Jerry Wheeler vs. Beaver Dam Estates Homeowners Association

Posted on September 6, 2017 by [email protected]

Case Summary

Case ID	18F-H1717036-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2017-09-06
Administrative Law Judge	Suzanne Marwil
Outcome	The Petitioner's petition was granted. The Administrative Law Judge found that the Respondent HOA violated A.R.S. § 33-1804(B) by failing to hold the required annual meeting for several years. The Respondent was ordered to hold a meeting, refund the filing fee to the Petitioner, and pay a $250.00 civil penalty.
Filing Fees Refunded	$500.00
Civil Penalties	$250.00

Parties & Counsel

Petitioner	Jerry Wheeler	Counsel	—
Respondent	Beaver Dam Estates Homeowners Association	Counsel	—

Alleged Violations

A.R.S. § 33-1804(B)

Outcome Summary

The Petitioner's petition was granted. The Administrative Law Judge found that the Respondent HOA violated A.R.S. § 33-1804(B) by failing to hold the required annual meeting for several years. The Respondent was ordered to hold a meeting, refund the filing fee to the Petitioner, and pay a $250.00 civil penalty.

Key Issues & Findings

Failure to hold required annual meeting

Petitioner, a homeowner, alleged the HOA had not held an annual meeting since April 1, 2014, violating A.R.S. § 33-1804(B). The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting for several years.

Orders: Petitioner's petition was granted. Respondent was ordered to hold a meeting in accordance with the planned community statutes as currently scheduled on December 28, 2017. Respondent was ordered to pay the filing fee to the Petitioner pursuant to A.R.S. § 32-2199.02(A), and pay a $250.00 civil penalty to the planned community hearing office fund.

Filing fee: $500.00, Fee refunded: Yes, Civil penalty: $250.00

Disposition: petitioner_win

Cited:

A.R.S. § 33-1804(B)
A.R.S. § 32-2199.02(A)
A.R.S. § 32-2199.01
A.R.S. § 32-2199.05

Analytics Highlights

Topics: HOA annual meeting violation, statutory requirement, default judgment

Additional Citations:

A.R.S. § 33-1804
A.R.S. § 32-2199 et seq.
A.R.S. § 32-2199.01
A.R.S. § 32-2199.02
A.R.S. § 32-2199.05
A.A.C. R2-19-119(B)
A.A.C. R2-19-119(A)

Video Overview

Audio Overview

Decision Documents

18F-H1717036-REL Decision – 586602.pdf

Uploaded 2026-04-24T11:06:21 (65.3 KB)

18F-H1717036-REL Decision – 588549.pdf

Uploaded 2026-04-24T11:06:24 (592.6 KB)

18F-H1717036-REL Decision – 586602.pdf

Uploaded 2026-01-23T17:21:12 (65.3 KB)

18F-H1717036-REL Decision – 588549.pdf

Uploaded 2026-01-23T17:21:16 (592.6 KB)

Administrative Hearing Briefing: Wheeler v. Beaver Dam Estates Homeowners Association

Executive Summary

This briefing document synthesizes the findings and orders from the case of Jerry Wheeler versus the Beaver Dam Estates Homeowners Association (HOA). The central issue was the HOA’s failure to conduct annual meetings as legally required by Arizona state law. The petitioner, Jerry Wheeler, provided uncontested evidence that the HOA had not held a meeting for several years, specifically since his tenure began on April 1, 2014.

The case was complicated by the death of the HOA’s president prior to the hearing and the association’s subsequent failure to appoint a new representative or appear at the proceedings. The Administrative Law Judge (ALJ) conducted the hearing in the respondent’s absence and ruled decisively in favor of the petitioner.

The final judgment, adopted by the Arizona Department of Real Estate, found the Beaver Dam Estates HOA in violation of A.R.S. § 33-1804(B). The HOA was ordered to hold a meeting on a specified date, reimburse the petitioner’s filing fee, and pay a civil penalty of $250.00 for the violation.

Case Overview

The matter was initiated by a petition filed with the Arizona Department of Real Estate and was subsequently referred to the Office of Administrative Hearings for a formal hearing and decision.

Case Detail

Information

Petitioner

Jerry Wheeler

Respondent

Beaver Dam Estates Homeowners Association

Case Number (OAH)

18F-H1717036-REL

Case Number (Dept. of Real Estate)

HO 17-17/036

Petition Filed

June 8, 2017

Hearing Date

September 5, 2017

ALJ Decision Date

September 6, 2017

Final Order Date

September 13, 2017

Presiding Judge

Suzanne Marwil, Administrative Law Judge (ALJ)

Adopting Authority

Judy Lowe, Commissioner, Arizona Department of Real Estate

Petitioner’s Allegations and Evidence

The petitioner’s case was built on the central allegation that the Beaver Dam Estates HOA had failed to comply with its statutory duty to hold annual meetings.

• Core Allegation: The HOA was in violation of Arizona Revised Statutes (A.R.S.) § 33-1804(B), which mandates that a members’ association meeting “shall be held at least once each year.”

• Petitioner Testimony: Jerry Wheeler testified that since moving into the community on April 1, 2014, the HOA had not held a single meeting. He also testified regarding his numerous efforts to compel the HOA president, Randy Hawk, to convene a meeting for the purpose of reviewing the association’s financial statements with homeowners.

• Supporting Evidence: The petitioner submitted numerous written statements from other homeowners within the Beaver Dam Estates community. These statements corroborated his testimony, confirming that no HOA meeting had been held for several years. This evidence was referred to as “Exhibit B” in the proceedings.

Respondent’s Actions and Procedural Failures

The respondent’s engagement with the legal process was minimal and ultimately ceased, leading to a judgment in its absence.

• Initial Response: The HOA’s then-president, Randy Hawk, initially responded to the petition by agreeing to hold a meeting.

• First Meeting Attempt: A meeting was scheduled for July 18, 2017. However, only about ten people attended, prompting Hawk to reschedule for December 28, 2017. A letter was sent to all members notifying them of the new date and the intent to hold an election for a new president and vice president.

• Death of Representative: The petitioner subsequently informed the Tribunal that Randy Hawk had passed away, leaving the HOA without a clear representative for the legal matter.

• Failure to Appoint New Representative: On August 16, 2017, the Tribunal issued an order, mailed to the respondent’s address of record, requesting that the HOA name a new representative. The HOA failed to do so.

• Failure to Appear: The respondent did not appear for the scheduled hearing on September 5, 2017, nor did it request to appear telephonically. After a 20-minute grace period, the ALJ proceeded with the hearing in the respondent’s absence.

Legal Framework and Conclusions of Law

The ALJ’s decision was based on a clear statutory requirement and the uncontested evidence presented by the petitioner. The burden of proof was on the petitioner, with the standard of proof being a preponderance of the evidence.

• Statutory Violation: The central finding was that the respondent violated A.R.S. § 33-1804(B). The pertinent text of the statute states:

• Key Conclusion: The ALJ determined that “The unconverted evidence established that Respondent violated A.R.S. § 33-1804(B) by failing to hold the statutorily required annual meeting of Respondent for several years prior to the filing of the petition.”

• Recommended Action: Based on this conclusion, the ALJ stated that the respondent “should hold an annual meeting in accordance with the planned community statutes.”

Final Order and Penalties

The ALJ’s decision was formally adopted by the Commissioner of the Department of Real Estate, making it a binding Final Order. The order mandated several actions by the respondent.

IT IS ORDERED that:

1. The petitioner’s petition is granted.

2. The respondent must hold a meeting in accordance with planned community statutes as scheduled on December 28, 2017.

3. Pursuant to A.R.S. § 32-2199.02(A), the respondent shall pay the petitioner the filing fee required by section 32-2199.01.

4. The respondent shall pay to the planned community hearing office fund a civil penalty of $250.00 for the violation.

This Final Order was declared a final administrative action, effective immediately upon service on September 13, 2017. The parties were notified of their right to apply for a rehearing within thirty days or to appeal the decision by filing a complaint for judicial review.

Study Guide for Wheeler v. Beaver Dam Estates HOA

Short Answer Quiz

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

1. Who were the primary parties in the case Wheeler v. Beaver Dam Estates Homeowners Association, and what were their roles?

2. What was the central allegation made by the Petitioner against the Respondent?

3. According to the Findings of Fact, how long had the Petitioner lived in the community, and why is this duration significant?

4. What specific Arizona Revised Statute (A.R.S.) did the Respondent violate, and what does this statute require?

5. What event involving the Respondent’s president, Randy Hawk, complicated the case proceedings?

6. What was the outcome of the hearing held on September 5, 2017, regarding the Respondent’s attendance?

7. What standard of proof was required in this matter, and which party had the burden of proof?

8. Describe the key components of the Order issued by the Administrative Law Judge.

9. What two monetary penalties were imposed on the Beaver Dam Estates Homeowners Association?

10. According to the Final Order, what steps could an aggrieved party take after the decision was issued?

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Answer Key

1. The primary parties were Jerry Wheeler, the Petitioner, and the Beaver Dam Estates Homeowners Association, the Respondent. As the Petitioner, Mr. Wheeler initiated the legal action by filing a petition, while the Homeowners Association was the entity required to respond to the allegations.

2. The central allegation was that the Respondent had violated state law by failing to hold a meeting of the members’ association for several years. The Petitioner specifically sought to have the association convene a meeting to review financial statements.

3. The Petitioner, Jerry Wheeler, testified that he had moved into the community on April 1, 2014. This duration is significant because he stated that no meeting of the association had been held during his entire tenure, providing a multi-year timeframe for the alleged violation.

4. The Respondent violated A.R.S. § 33-1804(B). This statute mandates that, notwithstanding any provisions in community documents, a meeting of the members’ association must be held at least once each year within the state of Arizona.

5. After responding to the petition and scheduling a future meeting, the Respondent’s president, Randy Hawk, passed away. The Petitioner informed the Tribunal of this event, which created uncertainty about who could serve as the Respondent’s representative in the matter.

6. The Respondent, Beaver Dam Estates Homeowners Association, failed to appear for the hearing on September 5, 2017. After a 20-minute grace period, the Administrative Law Judge proceeded with the hearing in the Respondent’s absence.

7. The standard of proof was a “preponderance of the evidence,” as stated in A.A.C. R2-19-119(A). Pursuant to A.A.C. R2-19-119(B), the Petitioner, Jerry Wheeler, had the burden of proving his case.

8. The Order granted the Petitioner’s petition and mandated that the Respondent hold a meeting on the currently scheduled date of December 28, 2017. It also imposed financial penalties on the Respondent and affirmed that the order was binding on the parties unless a rehearing was granted.

9. The Respondent was ordered to pay the Petitioner’s filing fee required by section 32-2199.01. Additionally, the Respondent was ordered to pay a civil penalty of $250.00 to the planned community hearing office fund.

10. A person aggrieved by the decision could apply for a rehearing by filing a petition with the Commissioner within thirty (30) days. The Final Order is also considered a final administrative action, which a party may appeal by filing a complaint for judicial review.

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Essay Questions

Instructions: The following questions are designed to test a deeper, more comprehensive understanding of the case. Formulate a detailed essay-style response for each.

1. Trace the procedural history of case No. 18F-H1717036-REL from the initial petition filing to the issuance of the Final Order. Discuss the key dates, actions taken by the parties and the Tribunal, and the legal significance of each step.

2. Analyze the legal reasoning behind the Administrative Law Judge’s decision. Explain how the “Findings of Fact” supported the “Conclusions of Law,” with a specific focus on the violation of A.R.S. § 33-1804(B) and the application of the “preponderance of the evidence” standard.

3. Discuss the role and authority of the Office of Administrative Hearings and the Department of Real Estate in this dispute. How do the statutes cited (e.g., A.R.S. § 32-2199 et seq.) empower these bodies to adjudicate disputes and enforce compliance among homeowners associations?

4. Evaluate the impact of the Respondent’s failure to appear at the September 5, 2017 hearing. How did this absence affect the proceedings and the evidence presented, and in what way did it likely influence the final outcome?

