. Rancho Madera Condominium Association, Case No. 17F-H1716021-REL. It covers the key parties, legal arguments, statutory interpretations, and the ultimate decision rendered by the Office of Administrative Hearings and the Arizona Department of Real Estate.

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Short-Answer Quiz

Instructions: Answer the following questions in 2-3 sentences each, based on the information provided in the case documents.

1. What was the central allegation made by the Petitioner, John Sellers, against the Rancho Madera Condominium Association?

2. Identify the specific Arizona Revised Statute (A.R.S.) that formed the basis of the legal dispute and summarize its primary requirement for homeowners’ associations.

3. What specific documents or information did John Sellers request that the association refused to provide?

4. In its defense, what was the association’s stated reason for not producing the requested items?

5. List the documents that the association did provide to the Petitioner prior to the hearing.

6. Who testified on behalf of the Respondent association at the March 7, 2017 hearing?

7. How did the Administrative Law Judge (ALJ) distinguish between “information” and “documents” in her legal conclusions?

8. What is the “burden of proof” in this case, and which party was responsible for meeting it?

9. What was the final outcome of the petition as determined by the Administrative Law Judge and subsequently adopted by the Commissioner of the Department of Real Estate?

10. According to the ALJ’s decision, what is the plain meaning and purpose of A.R.S. § 33-1258?

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Answer Key

1. The Petitioner, John Sellers, alleged that the Respondent, Rancho Madera Condominium Association, had violated A.R.S. § 33-1258. The specific violation was the association’s refusal to provide him with certain records related to its bank account at Mutual of Omaha.

2. The statute at the center of the dispute was A.R.S. § 33-1258, titled “Association financial and other records.” This statute generally requires that all financial and other records of a homeowners’ association be made reasonably available for examination by any member within ten business days of a request.

3. John Sellers requested bank account signature cards for the association’s Mutual of Omaha account. He also requested read-only user names and passwords for online access to that same account.

4. The association denied the request because it asserted that the requested documents and information either did not exist or were not included in the association’s records. It was testified that the signature cards were held by the bank, Mutual of Omaha, as their custodian.

5. The association provided copies of all bank statements, account opening documentation, direct debit authorization forms, the Board’s resolution to open the account, agreements between its management company (Trestle) and the bank, its insurance certificate, and its management contract with Trestle.

6. Three witnesses testified for the Respondent: Alan Simpson (Vice President of the Board), Marc Kaplan (President of the Board), and Marc Vasquez (Vice President of Trestle Management Group).

7. The ALJ concluded that the requested user names and passwords constituted “information,” not a “document” as covered by the statute. She further reasoned that neither the signature cards nor the online credentials related to the actual expenditure of funds, but rather to the mechanisms for disbursement, and were maintained by the bank, not the association.

8. The burden of proof rested on the Petitioner, John Sellers, to establish by a “preponderance of the evidence” that the Respondent had violated the statute. A preponderance of the evidence is proof that convinces the trier of fact that a contention is more probably true than not.

9. The Administrative Law Judge issued a recommended order denying the Petitioner’s petition. This decision was then adopted by the Commissioner of the Department of Real Estate in a Final Order, formally denying the petition and making the decision binding on the parties.

10. The ALJ determined the plain meaning of A.R.S. § 33-1258 is that associations must provide members with access to documents that allow them to ascertain whether the association is prudently managing its members’ assessments. The judge noted that arguments for different types of access (e.g., electronic vs. paper) are policy arguments that should be addressed to the Legislature.

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Essay Questions

Instructions: The following questions are designed for a more in-depth analysis of the case. Formulate comprehensive responses based on the facts, legal reasoning, and conclusions presented in the source documents.

1. Analyze the Administrative Law Judge’s interpretation of “financial and other records” under A.R.S. § 33-1258. How did this interpretation, particularly the distinction between disbursement mechanisms and actual expenditures, lead to the denial of John Sellers’ petition?

2. Discuss the concept of “burden of proof” as it applied in this case. Explain what “preponderance of the evidence” means and detail why the Petitioner, according to the ALJ’s findings, failed to meet this standard.

