Brian Sopatk vs. The Lakeshore Village Condo. Assoc., Inc.

Posted on November 29, 2016 by [email protected]

Case Summary

Case ID	17F-H1716004-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2017-08-10
Administrative Law Judge	Thomas Shedden
Outcome	none
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Brian Sopatyk	Counsel	Nathan Andrews, Esq. and Jill Kennedy, Esq.
Respondent	The Lakeshore Village Condo. Association, Inc.	Counsel	Bradley R. Jardine, Esq.

Alleged Violations

ARIZ. REV. STAT. section 33-1260

Outcome Summary

The Administrative Law Judge dismissed the petition because the Petitioner failed to prove the HOA violated A.R.S. § 33-1260. The contested $660 fee was determined to be a working capital contribution authorized by the Association's CC&Rs (section 8.13), which is distinct from the resale disclosure fees limited by statute.

Why this result: The Petitioner did not meet the burden of proof to show a statutory violation because the fee in question was a valid working capital fee collected under the CC&Rs, not an illegal transfer fee under A.R.S. § 33-1260.

Key Issues & Findings

Alleged violation of statutory maximum fee for resale disclosure/transfer documents.

Petitioner alleged the Association charged a $660 transfer fee, plus a $30 statement fee, violating A.R.S. § 33-1260, which limits aggregate fees for resale disclosure and transfer services to $400. The ALJ found the $660 fee was a working capital fee authorized by CC&R section 8.13, not a statutory disclosure fee, despite being mislabeled by the Association.

Orders: Petitioner Brian D. Sopatyk's petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

ARIZ. REV. STAT. section 33-1260
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 33-1242(A)(2)
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119

Analytics Highlights

Topics: HOA fees, transfer fee, working capital fund, statutory compliance, burden of proof, condominium association, resale disclosure

Additional Citations:

ARIZ. REV. STAT. section 33-1260
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 33-1242(A)(2)
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
A.R.S. § 41-1092.08
A.R.S. § 41-1092.09
A.R.S. § 1-243

Video Overview

Audio Overview

Decision Documents

17f-H1716004-REL Decision – 531040.pdf

Uploaded 2025-10-09T03:31:50 (67.9 KB)

17f-H1716004-REL Decision – 540004.pdf

Uploaded 2025-10-09T03:31:51 (154.0 KB)

Briefing Doc – 17f-H1716004-REL

Briefing Document: Sopatyk v. The Lakeshore Village Condominium Association, Inc.

Executive Summary

This document synthesizes the legal proceedings and outcomes of the case Brian Sopatyk v. The Lakeshore Village Condominium Association, Inc. (Case No. 17F-H1716004-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was Petitioner Brian Sopatyk’s allegation that the Respondent Condominium Association violated Arizona Revised Statute (A.R.S.) § 33-1260 by charging a $660 “transfer fee” upon the sale of a condominium unit, which exceeded the statutory maximum of $400 for resale disclosure services.

The Association’s defense centered on the argument that the $660 charge was not a disclosure fee but a separate “working capital fee” authorized by its Covenants, Conditions, and Restrictions (CC&Rs). The Association contended that this fee had been erroneously mislabeled as a “transfer fee” due to a clerical error inherited by its current manager. The actual statutory fee for disclosure documents, the Association argued, was a separate $30 charge paid by the seller.

After an initial hearing in November 2016 and a subsequent re-hearing in June 2017, the Administrative Law Judge consistently found that Mr. Sopatyk failed to prove the alleged violation by a preponderance of the evidence. The court concluded that the evidence supported the Association’s claim of a mislabeled working capital fee. Consequently, Mr. Sopatyk’s petition was dismissed on both occasions, and the Association was deemed the prevailing party.

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Case Overview

Parties and Jurisdiction

Representation

Petitioner

Brian Sopatyk

On his own behalf (Initial Hearing); Nathan Andrews, Esq. & Jill Kennedy, Esq. (Re-Hearing)

Respondent

The Lakeshore Village Condominium Association, Inc.

Bradley R. Jardine, Esq. (Both Hearings)

Jurisdiction

Arizona Department of Real Estate (ADRE)

Authority under A.R.S. Title 32, Ch. 20, Art. 11.

Adjudicator

Administrative Law Judge (ALJ) Thomas Shedden

Office of Administrative Hearings, Phoenix, AZ

Core Allegation and Governing Statute

• Allegation: Brian Sopatyk alleged that The Lakeshore Village Condominium Association violated A.R.S. § 33-1260 by charging fees exceeding the statutory maximum for resale disclosure services. Specifically, a $660 fee labeled as a “transfer fee” was charged when he purchased his unit.

• Petitioner’s Request: Mr. Sopatyk sought an order for the Association to comply with the statute, issue refunds to all who paid fees in excess of the maximum, and for a civil penalty to be imposed.

• Governing Statute: A.R.S. § 33-1260 stipulates that a condominium association “may charge the unit owner a fee of no more than an aggregate of four hundred dollars to compensate the association for the costs incurred in the preparation of a statement or other documents furnished… for purposes of resale disclosure, lien estoppel and any other services related to the transfer or use of the property.” The statute explicitly forbids charging any other fees for these services except as authorized.

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Chronology of Legal Proceedings

March 2, 2015

The Association issues a “Disclosure Form” for Mr. Sopatyk’s purchase, listing a $660 transfer fee and a $30 statement fee.

May 18, 2016

The Association’s Board of Directors meets to address Mr. Sopatyk’s claim. They conclude the $660 fee was a mislabeled working capital fee and direct corrective accounting.

August 9, 2016

Mr. Sopatyk files a petition with the Arizona Department of Real Estate.

November 14, 2016

The initial hearing is conducted before ALJ Thomas Shedden.

November 29, 2016

ALJ Shedden issues a decision dismissing Mr. Sopatyk’s petition.

December 13, 2016

The ADRE Commissioner, Judy Lowe, adopts the ALJ’s decision, issuing a Final Order dismissing the case.

February 7, 2017

A Notice of Re-Hearing is issued after Mr. Sopatyk requests one.

June 9, 2017

A re-hearing is conducted before ALJ Thomas Shedden.

June 26, 2017

ALJ Shedden issues a new decision, again dismissing Mr. Sopatyk’s petition.

August 1, 2017

The deadline passes for the ADRE to accept, reject, or modify the ALJ’s re-hearing decision. No action is taken.

August 10, 2017

The Office of Administrative Hearings certifies the ALJ’s decision from the re-hearing as the final administrative decision in the matter.

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Analysis of Arguments and Evidence

Petitioner’s Position (Brian Sopatyk)

• Primary Argument: The Association’s own documents, specifically the Disclosure Form and the HUD-1 settlement statement, explicitly labeled the $660 charge as a “Transfer Fee.” This amount is a prima facie violation of the $400 statutory cap in A.R.S. § 33-1260.

• Evidence Presented:

◦ March 2, 2015 Disclosure Form: Showed a required payment of a $660 “transfer fee” and a $30 “statement fee.”

◦ HUD-1 Settlement Statement: Documented that the $660 Transfer Fee was paid to the Association, with $330 paid from the Borrower’s (Sopatyk’s) funds and $330 from the Seller’s funds. It also showed the Seller paid a separate $30 Resale Statement Fee.

• Contradictory Testimony: In his sworn petition, Mr. Sopatyk stated the $660 fee was “split between the seller and the buyer.” However, during the re-hearing, he testified that he had “in fact paid the entire $660 as part of the negotiated price of the unit.” The ALJ noted this discrepancy, stating “either Mr. Sopatyk’s sworn statement or his testimony must be false.”

Respondent’s Position (The Lakeshore Village Condo. Association)

• Primary Argument: The $660 fee was not for resale disclosure services but was a working capital fee authorized by the Association’s CC&Rs. The “transfer fee” label was a historical clerical error that the Board had since identified and corrected.

• Evidence and Testimony:

◦ CC&R Section 8.13 (“Transfer Fee and Working Capital Fund”): This provision authorizes the Association to assess each new owner a fee of “at least twice the average monthly assessment” to be deposited into the working capital fund (referred to as the Reserve Fund). The monthly assessment was $328.83, making the $660 fee consistent with this rule.

◦ Testimony of Amy Telnes (Association Manager): Ms. Telnes testified that when she became manager, she was incorrectly informed that the working capital fee was the transfer fee. She affirmed that the $660 fee was deposited into the Association’s reserve fund and that the separate $30 fee was the one charged pursuant to A.R.S. § 33-1260.

◦ May 18, 2016 Board Meeting Minutes: These minutes, entered into evidence, documented the Board’s conclusion that it was collecting a working capital contribution but “erroneously calling it a transfer fee.” The Board directed Ms. Telnes to perform an accounting and transfer all such fees collected after October 1, 2013, to the Reserve Account. The minutes also show the Board voted to change its fee structure moving forward to a single $400 fee to avoid future confusion.

