Case Summary
| Case ID | 20F-H2020043-REL |
|---|---|
| Agency | ADRE |
| Tribunal | OAH |
| Decision Date | 2020-09-08 |
| Administrative Law Judge | Velva Moses-Thompson |
| Outcome | total_loss |
| Filing Fees Refunded | $0.00 |
| Civil Penalties | $0.00 |
Parties & Counsel
| Petitioner | Wendy Ellsworth | Counsel | Brian Hatch |
|---|---|---|---|
| Respondent | Vincenz Homeowners' Association | Counsel | Mark K. Sahl |
Alleged Violations
VHA CC&R Article 10 § 10.11.1
Outcome Summary
The petition concerning the alleged violation of CC&R section 10.11.1 by the HOA was dismissed because the Petitioner failed to meet the burden of proof, and the tribunal lacked jurisdiction over the declaratory judgment request regarding waiver of enforcement.
Why this result: Petitioner failed to establish that VHA violated CC&R section 10.11.1 by a preponderance of the evidence. Furthermore, the tribunal lacked jurisdiction to rule on the declaratory judgment requested by the Petitioner regarding VHA's waiver of its enforcement rights.
Key Issues & Findings
Violation of CC&R Article 10, Section 10.11.1 regarding parking enforcement and waiver
Petitioner alleged VHA waived its right to enforce CC&R 10.11.1 (parking prohibition) because violations had been frequent since inception. The tribunal found Petitioner failed to establish VHA violated section 10.11.1, and the tribunal lacked jurisdiction regarding the requested declaratory judgment on waiver of enforcement.
Orders: The petition is dismissed.
Filing fee: $0.00, Fee refunded: No
Disposition: respondent_win
- ARIZ. REV. STAT. § 32-2199.01(A)
- ARIZ. REV. STAT. § 32-2199(B)
- ARIZ. REV. STAT. § 33-1803
- ARIZ. REV. STAT. § 41-1092.07(G)(2)
- A.A.C. R2-19-119(A)
- A.A.C. R2-19-119(B)(1)
- ARIZ. REV. STAT. § 32-2199.02(B)
- ARIZ. REV. STAT. § 32-2199.04
- ARIZ. REV. STAT. § 41-1092.09
Analytics Highlights
- ARIZ. REV. STAT. § 32-2199.01(A)
- ARIZ. REV. STAT. § 32-2199(B)
- ARIZ. REV. STAT. § 33-1803
- ARIZ. REV. STAT. § 41-1092.07(G)(2)
- A.A.C. R2-19-119(A)
- A.A.C. R2-19-119(B)(1)
- ARIZ. REV. STAT. § 32-2199.02(B)
- ARIZ. REV. STAT. § 32-2199.04
- ARIZ. REV. STAT. § 41-1092.09
Video Overview
Audio Overview
Decision Documents
20F-H2020043-REL Decision – 820839.pdf
Briefing: Ellsworth v. Vincenz Homeowners’ Association (No. 20F-H2020043-REL)
Executive Summary
This briefing analyzes the Administrative Law Judge Decision in the case of Wendy Ellsworth versus the Vincenz Homeowners’ Association (VHA). The case centered on Ms. Ellsworth’s petition alleging that the VHA had waived its right to enforce a specific parking restriction outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The Administrative Law Judge dismissed the petition in its entirety.
The dismissal was based on two fundamental conclusions. First, the petitioner, Ms. Ellsworth, failed to meet her burden of proof. Her petition did not allege, nor did she provide evidence, that the VHA itself had violated the parking rule. Instead, her claim focused on the VHA’s alleged failure to enforce the rule against others. Second, and more decisively, the judge determined that the Office of Administrative Hearings (OAH) lacks the jurisdiction to issue a declaratory judgment. Ms. Ellsworth was effectively asking the tribunal to declare that the VHA had waived its enforcement rights, a legal determination beyond the OAH’s statutory authority. The VHA successfully argued that the OAH’s jurisdiction is limited to hearing alleged violations committed by the association, not to adjudicating the association’s future enforcement capabilities.
