Case Summary
| Case ID | 22F-H2222035-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2022-06-24 |
| Administrative Law Judge | Velva Moses-Thompson |
| Outcome | The Administrative Law Judge ordered that the petition filed by Stephen and Elizabeth Tosh against the Cimmarron Superstition HOA be dismissed, as the Petitioners failed to appear at the hearing set on their behalf and thus failed to meet the required burden of proof. |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Stephen and Elizabeth Tosh | Counsel | — |
|---|---|---|---|
| Respondent | Cimmarron Superstition HOA | Counsel | Christopher Hanlon |
Alleged Violations
A.A.C. R2-19-119
Outcome Summary
The Administrative Law Judge ordered that the petition filed by Stephen and Elizabeth Tosh against the Cimmarron Superstition HOA be dismissed, as the Petitioners failed to appear at the hearing set on their behalf and thus failed to meet the required burden of proof.
Why this result: Petitioners failed to appear at the hearing on June 24, 2022, and consequently did not present evidence to satisfy the burden of proof required under A.A.C. R2-19-119.
Key Issues & Findings
Petition Dismissal for Failure to Appear
Petition was dismissed because Petitioners failed to appear at the scheduled hearing and therefore presented no evidence to meet their burden of proof.
Orders: The petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
- A.A.C. R2-19-119
- A.R.S. §32-2199.02(B)
- A.R.S. § 41-1092.09
Analytics Highlights
- A.A.C. R2-19-119
- A.R.S. §32-2199.02(B)
- A.R.S. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
22F-H2222035-REL Decision – 968715.pdf
22F-H2222035-REL Decision – 969556.pdf
22F-H2222035-REL Decision – 979812.pdf
22F-H2222035-REL Decision – 989050.pdf
22F-H2222035-REL Decision – 968715.pdf
22F-H2222035-REL Decision – 969556.pdf
22F-H2222035-REL Decision – 979812.pdf
22F-H2222035-REL Decision – 989050.pdf
This summary addresses the hearing proceedings, key facts, main legal points, and final administrative outcome of the matter involving Petitioners Stephen and Elizabeth Tosh versus Respondent Cimmarron Superstition HOA, identified as Case No. 22F-H2222035-REL, heard in the Office of Administrative Hearings (OAH).
Key Facts and Proceedings
The hearing in this matter was scheduled for June 24, 2022. The Petitioners, Stephen and Elizabeth Tosh, failed to appear at the scheduled hearing. Christopher Hanlon, Esq., appeared on behalf of the Respondent Cimmarron Superstition HOA.
During the proceeding, Mr. Hanlon informed the Administrative Law Judge (ALJ), Velva Moses-Thompson, that he had learned the previous night that his key witness had tested positive for COVID and could not physically attend. Although Mr. Hanlon suggested arguing his pending motion to dismiss, the ALJ waited approximately 15 minutes, allowing a grace period, as Petitioners were representing themselves in this specific OAH matter. The Petitioners did not contact the OAH to request a delay, appear in person, or file a request to appear telephonically.
Main Legal Issues and Rationale
The central legal point supporting the decision was the allocation of the burden of proof. Pursuant to Arizona Administrative Code (A.A.C.) R2-19-119, the burden of proof rested solely upon the Petitioners.
By failing to appear at the hearing, the Petitioners did not present any evidence to support their claims. Consequently, the ALJ concluded that Petitioners failed to meet the required burden of proof.
Outcome and Final Decision
Based on the Petitioners' failure to appear and subsequent failure to meet the burden of proof, the Administrative Law Judge issued a Decision ordering that the petition is dismissed.
This Order was issued on June 24, 2022. The decision was declared binding on the parties unless a rehearing was granted pursuant to A.R.S. § 32-2199.04, requiring a request for rehearing to be filed with the Commissioner of the Department of Real Estate within 30 days.
The Petitioners subsequently filed a "Notice of action (appeal)" on July 21, 2022. However, the OAH determined on August 2, 2022, that these documents would not be considered because no further action could be taken on the matter by the Office of Administrative Hearings.
