Tag Archives: A.R.S. § 33-1805(A)

Patricia Wiercinski vs. Long Meadow Ranch East Property Owners

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Case Summary

Case ID 19F-H1918028-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-05-01
Administrative Law Judge Diane Mihalsky
Outcome none
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Patricia Wiercinski Counsel —
Respondent Long Meadow Ranch East Property Owners Association, Inc. Counsel Ashley N. Moscarello, Esq.

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Administrative Law Judge dismissed the petition upon rehearing, holding that the email chain discussing an incident involving the Petitioner's husband was an informal communication among Board members, not an official record of the association under A.R.S. § 33-1805(A), since the Board never took any formal action on the matter. Therefore, the HOA was not required to produce an un-redacted copy.

Why this result: The Petitioner failed to meet the burden of proof that the email string constituted 'financial and other records of the association' which Respondent was required to provide.

Key Issues & Findings

Failure to produce association records (un-redacted email string) upon member request

Petitioner alleged the HOA violated A.R.S. § 33-1805 by failing to produce an un-redacted copy of an email chain among Board members concerning an incident where Petitioner's husband allegedly harassed potential buyers, arguing the email constituted an official association record.

Orders: Petition denied and dismissed. The HOA did not violate A.R.S. § 33-1805(A) as the email string was determined not to be an official record of the association.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1804(E)(4)

Analytics Highlights

Topics: HOA records, Statutory violation, Document production, Informal communication, Board quorum, A.R.S. § 33-1805, Rehearing
Additional Citations:

  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1804(E)(4)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)

Audio Overview

Decision Documents

19F-H1918028-REL Decision – 684134.pdf

Uploaded 2025-10-08T07:07:58 (149.9 KB)





Briefing Doc – 19F-H1918028-REL


Briefing Document: Wiercinski v. Long Meadow Ranch East Property Owners Association

Executive Summary

This document synthesizes the findings, arguments, and outcomes from two administrative hearings concerning a petition filed by homeowner Patricia Wiercinski against the Long Meadow Ranch East Property Owners Association (the “HOA”). The core of the dispute is the HOA’s alleged failure to produce records related to a June 19, 2017 incident where Wiercinski’s husband, Wayne Coates, allegedly engaged in belligerent and threatening behavior toward potential buyers of a neighboring property, causing the prospective sale to collapse.

Across an initial hearing and a subsequent rehearing, Administrative Law Judge Diane Mihalsky consistently ruled in favor of the HOA. The central finding was that the key evidence—an email chain discussing the incident among HOA board members—did not constitute an official “record of the association” under Arizona statute A.R.S. § 33-1805. The communications were deemed informal discussions among neighbors that never resulted in official board business or action. Consequently, the HOA was under no legal obligation to produce these private emails or to provide an un-redacted version to the petitioner. The judge also found the HOA’s decision to redact the names of the potential buyers and their agent was reasonable, given testimony regarding Mr. Coates’ alleged history of bullying and intimidation.

1. Case Overview

The matter involves a single-issue petition filed by Patricia Wiercinski alleging the Long Meadow Ranch East Property Owners Association, Inc. violated Arizona law by refusing to produce documents concerning its response to a specific incident involving her husband.

Case Detail

Information

Petitioner

Patricia Wiercinski

Respondent

Long Meadow Ranch East Property Owners Association, Inc.

Case Number

19F-H1918028-REL

Presiding Judge

Administrative Law Judge Diane Mihalsky

Initial Hearing

January 10, 2019

Rehearing

April 22, 2019

Core Allegation

Violation of A.R.S. § 33-1805 (Access to association financial and other records)

2. The Incident of June 19, 2017

On June 19, 2017, potential buyers, along with their architect and son, visited a vacant lot for sale on Puntenney Road, across the street from the residence of Patricia Wiercinski and Wayne Coates.

• The Confrontation: An email from the prospective buyers described an encounter with an “elderly man” (identified as Wayne Coates) who “came out of a home to the west and began to yell and scream.”

• Alleged Behavior: Mr. Coates’ actions were characterized as “belligerent and cursing,” “verbally abusive,” and “extremely confrontational.” He allegedly told the visitors that “nothing was for sale around here” and that they “needed to leave immediately.”

• Immediate Consequence: The incident directly resulted in the termination of the potential sale. In their email, the buyers stated: “would we want to live next to this type of behavior of [a] neighbor? The answer is no… due to the volatile potential of this man, we have decided at this point to remove it from our list.” They further stated they would avoid any property that required them to “drive past or have the chance of contact with this individual.”

3. The Central Evidence: The Email Correspondence

The focal point of the legal dispute is an email chain dated June 19-20, 2017, that was voluntarily produced by the HOA after the petition was filed. The emails reveal the immediate fallout from the incident and the initial reactions of the property owner and HOA board members.

• John Allen (Property Owner): After being informed by his realtor, Mr. Allen shared the complaint with the HOA Board of Directors (BOD), stating, “an owner should not be allowed to interfere with a potential sale of another owner’s property.” He indicated he would “employ legal action if necessary.”

• Gregg Arthur (HOA Director and Realtor): In an email to the Board, Mr. Arthur expressed significant concern, framing the situation as being “as bad as it gets” in the real estate world. He wrote, “Wayne thru his actions appears to have interfered with and destroyed a property sale. We need to meet and take action on this matter as it will have a broad and chilling effect amongst the realtor community (effecting us all)… action needs to be taken and quickly to prevent this from happening again.”

• Joe Zielinski (HOA Director): Mr. Zielinski’s email suggested potential legal consequences for Mr. Coates, noting his “arrest record and prison term and criminal history.” He stated that the Yavapai County Sheriff’s Office (YCSO) “may file charges against Wayne for disorderly conduct/harassment.” He concluded, “I don’t believe Wayne (and Patricia’s) aggressive and disruptive behavior will stop.”

4. Legal Proceedings and Evolving Arguments

The case was adjudicated over two separate hearings, during which the Petitioner’s legal theory shifted significantly.

4.1. Initial Hearing (January 10, 2019)

• Petitioner’s Argument: Ms. Wiercinski alleged that the HOA violated A.R.S. § 33-1805 by failing to produce official documents showing its deliberations and decisions regarding the incident. She argued that because a quorum of the board was included in the email discussion, they were required to formally address the matter and produce a record of their decision, even if the decision was to take no action. She also noted the failure to produce a map referenced in one of the emails.

• Respondent’s Position: The HOA contended it had not violated any statute. Its representatives testified that the email chain was an informal communication among board members on their personal servers, not an official HOA record. They stated the Board never formally discussed, voted on, or took any action regarding the incident, as it did not constitute a violation of any governing documents the HOA was empowered to enforce.

• Outcome: The petition was denied. The Administrative Law Judge (ALJ) found that the Petitioner failed to establish that any official documents regarding the incident existed that the HOA had failed to produce.

4.2. Rehearing (April 22, 2019)

• Basis for Rehearing: The rehearing was granted after Ms. Wiercinski alleged misconduct by the judge.

• Petitioner’s Shift in Argument: Ms. Wiercinski changed her theory of the case. She no longer argued that a formal decision was required. Instead, she contended that the email string itself was an official record of the association. Therefore, she argued, A.R.S. § 33-1805 required the HOA to produce a complete, un-redacted version, asserting she had a right to know the identity of her husband’s accusers.

• Respondent’s Position: The HOA reiterated that the emails were private communications and not official records. The HOA President, Mike Olson, testified that the names of the potential purchasers and their real estate agent were redacted because “Mr. Coates had a history of bullying and intimidating people.” The Community Manager, Kathy Andrews, affirmed that the incident was never entered into the HOA’s official records because the board took no action and viewed it as a personal dispute outside its authority.

• Outcome: The petition was dismissed. The ALJ reaffirmed that the email string was not a “record of the association” and, therefore, the statute did not require the HOA to provide an un-redacted version.

5. Key Findings and Conclusions of the Administrative Law Judge

Across both decisions, Judge Mihalsky’s conclusions of law were consistent and decisive.

• Informal Discussion vs. Official Business: The judge ruled that the “mere fact that a quorum of Board members may discuss a topic does not make it official Board business, especially if they do not end up taking any action to make a matter board business.”

• Status of the Email Chain: The emails were determined to be informal communications, not “financial and other records of the association” subject to A.R.S. § 33-1805. As such, the HOA was not legally obligated to produce them.

• No Violation of Statute: Because the Petitioner did not establish that any official documents existed regarding the incident, her petition was denied. In the rehearing, the petition was dismissed because the email string was not an official record requiring un-redacted disclosure.

• Reasonableness of Redactions: The judge commented that the HOA president’s testimony—that he redacted the names out of fear that Mr. Coates would harass the individuals involved—”does not appear unreasonable.”

• Burden of Proof: In both hearings, the Petitioner failed to meet her burden of proof to establish by a preponderance of the evidence that the Respondent had violated the statute.

6. Key Individuals and Their Roles

Individual

Role / Significance

Patricia Wiercinski

Petitioner; homeowner who filed the petition against the HOA for withholding records.

Wayne Coates

Petitioner’s Husband; central figure in the June 19, 2017 incident. Alleged to have a history of aggressive behavior.

Mike Olson

HOA President; testified that emails were informal and names were redacted to protect individuals from Mr. Coates.

Gregg Arthur

HOA Director / Realtor; warned that Mr. Coates’ actions destroyed a sale and would have a “chilling effect.”

Kathy Andrews

Community Manager (HOAMCO); testified that no official records of the incident exist in the HOA’s archives.

John Allen

Property Owner; was attempting to sell the lot and reported the incident to the HOA.

Joe Zielinski

HOA Director; mentioned Mr. Coates’ criminal history in an email and suggested his disruptive behavior would continue.

Diane Mihalsky

Administrative Law Judge; presided over both hearings and issued decisions dismissing the petition.


John Paul Holyoak vs. Camelback Country Club Estates I & II

Posted on by

Case Summary

Case ID 18F-H1818030-REL, 18F-H1818031-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-05-25
Administrative Law Judge Tammy L. Eigenheer
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jon Paul Holyoak Counsel —
Respondent Camelback Country Club Estates I & II Homeowners Association Counsel Diana J. Elston, J. Gary Linder

Alleged Violations

CC&Rs Section 12

Outcome Summary

The Administrative Law Judge denied the petition related to landscaping (18F-H1818030-REL), but deemed Petitioner the prevailing party and ordered the refund of the $500 filing fee regarding the petition concerning the additional mailbox (18F-H1818031-REL) because the HOA improperly based the fine on CC&R Section 12.

Why this result: Petitioner failed to prove the olive tree was alive, and a dead tree could be reasonably considered a violation of CC&R Section 28 requiring neatly trimmed/properly cultivated plantings (Case 18F-H1818030-REL).

Key Issues & Findings

Improper fine regarding additional freestanding mailbox

Petitioner challenged fines for an additional mailbox lacking architectural approval. The ALJ found that CC&R Section 12 (related to 'building') could not be applied to a mailbox, rendering the fine imposed under that section a violation by the Respondent. Petitioner was deemed the prevailing party in this docket number (18F-H1818031-REL).

