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Sellers, John A. v. Rancho Madera Condominium Association

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Case Summary

Case ID 19F-H1919066-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-08-26
Administrative Law Judge Antara Nath Rivera
Outcome The ALJ dismissed the petition, ruling that the Petitioner failed to prove by a preponderance of the evidence that the Association violated A.R.S. § 33-1258. The Association provided available records, and the remaining requested items either did not exist or were properly withheld under statutory exceptions for privileged communications and pending litigation.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John A Sellers Counsel —
Respondent Rancho Madera Condominium Association Counsel Edward D. O'Brien

Alleged Violations

A.R.S. § 33-1258

Outcome Summary

The ALJ dismissed the petition, ruling that the Petitioner failed to prove by a preponderance of the evidence that the Association violated A.R.S. § 33-1258. The Association provided available records, and the remaining requested items either did not exist or were properly withheld under statutory exceptions for privileged communications and pending litigation.

Why this result: Petitioner failed to establish that the requested documents existed or were improperly withheld. The Respondent successfully demonstrated that it had provided all non-privileged records in its possession and that specific meeting minutes and emails did not exist.

Key Issues & Findings

Failure to Provide Records

Petitioner alleged the Association failed to provide records requested on April 29, 2019, specifically emails regarding specific individuals, legal invoices, executive session minutes, and communications regarding a petition signing.

Orders: The Petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1258
  • A.R.S. § 33-1248

Video Overview

Audio Overview

Decision Documents

19F-H1919066-REL Decision – 733561.pdf

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19F-H1919066-REL Decision – 733561.pdf

Uploaded 2026-02-11T06:35:50 (99.9 KB)

Administrative Law Judge Decision: Sellers v. Rancho Madera Condominium Association

Executive Summary

This briefing document summarizes the administrative law judge (ALJ) decision regarding a dispute between John A. Sellers (Petitioner) and the Rancho Madera Condominium Association (Respondent). The case, presided over by ALJ Antara Nath Rivera, centered on allegations that the Association violated Arizona Revised Statutes (A.R.S.) § 33-1258 by failing to provide requested records in a timely and complete manner.

The Petitioner submitted a consolidated records request on April 29, 2019, seeking legal invoices, communications with specific third parties, executive session minutes, and records regarding a member petition. Following a hearing on August 5, 2019, the ALJ determined that the Petitioner failed to prove the Association withheld existing, non-exempt documents. Consequently, the Petition was dismissed on August 26, 2019.

Analysis of Key Themes

1. Statutory Obligations for Record Disclosure

Under A.R.S. § 33-1258, condominium associations are mandated to make financial and other records "reasonably available for examination" to members within ten business days of a written request. However, the statute provides specific exceptions where an association may withhold records, including:

  • Privileged Communications: Correspondence between the association and its attorney.
  • Pending Litigation: Documents specifically relating to active legal matters.
  • Executive Sessions: Meeting minutes or records of board sessions not required to be open to all members under A.R.S. § 33-1248.

The Respondent successfully argued that they had adhered to these standards by providing redacted documents where the information fell under attorney-client privilege or executive session exemptions.

2. The Burden of Proof and Evidence of Existence

A central theme of the decision is the Petitioner’s burden to prove by a "preponderance of the evidence" that a violation occurred. In administrative proceedings, this means the Petitioner must show that the facts sought to be proved are "more probable than not."

The ALJ found that the Petitioner failed to meet this burden regarding items for which the Association claimed no records existed. Specifically:

  • Item #1 (Third-party communications): The Petitioner believed these emails existed to prove communications about him, but the Association testified they were not in their possession.
  • Item #4 (Meeting records for a notarized petition): The Petitioner opined that 21 signatures could not have been collected without a meeting. The Association clarified that no such meetings occurred; rather, individual residents took actions regarding the Petitioner’s divorce proceedings independently.
3. Transparency vs. Legal Redaction

The Association sought to demonstrate a high degree of transparency to counter the Petitioner's claims. Evidence presented by Association President Jeff Kaplan indicated that:

  • The Association received over 400 emails from the Petitioner in three years, approximately 100 of which were records requests.
  • The Association provided documents beyond those requested to facilitate transparency.
  • Financial and bank records were kept accessible to all residents via the Association’s website.

The ALJ accepted that the Association’s use of redactions for legal invoices and executive session minutes was a lawful application of the exceptions provided in A.R.S. § 33-1258(B).

Key Petitioner Requests and Court Findings

Request Item Description Association Response ALJ Conclusion
Item #1 Communications between the HOA/Agents and ROI/Mrs. Sellers. Records do not exist/not in Association's possession. Petitioner failed to prove documents existed at the time of request.
Item #2 Unredacted legal invoices for the current Petition. Provided redacted versions citing attorney-client privilege. Petitioner acknowledged compliance after receiving documents.
Item #3 Records/minutes for all Executive Sessions since the Petition filing. Provided redacted minutes; cited A.R.S. § 33-1248 exemptions. Petitioner did not dispute that records were exempt under the statute.
Item #4 Records regarding meetings held to sign a petition against the Petitioner. No such meetings occurred; signatures were individual actions. Petitioner failed to prove documents existed.

Important Quotes

Regarding the Records Request

"Please consider this email as one consolidated renewed records request… for the following: 1. Copies of all records and communications… with and between ROI, Mrs D Sellers, and or any of their Agents since Nov 1 2018."