5. Examine the remedies and enforcement mechanisms outlined in the Final Order. Discuss the specific purpose of ordering a meeting, reimbursing the filing fee, and imposing a civil penalty, and explain the legal process for appealing the decision.

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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. In this case, Suzanne Marwil served as the ALJ.

A.R.S. (Arizona Revised Statutes)

The codified collection of laws for the state of Arizona. The case frequently cites statutes within Title 32 and Title 33, such as A.R.S. § 33-1804(B), which governs HOA meetings.

A.A.C. (Arizona Administrative Code)

The official compilation of rules and regulations of Arizona state agencies. A.A.C. R2-19-119 established the burden and standard of proof for the hearing.

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. In this matter, the burden of proof was on the Petitioner.

Civil Penalty

A monetary fine imposed by a government agency for a violation of a law or regulation. The Respondent was ordered to pay a $250.00 civil penalty.

Conclusions of Law

The section of a legal decision that applies the relevant laws and legal principles to the established facts of the case to reach a judgment.

Final Administrative Action

A final decision by an administrative agency that is legally binding and can be appealed to a court through a process of judicial review.

Findings of Fact

The section of a legal decision that details the factual circumstances of the case as determined by the judge based on the evidence presented.

A formal directive from a judge or administrative body that requires a party to perform a specific act or refrain from doing so. The final decision in this case included an Order for the Respondent to hold a meeting and pay penalties.

Petitioner

The party who initiates a legal proceeding by filing a petition. In this case, the Petitioner was Jerry Wheeler.

Preponderance of the Evidence

The standard of proof in most civil cases, which requires that the evidence presented by one side is more convincing and likely to be true than the evidence of the opposing side.

Rehearing

A request to have a case heard again by the same administrative body or court, typically based on new evidence or an error in the original proceeding. A party had 30 days to petition for a rehearing.

Respondent

The party against whom a petition is filed and who is required to respond to the allegations. In this case, the Respondent was the Beaver Dam Estates Homeowners Association.

Tribunal

A general term for a body, including a court or administrative hearing office, that has the authority to judge or determine claims and disputes.

4 Key Lessons from One Homeowner’s Winning Fight Against His HOA

Introduction: When Your HOA Becomes Dysfunctional

For many homeowners, a Homeowners Association (HOA) is a background presence, collecting dues and ensuring community standards. But what happens when the HOA itself fails in its duties? When legally required meetings stop, financial transparency disappears, and the leadership becomes unresponsive, residents can feel powerless. It’s a common frustration that leaves homeowners wondering what recourse they have when the very organization meant to maintain order violates its own governing laws.

This was the exact situation faced by Jerry Wheeler, a resident of Beaver Dam Estates in Arizona. After years of his HOA failing to hold its legally required annual meeting, he decided he had enough. Instead of letting his frustration simmer, he took formal action, setting in motion a legal process that offers powerful lessons for any homeowner living in a planned community. His story is a clear example of how one determined individual can hold an association accountable.

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1. One Determined Homeowner Can Hold an Entire HOA Accountable

It can feel daunting to challenge an organization, but Jerry Wheeler’s case proves that a single person can be the catalyst for change. The core of his dispute extended beyond procedure into a fundamental issue of financial transparency. On June 8, 2017, Wheeler filed a petition because since moving in on April 1, 2014, no annual meeting had been held. His stated goal was clear: he wanted the HOA to convene a meeting to “review Respondent’s financial statements with the homeowners.”

Initially, the HOA president, Randy Hawk, responded to the petition by agreeing to hold a meeting. However, the execution faltered. A meeting scheduled for July 18, 2017, failed when only about ten people attended. Hawk then rescheduled for December 28, 2017. While Wheeler initiated the petition alone, he strengthened his case by presenting numerous written statements from other homeowners confirming no annual meetings had been held for several years. This demonstrates that one person’s courageous action, aimed at securing accountability and supported by the community, can successfully trigger the legal mechanisms designed to protect homeowners’ rights.

2. Annual Meetings Aren’t Just a Suggestion—They’re the Law

The core of Jerry Wheeler’s complaint wasn’t based on a simple grievance; it was rooted in a specific violation of Arizona state law. The Administrative Law Judge’s decision found that the Beaver Dam Estates HOA was in direct violation of a statute requiring annual meetings. This law is not a guideline or a best practice—it is a legal mandate.

For any homeowner in Arizona, the relevant section of the law is crystal clear:

A.R.S. § 33-1804(B)

Notwithstanding any provision in the community documents, all meetings of the members’ association and the board shall be held in this state. A meeting of the members’ association shall be held at least once each year…

This statute is a cornerstone of transparency and accountability for planned communities. It ensures that residents have a regular, guaranteed opportunity to hear from the board, review financials, elect new leadership, and have their voices heard. Understanding that this is a legal requirement—not just a courtesy—is critical knowledge for any homeowner.

3. Ignoring the Process Has Financial Consequences

The Beaver Dam Estates HOA’s strategy of inaction ultimately backfired, resulting in financial penalties. The association’s failure to appear at its own hearing on September 5, 2017, meant that Wheeler’s evidence was uncontested, leading directly to a default judgment and the resulting financial penalties. The judge’s final order wasn’t just a request to do better; it was a binding decision with specific consequences.

Because the judge granted the petitioner’s petition, the HOA was ordered to take three specific actions:

• Hold the legally required meeting as scheduled on December 28, 2017.

• Pay the Petitioner (Jerry Wheeler) back for his filing fee.

• Pay a civil penalty of $250.00 to the planned community hearing office fund.

This outcome makes it clear that avoiding legal and administrative responsibilities is not a viable strategy. The process is designed to proceed with or without the respondent’s participation, and ignoring it leads directly to mandated actions and financial penalties.

4. The System Can Work, Even Under Strange Circumstances

The proceedings in this case were complicated by unusual and unfortunate events, yet the legal framework proved resilient. After attempting to schedule the required meetings, the HOA’s president, Randy Hawk, passed away. The tribunal ordered the association to name a new representative, but it failed to do so. Compounding the issue, no one from the HOA showed up for the scheduled hearing.

Despite these significant obstacles—the death of the board’s president and the association’s complete failure to participate—the process did not grind to a halt. The Administrative Law Judge was able to conduct the hearing, review the uncontested evidence presented by Jerry Wheeler, make official Findings of Fact, and issue a final, binding order. This remarkable persistence shows that the administrative system is robust and designed to deliver a resolution, ensuring that a petitioner’s rights are upheld even when a respondent organization is in disarray.

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Conclusion: Know Your Rights

The case of Jerry Wheeler vs. Beaver Dam Estates is a powerful reminder that community living is governed by rules that apply to everyone—including the association itself. An HOA cannot simply cease to function or ignore its legal obligations without consequence. The systems in place, from state statutes to administrative hearings, are designed to provide a path for homeowners to seek and achieve recourse.

This case serves as an empowering example of how knowledge and determination can lead to accountability. It underscores the importance of understanding the specific laws that govern your community association. This case was in Arizona, but it raises a universal question: Do you know the specific laws that govern your own HOA, and is your board in compliance?

Case Participants

Petitioner Side

Jerry Wheeler (petitioner)

Respondent Side

Randy Hawk (president)
Beaver Dam Estates Homeowners Association

Neutral Parties

Suzanne Marwil (ALJ)
Office of Administrative Hearings
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Dan Gardner (HOA coordinator)

Paul Herbert vs. Blackstone at Vistancia Community Association

Posted on August 29, 2017 by [email protected]

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

James and Shawna Larson vs. Tempe Gardens Townhouse Corporation

Posted on August 24, 2017 by [email protected]

Case Summary

Case ID	17F-H1717038-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2017-12-11
Administrative Law Judge	Thomas Shedden
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	James and Shawna Larson	Counsel	Lisa M. Hanger
Respondent	Tempe Gardens Townhouse Corporation	Counsel	Nathan Tennyson

Alleged Violations

A.R.S. § 33-1255(C); CC&R sections 9 and 9(b)

Outcome Summary

The ALJ dismissed the petition, ruling that the HOA acted reasonably and had the authority under the CC&Rs to require the removal of the homeowner's patio cover for necessary painting and repairs. The ALJ determined that because the patio cover is a limited common element, the Petitioners must bear the cost of removal and reinstallation according to A.R.S. § 33-1255(C).

Why this result: Petitioners failed to prove the HOA violated CC&Rs or acted unreasonably, and statutory law assigned the expense burden for the limited common element to the homeowner.

Key Issues & Findings

Authority of HOA to mandate removal of homeowner's patio cover for maintenance and assignment of removal/reinstallation costs.

Petitioners challenged the Respondent HOA's authority and reasonableness in requiring them to remove their patio cover, a limited common element, for building painting and repair, and disputed the requirement that Petitioners bear the costs. The ALJ concluded that the HOA's plan was reasonable, the HOA had the authority under CC&R sections 9 and 9(b), and Petitioners must bear the cost of removal and reinstallation under A.R.S. § 33-1255(C).

Orders: Petitioners’ petition is dismissed. Respondent is deemed the prevailing party. Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1255(C)
CC&R section 9
CC&R section 9(b)
A.R.S. § 33-1212(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov

Analytics Highlights

Topics: HOA authority, limited common element, maintenance costs, patio cover, CC&Rs, statutory interpretation, dismissal, prevailing party

Additional Citations:

A.R.S. § 33-1255(C)
CC&R section 9
CC&R section 9(b)
A.R.S. § 33-1212(4)
Tierra Ranchos Homeowners Ass'n v. Kitchukov
A.R.S. § 32-2199
A.R.S. § 32-2199.02
A.R.S. § 41-1092.09
ARIZ. ADMIN. CODE § R2-19-119
Gutierrez v. Industrial Commission of Arizona

Video Overview

Audio Overview

Decision Documents

17F-H1717038-REL Decision – 605540.pdf

Uploaded 2026-04-24T11:05:44 (105.0 KB)

17F-H1717038-REL Decision – 583987.pdf

Uploaded 2026-04-24T11:05:48 (53.0 KB)

17F-H1717038-REL Decision – 585505.pdf

Uploaded 2026-04-24T11:05:53 (385.9 KB)

Briefing on Larson v. Tempe Gardens Townhouse Corporation

Executive Summary

This briefing synthesizes the legal dispute between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation (the “Respondent” or “HOA”). The core conflict centered on the HOA’s directive that the Larsons remove their wooden patio cover at their own expense to facilitate a community-wide building repair and painting project.

The case progressed through two distinct phases. Initially, an Administrative Law Judge (ALJ) recommended dismissing the Larsons’ petition for a lack of a “justiciable controversy,” reasoning that the HOA had not yet acted on its threat to remove the patio cover, rendering the dispute speculative. However, the Commissioner of the Department of Real Estate rejected this recommendation, finding the matter was “ripe for adjudication,” and ordered a full hearing on the merits.

In the final decision, a second ALJ dismissed the Larsons’ petition and ruled in favor of the HOA. The judge found the HOA’s plan to be reasonable and necessary for the proper and safe completion of the project, based on credible testimony from the project manager. The decision affirmed the HOA’s authority under its CC&Rs to require the removal of the structure. Crucially, the ruling established that the patio cover is a “limited common element” under Arizona law. Consequently, pursuant to Arizona Revised Statutes, the homeowners (the Larsons) are exclusively responsible for all costs associated with it, including its removal and potential reinstallation.

Procedural History and Jurisdictional Rulings

Initial Petition and Dismissal Recommendation

On June 16, 2017, James and Shawna Larson filed a petition with the Department of Real Estate against their HOA, alleging a violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs). However, the initial filing did not specify which provisions had been violated.

Upon inquiry, the Petitioners’ counsel admitted via email that no specific provision of the CC&Rs had yet been violated. Instead, their concern was that section 10(a) would be violated if the HOA acted on its threat to forcibly remove their patio cover and charge them for the cost.

This led to the “ORDER RECOMMENDING DISMISSAL FOR LACK OF JUSTICIABLE CONTROVERSY,” issued on August 25, 2017, by Administrative Law Judge Suzanne Marwil. The key findings of this order were:

• Speculative Harm: The Judge found that the HOA’s actions “have not yet been undertaken and our [are] speculative at this juncture.”