Orders: Respondent ordered to pay Petitioner $500.00 filing fee refund within thirty days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 33-1805(A)
  • A.A.C. R2-19-119
  • CC&Rs Section 8
  • CC&Rs Section 12
  • CC&Rs Section 27

Analytics Highlights

Topics: landscape_maintenance, architectural_review, fines, mailbox, ccrs, consolidated_cases, prevailing_party
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 33-1805(A)
  • A.A.C. R2-19-119
  • CC&Rs Section 8
  • CC&Rs Section 12
  • CC&Rs Section 27
  • CC&Rs Section 28

Audio Overview

Decision Documents

18F-H1818030-REL Decision – 636748.pdf

Uploaded 2025-10-09T03:32:37 (130.5 KB)

18F-H1818030-REL Decision – 637227.pdf

Uploaded 2025-10-09T03:32:37 (57.9 KB)

18F-H1818030-REL Decision – 637433.pdf

Uploaded 2025-10-09T03:32:37 (56.5 KB)





Briefing Doc – 18F-H1818030-REL


Briefing Document: Holyoak v. Camelback Country Club Estates HOA

Executive Summary

This briefing document synthesizes the findings and conclusions from an Administrative Law Judge Decision concerning two consolidated petitions filed by homeowner Jon Paul Holyoak against the Camelback Country Club Estates I & II Homeowners Association (HOA). The disputes centered on HOA-issued violations for landscaping maintenance and the presence of a freestanding mailbox.

The final judgment produced a split decision. The Petitioner, Mr. Holyoak, failed to prove the HOA acted improperly in the landscaping case and his petition was denied. However, he was deemed the prevailing party in the mailbox case, with the judge concluding the HOA had violated its own community documents (CC&Rs) by imposing a fine based on an inapplicable section. As the prevailing party in one of the two matters, Mr. Holyoak was awarded his $500 filing fee, to be paid by the HOA. The initial decision document required two subsequent nunc pro tunc orders to correct typographical errors.

Key Takeaways:

• Landscaping Petition (Denied): Mr. Holyoak was cited for failing to remove a “dead” olive tree. He argued the tree was merely “in distress.” The judge ruled that a reasonable person would consider the tree dead and that Mr. Holyoak failed to provide sufficient evidence to the contrary. A dead tree was found to be a potential violation of CC&R Section 28, which requires plantings to be “neatly trimmed” and “properly cultivated.”

• Mailbox Petition (Upheld): Mr. Holyoak was cited for an “additional mailbox” that was present when he purchased the property in 2012. The judge found the HOA’s enforcement problematic for two primary reasons:

1. The HOA cited three different CC&R sections across multiple notices.

2. The fine was ultimately based on Section 12, which pertains to “buildings” and was deemed inapplicable to a mailbox.

• Final Order: The HOA was ordered to pay the Petitioner’s $500 filing fee. The decision is binding on the parties.

——————————————————————————–

Case Overview

The matter involves two petitions filed on February 2, 2018, by Petitioner Jon Paul Holyoak with the Arizona Department of Real Estate against the Respondent, Camelback Country Club Estates I & II Homeowners Association. The petitions alleged that the HOA had improperly cited Mr. Holyoak for violations of the community’s Conditions, Covenants, and Restrictions (CC&Rs). The two cases were consolidated for a single hearing.

Detail

Information

Case Numbers

18F-H1818030-REL (Landscaping)
18F-H1818031-REL (Mailbox)

Petitioner

Jon Paul Holyoak

Respondent

Camelback Country Club Estates I & II Homeowners Association (represented by Gary Linder and Diana Elston)

Hearing Date

May 2, 2018

Decision Date

May 25, 2018

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Legal Framework

The Petitioner bore the burden of proving by a preponderance of the evidence that the Respondent violated the community CC&Rs and A.R.S. § 33-1805(A).

——————————————————————————–

Petition 1: Landscaping Violations (Case No. 18F-H1818030-REL)

This petition alleged that the HOA improperly cited Mr. Holyoak for violating Section 28 of the CC&Rs, which governs landscape maintenance.

HOA Actions and Timeline

The HOA, through its inspection team Associa Arizona, issued a series of notices regarding the landscaping on Mr. Holyoak’s property.

Notice Type

Description

Oct 17, 2017

Courtesy Notice

“Please remove the dead foliage on your lot.”

Dec 13, 2017

Courtesy Notice

“Please remove the dead olive tree in the front yard.”

Dec 13, 2017

Courtesy Notice

“There are several other trees that need to be removed as they have dead branches including the cassia…”

Jan 25, 2018

Notice of Violation

“2nd notice…There are several other trees that need to be removed as they have dead branches…” (Included photo of backyard).

Arguments Presented

• Petitioner’s Position (Holyoak):

◦ The olive tree in the front yard was not “dead” but rather “in distress,” and he was actively trying to nurse it back to health. He eventually had the tree removed on April 25, 2018, after months of effort.

◦ Regarding the backyard photo attached to the fine notice, he argued that the olive tree visible was healthy and that no dead trees were depicted.

◦ He requested that the fine be abated.

• Respondent’s Position (HOA):

◦ Board member Terry Rogers testified that the front yard olive tree had no leaves, appeared dead from the roadway, and was therefore not “properly trimmed” as required.

◦ He stated the backyard notice referred to a eucalyptus tree with several dead branches visible from the sidewalk bordering the property.

Administrative Law Judge’s Findings and Conclusion

The judge ruled in favor of the HOA in this matter.

• Burden of Proof: The Petitioner failed to present sufficient evidence, beyond “his self-serving statements,” that the olive tree was alive.

• Reasonable Interpretation: The judge concluded that “Any reasonable person viewing the olive tree, as depicted in the photographs presented, would understand the tree to be dead.”

• Violation of CC&Rs: A dead tree could reasonably be considered as not being “neatly trimmed” or “properly cultivated” in accordance with Section 28.

• Verdict: The Petitioner’s petition was denied. The judge found that the HOA had not improperly fined him for the landscaping violation.

——————————————————————————–

Petition 2: Unapproved Structure/Mailbox (Case No. 18F-H1818031-REL)

This petition alleged that the HOA improperly cited Mr. Holyoak for having an “additional mailbox” in violation of the CC&Rs.

HOA Actions and Timeline

The HOA’s notices for the mailbox cited three different sections of the CC&Rs over time.

Notice Type

Description

CC&R Section Cited

Oct 17, 2017

Courtesy Notice

“Please remove the additional mailbox on your lot.”

Section 27

Dec 14, 2017

Courtesy Notice

“…there is an additional mailbox on your lot. In research of our files, there is no architectural application on file for the modification.”

Section 12

Jan 25, 2018

Notice of Violation

“2nd notice…Please remove the mailbox or provide the approved architectural application.” (Mailbox was painted bright pink and yellow at this time).

Section 12

Jan 25, 2018¹

Notice of Violation

“3rd notice…Please remove the mailbox or provide the approved architectural application.”

Section 8

¹The decision document states this notice was sent on January 25, 2018, but references a violation noted on March 15, 2018. The judge’s conclusions later clarify a notice referencing Section 8 was issued April 11, 2018, and was not properly before the tribunal.

Arguments Presented

• Petitioner’s Position (Holyoak):

◦ The freestanding mailbox was already in place when he purchased the home in 2012.

◦ At the time of purchase, he received a statement that there were no known covenant violations on the property.

◦ He argued the mailbox is required by the United States Postal Service (USPS), which no longer provides walking delivery and requires mailboxes to be reachable from a vehicle. The home’s other mailbox, built into a monument, is approximately 15 feet from the curb.

◦ A USPS mail carrier had confirmed this delivery requirement.

• Respondent’s Position (HOA):

◦ Board member Terry Rogers testified that the USPS mail carrier told him he would prefer to deliver to the permanent monument mailbox because the freestanding one was not secure.

◦ The mailbox had become an “eyesore,” as it was faded, peeling, and “listing to one side.”

◦ Of the 61 homes in the community, only three have freestanding mailboxes, and the Petitioner is the only one with two mailboxes.

Administrative Law Judge’s Findings and Conclusion

The judge ruled in favor of the Petitioner in this matter.

• Inconsistent Enforcement: The judge found it “problematic” that the HOA relied on three different sections of the CC&Rs in its notices.

• Pre-existing Structure: The Petitioner established that the mailbox was present at the time of his 2012 home purchase and that he was told of no existing violations. Therefore, the HOA’s argument regarding the lack of an architectural approval was “without merit.”

• Inapplicable CC&R Section: The fine was imposed based on Section 12 of the CC&Rs. The judge determined the plain language of this section relates to a “building” and “cannot be read to apply to Petitioner’s mailbox.”

• Violation by HOA: By imposing a fine based on an inapplicable section, the HOA was in violation of the CC&Rs.

• Verdict: The Petitioner was deemed the prevailing party. The judge noted that the HOA could potentially impose fines for failure to maintain the mailbox or for painting it without approval, but those specific violations were not before the court.

——————————————————————————–

Final Order and Subsequent Corrections

• Order of May 25, 2018:

1. Petitioner’s petition in Case Number 18F-H1818030-REL (Landscaping) is denied.

2. Petitioner is deemed the prevailing party in Case Number 18F-H1818031-REL (Mailbox).

3. Respondent (HOA) is ordered to pay Petitioner his $500.00 filing fee within thirty days.

• Order Nunc Pro Tunc of May 30, 2018:

◦ This order corrected a typographical error in the original decision. The original text mistakenly stated the petition for the mailbox case (31-REL) was denied.

◦ Correction: The denial was correctly applied to the landscaping case: “it is ORDERED that Petitioner’s petition in Case Number 18F-H1818031-REL 18F-H1818030-REL is denied.”

• Order Nunc Pro Tunc of May 31, 2018:

◦ This order corrected a typographical error in the May 30 order, which had misstated the date of the original decision.

◦ Correction: “On April 26 May 25, 2018, the Administrative Law Judge issued the Administrative Law Judge Decision…”

——————————————————————————–

Key CC&R Sections Cited

• Section 8 (Architectural Control): Requires written approval from the Committee before any “building or other structure” is erected, altered, or repaired. This includes exterior finish, color, and architectural style.

• Section 12 (Buildings): States that “No building may be erected or maintained upon any Lot except one single family dwelling with private appurtenant garage and customary outbuildings” without prior written approval.

• Section 27 (Maintenance): Prohibits any building or structure from falling into disrepair and requires owners to keep them in good condition and adequately painted.

• Section 28 (Landscaping): Requires the owner of each lot to “at all times keep shrubs, trees, grass and plantings of every kind, on his lot mostly trimmed, properly cultivated, and free of trash, weeds and other unsightly material.”


John Paul Holyoak vs. Camelback Country Club Estates I & II

Posted on by

Case Summary

Case ID 18F-H1818030-REL, 18F-H1818031-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-05-25
Administrative Law Judge Tammy L. Eigenheer
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jon Paul Holyoak Counsel —
Respondent Camelback Country Club Estates I & II Homeowners Association Counsel Diana J. Elston, J. Gary Linder

Alleged Violations

CC&Rs Section 12

Outcome Summary

The Administrative Law Judge denied the petition related to landscaping (18F-H1818030-REL), but deemed Petitioner the prevailing party and ordered the refund of the $500 filing fee regarding the petition concerning the additional mailbox (18F-H1818031-REL) because the HOA improperly based the fine on CC&R Section 12.

Why this result: Petitioner failed to prove the olive tree was alive, and a dead tree could be reasonably considered a violation of CC&R Section 28 requiring neatly trimmed/properly cultivated plantings (Case 18F-H1818030-REL).

Key Issues & Findings

Improper fine regarding additional freestanding mailbox

Petitioner challenged fines for an additional mailbox lacking architectural approval. The ALJ found that CC&R Section 12 (related to 'building') could not be applied to a mailbox, rendering the fine imposed under that section a violation by the Respondent. Petitioner was deemed the prevailing party in this docket number (18F-H1818031-REL).