  • Context: Petitioner John Sellers’ formal email to Association President Jeff Kaplan on April 29, 2019, which formed the basis of the dispute.
Regarding Statutory Exceptions

"Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to… Privileged communication between an attorney for the association and the association [and] Pending litigation."

  • Context: A citation of A.R.S. § 33-1258(B), used by the ALJ to define the legal boundaries of what an Association is permitted to keep confidential.
Regarding the Final Ruling

"Petitioner failed to establish by a preponderance of the evidence that these documents existed at the time of the April 29, 2019 request such that Respondent’s failure to provide the documents was a violation of A.R.S. § 33-1258."

  • Context: The ALJ’s legal justification for dismissing the Petition regarding items for which no physical records could be produced.

Actionable Insights

  • Verification of Record Existence: For members filing records requests, the belief that a document "should" exist is insufficient for a legal victory; there must be evidence that the record actually exists or was required to be maintained.
  • Understanding Redactions: Association members should be aware that "unredacted" requests for legal invoices are frequently denied based on attorney-client privilege and pending litigation exceptions established in state law.
  • Association Compliance Strategies: To defend against claims of non-compliance, associations should maintain a clear paper trail of all documents provided and ensure that all residents have standing access to basic financial records (e.g., via a community website).
  • Standard of Evidence: Parties in administrative hearings must prepare to meet the "preponderance of the evidence" standard. Mere opinion or speculation—such as the Petitioner’s opining that a meeting "must have happened" to collect signatures—is typically dismissed if countered by testimony of non-existence.

Case Analysis: Sellers v. Rancho Madera Condominium Association

This study guide examines the administrative law proceedings regarding a dispute between a condominium unit owner and a homeowners association (HOA). It focuses on the statutory requirements for records disclosure, the legal exceptions to such requests, and the burden of proof required in administrative hearings.

Key Legal Concepts and Statutory Framework

Arizona Revised Statutes (A.R.S.) § 33-1258: Records Disclosure

This statute governs the availability of association records to its members. The core requirements include:

  • Reasonable Availability: All financial and other records must be made available for examination by a member or their designated representative.
  • Timeline: The association has ten business days to fulfill a request for examination or provide copies of records.
  • Cost: Associations may not charge for the review of materials but may charge up to fifteen cents per page for copies.
Statutory Exceptions to Disclosure

Under A.R.S. § 33-1258(B), an association may withhold books and records if the portion relates to:

  1. Attorney-Client Privilege: Communications between the association and its legal counsel.
  2. Pending Litigation: Records specifically related to ongoing legal disputes.
  3. Executive Session Minutes: Records of board meetings not required to be open to all members pursuant to A.R.S. § 33-1248.
Burden of Proof

In administrative hearings regarding HOA disputes (A.R.S. § 41-2198.01), the Petitioner bears the burden of proof. They must establish a violation by a preponderance of the evidence, meaning the evidence shows that the alleged fact is more probable than not.

Summary of the Dispute: Case No. 19F-H1919066-REL

The Petitioner, John A. Sellers, filed a petition against the Respondent, Rancho Madera Condominium Association, alleging a violation of A.R.S. § 33-1258 for failure to provide records requested on April 29, 2019.

The Four Record Requests
Item # Petitioner's Request Respondent's Position / ALJ Finding
1 Records/emails between Association agents and ROI, Mrs. D. Sellers, or their agents since Nov 2018. Records do not exist; Petitioner failed to prove existence.
2 Unredacted legal invoices for the current Petition, including those paid by insurance. Redacted versions provided; unredacted versions are protected by attorney-client privilege.
3 Notices, emails, and minutes for Executive Sessions since the AZDRE Petition was filed. Redacted minutes provided; records are exempt under A.R.S. § 33-1248/33-1258(B).
4 Communications/notices regarding member meetings held to sign a notarized petition against the Petitioner. No such meetings occurred; signatures were gathered by residents independently. Records do not exist.

Short-Answer Practice Questions

  1. According to A.R.S. § 33-1258, how many business days does an association have to fulfill a request for records?
  • Answer: Ten business days.
  1. What is the maximum fee per page an association can charge for making copies of records?
  • Answer: Fifteen cents ($0.15) per page.
  1. Under what legal theory did the Respondent justify redacting legal invoices in Item #2?
  • Answer: Attorney-client privilege and the "pending litigation" exception.
  1. Who bears the burden of proof in an HOA dispute process petition before the Arizona Department of Real Estate?
  • Answer: The Petitioner.
  1. Why was the Petitioner's request for records of meetings on April 6 and April 8, 2019 (Item #4) denied?
  • Answer: The Respondent testified that no such meetings occurred, and therefore no minutes or records existed.
  1. What does "preponderance of the evidence" mean in the context of this hearing?
  • Answer: Evidence that is of greater weight or more convincing than the opposition, showing a fact is more probable than not.
  1. Is an association required to provide unredacted minutes of an Executive Session of the Board?
  • Answer: No; under A.R.S. § 33-1258(B)(3), these are exempt from disclosure if the session is not required to be open under A.R.S. § 33-1248.

Essay Prompts for Deeper Exploration

  1. Statutory Boundaries of Transparency: Analyze the balance between a member’s right to transparency and an association’s right to privileged communication. Use the ALJ’s ruling on Item #2 and Item #3 to support your argument regarding why certain records remain protected even when a member claims there is "no litigation exception."
  2. The "Non-Existent Document" Defense: In this case, several requests were dismissed because the Respondent claimed the documents did not exist. Discuss the Petitioner’s responsibility in proving the existence of documents versus the Respondent's duty to provide them. How does the ALJ’s ruling on Item #5 clarify the relevance of "record retention policies" in a disclosure dispute?
  3. The Role of Administrative Jurisdiction: Explain the jurisdictional roles of the Arizona Department of Real Estate and the Office of Administrative Hearings in HOA disputes as outlined in A.R.S. § 41-2198.01. Why is this administrative process used instead of a standard civil court for these specific disputes?

