Summary
The AZ appellate court is deciding whether or not to permit an attorney fees award resulting from an ALJ decision not involving a contract. The law says no, but Terravita’s HOA attorneys think differently and managed to get a CC&Rs amendment passed that permits just such a violation of state law. Brown, the homeowner/plaintiff, had filed a complaint against state statutes and not against the CC&Rs. Furthermore, the amendment does not represent a majority or supermajority vote, but a minority vote based on a 2010 “minority control” CC&Rs amendment. In other words, Terravita has become an oligarchy in fact. Will this influence the court’s decision?
Case history
Terravita is a1300 resident, more or less, HOA in Scottsdale, AZ, with country club and golf included. William Brown is a long-time resident who has been active in challenging the Terravita board for some time, winning cases. In fact, Terravita’s insurance company has specifically set a $75,000 deductible for suits filed by Brown, just for him alone. Can you guess why?[1]
The ongoing case from 2012, filed with the OAH was decided against Brown on a question of failing to hold an evidentiary hearing for Brown’s position (regarding evidence that an executive meeting was not an executive meeting and Brown was entitled to the records). The ALJ felt the hearing was not necessary and granted summary judgment against Brown.
The Court’s Order upheld the Administrative Law Judge’s grant of summary judgment in favor of Terravita. Thus, Terravita is entitled to its attorneys’ fees and costs as the prevailing party under A.R.S. §§ 12-341.01 and 12-341 as well as under the Amended and Restated Declaration of Covenants, Conditions, and Restrictions for Terravita, as amended . . . .[2]
The HOA filed for attorney fees for the OAH hearing and for appellate costs. Uncertain that, in this ongoing case, Terravita will prevail under 12-341.01 and case history, which supports nonpayment of attorney fees in ALJ cases, Ekmark (The law firm of Ekmark & Ekmark) first argues that Brown is none other than “Bad, bad [Bill] Brown, meanest guy in the whole damned town”[3] (my words). The application for fees, in my view, character assassinates and libels Brown using Uyleman v. D.S. Rentco to defend its claim for a discretionary fee award. Brown is described as:
This lawsuit was both unfounded and trifling. It was nothing more than an attempt to harass and burden the Terravita community . . . Plaintiff proceeded to waste the resources of the Court and Terravita by appealing this meritless case. . . . The burden of defending these spurious claims should not fall on innocent homeowners. Rather, it should fall on the Plaintiff who filed this action and appeal with no legal basis and with no reason other than to harass Terravita.
Is this a case of the pot calling the kettle black?
In my view, this argument is a weak one designed to attack Brown. The second, but questionable, argument advanced by Terravita relates to the 2013 amended CC&Rs that permit such attorney fees in contradiction to state law. (It raises questions of, who’s in charge? The state? The municipality? The HOA? The HOA lawyers? Who??) But in order to do so, Ekmark must claim that the OAH issue pertained contract and fees are payable under ARS 12-341.01.
Brown filed for a review and a superior court appeal of the decision, and then filed the ongoing appeal in the appellate court against the attorney fee award, CA-CV2014-000455. He counters with, “The claim for attorneys’ fees under TCA’ s amended and restated declaration, in addition to defying credulity, is a misplaced transparent ex post facto attempt to trump well-settled Arizona law.”[4]
Brown presents his argument that the case is not a contract case but a violation of state law, having filed the OAH petition as a violation of state law, not of the CC&Rs. (This is the question that should be before the courts, not one advanced after the fact by the attorneys in order to claim fees.) Apparently Brown’s wording was intentional, anticipating the HOA’s recourse to the 2013 amended CC&Rs.
Can CC&Rs covenants violate the Constitution or state law?
Under The Restatement (3rd) Servitudes, section 3.1,[5] the answer to the above question is NO! As I wrote in 2005,[6]
When did “whatever the people privately contract” dominate the protections of the U.S. Constitution?
At the heart of the matter is the continued replacement of democratic local government, governments subject to the U.S. Constitution and 14th Amendment prohibitions, with contractual, authoritarian private governments that are not subject to the prohibitions of the 14th Amendment.
Can you and I contract to not pay income taxes? Heavens no! But, can the HOA contract via amendments or rules to lower speed limits on public streets within its community? The courts would probably uphold the HOA’s position under 1) a validly adopted amendment, 2) members agreed to be bound by the governing documents, and 3) if the amendment is more restrictive than state law or ordinance.
What gives? Why the difference? I’ve seen court decisions based on the business judgment rule, (the board knows best), the amendment is in the best interests of the entire membership, and it’s the voice of the majority of the members. But, this is not the case with Terravita and the attorney fees amendment.
Let’s go back to the 2010 Terravita amendment that was approved by the members allowing amendments to be passed by a minority of the membership,[7] contravening prevailing doctrine that supermajority approval was necessary for amending constitutions or charter.
