HOA - ALJDEC decisions
25F-H029-REL · Department of Real Estate - H/C · 2025-03-12
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Debbie Westerman,
Petitioner,
v.
Bridgewood Nine 30 Homeowners Association,
Respondent.
No. 25F-H029-REL
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: February 20, 2025.
APPEARANCES:
For Petitioners: Debbie Westerman.
For Respondents: Attorney Mark Lines.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Notice of Hearing File, provided by the Department of Real Estate. Respondent’s Exhibits A and B.
_____________________________________________________________________
FINDINGS OF FACT
Bridgewood Nine 30 Homeowners Association (“Respondent”) is a condominium association in Mesa, Arizona.
Debbie Westerman (“Petitioner”) own a home located at 930 S. Dobson Rd, Unit 31, Mesa, Arizona 85202, and is a member of Respondent.
On or about December 16, 2024, Petitioner filed a single-issue Petition with the Arizona Department of Real Estate (“Department”) alleging that Respondent had violated Planned Community Statutes, A.R.S. § 33-1805. The issue identified in the Petition, for which Petitioner paid the requisite $500.00 filing fee, is as follows:
Per ARS 33-1805, I requested financial statements and associated minutes outlined in “Question on Legal Fees” on 11/26/24 and have had no response. I am petitioning the ADRE to intervene and dispel concerns of having misappropriated funds for legal representation at the expense of the Association. All owners’ Private Personal Information (PPI), as well as other confidential information, should be redacted. Thank you.
Respondent, through its President, Michael Brubaker, filed a written response to the Petition, requesting dismissal.
The Department referred the Petition to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
A hearing was held on February 20, 2025. Administrative Notice was taken of the agency record. The parties agreed that the applicable statute was A.R.S. § 33-1258. Petitioner testified on her own behalf. Michael Brubaker, Community Manager, testified for Respondent.
It is undisputed that on November 26, 2024, Petitioner sent an email, which stated, in relevant part, as follows:
2. Could you please obtain all statements from Shaw and Lines from 2015 through today, and email these to the current Board for review? I am also requesting a copy of these statements so I may review them as well.
It is undisputed that Respondent did not respond to that email until December 30, 2024, when Michael Brubaker invited Petitioner to a board meeting.
Ms. Westerman stated that she just wanted to know how much money Respondent had paid in legal fees in the past decade. She sent the email request for that information, and she did not receive a timely response.
Mr. Brubaker testified consistently with not responding within ten business days. He testified in support of his efforts to work with Petitioner regarding her request.
CONCLUSIONS OF LAW
A.R.S. § 32-2199 authorizes the administrative law judge to “adjudicate complaints regarding and ensure compliance with . . . [t]itle 33, chapter 9 and condominium documents.”
A.R.S. § 32-2199.01 permits a member of a condominium association to file a petition with the Department for a hearing concerning the planned community association’s alleged violations as set forth in Title 33, Chapter 9. This matter lies within the Department’s jurisdiction.
A.R.S. § 32-2199.02 authorizes the administrative law judge to “order any party to abide by the statute, condominium documents, community documents or contract provision at issue and may levy a civil penalty on the basis of each violation.”
Petitioner bears the burden of proof to establish that Respondent violated applicable statutes, CC&Rs, and/or Bylaws by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
A.R.S. § 33-1258 provides as follows:
A. Except as provided in subsection B of this section, all financial and other records of the association shall be made reasonably available for examination by any member or any person designated by the member in writing as the member's representative. The association shall not charge a member or any person designated by the member in writing for making material available for review. The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records by any member or any person designated by the member in writing as the member's representative, the association shall have ten business days to provide copies of the requested records. An association may charge a fee for making copies of not more than fifteen cents per page.
B. Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following:
1. Privileged communication between an attorney for the association and the association.
Respondent argued that the documents Petitioner requested, bills issued to Respondent by Respondent’s counsel, were subject to the exception in A.R.S. § 33-1258(B)(1). Respondent’s counsel also represented that the documents were privileged.
Based upon counsel’s representation that the requested documents were privileged, the Tribunal finds that the preponderance of the evidence supports the requested documents were privileged.
The production and ten-day requirements apply to all documents “[e]xcept as provided in subsection B.”
Therefore, Petitioner failed to meet her burden that Respondent failed to comply with A.R.S. § 33-1258.
order
IT IS ORDERED that Respondent be deemed the prevailing party in this matter.
NOTICE
Pursuant to A.R.S. §32-2199.02(B), this Order is binding on the parties unless a rehearing is granted pursuant to A.R.S. § 32-2199.04. Pursuant to A.R.S. § 41-1092.09, a request for rehearing in this matter must be filed with the Commissioner of the Department of Real Estate within 30 days of the service of this Order upon the parties.
Done this day, March 12, 2025.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile March 12, 2025 to:
Susan Nicolson, Commissioner
Arizona Department of Real Estate
Mark Lines
Shaw & Lines, LLC
[email redacted]
Michael L. Brubaker
Bridgewood Nine 30 Homeowers Association
[email redacted]
Debbie Westerman
[email redacted]
By: OAH Staff