Glossary of Important Terms

  • Administrative Law Judge (ALJ): An official who presides over an administrative hearing, hears evidence, and issues a decision or order.
  • A.R.S. § 33-1248: The Arizona statute governing open meeting requirements for condominium associations.
  • Attorney-Client Privilege: A legal principle that keeps communications between an attorney and their client confidential and protected from disclosure.
  • Executive Session: A portion of a board meeting that is closed to the general membership, typically used to discuss legal, personnel, or sensitive matters.
  • Notice of Hearing: A formal document issued to notify parties of the date, time, and location of a legal proceeding.
  • Petitioner: The party who initiates a lawsuit or petition; in this case, John A. Sellers.
  • Preponderance of the Evidence: The standard of proof in most civil and administrative cases, requiring that a claim be more likely true than not.
  • Respondent: The party against whom a petition is filed; in this case, Rancho Madera Condominium Association.
  • Statutory Exception: A specific condition or circumstance defined in law that exempts a party from a general legal requirement.

HOA Transparency vs. Legal Privacy: Lessons from Sellers v. Rancho Madera Condominium Association

1. Introduction: The Conflict Over Information

In the governed ecosystem of Arizona condominiums, the "right to know" is a frequent flashpoint between unit owners and their associations. While transparency is the bedrock of community trust, it often collides with an association’s statutory right to protect privileged legal strategies and executive deliberations. This tension is not merely academic; it frequently results in high-stakes administrative litigation.

The case of John A. Sellers vs. Rancho Madera Condominium Association (No. 19F-H1919066-REL) provides a masterclass in how these disputes are adjudicated. Decided by the Arizona Department of Real Estate (ADRE) in 2019, the ruling clarifies the boundaries of Arizona Revised Statute § 33-1258, illustrating exactly what records an association must produce—and where the law allows them to shut the door.

2. The Paper Trail: 400 Emails and a Consolidated Request

The dispute reached a boiling point when Petitioner John Sellers, joined by Margaret SwanTKO, issued a "consolidated renewed records request" on April 29, 2019. Alleging that previous requests had been ignored, Sellers demanded four specific categories of documentation under A.R.S. § 33-1258:

  • Third-Party Communications: All records and communications—including emails and conference call notes—between the Association, its agents, and legal counsel (Carpenter Hazelwood) regarding ROI and Mrs. D. Sellers since November 1, 2018.
  • Unredacted Legal Invoices: Complete, unredacted invoices related to the ADRE petition, with Sellers arguing that no litigation exception applied to these financial records.
  • Executive Session Records: All notices, emails, and minutes for every Executive Session of the Board since the filing of the petition, specifically including the meeting where counsel was retained.
  • The "Vendetta" Petition Records: All communications and notices regarding member meetings held to sign a notarized petition—a document that allegedly characterized Sellers as having a "vendetta."

3. The Association’s Defense: "Above and Beyond" Compliance

Represented by Board President Jeff Kaplan, the Rancho Madera Condominium Association countered that it was not the Association being opaque, but rather the Petitioner being overzealous. Kaplan testified to a staggering administrative burden: the Association had received over 400 emails from Sellers in the three years preceding the hearing, approximately 100 of which were formal records requests.

Kaplan argued that the Association had acted with extreme transparency, even going "above and beyond" by providing documents Sellers hadn't specifically requested. To further prove their commitment to disclosure, the Association maintained financial and bank records on a community website accessible to all residents at any time.

4. Legal Analysis: Understanding A.R.S. § 33-1258

The resolution of these disputes hinges on A.R.S. § 33-1258, which serves as the definitive guide for HOA record disclosure in Arizona. The statute establishes a clear "General Rule" for transparency while carving out narrow "Statutory Exceptions" to protect sensitive information.

HOA Records: Disclosure vs. Exclusion
General Rule (A.R.S. § 33-1258(A)) Statutory Exceptions (A.R.S. § 33-1258(B))
Availability: All financial and other records must be made available within ten business days of a written request. Attorney-Client Privilege: Privileged communications between the association and its legal counsel are exempt.
Access: Records must be open for examination by a member or their designated representative. Pending Litigation: Records specifically related to active or pending legal matters may be withheld.
Costs: Associations may charge up to $0.15 per page for copies but cannot charge for the time spent reviewing the materials. Executive Sessions: Meeting minutes or records for board sessions not required to be open under A.R.S. § 33-1248 (e.g., personnel or legal matters).