Case Background
• Petitioner: Wendy Ellsworth, a property owner within the Vincenz community.
• Respondent: Vincenz Homeowners’ Association (VHA).
• Tribunal: Arizona Office of Administrative Hearings (OAH).
• Presiding Judge: Administrative Law Judge Velva Moses-Thompson.
• Filing Date: Ms. Ellsworth filed a petition with the Arizona Department of Real Estate on or about January 15, 2020.
• Hearing Date: An evidentiary hearing was held on August 19, 2020.
• Decision Date: The final decision was issued on September 8, 2020.
The matter was referred to the OAH to determine whether VHA was in violation of its community documents as alleged by the petitioner.
Central Dispute: CC&R Article 10, Section 10.11.1
The entire dispute revolved around the enforcement of a specific vehicle parking rule within the VHA’s Covenants, Conditions, and Restrictions.
Article 10 § 10.11.1 provides:
Vehicles. No private passenger automobiles or pickup trucks shall be parked upon the Property or any roadway adjacent thereto except within a garage, in a private driveway appurtenant to a Dwelling Unit, or within areas designated for such purpose by the Board.
This provision explicitly restricts the parking of personal vehicles to approved locations: garages, private driveways, or other areas specifically designated by the VHA Board.
Positions of the Parties
Petitioner’s Position (Wendy Ellsworth)
Ms. Ellsworth’s central argument was not that the VHA had violated the parking rule, but that it had lost the ability to enforce it through inaction.
• Core Allegation: The petition claimed VHA had waived its ability to enforce Article 10, Section 10.11.1.
• Stated Rationale: Ms. Ellsworth intended to prove that “violations of the street parking prohibition have been ‘frequent’ since Vincenz’s inception” and that the community’s CC&Rs “do not contain a relevant non-waiver provision.”
• Testimony: At the August 19, 2020 hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, under cross-examination, she later conceded that she was unsure whether the VHA had ever enforced it.
Respondent’s Position (Vincenz Homeowners’ Association)
The VHA argued for a complete dismissal of the petition, primarily on procedural and jurisdictional grounds.
• Core Argument: The petition failed to state a valid claim because it did not contend that VHA itself had improperly parked a vehicle in violation of the CC&Rs.
• Jurisdictional Challenge: VHA contended that the OAH’s jurisdiction, granted under ARIZ. REV. STAT. § 32-2199.01(A), is strictly limited to hearing petitions about alleged violations of community documents or state statutes by the association.
• Declaratory Judgment: The VHA characterized Ms. Ellsworth’s request as one for a “declaratory judgment”—a ruling on the VHA’s legal right to enforce the rule—which it argued the OAH has no legal authority to issue.
Administrative Law Judge’s Findings and Conclusions
The Administrative Law Judge (ALJ) sided entirely with the Respondent, concluding that the petition must be dismissed. The decision was based on a failure of proof by the petitioner and a critical lack of jurisdiction by the tribunal.
Legal Standards Applied
Standard
Description
Burden of Proof
The Petitioner bears the burden to prove a violation by a preponderance of the evidence.
Preponderance of the Evidence
Defined as “such proof as convinces the trier of fact that the contention is more probably true than not,” or evidence with “the most convincing force.”
Covenant Interpretation
In Arizona, unambiguous restrictive covenants are enforced to give effect to the intent of the parties and must be interpreted as a whole.
Conclusion 1: Failure to Establish a Violation
The ALJ found that Ms. Ellsworth failed to meet her burden of proof. The decision notes:
• Ms. Ellsworth “did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”
• Because no violation by the VHA was alleged or proven, the core requirement for a successful petition was absent.
Conclusion 2: Lack of Jurisdiction
The most significant finding was that the tribunal lacked the authority to grant the relief Ms. Ellsworth sought.
• The ALJ explicitly stated: “To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”
• This conclusion affirmed the VHA’s central argument that the OAH is not the proper forum for determining an association’s prospective enforcement rights.
