The question of obtaining a contempt of court order by the superior court in an appeal of a refusal by the HOA to obey an ALJ order has not been directly addressed until this year. It is a right specified by statute.
In 2010, in Gelb v. DBFLS (CA CV 09-0744, Ariz. App. Div. 1 (2010)) the issue was raised, but side-stepped by the court that focused on the unconstitutional status of DFBLS adjudication.
We now have 2 legal actions directly addressing the important question of the meaningfulness of an ALJ’s order in an OAH decision. Without enforcement of orders against the HOA, OAH adjudication — now by means of ADRE (real estate department) — becomes a farce!
Pro Se plaintiff Witmer sought enforcement of Arizona Office of Administrative Hearings order (No. 14F-H1415004-BFS) in superior court for HOA to follow CC&Rs. An order to show cause was filed (Whitmer v. Hilton Casitas HOA, CV2016-055080, Maricopa County Superior Court, AZ, decided: March 20, 2017) seeking a contempt order as HOA did not comply with ALJ order. HOA filed for dismissal on grounds that superior court lacked jurisdiction to obtain contempt of court orders for OAH decisions. The court granted the order for dismissal.
Somehow in a confusing, twist of words, the HOA attorney makes a suspect argument that ARS 32-2199.02(B) states that “the proper venue for a contempt of court hearing is the Administrative Courts.” However, the statute reads, as relevant, “The order issued by the administrative law judge is enforceable through contempt of court proceedings and is subject to judicial review as prescribed by section 41-1092.08” (emphasis added).
Superior Court judge granted Defendants Motion to Dismiss for lack of jurisdiction based on, it seems, solely the HOA’s attorney’s (CAI member Augustus Shaw) argument above. It held,
“Petitioner (homeowner) is seeking to enforce an administrative decision. Pursuant to Ariz. Rev. Stat. Sec. 32-2199.02 the proper venue for a contempt of court hearing (seeking to enforce the administrative decision) is the Administrative Courts, not the Superior Court.”
In short, the Superior Court rejected enforcement as specified in ARS 32-2199.02(B).
In a subsequent event, OAH order (17F-H1716005) that resulted on the need to file for enforcement of the ALJ’s decision occurred in September 2107 (Brown v. Terravita Country Club et al., CV 2017-055475, Maricopa County Superior Court, AZ). This was a simple records request, which the HOA’s attorney (CAI member Bolen of Carpenter Hazlewood) sought clarification by Brown. This case has been bogged down in supplemental issues including the dismissal of certain HOA board members. ADRE has maintained a hands-off posture, rather than fighting “to protect the interests of the general public” as required under law. As of this writing, there has been no final decision.
Required legislation: For those of you living in Arizona it becomes a necessity that legislation be enacted to assert the enforcement of ALJ orders by the superior court.
HOA Constitutional Government 
From my experience, “HOA” attorneys which do not really exist since there is no certification for “HOA attorney” licensing nor any law school “HOA specialty”, are on the side of making money for their law firms, not the HOA or the homeowners. HOA Boards and HOA homeowners need to wake up and ask themselves are these law firms trying to solve the issues easily with the least amount of charges to us? Or are they racking up their billing? The answer will be very clear. HOA Boards and homeowners need to stop being naive. These type of law firms make money by sending common fine threatening letters, being in court, … not by saying “be reasonable and resolve the issues internally so you will not incur large legal bills”. It is very obvious what these type of firms depend on: their billing. Who pays? The homeowners or the insurance companies. So the solution is for the homeowners to take responsibility and for the insurance companies to cut off the D&O insurance. It is a waste of money. Cut off the funds and there will be more harmony and less litigation in HOAs. I heard one large insurance company is doing this for 2018, more should follow the example. That will be the start to the end of law firms thinking that they can rack up legal bills because the insurance companies will pay if there is litigation. Since HOA Boards depend on having their D&O protect them, if this funding is cut off then there will be less litigation. I very much doubt that the bad Boards would behave badly and not try to resolve issues directly with homeowners if they knew they will have to be personally and financially liable if there is a lawsuit. In addition, please notice if the law firms that they are hiring are presenting themselves as law firms or collection agencies. If they are presenting themselves as collection agencies or bill collectors, then they should be subject to the collection laws. If you look up complaints against the biggest type of law firms involved with HOAs in the BBB, you will note that they will proclaim they are bill collectors. Here is an exact quote in response to some owner complaining about one of these type of law firms. The firm answered “Our law firm provides collection services for its client ******** *********** ********** **********n, where Mr. M********* is an owner.” So are they a law firm or when it suits them, are they are bill collectors? If they are bill collectors, they must follow the collection laws. In regards to HOA Boards: they are not trained or if they have attended a class are barely trained to run a Homeowners Association. There is no background check for the HOA Board volunteers or fingerprinting clearance yet they are trusted with millions of dollars in HOA real estate and real estate funds. This makes absolutely no sense. There