5. The Judge’s Ruling: The Limits of Discovery

Administrative Law Judge Antara Nath Rivera dismissed the petition on August 26, 2019, after applying the "Preponderance of the Evidence" standard. This required the Petitioner to prove it was "more probable than not" that a violation occurred. The ruling turned on several key findings:

  • Items #1 and #4 (The Existence of Records): Sellers "strongly believed" emails and meeting minutes regarding a "vendetta petition" existed. However, Kaplan testified that no such meetings occurred on the dates Sellers alleged (April 6 or 8, 2019). The Judge ruled that Sellers failed to prove the records existed. Under the law, an association cannot be penalized for failing to produce non-existent documents.
  • Item #2 (The Admission of Satisfaction): While Sellers originally demanded unredacted legal invoices, he admitted during the hearing that he was satisfied with the redacted versions eventually provided. This admission effectively neutralized the claim.
  • Item #3 (Executive Sessions): The Association provided redacted minutes of executive sessions. Sellers did not dispute that these records fell under the statutory exceptions of A.R.S. § 33-1258(B).
  • The "Human Interest" Context: The testimony revealed that the "notarized petition" Sellers sought records for was actually an effort by neighbors who were unhappy with him. These residents had even attended Sellers’ divorce proceedings to influence the court against awarding him the house, as they no longer wished to have him as a neighbor.

6. Key Takeaways for HOA Members and Boards

The Sellers decision offers three critical lessons for community association stakeholders:

  1. The Burden of Proof is on the Requester: It is not enough to suspect that an association is hiding documents. To prove a violation, a member must provide evidence that the records actually exist. Furthermore, a "record retention policy" does not change the outcome; if a record is not in the association's possession at the time of the request, there is no violation of § 33-1258.
  2. Privilege and Redaction are Standard: While members have a right to see legal invoices, they do not have a right to see the legal strategy contained within them. Redacting privileged information regarding current litigation is the legally accepted middle ground.
  3. Statutory Exceptions are Absolute: The protections for attorney-client privilege and executive sessions under A.R.S. § 33-1258(B) and § 33-1248 are robust. Boards that maintain organized records and apply these exceptions consistently are well-positioned to defeat "fishing expedition" style petitions.

7. Conclusion: Balancing Rights and Regulations

The dismissal of John Sellers' petition underscores a fundamental reality of community association law: the right to information is not an absolute right to every scrap of paper. By providing bank records via a website and complying with redacted requests, the Rancho Madera Condominium Association demonstrated the "above and beyond" transparency that judges look for.

For associations, the lesson is to remain organized and responsive. For members, the lesson is to understand that the law protects the board's ability to consult with counsel and deliberate in private. Without this balance, the administrative burden of endless requests can quickly overshadow the actual management of the community.

Case Participants

Petitioner Side

  • John A. Sellers (petitioner)
    Appeared on his own behalf; member of the Association
  • Margaret SwanTKO (member)
    Listed in consolidated records request with John Sellers

Respondent Side

  • Jeff Kaplan (board president)
    Rancho Madera Condominium Association
    Testified on behalf of Respondent
  • Ed O’Brien (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Appeared on behalf of Respondent
  • Edith I. Rudder (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen LLP
    Listed on distribution list

Neutral Parties

  • Antara Nath Rivera (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Listed on distribution list

Other Participants

  • Mrs. D. Sellers (unknown)
    Mentioned in records request regarding communications

John A Sellers vs. Rancho Madera Condominium Association

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Case Summary

Case ID 19F-H1918010-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-05-10
Administrative Law Judge Tammy L. Eigenheer
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John A Sellers Counsel —
Respondent Rancho Madera Condominium Association Counsel Edward D. O'Brien

Alleged Violations

CC&Rs § 3.10

Outcome Summary

The Administrative Law Judge dismissed the petition, finding that the HOA (Respondent) did not violate CC&R Section 3.10. The CC&Rs imposed the duty of keeping the drainage area clear primarily on the Unit Owners, and the HOA only retained the right to enforce this requirement, not an explicit obligation.

Why this result: Petitioner failed to establish by a preponderance of the evidence that Respondent violated the CC&Rs because the HOA did not have an obligation to enforce clearance requirements against unit owners under the cited covenant provisions.

Key Issues & Findings

Alleged violation of CC&Rs § 3.10 by failing to require unit owners to remove vegetation and fencing materials from the stormwater channel behind their homes.

Petitioner alleged the HOA violated CC&Rs § 3.10 by failing to compel unit owners to clear vegetation and debris (including chicken wire) from the stormwater drainage channel, asserting this failure created a flood risk to unit 12. The ALJ found that the CC&Rs placed the primary maintenance responsibility on Unit Owners, and the HOA only had the right, but not the obligation, to enforce clearance requirements.

Orders: The petition was denied and dismissed. No action was required of Respondent because Petitioner failed to establish that Respondent violated the CC&Rs regarding maintenance of the drainage easement.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199.01
  • Title 33, Chapter 9
  • A.A.C. R2-19-119(A) and (B)(1)
  • Vazanno v. Superior Court
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
  • BLACK’S LAW DICTIONARY
  • Powell v. Washburn
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Analytics Highlights

Topics: HOA, CC&R, Drainage, Maintenance, Enforcement, Condominium
Additional Citations:

  • A.R.S. § 32-2199.01
  • Title 33, Chapter 9
  • A.A.C. R2-19-119(A) and (B)(1)
  • Vazanno v. Superior Court
  • A.A.C. R2-19-119(B)(2)
  • MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5
  • BLACK’S LAW DICTIONARY
  • Powell v. Washburn
  • Lookout Mountain Paradise Hills Homeowners’ Ass’n v. Viewpoint Assocs.