Orders: Respondent ordered to pay Petitioner $500.00 filing fee refund within thirty days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 33-1805(A)
  • A.A.C. R2-19-119
  • CC&Rs Section 8
  • CC&Rs Section 12
  • CC&Rs Section 27

Analytics Highlights

Topics: landscape_maintenance, architectural_review, fines, mailbox, ccrs, consolidated_cases, prevailing_party
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • A.R.S. § 33-1805(A)
  • A.A.C. R2-19-119
  • CC&Rs Section 8
  • CC&Rs Section 12
  • CC&Rs Section 27
  • CC&Rs Section 28

Audio Overview

Decision Documents

18F-H1818030-REL Decision – 636748.pdf

Uploaded 2025-10-08T07:04:57 (130.5 KB)

18F-H1818030-REL Decision – 637227.pdf

Uploaded 2025-10-08T07:04:57 (57.9 KB)

18F-H1818030-REL Decision – 637433.pdf

Uploaded 2025-10-08T07:04:58 (56.5 KB)





Briefing Doc – 18F-H1818030-REL


Briefing Document: Holyoak v. Camelback Country Club Estates HOA

Executive Summary

This briefing document synthesizes the findings and conclusions from an Administrative Law Judge Decision concerning two consolidated petitions filed by homeowner Jon Paul Holyoak against the Camelback Country Club Estates I & II Homeowners Association (HOA). The disputes centered on HOA-issued violations for landscaping maintenance and the presence of a freestanding mailbox.

The final judgment produced a split decision. The Petitioner, Mr. Holyoak, failed to prove the HOA acted improperly in the landscaping case and his petition was denied. However, he was deemed the prevailing party in the mailbox case, with the judge concluding the HOA had violated its own community documents (CC&Rs) by imposing a fine based on an inapplicable section. As the prevailing party in one of the two matters, Mr. Holyoak was awarded his $500 filing fee, to be paid by the HOA. The initial decision document required two subsequent nunc pro tunc orders to correct typographical errors.

Key Takeaways:

• Landscaping Petition (Denied): Mr. Holyoak was cited for failing to remove a “dead” olive tree. He argued the tree was merely “in distress.” The judge ruled that a reasonable person would consider the tree dead and that Mr. Holyoak failed to provide sufficient evidence to the contrary. A dead tree was found to be a potential violation of CC&R Section 28, which requires plantings to be “neatly trimmed” and “properly cultivated.”

• Mailbox Petition (Upheld): Mr. Holyoak was cited for an “additional mailbox” that was present when he purchased the property in 2012. The judge found the HOA’s enforcement problematic for two primary reasons:

1. The HOA cited three different CC&R sections across multiple notices.

2. The fine was ultimately based on Section 12, which pertains to “buildings” and was deemed inapplicable to a mailbox.

• Final Order: The HOA was ordered to pay the Petitioner’s $500 filing fee. The decision is binding on the parties.

——————————————————————————–

Case Overview

The matter involves two petitions filed on February 2, 2018, by Petitioner Jon Paul Holyoak with the Arizona Department of Real Estate against the Respondent, Camelback Country Club Estates I & II Homeowners Association. The petitions alleged that the HOA had improperly cited Mr. Holyoak for violations of the community’s Conditions, Covenants, and Restrictions (CC&Rs). The two cases were consolidated for a single hearing.

Detail

Information

Case Numbers

18F-H1818030-REL (Landscaping)
18F-H1818031-REL (Mailbox)

Petitioner

Jon Paul Holyoak

Respondent

Camelback Country Club Estates I & II Homeowners Association (represented by Gary Linder and Diana Elston)

Hearing Date

May 2, 2018

Decision Date

May 25, 2018

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

Legal Framework

The Petitioner bore the burden of proving by a preponderance of the evidence that the Respondent violated the community CC&Rs and A.R.S. § 33-1805(A).

——————————————————————————–

Petition 1: Landscaping Violations (Case No. 18F-H1818030-REL)

This petition alleged that the HOA improperly cited Mr. Holyoak for violating Section 28 of the CC&Rs, which governs landscape maintenance.

HOA Actions and Timeline

The HOA, through its inspection team Associa Arizona, issued a series of notices regarding the landscaping on Mr. Holyoak’s property.

Notice Type

Description

Oct 17, 2017

Courtesy Notice

“Please remove the dead foliage on your lot.”

Dec 13, 2017

Courtesy Notice

“Please remove the dead olive tree in the front yard.”

Dec 13, 2017

Courtesy Notice

“There are several other trees that need to be removed as they have dead branches including the cassia…”

Jan 25, 2018

Notice of Violation

“2nd notice…There are several other trees that need to be removed as they have dead branches…” (Included photo of backyard).

Arguments Presented

• Petitioner’s Position (Holyoak):

◦ The olive tree in the front yard was not “dead” but rather “in distress,” and he was actively trying to nurse it back to health. He eventually had the tree removed on April 25, 2018, after months of effort.

◦ Regarding the backyard photo attached to the fine notice, he argued that the olive tree visible was healthy and that no dead trees were depicted.

◦ He requested that the fine be abated.

• Respondent’s Position (HOA):

◦ Board member Terry Rogers testified that the front yard olive tree had no leaves, appeared dead from the roadway, and was therefore not “properly trimmed” as required.

◦ He stated the backyard notice referred to a eucalyptus tree with several dead branches visible from the sidewalk bordering the property.

Administrative Law Judge’s Findings and Conclusion

The judge ruled in favor of the HOA in this matter.

• Burden of Proof: The Petitioner failed to present sufficient evidence, beyond “his self-serving statements,” that the olive tree was alive.

• Reasonable Interpretation: The judge concluded that “Any reasonable person viewing the olive tree, as depicted in the photographs presented, would understand the tree to be dead.”

• Violation of CC&Rs: A dead tree could reasonably be considered as not being “neatly trimmed” or “properly cultivated” in accordance with Section 28.

• Verdict: The Petitioner’s petition was denied. The judge found that the HOA had not improperly fined him for the landscaping violation.

——————————————————————————–

Petition 2: Unapproved Structure/Mailbox (Case No. 18F-H1818031-REL)

This petition alleged that the HOA improperly cited Mr. Holyoak for having an “additional mailbox” in violation of the CC&Rs.

HOA Actions and Timeline

The HOA’s notices for the mailbox cited three different sections of the CC&Rs over time.

Notice Type

Description

CC&R Section Cited

Oct 17, 2017

Courtesy Notice

“Please remove the additional mailbox on your lot.”

Section 27

Dec 14, 2017

Courtesy Notice

“…there is an additional mailbox on your lot. In research of our files, there is no architectural application on file for the modification.”

Section 12

Jan 25, 2018

Notice of Violation

“2nd notice…Please remove the mailbox or provide the approved architectural application.” (Mailbox was painted bright pink and yellow at this time).

Section 12

Jan 25, 2018¹

Notice of Violation

“3rd notice…Please remove the mailbox or provide the approved architectural application.”

Section 8

¹The decision document states this notice was sent on January 25, 2018, but references a violation noted on March 15, 2018. The judge’s conclusions later clarify a notice referencing Section 8 was issued April 11, 2018, and was not properly before the tribunal.

Arguments Presented

• Petitioner’s Position (Holyoak):

◦ The freestanding mailbox was already in place when he purchased the home in 2012.

◦ At the time of purchase, he received a statement that there were no known covenant violations on the property.

◦ He argued the mailbox is required by the United States Postal Service (USPS), which no longer provides walking delivery and requires mailboxes to be reachable from a vehicle. The home’s other mailbox, built into a monument, is approximately 15 feet from the curb.

◦ A USPS mail carrier had confirmed this delivery requirement.

• Respondent’s Position (HOA):

◦ Board member Terry Rogers testified that the USPS mail carrier told him he would prefer to deliver to the permanent monument mailbox because the freestanding one was not secure.

◦ The mailbox had become an “eyesore,” as it was faded, peeling, and “listing to one side.”

◦ Of the 61 homes in the community, only three have freestanding mailboxes, and the Petitioner is the only one with two mailboxes.

Administrative Law Judge’s Findings and Conclusion

The judge ruled in favor of the Petitioner in this matter.

• Inconsistent Enforcement: The judge found it “problematic” that the HOA relied on three different sections of the CC&Rs in its notices.

• Pre-existing Structure: The Petitioner established that the mailbox was present at the time of his 2012 home purchase and that he was told of no existing violations. Therefore, the HOA’s argument regarding the lack of an architectural approval was “without merit.”

• Inapplicable CC&R Section: The fine was imposed based on Section 12 of the CC&Rs. The judge determined the plain language of this section relates to a “building” and “cannot be read to apply to Petitioner’s mailbox.”

• Violation by HOA: By imposing a fine based on an inapplicable section, the HOA was in violation of the CC&Rs.

• Verdict: The Petitioner was deemed the prevailing party. The judge noted that the HOA could potentially impose fines for failure to maintain the mailbox or for painting it without approval, but those specific violations were not before the court.

——————————————————————————–

Final Order and Subsequent Corrections

• Order of May 25, 2018:

1. Petitioner’s petition in Case Number 18F-H1818030-REL (Landscaping) is denied.

2. Petitioner is deemed the prevailing party in Case Number 18F-H1818031-REL (Mailbox).

3. Respondent (HOA) is ordered to pay Petitioner his $500.00 filing fee within thirty days.

• Order Nunc Pro Tunc of May 30, 2018:

◦ This order corrected a typographical error in the original decision. The original text mistakenly stated the petition for the mailbox case (31-REL) was denied.

◦ Correction: The denial was correctly applied to the landscaping case: “it is ORDERED that Petitioner’s petition in Case Number 18F-H1818031-REL 18F-H1818030-REL is denied.”

• Order Nunc Pro Tunc of May 31, 2018:

◦ This order corrected a typographical error in the May 30 order, which had misstated the date of the original decision.

◦ Correction: “On April 26 May 25, 2018, the Administrative Law Judge issued the Administrative Law Judge Decision…”

——————————————————————————–

Key CC&R Sections Cited

• Section 8 (Architectural Control): Requires written approval from the Committee before any “building or other structure” is erected, altered, or repaired. This includes exterior finish, color, and architectural style.

• Section 12 (Buildings): States that “No building may be erected or maintained upon any Lot except one single family dwelling with private appurtenant garage and customary outbuildings” without prior written approval.

• Section 27 (Maintenance): Prohibits any building or structure from falling into disrepair and requires owners to keep them in good condition and adequately painted.

• Section 28 (Landscaping): Requires the owner of each lot to “at all times keep shrubs, trees, grass and plantings of every kind, on his lot mostly trimmed, properly cultivated, and free of trash, weeds and other unsightly material.”


Rex E. Duffett vs. Suntech Patio Homes Homeowners Association (ROOT)

Posted on by

Case Summary

Case ID 18F-H1818025-REL / 18F-H1818027-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-04-24
Administrative Law Judge Tammy L. Eigenheer
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rex E. Duffett Counsel —
Respondent Suntech Patio Homes Homeowners Association Counsel Nathan Tennyson

Alleged Violations

CC&Rs
A.R.S. § 33-1805(A)

Outcome Summary

Petitioner won the statutory claim regarding access to association documents (A.R.S. § 33-1805(A)) and was refunded the $500 filing fee. Petitioner lost the claim regarding the failure to maintain exterior walls (CC&Rs) due to insufficient evidence.

Why this result: Petitioner failed to prove the maintenance issue by a preponderance of the evidence (for case 18F-H1818025-REL).

Key Issues & Findings

Failure to repair and maintain exterior walls

Petitioner alleged the HOA failed to repair damage (crack) to the exterior wall of his unit as required by the CC&Rs. The ALJ found that Petitioner failed to present sufficient evidence (black and white photographs did not clearly show the damage) to establish a violation.