Final Order and Implications
Based on the findings, the final order was unambiguous:
“IT IS ORDERED, the petition is dismissed.”
The decision document includes a notice outlining the next steps available to the parties. Pursuant to Arizona Revised Statutes, the order is binding unless a party files a request for a rehearing with the Commissioner of the Department of Real Estate within 30 days of the service of the order.
Study Guide: Ellsworth v. Vincenz Homeowners’ Association (Case No. 20F-H2020043-REL)
This guide provides a comprehensive review of the Administrative Law Judge Decision in the case between Petitioner Wendy Ellsworth and Respondent Vincenz Homeowners’ Association (VHA). It covers the key facts, legal arguments, and the final ruling of the Office of Administrative Hearings (OAH).
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Review Quiz
Instructions: Answer the following questions in 2-3 sentences, based on the information provided in the case document.
1. Who were the primary parties in this case, and what were their respective roles?
2. What specific rule, or covenant, was at the center of the dispute?
3. What was the core allegation made by the petitioner, Wendy Ellsworth, in her initial petition?
4. What was the primary legal argument made by the respondent, Vincenz Homeowners’ Association, for why the petition should be dismissed?
5. What change occurred in Ms. Ellsworth’s testimony during the hearing?
6. According to the decision, what is the legal standard for the “burden of proof” in this type of hearing?
7. How does Arizona law interpret “restrictive covenants” when their language is unambiguous?
8. What two key reasons did the Administrative Law Judge give for dismissing the petition?
9. Which government body has jurisdiction to hear petitions from homeowners concerning violations of planned community documents?
10. What action could the parties take after the order was issued, and within what timeframe?
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Answer Key
1. The primary parties were Petitioner Wendy Ellsworth, a homeowner, and Respondent Vincenz Homeowners’ Association (VHA). Ms. Ellsworth initiated the legal action by filing a petition against the VHA.
2. The rule at the center of the dispute was Article 10, Section 10.11.1 of the VHA’s Covenants, Conditions, and Restrictions (CC&Rs). This section prohibits the parking of private passenger automobiles or pickup trucks on the property or adjacent roadways, except in garages, private driveways, or other Board-designated areas.
3. Ms. Ellsworth’s core allegation was that the VHA had waived its ability to enforce the street parking prohibition (CC&R 10.11.1). She claimed that violations had been “frequent” since the community’s inception and that the VHA’s CC&Rs lacked a relevant non-waiver provision.
4. The VHA argued that the petition should be dismissed because Ms. Ellsworth never alleged that the VHA itself had violated the parking rule. The VHA contended that the OAH only has jurisdiction over alleged violations by the association, not over a homeowner’s request for a declaratory judgment on the right to enforce a rule.
5. During the hearing, Ms. Ellsworth initially testified that the VHA had never enforced the parking rule. However, upon cross-examination, she admitted that she was unsure whether the VHA had ever enforced it.
6. The legal standard for the burden of proof is “a preponderance of the evidence.” This standard requires the petitioner to provide proof that convinces the trier of fact that their contention is more probably true than not.
7. In Arizona, if a restrictive covenant is unambiguous, it is enforced to give effect to the intent of the parties. The covenants must be construed as a whole and interpreted in view of their underlying purposes.
8. The judge dismissed the petition for two main reasons. First, Ms. Ellsworth failed to establish that the VHA itself had violated section 10.11.1. Second, the tribunal (the OAH) does not have the jurisdiction to issue a declaratory judgment stating that the VHA has waived its right to enforce the covenant.
9. The Arizona Department of Real Estate is the government body that receives petitions for hearings concerning violations of planned community documents. These hearings are then referred to the Office of Administrative Hearings (OAH).
10. After the order was issued on September 8, 2020, either party could file a request for a rehearing with the Commissioner of the Department of Real Estate. This request had to be filed within 30 days of the service of the Order.
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Essay Questions
Instructions: The following questions are designed for longer, more analytical responses. Use the facts and legal principles from the case to construct your arguments. No answer key is provided.
1. Explain the concept of “waiver” as argued by the petitioner. Why was this argument ultimately ineffective before the Office of Administrative Hearings in this specific case?