Video Overview

Audio Overview

Decision Documents

19F-H1918010-REL Decision – 706533.pdf

Uploaded 2026-04-24T11:15:56 (42.2 KB)

19F-H1918010-REL Decision – 707530.pdf

Uploaded 2026-04-24T11:16:00 (111.5 KB)

19F-H1918010-REL Decision – 667122.pdf

Uploaded 2026-04-24T11:16:05 (50.0 KB)

19F-H1918010-REL Decision – 678371.pdf

Uploaded 2026-04-24T11:16:09 (129.5 KB)

19F-H1918010-REL Decision – 667122.pdf

Uploaded 2026-01-23T17:26:17 (50.0 KB)

19F-H1918010-REL Decision – 678371.pdf

Uploaded 2026-01-23T17:26:21 (129.5 KB)

Briefing Document: Sellers vs. Rancho Madera Condominium Association

Executive Summary

This document synthesizes the legal proceedings and outcomes of the case John A Sellers, Petitioner, vs. Rancho Madera Condominium Association, Respondent (Case No. 19F-H1918010-REL), adjudicated by the Arizona Office of Administrative Hearings. The core of the dispute was a claim by Petitioner John Sellers that his homeowner’s association (HOA) violated its Covenants, Conditions, and Restrictions (CC&Rs) by failing to compel other homeowners to remove vegetation and fencing from a common stormwater drainage channel, which he alleged created a flood risk to his property, Unit 12.

The petitioner’s claim was ultimately unsuccessful. It was denied first in an initial evidentiary hearing and again in a subsequent rehearing. The central finding of the Administrative Law Judges (ALJs) in both decisions was a critical distinction between an HOA’s right to enforce rules and an obligation to do so. The ALJs determined that the CC&Rs placed the primary responsibility for maintaining the drainage easement on the individual unit owners. The HOA’s mandatory duty to intervene was found to be triggered only by actual damage resulting from an owner’s negligence, not by the mere potential for future damage. As no flooding or damage had ever occurred, the HOA was found to have acted within its authority and had not violated the CC&Rs. The petitioner’s personal circumstances, including a contentious divorce and court-ordered sale of the property, were noted but deemed legally irrelevant to the determination of a CC&R violation.

Case Chronology and Procedural History

The case progressed through an initial petition, a hearing, a decision, a request for rehearing, and a final decision on rehearing. A notable procedural anomaly occurred when a hearing scheduled for November 5, 2018, was officially vacated due to a withdrawal notice from the petitioner, yet the hearing proceeded on that date as originally planned.

Details

Aug 23, 2018

Petition Filed

John A. Sellers filed a single-issue petition with the Arizona Department of Real Estate alleging the Rancho Madera Condominium Association violated CC&R § 3.10.

Oct 23, 2018

Hearing Vacated

An order was issued by ALJ Diane Mihalsky vacating the November 5 hearing because the petitioner had notified the Department of his wish to withdraw the petition.

Nov 5 & Dec 12, 2018

Initial Hearing

Despite the prior vacating order, an evidentiary hearing was held before ALJ Mihalsky.

Dec 26, 2018

Initial Decision

ALJ Mihalsky issued a decision finding that the petitioner failed to prove his case. The petition was denied.

Feb 1, 2019

Rehearing Requested

The petitioner filed a request for a rehearing, alleging procedural irregularities and errors in the initial decision.

Feb 22, 2019

Rehearing Granted

The Commissioner of the Department of Real Estate granted the request for a rehearing.

Apr 15, 2019

Rehearing Held

A rehearing was held before a new judge, ALJ Tammy L. Eigenheer.

May 7, 2019

Post-Hearing Filing Stricken

The petitioner submitted an unauthorized supplemental argument after the rehearing. ALJ Eigenheer issued an order striking the filing from the record and closing the record.

May 10, 2019

Final Decision on Rehearing

ALJ Eigenheer issued a final decision, again finding for the respondent and dismissing the petition.

Core Dispute Analysis

Petitioner’s Position and Allegations

• Core Allegation: The petitioner alleged that the Rancho Madera Condominium Association (Respondent) violated CC&R § 3.10 by failing to enforce its rules. Specifically, the Association did not require owners of “Drainage Easement Units” to remove obstructions—such as large succulents, cacti, shrubs, and chicken wire fencing—from a 3′ x 3′ stormwater drainage canal located behind their homes.

• Perceived Risk: The petitioner testified that these items could catch storm debris, clog the channel, and cause flooding that would damage his property, Unit 12. He submitted videos of heavy rains to support his concern.

• Evolving Legal Argument: In the rehearing, the petitioner’s argument shifted. He acknowledged that the CC&Rs gave the Association the right to enforce maintenance standards but argued that “at a certain point exercising a right becomes an obligation,” particularly when matters of safety and property values are implicated.

• Claimed Financial Damages: The petitioner testified he was undergoing a contentious divorce and his condominium was being sold by order of the Maricopa County Superior Court. He asserted that due to the unresolved flood risk, which he was obligated to disclose, the sale price of Unit 12 was “$40,000 less than it would have been.”

Respondent’s Position and Actions

• Denial of Violation: The Association denied it had violated any CC&Rs by its handling of the drainage channel.

• Evidence and Testimony: The Association, represented by its President, Jeffrey Kaplan, presented several key points:

◦ No History of Flooding: Mr. Kaplan testified that Unit 12 had never sustained any flood damage since the development was built in 2012, including during a “100-year storm” in 2014. After a significant rainstorm in August 2018, he personally inspected the easement and saw no water in it.

◦ Origin of Plants: Mr. Kaplan stated that the builder had originally planted the vegetation in the drainage easement that the petitioner was concerned about.

◦ No Other Complaints: No other members of the 46-unit Association had expressed any concerns about drainage.