are no laws holding them accountable when they harass a homeowner yet they think they have the right to harass and fine homeowners that do not support them or they do not like. They are volunteers and have no legal right to tell how any homeowner how to behave. Some of the volunteers do not even have a business background or a real estate background. There are some good Board members but unfortunately the problems are usually with some Board members that run because they have a personal agenda. We need laws passed that will hold HOA Board members personally and financially liable when they violate the statutes, when they interfere with homeowner’s rights and when they misuse HOA funds for personal reasons. In 2018, it is up the the homeowners to stand up for what is right, to protect their legal rights, to stop the harassment, to stop being intimidated and to stop being afraid to speak up. That is the only way the problems will stop and the homeowners will be able to live in a harmonious community. It is very unfortunate that some “HOA attorneys” and some “HOA Boards” try to manage communities via intimidation and harassment. It hurts the morale of the community and the property values as homeowners seek to sell just to escape. When homeowners allow this type of unacceptable attitude and behavior, they hurt themselves and their neighbors. #HomeownersSpeakUp2018
Two more more points, perhaps avoiding hiring CAI attorneys and CAI management companies might be a start to resolving the problems. Also judges need to note that the same attorney characters are the ones that appear in their court over and over again with the same frivolous arguments. If a judge is not familiar with the laws that are applicable to the HOA issue, he or she should be diligent and make the time to investigate the applicable laws before listening to any of the CAI or HOA type attorneys. They obviously do not care if the homeowner as in this case gets hurt. Then look at the billing.
I’m not that knowledgeable on anything. I just do not agree with the rights and abuse of HOA’s How about a gofundme for the homeowner to appeal. How much time is left for an appeal? Sorry in advance if what I am asking is of no help.
Excellent suggestion!
I am not understanding the case. The homeowner won but then the HOA appealed and said it was not valid and now from what I just read in the court docs, the HOA attorney, Augustus Shaw wants the following as noted in the CV court filing? What is missing? What was the case about and why the high attorney fees against one stand alone homeowner? This seems like an injustice. Am I wrong? 7/24/2017 F:Hilton Casitas Homeowners Association $33.50 One Time Costs
F:Michael Bengson
A: R L Whitmer
7/24/2017 F:Hilton Casitas Homeowners Association $4,775.00 One Time Attorney Fee – Augustus Shaw
F:Michael Bengson
A: R L Whitmer
5/16/2017 F:Hilton Casitas Homeowners Association $356.70 One Time Costs
A: R L Whitmer
5/16/2017 F:Hilton Casitas Homeowners Association $23,176.50 One Time Attorney Fee – Augustus Shaw
A: R L Whitmer
I am focused on the question of superior court enforcement of ALJ orders as required by statute. I am not concerned with other issues raised in the proceedings. The court ignored the statute and apparently accepted Shaw’s convoluted interpretation of the statute. Whitmer, a pro se, should have challenged the decision by an appeal to appellate court proper under an error of law and abuse of discretion violations. He didn’t. Shaw won.
So attorneys are allowed to spin whatever they want in court and get away with it even if it is not correct? Unbelievable that a judge would permit this. In my opinion, the judge should have known better than ignore a statute and should not allow this type of manipulation. Also, since Augustus Shaw was hired to represent the homeowners, it seems a bit insincere to misinterpret the statute just to win against one lone homeowner. It just does not seem right or fair to the homeowner. Perhaps the homeowner should hire an attorney and make the proper appeal to the appellate court. I am not an attorney but this just does not seem to pass the fairness test. If ALJ orders are required to be enforced by statute then the answer is clear: they should be.
In the real world, CAI attempt to influence not only slower court judges, but ALJ judges as well. They strongly promote that they are the experts in “community associations” law (which is not recognized by the ABA). Your everyday judge has no ‘certification’ as an HOA specialist. So, many defer to the HOA attorney who speaks under the business judgment rule, which says that the HOA board knows best how to run an HOA. There you have it, because advocates fear challenging, and have not done so over the years, this BS that the CAI attorney has the best interest for the state in his heart.
READ THE ABOVE AGAIN, CAREFULLY.
Please understand another misconception — the HOA attorney repesents the corporate – HOA – interest and not the interests of its members as would be expected of a truly represented democractic government. The HOA, as it exists under law, is governed by a busines model that allows for ‘us against them,’ management vs. employees adversity.
Subsequent to my posting the above comment, Ron Whitmer sent me a copy of his appeal to the appellate court, filed last week on Dec. 7, 2017. In his Pro Se brief he does mention that the superior court “erred” (violation of the law) in its decision.
HOA lawyers are corrupt. They bully homeowners around because they have two things that individual homeowners do not have,,,time and money. Associations pay these lawyers to send threatening letters and turn a simple $50 fine into thousands of dollars for the homeowner. Right or wrong, win or lose, HOA lawyers come out on top because of the ridiculous costs they charge.