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Judicial Findings and Final Disposition

Standard and Burden of Proof

Across both hearings, the ALJ established that the standard of proof was a preponderance of the evidence, defined as evidence with “the most convincing force” that is “sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” The burden of proof rested entirely on the petitioner, Mr. Sopatyk, to demonstrate that a violation had occurred.

Initial Hearing Decision (November 29, 2016)

• Findings of Fact: The ALJ found that the Association was charging a $660 working capital fee in accordance with its CC&Rs but had been mislabeling it. It was also charging a separate $30 document preparation fee.

• Conclusion of Law: Mr. Sopatyk did not show by a preponderance of the evidence that the Association violated A.R.S. § 33-1260.

• Order: The petition was dismissed, and the decision was adopted as final by the ADRE Commissioner on December 13, 2016.

Re-Hearing Decision (June 26, 2017)

• Findings of Fact: The re-hearing produced more detailed findings but led to the same conclusion. The ALJ found that the Association had authority under its CC&Rs to collect the $660 working capital fee and that the statutory disclosure statute did not apply to this charge. The fee applicable to the statute was the $30 charge paid by the seller.

• Conclusion of Law: The ALJ reiterated that Mr. Sopatyk failed to meet his burden of proof. The Association’s argument that the claim should fail because Sopatyk did not personally pay over $400 was deemed “not persuasive,” as the statute applies to all violations regardless of particularized harm.

• Order: The petition was again ordered to be dismissed.

Final Administrative Disposition

The ADRE took no action to modify or reject the ALJ’s re-hearing decision by the statutory deadline of August 1, 2017. As a result, the Office of Administrative Hearings certified the June 26, 2017 decision as the final administrative decision on August 10, 2017, concluding the matter in favor of the Respondent Association.

Study Guide – 17f-H1716004-REL

Study Guide: Sopatyk v. The Lakeshore Village Condo. Association, Inc.

Quiz: Short-Answer Questions

Instructions: Answer the following ten questions based on the provided case documents. Each answer should be two to three sentences in length.

1. What specific Arizona Revised Statute did petitioner Brian Sopatyk allege that The Lakeshore Village Condominium Association violated, and what is the core requirement of that statute?

2. Identify the two fees charged in connection with Mr. Sopatyk’s unit purchase, the amount of each fee, and how they were documented on the HUD-1 disclosure statement.

3. What was the Association’s central argument for why the $660 fee did not violate the statute in question?

4. Who was the Association’s manager, and what explanation did she provide for the labeling of the $660 fee?

5. According to the Association’s Declaration of Covenants, Conditions and Restrictions (CC&Rs), what is the purpose of the fee outlined in section 8.13?

6. What was the outcome of the initial administrative hearing held on November 14, 2016?

7. During the rehearing, a discrepancy was noted between Mr. Sopatyk’s sworn petition and his testimony regarding the payment of the $660 fee. What was this discrepancy?

8. What corrective actions did the Association’s Board vote to take during its meeting on May 18, 2016, after Mr. Sopatyk raised the issue?

9. What is the standard of proof the petitioner was required to meet in this case, and did the Administrative Law Judge find that he met it?

10. What was the final, certified administrative decision in this matter after the rehearing on June 9, 2017?

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Answer Key

1. Brian Sopatyk alleged a violation of ARIZ. REV. STAT. section 33-1260. This statute requires a condominium association to provide specific disclosure documents to a prospective purchaser and limits the aggregate fee for preparing these documents and other related services to no more than four hundred dollars.

2. The two fees were a $660 “Transfer Fee” and a $30 “Resale Statement Fee.” The HUD-1 disclosure statement shows the $660 fee was split, with $330 paid by the borrower (Sopatyk) and $330 paid by the seller, while the seller alone paid the $30 fee.

3. The Association’s central argument was that the $660 fee was not a transfer fee for disclosure services but was actually a “working capital fee” collected pursuant to section 8.13 of its CC&Rs. They contended that the fee had been incorrectly labeled as a “transfer fee” due to a clerical error.

4. The Association’s manager was Amy Telnes. She testified that when she became manager, she was incorrectly told the working capital fee was the transfer fee, and these fees had been mislabeled since that time.

5. According to CC&R section 8.13 (“Transfer Fee and Working Capital Fund”), each new unit owner is to be assessed a fee of at least twice the average monthly assessment. These fees are to be deposited into the working capital fund, which the Association refers to as its Reserve Fund.

6. Following the initial hearing, Administrative Law Judge Thomas Shedden found that Mr. Sopatyk had not shown by a preponderance of the evidence that the Association violated the statute. The Judge’s decision was to dismiss Mr. Sopatyk’s petition, and this decision was adopted by the Commissioner of the Department of Real Estate.

7. In his sworn petition, Mr. Sopatyk stated that the $660 fee was split between him and the seller. However, at the hearing, he testified that he had in fact paid the entire $660 as part of the negotiated price of the unit, meaning one of his statements had to be false.

8. The Board directed Ms. Telnes to account for all working capital fees and transfer them to the Reserve Account to correct the error. The Board also determined its system was confusing and voted to assess a single transfer fee of $400 (and no other fees) on all future transactions.

9. The petitioner, Mr. Sopatyk, bore the burden of proof and was required to meet the standard of a “preponderance of the evidence.” The Administrative Law Judge concluded in both hearings that Mr. Sopatyk did not meet this burden.

10. The final decision was that Mr. Sopatyk’s petition was dismissed again. On August 10, 2017, the Administrative Law Judge’s decision from the rehearing was certified as the final administrative decision of the Department of Real Estate because the Department took no action to reject or modify it.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official, in this case Thomas Shedden, who presides over hearings at the Office of Administrative Hearings and issues a decision based on the evidence presented.

ARIZ. REV. STAT. § 33-1260

The Arizona statute that requires a condominium association to furnish a prospective purchaser with disclosure documents and other information. It explicitly limits the fee an association can charge for these services to “no more than an aggregate of four hundred dollars.”

Burden of Proof

The responsibility of a party in a legal case to prove their claims. In this matter, the burden of proof was on the petitioner, Brian Sopatyk.

The Declaration of Covenants, Conditions and Restrictions, which are the governing documents for the condominium association. Section 8.13 of the Lakeshore Village CC&Rs authorizes the collection of a fee for a working capital fund.

Petitioner

The party who initiates a legal action by filing a petition. In this case, Brian Sopatyk.

Preponderance of the Evidence

The standard of proof required in this case, defined as “The greater weight of the evidence… by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

Respondent

The party defending against a petition. In this case, The Lakeshore Village Condominium Association, Inc.

Reserve Fund

The account into which the Association deposits its working capital fees. It is also referred to as the Working Capital Fund.

Statement Fee / Resale Statement Fee

A $30 fee, separate from the disputed $660, that was paid by the seller to the Association for the preparation of the resale statement. This fee was considered part of the allowable charges under ARIZ. REV. STAT. § 33-1260.

Transfer Fee

The label erroneously applied to the $660 fee on the disclosure statement and HUD-1 form. The central dispute of the case was whether this was a true transfer fee subject to the statutory cap or a mislabeled working capital fee.

Working Capital Fee

A fee authorized by CC&R section 8.13 to be assessed from each new unit owner for the purpose of funding the Association’s working capital fund (Reserve Fund). The Association successfully argued the $660 charge was this type of fee.

Blog Post – 17f-H1716004-REL

How a $660 Fee Sparked a Legal Showdown: 5 Surprising Lessons from a Homeowner vs. HOA Dispute

We sign, we initial, we pay—assuming every line item on our closing documents is gospel. When buying a home in a condominium association, the stack of paperwork and list of fees can feel overwhelming. But what if one of those “standard” fees wasn’t standard at all?

For homeowner Brian Sopatyk, a single $660 charge from The Lakeshore Village Condominium Association wasn’t just a number; it was a thread he pulled that unraveled a surprising story of HOA governance, legal strategy, and the power of asking “why?” This post breaks down the five most impactful takeaways from a seemingly minor dispute that went all the way through a formal hearing and re-hearing.

1. A Simple Label Can Ignite a Legal Firestorm

A clerical error triggers a full-blown legal dispute.

The entire case hinged on a single, crucial mistake: the HOA mislabeled a “working capital fee” as a “transfer fee” on its disclosure forms.

Why was this one word so important? Because Mr. Sopatyk’s formal petition alleged that by charging a “$660 transfer fee,” the HOA violated Arizona statute 33-1260, which caps fees for resale disclosure services at a maximum of $400. On its face, the $660 charge looked like a clear violation of state law.

The Association’s manager, Amy Telnes, testified that when she took over her position, she was given erroneous information that the working capital fee was the transfer fee. As a result, the charge had been incorrectly labeled ever since. This simple administrative error was enough to trigger a formal petition to the Arizona Department of Real Estate, a full administrative hearing, and eventually, a re-hearing, proving how a small clerical mistake can escalate into a significant legal conflict.