◦ Proactive Communication: To assuage the petitioner’s concerns, the Association’s management company sent letters to the relevant homeowners on April 18, 2018, and July 19, 2018, reminding them of their responsibility to keep the drainage area free of obstructions.

◦ Due Diligence: Mr. Kaplan contacted officials at the Maricopa County Flood Control District and the Town of Cave Creek, who confirmed the drainage area was not on any official floodplain maps and that the Association was solely responsible for its maintenance.

Key CC&R Provisions and Legal Interpretation

The ALJs’ decisions hinged on a close reading of the Rancho Madera CC&Rs. The analysis consistently differentiated between the duties of individual owners and the duties of the Association.

• CC&R § 3.10.2 — Unit Owner Responsibility: This section places the primary maintenance burden directly on the homeowners of the Drainage Easement Units.

◦ Interpretation: The legal conclusion was that this provision unambiguously makes individual owners responsible for keeping their portion of the easement clear.

• CC&R § 3.10.4 — Association Responsibility: This section defines the specific circumstance under which the Association is required to act.

◦ Interpretation: Both ALJs found that this clause creates a reactionary, not a proactive, duty for the Association. Its obligation to repair is triggered by actual damage occurring, not by a perceived risk of future damage.

• CC&R § 13.1.1 — Association Enforcement Power: This section, highlighted in the rehearing, grants the Association authority to act.

◦ Interpretation: The ALJ in the rehearing ruled that this language grants a discretionary right, not a mandatory obligation. The CC&Rs contain no provision that converts this right into a duty under the circumstances presented by the petitioner.

Judicial Findings and Rulings

Initial Decision (ALJ Diane Mihalsky, Dec 26, 2018)

• Burden of Proof: The petitioner failed to establish his claim by a preponderance of the evidence.

• Findings of Fact: The petitioner successfully established that plants and chicken wire existed in the stormwater canal. However, he failed to establish that these items actually impeded the flow of water.

• Conclusion: The respondent proved that the drainage canal had functioned as intended since 2012 and that Unit 12 had never flooded. The petitioner’s divorce was noted to have “cast a long shadow over his administrative complaint” but was irrelevant to the legal issue. The petition was denied.

Rehearing Decision (ALJ Tammy L. Eigenheer, May 10, 2019)

• Central Legal Finding: The CC&Rs clearly intend for unit owners to bear the primary responsibility for keeping the drainage area clear. The Association’s only specified obligation is to repair damage after it has occurred and bill the responsible owner.

• Right vs. Obligation: The decision explicitly states, “While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”

• Final Order: The petitioner failed to establish that the respondent violated Section 3.10 of the CC&Rs. The petition was dismissed.

Notable Evidence

A key piece of evidence submitted by the respondent was a June 22, 2018, email from the petitioner’s wife, Debborah Sellers, which directly refuted the petitioner’s claims. In the email, she stated:

“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”

Study Guide for Case No. 19F-H1918010-REL: Sellers v. Rancho Madera Condominium Association

Short-Answer Quiz

Instructions: Answer the following questions in 2-3 sentences, drawing exclusively from the information provided in the case documents.

1. What was the specific allegation John A. Sellers made against the Rancho Madera Condominium Association in his petition filed on August 23, 2018?

2. Identify the key responsibilities assigned to individual unit owners of Drainage Easement Units according to Section 3.10.2 of the CC&Rs.

3. Who is Jeffrey Kaplan, and what key testimony did he provide on behalf of the Respondent?

4. What specific actions did the Respondent’s management company take in April and July of 2018 to address the Petitioner’s concerns?

5. According to the decision by Administrative Law Judge Diane Mihalsky, what did the Petitioner fail to establish regarding the plants and chicken wire in the drainage canal?

6. On what grounds did John A. Sellers file his Homeowner’s Association (HOA) Dispute Rehearing Request on February 1, 2019?

7. What was the Petitioner’s core argument regarding the Association’s “right to enforce” the CC&Rs versus an “obligation to enforce” them?

8. What was the final conclusion of Administrative Law Judge Tammy L. Eigenheer regarding the Association’s responsibilities under the CC&Rs?

9. What occurred after the April 15, 2019 rehearing when the Petitioner attempted to submit supplemental information to the Office of Administrative Hearings?

10. Describe the evidence presented in an email from Debborah Sellers and its relevance to the case.

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Answer Key

1. John A. Sellers alleged that the Rancho Madera Condominium Association violated Section 3.10 of its Covenants, Conditions, and Restrictions (CC&Rs). He claimed the Association failed to require condominium owners to remove vegetation and fencing materials from the stormwater channel, creating a flood risk for his unit.

2. Section 3.10.2 of the CC&Rs requires each Unit Owner of a Drainage Easement Unit to keep their respective Drainage Easement Area free of weeds and other debris. The purpose is to ensure that stormwater can flow freely and that no improvement, including plant materials, impedes this flow.

3. Jeffrey Kaplan is the President of the Rancho Madera Condominium Association. He testified that the drainage easement had never failed, even during a 100-year storm in 2014, that the original builder had planted the vegetation in question, and that he had consulted with county and town officials about the drainage area.

4. To address the Petitioner’s concerns, the Respondent’s management company sent letters to the owners of the Drainage Easement Units. Letters sent on April 18, 2018, and July 19, 2018, reminded owners of their responsibility to keep the drainage area free of obstructions, weeds, and debris.

5. Judge Mihalsky’s decision on December 26, 2018, concluded that the Petitioner established the presence of plants and chicken wire but failed to establish that these items actually impede the flow of water. The judge found that the drainage system functions as intended and there was no unreasonable risk of flooding.