3. Trace the procedural timeline of the case from the initial petition filed around December 20, 2016, to the Final Order dated March 30, 2017. Identify the key legal bodies involved (Office of Administrative Hearings, Department of Real Estate) and their respective roles in the process.

4. Evaluate the Petitioner’s argument that federal banking statutes and regulations intended to fight terrorism necessitated the existence and disclosure of the requested records. Why was this argument ultimately unpersuasive to the court?

5. Examine the exceptions to disclosure outlined in A.R.S. § 33-1258(B). Although not the central issue in the final decision, explain how these exceptions frame the limits of a homeowner’s right to association records.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An official who presides over administrative hearings, makes findings of fact and conclusions of law, and issues decisions or recommended orders. In this case, Diane Mihalsky served as the ALJ.

A.R.S. § 33-1258

The specific Arizona Revised Statute at the heart of the case, part of the Uniform Condominium Act. It governs a homeowner association’s duty to make its “financial and other records” available for examination by members.

Burden of Proof

The obligation on a party in a legal case to prove their allegations. In this matter, the Petitioner bore the burden of proof.

Commissioner

The head of a government department. In this case, Judy Lowe, the Commissioner of the Arizona Department of Real Estate, adopted the ALJ’s decision and issued the Final Order.

Evidentiary Hearing

A formal proceeding where parties present evidence (such as documents and testimony) before a judge or hearing officer. The hearing in this case was held on March 7, 2017.

Final Order

A binding decision issued by an administrative agency that concludes a case. In this matter, the Final Order was issued by the Commissioner of the Department of Real Estate on March 30, 2017, denying the petition.

Homeowners’ Association

An organization in a subdivision, planned community, or condominium development that makes and enforces rules for the properties and its residents. In this case, the Rancho Madera Condominium Association.

Petitioner

The party who files a petition initiating a legal or administrative action. In this case, John Sellers.

Preponderance of the Evidence

The standard of proof in most civil and administrative cases. It means that the evidence presented is sufficient to incline a fair and impartial mind to one side of the issue rather than the other, establishing that a claim is “more probably true than not.”

Respondent

The party against whom a petition is filed. In this case, the Rancho Madera Condominium Association.

Trestle Management Group (“Trestle”)

The property management company for the Rancho Madera Condominium Association. The Vice President of Trestle, Marc Vasquez, testified at the hearing.

Uniform Condominium Act

The section of Arizona law (Chapter 9 of Title 33, Arizona Revised Statutes) that governs condominiums. A.R.S. § 33-1258 is part of this act.

⚖️

17F-H1716021-REL

3 sources

These sources document the administrative legal proceedings of a dispute between John Sellers (Petitioner) and the Rancho Madera Condominium Association (Respondent) before the Arizona Office of Administrative Hearings. The core issue of the case, No. 17F-H1716021-REL, was the Association’s alleged violation of A.R.S. § 33-1258 by refusing to provide bank account signature cards and read-only user credentials for online access to their bank account. The initial order, dated March 7, 2017, held the record open to allow both parties to submit legal memoranda concerning the scope of corporate records required under the statute. The subsequent Administrative Law Judge Decision, dated March 29, 2017, denied the Petitioner’s petition, concluding that the requested items were not considered financial records the association was legally required to create, maintain, or disclose. Finally, the Commissioner of the Department of Real Estate adopted the ALJ Decision as a Final Order on March 30, 2017.

Case Participants

Petitioner Side

  • John Sellers (petitioner)

Respondent Side

  • Lydia Peirce Linsmeier (respondent attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
  • Alan Simpson (board member/witness)
    Rancho Madera Condominium Association
    Vice President of Respondent's board
  • Marc Kaplan (board member/witness)
    Rancho Madera Condominium Association
    President of Respondent's Board
  • Marc Vasquez (property manager/witness)
    Trestle Management Group
    Vice President of Trestle
  • Annette Graham (attorney staff)
    Carpenter, Hazlewood, Delgado & Bolen, PLC
    Derived from email address (Annette.graham)

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
  • Abby Hansen (HOA Coordinator)
    Arizona Department of Real Estate
    Also listed as AHansen

Other Participants

  • M. Johnson (clerical staff)
    Signatory on document transmission
  • LDettorre (ADRE Staff)
    ADRE
    Email recipient
  • djones (ADRE Staff)
    ADRE
    Email recipient
  • jmarshall (ADRE Staff)
    ADRE
    Email recipient
  • ncano (ADRE Staff)
    ADRE
    Email recipient

Barbara Printy vs. Olive Grove Village Association Inc.