2. In the Eyes of the Law, Substance Can Trump Form

Why the fee’s purpose mattered more than its name.

The Association’s core defense was that while the name of the fee was wrong, its purpose and authority were legitimate. The $660 charge, they argued, wasn’t for resale documents (the service capped by state law), but was a “working capital fee” authorized by an entirely different rule: the Association’s own Covenants, Conditions, and Restrictions (CC&Rs).

Specifically, Section 8.13 of the CC&Rs allowed for this assessment, with the funds designated for the Association’s reserve fund. This working capital fee, in contrast, was an assessment on the new owner as mandated by the CC&Rs to ensure the association’s financial health. The actual fee for the statutory disclosure documents was a separate, compliant $30 “Resale Statement Fee,” which was paid by the seller.

The Administrative Law Judge ultimately agreed. The fee’s underlying purpose and the HOA’s authority to collect it (its substance) were deemed more important than its incorrect name on the form (its form). This is a crucial lesson for any homeowner challenging an HOA: it’s not enough to find a mistake on a form. You must be prepared to argue against the underlying authority and purpose of the action itself.

3. You Can Lose the Battle but Win the War

How a dismissed case led to a major policy victory.

Perhaps the most counter-intuitive outcome is that although Mr. Sopatyk’s petition was dismissed, his actions were the direct catalyst for a significant and positive policy change by the HOA.

In a summary of the Association’s May 18, 2016, Board Meeting, which was entered as evidence, the judge noted that the Board reviewed the very issue Mr. Sopatyk had raised. Under the pressure of his legal challenge, they came to a powerful conclusion about their own system, determining it was “confusing and unfair.”

As a direct result of this internal review prompted by the dispute, the Board voted to simplify its process. It resolved to assess a single, clear transfer fee of $400 on all future transactions, eliminating the other confusing fees. This proves that even an unsuccessful legal challenge can be a powerful tool, forcing an organization to confront and correct its own problematic practices for the benefit of all future members.

4. The ‘Burden of Proof’ Is More Than Just a Phrase

What it really means to have to prove your case.

In both the original decision and the re-hearing, the judge repeatedly stated that Mr. Sopatyk, as the petitioner, bore the “burden of proof.” This legal standard was critical to the outcome. It meant he had to prove his claim by a “preponderance of the evidence,” which the court documents defined as:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

In this case, it meant Mr. Sopatyk’s job was to prove that the $660 fee was, more likely than not, an illegal charge for resale documents. The HOA’s defense—that it was a legally separate “working capital fee” that was simply mislabeled—created enough doubt that he couldn’t clear this hurdle.

5. A Small Contradiction Can Damage Credibility

When every word you say (and write) is on the record.

A fascinating detail appeared in the re-hearing decision, highlighting how every word matters in a legal proceeding.

There was a discrepancy in Mr. Sopatyk’s statements. His sworn petition, filed on August 9, 2016, stated the $660 fee was “split between the seller and the buyer.” However, during the hearing, he testified that he had “in fact paid the entire $660.”

The judge noted this contradiction directly in footnote 3 of the re-hearing decision, stating: “either Mr. Sopatyk’s sworn statement or his testimony must be false.” While not the deciding factor, this kind of inconsistency can subtly erode a petitioner’s standing. Remember the “burden of proof” from Takeaway 4? It requires convincing a judge to “incline a fair and impartial mind” to your side. Contradictions, even small ones, make that inclination much harder to achieve.

Conclusion: The Devil Is in the Details

This case is the perfect microcosm of community association disputes. It began with a clerical error (form), was adjudicated on intent (substance), was lost on a technicality (the burden of proof), yet resulted in a victory for transparency. Mr. Sopatyk may not have won his case, but he won a better system for his neighbors.

The ultimate lesson? In an HOA, the most powerful tool isn’t always a lawsuit—sometimes, it’s a magnifying glass. It leaves us with a thought-provoking question: When is it worth challenging the system for clarity and fairness, even if the outcome isn’t a clear ‘win’ on paper?

Case Participants

Petitioner Side

Brian Sopatyk (petitioner)
Nathan Andrews (petitioner attorney)
ASU Alumni Law Group
Jill M. Kennedy (petitioner attorney)
ASU Alumni Law Group
Chance Peterson (petitioner attorney)
ASU Alumni Law Group
Judy Sopatyk (party)
Wife of petitioner and co-purchaser of the unit

Respondent Side

Bradley R. Jardine (HOA attorney)
Jardine Baker Hickman & Houston
Attorney for Respondent
Amy Telnes (property manager/witness)
The Lakeshore Village Condo. Association, Inc.
Association manager who testified
Michael Cibellis (association president/witness)
The Lakeshore Village Condo. Association, Inc.
Association president who testified at rehearing

Neutral Parties

Thomas Shedden (ALJ)
Judy Lowe (Commissioner)
ADRE
Arizona Department of Real Estate Commissioner
Greg Hanchett (Interim Director)
OAH
Signed Certification of Decision
Abby Hansen (HOA Coordinator)
ADRE
Administrative contact for rehearing requests
Rosella J. Rodriguez (administrative staff)
Involved in copy mailing/distribution

Brian Sopatk vs. The Lakeshore Village Condo. Assoc., Inc.

Posted on November 29, 2016 by [email protected]

Case Summary

Case ID	17F-H1716004-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2017-08-10
Administrative Law Judge	Thomas Shedden
Outcome	none
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Brian Sopatyk	Counsel	Nathan Andrews, Esq. and Jill Kennedy, Esq.
Respondent	The Lakeshore Village Condo. Association, Inc.	Counsel	Bradley R. Jardine, Esq.

Alleged Violations

ARIZ. REV. STAT. section 33-1260

Outcome Summary

Key Issues & Findings

Alleged violation of statutory maximum fee for resale disclosure/transfer documents.

Orders: Petitioner Brian D. Sopatyk's petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

ARIZ. REV. STAT. section 33-1260
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 33-1242(A)(2)
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119

Analytics Highlights

Topics: HOA fees, transfer fee, working capital fund, statutory compliance, burden of proof, condominium association, resale disclosure

Additional Citations:

ARIZ. REV. STAT. section 33-1260
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 33-1242(A)(2)
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
A.R.S. § 41-1092.08
A.R.S. § 41-1092.09
A.R.S. § 1-243

Audio Overview

Decision Documents

17f-H1716004-REL Decision – 531040.pdf

Uploaded 2025-10-08T06:51:51 (67.9 KB)

17f-H1716004-REL Decision – 540004.pdf

Uploaded 2025-10-08T06:51:51 (154.0 KB)

Briefing Doc – 17f-H1716004-REL

Briefing Document: Sopatyk v. The Lakeshore Village Condominium Association, Inc.

Executive Summary

——————————————————————————–

Case Overview

Parties and Jurisdiction

Representation

Petitioner

Brian Sopatyk

On his own behalf (Initial Hearing); Nathan Andrews, Esq. & Jill Kennedy, Esq. (Re-Hearing)

Respondent

The Lakeshore Village Condominium Association, Inc.

Bradley R. Jardine, Esq. (Both Hearings)

Jurisdiction

Arizona Department of Real Estate (ADRE)

Authority under A.R.S. Title 32, Ch. 20, Art. 11.

Adjudicator

Administrative Law Judge (ALJ) Thomas Shedden

Office of Administrative Hearings, Phoenix, AZ

Core Allegation and Governing Statute

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Chronology of Legal Proceedings

March 2, 2015

The Association issues a “Disclosure Form” for Mr. Sopatyk’s purchase, listing a $660 transfer fee and a $30 statement fee.

May 18, 2016

The Association’s Board of Directors meets to address Mr. Sopatyk’s claim. They conclude the $660 fee was a mislabeled working capital fee and direct corrective accounting.

August 9, 2016

Mr. Sopatyk files a petition with the Arizona Department of Real Estate.

November 14, 2016

The initial hearing is conducted before ALJ Thomas Shedden.

November 29, 2016

ALJ Shedden issues a decision dismissing Mr. Sopatyk’s petition.

December 13, 2016

The ADRE Commissioner, Judy Lowe, adopts the ALJ’s decision, issuing a Final Order dismissing the case.

February 7, 2017

A Notice of Re-Hearing is issued after Mr. Sopatyk requests one.

June 9, 2017

A re-hearing is conducted before ALJ Thomas Shedden.

June 26, 2017

ALJ Shedden issues a new decision, again dismissing Mr. Sopatyk’s petition.

August 1, 2017

The deadline passes for the ADRE to accept, reject, or modify the ALJ’s re-hearing decision. No action is taken.

August 10, 2017

The Office of Administrative Hearings certifies the ALJ’s decision from the re-hearing as the final administrative decision in the matter.