6. The Petitioner filed for a rehearing based on several alleged issues with the original proceeding. These included an irregularity in the proceedings, the existence of newly discovered evidence, errors in the admission or rejection of evidence, and a belief that the findings of fact or decision were arbitrary, capricious, or not supported by evidence.

7. The Petitioner argued that while the CC&Rs grant the Association the “right to enforce” maintenance requirements, this right becomes an “obligation” when issues of property values and safety are at stake. He maintained that the potential for flooding created such an obligation for the Association to act.

8. Judge Eigenheer concluded that the CC&Rs intend for unit owners to bear the responsibility of keeping the Drainage Easement Area clear. She determined that while the Association has the right to enforce this, nothing in the CC&Rs creates an obligation for it to do so, and its only specified responsibility is to repair damage after it occurs, billing the responsible unit owner.

9. After the rehearing, the Petitioner submitted supplemental authority and argument without having requested leave to do so. The Respondent’s counsel argued this filing was untimely and introduced new arguments, requesting it be struck. On May 7, 2019, Judge Eigenheer ordered the filing struck from the record and closed the record.

10. The Respondent submitted a June 22, 2018 email from Debborah Sellers, the Petitioner’s wife. In the email, she stated there had never been an issue with the storm drain, called his concerns “nonsense,” and noted that the developer had done a good job, undermining the Petitioner’s claim of a significant and obvious flood risk.

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Suggested Essay Questions

1. Analyze the legal reasoning used by Administrative Law Judge Tammy L. Eigenheer to dismiss the petition after the rehearing. Contrast her interpretation of the Association’s duties under the CC&Rs with the findings presented by Judge Diane Mihalsky in the initial decision.

2. Discuss the concept of “preponderance of the evidence” as defined in the legal documents. Evaluate the evidence presented by both the Petitioner and the Respondent, explaining why the Petitioner ultimately failed to meet this burden of proof in both hearings.

3. Trace the complete procedural history of case No. 19F-H1918010-REL. Identify and explain the significance of key events, including the initial petition, the vacated hearing, the first Administrative Law Judge Decision, the request for rehearing, and the final order dismissing the case.

4. Examine the role and responsibilities of the Rancho Madera Condominium Association versus the individual unit owners as defined by Sections 3.10, 3.10.2, 3.10.4, and 13.1.1 of the CC&Rs. How did the interpretation of these sections form the basis of the final legal decision?

5. Evaluate the different types of evidence presented in the hearings, including witness testimony (Sellers, Kaplan), documentary evidence (CC&Rs, letters, emails), and physical evidence (photographs, videos). How did each type of evidence contribute to the final outcome of the case?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, takes evidence, and makes legal decisions and orders. In this case, Diane Mihalsky and Tammy L. Eigenheer served as ALJs.

Covenants, Conditions, and Restrictions (CC&Rs)

The governing legal documents that set up the guidelines for a planned community or condominium association. In this case, the CC&Rs for Rancho Madera were the central document in the dispute.

Drainage Easement

A perpetual, non-exclusive legal right created over a specific portion of property (the eastern five feet of Units 9-18) for constructing and maintaining a stormwater drainage channel.

Drainage Easement Area

The specific portion of land encumbered by the Drainage Easement, defined as the eastern five feet of the designated units.

Drainage Improvements

The physical components of the drainage system, such as the channel, decomposed granite, rip rap (large stones), or concrete, as originally constructed by the developer.

Office of Administrative Hearings (OAH)

An independent state agency in Arizona responsible for conducting evidentiary hearings for other state agencies, such as the Department of Real Estate.

Petitioner

The party who initiates a legal action or files a petition seeking a legal remedy. In this case, John A. Sellers.

Preponderance of the Evidence

The standard of proof in this civil administrative case. It is defined as evidence that is sufficient to incline a fair and impartial mind to one side of an issue rather than the other, making a contention more probably true than not.

Rehearing

A second hearing of a case, granted by the Commissioner in this instance, to re-examine the issues based on claims such as procedural irregularities, newly discovered evidence, or errors in the original decision.

Respondent

The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, the Rancho Madera Condominium Association.

The Department

Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide on petitions for hearings from members of condominium unit owners’ associations.

I Read an Entire HOA Lawsuit. Here Are 4 Shocking Lessons About Power, Rules, and Reality.

The Anatomy of a Neighborhood War

Living under a Homeowner’s Association (HOA) often means navigating a complex world of rules, regulations, and neighborhood politics. For most, disagreements are minor annoyances. But sometimes, a seemingly small issue can escalate into a full-blown legal war.

This is the story of one homeowner’s single-minded crusade against his HOA over a stormwater drainage channel he believed was a serious flooding risk. After filing a formal petition, the dispute escalated into a multi-stage legal battle that spanned nearly a year. The official court documents reveal that even after a judge ruled decisively against him, the homeowner doubled down, demanding a rare rehearing.

A deep dive into this protracted case reveals a fascinating and cautionary tale. The legal reasoning that ultimately settled the matter highlights several surprising lessons that apply to anyone living in a planned community.

1. Proving a Rule Was Broken Isn’t the Same as Proving Harm

The initial hearing, held before Administrative Law Judge Diane Mihalsky in late 2018, centered on a seemingly straightforward argument from the petitioner, John Sellers. He pointed out that his neighbors had placed plants—including large succulents, shrubs, and cacti—as well as chicken wire in a stormwater drainage channel. This, he argued, was a clear violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs), which stated that no improvement “shall be constructed, installed or allowed to grow… that may… impede the flow of water.”