Questions
Question
Who is responsible for proving the claims in an HOA dispute hearing?
Short Answer
The petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the burden of proof lies with the party bringing the action (the Petitioners). If they fail to present evidence to support their petition, they cannot prevail.
Alj Quote
The burden of proof in this matter is on Petitioners. See A.A.C. R2-19-119.
Legal Basis
A.A.C. R2-19-119
Topic Tags
- burden of proof
- legal standards
Question
What happens if I fail to attend my scheduled administrative hearing?
Short Answer
The petition will likely be dismissed because you failed to meet the burden of proof.
Detailed Answer
Attendance is mandatory to present evidence. If a petitioner fails to appear, they offer no evidence to support their claims. Consequently, the ALJ will find that they failed to meet the burden of proof and will order the petition dismissed.
Alj Quote
By failing to appear at the hearing, Petitioners failed to meet the required burden of proof. Therefore, the petition should be dismissed.
Legal Basis
Failure to Prosecute / Default
Topic Tags
- attendance
- procedural requirements
- dismissal
Question
Is there a grace period if I am late to my hearing?
Short Answer
The judge may allow a short grace period (e.g., 15 minutes), but if you do not appear or contact the office by then, the hearing proceeds without you.
Detailed Answer
In this specific instance, the hearing was scheduled for 9:00 AM, but the judge noted on the record that the hearing did not start until approximately 9:15 AM to allow for a grace period. Since no one appeared or contacted the office to request a delay, the dismissal proceeded.
Alj Quote
Although the hearing did not start until approximately 9:15 a.m., no one appeared on behalf of Petitioners through an attorney, or contact the OAH to request that the start of the hearing be further delayed.
Legal Basis
Procedural Discretion
Topic Tags
- attendance
- procedural requirements
Question
What is the deadline for requesting a rehearing after a decision is issued?
Short Answer
You must file a request for rehearing with the Commissioner within 30 days of service of the order.
Detailed Answer
If a party disagrees with the ALJ's decision, they have a strict 30-day window from the date of service of the order to file a request for a rehearing with the Real Estate Commissioner.
Alj Quote
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
A.R.S. § 41-1092.09
Topic Tags
- appeals
- rehearing
- deadlines
Question
Can I file an appeal or new documents directly with the Office of Administrative Hearings (OAH) after the case is closed?
Short Answer
No, once the OAH has issued its decision, it generally cannot take further action or consider new documents.
Detailed Answer
Once the ALJ issues the final order or dismissal, the OAH loses jurisdiction to act further on the matter. Subsequent filings, such as notices of appeal or new evidence, will not be considered by the OAH.
Alj Quote
The documents will not be considered because no further action can be taken on the matter by the Office of Administrative Hearings.
Legal Basis
Jurisdiction
Topic Tags
- appeals
- jurisdiction
- procedural requirements
Question
Is the Administrative Law Judge's order automatically binding?
Short Answer
Yes, the order is binding on all parties unless a rehearing is officially granted.
Detailed Answer
The decision issued by the ALJ carries the weight of law and binds the parties involved immediately, subject only to the granting of a specific motion for rehearing.
Alj Quote
Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04.
Legal Basis
A.R.S. § 32-2199.02(B)
Topic Tags
- legal standards
- enforcement
Case
- Docket No
- 22F-H2222035-REL
- Case Title
- Stephen and Elizabeth Tosh v. Cimmarron Superstition HOA
- Decision Date
- 2022-06-24
- Alj Name
- Velva Moses-Thompson
- Tribunal
- OAH
- Agency
- ADRE
Questions
Question
Who is responsible for proving the claims in an HOA dispute hearing?
Short Answer
The petitioner (the homeowner filing the complaint) bears the burden of proof.
Detailed Answer
In an administrative hearing regarding an HOA dispute, the burden of proof lies with the party bringing the action (the Petitioners). If they fail to present evidence to support their petition, they cannot prevail.