Posted on by

Case Summary

Case ID 16F-H1616010-BFS
Agency ADRE
Tribunal OAH
Decision Date 2016-11-14
Administrative Law Judge Tammy L. Eigenheer
Outcome The ALJ concluded that the Petitioner established by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1243(J) and governing documents by failing to complete the required 2014 audit by March 31, 2015. The audit was not completed until October 2016. The ALJ imposed a $5,000 civil penalty due to the ongoing refusal to comply.
Filing Fees Refunded $750.00
Civil Penalties $5,000.00

Parties & Counsel

Petitioner Barbara Printy Counsel Phil Whitaker
Respondent Olive Grove Village Association Inc. Counsel Jonathan Ebertshauser

Alleged Violations

A.R.S. § 33-1243(J)

Outcome Summary

The ALJ concluded that the Petitioner established by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1243(J) and governing documents by failing to complete the required 2014 audit by March 31, 2015. The audit was not completed until October 2016. The ALJ imposed a $5,000 civil penalty due to the ongoing refusal to comply.

Key Issues & Findings

Failure to obtain annual financial audit

Petitioner alleged Respondent failed to obtain an audit of the 2014 financials. Respondent's fiscal year ended Dec 31, 2014. The audit was not received until Oct 11, 2016, despite multiple requests by Petitioner. ALJ found Respondent violated statute and governing documents.

Orders: Respondent ordered to pay Petitioner $750.00 filing fee and pay Department $5,000.00 civil penalty.

Filing fee: $750.00, Fee refunded: Yes, Civil penalty: $5,000.00

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1243(J)

Video Overview

Audio Overview

Decision Documents

16F-H1616010-BFS Decision – 528449.pdf

Uploaded 2026-01-27T21:13:10 (81.5 KB)

16F-H1616010-BFS Decision – 538188.pdf

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16F-H1616010-BFS Decision – 540732.pdf

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16F-H1616010-BFS Decision – 562623.pdf

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16F-H1616010-BFS Decision – 564331.pdf

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16F-H1616010-BFS Decision – 564332.pdf

Uploaded 2026-01-27T21:13:11 (60.5 KB)

Administrative Decision Briefing: Printy v. Olive Grove Village Association Inc.

Executive Summary

This document synthesizes the administrative law proceedings and final decision regarding the dispute between Barbara Printy (Petitioner) and the Olive Grove Village Association Inc. (Respondent). The central conflict involved the Respondent’s failure to conduct a timely financial audit for the 2014 fiscal year, as mandated by Arizona Revised Statutes (A.R.S.) and the Association’s own governing documents.

The Administrative Law Judge (ALJ) determined that the Respondent committed a clear violation of A.R.S. § 33-1243(J). Despite multiple requests from the Petitioner starting in early 2015, the Association did not receive the required audit until October 2016—nearly eighteen months past the deadline set in its Covenants, Conditions, and Restrictions (CC&Rs). Consequently, the Respondent was ordered to reimburse the Petitioner’s $750 filing fee and pay a civil penalty of $5,000 to the Department of Real Estate.

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Factual Background and Parties

The dispute involves the following entities and legal context:

• Petitioner: Barbara Printy, a condominium owner within the Association.

• Respondent: Olive Grove Village Association Inc., a condominium owners association located in Phoenix, Arizona.

• Subject Matter: Failure to provide a required financial audit for the fiscal year ending December 31, 2014.

• Jurisdiction: Originally filed with the Department of Fire, Building and Life Safety, the matter was transferred to the Department of Real Estate on July 1, 2016, under the authority of A.R.S. § 32-2199 et seq.

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Governing Regulatory Framework

The ALJ’s decision was based on three distinct but overlapping requirements for financial transparency and reporting:

Authority

Requirement

Deadline

A.R.S. § 33-1243(J)

Annual financial audit, review, or compilation must be completed.

No later than 180 days after fiscal year-end.

Association CC&Rs

Books and records must be audited by an independent auditor.