Orders: Petitioner's petition in Case Number 18F-H1818025-REL is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&Rs
  • 5
  • 17

Failure to provide requested association records

Petitioner requested meeting notices and minutes in December 2017. Respondent's former management company failed to respond in a timely fashion. Petitioner established by a preponderance of the evidence that Respondent violated the statute.

Orders: Petitioner deemed the prevailing party in Case Number 18F-H1818027-REL. Respondent ordered to comply with A.R.S. § 33-1805(A) in the future and pay Petitioner the filing fee of $500.00.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805(A)
  • 19
  • 20
  • 21
  • 22

Analytics Highlights

Topics: HOA, Document Request, Records Disclosure, Maintenance, CC&Rs, Filing Fee Refund
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119
  • A.R.S. § 33-1805(A)
  • CC&Rs

Audio Overview

Decision Documents

18F-H1818025-REL Decision – 630610.pdf

Uploaded 2025-10-09T03:32:28 (114.0 KB)





Briefing Doc – 18F-H1818025-REL


Administrative Hearing Brief: Duffett vs. Suntech Patio Homes HOA

Executive Summary

This briefing document analyzes the Administrative Law Judge Decision in two consolidated cases filed by homeowner Rex E. Duffett against the Suntech Patio Homes Homeowners Association (HOA). The ruling presents a split decision, with the petitioner prevailing on one claim while failing to provide sufficient evidence for the other.

The first petition, concerning the HOA’s alleged failure to repair exterior walls, was denied. The petitioner failed to meet the burden of proof, as the submitted photographic evidence was unclear and did not sufficiently establish the existence or severity of the damage requiring immediate repair.

The second petition, concerning the HOA’s failure to provide association records upon request, was upheld. The judge found that the HOA, through its former management company, violated state law (A.R.S. § 33-1805(A)) by not responding to a formal document request within the mandated ten-business-day window.

As a result, Mr. Duffett was deemed the prevailing party in the records-request case. The HOA was ordered to pay his $500 filing fee and to ensure future compliance with the relevant statutes. The case highlights critical issues of evidence quality in homeowner disputes and demonstrates the legal liability an HOA retains for the failures of its management agents, particularly during periods of transition.

——————————————————————————–

Case Overview

Case Numbers

18F-H1818025-REL and 18F-H1818027-REL (Consolidated)

Petitioner

Rex E. Duffett

Respondent

Suntech Patio Homes Homeowners Association

Hearing Date

April 4, 2018

Decision Date

April 24, 2018

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

The hearing addressed two separate petitions filed by Rex E. Duffett with the Arizona Department of Real Estate:

1. Petition 1 (18F-H1818025-REL): Alleged the HOA violated community CC&Rs by failing to repair exterior walls of the petitioner’s unit.

2. Petition 2 (18F-H1818027-REL): Alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide requested documents.

Petition 1: Failure to Repair Exterior Walls (Denied)

Petitioner’s Allegations and Evidence

• Core Claim: The petitioner alleged the HOA failed its duty, as defined by a March 1993 amendment to the CC&Rs, to maintain the exterior walls of his unit. The CC&Rs state, “The Suntech Patio Homeowners Association shall be responsible for the painting and maintenance of the following: A) Exterior walls of all units . . . .”

• Initial Request (July 14, 2017): Mr. Duffett faxed the HOA’s management company, The Management Trust, stating, “While inspecting the outside of my property I noticed a crack in the exterior wall. Please inspect, repair and paint the wall as soon as possible to prevent any damage which could result from rain water in the interior of the wall.”

• Follow-Up Request (August 21, 2017): In a certified letter, Mr. Duffett provided more detail, identifying a crack in the entryway wall allowing “rain water to seep into the interior wall,” a “bare concrete” area on the garage, and a previously cracked garage wall that had been repaired by a roofing company but not painted.

• Hearing Testimony: Mr. Duffett testified that a roofing company he hired to find a leak in his garage ceiling determined the source was not the roof but a crack in the exterior wall.

• Submitted Evidence: The petitioner submitted five black-and-white photographs of his home’s exterior across his two communications.

Respondent’s Position and Evidence

• Management Transition: Pride Community Management took over from The Management Trust on February 1, 2018. The new manager, Rebecca Stowers, and owner, Frank Peake, testified to a difficult transition where The Management Trust initially provided only one box of records, later discovering seven or eight more boxes in storage. Mr. Peake stated that Pride had not seen the petitioner’s communications regarding the damage until the hearing.

• Inspection: Ms. Stowers testified that she inspected the petitioner’s home on March 27, 2018. While she noted “a missing area of stucco on the front of the garage that needed to be repaired,” she “denied being able to identify a crack in the stucco anywhere else on the front of the house.”

• Community-Wide Repair Plan: Ms. Stowers stated that the HOA intended to repair the stucco and paint all exterior walls in the community during the 2018 calendar year at a projected cost of $46,000, to be funded potentially through a special assessment due to the HOA being underfunded.

Conclusion of Law and Ruling

• Burden of Proof: The Administrative Law Judge (ALJ) determined that the petitioner bore the burden of proving his claim by a preponderance of the evidence.

• Evidence Failure: The ALJ found the submitted evidence insufficient. The decision states: “The black and white photographs submitted at hearing did not clearly show the crack Petitioner alleged existed on the exterior wall of his unit… The Administrative Law Judge was unable to identify the location or severity of the alleged crack, and therefore, cannot conclude that such a crack exists and/or that it is necessary to be repaired immediately.”

• Final Ruling: The petitioner failed to meet his burden of proof. The petition in Case Number 18F-H1818025-REL was denied.

Petition 2: Failure to Provide Association Records (Upheld)

Petitioner’s Allegations and Evidence

• Core Claim: The petitioner alleged that the HOA violated A.R.S. § 33-1805(A), which requires an association to fulfill a request for records within ten business days.

• The Request (December 22, 2017): Mr. Duffett faxed The Management Trust a request for specific documents, citing a statement made by the HOA in a separate case. He requested copies of:

◦ Meeting notices and minutes for all meetings where “rules and regulations were discussed” in August/September 2017.

◦ Meeting notices and minutes for meetings where the last HOA dues increase was discussed.

◦ A copy of the notice for the last association rate increase.

Respondent’s Position and Evidence

• Lack of Awareness: The HOA’s initial response on January 29, 2018, indicated it had only become aware of the request upon receiving notice of the petition. The current management company, Pride, testified they had not seen the original communication from the petitioner.

• Vagueness of Request: Frank Peake of Pride testified that the request for minutes of meetings “where the rules and regulations were discussed” was unclear “because rules and regulations are discussed in some form at virtually every meeting of the association.”

• Claim of Privilege: The initial response from The Management Trust on January 29, 2018, claimed that the requested minutes were for “closed executive meetings and were only available to Board members.”

Conclusion of Law and Ruling

• Statutory Violation: The ALJ concluded that the petitioner clearly made a request for documents and that the HOA, via its former management company, failed to act as required by law.

• Failure of Former Management: The decision explicitly faults the prior management company: “The Management Trust should have responded or requested additional clarification of what documents Petitioner was requesting as it was the management company during the ten day window Respondent had to respond pursuant to the statute.”

• Final Ruling: The petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). Mr. Duffett was deemed the prevailing party in Case Number 18F-H1818027-REL.

Final Order and Implications

The Administrative Law Judge issued the following orders based on the conclusions of law:

Case Number

Subject

Ruling

18F-H1818025-REL

Exterior Wall Repairs

Petition Denied

18F-H1818027-REL

Document Request

Petitioner Deemed Prevailing Party

Directives to the Respondent (Suntech Patio Homes HOA):

1. Future Compliance: The HOA must comply with the provisions of A.R.S. § 33-1805(A) going forward.

2. Payment of Filing Fee: The HOA must pay the petitioner his filing fee of $500.00 within thirty (30) days of the order.

This order is considered binding on the parties unless a rehearing is granted.


Rex E. Duffett vs. Suntech Patio Homes Homeowners Association (ROOT)

Posted on by

Case Summary

Case ID 18F-H1818025-REL / 18F-H1818027-REL
Agency ADRE
Tribunal OAH
Decision Date 2018-04-24
Administrative Law Judge Tammy L. Eigenheer
Outcome partial
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Rex E. Duffett Counsel —
Respondent Suntech Patio Homes Homeowners Association Counsel Nathan Tennyson

Alleged Violations

CC&Rs
A.R.S. § 33-1805(A)

Outcome Summary

Petitioner won the statutory claim regarding access to association documents (A.R.S. § 33-1805(A)) and was refunded the $500 filing fee. Petitioner lost the claim regarding the failure to maintain exterior walls (CC&Rs) due to insufficient evidence.

Why this result: Petitioner failed to prove the maintenance issue by a preponderance of the evidence (for case 18F-H1818025-REL).

Key Issues & Findings

Failure to repair and maintain exterior walls

Petitioner alleged the HOA failed to repair damage (crack) to the exterior wall of his unit as required by the CC&Rs. The ALJ found that Petitioner failed to present sufficient evidence (black and white photographs did not clearly show the damage) to establish a violation.

Orders: Petitioner's petition in Case Number 18F-H1818025-REL is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&Rs
  • 5
  • 17

Failure to provide requested association records

Petitioner requested meeting notices and minutes in December 2017. Respondent's former management company failed to respond in a timely fashion. Petitioner established by a preponderance of the evidence that Respondent violated the statute.

Orders: Petitioner deemed the prevailing party in Case Number 18F-H1818027-REL. Respondent ordered to comply with A.R.S. § 33-1805(A) in the future and pay Petitioner the filing fee of $500.00.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805(A)
  • 19
  • 20
  • 21
  • 22

Analytics Highlights

Topics: HOA, Document Request, Records Disclosure, Maintenance, CC&Rs, Filing Fee Refund
Additional Citations:

  • A.R.S. § 32-2199 et seq.
  • A.A.C. R2-19-119
  • A.R.S. § 33-1805(A)
  • CC&Rs

Audio Overview

Decision Documents

18F-H1818025-REL Decision – 630610.pdf

Uploaded 2025-10-08T07:04:34 (114.0 KB)





Briefing Doc – 18F-H1818025-REL


Administrative Hearing Brief: Duffett vs. Suntech Patio Homes HOA

Executive Summary

This briefing document analyzes the Administrative Law Judge Decision in two consolidated cases filed by homeowner Rex E. Duffett against the Suntech Patio Homes Homeowners Association (HOA). The ruling presents a split decision, with the petitioner prevailing on one claim while failing to provide sufficient evidence for the other.

The first petition, concerning the HOA’s alleged failure to repair exterior walls, was denied. The petitioner failed to meet the burden of proof, as the submitted photographic evidence was unclear and did not sufficiently establish the existence or severity of the damage requiring immediate repair.

The second petition, concerning the HOA’s failure to provide association records upon request, was upheld. The judge found that the HOA, through its former management company, violated state law (A.R.S. § 33-1805(A)) by not responding to a formal document request within the mandated ten-business-day window.

As a result, Mr. Duffett was deemed the prevailing party in the records-request case. The HOA was ordered to pay his $500 filing fee and to ensure future compliance with the relevant statutes. The case highlights critical issues of evidence quality in homeowner disputes and demonstrates the legal liability an HOA retains for the failures of its management agents, particularly during periods of transition.

——————————————————————————–

Case Overview

Case Numbers

18F-H1818025-REL and 18F-H1818027-REL (Consolidated)

Petitioner

Rex E. Duffett

Respondent

Suntech Patio Homes Homeowners Association

Hearing Date

April 4, 2018

Decision Date

April 24, 2018

Presiding Judge

Administrative Law Judge Tammy L. Eigenheer

The hearing addressed two separate petitions filed by Rex E. Duffett with the Arizona Department of Real Estate:

1. Petition 1 (18F-H1818025-REL): Alleged the HOA violated community CC&Rs by failing to repair exterior walls of the petitioner’s unit.