But in her December 26, 2018 decision, the judge ruled against him. While Sellers successfully proved the obstructions existed, he failed to meet the legal burden of proof that they actually “impede the flow of water.” His claim was defeated by testimony from the HOA President, Jeffrey Kaplan, who stated that the unit had never sustained any flood damage, not even during a “100-year storm in 2014.”

The lesson from this first round is stark: in this legal context, simply pointing out a technical rule break was not enough. The petitioner had to prove that the violation was causing a tangible, negative impact. Without evidence of actual harm or impeded water flow, the theoretical risk was insufficient to win the case.

2. An HOA’s “Right” to Enforce Is Not an “Obligation”

After losing the first round on a question of evidence, Sellers’ argument evolved. He requested a rehearing, which was granted, and the case landed before a new judge, Tammy L. Eigenheer, in the spring of 2019. This shifted the legal focus from physical proof of impeded water flow to a more fundamental question of the HOA’s duties.

Sellers argued that because safety and property values were at stake, the association had a duty to enforce the CC&Rs and compel his neighbors to clear the drainage channel. He contended that at a certain point, an organization’s “right” to act becomes an “obligation.”

The judge’s final decision on May 10, 2019, was clear, absolute, and is where the most powerful lesson of the entire case lies.

“While Respondent has the right to enforce the requirements that the Unit Owners keep the Drainage Easement Area clear, nothing in the CC&Rs provides that Respondent has an obligation to do so.”

This distinction is critical for any homeowner. An HOA can possess the legal power to act but may not be legally compelled to use it. According to the judge’s interpretation, the governing documents placed the responsibility for keeping the channel clear on the individual unit owners. The association’s only stated obligation was to repair damage after it happened, with the cost being billed back to the responsible party.

3. Outside Conflicts Can Cast a Long Shadow

Legal disputes are rarely just about the facts of the case. During the initial hearing, it was revealed that the petitioner was going through a “contentious divorce” and that the condo unit at the center of the dispute was a community asset being sold by the court.

The most dramatic evidence, however, came from an email written by the petitioner’s own wife, Debborah Sellers. The email, submitted as evidence by the HOA, directly undermined his claims about the severity of the drainage issue.

“There has never been any issue with the storm drain behind our house and it is not a major disclosure item… Stop making something out of nothing. AND I HOPE YOU AREN[’]T FREAKING POTENTIAL BUYERS AND OTHER REALTORS WITH THIS NONSENSE.”

In her decision, Judge Mihalsky officially stated that the divorce was “not relevant” to the technical question of whether the HOA violated the CC&Rs. However, she immediately added that the situation “cast a long shadow over his administrative complaint,” suggesting that the personal context, and especially the damaging email, severely harmed the petitioner’s credibility.

4. Writing Letters Isn’t the Same as Being Heard

Throughout the dispute, the petitioner made his concerns known by writing “many letters” to the HOA president. He was persistent in his written communications, attempting to force the issue onto the association’s radar.

Yet, this effort was contrasted with a notable lack of direct participation. According to the testimony of HOA President Kaplan during the first hearing, Sellers “never attended any of Respondent’s noticed Board meetings” where his concerns could have been discussed among the board members.

The HOA’s response to his letters was limited; it sent two general reminder letters to all residents in the affected area but did not take direct enforcement action against any specific homeowner. The practical takeaway is that to effect change or be taken seriously in an HOA dispute, visibility and participation are critical. Writing letters is a start, but attending official meetings to present a case in person can be a more effective strategy for ensuring an issue is formally addressed.

A Cautionary Tale for Any Homeowner

What began as a seemingly straightforward complaint about drainage and rule enforcement devolved into a legal battle that consumed nearly a year, involving two multi-day hearings before two different administrative law judges. The petitioner lost his case on the evidence, then lost it again on the law.

It serves as a potent cautionary tale, demonstrating that in the world of HOA disputes, the obvious path is not always the winning one. It leaves every homeowner with a final, thought-provoking question to ponder: When you see a problem in your community, how do you decide if a fight is worth the cost—not just in money, but in time, credibility, and peace?

Case Participants

Petitioner Side

  • John A Sellers (petitioner)

Respondent Side

  • Edward D. O’Brien (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP
    Represented Respondent
  • Edith I. Rudder (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, PLC/LLP
    Represented Respondent
  • Jeffrey Kaplan (HOA President/witness)
    Rancho Madera Condominium Association
    Testified on behalf of Respondent

Neutral Parties

  • Diane Mihalsky (ALJ)
    OAH
    ALJ for initial proceedings
  • Tammy L. Eigenheer (ALJ)
    OAH
    ALJ for rehearing
  • Judy Lowe (Commissioner)
    ADRE
  • LDettorre (ADRE staff)
    ADRE
    Recipient of transmission
  • AHansen (ADRE staff)
    ADRE
    Recipient of transmission
  • djones (ADRE staff)
    ADRE
    Recipient of transmission
  • DGardner (ADRE staff)
    ADRE
    Recipient of transmission
  • ncano (ADRE staff)
    ADRE
    Recipient of transmission
  • c. serrano (Clerical staff)
    Transmitted document
  • F. Del Sol (Clerical staff)
    Transmitted document

Other Participants

  • Debborah Sellers (witness)
    Petitioner's wife, email submitted as evidence