Briefing Doc – 19F-H1918042-REL-RHG
Briefing: Case No. 19F-H1918042-REL-RHG, Tober v. Civano 1 HOA
Executive Summary
This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in Case No. 19F-H1918042-REL-RHG, involving Petitioner Joan A. Tober and Respondent Civano 1 Neighborhood 1 Homeowners Association (HOA). The dispute centered on the HOA’s alleged failure to provide records in accordance with Arizona statute A.R.S. § 33-1805.
The core conflict originated from the Petitioner’s request for a specific attorney’s letter (“the Letter”) concerning the North Ridge wall, which was mentioned at an HOA Board meeting. The Petitioner argued that by discussing the Letter, the HOA waived attorney-client privilege. The HOA maintained the Letter was privileged and rightfully withheld. The Petitioner subsequently expanded her request to “any and all documentation” regarding the wall, which the HOA found to be overly broad.
Following an initial hearing on June 5, 2019, the ALJ ruled in favor of the HOA, finding the Letter was privileged and the HOA had complied with the statute. A rehearing was granted to address the Petitioner’s claim that the ruling “did not address the timeliness aspect of the law.”
The final decision, issued after the December 11, 2019 rehearing, reaffirmed the HOA as the prevailing party. The ALJ concluded that the HOA did not violate the 10-business-day requirement of A.R.S. § 33-1805. The ruling determined that the Petitioner’s expanded request was “unreasonably broad,” and her failure to respond to the HOA’s request for clarification prevented the HOA from being able to reasonably provide records. The Petitioner’s appeal was ultimately dismissed.
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Case Overview
• Case Number: 19F-H1918042-REL-RHG
• Tribunal: In the Office of Administrative Hearings, Arizona
• Petitioner: Joan A. Tober (Appeared on her own behalf)
• Respondent: Civano 1 Neighborhood 1 Homeowners Association (Represented by Diana J. Elston, Esq.)
• Administrative Law Judge: Kay Abramsohn
• Subject Matter: A petition filed with the Arizona Department of Real Estate alleging an HOA violated A.R.S. § 33-1805 by failing to provide association records upon request.
Chronology of Key Events
Nov 20, 2018
At an HOA Board meeting, the President mentions a letter from the HOA’s attorney regarding the North Ridge wall, its erosion, and the HOA’s legal responsibility. He suggests he “can … send it out.”
Nov 26, 2018
Petitioner makes her first request for a copy of the attorney’s letter.
Nov 27, 2018
Petitioner makes a second request. The HOA responds that it is waiting for clarification from its attorney.
Nov 29, 2018
Petitioner submits a third, expanded request for “any and all documentation… and all background information” regarding the North Ridge wall.
Nov 29, 2018
The HOA responds that the President had misspoken, the letter is a privileged “Legal Opinion,” and asks if Petitioner needs a copy of the “original engineer report” for clarification. The ALJ found no evidence Petitioner responded to this clarification request.
Dec 26, 2018
Petitioner files her official Petition with the Arizona Department of Real Estate.
Jan 15-16, 2019
The HOA forwards “historical erosion reports” (2013 and 2014) and an invoice to Petitioner, who acknowledges already possessing the reports.
June 5, 2019
The first administrative hearing is held.
July 29, 2019
The initial ALJ Decision is issued, finding in favor of the HOA.
Aug 5, 2019
Petitioner files a request for rehearing, citing the “timeliness aspect of the law.”
Aug 23, 2019
The Commissioner of the Arizona Department of Real Estate grants the rehearing.
Dec 11, 2019
The rehearing is conducted.
Jan 15, 2020
The final ALJ Decision is issued, again ordering that the HOA is the prevailing party and dismissing the Petitioner’s appeal.
Petitioner’s Position and Arguments
Joan A. Tober, a homeowner since 2001, past Board member, and active observer who taped and transcribed HOA meetings since 2008, built her case on several key arguments:
• Waiver of Privilege: The Petitioner’s central initial argument was that the HOA had “intentionally waived confidentiality” of the attorney’s letter. She contended that because the HOA President mentioned the Letter in an open meeting and other Board members did not object, this demonstrated “unanimous consent to waive confidentiality.”