2. Petition 2 (18F-H1818027-REL): Alleged the HOA violated A.R.S. § 33-1805(A) by failing to provide requested documents.

Petition 1: Failure to Repair Exterior Walls (Denied)

Petitioner’s Allegations and Evidence

• Core Claim: The petitioner alleged the HOA failed its duty, as defined by a March 1993 amendment to the CC&Rs, to maintain the exterior walls of his unit. The CC&Rs state, “The Suntech Patio Homeowners Association shall be responsible for the painting and maintenance of the following: A) Exterior walls of all units . . . .”

• Initial Request (July 14, 2017): Mr. Duffett faxed the HOA’s management company, The Management Trust, stating, “While inspecting the outside of my property I noticed a crack in the exterior wall. Please inspect, repair and paint the wall as soon as possible to prevent any damage which could result from rain water in the interior of the wall.”

• Follow-Up Request (August 21, 2017): In a certified letter, Mr. Duffett provided more detail, identifying a crack in the entryway wall allowing “rain water to seep into the interior wall,” a “bare concrete” area on the garage, and a previously cracked garage wall that had been repaired by a roofing company but not painted.

• Hearing Testimony: Mr. Duffett testified that a roofing company he hired to find a leak in his garage ceiling determined the source was not the roof but a crack in the exterior wall.

• Submitted Evidence: The petitioner submitted five black-and-white photographs of his home’s exterior across his two communications.

Respondent’s Position and Evidence

• Management Transition: Pride Community Management took over from The Management Trust on February 1, 2018. The new manager, Rebecca Stowers, and owner, Frank Peake, testified to a difficult transition where The Management Trust initially provided only one box of records, later discovering seven or eight more boxes in storage. Mr. Peake stated that Pride had not seen the petitioner’s communications regarding the damage until the hearing.

• Inspection: Ms. Stowers testified that she inspected the petitioner’s home on March 27, 2018. While she noted “a missing area of stucco on the front of the garage that needed to be repaired,” she “denied being able to identify a crack in the stucco anywhere else on the front of the house.”

• Community-Wide Repair Plan: Ms. Stowers stated that the HOA intended to repair the stucco and paint all exterior walls in the community during the 2018 calendar year at a projected cost of $46,000, to be funded potentially through a special assessment due to the HOA being underfunded.

Conclusion of Law and Ruling

• Burden of Proof: The Administrative Law Judge (ALJ) determined that the petitioner bore the burden of proving his claim by a preponderance of the evidence.

• Evidence Failure: The ALJ found the submitted evidence insufficient. The decision states: “The black and white photographs submitted at hearing did not clearly show the crack Petitioner alleged existed on the exterior wall of his unit… The Administrative Law Judge was unable to identify the location or severity of the alleged crack, and therefore, cannot conclude that such a crack exists and/or that it is necessary to be repaired immediately.”

• Final Ruling: The petitioner failed to meet his burden of proof. The petition in Case Number 18F-H1818025-REL was denied.

Petition 2: Failure to Provide Association Records (Upheld)

Petitioner’s Allegations and Evidence

• Core Claim: The petitioner alleged that the HOA violated A.R.S. § 33-1805(A), which requires an association to fulfill a request for records within ten business days.

• The Request (December 22, 2017): Mr. Duffett faxed The Management Trust a request for specific documents, citing a statement made by the HOA in a separate case. He requested copies of:

◦ Meeting notices and minutes for all meetings where “rules and regulations were discussed” in August/September 2017.

◦ Meeting notices and minutes for meetings where the last HOA dues increase was discussed.

◦ A copy of the notice for the last association rate increase.

Respondent’s Position and Evidence

• Lack of Awareness: The HOA’s initial response on January 29, 2018, indicated it had only become aware of the request upon receiving notice of the petition. The current management company, Pride, testified they had not seen the original communication from the petitioner.

• Vagueness of Request: Frank Peake of Pride testified that the request for minutes of meetings “where the rules and regulations were discussed” was unclear “because rules and regulations are discussed in some form at virtually every meeting of the association.”

• Claim of Privilege: The initial response from The Management Trust on January 29, 2018, claimed that the requested minutes were for “closed executive meetings and were only available to Board members.”

Conclusion of Law and Ruling

• Statutory Violation: The ALJ concluded that the petitioner clearly made a request for documents and that the HOA, via its former management company, failed to act as required by law.

• Failure of Former Management: The decision explicitly faults the prior management company: “The Management Trust should have responded or requested additional clarification of what documents Petitioner was requesting as it was the management company during the ten day window Respondent had to respond pursuant to the statute.”

• Final Ruling: The petitioner successfully established by a preponderance of the evidence that the HOA violated A.R.S. § 33-1805(A). Mr. Duffett was deemed the prevailing party in Case Number 18F-H1818027-REL.

Final Order and Implications

The Administrative Law Judge issued the following orders based on the conclusions of law:

Case Number

Subject

Ruling

18F-H1818025-REL

Exterior Wall Repairs

Petition Denied

18F-H1818027-REL

Document Request

Petitioner Deemed Prevailing Party

Directives to the Respondent (Suntech Patio Homes HOA):

1. Future Compliance: The HOA must comply with the provisions of A.R.S. § 33-1805(A) going forward.

2. Payment of Filing Fee: The HOA must pay the petitioner his filing fee of $500.00 within thirty (30) days of the order.

This order is considered binding on the parties unless a rehearing is granted.


William M. Brown vs. Terravita Country Club, Inc.

Posted on by

Case Summary

Case ID 17F-H1717032-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-07-14
Administrative Law Judge Velva Moses-Thompson
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William M. Brown Counsel —
Respondent Terravita Country Club, Inc. Counsel Joshua Bolen, Esq.

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Tribunal concluded that the Respondent violated A.R.S. § 33-1805. The Petitioner was deemed the prevailing party. The Respondent was ordered to comply with the statute within 10 days and refund the $500.00 filing fee. No civil penalty was found appropriate.

Key Issues & Findings

Failure to timely provide access to association records

The Respondent failed to fulfill the Petitioner's February 6, 2017, records request within 10 business days. The Respondent argued that disclosure was prohibited under A.R.S. § 33-1805(B)(2) due to pending criminal litigation against the Petitioner. The ALJ determined that the exception applies only to pending litigation between the association and the member, not a criminal case in which the association was not a party.

Orders: Respondent ordered to comply with A.R.S. § 33-1805 regarding the records request within 10 days and pay the Petitioner the $500.00 filing fee within 30 days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(2)

Analytics Highlights

Topics: records request, access to records, pending litigation exception, HOA records, planned community
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(2)
  • A.R.S. § 41-2198.01

Video Overview

Audio Overview

Decision Documents

17F-H1717032-REL Decision – 575932.pdf

Uploaded 2025-10-09T03:31:33 (79.9 KB)

17F-H1717032-REL Decision – 578529.pdf

Uploaded 2025-10-09T03:31:34 (726.4 KB)

17F-H1717032-REL Decision – 586360.pdf

Uploaded 2025-10-09T03:31:34 (95.9 KB)





Briefing Doc – 17F-H1717032-REL


Briefing Document: Brown v. Terravita Country Club, Inc.

Executive Summary

This briefing document analyzes the administrative case of William M. Brown v. Terravita Country Club, Inc., focusing on a homeowner association’s (HOA) obligation to provide records to a member under Arizona law. The core issue was the interpretation of the “pending litigation” exemption within A.R.S. § 33-1805, which allows an association to withhold certain records.

Terravita Country Club, Inc. (“Terravita”) denied a records request from its member, William M. Brown, citing a pending criminal case against him. However, Terravita was not a party to this criminal litigation. Mr. Brown contended this denial violated state law, arguing the exemption only applies when the association itself is a party to the litigation. Terravita argued for a broader interpretation, claiming the statute did not require the association to be a party.

The Administrative Law Judge (ALJ) ruled decisively in favor of Mr. Brown. The judge concluded that Terravita’s interpretation would lead to an “absurd result,” effectively allowing any HOA to deny records related to any litigation anywhere. The judge established that the sensible and plain meaning of the statute is that the exemption for “pending litigation” applies only to legal disputes between the association and the member.

The Arizona Department of Real Estate adopted the ALJ’s decision in a Final Order. Terravita was found in violation of A.R.S. § 33-1805, ordered to produce the requested records, and mandated to reimburse Mr. Brown’s $500 filing fee.

Case Timeline and Factual Background

The dispute followed a clear sequence of events, beginning with the records request and culminating in a final administrative order.

February 6, 2017

William M. Brown, a member of Terravita, formally requests records from the association.

February 14, 2017

Terravita sends an email to Mr. Brown denying the request. The denial cites a “pending criminal litigation” against him and invokes A.R.S. § 33-1805(B)(2) as justification.

Post-Feb. 6, 2017

Terravita fails to fulfill the records request within the statutory 10-business-day deadline.

April 13, 2017

The Arizona Department of Real Estate receives a Petition for Hearing from Mr. Brown, alleging Terravita’s failure to timely respond.

May 2, 2017

Terravita files its response, formally asserting as an affirmative defense that it was not required to disclose the records due to the pending criminal litigation against Mr. Brown.

May 3, 2017

The Department issues a Notice of Hearing, setting the matter for June 26, 2017, before the Office of Administrative Hearings.

June 26, 2017

The administrative hearing is conducted. Both parties present their arguments.

July 14, 2017

Administrative Law Judge Velva Moses-Thompson issues a decision finding in favor of the Petitioner, Mr. Brown.

July 24, 2017

Judy Lowe, Commissioner of the Department of Real Estate, issues a Final Order adopting the ALJ’s decision in its entirety.

Core Dispute: Interpretation of A.R.S. § 33-1805

The central conflict was the proper application of Arizona Revised Statute § 33-1805, which governs a member’s right to access association records. Subsection (A) mandates that records be made available for examination within 10 business days. Subsection (B) provides exemptions, including for records related to “pending litigation.”

Petitioner’s Position (William M. Brown)

Mr. Brown’s argument was straightforward and focused on a narrow interpretation of the statutory exemption.

• Violation of A.R.S. § 33-1805(A): Terravita failed to fulfill his February 6, 2017 records request within the legally mandated 10 business days.

• Limited Scope of Exemption: He contended that the exemption for “pending litigation” under A.R.S. § 33-1805(B)(2) applies only to litigation in which the association itself is a party.

• Factual Basis: Since Terravita was not a party to the criminal case brought against him by the City of Scottsdale, the exemption was inapplicable.

• Legislative Intent: Mr. Brown noted that the statute had been amended to remove the phrase “contemplated litigation,” suggesting the legislature intended to narrow, not broaden, the scope of the exemption.

Respondent’s Position (Terravita Country Club, Inc.)

Terravita argued for a broader interpretation of the statute, asserting that its non-party status was irrelevant.

• “Plain Meaning” of the Statute: Terravita’s position was that the plain meaning of A.R.S. § 33-1805(B)(2) does not explicitly require the association to be a party to the pending litigation.

• Relevance of the Litigation: The association argued the criminal case was germane because it was “based upon an allegation that Mr. Brown threated Terravita’s board members and property.”

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision provided a comprehensive legal analysis, ultimately rejecting Terravita’s interpretation of the law and finding that Mr. Brown had established his case by a preponderance of the evidence.