• Lack of Jurisdiction: The order stated that the Office of Administrative Hearings’ jurisdiction, per A.R.S. § 32-2199, is limited to adjudicating existing violations of community documents, not potential future ones.

• Misunderstanding by Both Parties: The order noted, “Both parties fundamentally misunderstand the limits of this Tribunal’s jurisdiction.” The Petitioners were seeking a ruling on a future action, while the Respondent was urging the Tribunal to find the Petitioners had violated the CC&Rs, which was not the subject of the petition.

• Recommended Forum: The Judge suggested that the appropriate forum for the Petitioners would be a declaratory judgment action in superior court.

Rejection of Dismissal and Re-Hearing

On August 31, 2017, Judy Lowe, the Commissioner of the Department of Real Estate, issued an “ORDER REJECTING RECOMMENDATION OF DISMISSAL.”

• The Commissioner rejected the ALJ’s finding that the matter lacked a justiciable controversy.

• The order cited a letter from the Respondent dated June 1, 2017, which posed the question: “Is the presence of the awning a violation of the Association’s governing documents?”

• This question was deemed sufficient to make the matter “ripe for adjudication.”

• The Commissioner requested that the hearing be rescheduled for a ruling on the matter. A re-hearing was subsequently conducted on November 20, 2017, before Administrative Law Judge Thomas Shedden.

Analysis of the Merits of the Dispute

The re-hearing focused on the substantive conflict: whether the HOA had the authority to compel the Larsons to remove their patio cover at their own expense for the maintenance project.

Respondent’s (HOA) Case

The HOA, consisting of 169 units, initiated a project to make necessary repairs to its twenty-five buildings and then have them painted. The HOA’s position was based on the following points:

• Legal Authority: The HOA asserted its authority under sections 9 and 9(b) of its CC&Rs, which state that the HOA is responsible for maintaining building exteriors and that “Any cooperative action necessary or appropriate to the proper maintenance and upkeep of the… [building] exteriors… shall be taken by the [Respondent].”

• Project Necessity: The project manager, Wayne King, provided testimony that the HOA’s board deemed credible and reasonable.

◦ Safety: King stated that all five bidding contractors required the patio covers to be removed to ensure a safe work environment as mandated by the Arizona Department of Occupational Safety and Health (OSHA).

◦ Logistics: Standard scaffolding would not fit without removing the covers, commercial scaffolding would not provide full access, a forklift was not viable due to overhead power lines, and allowing painters to walk on homeowner patio covers was unsafe.

◦ Quality of Work: The project involved sanding, power washing, and patching before painting to “do the job right.” Many covers had been improperly flashed, causing damage to the buildings that needed repair.

◦ Warranty: The paint company would not provide a warranty for the project if individual homeowners, such as the Larsons, were permitted to paint their own units.

Petitioners’ (Larsons’) Case

The Larsons, who purchased their unit in 1999 with the wooden patio cover already in place, contested the HOA’s demands.

• Challenge to Authority: The Petitioners argued that the HOA had no legal authority to demand the removal of their patio cover.

• Unreasonable Cost: They asserted that the cost of removal and reinstallation was unreasonable, submitting two bids:

◦ One bid quoted $1,250 to remove and dispose of the cover and $3,980 to remove and rebuild it with new wood.

◦ A second bid quoted $5,975 to remove and then replace the structure.

• Proposed Alternative: In a letter dated May 19, 2017, the Larsons offered to have the back of their unit painted at their own expense.

• Compromise Offer: During the November 20, 2017 hearing, after hearing the project manager’s testimony, Ms. Larson offered that they would agree not to reinstall the patio cover if the HOA would pay for its removal.

Final Administrative Law Judge Decision

On December 11, 2017, ALJ Thomas Shedden issued a final decision dismissing the Larsons’ petition and finding in favor of the Respondent, Tempe Gardens Townhouse Corporation.

Key Findings and Conclusions of Law

Finding/Conclusion

Details

Standard of Review

The HOA’s decisions regarding maintenance and repair are given deference, provided they act reasonably.

Reasonableness of HOA Action

Based on the “credible testimony” of Wayne King, the Judge found that the HOA’s proposed plan for repairing and painting the buildings, which required the removal of patio covers, was reasonable.

HOA Authority

CC&R sections 9 and 9(b) were found to be “sufficient to show that Respondent has the authority to remove Petitioners’ patio to complete the painting work.”

Patio Cover Classification

The Petitioners’ patio cover was legally classified as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4).

Cost Responsibility

The central issue of payment was decided by statute. The Judge concluded that under a “reasonable reading of ARIZ. REV. STAT. section 33-1255(C),” any common expense associated with a limited common element “shall be assessed exclusively against the units benefitted.”

Final Order

Based on these findings, the Administrative Law Judge ordered the following:

“The evidence of record supports a conclusion that Respondent has authority to require Petitioners to remove their patio cover to allow the building to be properly and safely painted, and that Petitioners are responsible for the cost to remove the patio cover and the cost to reinstall it should they choose to do so.”

The final order was that the Petitioners’ petition be dismissed, and the Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party.

Study Guide: Larson v. Tempe Gardens Townhouse Corporation

This study guide provides a comprehensive review of the administrative case between homeowners James and Shawna Larson and the Tempe Gardens Townhouse Corporation. It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms based on the provided legal documents.

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Short-Answer Quiz

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

1. Who were the primary parties involved in this case, and what was their relationship?

2. What was the initial reason given by Administrative Law Judge (ALJ) Suzanne Marwil for recommending the dismissal of the Larsons’ petition?

3. Why did the Commissioner of the Department of Real Estate, Judy Lowe, reject the initial recommendation for dismissal?

4. What was the central dispute that was ultimately decided in the November 20, 2017, hearing?

5. According to the final Administrative Law Judge Decision, what is the legal classification of the petitioners’ patio cover?

6. Which specific sections of the CC&Rs did the Respondent, Tempe Gardens Townhouse Corporation, cite as the basis for its authority?

7. What key reasons did project manager Wayne King provide to justify the necessity of removing the patio covers for the painting project?

8. Describe the significant difference in the cost estimates for removing and replacing the patio cover as presented by the Petitioners versus the Respondent’s project manager.

9. What was the final ruling regarding who was financially responsible for the removal and potential reinstallation of the patio cover?

10. What was the ultimate outcome of the Larsons’ petition following the final hearing, and which party was deemed the “prevailing party”?

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Answer Key

1. The primary parties were the Petitioners, homeowners James and Shawna Larson, and the Respondent, the Tempe Gardens Townhouse Corporation, which is their homeowner’s association (HOA). The dispute arose from the HOA’s plan to repair and paint the building exteriors.

2. ALJ Marwil initially recommended dismissal due to a “lack of justiciable controversy.” She found that the Petitioners had failed to cite any provision of the CC&Rs that the Respondent had currently violated, as the threatened action to remove the patio cover was speculative and had not yet occurred.

3. Commissioner Lowe rejected the dismissal because she found the matter was “ripe for adjudication.” Her decision was based on a June 1, 2017 letter from the Respondent that questioned whether “the presence of the awning [is] a violation of the Association’s governing documents,” which she interpreted as the Respondent alleging a violation.

4. The central dispute was whether the Tempe Gardens Townhouse Corporation had the authority to mandate that homeowners, specifically the Larsons, remove their patio covers at their own expense to facilitate a building repair and painting project.

5. The final decision classifies the Petitioners’ patio cover as a “limited common element” within the meaning of ARIZ. REV. STAT. section 33-1212(4). This classification was crucial to determining financial responsibility.

6. The Respondent cited sections 9 and 9(b) of the CC&Rs. Section 9(b) makes the Respondent responsible for maintaining building exteriors, and section 9 grants it the authority to take “Any cooperative action necessary or appropriate to the proper maintenance and upkeep” of those exteriors.

7. Wayne King testified that removal was necessary to properly and safely complete the work using scaffolding, as required by modern safety laws. He also stated that removal was needed to repair improperly flashed areas behind the covers and to ensure the painting contractor would provide a warranty for the project.

8. The Petitioners presented bids showing the cost to remove and rebuild the cover would be between $3,980 and $5,975. In contrast, Mr. King opined these estimates were very high and that the cost should be closer to $1,000 if existing materials were reused.

9. The final ruling, based on ARIZ. REV. STAT. section 33-1255(C), was that the Petitioners must bear the cost of removing the patio cover and, if they choose, the cost of reinstalling it. This is because the patio cover is a limited common element assigned specifically to their unit.

10. The final outcome was the dismissal of the Larsons’ petition. The Respondent, Tempe Gardens Townhouse Corporation, was deemed the prevailing party in the matter.

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Essay Questions

The following questions are designed for a more in-depth analysis. Use the provided documents to construct a detailed, evidence-based response.

1. Trace the procedural history of this case from the initial filing to the final decision. Discuss the key turning points, including the initial recommendation for dismissal, its rejection by the Commissioner, and the reasoning behind the final judgment.

2. Analyze the legal arguments presented by both the Petitioners and the Respondent in the November 2017 hearing. On what specific statutes and CC&R provisions did each side rely, and how did the Administrative Law Judge ultimately interpret these documents?

3. Evaluate the role of expert testimony in this case, specifically focusing on the evidence provided by project manager Wayne King. How did his testimony regarding safety, project requirements, and cost estimates influence the Administrative Law Judge’s findings on the reasonableness of the Respondent’s actions?

4. Discuss the legal concept of a “limited common element” as defined and applied in the source documents. Explain how this classification was central to the final decision regarding financial responsibility for the patio cover’s removal and reinstallation.

5. The initial Administrative Law Judge found no “justiciable controversy,” while the Commissioner later found the matter “ripe for adjudication.” Based on the details in all three documents, explain the arguments for both positions and analyze why the case ultimately proceeded to a full hearing.

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Glossary of Key Terms

Definition from Source Context

Administrative Law Judge (ALJ)

An official in the Office of Administrative Hearings who adjudicates complaints regarding condominium and planned community documents and ensures compliance with relevant statutes.

Covenants, Conditions, and Restrictions. The documents that govern the community and are described as a contract between the homeowner’s association and the homeowners.

Justiciable Controversy

A real dispute that a tribunal has the authority to resolve. The initial petition was recommended for dismissal for a lack of a justiciable controversy because the Respondent’s threatened actions were deemed speculative.

Limited Common Element

A legal classification for property defined under ARIZ. REV. STAT. section 33-1212(4). In this case, the Petitioners’ patio cover was classified as such, meaning any common expense associated with its maintenance, repair, or replacement is assessed against the unit to which it is assigned.

Petition

The formal document filed with the Department of Real Estate to initiate a complaint against a homeowner’s association.

Petitioner

The party that files a petition initiating a legal action. In this case, the homeowners James and Shawna Larson.

Preponderance of the Evidence

The standard of proof required in this matter, 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.”

Prevailing Party

The party that is successful in a legal dispute. In the final order, the Respondent was deemed the prevailing party.

Respondent

The party against whom a petition is filed. In this case, the Tempe Gardens Townhouse Corporation.

Ripe for Adjudication

A term used by the Commissioner of the Department of Real Estate to indicate that a dispute is ready to be formally heard and decided by the Administrative Law Judge.

Select all sources

583987.pdf

585505.pdf

605540.pdf

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17F-H1717038-REL-RHG

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These documents chronicle the legal dispute between James and Shawna Larson (Petitioners) and the Tempe Gardens Townhouse Corporation (Respondent) concerning the removal of the Larsons’ patio cover for building maintenance. Initially, an Administrative Law Judge (ALJ) recommended dismissal because the Petitioners did not allege a current violation of the governing documents, thus lacking a justiciable controversy since the association had only threatened action. However, the Department of Real Estate Commissioner rejected this recommendation, asserting that a violation of the governing documents was alleged by the Respondent, making the matter ripe for adjudication. Following a rehearing, a different ALJ issued a final decision finding that the Respondent acted reasonably in requiring the patio cover removal for safe and proper painting and repairs, concluding that the Petitioners must bear the cost of removal and reinstallation as the cover is a limited common element.