Results submitted to Owners within 90 days of fiscal year-end.

Association By-Laws

Treasurer must cause an audit by a CPA.

Complete audit in even-numbered years; review allowed in odd years.

While the state statute allows up to 180 days for a financial review, the Association’s CC&Rs established a stricter 90-day deadline for a full audit. The 2014 fiscal year audit was therefore legally due by March 31, 2015.

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Chronology of Non-Compliance

The Petitioner made repeated attempts to obtain the 2014 audit, which were met with delays and conflicting information from the Association:

1. April 15, 2015: Petitioner requested the audit at an Association meeting. She was informed it would be ready by June.

2. October 15, 2015: Petitioner submitted a formal written request.

3. October 21, 2015: At a meeting, the Association directed the Petitioner to contact the management company for the information.

4. March 17, 2016: The Association informed homeowners that they would be charged $35.00 each for a copy of the audit.

5. March 23, 2016: The Petitioner filed a formal Petition with the state, paying a $750.00 filing fee.

6. August 2016: The Respondent finally engaged a CPA to perform the 2014 audit.

7. October 11, 2016: The Respondent received the audit report, one day before the scheduled administrative hearing.

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Legal Analysis and Conclusions

Violation of Statutory and Governing Documents

The ALJ concluded that the Petitioner proved by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1243(J). The Association admitted that an audit was required for the 2014 financials under both the CC&Rs and the By-Laws.

Defense and Rebuttal

• Respondent’s Defense: The Association argued that inconsistencies between the CC&Rs and By-Laws caused confusion regarding the level of review required. They also argued against a civil penalty, suggesting the cost would ultimately be passed on to homeowners via assessments.

• Petitioner’s Evidence: The Petitioner testified to the ongoing and “flagrant refusal” of the Association to comply with its governing documents. She further noted that the audit received on the eve of the hearing revealed discrepancies in financial records when compared to previously received compilations.

Final Ruling

The ALJ found that the audit should have been completed by March 31, 2015. The Respondent’s failure to engage a CPA until August 2016 constituted a clear breach of duty.

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Sanctions and Orders

The ALJ issued a Recommended Order, which was subsequently certified as the final administrative decision:

• Filing Fee Reimbursement: The Respondent was ordered to pay the Petitioner $750.00 within 30 days of the order’s effective date.

• Civil Penalty: Due to the nature of the violation, the ALJ imposed a civil penalty of $5,000.00, payable to the Department of Real Estate within 60 days.

• Method of Payment: The civil penalty must be paid via cashier’s check or money order.

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Administrative Certification and Finality

The decision-making process followed a strictly defined administrative timeline:

1. November 14, 2016: ALJ Tammy L. Eigenheer issued the initial decision.

2. December 20, 2016: Deadline for the Department of Real Estate to accept, reject, or modify the decision. Since no action was taken by the Department, the ALJ decision was certified as final per A.R.S. § 41-1092.08(D).

3. January 9, 2017: A “Nunc Pro Tunc” order was issued by Interim Director Greg Hanchett to correct the date of issuance of the certification to January 9, 2017.

Notice to Parties: The final decision includes the right to request a rehearing from the Department of Real Estate or seek judicial review through the Superior Court, provided such actions are taken within the statutory timeframes. Failure to act in a timely manner results in the loss of these rights.

Study Guide: Barbara Printy v. Olive Grove Village Association Inc.

This study guide reviews the administrative legal proceedings regarding the dispute between a condominium owner and her homeowners association. It focuses on the statutory requirements for financial audits, the hierarchy of governing documents, and the administrative process for resolving such disputes in Arizona.

Part 1: Short-Answer Quiz

1. What was the core allegation made by the Petitioner against Olive Grove Village Association Inc.?

2. According to A.R.S. § 33-1243(J), what are the default requirements for an association’s annual financial report if the condominium documents do not specify an audit by a CPA?

3. How did the Respondent’s Covenants, Conditions, and Restrictions (CC&Rs) differ from the state statute regarding the timing of the audit?