Statutory Interpretation and the “Absurd Result” Doctrine

The decision hinged on the principle that legislation must be given a “sensible construction that avoids absurd results.” The judge analyzed the consequences of Terravita’s interpretation:

“Terravita’s interpretation of A.R.S. § 33-1805(B)(2) would allow the association to deny records request of documents that relate to pending litigation between any parties. Such an interpretation would lead to the absurd result of denying records requests of all documents that relate to pending litigation anywhere, between any two parties.”

Based on this reasoning, the judge rejected Terravita’s argument and established a clear standard for applying the exemption.

The Correct Interpretation of the Law

The ALJ articulated the “plain meaning” of the statute, establishing a critical precedent for its application:

“The plain meaning of A.R.S. § 33-1805(B)(2) is that while homeowners’ associations must provide access to financial and other documents to its members within 10 business days, an association may withhold documents that relate to pending litigation between the association and the member.”

Final Conclusion

The judge applied this correct interpretation to the undisputed facts of the case:

1. At the time of Mr. Brown’s request, he was facing criminal charges initiated by the City of Scottsdale.

2. Terravita was not a party to that criminal case.

3. Therefore, the exemption did not apply, and Terravita violated A.R.S. § 33-1805 by failing to fulfill the records request within 10 business days.

Final Order and Mandates

The decision issued by the ALJ on July 14, 2017, became the basis for the Final Order issued by the Arizona Department of Real Estate on July 24, 2017. The Commissioner accepted and adopted the ALJ’s decision, making its mandates binding and effective immediately.

The key directives of the order were:

• Prevailing Party: Petitioner William M. Brown was formally deemed the prevailing party.

• Compliance: Terravita was ordered to comply with the applicable provisions of A.R.S. § 33-1805 regarding the records request within 10 days of the order.

• Reimbursement of Fees: Terravita was ordered to pay Mr. Brown his filing fee of $500.00 directly within 30 days of the order.

• No Civil Penalty: The judge found that a civil penalty was not appropriate in the matter.


William M. Brown vs. Terravita Country Club, Inc.

Posted on by

Case Summary

Case ID 17F-H1717032-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-07-14
Administrative Law Judge Velva Moses-Thompson
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William M. Brown Counsel —
Respondent Terravita Country Club, Inc. Counsel Joshua Bolen, Esq.

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Tribunal concluded that the Respondent violated A.R.S. § 33-1805. The Petitioner was deemed the prevailing party. The Respondent was ordered to comply with the statute within 10 days and refund the $500.00 filing fee. No civil penalty was found appropriate.

Key Issues & Findings

Failure to timely provide access to association records

The Respondent failed to fulfill the Petitioner's February 6, 2017, records request within 10 business days. The Respondent argued that disclosure was prohibited under A.R.S. § 33-1805(B)(2) due to pending criminal litigation against the Petitioner. The ALJ determined that the exception applies only to pending litigation between the association and the member, not a criminal case in which the association was not a party.

Orders: Respondent ordered to comply with A.R.S. § 33-1805 regarding the records request within 10 days and pay the Petitioner the $500.00 filing fee within 30 days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(2)

Analytics Highlights

Topics: records request, access to records, pending litigation exception, HOA records, planned community
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(2)
  • A.R.S. § 41-2198.01

Audio Overview

Decision Documents

17F-H1717032-REL Decision – 575932.pdf

Uploaded 2025-10-08T06:51:05 (79.9 KB)

17F-H1717032-REL Decision – 578529.pdf

Uploaded 2025-10-08T06:51:06 (726.4 KB)

17F-H1717032-REL Decision – 586360.pdf

Uploaded 2025-10-08T06:51:06 (95.9 KB)





Briefing Doc – 17F-H1717032-REL


Briefing Document: Brown v. Terravita Country Club, Inc.

Executive Summary

This briefing document analyzes the administrative case of William M. Brown v. Terravita Country Club, Inc., focusing on a homeowner association’s (HOA) obligation to provide records to a member under Arizona law. The core issue was the interpretation of the “pending litigation” exemption within A.R.S. § 33-1805, which allows an association to withhold certain records.

Terravita Country Club, Inc. (“Terravita”) denied a records request from its member, William M. Brown, citing a pending criminal case against him. However, Terravita was not a party to this criminal litigation. Mr. Brown contended this denial violated state law, arguing the exemption only applies when the association itself is a party to the litigation. Terravita argued for a broader interpretation, claiming the statute did not require the association to be a party.

The Administrative Law Judge (ALJ) ruled decisively in favor of Mr. Brown. The judge concluded that Terravita’s interpretation would lead to an “absurd result,” effectively allowing any HOA to deny records related to any litigation anywhere. The judge established that the sensible and plain meaning of the statute is that the exemption for “pending litigation” applies only to legal disputes between the association and the member.

The Arizona Department of Real Estate adopted the ALJ’s decision in a Final Order. Terravita was found in violation of A.R.S. § 33-1805, ordered to produce the requested records, and mandated to reimburse Mr. Brown’s $500 filing fee.

Case Timeline and Factual Background

The dispute followed a clear sequence of events, beginning with the records request and culminating in a final administrative order.

February 6, 2017

William M. Brown, a member of Terravita, formally requests records from the association.

February 14, 2017

Terravita sends an email to Mr. Brown denying the request. The denial cites a “pending criminal litigation” against him and invokes A.R.S. § 33-1805(B)(2) as justification.

Post-Feb. 6, 2017

Terravita fails to fulfill the records request within the statutory 10-business-day deadline.

April 13, 2017

The Arizona Department of Real Estate receives a Petition for Hearing from Mr. Brown, alleging Terravita’s failure to timely respond.

May 2, 2017

Terravita files its response, formally asserting as an affirmative defense that it was not required to disclose the records due to the pending criminal litigation against Mr. Brown.

May 3, 2017

The Department issues a Notice of Hearing, setting the matter for June 26, 2017, before the Office of Administrative Hearings.

June 26, 2017

The administrative hearing is conducted. Both parties present their arguments.

July 14, 2017

Administrative Law Judge Velva Moses-Thompson issues a decision finding in favor of the Petitioner, Mr. Brown.

July 24, 2017

Judy Lowe, Commissioner of the Department of Real Estate, issues a Final Order adopting the ALJ’s decision in its entirety.

Core Dispute: Interpretation of A.R.S. § 33-1805

The central conflict was the proper application of Arizona Revised Statute § 33-1805, which governs a member’s right to access association records. Subsection (A) mandates that records be made available for examination within 10 business days. Subsection (B) provides exemptions, including for records related to “pending litigation.”

Petitioner’s Position (William M. Brown)

Mr. Brown’s argument was straightforward and focused on a narrow interpretation of the statutory exemption.

• Violation of A.R.S. § 33-1805(A): Terravita failed to fulfill his February 6, 2017 records request within the legally mandated 10 business days.

• Limited Scope of Exemption: He contended that the exemption for “pending litigation” under A.R.S. § 33-1805(B)(2) applies only to litigation in which the association itself is a party.

• Factual Basis: Since Terravita was not a party to the criminal case brought against him by the City of Scottsdale, the exemption was inapplicable.

• Legislative Intent: Mr. Brown noted that the statute had been amended to remove the phrase “contemplated litigation,” suggesting the legislature intended to narrow, not broaden, the scope of the exemption.

Respondent’s Position (Terravita Country Club, Inc.)

Terravita argued for a broader interpretation of the statute, asserting that its non-party status was irrelevant.

• “Plain Meaning” of the Statute: Terravita’s position was that the plain meaning of A.R.S. § 33-1805(B)(2) does not explicitly require the association to be a party to the pending litigation.

• Relevance of the Litigation: The association argued the criminal case was germane because it was “based upon an allegation that Mr. Brown threated Terravita’s board members and property.”

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision provided a comprehensive legal analysis, ultimately rejecting Terravita’s interpretation of the law and finding that Mr. Brown had established his case by a preponderance of the evidence.

Statutory Interpretation and the “Absurd Result” Doctrine

The decision hinged on the principle that legislation must be given a “sensible construction that avoids absurd results.” The judge analyzed the consequences of Terravita’s interpretation:

“Terravita’s interpretation of A.R.S. § 33-1805(B)(2) would allow the association to deny records request of documents that relate to pending litigation between any parties. Such an interpretation would lead to the absurd result of denying records requests of all documents that relate to pending litigation anywhere, between any two parties.”

Based on this reasoning, the judge rejected Terravita’s argument and established a clear standard for applying the exemption.

The Correct Interpretation of the Law

The ALJ articulated the “plain meaning” of the statute, establishing a critical precedent for its application:

“The plain meaning of A.R.S. § 33-1805(B)(2) is that while homeowners’ associations must provide access to financial and other documents to its members within 10 business days, an association may withhold documents that relate to pending litigation between the association and the member.”

Final Conclusion

The judge applied this correct interpretation to the undisputed facts of the case:

1. At the time of Mr. Brown’s request, he was facing criminal charges initiated by the City of Scottsdale.

2. Terravita was not a party to that criminal case.

3. Therefore, the exemption did not apply, and Terravita violated A.R.S. § 33-1805 by failing to fulfill the records request within 10 business days.

Final Order and Mandates

The decision issued by the ALJ on July 14, 2017, became the basis for the Final Order issued by the Arizona Department of Real Estate on July 24, 2017. The Commissioner accepted and adopted the ALJ’s decision, making its mandates binding and effective immediately.

The key directives of the order were:

• Prevailing Party: Petitioner William M. Brown was formally deemed the prevailing party.

• Compliance: Terravita was ordered to comply with the applicable provisions of A.R.S. § 33-1805 regarding the records request within 10 days of the order.

• Reimbursement of Fees: Terravita was ordered to pay Mr. Brown his filing fee of $500.00 directly within 30 days of the order.

• No Civil Penalty: The judge found that a civil penalty was not appropriate in the matter.


William M. Brown vs. Terravita Country Club, Inc.

Posted on by

Case Summary

Case ID 17F-H1717032-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-07-14
Administrative Law Judge Velva Moses-Thompson
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William M. Brown Counsel —
Respondent Terravita Country Club, Inc. Counsel Joshua Bolen, Esq.

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Tribunal concluded that the Respondent violated A.R.S. § 33-1805. The Petitioner was deemed the prevailing party. The Respondent was ordered to comply with the statute within 10 days and refund the $500.00 filing fee. No civil penalty was found appropriate.

Key Issues & Findings

Failure to timely provide access to association records

The Respondent failed to fulfill the Petitioner's February 6, 2017, records request within 10 business days. The Respondent argued that disclosure was prohibited under A.R.S. § 33-1805(B)(2) due to pending criminal litigation against the Petitioner. The ALJ determined that the exception applies only to pending litigation between the association and the member, not a criminal case in which the association was not a party.

Orders: Respondent ordered to comply with A.R.S. § 33-1805 regarding the records request within 10 days and pay the Petitioner the $500.00 filing fee within 30 days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(2)

Analytics Highlights

Topics: records request, access to records, pending litigation exception, HOA records, planned community
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(2)
  • A.R.S. § 41-2198.01

Audio Overview

Decision Documents

17F-H1717032-REL Decision – 575932.pdf

Uploaded 2025-10-08T06:57:52 (79.9 KB)

17F-H1717032-REL Decision – 578529.pdf

Uploaded 2025-10-08T06:57:53 (726.4 KB)

17F-H1717032-REL Decision – 586360.pdf

Uploaded 2025-10-08T06:57:53 (95.9 KB)





Briefing Doc – 17F-H1717032-REL


Briefing Document: Brown v. Terravita Country Club, Inc.

