Case Summary
| Case ID | 23F-H033-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2023-04-14 |
| Administrative Law Judge | Sondra J. Vanella |
| Outcome | The Administrative Law Judge dismissed the Petition, finding that the Respondent HOA did not violate Article XV of the Articles of Incorporation during the dissolution vote. The required 2/3 majority was achieved with 11 votes in favor, and the requirement for signed assent was met by the signatures provided on the ballot envelopes. |
| Filing Fees Refunded | $500.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Clifford S. Burnes | Counsel | — |
|---|---|---|---|
| Respondent | Saguaro Crest Homeowners' Association | Counsel | John T. Crotty, Esq. |
Alleged Violations
Articles of Incorporation, Section XV
Outcome Summary
The Administrative Law Judge dismissed the Petition, finding that the Respondent HOA did not violate Article XV of the Articles of Incorporation during the dissolution vote. The required 2/3 majority was achieved with 11 votes in favor, and the requirement for signed assent was met by the signatures provided on the ballot envelopes.
Why this result: Petitioner failed to meet the burden of proof to establish the alleged violation by a preponderance of the evidence.
Key Issues & Findings
Violation of voting requirements for dissolution of the Homeowners Association
Petitioner alleged that the dissolution vote was invalid because the ballots were not signed, and Respondent failed to achieve the 2/3 authorized votes needed, noting only 9 ballots were cast for dissolution. Respondent argued that 11 votes were cast, meeting the 2/3 requirement (10 votes needed), and that signatures on the ballot envelopes satisfied the Article XV requirement for assent given in writing and signed by Owners.
Orders: Petitioner’s Petition is dismissed.
Filing fee: $500.00, Fee refunded: No
Disposition: respondent_win
- A.R.S. § 32-2199
- ARIZ. REV. STAT. section 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)
Analytics Highlights
- A.R.S. § 32-2199
- ARIZ. REV. STAT. section 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)
Related election workflow tool
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Video Overview
Audio Overview
Decision Documents
23F-H033-REL Decision – 1035350.pdf
23F-H033-REL Decision – 1049512.pdf
23F-H033-REL Decision – 1035350.pdf
23F-H033-REL Decision – 1049512.pdf
This summary details the administrative hearing held before Administrative Law Judge (ALJ) Sondra J. Vanella in the matter of *Clifford S. Burnes v. Saguaro Crest Homeowners' Association* (HOA), Docket No. 23F-H033-REL, on March 30, 2023.
Key Facts and Issue
The Petitioner, Clifford S. Burnes, alleged that the Saguaro Crest Homeowners’ Association violated its governing documents. The single, central issue set for hearing was whether the HOA's vote on December 11, 2021, regarding the dissolution of the HOA, “did not satisfy the voting requirement of Section XV (15) of the Articles of Incorporation”.
Section XV of the Articles of Incorporation requires that the Association may be dissolved with "assent given in writing and signed by Owners representing not less than two-thirds (2/3) of the authorized votes". The parties stipulated that 10 or more votes constituted 2/3 of the authorized votes (out of 15 authorized votes). Petitioner bore the burden of proof by a preponderance of the evidence.
Hearing Proceedings and Key Arguments
- Petitioner's Argument: Petitioner Burnes argued the vote failed on two main legal points:
- Insufficient Votes: Petitioner contended that only nine (9) ballots were cast in favor of dissolution, which did not meet the 2/3 requirement. He further asserted that the board improperly declared the motion passed and changed the vote count from nine (announced at the meeting) to eleven (reported in the meeting minutes).
- Unsigned Ballots: Petitioner argued that the dissolution vote failed because the ballots themselves were not signed, violating Article XV’s requirement for assent "signed by Owners". He also argued that owners of multiple lots should have been issued separate ballots for each vote.
- Respondent's Argument: The Respondent (HOA), represented by John T. Crotty, Esq., and through the testimony of HOA President Sarina Martinez, countered that the requirements were satisfied.
