ORDER

24F-H008-REL · Department of Real Estate - H/C · 2023-10-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

Keith W. Cunningham

The Residences at 2211 Camelback Condominium Association, IN

No. 24F-H008-REL

ORDER DENYING RESPONDENT’S PARTIAL MOTION TO DISMISS

Respondent’s Partial Motion to Dismiss is denied. On September 25, 2023, Respondent filed a Partial Motion to Dismiss. Respondent argued one of Keith W. Cunningham’s (Petitioner) claims ought to be dismissed because he cited A.R.S. §33-1805, the statute for Planned Community Associations, when he filed the complaint form. Respondent is not a Planned Community Association, rather they are a Condominium Association and are not subject to A.R.S §33-1805. Implicit in Respondent’s motion is the argument they are unfairly prejudiced by the claim such that they are unaware of the reason for Petitioner’s complaint; they are unable to adequately prepare and thus, no meaningful notice is given depriving them of due process. While it may be true Petitioner hand wrote A.R.S. §33-1805 in the prompt directing petitioners to cite the statute for which Respondent allegedly violated, the context surrounding Petitioner’s hand written statute provides adequate notice.

First, the Homeowners Association (HOA) Dispute Process Petition contained a mandatory series of boxes for every petition. One such mandatory box was the description of the parties including respondent type. Petitioner’s choices within the respondent type box were Homeowner, Condominium/Community Association, and Planned Community Association. Petitioner selected Condominium/Community Association. Here, it is clear Petitioner was aware of Respondent’s proper status as a Condominium and not a Planned Community because the Condominium box was checked and the Planned Community box was left blank. Thus, Respondent was put on notice of Petitioner’s acknowledgement of their status as Condominium/Community Association and not Planned Community.

Next, petitioners were mandated to select the types of violations. The choices were Condominium Statutes, Planned Community Statutes, Bylaws, and CC&R’s. Petitioner selected Condominium Statutes and CC&R’s. Here, it is obvious Petitioner intended to apply the Condominium Statutes and not the Planned Community Statutes as he selected the Condominium Statutes box, but left the Planned Community Statutes box unchecked. Thus, Respondents were on notice that Petitioner’s claim was intended to address the Condominium Statutes and not the Planned Community Statutes.

Finally, petitioners were mandated to fill out in their own words the Alleged Violation Description – Narrative Statement box. Petitioner stated, “[f]ailure to provide or make reasonably available for examination requested financial records/documentation original request 7/10/2023.” Here, Petitioner plainly describes the crux of their complaint; he requested financial documents and Respondent failed to make them reasonably available. Thus, Respondent was made aware of the reason for Petitioner’s complaint.

Again, it is true Petitioner cited the improper statute. If viewed in a vacuum, one may argue, Respondent was unaware of what they are accused and unable to adequately defend said complaint; however, this fact is not viewed in a vacuum. Petitioner cited A.R.S. §33-1805 which would have been the proper statute if Respondent was a Planned Community. Respondent could reasonably understand Petitioner intended to cite A.R.S. §33-1258, which is the corresponding Condominium Association statute. Petitioner’s selections of “Condominium Association” within the respondent type box, “Condominium Statutes” within the complaint violation box, and the description of the violation within the alleged violation description box provide sufficient notice for a reasonable Respondent to be aware of what they are accused.

For the reasons listed above Respondent’s Partial Motion to Dismiss is denied.

Done this day, October 5, 2023.

/s/ Brian Del Vecchio

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Susan Nicolson

Commissioner

Arizona Department of Real Estate

100 N. 15th Avenue, Suite 201

Phoenix, Arizona 85007

Attn:

[email redacted]

Keith W Cunningham

[email redacted]

Allison Preston

Carpenter Hazlewood Delgado & Bolen LLP

[email redacted]

By: OAH Staff