Executive Summary

This briefing document analyzes the administrative case of William M. Brown v. Terravita Country Club, Inc., focusing on a homeowner association’s (HOA) obligation to provide records to a member under Arizona law. The core issue was the interpretation of the “pending litigation” exemption within A.R.S. § 33-1805, which allows an association to withhold certain records.

Terravita Country Club, Inc. (“Terravita”) denied a records request from its member, William M. Brown, citing a pending criminal case against him. However, Terravita was not a party to this criminal litigation. Mr. Brown contended this denial violated state law, arguing the exemption only applies when the association itself is a party to the litigation. Terravita argued for a broader interpretation, claiming the statute did not require the association to be a party.

The Administrative Law Judge (ALJ) ruled decisively in favor of Mr. Brown. The judge concluded that Terravita’s interpretation would lead to an “absurd result,” effectively allowing any HOA to deny records related to any litigation anywhere. The judge established that the sensible and plain meaning of the statute is that the exemption for “pending litigation” applies only to legal disputes between the association and the member.

The Arizona Department of Real Estate adopted the ALJ’s decision in a Final Order. Terravita was found in violation of A.R.S. § 33-1805, ordered to produce the requested records, and mandated to reimburse Mr. Brown’s $500 filing fee.

Case Timeline and Factual Background

The dispute followed a clear sequence of events, beginning with the records request and culminating in a final administrative order.

February 6, 2017

William M. Brown, a member of Terravita, formally requests records from the association.

February 14, 2017

Terravita sends an email to Mr. Brown denying the request. The denial cites a “pending criminal litigation” against him and invokes A.R.S. § 33-1805(B)(2) as justification.

Post-Feb. 6, 2017

Terravita fails to fulfill the records request within the statutory 10-business-day deadline.

April 13, 2017

The Arizona Department of Real Estate receives a Petition for Hearing from Mr. Brown, alleging Terravita’s failure to timely respond.

May 2, 2017

Terravita files its response, formally asserting as an affirmative defense that it was not required to disclose the records due to the pending criminal litigation against Mr. Brown.

May 3, 2017

The Department issues a Notice of Hearing, setting the matter for June 26, 2017, before the Office of Administrative Hearings.

June 26, 2017

The administrative hearing is conducted. Both parties present their arguments.

July 14, 2017

Administrative Law Judge Velva Moses-Thompson issues a decision finding in favor of the Petitioner, Mr. Brown.

July 24, 2017

Judy Lowe, Commissioner of the Department of Real Estate, issues a Final Order adopting the ALJ’s decision in its entirety.

Core Dispute: Interpretation of A.R.S. § 33-1805

The central conflict was the proper application of Arizona Revised Statute § 33-1805, which governs a member’s right to access association records. Subsection (A) mandates that records be made available for examination within 10 business days. Subsection (B) provides exemptions, including for records related to “pending litigation.”

Petitioner’s Position (William M. Brown)

Mr. Brown’s argument was straightforward and focused on a narrow interpretation of the statutory exemption.

• Violation of A.R.S. § 33-1805(A): Terravita failed to fulfill his February 6, 2017 records request within the legally mandated 10 business days.

• Limited Scope of Exemption: He contended that the exemption for “pending litigation” under A.R.S. § 33-1805(B)(2) applies only to litigation in which the association itself is a party.

• Factual Basis: Since Terravita was not a party to the criminal case brought against him by the City of Scottsdale, the exemption was inapplicable.

• Legislative Intent: Mr. Brown noted that the statute had been amended to remove the phrase “contemplated litigation,” suggesting the legislature intended to narrow, not broaden, the scope of the exemption.

Respondent’s Position (Terravita Country Club, Inc.)

Terravita argued for a broader interpretation of the statute, asserting that its non-party status was irrelevant.

• “Plain Meaning” of the Statute: Terravita’s position was that the plain meaning of A.R.S. § 33-1805(B)(2) does not explicitly require the association to be a party to the pending litigation.

• Relevance of the Litigation: The association argued the criminal case was germane because it was “based upon an allegation that Mr. Brown threated Terravita’s board members and property.”

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision provided a comprehensive legal analysis, ultimately rejecting Terravita’s interpretation of the law and finding that Mr. Brown had established his case by a preponderance of the evidence.

Statutory Interpretation and the “Absurd Result” Doctrine

The decision hinged on the principle that legislation must be given a “sensible construction that avoids absurd results.” The judge analyzed the consequences of Terravita’s interpretation:

“Terravita’s interpretation of A.R.S. § 33-1805(B)(2) would allow the association to deny records request of documents that relate to pending litigation between any parties. Such an interpretation would lead to the absurd result of denying records requests of all documents that relate to pending litigation anywhere, between any two parties.”

Based on this reasoning, the judge rejected Terravita’s argument and established a clear standard for applying the exemption.

The Correct Interpretation of the Law

The ALJ articulated the “plain meaning” of the statute, establishing a critical precedent for its application:

“The plain meaning of A.R.S. § 33-1805(B)(2) is that while homeowners’ associations must provide access to financial and other documents to its members within 10 business days, an association may withhold documents that relate to pending litigation between the association and the member.”

Final Conclusion

The judge applied this correct interpretation to the undisputed facts of the case:

1. At the time of Mr. Brown’s request, he was facing criminal charges initiated by the City of Scottsdale.

2. Terravita was not a party to that criminal case.

3. Therefore, the exemption did not apply, and Terravita violated A.R.S. § 33-1805 by failing to fulfill the records request within 10 business days.

Final Order and Mandates

The decision issued by the ALJ on July 14, 2017, became the basis for the Final Order issued by the Arizona Department of Real Estate on July 24, 2017. The Commissioner accepted and adopted the ALJ’s decision, making its mandates binding and effective immediately.

The key directives of the order were:

• Prevailing Party: Petitioner William M. Brown was formally deemed the prevailing party.

• Compliance: Terravita was ordered to comply with the applicable provisions of A.R.S. § 33-1805 regarding the records request within 10 days of the order.

• Reimbursement of Fees: Terravita was ordered to pay Mr. Brown his filing fee of $500.00 directly within 30 days of the order.

• No Civil Penalty: The judge found that a civil penalty was not appropriate in the matter.


William M. Brown vs. Terravita Country Club, Inc.

Posted on by

Case Summary

Case ID 17F-H1717032-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-07-14
Administrative Law Judge Velva Moses-Thompson
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William M. Brown Counsel —
Respondent Terravita Country Club, Inc. Counsel Joshua Bolen, Esq.

Alleged Violations

A.R.S. § 33-1805(A)

Outcome Summary

The Tribunal concluded that the Respondent violated A.R.S. § 33-1805. The Petitioner was deemed the prevailing party. The Respondent was ordered to comply with the statute within 10 days and refund the $500.00 filing fee. No civil penalty was found appropriate.

Key Issues & Findings

Failure to timely provide access to association records

The Respondent failed to fulfill the Petitioner's February 6, 2017, records request within 10 business days. The Respondent argued that disclosure was prohibited under A.R.S. § 33-1805(B)(2) due to pending criminal litigation against the Petitioner. The ALJ determined that the exception applies only to pending litigation between the association and the member, not a criminal case in which the association was not a party.

Orders: Respondent ordered to comply with A.R.S. § 33-1805 regarding the records request within 10 days and pay the Petitioner the $500.00 filing fee within 30 days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(2)

Analytics Highlights

Topics: records request, access to records, pending litigation exception, HOA records, planned community
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)
  • A.R.S. § 33-1805(B)(2)
  • A.R.S. § 41-2198.01

Audio Overview

Decision Documents

17F-H1717032-REL Decision – 575932.pdf

Uploaded 2025-10-08T07:02:05 (79.9 KB)

17F-H1717032-REL Decision – 578529.pdf

Uploaded 2025-10-08T07:02:05 (726.4 KB)

17F-H1717032-REL Decision – 586360.pdf

Uploaded 2025-10-08T07:02:06 (95.9 KB)





Briefing Doc – 17F-H1717032-REL


Briefing Document: Brown v. Terravita Country Club, Inc.

Executive Summary

This briefing document analyzes the administrative case of William M. Brown v. Terravita Country Club, Inc., focusing on a homeowner association’s (HOA) obligation to provide records to a member under Arizona law. The core issue was the interpretation of the “pending litigation” exemption within A.R.S. § 33-1805, which allows an association to withhold certain records.

Terravita Country Club, Inc. (“Terravita”) denied a records request from its member, William M. Brown, citing a pending criminal case against him. However, Terravita was not a party to this criminal litigation. Mr. Brown contended this denial violated state law, arguing the exemption only applies when the association itself is a party to the litigation. Terravita argued for a broader interpretation, claiming the statute did not require the association to be a party.

The Administrative Law Judge (ALJ) ruled decisively in favor of Mr. Brown. The judge concluded that Terravita’s interpretation would lead to an “absurd result,” effectively allowing any HOA to deny records related to any litigation anywhere. The judge established that the sensible and plain meaning of the statute is that the exemption for “pending litigation” applies only to legal disputes between the association and the member.

The Arizona Department of Real Estate adopted the ALJ’s decision in a Final Order. Terravita was found in violation of A.R.S. § 33-1805, ordered to produce the requested records, and mandated to reimburse Mr. Brown’s $500 filing fee.

Case Timeline and Factual Background

The dispute followed a clear sequence of events, beginning with the records request and culminating in a final administrative order.

February 6, 2017

William M. Brown, a member of Terravita, formally requests records from the association.

February 14, 2017

Terravita sends an email to Mr. Brown denying the request. The denial cites a “pending criminal litigation” against him and invokes A.R.S. § 33-1805(B)(2) as justification.

Post-Feb. 6, 2017

Terravita fails to fulfill the records request within the statutory 10-business-day deadline.

April 13, 2017

The Arizona Department of Real Estate receives a Petition for Hearing from Mr. Brown, alleging Terravita’s failure to timely respond.

May 2, 2017

Terravita files its response, formally asserting as an affirmative defense that it was not required to disclose the records due to the pending criminal litigation against Mr. Brown.

May 3, 2017

The Department issues a Notice of Hearing, setting the matter for June 26, 2017, before the Office of Administrative Hearings.

June 26, 2017

The administrative hearing is conducted. Both parties present their arguments.

July 14, 2017

Administrative Law Judge Velva Moses-Thompson issues a decision finding in favor of the Petitioner, Mr. Brown.

July 24, 2017

Judy Lowe, Commissioner of the Department of Real Estate, issues a Final Order adopting the ALJ’s decision in its entirety.

Core Dispute: Interpretation of A.R.S. § 33-1805

The central conflict was the proper application of Arizona Revised Statute § 33-1805, which governs a member’s right to access association records. Subsection (A) mandates that records be made available for examination within 10 business days. Subsection (B) provides exemptions, including for records related to “pending litigation.”

Petitioner’s Position (William M. Brown)

Mr. Brown’s argument was straightforward and focused on a narrow interpretation of the statutory exemption.

• Violation of A.R.S. § 33-1805(A): Terravita failed to fulfill his February 6, 2017 records request within the legally mandated 10 business days.

• Limited Scope of Exemption: He contended that the exemption for “pending litigation” under A.R.S. § 33-1805(B)(2) applies only to litigation in which the association itself is a party.

• Factual Basis: Since Terravita was not a party to the criminal case brought against him by the City of Scottsdale, the exemption was inapplicable.

• Legislative Intent: Mr. Brown noted that the statute had been amended to remove the phrase “contemplated litigation,” suggesting the legislature intended to narrow, not broaden, the scope of the exemption.

Respondent’s Position (Terravita Country Club, Inc.)

Terravita argued for a broader interpretation of the statute, asserting that its non-party status was irrelevant.