2. Analyze the jurisdictional limitations of the Office of Administrative Hearings (OAH) as demonstrated in this decision. Discuss the difference between adjudicating a violation of community documents and issuing a declaratory judgment.
3. Describe the “preponderance of the evidence” standard and explain how the petitioner, Wendy Ellsworth, failed to meet this burden of proof. Consider both her initial claim and her testimony during the hearing.
4. Evaluate the petitioner’s legal strategy. What was the central flaw in her petition that prevented the Administrative Law Judge from ruling on the merits of her non-enforcement claim?
5. Based on the legal precedent cited (Powell v. Washburn), discuss the principles Arizona courts use to interpret CC&Rs. How did the judge apply this principle to the specific language of Article 10, Section 10.11.1?
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Glossary of Key Terms
Definition
Administrative Law Judge (ALJ)
An official (in this case, Velva Moses-Thompson) who presides over hearings at an administrative agency (like the OAH) and issues decisions.
Affirmative Defense
A 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.
ARIZ. REV. STAT. (A.R.S.)
Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona.
Burden of Proof
The obligation on a party in a legal case to prove their allegations. In this case, the petitioner had the burden to prove the VHA violated its CC&Rs.
Covenants, Conditions, and Restrictions. These are the governing legal documents that set up the rules for a planned community or subdivision.
Declaratory Judgment
A binding judgment from a court defining the legal relationship between parties and their rights in a matter before any actual harm has occurred. The OAH determined it lacked jurisdiction to issue such a judgment in this case.
Jurisdiction
The official power to make legal decisions and judgments. The OAH’s jurisdiction was limited to hearing alleged violations of community documents, not requests for declaratory judgments.
Office of Administrative Hearings (OAH)
The state agency where the evidentiary hearing for this case was held. It conducts hearings for other state agencies.
Petitioner
The party who initiates a lawsuit or files a petition to start a legal action. In this case, Wendy Ellsworth.
Preponderance of the Evidence
The standard of proof in most civil cases, meaning that the evidence presented is more convincing and likely to be true than not. It is a lower standard than “beyond a reasonable doubt.”
Respondent
The party against whom a petition is filed; the party who must respond to the petitioner’s claims. In this case, Vincenz Homeowners’ Association.
Restrictive Covenant
A provision in a deed or a set of CC&Rs that limits the use of the property and prohibits certain uses.
Waiver
The intentional or voluntary relinquishment of a known right. The petitioner argued that the VHA, through its inaction, had waived its right to enforce the parking rule.
Why This Homeowner’s Lawsuit Against Her HOA Was Doomed From the Start: 3 Critical Lessons
The frustration is real. You see your neighbors breaking the rules—parking on the street, letting their lawn go—and it feels like your Homeowners’ Association (HOA) is doing nothing about it. This sense of inconsistent enforcement is one of the most common complaints homeowners have. For Wendy Ellsworth, this frustration led her to file a legal petition against the Vincenz Homeowners’ Association (VHA).
Her case, however, was dismissed. It wasn’t lost on a minor technicality or a surprise piece of evidence. It was doomed from the start because of fundamental strategic errors. By examining where she went wrong, we can uncover three powerful lessons for any homeowner considering a similar fight.
Lesson 1: You Must Accuse the Right Party of the Right Violation
Ms. Ellsworth’s core grievance was that the VHA was not enforcing its own on-street parking rules against other residents. Her formal petition, however, made a critical mistake: it accused the HOA itself of violating the community’s parking rule, CC&R Article 10 § 10.11.1.
This was a fatal flaw. That specific rule governs the actions of homeowners—prohibiting them from parking automobiles or trucks on roadways except in designated areas. It places no duty on the HOA. In her legal filing, Ms. Ellsworth failed to point to any specific rule that the HOA, as an entity, had actually broken. Her petition essentially accused the HOA of illegally parking a car, which was not her complaint at all. The judge noted this fundamental disconnect:
“Ms. Ellsworth did not even allege that VHA parked an automobile or a truck in a roadway, garage, or in an area that has not been designated for parking by the Board.”