Think for a moment. If a minority can control the amendment process, it can control the HOA by enacting amendments that further strengthen the powers of the incumbent board. Given the fact that the rogue boards are dominated by their HOA attorneys, minority control solidifies the political machines as the power elite.[8]
Consequently, as best as can be determined, the Terravita attorney fee amendment of 2013 passed with only 38% of the membership, although the board announced a misleading 90% approval. Based on Terravita’s email that 571 ballots were received, 90% would mean just 514 members approved the amendments or 38% overall membership approval. Not even a majority!
OMG, the minority can speak for the majority, binding all of them to the amendments. So much for the board speaks for the majority of members. So much for HOAs being democratic. Members who do not vote cannot be considered as approving the amendments. Another democratic principal fallen by the wayside.
All brought to you under the advice and supervision of Ekmark, a CAI CCAL attorney.
Fortunately, a year later an Arizona bill, HB 2441, with similar provisions was put forth by another CAI CCAL member, Scott Carpenter, and failed. Carpenter characterized the bill as, “This change would enable community association to change their documents without onerous approval requirements that count a failure to participate as a ‘no’ vote.”[9] In other words, create an oligarchy like Terravita with control by the few, and guided by attorneys, the HOA philosopher-kings.
In conclusion, how will the Arizona appellate court decide this case against Terravita? For the survival of the defective HOA regardless of the harm to the principals of our system of government, or will the court stand up and be counted, saying enough is enough?
References
[1] It would seem that the insurance company was going to pull its E & O insurance, but settled for this arrangement.
[2] Terravita’s application for attorneys’ fees for (Ekmark & Ekmark)
[3] Jim Croce lyrics from Bad, Bad Leroy Brown:
“And it’s bad, bad Leroy Brown The baddest man in the whole damned town Badder than old King Kong And meaner than a junkyard dog.”
[4] See Brown’s 22 page opening brief, 1 CA-CV2014-000455, 9-16-2015. In addition, the amendment to § 17.08 only grants attorney fees to the HOA if it wins; the homeowner gets nothing.
[5] “A servitude . . . is valid unless it is illegal or unconstitutional or violates public policy [being] a servitude that is arbitrary, spiteful, or capricious.”
[6] HOA reforms needed to guarantee U.S. Constitutional protections.
[7] Section 17.02 of the 2-10-2010 amended CC&Rs: “This Declaration may be amended by the affirmative vote or written consent, or any combination thereof, of the Owners holding not less than two-thirds (2/3) of the votes cast, provided that the total vote equals or exceeds Quorum.” A quorum being 1/3 of the membership. Thus 1/3 of 2/3 = 307 affirmative votes out of 1380 members.
[8] See Beware the folly of eliminating supermajority voting for amending the HOA CC&Rs; HOA democracy at work: dysfunctional adoption of amendments by minority vote.
[9] Carpenter Hazlewood Delgado & Wood blog of Jan. 18, 2011, written by Scott Carpenter, “HB2441 – CC&R Amendments.”
HOA Constitutional Government 
For some odd reason, statutes allow HOAs to take the concept of “home rule” to the extreme.
When the law works against HOA authority, attorneys step in to “tweak” the statutes to restore “balance” to rights of the Association.
No doubt there is “bad blood” between this homeowner and the HOA board. However, the board is creating their own legal problems by not following their CC&Rs and hoping not to get caught. Therefore, I have no sympathy for them.
My HOA borrowed $1,000,000 without one vote from a homeowner. Our Articles of Incorporation clearly state to borrow money it requires 2/3 of the membership approval in writing.
When board members pull these stunts they should expect the legal consequences. I commend any homeowner that will stand up to these rogue board members. If it takes dragging them up the courthouse steps then so be it. All homeowners should be standing up and throwing these bullies off of their boards. Until they do, they will be picking up the financial consequences of their board’s bad behavior.
For the insurance company to create a special deductible for a particular homeowner says to me they know the HOA has bad actors on the board and they refuse to fund the legal battle to defend them.
And what about the conduct of the HOA attorneys? Do you think these acts in violation of the law and governing documents come from the board alone? Some may, but the attorneys seem to be saying: We will protect you.
The code of professional conduct requires the attorney to inform the board about their wrongful acts, and if the board persists to withdraw (E.R. 1.13, Organization As Client). Yet these attorneys draft unjust laws and submit them to legislators, and then use them before judges against the homeowner.
It seems that the HOA attorney is regarded by judges and legislators to be acting in good faith, “For [the attorney] is an honourable man; So are they all, all honourable men” (Julius Caesar).
While I strongly favor some kind of oversight over HOA’s and their Boards, I have a degree of sympathy with Terravista. We have a Board member in our HOA who is constantly thwarting the Board with quotes from Title 33 and misapplying them to everything she can find, claiming our bylaws and CCR’s are wrong, harassing our management company, and threatening everyone who disagrees. It’s very stressful to all concerned.
This is exactly why, after living in Arizona for a few years, my children’s families decided not to move here, and those of us who thought Arizona was a good place to live are preparing to leave.