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Analysis of Arguments and Evidence

Petitioner’s Position (Brian Sopatyk)

• Evidence Presented:

◦ March 2, 2015 Disclosure Form: Showed a required payment of a $660 “transfer fee” and a $30 “statement fee.”

Respondent’s Position (The Lakeshore Village Condo. Association)

• Evidence and Testimony:

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Judicial Findings and Final Disposition

Standard and Burden of Proof

Initial Hearing Decision (November 29, 2016)

• Conclusion of Law: Mr. Sopatyk did not show by a preponderance of the evidence that the Association violated A.R.S. § 33-1260.

• Order: The petition was dismissed, and the decision was adopted as final by the ADRE Commissioner on December 13, 2016.

Re-Hearing Decision (June 26, 2017)

• Order: The petition was again ordered to be dismissed.

Final Administrative Disposition

Brian Sopatk vs. The Lakeshore Village Condo. Assoc., Inc.

Posted on November 29, 2016 by [email protected]

Case Summary

Case ID	17F-H1716004-REL-RHG
Agency	ADRE
Tribunal	OAH
Decision Date	2017-08-10
Administrative Law Judge	Thomas Shedden
Outcome	none
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Brian Sopatyk	Counsel	Nathan Andrews, Esq. and Jill Kennedy, Esq.
Respondent	The Lakeshore Village Condo. Association, Inc.	Counsel	Bradley R. Jardine, Esq.

Alleged Violations

ARIZ. REV. STAT. section 33-1260

Outcome Summary

Key Issues & Findings

Alleged violation of statutory maximum fee for resale disclosure/transfer documents.

Orders: Petitioner Brian D. Sopatyk's petition is dismissed.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

ARIZ. REV. STAT. section 33-1260
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 33-1242(A)(2)
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119

Analytics Highlights

Topics: HOA fees, transfer fee, working capital fund, statutory compliance, burden of proof, condominium association, resale disclosure

Additional Citations:

ARIZ. REV. STAT. section 33-1260
ARIZ. REV. STAT. § 32-2199.01
ARIZ. REV. STAT. § 32-2199.02
ARIZ. REV. STAT. § 33-1242(A)(2)
ARIZ. REV. STAT. Title 32, Ch. 20, Art. 11
ARIZ. ADMIN. CODE § R2-19-119
A.R.S. § 41-1092.08
A.R.S. § 41-1092.09
A.R.S. § 1-243

Audio Overview

Decision Documents

17f-H1716004-REL Decision – 531040.pdf

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17f-H1716004-REL Decision – 540004.pdf

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Briefing Doc – 17f-H1716004-REL

Briefing Document: Sopatyk v. The Lakeshore Village Condominium Association, Inc.

Executive Summary

——————————————————————————–

Case Overview

Parties and Jurisdiction

Representation

Petitioner

Brian Sopatyk

On his own behalf (Initial Hearing); Nathan Andrews, Esq. & Jill Kennedy, Esq. (Re-Hearing)

Respondent

The Lakeshore Village Condominium Association, Inc.

Bradley R. Jardine, Esq. (Both Hearings)

Jurisdiction

Arizona Department of Real Estate (ADRE)

Authority under A.R.S. Title 32, Ch. 20, Art. 11.

Adjudicator

Administrative Law Judge (ALJ) Thomas Shedden

Office of Administrative Hearings, Phoenix, AZ

Core Allegation and Governing Statute

——————————————————————————–

Chronology of Legal Proceedings

March 2, 2015

The Association issues a “Disclosure Form” for Mr. Sopatyk’s purchase, listing a $660 transfer fee and a $30 statement fee.

May 18, 2016

The Association’s Board of Directors meets to address Mr. Sopatyk’s claim. They conclude the $660 fee was a mislabeled working capital fee and direct corrective accounting.

August 9, 2016

Mr. Sopatyk files a petition with the Arizona Department of Real Estate.

November 14, 2016

The initial hearing is conducted before ALJ Thomas Shedden.

November 29, 2016

ALJ Shedden issues a decision dismissing Mr. Sopatyk’s petition.

December 13, 2016

The ADRE Commissioner, Judy Lowe, adopts the ALJ’s decision, issuing a Final Order dismissing the case.

February 7, 2017

A Notice of Re-Hearing is issued after Mr. Sopatyk requests one.

June 9, 2017

A re-hearing is conducted before ALJ Thomas Shedden.

June 26, 2017

ALJ Shedden issues a new decision, again dismissing Mr. Sopatyk’s petition.

August 1, 2017

The deadline passes for the ADRE to accept, reject, or modify the ALJ’s re-hearing decision. No action is taken.

August 10, 2017

The Office of Administrative Hearings certifies the ALJ’s decision from the re-hearing as the final administrative decision in the matter.

——————————————————————————–

Analysis of Arguments and Evidence

Petitioner’s Position (Brian Sopatyk)

• Evidence Presented:

◦ March 2, 2015 Disclosure Form: Showed a required payment of a $660 “transfer fee” and a $30 “statement fee.”

Respondent’s Position (The Lakeshore Village Condo. Association)

• Evidence and Testimony:

——————————————————————————–

Judicial Findings and Final Disposition

Standard and Burden of Proof

Initial Hearing Decision (November 29, 2016)

• Conclusion of Law: Mr. Sopatyk did not show by a preponderance of the evidence that the Association violated A.R.S. § 33-1260.

• Order: The petition was dismissed, and the decision was adopted as final by the ADRE Commissioner on December 13, 2016.

Re-Hearing Decision (June 26, 2017)

• Order: The petition was again ordered to be dismissed.

Final Administrative Disposition

David Carr vs. Sunset Plaza Condominium Association

Posted on September 9, 2016 by [email protected]

Case Summary

Case ID	16F-H1616011-BFS
Agency	ADRE
Tribunal	OAH
Decision Date	2016-09-09
Administrative Law Judge	Thomas Shedden
Outcome	loss
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	David Carr	Counsel	—
Respondent	Sunset Plaza Condo Association	Counsel	Paige Hulton

Alleged Violations

Article VI, Section 2 of By-Laws

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the Association did not violate the By-Laws regarding the special meeting request and that the homeowners' attempted amendments were invalid because authority to amend rests with the Board.

Why this result: Petitioner failed to prove a violation of the By-Laws; the Board had authority to set the meeting schedule and the governing documents did not grant homeowners the power to amend By-Laws without Board action.

Key Issues & Findings

Failure to call special meeting and recognize amendments

Petitioner alleged the HOA Board violated the By-Laws by denying a request for a special meeting and refusing to adopt amendments passed by homeowners at a meeting they organized themselves.

Orders: Petition dismissed. Respondent deemed prevailing party. Respondent's request for civil penalty against Petitioner denied.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Decision Documents

16F-H1616011-BFS Decision – 517259.pdf

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16F-H1616011-BFS Decision – 517327.pdf

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16F-H1616011-BFS Decision – 525294.pdf

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**Case Title:** *David Carr vs. Sunset Plaza Condo Association* (No. 16F-H1616011-BFS)

**Hearing Proceedings**
The hearing was conducted on August 23, 2016, before Administrative Law Judge (ALJ) Thomas Shedden at the Office of Administrative Hearings in Phoenix, Arizona,. The matter was under the jurisdiction of the Arizona Department of Real Estate.

**Key Facts**
Petitioner David Carr alleged that the Respondent, Sunset Plaza Condo Association, violated Article VI, Section 2 of the Association’s By-Laws. The dispute originated when six homeowners submitted a written request for a special meeting to be held on February 13, 2016, or if that date was unacceptable, within thirty days.

The Board denied the request for the February 13 date, noting that an open meeting was already scheduled for February 22, 2016, at which homeowners could discuss agenda items. Despite the Board's decision, nine homeowners gathered on February 13 for what they deemed a special meeting and voted to approve revisions to the By-Laws and Rules. The Board refused to incorporate these changes, prompting Carr to file the petition,.

**Main Issues and Arguments**
The primary legal issues were whether the Board violated the By-Laws by failing to schedule the requested special meeting and whether the homeowners had the authority to amend governing documents unilaterally.

* **Petitioner’s Argument:** Carr argued that the Board violated the By-Laws and that a conflict existed between the By-Laws and the Declaration, asserting the Declaration was controlling,. He sought an order compelling the Association to adopt the amendments passed on February 13.
* **Respondent’s Argument:** The Association contended that Carr attempted to amend the By-Laws by improper means and requested that Carr be assessed a civil penalty for filing a frivolous petition.

