Wild west justice for HOA owners

The Arizona Superior Court special action appeal of an administrative law judge decision upheld, and affirmed last week, the order that the  administrative hearing adjudication of HOA disputes was unconstitutional.  This affirmation was made one day before the time limit for a response set by the Superior Court Judge, and on the same day a letter introducing new facts in the case was received by the judge. The facts showed that there were no real parties in interest prior to the filing of the appeal and that the case was “fictitious.”  There is no acknowledgement of the letter nor a response to these important facts by Judge McMurdie. This is a gross miscarriage of justice!

 

It is the policy of Arizona to favor the HOA industry with special laws and privileges that deny its citizens “fair trial” due process and the equal application of the law.  Perhaps in these times of financial hardship on the state, and on developers, homebuyers should speak out with their pocketbooks and buy homes at substantial discounts that are not in HOAs.  Homebuyers, avoid the mismanagement of HOAs; the blind adherence to arbitrary rules by “political machine” ruling boards; the divisiveness caused by the HOA attorneys who insist on enforcement, with no compassion; the lack of support and protection from your public government; and without having to be married to your neighbors who will not join in your just  fight for fair treatment against board abuse.  Ask yourself, “Who needs it?” 

See The State of Arizona will not protect buyers of HOA homes!

New facts in HOA constitutionality due process case

Please note that Judge McMurdie’s failure to provide an explanation of his denial (Intervenor motion denied in OAH fair trial constitutionality case), which is necessary in order to determine the grounds for an appeal, is itself appealable as an abuse of discretion. However, the following letter had to be first delivered to the attention of Judge McMurdie:

Re:            LV2008-000740, special action from OAH 08F-H089004-BFS,   new facts

 

Dear Judge McMurdie:

 

 

If I had been permitted to intervene, these facts, discovered subsequent to filing the Motion to Intervene, would have been presented appropriately. Rule 60(c)(6) “does not limit the power of a court to entertain an independent action to relieve a party from judgment, order . . . or to set aside a judgment for fraud upon the court.” 

 

In short:

 

1.      Petitioner and real party in interest, Ron Merrit, had quitclaimed his deed to his co-owned property in the Phoenix Townhouse subdivision on October 10, 2008, prior to the superior court special appeal of October 23. (Exhibit 1).  I believe this issue became moot at that point.

2.      The new co-owner is the legal person of Big Henge Enterprises, LLC whose two members are Merrit and Hernandez.  Big Henge is not  a successor in interest to the Merrit Petition.

3.      John Hernandez, the other real party in interest, and co-owner of the Phoenix Townhouse with along with Merrit, did not file a Petition, but was falsely named as a defendant in the special action.  Hernandez is listed on the Petition as a homeowner, but did not sign it! (Exhibit 2).  It appears that there are no valid  real parties in interest in the special action.

4.      There is no legal entity named “Phoenix Townhouse Association”, the stated Plaintiff.  The name appears on the court/OAH filings and in correspondence attached as exhibits to the supplemental Petition filed by Merrit on September 22.  There are no records or names of any directors of the board or president on any of these documents. The “Association” named in the Phoenix Townhouse declaration is “Phoenix Townhouse Corp.” (Exhibit 3) whose president is Richard Flood with Maggie O’Dell as a director (as shown on the ACC annual reports).  There is no trade name filed as such.

5.      The 2004 notice filing required under ARS 33-1807(J) also falsely names “Phoenix Townhouse Association” as the legal name of the subdivision (Exhibit 4). It was filed by the “managing agent”, an alleged “Mutual Management Services, Inc” entity, but is notarized without any signature! As an aside, Mutual Management is not a legal corporation, but “Management Mutual Services” is a trade name of Cimros, Inc., a corporation in good standing.

 

 

For these reasons, I feel that the decision in the special action be set aside and a bona fide case be brought before the court for adjudication.  As it stands, the declaration of unconstitutionality and the injunction against any further adjudication of HOA complaints by DFBLS/OAH should be vacated.