Alj Quote
The burden of proof in this matter is on Petitioners. See A.A.C. R2-19-119.
Legal Basis
A.A.C. R2-19-119
Topic Tags
- burden of proof
- legal standards
Question
What happens if I fail to attend my scheduled administrative hearing?
Short Answer
The petition will likely be dismissed because you failed to meet the burden of proof.
Detailed Answer
Attendance is mandatory to present evidence. If a petitioner fails to appear, they offer no evidence to support their claims. Consequently, the ALJ will find that they failed to meet the burden of proof and will order the petition dismissed.
Alj Quote
By failing to appear at the hearing, Petitioners failed to meet the required burden of proof. Therefore, the petition should be dismissed.
Legal Basis
Failure to Prosecute / Default
Topic Tags
- attendance
- procedural requirements
- dismissal
Question
Is there a grace period if I am late to my hearing?
Short Answer
The judge may allow a short grace period (e.g., 15 minutes), but if you do not appear or contact the office by then, the hearing proceeds without you.
Detailed Answer
In this specific instance, the hearing was scheduled for 9:00 AM, but the judge noted on the record that the hearing did not start until approximately 9:15 AM to allow for a grace period. Since no one appeared or contacted the office to request a delay, the dismissal proceeded.
Alj Quote
Although the hearing did not start until approximately 9:15 a.m., no one appeared on behalf of Petitioners through an attorney, or contact the OAH to request that the start of the hearing be further delayed.
Legal Basis
Procedural Discretion
Topic Tags
- attendance
- procedural requirements
Question
What is the deadline for requesting a rehearing after a decision is issued?
Short Answer
You must file a request for rehearing with the Commissioner within 30 days of service of the order.
Detailed Answer
If a party disagrees with the ALJ's decision, they have a strict 30-day window from the date of service of the order to file a request for a rehearing with the Real Estate Commissioner.
Alj Quote
Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Legal Basis
A.R.S. § 41-1092.09
Topic Tags
- appeals
- rehearing
- deadlines
Question
Can I file an appeal or new documents directly with the Office of Administrative Hearings (OAH) after the case is closed?
Short Answer
No, once the OAH has issued its decision, it generally cannot take further action or consider new documents.
Detailed Answer
Once the ALJ issues the final order or dismissal, the OAH loses jurisdiction to act further on the matter. Subsequent filings, such as notices of appeal or new evidence, will not be considered by the OAH.
Alj Quote
The documents will not be considered because no further action can be taken on the matter by the Office of Administrative Hearings.
Legal Basis
Jurisdiction
Topic Tags
- appeals
- jurisdiction
- procedural requirements
Question
Is the Administrative Law Judge's order automatically binding?
Short Answer
Yes, the order is binding on all parties unless a rehearing is officially granted.
Detailed Answer
The decision issued by the ALJ carries the weight of law and binds the parties involved immediately, subject only to the granting of a specific motion for rehearing.
Alj Quote
Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04.
Legal Basis
A.R.S. § 32-2199.02(B)
Topic Tags
- legal standards
- enforcement
Case
- Docket No
- 22F-H2222035-REL
- Case Title
- Stephen and Elizabeth Tosh v. Cimmarron Superstition HOA
- Decision Date
- 2022-06-24
- Alj Name
- Velva Moses-Thompson
- Tribunal
- OAH
- Agency
- ADRE
Case Participants
Petitioner Side
- Stephen Tosh (petitioner)
- Elizabeth Tosh (petitioner)
Respondent Side
- Christopher Hanlon (HOA attorney)
Childers Hanlon & Hudson, PLC
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
Recipient of Transmissions - vnunez (ADRE staff)
Arizona Department of Real Estate
Recipient of Transmissions - djones (ADRE staff)
Arizona Department of Real Estate
Recipient of Transmissions - labril (ADRE staff)
Arizona Department of Real Estate
Recipient of Transmissions - c. serrano (staff)
Transmitted documents - Miranda Alvarez (legal secretary)
Transmitted Decision