- Vote Count Justified: Ms. Martinez testified that while nine ballots were received for dissolution, two of those ballots belonged to owners who owned two lots each, meaning those two ballots accounted for four votes. Citing the CCNRs (Article 2, Section 2.2 C1), Ms. Martinez confirmed that each owner is entitled to "one vote for each lot owned". This meant the total votes for dissolution were eleven (11), which exceeded the necessary 2/3 threshold (10 votes).
- Signature Requirement Satisfied: Respondent argued that Article XV does not require the *ballot* itself to be signed. The ballots were distributed as a package with envelopes. Ms. Martinez confirmed that the required signatures, lot number(s), and date were obtained on the envelopes that contained the ballots, thereby satisfying the "assent given in writing and signed" provision.
Final Decision and Outcome
The Administrative Law Judge issued a decision on April 14, 2023, ruling in favor of the Respondent.
The ALJ found that 11 votes were cast on 9 ballots, which represented at least 2/3 of the authorized votes. The ALJ concluded that Article XV "does not specify that the ballot itself must signed," and because the signatures were contained on the envelopes corresponding to the ballots, the requirement for "assent given in writing and signed by Owners" was satisfied.
Petitioner failed to prove by a preponderance of the evidence that the Respondent violated Article XV of the Articles of Incorporation. Accordingly, the Petitioner’s Petition was dismissed.
Questions
Question
If my HOA requires votes to be 'in writing and signed,' does the ballot itself need a signature?
Short Answer
Not necessarily. If the governing documents do not explicitly specify that the ballot itself must be signed, a signature on the envelope containing the ballot may satisfy the requirement.
Detailed Answer
The ALJ determined that if the Articles of Incorporation require assent 'in writing and signed' but do not specify that the ballot itself must be signed, a signature on the envelope containing the ballot is sufficient compliance. In this case, envelopes with the homeowner's signature, lot number, and date were deemed to satisfy the requirement.
Alj Quote
Article XV of the Articles of Incorporation does not specify that the ballot itself must signed, and in this case, the signatures are contained on the envelopes that held the corresponding ballots, thereby satisfying the language of the charged provision.
Legal Basis
Articles of Incorporation, Article XV
Topic Tags
- voting
- ballots
- signatures
- governing documents
Question
If I own multiple lots, do I need to submit a separate physical ballot for each lot?
Short Answer
No, unless you can cite specific legal authority or governing documents that require separate physical ballots.
Detailed Answer
The ALJ rejected the argument that separate ballots are required for each vote possessed by homeowners who own multiple lots, specifically noting that the petitioner failed to provide any authority supporting that claim.
Alj Quote
Petitioner further testified that there should have been separate ballots for each vote for homeowners who own two lots. However, Petitioner did not cite to any authority establishing such.
Legal Basis
Lack of citation to authority
Topic Tags
- voting
- multiple lots
- ballots
Question
How are votes counted if some homeowners own more than one property?
Short Answer
Votes are counted based on 'authorized votes' rather than just the number of physical ballots cast. One ballot may represent multiple votes.
Detailed Answer
The ALJ accepted the calculation where fewer physical ballots were cast than the total vote count because some ballots represented multiple votes (one for each lot owned). The decision validated that 9 ballots could validly represent 11 authorized votes.
Alj Quote
In this case, eleven (11) votes were cast on nine (9) ballots, which represents at least 2/3 of the owners authorized to vote.
Legal Basis
Articles of Incorporation, Article XV
Topic Tags
- voting
- vote counting
- authorized votes
Question
Who is responsible for proving that the HOA violated the rules?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing, the homeowner alleging the violation must prove their case by a 'preponderance of the evidence.' It is not the HOA's job to disprove the allegation initially.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.
Legal Basis
ARIZ. REV. STAT. section 41-1092.07(G)(2); A.A.C. R2-19-119(A)
Topic Tags
- burden of proof
- legal standards
- administrative hearing
Question
What does 'preponderance of the evidence' mean in an HOA dispute?
Short Answer
It means the claim is more likely true than not.
Detailed Answer
The ALJ defines this standard as proof that convinces the decision-maker that the contention is 'more probably true than not,' or holds the greater weight of evidence.