 

 

Respectfully,

 

 

 

George K. Staropoli

Intervenor motion denied in OAH fair trial constitutionality case

With a simple statement, the Court has permitted a default judgment, that the OAH adjudication statute is unconstitutional, to stand!   By a default decision, the national CAI/HOA lobbyists have struck down a statute without any argument by the real parties in interest, the homeowners, or by the Arizona Legislature, or by the Attorney General.  In spite of the Attorney General’s brief in favor of constitutionality that was submitted in the underlying Waugaman case. Who will defend the people?  As our President said during his campaign,  “You are on your own!” 

 

The HOA-landers of New America won a decisive battle, a battle where the State of Arizona failed to stand up and defend constitutional protections for “equal justice under the law.”  With no rationale supplied, the judge makes it difficult to argue for an appeal.

 

“MINUTE ENTRY [2/18]
The Court has received and considered the Motion to Intervene by George K. Staropoli.
IT IS ORDERED denying the Motion.”

 

In my motion, filed as a member of an Arizona HOA, I wrote, in part,

 

“Furthermore, the failure of any of the defendants to respond and defend the constitutionality of  the statute allows intervention under R 24(a), ‘unless the applicant’s interest is adequately represented by existing parties.’    ‘Because an intervenor of right may be seriously harmed if not permitted to intervene, the court should be reluctant to dismiss a request for intervention.’  Winner Enterprises, Ltd v. Superior Court, 765 P.2d 116 (1988).  The Winner court held that because the time frame was shortened by the special action [as this case] and that other parties would not be prejudiced, it allowed the intervention even though a judgment had been rendered.” 

 

 

The Motion and decision are available by clicking as indicated.

Intervenor files for justice in OAH constitutionality case

An application for intervention was filed today by George K. Staropoli in the Meritt case on OAH constitutionality, one day before the effective date of the judgment against the statute. An intervenor is a person of interest who seeks to protect his interest concerning a matter of law and fact in common, but is not a party.  The generality of the judgment put the Intervenor in a position where his interests will be damaged. 

 

The judge must now decide on my application, and if accepted, my Answer, my defense in full, becomes part of the case now open for trial.  The CAI/HOA plaintiffs have a right to reply within 5 days.  The decision on acceptance should come rather quickly.

Excerpts:

 

“Intervenor asserts his right to intervene under Ariz. R. Civ. P. 24(a)(2) since he is a homeowner living in an HOA in Maricopa County and his right to seek a fair and just adjudication of complaints against his HOA under the statute in question.” 

 

“Furthermore, the failure of any of the defendants to respond and defend the constitutionality of  the statute allows intervention under R 24(a), ‘unless the applicant’s interest is adequately represented by existing parties.’  Intervenor was quite disturbed by the failure of any of the named defendants or real defendants to respond to the Complaint, recognized by the Court in its order as, in reality, a default judgment.  Intervention after a judgment has been rendered does not automatically preclude intervention.”

 

“Intervenor denies the validity of the Waugaman order, in paragraph 13, as it relied heavily on Cactus Wren, which relied on the error in Hancock.  Although the Hancock four-fold test was used in the Waugaman analysis, Judge Downey erred in her analysis, as indicated in paragraphs 3 and 10 herein.”

 

Intervenor denies the allegations in paragraph 17 that the statute in question is unconstitutional.  The Attorney General filed a brief (“Attorney General’s Brief in Support of the Constitutionality of ARS §§ 41-2198 – 2198.05″, June 13, 2008) in Waugaman supporting the constitutionality of the statute in question, and Intervenor incorporates the reasoning contained in the brief into its argument both for the acceptance of jurisdiction and the ultimate resolution of the issues,  attached hereto as Exhibit A .  In its Answer in Terravita v. Brown (LC2007-000588) the Attorney General denied that the statute was unconstitutional.

 

Examining the Waugaman decision in the interest of doing justice

 

I find it necessary to comment on the events and perceptions surrounding the two superior court decisions holding the Arizona OAH adjudication of HOA complaints as unconstitutional.  Both rest on the Waugaman decision. It appears that the absence of the Attorney General and Legislature defense of the statutes reflects a public policy that finds that the HOA legal scheme and statutes do no wrong or injustice to homeowners.

