Case No. 07F-H067012-BFS / 07F-H067013-BFS (consolidated case)

Complaint:

Source of Law:

Discussion:

Holding:

Additional Remarks:
Pre-conference hearing. Either party may request a pre-conference hearing to settle or clarify aspects relating how the hearing will proceed; such as date for exchanging documents and list of witnesses.

In response to a late filing by HOA of a 17-page motion -- with legal memorandum containing HOA arguments -- to limit scope of the hearing, the ALJ said that he would give Petitioner time to respond. HOA attorney said that he just files papers with respect to the topic of the pre-hearing, but ALJ pointed out that he filed a motion, and as such, Petitioner is permitted time to respond. ALJ set a 10-day response period.

HOA attorney subpoenaed documents from Petitioner. Cannot ask other party to prepare new documents, or to do interrogatories (submit written questions to other party) or depositions (ask direct questions of other party).

With respect to a settlement agreement, ALJ properly advised parties that this is a matter outside the OAH.

Tucson case to be heard late in April.

Case No 07F-H067004-BFS

Preliminary summary

Complaint:

Source of Law:

Discussion: .

Holding: .

Additional Remarks:
Homeowner sought punitive damages and restitution for alleged damages from HOA. HOA filed a motion to dismiss, which was denied with respect to petitioner seeking restitution, but held that punitive damages were not applicable.

Case No 07F-H067006-BFS

Complaint:
1. discrimination by landscaping
2. threats of additional assessments

Source of Law:
Declaration; by-laws; case law

Discussion:

Holding:

Additional Remarks:
In this dispute over the height and size of a homeowner’s fence/gate, the HOA attorney found it necessary to submit a 10-page legal memorandum on the Friday before the Monday Hearing. Legal memoranda present arguments and contain biased points of view, with or without supporting authority. They are not evidence. This, in my opinion, was a CAI HOA attorney playing hardball and attempting to apply their legalese to thwart homeowner justice.

OAH has no procedures or rules governing the submission of legal memoranda, which are arguments on some motion before the judge (or an appellate court argument), except that a brief may be filed as part of the docket (record), R2-19-108, or as a supplement to closing arguments, R2-19-116(G) and (H), and as a pre-conference agreement, R2-19-112. (As a guide, when memoranda are submitted with a motion or appellate procedure, the opposing party gets 10 - 20 days to respond -- see Rules of Civil Proc).

Accepting the current OAH rules that a memorandum may be accepted, these rules violate the impartiality doctrine of the courts and impartial adjudication process of OAH. They do not inform the parties that written arguments are permissible in addition to the evidentiary hearing process. In short, knowledgeable attorneys understand that a memorandum is a legal argument, but this is not made clear to the public who is told that a lawyer is not necessary, and any references to submitting memorandum as part of the adjudication is avoided on the OAH materials provided to the public on its website. This silence seems to reflect an attitude, that, well. the average person doesn't understand legal memos anyway, so why bother to inform him.

Petitioner requested a 20-day continuance to respond to the HOA attorney memorandum, which he described as “ambush tactics”. Koepke responded that, all that they were doing was “advising the court about the substantive issues of law on the topics before it”. Without explanation, the ALJ denied the motion for continuance. Then, the ALJ asked petitioner, “Did you have a chance to look at it? “Yes”, replied petitioner. “Well, then you are ahead of me, I just got it this morning and haven’t had a chance to look at it. I will look at it later.”

Petitioner has not had a chance to respond, as a matter of fairness and court impartiality, so the ALJ would see both positions. As it stands, the ALJ violated its impartiality by accepting the memorandum, by not granting a continuance, nor even advising the Petitioner that he could submit a memorandum as a supplement to the closing arguments, as per R2-19-108.

HOA attorney is Penny Koepke at Ekmark.

Case No 07F-H067010-BFS & 07F-H067011-BFS

Complaint:
violations of CC&Rs and ACC; failure of HOA to respond within in specified time.

Source of Law:
Declarations.

Discussion:

Holding:

Additional Remarks:
This is a consolidated case, which generally occurs when more than one complaint deals with the same legal issues. More than one homeowner is involved -- one for each case.

Took HOA 72-days to respond to ACC request; CC&Rs specified a 45 day response time. Failure to respond constituted an automatic approval. (This was a 4-hour plus hearing!) Petitioner’s wanted to install a private gate on for their custom homes with 300-foot driveways. Homeowners were not allowed to remain in ACC committee during its supposed approval.

HOA claimed an incomplete submission was made -- needed a waiver from neighbors. Yet, there is no waiver requirement by neighbors in the CC&Rs or rules and regulations.

Second issue raised by Mulcahy, again not reason for the denial, gates were not aesthetically appropriate – denial was required within 45 days as per the written contract, “black-letter law”. It was the custom of ACC to get waivers, although not in the governing documents.

A decision against homeowners would, once again, demonstrate that when it comes to protecting homeowners, the CC&Rs are not worth the paper it’s written on. We are well aware of court opinions referring to the written contract and the meaning of the provisions as stated, unless ambiguous. (No case history was mentioned in the opening arguments by either lawyer).

ALJ said, “I always forget what CC&Rs stand for.” And to Ms. Mulcahy, “I saw your firm and recognized it.”

Beth Mulcahy for the HOA. Mr. Lynch for homeowners. Also asked for attorney fees.

Case No 07F-H067008-BFS

Complaint:
enforce the architectural standards (allow petitioner’s changes)

Source of Law:
declaration; bylaws; Rules & Regs

Discussion:

Holding:

Additional Remarks:
Homeowner sought to cover driveway with concrete to prevent drainage runoff from eroding front yard in this desert-landscaped community. HOA considered this to be a structure and subject to its prior approval. No Cave Creek ordnance violation. Cement addition existed for some time period, about a month, before HOA insisted that it be removed, and threaten fines if homeowner did not comply. Cement composition was same as used on existing driveway. Other properties have extensions – what was allowed leads to the meanings of the rules.

HOA notice referred to a violation that in reality did not exist – “driveway must extend to garage”. Homeowner seeks approval; HOA seeks removal.

Homeowner attorney stated that the restriction was a rule and not a covenant in the CC&Rs, and that HOA could not add to CC&Rs by means of rules. [Cases exist relating to the meaning of “to amend” – to modify or to change, but not to add]. There is no mention of driveways in CC&Rs, but only in the Rules & Regs. HOA claims general powers under ”abiding by ACC decisions”.

HOA attorney clarifies that “going to the city for approval is not the same as going to the HOA for approval.” Furthermore, he argued that it was irrelevant what other properties looked like since HOA can change the rules, unless it could be shown that other properties were subject to same set of rules or CC&Rs. Homeowner failed to get prior approval of ACC for any appearance or landscaping changes. Portrays HOA as really cooperative, helpful and willing to resolve the issue.

HOA board has broad discretionary powers, as granted by the CC&Rs, in regard to concerns relating to appeal of community.

Morgan of Maxwell & Morgan, representing HOA. James Tanner of Jackson, White, representing homeowner. HOA is Rancho Manana in Cave Creek.