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
- standard of proof
Case
- Docket No
- 23F-H033-REL
- Case Title
- Burnes v. Saguaro Crest Homeowners' Association
- Decision Date
- 2023-04-14
- Alj Name
- Sondra J. Vanella
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
If my HOA requires votes to be 'in writing and signed,' does the ballot itself need a signature?
Short Answer
Not necessarily. If the governing documents do not explicitly specify that the ballot itself must be signed, a signature on the envelope containing the ballot may satisfy the requirement.
Detailed Answer
The ALJ determined that if the Articles of Incorporation require assent 'in writing and signed' but do not specify that the ballot itself must be signed, a signature on the envelope containing the ballot is sufficient compliance. In this case, envelopes with the homeowner's signature, lot number, and date were deemed to satisfy the requirement.
Alj Quote
Article XV of the Articles of Incorporation does not specify that the ballot itself must signed, and in this case, the signatures are contained on the envelopes that held the corresponding ballots, thereby satisfying the language of the charged provision.
Legal Basis
Articles of Incorporation, Article XV
Topic Tags
- voting
- ballots
- signatures
- governing documents
Question
If I own multiple lots, do I need to submit a separate physical ballot for each lot?
Short Answer
No, unless you can cite specific legal authority or governing documents that require separate physical ballots.
Detailed Answer
The ALJ rejected the argument that separate ballots are required for each vote possessed by homeowners who own multiple lots, specifically noting that the petitioner failed to provide any authority supporting that claim.
Alj Quote
Petitioner further testified that there should have been separate ballots for each vote for homeowners who own two lots. However, Petitioner did not cite to any authority establishing such.
Legal Basis
Lack of citation to authority
Topic Tags
- voting
- multiple lots
- ballots
Question
How are votes counted if some homeowners own more than one property?
Short Answer
Votes are counted based on 'authorized votes' rather than just the number of physical ballots cast. One ballot may represent multiple votes.
Detailed Answer
The ALJ accepted the calculation where fewer physical ballots were cast than the total vote count because some ballots represented multiple votes (one for each lot owned). The decision validated that 9 ballots could validly represent 11 authorized votes.
Alj Quote
In this case, eleven (11) votes were cast on nine (9) ballots, which represents at least 2/3 of the owners authorized to vote.
Legal Basis
Articles of Incorporation, Article XV
Topic Tags
- voting
- vote counting
- authorized votes
Question
Who is responsible for proving that the HOA violated the rules?
Short Answer
The homeowner (Petitioner) bears the burden of proof.
Detailed Answer
In an administrative hearing, the homeowner alleging the violation must prove their case by a 'preponderance of the evidence.' It is not the HOA's job to disprove the allegation initially.
Alj Quote
Petitioner bears the burden of proof to establish that Respondent committed the alleged violation by a preponderance of the evidence.
Legal Basis
ARIZ. REV. STAT. section 41-1092.07(G)(2); A.A.C. R2-19-119(A)
Topic Tags
- burden of proof
- legal standards
- administrative hearing
Question
What does 'preponderance of the evidence' mean in an HOA dispute?
Short Answer
It means the claim is more likely true than not.
Detailed Answer
The ALJ defines this standard as proof that convinces the decision-maker that the contention is 'more probably true than not,' or holds the greater weight of evidence.
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
- standard of proof
Case
- Docket No
- 23F-H033-REL
- Case Title
- Burnes v. Saguaro Crest Homeowners' Association
- Decision Date
- 2023-04-14
- Alj Name
- Sondra J. Vanella
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Clifford S. Burnes (petitioner)
Also referred to as Clifford (Norm) S. Burnes
Respondent Side
- John T. Crotty (HOA attorney)
LAW OFFICES OF COLLIN T. WELCH - Esmeralda Sarina Ayala-Martinez (HOA President, witness)
Saguaro Crest Homeowners' Association
Also referred to as Sarina Martinez or Serena Martinez
Neutral Parties
- Sondra J. Vanella (ALJ)
- Susan Nicolson (Commissioner)
ADRE - Tammy I (ALJ)
Mentioned as presiding over related case
Other Participants
- AHansen (ADRE staff)
ADRE - vnunez (ADRE staff)
ADRE - djones (ADRE staff)
ADRE - labril (ADRE staff)
ADRE