HOA failure to maintain water irrigation system causing plants to die.
Source of Law:
governing documents
Discussion:
Holding:
ALJ will allow petitioner to clarify by adding more specificity to her claims as stated in her original petition, and the hearing for these will be set for another time.
On April 9, 2007, the Office of Administrative Hearings received Beverly Leinweber’s withdrawal of the petition filed in this matter.
THEREFORE, IT IS ORDERED vacating this matter from the docket of the Office of Administrative Hearings and dismissing Ms. Leinweber’s petition without prejudice to filing a new petition. Done this day, April 10, 2007.
Comments:
A memorandum, hearing brief, was submitted by HOA attorney.
Petitioner’s claims, 3 claims, were dismissed because claims were just a statement of fact, and not a claim of a violation, or too ill defined a charge. ALJ would allow time to clarify petitioner’s vague complaints. For example, count 1 simply said that, “the HOA is required to maintain landscaping” or “did not provide maintenance”, which is a statement of fact and not a claim like, HOA failed to maintain landscaping under governing documents.
Also, ALJ will not address a violation that is no longer occurring, or occurred prior to the new law becoming effective. That is, violations occurring prior to the new law are not under OAH jurisdiction.
ALJ took a good deal of time to explain what petitioner failed to provide in her petition. However, Arizona is a “notice pleading” state where details of the complaint do not need to be made with specificity in the complaint filing, raising a concern that ALJ’s insistence on specificity may be contrary to Arizona R. of Civ. Procedure. Petitioner seemed confused as to what she must do for the next hearing.
“Vacating” the case amounts to a “non-case”. “Dismissing without prejudice” allows the petitioner to re-file a complaint on the same issues.
ALJ order with respect to second motion for a continuance:
However, the Motion indicates that Respondent’s counsel accepted legal representation of this matter when he would physically not be available to attend the hearing, thereby creating the scheduling conflict. Under the circumstances, the Administrative Law Judge finds good cause has not been presented to continue the hearing and the Motion is denied without waiting to receive a response from Petitioner. Respondent has sufficient time to arrange for its legal representation.
The Administrative Law Judge will not consider any future continuance requests filed by Respondent unless the grounds for a continuance are other than those raised in the previously filed motions.
HOA attorney is Scott Carpenter. Mr. Corbin represented the HOA at the Hearing.
Hearing lasted just over an hour.