**Legal Analysis and Findings**
The ALJ applied the standard of preponderance of the evidence.

1. **Alleged By-Law Violation:** The ALJ found the Board did not violate Article VI, Section 2. The homeowners' written request explicitly permitted the meeting to be held within thirty days of February 13. By providing a meeting on February 22, the Board acted within the timeframe requested.
2. **Authority to Amend:** The ALJ determined there was no conflict between the governing documents. The By-Laws and Declaration vest the authority to amend rules and by-laws in the Board, not the homeowners. While rule amendments require homeowner approval to become binding, the initiation and adoption process lies with the Board,. Consequently, the homeowners lacked the authority to validly amend the documents at their February 13 meeting.

**Outcome and Final Decision**
The ALJ ordered the dismissal of David Carr's petition, ruling that he failed to provide substantial evidence to support his claims,. The Association was deemed the prevailing party.

Regarding the Respondent's request for sanctions, the ALJ denied the civil penalty against Carr. The judge reasoned that although Carr had misconstrued the condominium documents, the Association failed to demonstrate that he had actually violated them.

The decision was certified as the final administrative decision of the Department of Real Estate on October 26, 2016.

Case Participants

Petitioner Side

David Carr (petitioner)
Appeared on his own behalf

Respondent Side

Paige Hulton (attorney)
Mulcahy Law Firm, PC
Attorney for Respondent at hearing
Beth Mulcahy (attorney)
Mulcahy Law Firm, PC
Listed on mailing list for final certification

Neutral Parties

Thomas Shedden (ALJ)
Office of Administrative Hearings
Presiding Administrative Law Judge
Judy Lowe (Commissioner)
Arizona Department of Real Estate
Recipient of decision
Greg Hanchett (Interim Director)
Office of Administrative Hearings
Certified the decision
Rosella J. Rodriguez (clerk)
Office of Administrative Hearings
Processed mailing of certification

Other Participants

Leslie Grant (homeowner)
Wrote letters regarding special meeting; provided replacement ballot

Walter Ward Griffith Jr. v. Alisanos Community Association

Posted on April 15, 2016 by [email protected]

Case Summary

Case ID	15F-H1516011-BFS
Agency	Department of Fire, Building and Life Safety
Tribunal	OAH
Decision Date	2016-04-08
Administrative Law Judge	Thomas Shedden
Outcome	yes
Filing Fees Refunded	$750.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Walter Ward Griffith, Jr.	Counsel	—
Respondent	Alisanos Community Association	Counsel	Mark Sahl, Esq. and Greg Stein, Esq.

Alleged Violations

CC&R Section 7.7

Outcome Summary

The ALJ ruled in favor of the Petitioner. Although the Petitioner installed the tree ring without explicit written approval in 2009, the Respondent conducted routine inspections and had constructive notice of the improvement at that time but failed to object until 2014. Due to the delay and constructive notice, Respondent failed to meet its burden of proof to show a violation.

Key Issues & Findings

Unauthorized Exterior Alteration (Concrete Tree Ring)

Respondent alleged Petitioner violated CC&R Section 7.7 by installing a concrete ring around a jacaranda tree without Architectural Review Committee approval. Petitioner argued the ring was approved with the tree or that Respondent had constructive notice.

Orders: Respondent must repay to Petitioner his filing fee of $750.00.

Filing fee: $750.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

Decision Documents

15F-H1516011-BFS Decision – 491042.pdf

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15F-H1516011-BFS Decision – 499790.pdf

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**Case Summary: Griffith v. Alisanos Community Association**
**Case No:** 15F-H1516011-BFS
**Forum:** Arizona Office of Administrative Hearings
**Date:** April 8, 2016 (Certified Final June 3, 2016)

**Proceedings and Issue**
This hearing involved a dispute between Petitioner Walter Ward Griffith, Jr. and Respondent Alisanos Community Association regarding the community’s Covenants, Conditions and Restrictions (CC&Rs). While the Petitioner initiated the action, the parties agreed to amend the hearing issue to determine whether the Petitioner violated CC&R Section 7.7, which prohibits exterior property alterations without Architectural Review Committee approval. The specific object in dispute was a concrete ring installed around a jacaranda tree in the Petitioner's yard.

**Key Facts and Arguments**
* **Petitioner’s Position:** Griffith received approval to plant the jacaranda tree in December 2008. He argued that his submitted plan included a "squiggly line" intended to represent the concrete ring, meaning the structure was approved. He completed the installation in early 2009. He further argued that the Association conducted inspections of his property in 2009 regarding a separate issue (artificial grass) and did not object to the ring at that time.
* **Respondent’s Position:** The Association argued the ring was never approved by the Committee. They asserted that they did not notice the ring until 2012 or 2013, claiming it only became visible after tree roots lifted it. The Association first issued a written notice of the alleged violation in January 2014.

**Legal Analysis and Findings**
Administrative Law Judge (ALJ) Thomas Shedden applied the preponderance of the evidence standard, noting that the Respondent bore the burden of proof to establish the violation.

1. **Approval Defense:** The ALJ found the Petitioner failed to prove the ring was explicitly approved in 2008. The judge noted that "squiggly lines" on landscape plans typically represent bushes or trees, not concrete structures.
2. **Constructive Notice:** Despite the lack of initial approval, the ALJ determined that the Respondent had **constructive notice** of the ring in 2009. This conclusion was based on evidence that the Association conducted routine inspections of the Petitioner's yard in 2009 and reserved the right to inspect completed improvements.
3. **Failure to Meet Burden:** Because the Association had constructive notice of the structure in 2009 but failed to inform the Petitioner of the alleged violation until 2014, the ALJ concluded the Respondent failed to meet its burden of proof that a violation of CC&R Section 7.7 existed at the time of the hearing.

**Outcome**
The ALJ ruled that the Petitioner was the prevailing party. The Respondent was ordered to refund the Petitioner’s $750.00 filing fee. The decision became final on June 3, 2016, after the relevant state department declined to modify or reject the ALJ's decision.

Case Participants

Petitioner Side

Walter Ward Griffith, Jr. (petitioner)
Appeared on his own behalf

Respondent Side

Mark Sahl (attorney)
Carpenter, Hazlewood, Delgado & Bolen PLC
Appeared for Respondent
Greg Stein (attorney)
Carpenter, Hazlewood, Delgado & Bolen PLC
Appeared for Respondent
Brian Moore (board member)
Alisanos Community Association
Testified at hearing
Greg Kotsakis (committee member)
Alisanos Community Association
Architectural Review Committee member
Augustus Shaw (board member)
Alisanos Community Association
Mentioned in video recording regarding board meeting

Neutral Parties

Thomas Shedden (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Debra Blake (Interim Director)
Department of Fire, Building and Life Safety
Recipient of decision transmission
Greg Hanchett (Interim Director)
Office of Administrative Hearings
Signed Certification of Decision
Joni Cage (staff)
Department of Fire, Building and Life Safety
Care of recipient for Debra Blake
Rosella J. Rodriguez (staff)
Office of Administrative Hearings
Signed mailing certification

Attila Revesz vs. Shadow Mountain Villas Condominium ,Association of Phoenix

Posted on October 26, 2015 by [email protected]

Case Summary

Case ID	15F-H1415008-BFS
Agency	DFBLS
Tribunal	OAH
Decision Date	2015-05-22
Administrative Law Judge	Thomas Shedden
Outcome	no
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Attila Revesz	Counsel	—
Respondent	Shadow Mountain Villas Condominium Association of Phoenix	Counsel	Craig Boates

Alleged Violations

Article 2.1

Outcome Summary

The ALJ dismissed the petition, finding that the Petitioner failed to meet the burden of proof regarding the alleged lack of quorum at the annual meeting. The Respondent was deemed the prevailing party.

Why this result: Evidence showed that a quorum was present at the meeting.

Key Issues & Findings

Annual Meeting Quorum

Petitioner alleged the HOA violated Bylaws Article 2.1 because the 2014 annual meeting lacked a quorum of board members and homeowners.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_lose

Cited:

Article 2.1

Decision Documents

15F-H1415008-BFS-rhg Decision – 463171.pdf

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15F-H1415008-BFS-rhg Decision – 469839.pdf

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**Case Summary: Revesz v. Shadow Mountain Villas Condominium Association**
**Case No:** 15F-H1415008-BFS-rhg

**Procedural Overview**
This matter involves a dispute between homeowner Attila Revesz (Petitioner) and the Shadow Mountain Villas Condominium Association (Respondent). The proceedings occurred in two phases: an original hearing decided in May 2015 and a subsequent rehearing decided in October 2015. This summary explicitly distinguishes between the two to prevent conflation of the outcomes.