Case Participants

Petitioner Side

James Larson (petitioner)
Shawna Larson (petitioner)
Lisa M. Hanger (attorney)
Counsel for Petitioners

Respondent Side

Nathan Tennyson (attorney)
Brown Alcott PLLC
Counsel for Respondent Tempe Gardens Townhouse Corporation
Wayne King (witness)
Project manager hired by Respondent for the painting project; provided testimony

Neutral Parties

Suzanne Marwil (ALJ)
Office of Administrative Hearings
Authored Recommended Order Dismissal dated August 25, 2017
Thomas Shedden (ALJ)
Office of Administrative Hearings
Authored Administrative Law Judge Decision dated December 11, 2017
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Rejected Recommendation of Dismissal
Dan Gardner (HOA coordinator)
Transmitted documents (Order Rejecting Recommendation of Dismissal)

Other Participants

Chris Morga (contractor)
Jacob and Co.
Mentioned as a vendor who could remove patio covers

Thomas P. Satterlee vs. Green Valley Country Club Vistas II Property

Posted on July 6, 2017 by [email protected]

Case Summary

Case ID	17F-H1716018-REL, 17F-H1716022-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2017-07-07
Administrative Law Judge	Suzanne Marwil
Outcome	loss
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Thomas Satterlee	Counsel	—
Respondent	Green Valley Country Club Vistas II Property Owners Association	Counsel	James Robles

Alleged Violations

A.R.S. § 33-1802(4)

Outcome Summary

The Petitions were dismissed with prejudice because the Respondent, Green Valley Country Club Vistas II Property Owners Association, did not meet the statutory definition of a 'planned community' under A.R.S. § 33-1802(4), thereby denying the Office of Administrative Hearings and the Department of Real Estate subject matter jurisdiction.

Why this result: Lack of subject matter jurisdiction based on the statutory definition of a 'planned community'.

Key Issues & Findings

Subject Matter Jurisdiction regarding definition of Planned Community

The Respondent moved to vacate claiming the Office of Administrative Hearings lacked subject matter jurisdiction because the Association was not a planned community as defined by A.R.S. § 33-1802(4). The Respondent did not own or operate real estate or have a roadway easement or covenant. The ALJ agreed that OAH lacked jurisdiction.

Orders: The Petitions in these consolidated matters are recommended to be dismissed with prejudice. This recommendation was adopted as a Final Order by the Commissioner.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

A.R.S. § 33-1802(4)
Ariz. Bd. of Regents for & on Behalf of Univ. of Ariz. v. State ex rel. State of Ariz. Pub. Safety Ret. Fund Manager Adm’r
Swichtenberg v. Jack Brimer

Analytics Highlights

Topics: jurisdiction, planned community definition, A.R.S. 33-1802(4), dismissal with prejudice

Additional Citations:

A.R.S. § 33-1802
Sunrise Desert Vistas v. Salas

Video Overview

Audio Overview

Decision Documents

17F-H1716018-REL Decision – 622756.pdf

Uploaded 2026-04-24T11:01:50 (85.6 KB)

17F-H1716018-REL Decision – 574052.pdf

Uploaded 2026-04-24T11:01:58 (91.5 KB)

17F-H1716018-REL Decision – 575056.pdf

Uploaded 2026-04-24T11:02:06 (566.7 KB)

Briefing Document: Satterlee v. Green Valley Country Club Vistas II POA

Executive Summary

This briefing document analyzes the administrative legal proceedings in the case of Thomas Satterlee versus the Green Valley Country Club Vistas II Property Owners Association (POA). The central issue was a successful jurisdictional challenge by the Respondent POA, leading to the dismissal of petitions filed by Mr. Satterlee.

The Administrative Law Judge (ALJ) and the Arizona Department of Real Estate Commissioner concluded that they lacked subject matter jurisdiction because the Respondent POA does not meet the statutory definition of a “planned community” under Arizona Revised Statutes (A.R.S.) § 33-1802(4). This definition requires an association to own and operate real estate or hold an easement or covenant to maintain roadways. Both parties agreed that the Respondent POA did not meet these criteria.

The Petitioner’s arguments—that jurisdiction should be inferred from a prior case and from the Respondent’s own community documents—were rejected. The ALJ’s decision emphasized the legal principle that subject matter jurisdiction is dictated by statute, cannot be waived by parties, and cannot be conferred by estoppel or prior administrative oversight. The petitions were ultimately dismissed with prejudice, with the Petitioner retaining the right to pursue action in a court of competent jurisdiction.

Case Overview

This matter involves consolidated petitions brought before the Arizona Office of Administrative Hearings (OAH) and finalized by the Arizona Department of Real Estate.

Parties and Legal Representation

Representation

Petitioner

Thomas Satterlee

Represented himself

Respondent

Green Valley Country Club Vistas II Property Owners Association

Represented by James Robles, Esq.

Adjudicator

Administrative Law Judge Suzanne Marwil

Office of Administrative Hearings

Final Authority

Commissioner Judy Lowe

Department of Real Estate

Note: The Petitioner argued that Mr. Robles was not authorized to represent the Respondent. The ALJ determined that the filing of a Notice of Appearance was sufficient for the proceeding and that concerns over the propriety of the representation could be addressed in another forum.

Case Identification

Identifier

Details

Consolidated OAH Numbers

17F-H1716022-REL & 17F-H1716018-REL

Consolidated Dept. of Real Estate Docket Numbers

17F-H1716022-REL & 17F-H1716018-REL

Consolidated Dept. of Real Estate Case Numbers

HO 17-16/022 & HO 17-16/018

Key Dates

• March 15, 2017: Respondent files a motion to vacate, challenging subject matter jurisdiction.

• June 27, 2017: Oral argument held on the jurisdictional motion.

• July 6, 2017: ALJ Suzanne Marwil issues a decision recommending dismissal.

• July 7, 2017: Commissioner Judy Lowe issues a Final Order adopting the ALJ’s decision.

Jurisdictional Challenge and Arguments

The case pivoted from a substantive hearing to a dispositive oral argument focused exclusively on the OAH’s authority to hear the dispute.

Respondent’s Motion to Vacate

On March 15, 2017, the Respondent moved to vacate the proceedings, asserting that the OAH lacked subject matter jurisdiction. The core of this argument was that the Green Valley Country Club Vistas II POA did not qualify as a “planned community” under the definition provided in A.R.S. § 33-1802(4). The statute requires such a community’s association to either own and operate real estate or hold a roadway easement or covenant.

During the oral argument on June 27, 2017, a critical fact was established: both the Petitioner and the Respondent agreed that the association did not currently own or operate real estate or possess a roadway easement or covenant.

Petitioner’s Arguments for Jurisdiction

Despite agreeing with the central fact, the Petitioner urged the OAH to exercise jurisdiction based on two main arguments:

1. Prior Precedent: A former Administrative Law Judge, Douglas, had previously exercised jurisdiction over a petition filed by Mr. Satterlee against the same Respondent in docket number 15F-H1515008-BFS.

2. Community Documents: The Respondent’s own community documents contemplate being bound by the laws governing planned communities, which, the Petitioner argued, should confer jurisdiction upon the OAH.

Administrative Law Judge’s Decision and Rationale

ALJ Suzanne Marwil’s decision methodically dismantled the Petitioner’s arguments and affirmed that jurisdiction was statutorily barred.

Statutory Interpretation of “Planned Community”

The decision centered on the plain language of A.R.S. § 33-1802(4).

• The Definition: The statute defines a “planned community” as a development where an association of owners owns and operates real estate or holds an easement or covenant to maintain roadways for the purpose of managing or improving the property.

• Statutory History: The statute was amended in 2014. The ALJ noted that prior to the amendment, the definition only required ownership of real estate. However, the Respondent association failed to meet the definition under either the pre- or post-2014 versions of the law.

• Rejection of Flexible Interpretation: The ALJ rejected the Petitioner’s invitation to use the statute’s introductory phrase, “unless the context otherwise requires,” to expand the definition. Citing the appellate case Sunrise Desert Vistas v. Salas, the decision states that this phrase does not permit a court or agency to “disregard the language of a statute or the legislative intent embodied by that language.” Interpreting the statute to require ownership and operation of real property is “neither mechanical nor rigid” but simply an application of its plain meaning.

Rejection of Estoppel and Prior Case Jurisdiction

The ALJ addressed the Petitioner’s argument regarding the prior case and the non-waivable nature of subject matter jurisdiction.

• Analysis of Prior Decision: Upon reviewing the earlier decision by Judge Douglas (15F-1515008-BFS), ALJ Marwil found that while it contained “standard boilerplate language regarding jurisdiction,” the issue of subject matter jurisdiction was never raised by any party and, therefore, was not considered by the judge.

• Jurisdiction Cannot Be Waived: The decision strongly affirms a core legal doctrine: a lack of subject matter jurisdiction is a fatal flaw that cannot be waived by the parties or overlooked. The ALJ states, “Administrative decisions that reach beyond an agency’s statutory power are void.”

• Jurisdiction Cannot Be Conferred by Estoppel: Citing legal precedent (Swichtenberg v. Jack Brimer), the decision clarifies that jurisdiction cannot be conferred upon a court or agency by the estoppel of a party. The fact that the Respondent may have previously submitted to OAH jurisdiction does not grant the OAH authority where none exists by statute. As stated in the decision, “the statutes, not the parties, lay out the boundaries of administrative jurisdiction.”

Final Disposition and Order

Based on the finding that the OAH lacked jurisdiction, the following actions were taken:

• Recommendation: That the consolidated petitions be dismissed with prejudice.

• Petitioner’s Recourse: The decision explicitly noted that the Petitioner “remains free, however, to file an action in a court of competent jurisdiction as specified by Respondent’s community documents.”

• Effective Date: The order would become effective 40 days after certification by the Director of the OAH.

• Adoption of Decision: Pursuant to A.R.S. § 41-1092.08, Commissioner Judy Lowe adopted the ALJ’s decision in full.

• Final Action: The Commissioner accepted the recommendation and ordered that the petitions be dismissed with prejudice. This order constituted a final administrative action and was effective immediately.

• Further Action: The Final Order specified that it was binding unless a party requested a rehearing within 30 days. It also informed the parties of their right to appeal by filing a complaint for judicial review, noting that the order would not be stayed unless a stay was granted by the reviewing court.

Study Guide: Satterlee v. Green Valley Country Club Vistas II POA

This guide provides a detailed review of the administrative legal case involving Thomas Satterlee and the Green Valley Country Club Vistas II Property Owners Association. It covers the core legal issues, arguments, and final rulings as detailed in the Administrative Law Judge Decision and the Final Order from the Department of Real Estate.

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Short-Answer Quiz

Instructions: Answer the following questions in 2-3 sentences based on the information provided in the case documents.

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

2. What was the central legal question that Administrative Law Judge Suzanne Marwil had to decide?

3. On what grounds did the Respondent, Green Valley Country Club Vistas II Property Owners Association, argue that the case should be dismissed?

4. According to Arizona Revised Statute (A.R.S.) § 33-1802(4), what specific criteria must an entity meet to be legally defined as a “planned community”?

5. What two key arguments did the Petitioner, Thomas Satterlee, present to persuade the Office of Administrative Hearings to accept jurisdiction over his case?

6. How did the Administrative Law Judge address the Petitioner’s point about a previous case presided over by Judge Douglas?

7. Explain the legal principle that “subject matter jurisdiction cannot be waived” and how it was applied in this decision.

8. What was the final recommendation of the Administrative Law Judge, and what does the term “with prejudice” signify in this context?

9. What final action was taken by the Commissioner of the Department of Real Estate regarding the Administrative Law Judge’s decision?

10. Although the petitions were dismissed, what alternative path was the Petitioner advised he could still pursue?

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Answer Key

1. The primary parties were Thomas Satterlee, who served as the Petitioner, and the Green Valley Country Club Vistas II Property Owners Association, which was the Respondent. The Petitioner is the party who brought the case, and the Respondent is the party against whom the case was filed.