4. What inconsistency existed between the Association’s CC&Rs and its By-Laws regarding financial reviews?

5. Describe the progression of the Petitioner’s requests for the audit from April 2015 to March 2016.

6. When did the Respondent finally engage a CPA, and when was the audit eventually received?

7. What is the legal definition of “preponderance of the evidence” as used in this administrative proceeding?

8. What was the Respondent’s primary argument against the imposition of a civil penalty?

9. Which state departments have held jurisdiction over disputes between property owners and condominium associations according to the source?

10. What was the purpose of the “Order Nunc Pro Tunc” issued on January 9, 2017?

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Part 2: Answer Key

1. The Core Allegation: The Petitioner, Barbara Printy, alleged that the Olive Grove Village Association violated A.R.S. § 33-1243(J) by failing to obtain a required audit of the 2014 financials. She claimed the Association failed to complete this audit within the 90-day timeframe mandated by its own governing documents.

2. Statutory Requirements: In the absence of stricter requirements in condominium documents, the board must provide for an annual financial audit, review, or compilation. This must be completed within 180 days of the fiscal year’s end and made available to owners within 30 days of request following its completion.

3. CC&R vs. Statute Timing: While the state statute allows up to 180 days for a financial report, the Association’s CC&Rs specifically required the audit to be completed and submitted to owners within 90 days after the end of the fiscal year. This established a more stringent deadline of March 31, 2015, for the 2014 fiscal year.

4. Governing Document Inconsistency: The CC&Rs mandated an audit by an independent auditor at the close of every fiscal year. However, the By-Laws suggested a “complete August” (audit) was only required in even-numbered years, while a review could be conducted in odd-numbered years.

5. Progression of Requests: Printy first requested the audit at a meeting in April 2015, followed by a written request in October 2015 and further verbal requests in October 2015 and March 2016. Throughout this period, she was told various things, including that the information was with the CPA, that she should contact the management company, or that she would be charged $35.00 for the audit.

6. Timeline of Compliance: Despite the audit being due in early 2015, the Respondent did not engage a CPA to perform the work until August 2016. The Association did not actually receive a copy of the completed audit until October 11, 2016, which was the eve of the administrative hearing.

7. Preponderance of the Evidence: This legal standard requires that the evidence presented is of greater weight or more convincing than the opposing evidence. It means that the facts sought to be proved are shown to be “more probable than not.”

8. Argument Against Penalties: The Respondent argued that a civil penalty was inappropriate because the CC&Rs and By-Laws were inconsistent, leading to confusion regarding the necessary level of review. Furthermore, they contended that any penalty would ultimately be a burden on the homeowners themselves through increased assessments.

9. Jurisdictional Departments: Originally, the matter was filed with the Department of Fire, Building and Life Safety. As of July 1, 2016, jurisdiction over these disputes was transferred to the Arizona Department of Real Estate.

10. Order Nunc Pro Tunc: This order was issued to correct a clerical error regarding the date of the decision’s certification. It retroactively established January 9, 2017, as the official date of issuance for the certification of the Administrative Law Judge’s decision.

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Part 3: Essay Questions

1. The Hierarchy of Governing Documents: Analyze how the conflict between the CC&Rs and the By-Laws impacted the Association’s compliance. Discuss the legal implications when internal documents provide conflicting instructions for fiduciary duties like financial audits.

2. Fiduciary Transparency and Homeowner Rights: Evaluate the Association’s conduct in responding to the Petitioner’s repeated requests for financial records. Discuss whether the Association’s suggestions—such as charging $35 for a copy of the audit—align with the statutory requirements of A.R.S. § 33-1243(J).

3. Administrative Law Processes: Explain the process by which an Administrative Law Judge’s decision becomes a final agency action. Refer specifically to the role of the Department of Real Estate in accepting, rejecting, or modifying a decision within the statutory 30-day window.

4. The Significance of Civil Penalties: Assess the ALJ’s decision to impose a $5,000 civil penalty. Consider the Petitioner’s claim of “ongoing and flagrant refusal” versus the Respondent’s claim that penalties harm innocent homeowners.

5. Financial Discrepancies and Audit Importance: The Petitioner testified that the final audit showed discrepancies compared to previous financial compilations. Discuss why an independent audit is a critical tool for condominium associations compared to simpler financial “compilations” or “reviews.”

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Part 4: Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

A presiding officer who conducts hearings and issues recommendations or decisions in disputes involving government agencies.