A viable petition would have needed to identify a completely different rule—one that placed a specific duty on the HOA Board to enforce the community documents—and then allege that the Board had violated that duty. This fundamental error of misidentifying the violation was compounded by the fact that she was asking the tribunal for a remedy it had no power to grant. Accusing the wrong party of breaking the wrong rule can cause an entire case to be dismissed before its merits are even considered.
Lesson 2: The “Burden of Proof” is More Than Just a Legal Phrase
In any legal action, the person making the claim (the “petitioner”) has the “burden of proof.” This means it is their responsibility to present evidence that convinces the judge their claim is true. Ms. Ellsworth, as the petitioner, was responsible for proving her case by a “preponderance of the evidence.”
The court defined this standard as:
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
Making an accusation is easy; proving it is hard. Ms. Ellsworth’s own testimony failed to meet this standard. At the hearing, she initially testified that the VHA had never enforced the parking rule. However, when questioned further during cross-examination, she admitted that she was “unsure” whether the HOA had ever enforced it. This admission transformed her claim from an assertion of fact into mere speculation. In court, “I’m unsure” is the equivalent of having no evidence at all on that point, making it impossible for the judge to conclude her version of events was “more probably true than not.”
The lesson here is that winning requires more than just a belief you are right. You must present evidence that is solid, consistent, and more convincing than the other side’s. Weak or self-contradictory testimony undermines your own credibility and makes it nearly impossible to meet the burden of proof.
Lesson 3: You Have to Knock on the Right Legal Door
The legal system is highly specialized, and different courts and tribunals have the authority—or “jurisdiction”—to hear different types of cases. A major part of Ms. Ellsworth’s petition was the request for a “declaratory judgment,” essentially asking the judge to declare that the VHA had waived its right to enforce the parking rule in the future because of its alleged past non-enforcement.
The problem was that she brought this request to the wrong venue. The Office of Administrative Hearings (OAH) is designed to answer a simple question: “Did the HOA violate an existing rule?” Ms. Ellsworth was asking a far more complex question: “Based on past behavior, should the court declare that this rule is no longer enforceable in the future?” That forward-looking request for a “declaratory judgment” belongs in a court of general jurisdiction (like a state Superior Court), which has broader powers to interpret contracts and establish future rights, not in a specialized administrative tribunal.
The Administrative Law Judge made this point unequivocally:
“To the extent that Ms. Ellsworth is requesting a declaratory judgment that VHA has waived its right to enforce CC&R Article 10, Section 10.11.1., this tribunal does not have jurisdiction to make such a determination.”
Even if her argument about waiver had merit, it was brought before a body that was legally powerless to grant her request. This serves as a crucial reminder: filing a case in the wrong court is an automatic loss. Understanding the specific jurisdiction of the court or tribunal you are petitioning is a non-negotiable step in legal strategy.
Conclusion: Thinking Like a Lawyer, Not Just a Homeowner
Ms. Ellsworth’s case failed not because of three separate errors, but because of a single, comprehensive breakdown in legal strategy. The “what” (the specific accusation), the “how” (the burden of proof), and the “where” (the legal venue) were all fundamentally misaligned with her ultimate goal. This misalignment created a case that was legally impossible to win, regardless of how valid her underlying frustration may have been.
While a homeowner’s anger may be entirely justified, this case demonstrates that passion alone doesn’t win lawsuits. A sound legal strategy is essential. Before you challenge your HOA, have you moved past the frustration to build a case that can actually win?
Case Participants
Petitioner Side
- Wendy Ellsworth (petitioner)
Testified at hearing - Brian Hatch (petitioner attorney)
Brian A. Hatch PLLC
Respondent Side
- Mark K. Sahl (HOA attorney)
CARPENTER, HAZLEWOOD, DELGADO & BOLEN LLP
Neutral Parties
- Velva Moses-Thompson (ALJ)
- Judy Lowe (Commissioner)
Arizona Department of Real Estate