2. The central legal question was whether the Office of Administrative Hearings (OAH) had subject matter jurisdiction over the petitions. The case hinged on determining if the Respondent association qualified as a “planned community” under Arizona law, which would grant the OAH authority to hear the dispute.

3. The Respondent argued for dismissal by filing a motion to vacate, alleging that the OAH lacked subject matter jurisdiction. They contended they were not a “planned community” as defined by A.R.S. § 33-1802(4) because the association did not own or operate real estate or hold a roadway easement or covenant.

4. To be defined as a “planned community,” an entity must be a real estate development that includes real estate owned and operated by, or holds an easement or covenant to maintain roadways by, a nonprofit corporation or association of owners. The owners of separate lots are mandatory members required to pay assessments to the association for these purposes.

5. The Petitioner argued that the OAH should exercise jurisdiction because a former Administrative Law Judge (Douglas) had previously done so in a different case involving the same parties. He also argued that the Respondent’s own community documents contemplate being bound by the law governing planned communities.

6. The Administrative Law Judge reviewed the prior decision by Judge Douglas and found that the issue of subject matter jurisdiction had not been raised or considered in that case. Therefore, Judge Douglas’s prior action did not set a binding precedent on the jurisdictional question.

7. This principle means that a court’s or agency’s fundamental authority to hear a type of case is determined by statute and cannot be created by the agreement, consent, or failure to object (estoppel) of the parties involved. In this case, even if the parties had previously acted as if the OAH had jurisdiction, the judge was required to dismiss the case because the statutory requirements for jurisdiction were not met.

8. The Administrative Law Judge recommended that the petitions be dismissed “with prejudice.” This means the dismissal is final and the Petitioner is barred from filing the same claim again within the same administrative forum (the OAH).

9. The Commissioner of the Department of Real Estate, Judy Lowe, adopted the Administrative Law Judge’s decision in full. The Commissioner issued a Final Order on July 7, 2017, formally dismissing the petitions with prejudice.

10. The Petitioner was advised that he remained free to file an action in a court of competent jurisdiction. This means he could pursue his claims against the Respondent in the appropriate state court system as specified by the Respondent’s community documents.

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Essay Questions

Instructions: Consider the following questions for a more in-depth analysis of the case. Formulate a comprehensive response based solely on the provided source material.

1. Analyze the legal reasoning used by Administrative Law Judge Marwil to reject the Petitioner’s arguments. Discuss the specific statutes and case law she cited (e.g., Sunrise Desert Vistas v. Salas) and explain how they supported her conclusion that the Office of Administrative Hearings lacked subject matter jurisdiction.

2. Discuss the significance of the 2014 amendment to A.R.S. § 33-1802. How did the pre-2014 and post-2014 definitions of a “planned community” differ, and why was the Respondent found not to qualify under either definition?

3. Explore the legal concept of subject matter jurisdiction as presented in the case documents. Explain why it is a critical issue that cannot be waived by the parties or established by estoppel, citing the legal authorities mentioned in the decision (Ariz. Bd. of Regents and Swichtenberg).

4. Evaluate the Petitioner’s arguments for jurisdiction. Why might he have believed that the previous ruling by Judge Douglas and the language in the community’s documents were sufficient grounds for the OAH to hear his case, and why were these arguments ultimately unpersuasive from a legal standpoint?

5. Trace the procedural history of the case from the filing of the Respondent’s motion to the Final Order by the Commissioner of the Department of Real Estate. Describe each key step and the role played by the Petitioner, the Respondent, the Administrative Law Judge, and the Commissioner.

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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 often issues a recommended decision to an agency head. In this case, Suzanne Marwil.

A.R.S.

Abbreviation for Arizona Revised Statutes, which is the complete body of laws enacted by the Arizona State Legislature.

Commissioner of the Department of Real Estate

The head of the Arizona Department of Real Estate, who has the authority to adopt, reject, or modify the recommended decisions of an ALJ. In this case, Judy Lowe.

Consolidated Matters

Two or more separate legal cases (in this instance, No. 17F-H1716022-REL and No. 17F-H1716018-REL) that are combined into a single proceeding for efficiency.

Estoppel

A legal principle that prevents a party from asserting a claim or right that contradicts what they have previously stated or agreed to by their own actions. The decision notes jurisdiction cannot be conferred by estoppel.

Motion to Vacate

A formal request made to a court or administrative body to cancel or set aside a prior judgment, order, or hearing.

Office of Administrative Hearings (OAH)

The Arizona state agency responsible for conducting impartial administrative hearings for other state agencies.

Petitioner

The party who initiates a formal complaint or petition, bringing a case before a court or administrative body. In this case, Thomas Satterlee.

Planned Community

As defined by A.R.S. § 33-1802(4), a real estate development where an association owns and operates real estate or holds an easement or covenant to maintain roadways, and where property owners are mandatory, assessment-paying members.

Recommended Order

The proposed decision issued by an Administrative Law Judge following a hearing or argument. This order is not final until it is adopted by the relevant agency director or commissioner.

Respondent

The party against whom a petition or complaint is filed. In this case, Green Valley Country Club Vistas II Property Owners Association.

Subject Matter Jurisdiction

The legal authority of a court or administrative agency to hear and decide a particular type of case. Its absence is a fatal flaw that cannot be overlooked or waived.

With Prejudice

A legal term for the dismissal of a case, indicating that the action is final and the petitioner is barred from bringing the same case on the same grounds before that same body again.

⚖️

17F-H1716018-REL

2 sources

These sources document the administrative legal proceedings in the case of Thomas Satterlee v. Green Valley Country Club Vistas II Property Owners Association. The initial source contains the Administrative Law Judge Decision from the Arizona Office of Administrative Hearings, which recommends the dismissal of Satterlee’s petitions due to a lack of subject matter jurisdiction. This lack of jurisdiction is based on the finding that the Property Owners Association does not meet the statutory definition of a “planned community” because it does not own or operate real estate or have a roadway easement or covenant, which are requirements under Arizona Revised Statute § 33-1802. The second source, a Final Order from the Arizona Department of Real Estate, formally adopts the Administrative Law Judge’s decision, accepting the recommendation that the consolidated matters be dismissed with prejudice. Both documents confirm that Satterlee’s only recourse is to pursue his claims in a court of competent jurisdiction.

Case Participants

Petitioner Side

Thomas Satterlee (petitioner)
Represented himself

Respondent Side

James A. Robles (attorney)
Green Valley Country Club Vistas II Property Owners Association

Neutral Parties

Suzanne Marwil (ALJ)
Judy Lowe (Commissioner)
Department of Real Estate
Abby Hansen (HOA Coordinator)
Handled mailing of the Final Order and addressed requests for rehearing
Douglas (former ALJ)
Former ALJ who exercised jurisdiction in a prior related case (15F-H1515008-BFS)

Jay Janicek vs. Sycamore Vista No. 8 HOA

Posted on March 14, 2017 by [email protected]

Case Summary

Case ID	17F-H1716019-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2017-03-14
Administrative Law Judge	Suzanne Marwil
Outcome	The Petitioner's petition was granted. The HOA violated A.R.S. § 33-1817 by invalidly adopting the 'Declaration of Scrivener's Error' (Exhibit C) as an amendment without the required lot owner vote. However, the $10.00 annual increased assessment that Petitioner objected to was permitted to stand because the authority for differential assessments was established by the valid First Amendment to the Declaration, independent of the invalid Exhibit C. The HOA was ordered to refund the Petitioner's $500 filing fee.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Jay Janicek	Counsel	—
Respondent	Sycamore Vista No. 8 HOA	Counsel	Evan Thomson, Esq.

Alleged Violations

A.R.S. § 33-1817

Outcome Summary

The Petitioner's petition was granted. The HOA violated A.R.S. § 33-1817 by invalidly adopting the 'Declaration of Scrivener's Error' (Exhibit C) as an amendment without the required lot owner vote. However, the $10.00 annual increased assessment that Petitioner objected to was permitted to stand because the authority for differential assessments was established by the valid First Amendment to the Declaration, independent of the invalid Exhibit C. The HOA was ordered to refund the Petitioner's $500 filing fee.

Why this result: Petitioner objected to the increased assessment resulting from Exhibit C, but the Tribunal determined that Respondent had the right to impose the increased assessment pursuant to the language of Section 6.8 in the valid First Amendment to the Declaration, regardless of the invalidity of Exhibit C.

Key Issues & Findings

Improper Amendment of Declaration (Declaration of Scrivener's Error)

Petitioner claimed Respondent HOA improperly adopted a Declaration of Scrivener's Error (Exhibit C) to revise the definition of developed/undeveloped lots, arguing it was a substantive amendment requiring a 75% lot owner vote, which Respondent failed to obtain.

Orders: The Tribunal found that Exhibit C constituted an amendment and Respondent violated A.R.S. § 33-1817 by adopting it without a vote. Exhibit C was deemed invalid, but this invalidity did not nullify the subsequent assessment increase, which was authorized by a prior, valid declaration amendment. Respondent was ordered to refund the filing fee.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 33-1817
A.R.S. § 32-2199 et seq.

Analytics Highlights

Topics: HOA Declaration Amendment, Scrivener's Error, Assessments, Statutory Violation

Additional Citations:

A.R.S. § 33-1817
A.R.S. § 32-2199.02
A.R.S. § 33-1811

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Video Overview

Audio Overview

Decision Documents

17F-H1716019-REL Decision – 551057.pdf

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17F-H1716019-REL Decision – 559875.pdf

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17F-H1716019-REL Decision – 551057.pdf

Uploaded 2026-01-23T17:18:45 (83.7 KB)

17F-H1716019-REL Decision – 559875.pdf

Uploaded 2026-01-23T17:18:51 (794.0 KB)

Briefing Document: Janicek v. Sycamore Vista No. 8 HOA

Executive Summary

This briefing document analyzes the administrative legal dispute between petitioner Jay Janicek and respondent Sycamore Vista No. 8 Homeowners Association (HOA), culminating in the case No. 17F-H1716019-REL. The core of the conflict was the HOA Board’s attempt to amend its governing Declaration via a “Declaration of Scrivener’s Error” without the required 75% vote from lot owners. This action was intended to reinsert a definition of “Completed Lots” that had been omitted from a 2009 amendment and was followed by a $10 annual assessment increase on developed lots.

The Administrative Law Judge (ALJ) ultimately ruled in favor of the petitioner, granting his petition and invalidating the “Declaration of Scrivener’s Error.” The judge found that the change was a substantive amendment, not a correction of a clerical error, and the Board’s unilateral action violated Arizona state law (A.R.S. § 33-1817). However, in a critical distinction, the ALJ ruled that the $10 assessment increase on developed lots was permissible and should stand, as the authority to set different rates for completed and uncompleted lots was already established in the valid 2009 First Amendment to the Declaration.

The judge also rejected the petitioner’s conflict of interest claim against three Board members with financial ties to the developer, deeming the petitioner’s interpretation of the relevant statute (A.R.S. § 33-1811) to be overbroad. The final order, adopted by the Arizona Department of Real Estate Commissioner, required the HOA to pay the petitioner’s $500 filing fee and to comply with state statutes regarding amendments and conflicts of interest in the future.

Case Details

Details

Case Name

Jay Janicek, Petitioner, vs. Sycamore Vista No. 8 HOA, Respondent

Case Number

HO 17-16/019

Docket Number

17F-H1716019-REL

Jurisdiction

Office of Administrative Hearings / Arizona Department of Real Estate

Petitioner

Jay Janicek (appeared personally)

Respondent

Sycamore Vista No. 8 HOA (represented by Evan Thomson, Esq.)

Administrative Law Judge

Suzanne Marwil

Hearing Date

March 2, 2017

ALJ Decision Date

March 14, 2017

Final Order Date

March 16, 2017

Commissioner

Judy Lowe, Commissioner, Arizona Department of Real Estate

Background and Core Dispute

The conflict originated from changes to the Sycamore Vista No. 8 HOA’s Declaration of Covenants, Conditions, Restrictions and Easements (Declaration).