**1. Original Hearing Proceedings (May 2015)**
* **Main Issue:** The Petitioner alleged the Respondent violated Article 2.1 of its Bylaws regarding the annual meeting held on May 22, 2014. The central dispute was whether a quorum existed. The Petitioner claimed the meeting was improper because Board member Angelo Peri was not physically present.
* **Key Arguments:**
* **Petitioner:** Revesz argued that Mr. Peri was not present via telephone because no landline or phone was visible in the meeting room. He also pointed to draft minutes that initially listed Peri as absent.
* **Respondent:** The Association's management agent testified that Mr. Peri was present via cell phone and that a quorum of homeowners was present in person or by proxy. The Respondent argued that draft minutes contained errors which were later corrected.
* **Legal Findings:** The Administrative Law Judge (ALJ) found the Respondent’s testimony credible regarding the presence of a quorum. Crucially, the ALJ noted that the Petitioner accepted his own election to the Board at the disputed meeting and acted in the capacity of a director throughout 2014, thereby tacitly accepting the meeting's validity.
* **Original Outcome:** The Petitioner failed to prove the violation by a "preponderance of the evidence". The petition was dismissed, and Shadow Mountain was deemed the prevailing party.

**2. Rehearing Proceedings (October 2015)**
Following the initial dismissal, the matter returned for a rehearing under case number 15F-H1415008-BFS-rhg.
* **Proceedings:** The rehearing was scheduled for October 22, 2015. The Petitioner failed to appear.
* **Procedural Failures:**
* **Motion to Continue:** The Respondent’s attorney indicated they received a Motion to Continue from the Petitioner. However, the ALJ verified that the Petitioner never filed this motion with the Office of Administrative Hearings.
* **Failure to Disclose:** The Respondent noted, and the court accepted, that the Petitioner failed to file and

Case Participants

Petitioner Side

Attila Revesz (petitioner)
Shadow Mountain Villas Condominium Association
Homeowner and board member; erroneously listed as Attilla Balbo in some minutes,,
Rick Sanchez (witness)
Homeowner and board member,,

Respondent Side

Craig Boates (attorney)
Boates & Crump, PLLC; Boates Law Firm, PLLC
Also listed as Craighton T. Boates,,
Jo-Ann Greenstein (witness)
RealManage
Vice-President of RealManage (agent for Respondent),
Russell Hutchinson (board member)
Shadow Mountain Villas Condominium Association
Shelly Rothgeb (board member)
Shadow Mountain Villas Condominium Association
Angelo Peri (board member)
Shadow Mountain Villas Condominium Association
,

Neutral Parties

Thomas Shedden (ALJ)
Office of Administrative Hearings
,,
Gene Palma (Director)
Department of Fire, Building and Life Safety
Greg Hanchett (Interim Director)
Office of Administrative Hearings
,
Debra Blake (Director)
Department of Fire, Building and Life Safety
Interim Director,,
Joni Cage (administrative staff)
Department of Fire, Building and Life Safety
c/o for Debra Blake,
Rosella J. Rodriguez (administrative staff)
Office of Administrative Hearings
,

Attila Revesz vs. Shadow Mountain Villas Condominium Association of Phoenix

Posted on May 22, 2015 by [email protected]

Case Summary

Case ID	15F-H1415008-BFS
Agency	DFBLS
Tribunal	OAH
Decision Date	2015-05-22
Administrative Law Judge	Thomas Shedden
Outcome	no
Filing Fees Refunded	$500.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Attila Revesz	Counsel	—
Respondent	Shadow Mountain Villas Condominium Association of Phoenix	Counsel	Craig Boates

Alleged Violations

Article 2.1

Outcome Summary

The Administrative Law Judge deemed Shadow Mountain Villas Condominium Association the prevailing party and dismissed Attila Revesz's petition. The ALJ concluded that the Petitioner failed to prove by a preponderance of the evidence that the Association violated Article 2.1 of the Bylaws regarding the annual meeting and quorum requirements.

Why this result: The ALJ found credible testimony that a quorum was present (including a member via telephone) and Petitioner offered no substantial evidence to the contrary.

Key Issues & Findings

Failure to hold valid annual meeting

Petitioner alleged that the HOA violated Bylaws Article 2.1 by failing to hold a valid annual meeting. Petitioner claimed a quorum was not present because a board member attended by telephone, which Petitioner disputed. The ALJ found credible testimony that the board member attended by phone and a quorum of homeowners was present.

Orders: The petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

Article 2.1 of Bylaws

Decision Documents

15F-H1415008-BFS Decision – 442072.pdf

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15F-H1415008-BFS Decision – 447098.pdf

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**Case Title:** *Attila Revesz v. Shadow Mountain Villas Condominium Association of Phoenix*
**Case Number:** 15F-H1415008-BFS (and rehearing 15F-H1415008-BFS-rhg)
**Forum:** Arizona Office of Administrative Hearings

### **Summary of Proceedings**

**1. Initial Hearing and Decision (May 2015)**
The Petitioner, Attila Revesz, filed a Single Issue Petition alleging that the Respondent, Shadow Mountain Villas, violated Article 2.1 of its Bylaws by failing to hold a valid annual meeting in 2014.

* **Key Arguments:**
* **Petitioner:** Revesz argued that although a meeting occurred on May 22, 2014, it was invalid because a quorum of Board members was not present. Specifically, he alleged Board member Angelo Peri was not present by telephone, noting the absence of a visible landline or speakerphone in the room.
* **Respondent:** Represented by counsel and the management agent (RealManage), the Respondent argued that a quorum was present. The management agent testified that Mr. Peri attended via cell phone and that a quorum of homeowners was established in person or by proxy.

* **Evidence and Findings:**
* The Administrative Law Judge (ALJ) found the management agent’s testimony credible regarding the presence of a quorum.
* The ALJ noted significant inconsistencies in the Petitioner’s position. Revesz and his witness, Rick Sanchez, were elected to the Board during the disputed May 22, 2014 meeting. Evidence showed they subsequently acted in the capacity of Board members throughout 2014. The ALJ concluded that acting as a director demonstrated Revesz accepted the validity of the election held at the meeting he sought to challenge.
* Conflicting minutes were presented; however, the Respondent’s minutes showing Mr. Peri as present were accepted as credible over the Petitioner’s draft minutes.

* **Outcome:** The ALJ ruled that Revesz failed to meet the burden of proof by a preponderance of the evidence. The petition was dismissed on May 22, 2015. This decision was certified as final on July 1, 2015.

**2. Rehearing Proceedings (October 2015)**
A rehearing was scheduled for October 22, 2015, regarding the same matter.

* **Procedural Default:** The Petitioner failed to appear at the scheduled hearing time. Although Respondent’s counsel indicated the Petitioner had sent them a Motion to Continue, the ALJ confirmed that no such motion was filed with the Office of Administrative Hearings.
* **Procedural Violations:** The Respondent noted that the Petitioner had failed to file or serve a required list of witnesses and exhibits.
* **Final Decision:** Due to the Petitioner's failure to appear, prosecute the matter, or comply with evidentiary filings, the ALJ dismissed the petition. This dismissal was certified as the final administrative decision on December 8, 2015.

### **Final Legal Conclusion**
The Petitioner failed to prove a violation of the Association's Bylaws regarding the 2014 annual meeting quorum. The matter was ultimately dismissed with prejudice following the Petitioner’s failure to prosecute the rehearing. Shadow Mountain Villas Condominium Association was deemed the prevailing party.

Case Participants

Petitioner Side

Attila Revesz (Petitioner)
Homeowner
Also referred to erroneously as Attilla Balbo in board minutes
Rick Sanchez (witness)
Testified for Petitioner; acted as board member in 2014

Respondent Side

Craig Boates (attorney)
Boates & Crump, PLLC; Boates Law Firm, PLLC
Full name Craighton T. Boates
Jo-Ann Greenstein (witness)
RealManage
Vice-president of RealManage (agent for Respondent)
Russell Hutchinson (board member)
Shadow Mountain Villas Condominium Association
Present at May 22, 2014 meeting
Shelly Rothgeb (board member)
Shadow Mountain Villas Condominium Association
Present at May 22, 2014 meeting
Angelo Peri (board member)
Shadow Mountain Villas Condominium Association
Present via telephone at May 22, 2014 meeting

Neutral Parties

Thomas Shedden (ALJ)
Office of Administrative Hearings
Presided over hearing and rehearing dismissal
Gene Palma (Director)
Department of Fire, Building and Life Safety
Recipient of transmitted decision
Greg Hanchett (Interim Director)
Office of Administrative Hearings
Certified the ALJ decisions
Debra Blake (Director)
Department of Fire, Building and Life Safety
Interim Director; recipient of transmitted decision
Joni Cage (staff)
Department of Fire, Building and Life Safety
Care of for Debra Blake
Rosella J. Rodriguez (staff)
Office of Administrative Hearings
Mailed/e-mailed/faxed copies of decisions

Kenneth Nowell vs. Greenfield Village RV Resort

Posted on May 11, 2015 by [email protected]

Case Summary

Case ID	14F-H1415011-BFS
Agency	Department of Fire, Building and Life Safety
Tribunal	OAH
Decision Date	2015-05-11
Administrative Law Judge	Thomas Shedden
Outcome	no
Filing Fees Refunded	$0.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Kenneth Nowell	Counsel	—
Respondent	Greenfield Village RV Resort Association, Inc.	Counsel	Steven D. Leach

Alleged Violations

CC&Rs 6.4, 6.5; Bylaws 6.4, 10.2
Bylaws 6.4
CC&Rs 3.25, 6.4(b)

Outcome Summary

The ALJ dismissed the petition, ruling that the Petitioner failed to prove by a preponderance of the evidence that the Association violated the CC&Rs or Bylaws regarding land acquisition, financial assessments, or construction projects.