• “Plain Meaning” of the Statute: Terravita’s position was that the plain meaning of A.R.S. § 33-1805(B)(2) does not explicitly require the association to be a party to the pending litigation.

• Relevance of the Litigation: The association argued the criminal case was germane because it was “based upon an allegation that Mr. Brown threated Terravita’s board members and property.”

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision provided a comprehensive legal analysis, ultimately rejecting Terravita’s interpretation of the law and finding that Mr. Brown had established his case by a preponderance of the evidence.

Statutory Interpretation and the “Absurd Result” Doctrine

The decision hinged on the principle that legislation must be given a “sensible construction that avoids absurd results.” The judge analyzed the consequences of Terravita’s interpretation:

“Terravita’s interpretation of A.R.S. § 33-1805(B)(2) would allow the association to deny records request of documents that relate to pending litigation between any parties. Such an interpretation would lead to the absurd result of denying records requests of all documents that relate to pending litigation anywhere, between any two parties.”

Based on this reasoning, the judge rejected Terravita’s argument and established a clear standard for applying the exemption.

The Correct Interpretation of the Law

The ALJ articulated the “plain meaning” of the statute, establishing a critical precedent for its application:

“The plain meaning of A.R.S. § 33-1805(B)(2) is that while homeowners’ associations must provide access to financial and other documents to its members within 10 business days, an association may withhold documents that relate to pending litigation between the association and the member.”

Final Conclusion

The judge applied this correct interpretation to the undisputed facts of the case:

1. At the time of Mr. Brown’s request, he was facing criminal charges initiated by the City of Scottsdale.

2. Terravita was not a party to that criminal case.

3. Therefore, the exemption did not apply, and Terravita violated A.R.S. § 33-1805 by failing to fulfill the records request within 10 business days.

Final Order and Mandates

The decision issued by the ALJ on July 14, 2017, became the basis for the Final Order issued by the Arizona Department of Real Estate on July 24, 2017. The Commissioner accepted and adopted the ALJ’s decision, making its mandates binding and effective immediately.

The key directives of the order were:

• Prevailing Party: Petitioner William M. Brown was formally deemed the prevailing party.

• Compliance: Terravita was ordered to comply with the applicable provisions of A.R.S. § 33-1805 regarding the records request within 10 days of the order.

• Reimbursement of Fees: Terravita was ordered to pay Mr. Brown his filing fee of $500.00 directly within 30 days of the order.

• No Civil Penalty: The judge found that a civil penalty was not appropriate in the matter.


William M. Brown vs. Terravita Country Club, Inc.

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Case Summary

Case ID 17F-H1716005-REL
Agency ADRE
Tribunal OAH
Decision Date 2017-07-10
Administrative Law Judge Velva Moses-Thompson
Outcome full
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner William M. Brown Counsel —
Respondent Terravita Country Club, Inc. Counsel Joshua Bolen

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The Petitioner was deemed the prevailing party after the Tribunal concluded that the Respondent, Terravita Country Club, Inc., violated A.R.S. § 33-1805 by failing to timely provide access to records within the mandated 10 business days. The Respondent was ordered to comply with the statute and refund the Petitioner's $500.00 filing fee. No civil penalty was imposed.

Key Issues & Findings

Failure to timely respond to records request

Petitioner alleged Respondent failed to timely respond to his July 30, 2016 records request, pursuant to A.R.S. § 33-1805(A). The Tribunal found that Petitioner established by a preponderance of the evidence that Respondent failed to fulfill the request for examination of records within 10 business days, violating A.R.S. § 33-1805.

Orders: Respondent is ordered to comply with A.R.S. § 33-1805 regarding Petitioner’s request for records within 10 days of the Order. Respondent is ordered to pay Petitioner his filing fee of $500.00 within thirty (30) days.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Cited:

  • A.R.S. § 33-1805
  • A.R.S. § 33-1805(A)

Analytics Highlights

Topics: HOA Records Request, Failure to Respond, Statutory Violation, Filing Fee Refund
Additional Citations:

  • A.R.S. § 33-1805
  • A.R.S. § 41-2198.01
  • A.R.S. § 41-1092.01

Video Overview

Audio Overview

Decision Documents

17F-H1716005-REL Decision – 574630.pdf

Uploaded 2025-10-09T03:31:03 (87.9 KB)

17F-H1716005-REL Decision – 575115.pdf

Uploaded 2025-10-09T03:31:03 (789.4 KB)





Briefing Doc – 17F-H1716005-REL


Briefing Document: Brown v. Terravita Country Club, Inc.

Executive Summary

This document summarizes the administrative hearing and final order in the case of William M. Brown (Petitioner) versus Terravita Country Club, Inc. (Respondent), Case No. 17F-H1716005-REL. The central issue was Terravita’s failure to respond to a member’s request for records within the 10-business-day timeframe mandated by Arizona Revised Statutes (A.R.S.) § 33-1805.

The Administrative Law Judge (ALJ) found the Petitioner’s testimony and evidence to be credible, establishing that Mr. Brown submitted a valid records request via e-mail on July 30, 2016, to which Terravita did not timely respond. The ALJ found the testimony of Terravita’s key witness to be unreliable and rejected Terravita’s defenses, which included claims of non-receipt, improper submission procedure, and falsified evidence.

Ultimately, the ALJ ruled in favor of the Petitioner, concluding that Terravita violated A.R.S. § 33-1805. The recommended order, which was subsequently adopted as a Final Order by the Commissioner of the Department of Real Estate, mandated that Terravita comply with the records request, reimburse the Petitioner’s $500 filing fee, and deemed the Petitioner the prevailing party. No civil penalty was assessed.

Case Overview

Case Detail

Information

Case Number

17F-H1716005-REL (OAH) / HO 17-16/005 (DRE)

Petitioner

William M. Brown (Appeared on behalf of himself)

Respondent

Terravita Country Club, Inc. (Represented by Joshua Bolen, Esq.)

Adjudicating Body

Arizona Office of Administrative Hearings

Adopting Authority

Arizona Department of Real Estate

Administrative Law Judge

Velva Moses-Thompson

Commissioner

Judy Lowe

Hearing Date

June 19, 2017

ALJ Decision Date

July 10, 2017

Final Order Date

July 11, 2017

Chronology of Events

• February 12, 2016: Anita Bell requests records from Terravita via Mr. Brown’s e-mail account. The request is forwarded to General Manager Tom Forbes.

• February 19, 2016: Mr. Forbes informs Ms. Bell that the records will be ready on February 22.

• March 14, 2016: Ms. Bell submits another records request from Mr. Brown’s e-mail account.

• March 18, 2016: Cici Rausch, Terravita’s Director of Administration, informs Ms. Bell when the records can be retrieved.

• July 29, 2016: Date of the records request at the center of the legal dispute.

• July 30, 2016: Mr. Brown e-mails the records request to Terravita’s Secretary, Fran Wiley. On the same day, he separately requests records from the Terravita Community Association, Inc. (TCA).

• August 6, 2016: Mr. Brown sends another records request to Ms. Wiley.

• August 8, 2016: TCA responds to Mr. Brown’s July 30 request.

• August 12, 2016: Terravita responds to Mr. Brown’s August 6 request.

• August 18, 2016: Mr. Brown files a Petition for Hearing with the Arizona Department of Real Estate, alleging Terravita’s failure to timely respond to his July 30 request.

• September 9, 2016: Terravita files a response, alleging it did not receive the July 30 records request.

• June 19, 2017: The administrative hearing is held.

• July 10, 2017: The ALJ issues a decision finding in favor of Mr. Brown.

• July 11, 2017: The Commissioner of the Department of Real Estate accepts the ALJ’s decision and issues a Final Order.

Analysis of the Central Dispute

The core of the case revolved around whether Terravita violated its statutory duty to respond to Mr. Brown’s records request dated July 29, 2016, which he e-mailed on July 30, 2016.

Petitioner’s Position and Evidence

• Core Allegation: Mr. Brown testified that he sent the records request via e-mail to Terravita’s Secretary, Fran Wiley, on July 30, 2016, and that Terravita failed to respond within the 10-business-day period mandated by law.

• Evidence: Mr. Brown submitted an August 12, 2016 forwarded e-mail (Exhibit P2) that contained the original July 30, 2016 e-mail sent to Ms. Wiley.

• Judicial Finding: The ALJ found Mr. Brown’s testimony to be “credible.”

Respondent’s Defenses and the Court’s Findings

Terravita presented several arguments to contest the allegation, all of which were ultimately unpersuasive to the court.

1. Claim of Non-Receipt: Terravita contended it never received the July 30, 2016 request. Ms. Wiley testified she did not receive a request from Mr. Brown on July 29 or July 30.

◦ Court’s Finding: The ALJ found Ms. Wiley’s testimony to be “unreliable.” The decision noted that Ms. Wiley testified that Terravita was “indirectly” informed around August 5 that “perhaps Mr. Brown had made the request,” which undermined the claim of complete non-awareness.

2. Use of an Incorrect E-mail Address: Ms. Wiley testified that she did not use the e-mail address to which Mr. Brown sent the request for Terravita affairs, claiming she used a different one in her official capacity as Secretary.

◦ Court’s Finding: This argument was implicitly rejected, as the ALJ concluded that Mr. Brown had successfully proven he submitted the request “to its Secretary, Ms. Wiley.”

3. Allegation of Falsified Evidence: Terravita contended that the forwarded e-mail evidence offered by Mr. Brown was falsified.

◦ Court’s Finding: The ALJ noted an inconsistency in Terravita’s position, stating, “Terravita did not contend that the written evidence of Mr. Brown’s August 5, 2016 records request, sent by e-mail to Ms. Wiley, was falsified.” This weakened the credibility of the falsification claim against the July 30 e-mail.

4. Non-Compliance with Internal Policy: Terravita argued that its own Rules, Policies, and Procedures required members to submit records requests to the General Manager and/or Director of Administration, not the Secretary.

◦ Court’s Finding: The decision focused entirely on the violation of the state statute, A.R.S. § 33-1805, indicating that the statutory obligation superseded the association’s internal procedural preferences.

Legal Framework and Conclusions of Law

• Governing Statute: A.R.S. § 33-1805(A) mandates that a homeowners’ association “shall have ten business days to fulfill a request for examination” of its financial and other records by a member.

• Burden of Proof: The Petitioner was required to prove the violation by a “preponderance of the evidence,” defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

• Conclusion of Law: The ALJ determined that Mr. Brown successfully established by a preponderance of the evidence that:

1. He submitted a request for records to Terravita’s Secretary via e-mail on July 30, 2016.

2. Terravita failed to fulfill this request within the statutory 10-business-day deadline.

• Final Judgment: The Tribunal concluded that “Terravita violated the charged provision of A.R.S. § 33-1805.” It was also noted that Terravita did not contend that any of the statutory exceptions to disclosure, such as privileged communication or pending litigation, applied.

Final Order and Directives

The ALJ’s decision was formally adopted by the Commissioner of the Department of Real Estate on July 11, 2017, making it a Final Order with the following mandates:

• Prevailing Party: Petitioner William M. Brown was deemed the prevailing party.

• Compliance with Request: Terravita was ordered to “comply with the applicable provisions of A.R.S. § 33-1805 regarding Petitioner’s request of Terravita’s records” within 10 days of the Order.

• Reimbursement of Filing Fee: Terravita was ordered to pay the Petitioner his filing fee of $500.00 directly to him within thirty (30) days.

• Civil Penalty: The court determined that “No Civil Penalty is found to be appropriate in this matter.”

• Effective Date: The Order was made effective five (5) days from the date of its certification. The Final Order itself is effective immediately from the date of service, July 11, 2017.