• 2005 Declaration: The original “2005 Amended and Restated Declaration” contained Section 6.8, which established a uniform assessment rate for all lots. Crucially, it exempted the Declarant and Developer from payments on any property except for “Completed Lots.” This section provided a specific definition for “Completed Lots,” describing them as any lot with a dwelling unit ready for occupancy.

• 2009 First Amendment: On December 4, 2008, after securing a vote from 75% of lot owners, the HOA adopted the “First Amendment to the 2005 Declaration.” This amendment deleted the original Section 6.8 in its entirety and replaced it with new language stating: “annual dues may be assessed at one uniform rate for Completed Lots and a different uniform rate for Uncompleted Lots.” This amendment, however, omitted the definition of a “Completed Lot” that was present in the 2005 version.

• Seven-Year Period: For seven years following the 2009 amendment, the revised Section 6.8 remained unchanged, without the specific definition.

The “Declaration of Scrivener’s Error”

In June or July 2016, the HOA Board proposed a “Declaration of Scrivener’s Error” to address the omitted definition.

• Board’s Position: The Respondent, represented by its president Steven Russo, argued that the purpose of the declaration was simply to correct a clerical error by reinserting the definition of a developed versus undeveloped lot, which was “inadvertently omitted” from the 2009 First Amendment. The Board stated it was acting on the advice of its legal counsel.

• Petitioner’s Position: Mr. Janicek contended that this declaration was not a correction of a minor error but was a substantive change to the Declaration. As such, he argued it required the approval of 75% of the lot owners, a process that was not followed.

• Adoption: On August 3, 2016, the Board adopted the Declaration of Scrivener’s Error by a 3-2 vote. Petitioner Janicek and another Board member representing developed lot owners voted against the measure.

• Immediate Consequence: Following the adoption, the Board voted to increase the annual assessment for developed lot owners by $10.00, while the assessment for undeveloped lots remained unchanged. This action prompted Mr. Janicek to file his petition.

Allegations of Fiduciary Duty and Conflict of Interest

Petitioner Janicek accused the Respondent of a violation of its fiduciary duty and a conflict of interest. He noted that three members of the Board had a financial interest in NT Properties, the company that owned the community’s undeveloped lots. These lots directly benefited from the assessment structure that placed a higher burden on developed lots.

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision, issued on March 14, 2017, contained three central conclusions of law that addressed the distinct issues raised in the petition.

1. The “Scrivener’s Error” was an Invalid Amendment

The judge found decisively in favor of the petitioner on the core issue of the amendment process.

• Substantive Change, Not Clerical Error: The Tribunal found that the change constituted an amendment to the Declaration, not a correction of a simple clerical error.

• Violation of A.R.S. § 33-1817: The judge ruled that the procedure for amending the Declaration requires a vote by the lot owners, as specified in the Declaration and state law. The HOA violated this statute by attempting to amend the document via a simple Board vote.

• Key Judicial Reasoning: The judge noted that the same section had been properly amended by a homeowner vote in 2009. The ruling states, “after a period of seven years, it defies logic to suggest that a further change to section was simply a clerical error.”

• Conclusion: The Declaration of Scrivener’s Error (Exhibit C) was declared invalid and could not operate to amend the Declaration.

2. The Assessment Increase Was Valid

Despite invalidating the method used by the Board, the judge upheld the Board’s right to implement the assessment increase.

• Existing Authority: The ruling stated that the invalidity of Exhibit C “does not implicate Respondent’s right to impose an increased assessment on the developed lots.”

• Basis in 2009 Amendment: The judge found that the language of the valid 2009 First Amendment—which expressly states that “annual dues may be assessed at one uniform rate for Completed Lots and a different uniform rate for Uncompleted Lots”—provided the Board with sufficient authority to set differential rates.

• Conclusion: The raised assessment was allowed to stand.

3. Conflict of Interest Claim Rejected

The Tribunal rejected the petitioner’s argument that Board members with ties to NT Properties had a conflict of interest under A.R.S. § 33-1811.

• “Overbroad” Interpretation: The judge found the petitioner’s interpretation of the conflict-of-interest statute to be “overbroad.”

• Rationale: The ruling stated that this interpretation “ignores that make-up of the Board as outlined in the Declaration and disregards the express language permitting the Board to assess annual dues.”

• Conclusion: The Board members were not required to declare a conflict of interest and were permitted to vote on the issue.

Final Order

The petition filed by Jay Janicek was granted. The Administrative Law Judge’s decision was officially adopted by the Commissioner of the Arizona Department of Real Estate in a Final Order dated March 16, 2017. The final order mandated the following:

• The Sycamore Vista No. 8 HOA must pay the petitioner, Jay Janicek, the $500.00 filing fee.

• The HOA must comply with the applicable provisions of Arizona Revised Statutes § 33-1817 (regarding the proper procedure for amending a declaration) and § 33-1811 (regarding conflicts of interest) in the future.

Study Guide: Janicek v. Sycamore Vista No. 8 HOA

This study guide provides a review of the administrative law case Janicek v. Sycamore Vista No. 8 HOA (No. 17F-H1716019-REL). It includes a short-answer quiz, an answer key, suggested essay questions, and a glossary of key terms to aid in understanding the facts, arguments, and legal conclusions of the case.

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 complete sentences, based on the information provided in the source documents.

1. Who were the primary parties in this case, and what were their roles?

2. What was the central action taken by the Respondent’s Board that led to this legal dispute?

3. What was the Petitioner’s primary legal argument against the “Declaration of Scrivener’s Error”?

4. How did the Respondent justify its use of a “Declaration of Scrivener’s Error” instead of a full vote by lot owners?

5. Describe the conflict of interest alleged by the Petitioner against the Respondent’s Board.

6. How did the 2009 First Amendment alter Section 6.8 of the HOA’s 2005 Declaration?

7. What was the direct financial consequence for developed lot owners following the Board’s actions in 2016?

8. What was the Administrative Law Judge’s final ruling regarding the validity of the “Declaration of Scrivener’s Error”?

9. Despite invalidating the Board’s action, what did the Judge decide regarding the increased assessment on developed lots?

10. What was the final order issued in the case, and what was the Respondent required to do?

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Answer Key

1. The primary parties were Petitioner Jay Janicek and Respondent Sycamore Vista No. 8 HOA. Janicek, a lot owner, brought the petition against the Homeowner’s Association to challenge a decision made by its Board of Directors.

2. The Respondent’s Board, by a 3-2 vote, adopted a “Declaration of Scrivener’s Error” on August 3, 2016. This action was intended to reinsert a definition of “Completed Lots” that had been omitted from a 2009 amendment to the HOA’s governing documents.

3. The Petitioner argued that the “Declaration of Scrivener’s Error” was not a simple correction but a substantive change to the Declaration. As such, he contended it was an amendment that required approval by a vote of seventy-five percent of the lot owners, not just a Board vote.

4. The Respondent argued that the “Declaration of Scrivener’s Error” was merely intended to correct a clerical error by reinserting the definition of developed versus undeveloped lots, which was inadvertently deleted from the 2009 revision. The Board’s President, Steven Russo, testified that they acted on the recommendation of their legal counsel.

5. The Petitioner alleged a conflict of interest because three members of the Respondent’s Board had a financial interest in NT Properties, the company that owns the undeveloped lots. The Petitioner argued that these members stood to benefit from assessment changes that favored undeveloped lots.

6. The 2009 First Amendment deleted the original Section 6.8 and replaced it with new language. This new language explicitly allowed annual dues to be assessed at different uniform rates for “Completed Lots” and “Uncompleted Lots,” a distinction not present in the original uniform rate structure.

7. Following the adoption of the “Declaration of Scrivener’s Error,” the Board voted to increase the annual assessment for developed lot owners by $10.00. The assessment for undeveloped lots was left unchanged.

8. The Administrative Law Judge ruled that the “Declaration of Scrivener’s Error” was an invalid amendment to the Declaration. The Judge found that it was a substantive change that required a vote of the lot owners as specified in A.R.S. §33-1817, and that calling it a correction of a clerical error after seven years “defies logic.”

9. The Judge ruled that the increased assessment on developed lots could stand. The ruling was based on the language of the valid 2009 First Amendment, which expressly permitted the HOA to assess different rates for completed and uncompleted lots, independent of the invalidated “Declaration of Scrivener’s Error.”

10. The final order granted the Petitioner’s petition. The Respondent, Sycamore Vista No. 8 HOA, was ordered to pay the Petitioner the filing fee required by section 32-2199.01.

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Essay Questions

Instructions: Consider the following questions. Formulate a comprehensive response drawing upon the specific facts, legal arguments, and conclusions presented in the case documents.

1. Analyze the legal reasoning behind the Administrative Law Judge’s decision to invalidate the “Declaration of Scrivener’s Error” while simultaneously upholding the increased assessment on developed lots. Explain how both parts of this ruling were supported by different governing documents.

2. Discuss the conflict of interest allegation raised by Jay Janicek under A.R.S. § 33-1811. Why did the Tribunal ultimately reject this argument, and what does this rejection imply about the Board’s authority to set assessments under the Declaration?

3. Trace the evolution of Section 6.8 of the Declaration from the original 2005 version, through the 2009 First Amendment, to the attempted 2016 change. Explain the significance of the “Completed Lots” definition and how its omission and attempted reinsertion became the central point of the dispute.

4. Evaluate the Respondent’s argument that it was simply correcting an inadvertent clerical error. What evidence and reasoning did the Administrative Law Judge use to conclude that this was, in fact, an improper amendment?

5. Describe the legal requirements for amending an HOA declaration as outlined in A.R.S. § 33-1817. Explain precisely how the actions of the Sycamore Vista No. 8 HOA Board violated this statute.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The presiding judge in the administrative hearing, in this case, Suzanne Marwil. The ALJ hears evidence and issues a decision based on the facts and applicable laws.

A.R.S. § 33-1811

An Arizona Revised Statute cited in the case that addresses conflicts of interest for members of an HOA board of directors. The Tribunal found the Petitioner’s interpretation of this statute to be overbroad.

A.R.S. § 33-1817

An Arizona Revised Statute cited in the case that outlines the legal requirements and procedures for amending an HOA’s declaration. The ALJ found the Respondent violated this statute.

Completed Lots

As defined in the original 2005 Declaration, this refers to any lot with a dwelling unit ready for occupancy, including installed carpets, cabinets, plumbing, etc. This definition was central to the dispute.

Declaration of Covenants, Conditions, Restrictions and Easements (Declaration)

The primary governing legal document of the Sycamore Vista No. 8 HOA, which outlines the rules, assessments, and rights of the property owners.

Declaration of Scrivener’s Error

The legal instrument adopted by the Respondent’s Board in a 3-2 vote on August 3, 2016. It was purported to correct a clerical error but was ruled to be an invalid substantive amendment to the Declaration.

First Amendment

The amendment to the 2005 Declaration adopted on December 4, 2008, after a vote of 75% of the lot owners. It changed Section 6.8 to allow for different assessment rates for completed and uncompleted lots but inadvertently omitted the definition of a “Completed Lot.”

NT Properties

A company with a financial interest in the undeveloped lots within the HOA. Three members of the Respondent’s Board also had a financial interest in this company, forming the basis of a conflict of interest allegation.

Petitioner

The party who filed the petition initiating the legal action. In this case, Jay Janicek.

Respondent

The party against whom the petition was filed. In this case, Sycamore Vista No. 8 HOA.

Tribunal

A term used within the decision to refer to the adjudicating body, specifically the Office of Administrative Hearings and the presiding Administrative Law Judge.

Uniform Rate of Assessment

A principle laid out in the 2005 Declaration requiring that annual and special assessments be fixed at a uniform rate for all lots. This was modified by the 2009 First Amendment.

He Sued His HOA and Won. Here’s Why He Still Had to Pay.

Introduction: The David vs. Goliath of Neighborhood Disputes

For many homeowners, the relationship with their Homeowners’ Association (HOA) can feel like a constant source of tension. It’s a world of rules, fees, and board decisions that can seem arbitrary or unfair. So when a single homeowner decides to take on their entire HOA in a legal battle, it feels like a classic David vs. Goliath story. This is one of those stories—about a homeowner who challenged an improper rule change and an unexpected fee increase. He took his HOA to court and, on paper, he won. But as he discovered, the outcome was far more surprising and nuanced than a simple victory.