• Right to Information: The Petitioner’s requests were framed as a right to access information impacting her dues and the HOA budget. Her first request noted, “Since it was discussed at the Board meeting and impacts my dues in addition to being an integral part of the budget decision I see no reason why I should have to pay for a copy.”
• Expanded Request for Full Background: After her initial requests for the Letter were met with a delay, the Petitioner broadened her demand significantly:
• Allegation of Incomplete Disclosure: The Petitioner argued that even after filing her petition, the HOA’s response was insufficient. She asserted that “the Association only sent two reports that were already readily available and in my possession.” She believed that given the long-standing nature of the erosion issue (since 2013), “there’s more than just two pieces of documentation in the possession of the Association.”
• Focus on Timeliness for Rehearing: The basis for the rehearing request was the specific claim that the original ALJ ruling “did not address the timeliness aspect of the law,” alleging the HOA failed to provide access to records within the 10-business-day period mandated by A.R.S. § 33-1805.
Respondent’s Position and Arguments
The Civano 1 HOA, represented by legal counsel, countered the Petitioner’s claims with the following arguments:
• Assertion of Attorney-Client Privilege: The HOA’s primary defense was that the Letter constituted “privileged communication between an attorney for the association and the association,” which is explicitly protected from disclosure to members under A.R.S. § 33-1805(B)(1).
• No Waiver of Privilege: The HOA contended that the “mere mention” of the Letter by the Board President at a meeting did not constitute a legal waiver of its privileged status. The President was found to have “misspoken” when he suggested copies could be provided.
• Overly Broad and Vague Request: The HOA argued that the Petitioner’s expanded request for “any and all” documents was too broad and vague to allow for a reasonable response. The HOA was not required to guess what records were being requested.
• Attempt at Clarification: The HOA provided evidence that it attempted to clarify the vague request on November 29, 2018, by asking if the Petitioner needed a copy of the “original engineer report.” The ALJ found no evidence that the Petitioner ever responded to this query.
• Substantial Compliance: The HOA indicated that by reviewing the exhibits the Petitioner herself presented, it was clear that she had already received copies of the requested historical documents (the 2013 and 2014 reports).
Administrative Law Judge’s Findings and Conclusions
After two hearings, the Administrative Law Judge (ALJ) made determinative findings of fact and law that led to the dismissal of the Petitioner’s case.
Key Findings of Fact
• The Petition was filed solely because the Petitioner wanted a copy of the attorney’s letter discussed at the November 20, 2018 meeting.
• At that meeting, the only document referenced regarding the North Ridge wall was the attorney’s letter/report. No other background documents were mentioned.
• The Petitioner already possessed copies of the 2013 and 2014 engineering reports (which she had obtained from the city) at the time she made her expanded request.
• The Petitioner’s expanded request of November 29, 2018, was the first time she asked for more than just the Letter.
• The Petitioner failed to provide evidence that she responded to the HOA’s November 29, 2018 email seeking to clarify her request.
• The record contains no evidence of any erosion reports other than the 2013 and 2014 reports, nor any evidence of remediation work having been performed by the HOA related to the erosion issue.
Conclusions of Law
1. The Letter is Privileged: Under A.R.S. § 33-1805(B)(1), the attorney’s letter is a privileged communication. Therefore, the “HOA was not required to provide access to, or a copy of, the Letter to Petitioner or to any member within any time period.”
2. The Request Was Unreasonably Broad: The ALJ concluded that the Petitioner’s third request, for “the letter … and all background information,” was “unreasonably broad and remained unclarified by Petitioner.”
3. Petitioner’s Failure to Clarify Precluded HOA Action: The Petitioner’s failure to respond to the HOA’s request for clarification “prevent[ed] the HOA from being able to reasonably make records available.” The ruling states, “An association is not required to guess what records are being requested.”
4. No Violation of Statute: Based on these findings, the ALJ concluded that the HOA did not violate the 10-business-day provision of A.R.S. § 33-1805(A). The Petitioner failed to meet her burden of proof. The final decision clarifies that the HOA “acted in compliance with A.R.S. § 33-1805.”
Final Order
IT IS ORDERED that the HOA is the prevailing party with regard to the rehearing, and Petitioner’s appeal is dismissed.
The order, issued on January 15, 2020, is binding on the parties. Any further appeal must be filed with the superior court within thirty-five days.