Why this result: Burden of proof not met; Association actions were found to be within their authority and properly voted upon where required.

Key Issues & Findings

Land Purchase and Funding of Improvements

Petitioner alleged the Association violated governing documents by purchasing land and levying assessments/loans without a 2/3 vote. The ALJ found the Association had authority and the required majority votes were obtained.

Orders: Dismissed

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

The $20,000 Option

Petitioner alleged the Board required a membership vote to purchase a $20,000 land option. The ALJ found the expenditure did not exceed the threshold requiring a vote.

Orders: Dismissed

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

The Beverage Serving Center

Petitioner alleged the Board constructed a serving center without a vote (changing common area nature) and improperly used reserve funds. The ALJ found it was a replacement (allowed) and did not change the nature of the area.

Orders: Dismissed

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

Decision Documents

14F-H1415011-BFS Decision – 440536.pdf

Uploaded 2026-01-28T11:12:09 (117.3 KB)

14F-H1415011-BFS Decision – 446583.pdf

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**Case Summary: Nowell v. Greenfield Village RV Resort**
**Case No.** 14F-H1415011-BFS

**Hearing Proceedings and Background**
The hearing was conducted on April 21, 2015, before Administrative Law Judge Thomas Shedden at the Office of Administrative Hearings in Phoenix, Arizona. Petitioner Kenneth Nowell, a resident, filed a petition alleging that Respondent Greenfield Village RV Resort Association, Inc. violated its Covenants, Conditions, and Restrictions (CC&Rs) and Bylaws.

The dispute centered on the Association’s authority and procedures regarding three specific actions: the purchase of land at 4711 East Main Street, the purchase of an option to buy that land, and the construction of a beverage serving center. The Petitioner bore the burden of proof by a preponderance of the evidence.

**Key Arguments and Legal Findings**

**1. Land Purchase and Assessment**
The Association held an election in February 2014 where the membership voted to purchase and improve specific land.
* **Petitioner’s Argument:** Nowell alleged the Association lacked the authority to acquire property and that the assessment used to fund the purchase required approval by two-thirds of the membership.
* **Legal Finding:** The ALJ found that the Articles of Incorporation expressly authorize the Association to acquire property. Regarding the vote, the evidence showed the land was funded by a general assessment, not a special assessment as alleged. Regardless, the CC&Rs and Bylaws require only a majority vote for ratification of assessments, not a two-thirds vote. The assessments were properly ratified .

**2. The $20,000 Land Option**
Prior to the 2014 election, the Board authorized a $20,000 expenditure from operating funds to secure an option on the land.
* **Petitioner’s Argument:** Nowell argued the Association was required to hold a membership vote to authorize this expenditure.
* **Legal Finding:** The Bylaws require a membership vote only for capital expenditures *in excess* of $20,000. Because the expenditure did not exceed this threshold, Nowell failed to prove a vote was required.

**3. The Beverage Serving Center**
The Board approved the construction of a new beverage serving center to replace an old facility located in a flood-prone retention basin

Case Participants

Petitioner Side

Kenneth Nowell (Petitioner)
Resident appearing on his own behalf

Respondent Side

Steven D. Leach (attorney)
Jones, Skelton & Hochuli, P.L.C.
Attorney for Respondent
Ron Thorstad (witness)
Greenfield Village RV Resort Association, Inc.
Association President; testified at hearing

Neutral Parties

Thomas Shedden (ALJ)
Office of Administrative Hearings
Administrative Law Judge
Gene Palma (Agency Director)
Department of Fire Building and Life Safety
Director listed on transmission
Greg Hanchett (OAH Director)
Office of Administrative Hearings
Interim Director; signed Certification of Decision
Debra Blake (Agency Director)
Department of Fire Building and Life Safety
Director; recipient of certified decision
Joni Cage (Agency Staff)
Department of Fire Building and Life Safety
c/o for Debra Blake
Rosella J. Rodriguez (OAH Staff)
Office of Administrative Hearings
Signed mailing certificate

Sawyer, Mike vs. Terramar Homeowners Association

Posted on June 13, 2008 by [email protected]

Case Summary

Case ID	08F-H088013-BFS
Agency	Department of Fire, Building and Life Safety
Tribunal	OAH
Decision Date	2008-06-13
Administrative Law Judge	Thomas Shedden
Outcome	yes
Filing Fees Refunded	$550.00
Civil Penalties	$0.00

Parties & Counsel

Petitioner	Mike Sawyer	Counsel	—
Respondent	Terramar Homeowners Association	Counsel	R. Corey Hill

Alleged Violations

A.R.S. § 33-1813

Outcome Summary

The Administrative Law Judge ruled in favor of the Petitioner, finding that the recall petition contained sufficient signatures (305 out of 1550 members) to trigger an election under A.R.S. § 33-1813. The HOA's defenses regarding the validity of the signatures were rejected because they offered no actual proof of the alleged defects (e.g., forgeries, ineligible signers) aside from hearsay regarding one individual.

Key Issues & Findings

Failure to hold recall election

Petitioner alleged the HOA violated statutes by failing to conduct a recall election upon receipt of a petition signed by more than 10% of the members. The HOA argued the petition was defective due to forged signatures, lack of solicitor verification, and other procedural issues but failed to provide sufficient evidence to support these affirmative defenses.

Orders: The HOA is ordered to comply with A.R.S. § 33-1813 by holding a recall election for the four named board members within 30 days and to refund the Petitioner's $550.00 filing fee.

Filing fee: $550.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

A.R.S. § 33-1813
A.R.S. § 41-2198
A.R.S. § 16-315

Decision Documents

08F-H088013-BFS Decision – 192785.pdf

Uploaded 2026-01-25T15:22:50 (100.7 KB)

Briefing Doc – 08F-H088013-BFS

Briefing Document: Sawyer v. Terramar Homeowners Association (No. 08F-H088013-BFS)

Executive Summary

This document provides a comprehensive synthesis of the administrative hearing decision regarding the dispute between Petitioner Mike Sawyer and Respondent Terramar Homeowners Association (HOA). The central issue was the HOA’s failure to conduct a recall election for four board members despite receiving a petition signed by over 10% of the membership.

The Administrative Law Judge (ALJ) ruled in favor of Mike Sawyer, finding that the HOA failed to provide evidence supporting its claims that the petition was legally or procedurally defective. Consequently, the HOA was ordered to hold the recall election within 30 days and reimburse the petitioner’s filing fee.

Case Overview

• Petitioner: Mike Sawyer

• Respondent: Terramar Homeowners Association

• Targeted Board Members: Ben Dass, Don Flickinger, Keith Miller, and David Mosienko.

• Primary Allegation: The HOA violated A.R.S. § 33-1813 by refusing to hold a recall election after being presented with a valid petition.

Arguments and Affirmative Defenses

The HOA contended that the petition was invalid based on several alleged procedural and legal defects. Their defense relied on both specific allegations and broader public policy arguments.

Alleged Petition Defects

The HOA asserted the following issues rendered the signatures invalid:

• Solicitation Issues: Failure to identify those soliciting signatures and failure to verify that solicitors were HOA residents.

• Petitioner Identity: Failure to properly identify the petitioner.

• Signatory Eligibility: Inclusion of signatures from renters, homeowners ineligible to vote (due to CC&R violations), and signatures that appeared to be forged.

• Physical Evidence: Claims that some street names were misspelled and that multiple entries appeared to be written in the same hand or the same ink color.

Public Policy Defense

The HOA argued that, as a matter of public policy, the petition should conform to state election laws found in A.R.S. Title 16.

Evidence and Testimony Analysis

The tribunal examined the validity of the petition through testimony from both parties and a review of the physical evidence.

Quantitative Analysis of the Petition

• Total Membership: Approximately 1,550 members.

• Statutory Requirement: A.R.S. § 33-1813 requires a petition signed by at least 10% of the members (approximately 155 signatures) to trigger a recall.

• Petition Count: The submitted petition contained 305 signatures, nearly double the required threshold.

Witness Testimonies

• Mike Sawyer (Petitioner): Testified that he was a homeowner who signed and solicited signatures. He admitted he did not sign the pages he solicited because he did not believe it was a requirement.

• Ben Dass (HOA President): Testified that the HOA hired an independent lawyer with private funds to investigate the petition. He claimed to have spoken with renters and individuals who denied signing, though he provided no specific details or counts of these instances.