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1. You Can’t Fix a Seven-Year-Old “Mistake” with a Simple Board Vote.

The core of the dispute began when the Sycamore Vista No. 8 HOA tried to amend its governing documents with a “Declaration of Scrivener’s Error.” Their goal was to reinsert definitions of “Completed Lots” versus “Undeveloped Lots” that they claimed had been “inadvertently deleted” from a revision seven years prior.

Instead of seeking approval from the homeowners, the Board of Directors passed this “correction” on August 3, 2016, with a simple 3-2 vote. This procedural shortcut triggered the legal challenge.

The Administrative Law Judge unequivocally rejected the HOA’s move. The judge’s reasoning was sharp and logical: the seven-year gap since the original amendment was a critical factor. The sheer passage of time had transformed what the HOA called a clerical correction into what the law considered a substantive change. As such, it required a vote by 75% of the lot owners, not a simple board action.

The judge’s decision underscored this point with a powerful rebuke:

…after a period of seven years, it defies logic to suggest that a further change to section was simply a clerical error.

This finding was a crucial victory for the homeowner. It affirmed that HOAs must follow the proper procedures outlined in their own governing documents and cannot use shortcuts to rewrite history, no matter how they frame their intentions.

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2. A Legal “Win” Doesn’t Always Mean You Get the Financial Outcome You Want.

Even though the judge invalidated the HOA’s “Declaration of Scrivener’s Error,” she made another, more surprising ruling: the $10.00 annual assessment increase on developed lots—the very fee that sparked the lawsuit—was valid and would stand.

The legal reasoning was buried in the fine print of the HOA’s own documents. A different amendment, one legally passed with a 75% homeowner vote on December 4, 2008, already gave the Board the explicit authority to set different assessment rates. The key language in that valid amendment stated, “annual dues may be assessed at one uniform rate for Completed Lots and a different uniform rate for Uncompleted Lots.”

This created the central irony of the case: the HOA took a legally improper path to arrive at a destination they already had a legal right to reach. Interestingly, the HOA board president testified they were acting on the advice of their counsel, suggesting this was less a malicious act and more of a costly legal misstep.

The petitioner, Jay Janicek, won his case on principle. The judge’s order granted his petition and even awarded him his $500.00 filing fee. But he lost on the practical financial issue that started the dispute. The $10 increase remained. It’s a stark illustration of how complex legal documents can be, where one legally sound clause can override a victory on another front.

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3. Proving a Conflict of Interest Is Harder Than It Looks.

The homeowner also accused the board of a conflict of interest. He pointed out that three members of the five-person board had a financial stake in NT Properties, the company that owned the community’s undeveloped lots. These were the very lots that benefited from the new assessment structure, as their fees remained unchanged while only the developed lots saw the $10 increase. On the surface, it appeared to be a clear-cut case of self-dealing.

However, the judge rejected this claim, ruling that the petitioner’s interpretation of the conflict of interest statute was “overbroad.” The judge’s analysis provided a crucial distinction: the board members were not inventing a new power for their own benefit; they were exercising a power explicitly granted to the Board by the homeowners themselves in the 2009 Declaration. The ruling noted that the petitioner’s argument “disregards the express language permitting the Board to assess annual dues.”

This takeaway is a sobering one for homeowners. It demonstrates that what might look like a glaring conflict of interest to a layperson may not meet the specific legal standard required to invalidate a board’s actions, especially when those actions fall within the powers already granted by the community’s governing documents.

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Conclusion: A Victory of Principle

In the end, the homeowner walked away with a strange and dual outcome. He successfully proved his HOA acted improperly by trying to amend its rules without a proper vote, yet he could not reverse the financial consequence that drove him to file the suit. The case stands as a powerful reminder for all homeowners: understanding both the procedural rules your HOA must follow and the precise wording hidden deep within its governing documents is absolutely critical. This ruling created a clear divide between procedural justice and financial reality.

This case was a victory of principle over practice—how much is a principle worth when the bottom line doesn’t change?

Case Participants

Petitioner Side

Jay Janicek (petitioner)

Respondent Side

Evan Thomson (attorney)
Represented Respondent
Steven Russo (board member)
Sycamore Vista No. 8 HOA
President of Respondent; testified
Dane Dehler (attorney)
Thompson Kron, P.L.C.
Received copy of final order
Whitney Cunningham (HOA contact)
Sycamore Vista No. 8 HOA
Received copy of final order c/o

Neutral Parties

Suzanne Marwil (ALJ)
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Abby Hansen (HOA Coordinator)
Recipient for rehearing request

John Sellers vs. Grayhawk Community Association

Posted on February 21, 2017 by [email protected]

Case Summary

Case ID	17F-H1716016-REL
Agency	ADRE
Tribunal	OAH
Decision Date	2017-02-21
Administrative Law Judge	Suzanne Marwil
Outcome	The Petitioner's petition was denied. The Administrative Law Judge concluded that Petitioner failed to meet the burden of proof showing Respondent restricted electronic access to the bank account, and the issue was moot since the bank closed the account. Respondent complied with the statutory requirement to make records reasonably available.
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	John Sellers	Counsel	—
Respondent	Grayhawk Community Association	Counsel	Curtis Ekmark, Esq.

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Petitioner's petition was denied. The Administrative Law Judge concluded that Petitioner failed to meet the burden of proof showing Respondent restricted electronic access to the bank account, and the issue was moot since the bank closed the account. Respondent complied with the statutory requirement to make records reasonably available.

Why this result: Petitioner failed to meet the burden of proof; lack of evidence that Respondent restricted access; issue was moot due to account closure; Respondent complied with A.R.S. § 33-1805(A) by offering paper copies of documents.

Key Issues & Findings

Wrongful denial of electronic access to the bank account's electronic information

Petitioner alleged Respondent unilaterally restricted his access to online, view-only bank account information and refused to restore access by November 25, 2016, in violation of A.R.S. § 33-1805(A).

Orders: Petition denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

A.R.S. § 33-1805(A)
A.R.S. § 32-2199 et seq.
A.R.S. §§ 32-2199.01(D)
32-2199.02
A.A.C. R2-19-119(B)
A.A.C. R2-19-119(A)

Analytics Highlights

Topics: Records Access, HOA Records, Mootness, Burden of Proof

Additional Citations:

A.R.S. § 33-1805(A)
A.R.S. § 32-2199 et seq.
A.R.S. §§ 32-2199.01(D)
32-2199.02
A.A.C. R2-19-119(B)
A.A.C. R2-19-119(A)

Video Overview

Audio Overview

Decision Documents

17F-H1716016-REL Decision – 546761.pdf

Uploaded 2026-04-24T11:01:29 (61.1 KB)

17F-H1716016-REL Decision – 552261.pdf

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17F-H1716016-REL Decision – 546761.pdf

Uploaded 2026-01-23T17:18:32 (61.1 KB)

17F-H1716016-REL Decision – 552261.pdf

Uploaded 2026-01-23T17:18:37 (553.3 KB)

Administrative Hearing Briefing: Sellers vs. Grayhawk Community Association

Executive Summary

This document synthesizes the findings and rulings in the administrative case of John Sellers (Petitioner) versus the Grayhawk Community Association (Respondent), adjudicated by the Arizona Office of Administrative Hearings and finalized by the Department of Real Estate. The core of the dispute was the Petitioner’s claim that the Respondent unlawfully restricted his electronic, view-only access to a bank account in violation of Arizona Revised Statutes (A.R.S.) § 33-1805(A).

The Administrative Law Judge (ALJ) denied the petition, concluding that the Petitioner failed to meet his burden of proof. The evidence showed the Respondent initially provided the requested electronic access, which the Petitioner successfully used before changing the password. The Petitioner offered no evidence that the Respondent subsequently interfered with or restricted this access. Furthermore, the issue was rendered moot when the bank in question closed the account. The ALJ affirmed that the Respondent’s offer to provide paper records satisfied the statutory requirement to make records “reasonably available.” This decision was subsequently adopted as a Final Order by the Commissioner of the Department of Real Estate.

Case Overview

Details

Case Name

John Sellers, Petitioner, vs. Grayhawk Community Association, Respondent.

Case Numbers

Docket No. 17F-H1716016-REL; Case No. HO 17-16/016

Adjudicating Body

Arizona Office of Administrative Hearings

Administrative Law Judge

Suzanne Marwil

Hearing Date

February 16, 2017

ALJ Decision Date

February 21, 2017

Final Order Date

March 3, 2017

Final Order Issued By

Judy Lowe, Commissioner, Department of Real Estate

The Core Dispute

Petitioner’s Position

John Sellers alleged that after he requested and received view-only access to the Association’s Alliance Association Bank account, the Respondent unilaterally restricted that access. He claimed the Respondent’s failure to restore access by his deadline of the close of business on November 25, 2016, constituted a violation of A.R.S. § 33-1805(A), which governs a member’s right to examine association records. The petition, for which a $500 fee was paid, was specifically focused on this single issue.

Respondent’s Position

The Grayhawk Community Association argued that it had gone beyond its statutory obligations by arranging for the bank to create a new online password specifically for the Petitioner. They maintained that after providing this access, they did not interfere with or restrict it in any way. They contended that the Petitioner’s subsequent inability to access the account was due to unknown reasons. The Respondent noted that the bank closed the account on November 28, 2016, making any form of electronic access permanently unavailable and rendering the issue moot. They also offered to provide paper copies of the relevant bank records.

Chronology of Key Events

• October 18, 2016: Petitioner John Sellers requests, among other items, an electronic, read-only password for the Respondent’s Alliance Association Bank account.

• November 2, 2016: The Respondent notifies the Petitioner that such a password did not exist at the time of the request.

• November 16, 2016: After requesting the bank create a password, the Respondent forwards the new login information to the Petitioner.

• Post-November 16, 2016: The Petitioner successfully logs into the bank account using the provided information and changes the password.

• Thanksgiving Day (November 24, 2016): The Petitioner attempts to log in again but “could not see anything.” Based on the assumption that the Respondent had restricted his access, he emails community manager Michael Fee.

• Thanksgiving Day Demand: In his email, the Petitioner sets a deadline for the Respondent to restore his access by the end of the business day on Friday, November 25, 2016, threatening to file a petition if the deadline is not met. Mr. Fee replies that he will contact the bank.

• November 28, 2016: Having not heard further from the Respondent, the Petitioner files the petition in this matter.

• November 28, 2016: On the same day, the Respondent informs the Petitioner that they do not know the reason for the lack of access and denies that anyone affiliated with the association interfered. It is also on this date that Alliance Association Bank closes the account in question.

Analysis of the Administrative Law Judge’s Decision

The ALJ’s decision was based on a hearing held on February 16, 2017. The ruling systematically dismantled the Petitioner’s case based on the evidence presented.

Burden and Standard of Proof

• Pursuant to Arizona Administrative Code (A.A.C.) R2-19-119(B), the Petitioner held the burden of proof.

• The required standard of proof was a preponderance of the evidence, meaning the Petitioner had to show it was more likely than not that his claim was true.

Key Findings of Fact

1. Access Was Provided: It was undisputed that the Respondent provided the Petitioner with login information and that this information initially worked, enabling him to access the account.

2. Petitioner Changed Password: After gaining access, the Petitioner changed the password.

3. No Evidence of Interference: The Petitioner offered “no evidence that Respondent took any action to deny Petitioner online access.” His belief that access was restricted was a “unilateral assumption.” The record did not establish why the new password failed to work on Thanksgiving Day.

4. Issue Rendered Moot: The undisputed closure of the bank account by the bank on November 28, 2016, made the request for electronic access moot, as such access was no longer available to anyone.

Key Conclusions of Law

1. Failure to Meet Burden of Proof: The ALJ concluded that the “Petitioner has failed to meet his burden of proof.” The record was “devoid of any evidence” that the Respondent denied the requested information or took any action to restrict access.