Analysis of Waugaman*

 

Both superior court decisions were bad law, law that did not do justice for homeowners subject to HOA abuse.  In defense of the Downie decision in Waugaman, since Merritt was decided by default without argument except for the HOA’s justification for the order, a commenter to my “AZ HOA Case Reviews” blog, identified as J. E. Smith (recall that the HOA attorney in both cases was Jason E. Smith) wrote,

 

Let’s be clear:  the rulings by Judge Downie and now by Judge McMurdie are not “faulty”.  The legislation was “faulty”.  The sponsors of this bill in the legislature failed to properly vet the bill’s constitutional validity before voting it into law.  The bill was so fundamentally in violation of the separation of powers doctrine that the Attorney General would not even attempt to defend it in the Phoenix Townhouse case.

 

Absent from this imperious statement of legislative fault, and the presumption of rock solid trial judge decisions, is any reference to the grey areas of law that the Arizona appellate court wrestled with in the underlying Hancock precedent (J.W. Hancock Enterprises, Inc. v. Arizona State Registrar of Contractors, 690 P.2d 119, 1984),

 

While providing the necessary flexibility to government, the test preserves the essential goal of the separation of powers theory-i.e., preventing the concentration of the whole power of two or more branches in one body.

 

This precedent served as the guide for the  Cactus Wren (Cactus Wren Partners v. Arizona Dept. of Building & Fire Safety, 869 P.2d, 1993) decision regarding an earlier DFBLS challenge to the violation of the separation of powers doctrine.  In applying this non-exclusive four-part test of a violation, Downie begins to hold that Merritt deviates from Cactus Wren, parts 3 and 4, and rather than being open to what is called “this case is distinguished from” analysis, Downie rests her decision on Cactus.  This non-lawyer quickly recognized this “rush to judgment” approach with concerns about a made-up mind on the part of the judge.  (See the Waugaman Decision).

 

For example, in considering the third test concerning the legislature’s intent, Downie quickly moves to regulatory concerns and does not address the legislature’s intent behind the statute.  The only occurrence of legislative intent is in the judge’s decision where she used the HOA attorney’s argument.  In the underlying Hancock precedent, the judges wrestled with,

 

A third consideration of importance is the nature of the objective sought to be attained by the legislature.  Is the intent of the legislature to cooperate with the executive . . . or is the objective of the legislature obviously one of establishing its superiority over the executive department in an area essentially executive in nature?

 

Third, we must consider the nature of the legislature’s objective.

 

Similarly, one can argue that Downie analysis of the fourth part of the test dealing with “a blending of powers”  was faulty.   In Hancock, the court wrote,

 

We find that the limited ancillary power to construe contracts does not threaten the core functions of the courts. . . . We also believe public policy favors such a blending of powers here.

 

Interestingly, Downie, in her analysis, refers to Cactus Wren but omits the citation, “’[T]he limited ancillary power to construe contracts does not threaten the core functions of the courts.’ [citation omitted]“, which reads directly from Hancock.  However, the second sentence pertaining to public policy is not cited, although as quoted  below, Downie makes her own statement about public policy as applied here. Again, there’s a quick move to regulatory concerns with,

 

The legislature may have had valid policy reasons for devising a different system for resolving homeowner association disputes. But it appears that the Department of Fire, Building and Life Safety is a mere figurehead or ‘parking lot’ for those disputes.  

 

without any discussion of the application of the citation to Merritt.  Downie ends her analysis with, “In the final analysis, the court concurs with the following argument by the Association:”

 

It is obvious that the Downie decision is not a “slam dunk”, or a “done deal”, or an unchallengeable, “solid as a rock” decision as J. E. Smith would like everyone to believe.  It’s shaky, very shaky.  And worthy of a challenge by competent attorneys in the interest of doing justice for the people, the homeowners in HOAs.

 

 

 

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