• Dr. Keith Miller (HOA Board Member): Expressed suspicion over misspelled street names and ink colors. While he alleged many signatures were invalid due to CC&R violations, he provided no supporting details or specific names. Notably, he had previously testified in a different court that there were 180 valid signatures, a statement he dismissed at this hearing as “guessing.”

• Rick Card (Rebuttal Witness): Contradicted the HOA’s claim regarding a specific signatory, Lawrence “Hap” Flayter. While the HOA provided a letter from Mr. Flayter stating he did not recall signing, Mr. Card testified that he personally witnessed Mr. Flayter sign the petition.

Legal Conclusions

The ALJ’s decision was based on the application of Arizona statutes and the failure of the HOA to meet its burden of proof regarding its affirmative defenses.

Application of Law

1. Jurisdiction: The Office of Administrative Hearings has the authority to determine if a planned community violated A.R.S. Title 33.

2. Burden of Proof: The HOA bore the burden of proving its affirmative defenses regarding the petition’s defects. The standard of proof was a “preponderance of the evidence.”

3. Inapplicability of Title 16: The ALJ rejected the HOA’s public policy argument, noting there was no evidence that the HOA’s governing documents (Articles of Incorporation, Bylaws, or CC&Rs) required petitions to conform to state election laws (Title 16).

Findings on Credibility and Evidence

• Lack of Specificity: The HOA failed to provide the names or the specific number of signatures they believed were forged or invalid.

• Suspect Credibility: Dr. Miller’s testimony was deemed suspect because he based his suspicions on ink colors and handwriting while simultaneously admitting he had only seen copies, not the original petition.

• Hearsay: The letter and hearsay testimony regarding Mr. Flayter were given “no appreciable weight” because he did not testify and was not subject to cross-examination.

Final Order

The Administrative Law Judge ruled that Mike Sawyer sustained his burden of proof and was the prevailing party. The following orders were issued:

• Recall Election: Terramar HOA must comply with A.R.S. § 33-1813 and hold a recall election for board members Ben Dass, Don Flickinger, Keith Miller, and David Mosienko within 30 days of the effective date of the order (June 13, 2008).

• Financial Restitution: Terramar HOA must pay Mike Sawyer $550.00 for his filing fee within 30 days.

• Finality: This order constitutes the final administrative decision and is enforceable through contempt of court proceedings.

Study Guide – 08F-H088013-BFS

Study Guide: Sawyer v. Terramar Homeowners Association

This study guide provides a comprehensive review of the administrative law case between Mike Sawyer and the Terramar Homeowners Association. It examines the legal requirements for homeowner association (HOA) recall elections, the burden of proof in administrative hearings, and the specific findings of fact that led to the judicial order.

Part 1: Short Answer Quiz

Instructions: Answer the following questions based on the provided administrative decision. Each answer should be between two and three sentences.

1. What was the central allegation made by the petitioner, Mike Sawyer, against the Terramar Homeowners Association?

2. Which specific individuals were the targets of the recall petition submitted by the homeowners?

3. What procedural and legal defects did the HOA allege rendered the petition invalid in its initial response?

4. How did the HOA attempt to use A.R.S. Title 16 to defend its decision not to hold the election?

5. Why did HOA President Ben Dass use private funds rather than HOA funds to hire an independent lawyer for handwriting analysis?

6. What was the nature of the dispute regarding Lawrence “Hap” Flayter’s signature on the petition?

7. What specific suspicions did Dr. Keith Miller raise regarding the physical appearance of the petition pages?

8. According to the Conclusions of Law, what is the specific jurisdictional limit of the Office of Administrative Hearings in disputes involving planned communities?

9. How did the Administrative Law Judge determine that the petition met the statutory threshold for a recall election?

10. What were the three specific requirements mandated by the Administrative Law Judge’s final order?

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Part 2: Answer Key

1. Mike Sawyer alleged that the Terramar Homeowners Association violated A.R.S. § 33-1813 by failing to hold a recall election for four board members after being presented with a valid petition. He filed this petition with the Arizona Department of Fire, Building and Life Safety on March 27, 2008.

2. The petition specifically called for the removal of board members Ben Dass, Don Flickinger, Keith Miller, and David Mosienko. These individuals were identified in the petition as the subjects of the requested recall election.

3. The HOA claimed the petition failed to identify those soliciting signatures or verify they were residents, and failed to identify the petitioner. Additionally, they alleged the petition included invalid signatures from renters, signatures from homeowners ineligible to vote, and forged signatures.

4. The HOA asserted that public policy, as supported by the election laws in A.R.S. Title 16, should be applied to the petition process. However, the Judge ruled Title 16 was inapplicable because the HOA’s governing documents did not require petitions to conform to state election laws.

5. Ben Dass hired an independent lawyer with private funds because he wanted to avoid potential allegations of misusing HOA funds. This lawyer was retained to oversee a handwriting analysis of the signatures on the petition.

6. The HOA provided a letter from Mr. Flayter stating he did not recall signing the petition and did not want to be included. In contrast, witness Rick Card provided rebuttal testimony claiming he personally saw Mr. Flayter sign the document.

7. Dr. Miller testified that he was suspicious because some street names were misspelled and several entries appeared to be written by the same hand. He also noted that many signatures were written in the same color of ink, though he admitted he had only viewed copies of the petition.

8. The Office of Administrative Hearings has limited jurisdiction to determine if a homeowners association violated A.R.S. Title 33, Chapter 9 or 16, or the association’s specific governing documents. These documents include the Articles of Incorporation, Bylaws, and Covenants, Conditions, and Restrictions (CC & Rs).

9. The Judge found that the petition contained 305 signatures, which exceeded the 10% requirement for a recall election under A.R.S. § 33-1813. This calculation was based on Dr. Miller’s testimony that there are approximately 1,550 members in the HOA.

10. The order required that Mike Sawyer be deemed the prevailing party and that the HOA must hold a recall election for the four specified board members within 30 days. Furthermore, the HOA was ordered to reimburse Sawyer for his $550.00 filing fee.

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Part 3: Essay Questions

Instructions: Use the case facts and legal principles described in the source text to develop comprehensive responses to the following prompts.

1. The Burden of Proof and Affirmative Defenses: Analyze the role of the “preponderance of the evidence” standard in this case. How did the HOA’s failure to provide specific details—such as the names of allegedly forged signatures or the number of ineligible voters—impact the Judge’s ruling on their affirmative defenses?

2. Credibility of Testimony: Evaluate the Judge’s assessment of witness credibility, specifically regarding Dr. Keith Miller and Ben Dass. Why was Dr. Miller’s testimony about the color of the ink on the petition used to undermine his overall credibility?

3. Hearsay and Evidence Weight: Discuss why the letter from Lawrence “Hap” Flayter and the hearsay testimony regarding his signature were given “no appreciable weight” by the Administrative Law Judge. Compare this to the weight given to the live, cross-examined testimony of Rick Card.

4. Statutory Interpretation vs. Public Policy: The Respondent argued that A.R.S. Title 16 (Election Laws) should apply to HOA recall petitions based on public policy. Explain the Judge’s reasoning for rejecting this argument and why the HOA’s own governing documents are the primary authority in such matters.

5. Administrative Remedies and Enforcement: Examine the final orders issued by the ALJ. What is the significance of the 30-day timeline, the reimbursement of the filing fee, and the statement that the order is enforceable through contempt of court proceedings?

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Part 4: Glossary of Key Terms

Definition

A.R.S. § 33-1813

The Arizona Revised Statute that governs the process and requirements for the removal of board members in a planned community.

A.R.S. § 41-2198

The statutory authority that allows the Office of Administrative Hearings to conduct evidentiary hearings in disputes between members and planned communities.

Administrative Law Judge (ALJ)

An official who presides over an administrative hearing, evaluates evidence and testimony, and issues a decision and order.

Affirmative Defense

A fact or set of facts other than those alleged by the petitioner which, if proven by the respondent, defeats or mitigates the legal consequences of the respondent’s otherwise unlawful conduct.

CC & Rs

Covenants, Conditions, and Restrictions; the governing documents that outline the rules and limitations for property owners within a planned community.

Hearsay

An out-of-court statement offered in court to prove the truth of the matter asserted; in this case, the judge gave such evidence little weight because the declarant was not subject to cross-examination.

Petitioner

The party who initiates a legal action or appeal; in this case, Mike Sawyer.

Preponderance of the Evidence

The standard of proof in civil and administrative cases, meaning that the claim is more likely to be true than not true.

Prevailing Party

The party in a lawsuit who successfully wins the case or obtains the relief sought; here, the Petitioner.

Respondent

The party against whom a petition is filed; in this case, the Terramar Homeowners Association.

Blog Post – 08F-H088013-BFS