2. Compliance with A.R.S. § 33-1805(A): The statute requires that association records “be made reasonably available for examination.” The ALJ found that the Respondent complied with the statute by initially providing electronic access and later offering to “furnish the Petitioner paper copies of documents it possessed related to that bank account.”

3. Electronic vs. Paper Access: The Petitioner’s argument that paper access is inferior to electronic access was dismissed as a “policy argument that should be addressed to the Legislature.” The plain language of the existing statute does not mandate a specific format for record examination.

Final Order and Outcome

On March 3, 2017, the Commissioner of the Department of Real Estate issued a Final Order, which fully adopted the ALJ’s decision.

• Petition Denied: The Commissioner accepted the ALJ’s decision that the petition be denied.

• Future Compliance Directive: The order stated, “The Commissioner accepts the Recommended Order that Respondent shall comply with the applicable provisions of Arizona Revised Statutes (‘A.R.S.’) § 33-1804 (A) in the future.”

• Binding Decision: The order became a final administrative action, effective immediately and binding on the parties.

• Rehearing and Appeal Process: Parties were notified that a motion for rehearing or review could be filed within 30 days. A request for rehearing should be addressed to Abby Hansen, 2910 N. 44th Street, Suite 100, Phoenix, Arizona, 85018. The order could also be appealed via a complaint for judicial review.

Study Guide: Sellers v. Grayhawk Community Association

This guide provides a comprehensive review of the administrative legal case No. 17F-H1716016-REL, John Sellers v. Grayhawk Community Association, based on the Administrative Law Judge Decision and the subsequent Final Order from the Department of Real Estate.

Short-Answer Quiz

Answer the following questions in two to three sentences, based on the information provided in the case documents.

1. Identify the primary parties involved in this case and state their respective roles.

2. What was the central accusation made by the Petitioner against the Respondent?

3. According to the Respondent’s argument, what actions did it take in response to the Petitioner’s initial request for electronic bank records?

4. What specific event occurred on Thanksgiving Day that directly prompted the Petitioner to file his petition?

5. What was the required standard of proof in this hearing, and which party was assigned the burden of meeting it?

6. Which specific Arizona Revised Statute (A.R.S.) did the Petitioner allege the Respondent had violated?

7. Summarize the primary reason the Administrative Law Judge found that the Petitioner failed to meet his burden of proof.

8. Why did the Administrative Law Judge determine that the issue of electronic access had become moot?

9. What was the final decision issued by the Administrative Law Judge, and was it accepted by the Commissioner of the Department of Real Estate?

10. How did the Administrative Law Judge address the Petitioner’s argument that paper records are an inferior substitute for electronic access?

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Answer Key

1. The primary parties were John Sellers, who served as the Petitioner, and the Grayhawk Community Association, which was the Respondent. The Petitioner, Mr. Sellers, brought the complaint, and the Respondent, Grayhawk Community Association, was the party accused of wrongdoing.

2. The Petitioner accused the Respondent of violating A.R.S. § 33-1805(A) by unilaterally restricting his online, view-only access to a bank account. He claimed they wrongfully denied him this access and failed to restore it by his deadline of November 25, 2016.

3. The Respondent argued it went beyond its statutory obligation by requesting that Alliance Association Bank create an online, view-only password specifically for the Petitioner, as one did not previously exist. The Respondent then forwarded this new login information to the Petitioner on November 16, 2016.

4. On Thanksgiving Day, the Petitioner attempted to log on to the bank account but could not see anything. Based on the assumption that the Respondent had restricted his access, he emailed the community manager and set a deadline for the next business day, which ultimately led to him filing the petition when access was not restored.

5. The standard of proof required was a “preponderance of the evidence.” Pursuant to A.A.C. R2-19-119(B), the Petitioner, John Sellers, had the burden of proof in this matter.

6. The Petitioner alleged that the Respondent had violated A.R.S. § 33-1805(A). This statute requires that all financial and other records of an association be made reasonably available for examination by any member.

7. The Judge found that the Petitioner offered no proof that the Respondent took any action to restrict or interfere with his access to the bank account. The record showed the Respondent provided the initial access, and it was not established why the Petitioner’s new password later failed to work.

8. The issue of electronic access was deemed moot for two reasons. First, the bank closed the account in question on November 28, 2016, making electronic access impossible. Second, the Respondent had offered to furnish the Petitioner with paper copies of the documents it possessed related to that account.

9. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The Commissioner of the Department of Real Estate accepted this recommended decision and issued a Final Order denying the petition.

10. The Judge characterized the Petitioner’s argument as a policy argument that should be addressed to the Legislature, not the court. The Judge stated that the plain language of the statute only requires records to be made “reasonably available,” and concluded the Respondent complied with the law by offering paper copies.

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Essay Questions

Construct detailed, essay-format responses to the following prompts. Do not provide answers.

1. Analyze the timeline of events from October 18, 2016, to November 28, 2016. How did the Petitioner’s actions, particularly his assumptions and deadlines, impact the outcome of the case as determined by the Administrative Law Judge?

2. Discuss the concept of “burden of proof” as it applies to this case. Explain why the Petitioner, John Sellers, failed to meet the standard of “preponderance of the evidence” according to the Administrative Law Judge’s findings.

3. Examine the Administrative Law Judge’s interpretation of A.R.S. § 33-1805(A). How does the judge’s distinction between “reasonably available” records and the specific format of access (electronic vs. paper) form the core of the legal conclusion?

4. The Respondent argued it went “beyond its statutory obligation.” Based on the facts presented in the decision, construct an argument either supporting or refuting this claim.

5. Explain the concept of “mootness” in the context of this legal dispute. How did the closure of the Alliance Association Bank account on November 28, 2016, render the central issue of the petition moot?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

A judge who presides over hearings at an administrative agency. In this case, Suzanne Marwil presided for the Office of Administrative Hearings.

A.A.C.

An abbreviation for the Arizona Administrative Code, which is the official compilation of rules and regulations of Arizona state agencies.

A.R.S.

An abbreviation for Arizona Revised Statutes, which is the codified collection of laws passed by the Arizona state legislature.

Burden of Proof

The legal obligation of a party in a proceeding to provide sufficient evidence to prove their claim. In this matter, the burden of proof was on the Petitioner.

Conclusions of Law

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

Final Order

An official, binding decision issued by an administrative body that resolves a legal dispute. In this case, the Commissioner of the Department of Real Estate issued the Final Order adopting the ALJ’s decision.

Findings of Fact

The section of a legal decision that details the facts of the case as determined by the judge based on the evidence presented during the hearing.

A legal term describing an issue that is no longer in dispute or has become irrelevant due to changed circumstances, making a judicial decision unnecessary. The account’s closure made the access issue moot.

A formal, written direction from a judge or administrative body. The ALJ issued an Order denying the petition.

Petitioner

The party who initiates a legal action by filing a petition. In this case, John Sellers.

Preponderance of the Evidence

The standard of proof required in this administrative hearing. It means that the evidence must demonstrate that a claim is more likely to be true than not true.

Respondent

The party against whom a petition is filed and who is required to respond to the claims. In this case, the Grayhawk Community Association.

How a Thanksgiving Day Login Failure Cost a Homeowner $500: Key Lessons from a Bizarre HOA Dispute

Almost everyone knows the modern frustration of a forgotten password or a website that simply won’t cooperate. But in a peculiar 2017 case, a homeowner’s inability to access a bank account online on Thanksgiving Day escalated from a simple tech issue into a formal legal petition against his Homeowners Association (HOA). The official court ruling offers a case study in failed conflict resolution, with surprising and critical lessons for any homeowner navigating the complex world of community association governance.

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1. An Unproven Assumption Can Be a Costly Mistake

The entire legal dispute was triggered by a critical strategic miscalculation based on an unverified assumption. The sequence of events began when petitioner John Sellers, after having previously changed the password himself, logged in to his HOA’s bank account on Thanksgiving Day and “could not see anything.”

Instead of exploring technical explanations, like a server issue over the holiday, he “unilaterally assumed” that the HOA (the Respondent, Grayhawk Community Association) had intentionally restricted his access. Acting immediately on this assumption, he emailed the community manager, Michael Fee, setting an aggressive deadline for the end of business the following day to have his access restored. When that deadline passed, he filed a formal petition. Crucially, the record notes the petitioner paid a $500.00 fee to file it.

However, the petitioner’s narrative omits a key fact: the community manager was not unresponsive. The case file shows that “Mr. Fee advised he would contact the bank.” This detail reveals the petitioner’s precipitous rush to litigation, bypassing any opportunity for simple clarification. The judge’s finding was decisive, underscoring this failure in de-escalation: the petitioner “offered no evidence that Respondent took any action to deny Petitioner online access to the account.” Acting on a costly assumption led directly to a lost case and a forfeited $500 fee.

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2. The Law Requires “Reasonable Access,” Not Your Preferred Method

The petitioner’s central legal argument was that he was wrongfully denied electronic access to the bank’s information. This complaint, however, was fundamentally misaligned with the plain language of the governing statute.

The relevant law, A.R.S. § 33-1805(A), states that “all financial and other records of the association shall be made reasonably available for examination by any member.” The Administrative Law Judge found that the HOA had fully complied with this duty. When the login issue persisted and the account was later closed by the bank, the Respondent “offered to furnish the Petitioner paper copies of documents it possessed related to that bank account.” This distinction is legally significant; the law does not mandate a specific method of access—especially a preferred or more convenient one—only that the access provided be “reasonable.”

The judge’s decision explicitly rejected the petitioner’s policy argument:

Petitioner’s argument that paper access to the account information is inferior to electronic access constitutes a policy argument that should be addressed to the Legislature. The plain language of the statute requires only that records of Respondent be made reasonable available for Petitioner’s examination. Respondent complied with the statute.

This highlights an important takeaway for all homeowners: understanding the difference between what is legally required versus what is simply convenient can prevent unnecessary and unwinnable disputes.

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3. Even “Going the Extra Mile” Can Lead to a Lawsuit

One of the most ironic details of the case is that the HOA was never obligated to provide online access in the first place. According to the case file, when the petitioner first requested electronic access on October 18, 2016, “such a password did not exist.”

In its defense, the HOA argued—and the facts seem to support—that it went “beyond its statutory obligation” by requesting that its bank create a special view-only password specifically for the petitioner. This was a proactive accommodation, not a statutory duty.

This situation reveals a paradox often seen in community management, where proactive efforts to accommodate a resident can inadvertently create new avenues for conflict. The very courtesy the HOA extended—creating an online access portal that wasn’t legally required—became the foundation of the legal petition filed against them, illustrating the complex and often thankless nature of community governance.

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4. The Burden of Proof Is on the Accuser

In any formal legal dispute, the question of who must prove their case is critical. According to the case file, the “Petitioner has the burden of proof in this matter.” The legal standard he had to meet was a “preponderance of the evidence,” which is the standard of proof required in most civil, non-criminal matters.

In simple terms, this means John Sellers had the responsibility to prove that it was more likely than not that the Grayhawk Community Association actively and intentionally restricted his access. He failed to provide any such proof.

The judge’s conclusion on this point was unambiguous: “Petitioner offered no proof that the Respondent restricted his access to the account in any way.” His case failed because it was built entirely on an assumption, with no evidence to support the accusation. This serves as a fundamental lesson in legal disputes: an accusation alone is not enough; it must be backed by credible evidence to prevail.

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Conclusion: A Final Thought Before You Escalate

A simple holiday login error became a failed legal petition due to a cascade of unverified assumptions and a fundamental misunderstanding of statutory requirements. This strange case serves as a potent reminder for homeowners and board members alike about the risks of escalating a grievance without first establishing the facts and understanding the law.

Before launching a formal, and potentially costly, complaint, it’s worth asking two simple questions: What does the law actually require, and what can I definitively prove?

Case Participants

Petitioner Side

John Sellers (petitioner)

Respondent Side

Curtis Ekmark (HOA attorney)
Grayhawk Community Association
Michael Fee (community manager)
Grayhawk Community Association

Neutral Parties

Suzanne Marwil (ALJ)
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Abby Hansen (HOA Coordinator)