A.R.S. § 33-1243(J)

The Arizona Revised Statute governing the financial reporting and audit requirements for condominium associations.

An official examination and verification of financial accounts and records by an independent certified public accountant (CPA).

By-Laws

The internal rules and regulations that govern the administration and management of an association.

Covenants, Conditions, and Restrictions (CC&Rs)

Legal documents that lay out the rules of a community or condominium and are binding on all property owners within that association.

Civil Penalty

A financial punishment imposed by a government agency or court for a violation of laws or regulations, distinct from criminal fines.

Compilation

A basic financial report that organizes an association’s financial data into financial statement format without providing any assurance or auditing.

Nunc Pro Tunc

A Latin legal phrase meaning “now for then,” used to correct an order retroactively to correct a previous clerical error or omission.

Petitioner

The party who initiates a legal proceeding or petition, in this case, the homeowner Barbara Printy.

Preponderance of the Evidence

The standard of proof in most civil cases, meaning the evidence shows that a claim is more likely to be true than not.

Respondent

The party against whom a legal petition is filed, in this case, Olive Grove Village Association Inc.

Review

A financial reporting service that is more analytical than a compilation but less thorough than a full audit.

Case

Agency
ADRE
Tribunal
OAH
Docket No
16F-H1616010-BFS
Case Title
Barbara Printy v. Olive Grove Village Association Inc.
Decision Date
2016-11-14
Alj Name
Tammy L. Eigenheer

Parties

Party Id
P1
Role
petitioner
Name
Barbara Printy
Party Type
homeowner
Attorney Name
Phil Whitaker
Attorney Firm
STEGALL KATZ & WHITAKER P.C.
Party Id
R1
Role
respondent
Name
Olive Grove Village Association Inc.
Party Type
HOA
Attorney Name
Jonathan Ebertshauser
Attorney Firm
Carpenter, Hazlewood, Delgado & Bolen PLC

Issues

Summary

Petitioner alleged Respondent failed to obtain an audit of the 2014 financials. Respondent's fiscal year ended Dec 31, 2014. The audit was not received until Oct 11, 2016, despite multiple requests by Petitioner. ALJ found Respondent violated statute and governing documents.

Issue Id

ISS-001

Type

statute

Citation

A.R.S. § 33-1243(J)

Caption

Failure to obtain annual financial audit

Violation(S)

Failure to complete 2014 financial audit within 90 days (CC&Rs) or 180 days (Statute) of fiscal year end.

Outcome

petitioner_win

Filing Fee Paid

750.0

Filing Fee Refunded

True

Civil Penalty Amount

5000.0

Orders Summary

Respondent ordered to pay Petitioner $750.00 filing fee and pay Department $5,000.00 civil penalty.

Cited

  • A.R.S. § 33-1243(J)

Money Summary

Issues Count
1
Total Filing Fees Paid
750.0
Total Filing Fees Refunded
750.0
Total Civil Penalties
5000.0

Outcomes

Petitioner Is Hoa

False

Petitioner Win

yes

Summarize Judgement

The ALJ concluded that the Petitioner established by a preponderance of the evidence that the Respondent violated A.R.S. § 33-1243(J) and governing documents by failing to complete the required 2014 audit by March 31, 2015. The audit was not completed until October 2016. The ALJ imposed a $5,000 civil penalty due to the ongoing refusal to comply.

Tags

  • audit
  • financial records
  • civil penalty
  • untimely performance

Case Participants

Petitioner Side

  • Barbara Printy (Petitioner)
  • Phil Whitaker (Petitioner's Attorney)
    Stegall Katz & Whitaker P.C.
    Also listed as Philip B. Whitaker

Respondent Side

  • Olive Grove Village Association Inc. (Respondent)
    Association of condominium owners
  • Jonathan Ebertshauser (Respondent's Attorney)
    Carpenter, Hazlewood, Delgado & Bolen PLC
    Affiliation inferred from mailing list address for Respondent's counsel

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Greg Hanchett (Interim Director)
    Office of Administrative Hearings
    Signed Certification of Decision
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of decision transmission
  • Rosella J. Rodriguez (Clerk)
    Office of Administrative Hearings
    Signed mailing/transmission certification