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P. Simmons
P. Simmons, Attorney
Category: Legal
Satisfied Customers: 26508
Experience:  16 yrs. of trial experience
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I filed a lawsuit in AZ small claims court with the following: The

Customer Question

I filed a lawsuit in AZ small claims court with the following:

The defendant owes me $2500 for the following reasons:

The defendant should be penalized for failing to provide the copies of the board meeting minutes requested per A.R.S. 33-1805, and for threatening with legal action that invoking A.R.S. 33-1805 constituted office harassment.

The case is transferred to Justice Court as the defendant made a motion for dismissal and then selected for Mediation.

The mediation requires me to complete the Disclosure Statement:
1. What are the facts that support your claim.
2. Describe the damage(s) and how you calculated the dollar value of the damages claimed.
3. What law supports your claim(s)?

I am really stumped with (3) as I cannot find any applicable code in Az Revised Statutes.
http://www.azleg.gov/ArizonaRevisedStatutes.asp
http://www.azleg.gov/ArizonaRevisedStatutes.asp?Title=13

Also, I arrived at the $2500, the maximum allowed in Small Claims in AZ, for mental duress with the specter of a lawsuit.

I greatly appreciate any help.
Submitted: 1 year ago.
Category: Legal
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an Arizona attorney with over 12 years experience. Hopefully I can help you with your legal question.

The court is asking you about "damages"

You are asking for $2.5K (jurisdictional max for small claims)...how is it you arrived at this figure?
Customer: replied 1 year ago.

(Sorry for the delay. Am Express security flagged me with the charge.)


 


I arrived at the $2.5K figure for letting me go through mental duress in considering the legal cost in case of I am sued.

Expert:  P. Simmons replied 1 year ago.
Thanks

That is going to be tough. Do you have medical evidence to support mental duress? Do you have a doctor who can discuss how this has impacted you emotionally?
Expert:  P. Simmons replied 1 year ago.
What you describe, it sounds like your HOA is not following the rules

And you can certainly sue them for this.

But you have to prove up “damages”

Example...say that based on their not following the rules, you incurred a late penalty for 3 months at $50/mo. Then the damages are easy...$150 (from 3 x $50)

Or say that based on the HOA not following the rules, you can show (with an appraisal) that your property value has dropped $2K. THen you can sue for that amount.

But you can not sue for “mental damages” unless you can prove it up.

You can not simply claim the amount...you would need to have a doctor testify as to how this has impacted your psyche.

So, to answer the questions

1. What are the facts that support your claim.

Easy...you list of what the HOA did that violates the rule (the ARS)


2. Describe the damage(s) and how you calculated the dollar value of the damages claimed.

This is the tough one. IF all you have is emotional damages, you need evidence to support it...including how you plan to prove it up. So if that is the objective, you need to obtain medical evidence to support the claim


3. What law supports your claim(s)?

The law is easy...that is the ARS you cite that governs HOA recording keeping. You simply cite it


Let me know if you have more questions...happy to assist if I can
Customer: replied 1 year ago.

Looks like you did not get my last reply:


 


I asked if the perjurious statements in the Defendant's Answer could be used as damages. Could you respond to this?


 

Expert:  P. Simmons replied 1 year ago.
Sorry...that did not come through

No...the defendant lying in a response is not an independent grounds for a claim. There is no ARS that would support this

Now...if they are lying in their pleading? You can, and should, point this out in your response. Point out to the court where they lying...then at the hearing, present evidence to support your position.

That can help you win the case

But it is not an independent basis for damages.

Customer: replied 1 year ago.

The perjurious statements are made in the signed, notarized affidavit. Is that equivalent to the "pleadings"?


 


Another I mentioned in the 'not come through' reply was the fact that the threatened legal action was not made. Is that not a ground asking for damages?


 

Expert:  P. Simmons replied 1 year ago.
Correct...if they are making statements to the court in response to your case, that is part of the pleadings.

But can you tell me what you mean by

the fact that the threatened legal action was not made.

What do you mean by that? What happened?

Customer: replied 1 year ago.

The defendant wrote:


 


"Continually requesting these will be taken as harassment and we will pursue legal channels if necessary to make you stop. You will be responsible for any legal fees involved in this process."


 


"Your continued requesting of the same documents is wasting valuable time and resources in the association office. If you do not cease and desist these activities immediately you will be charged for the time you waste of the office staff and will also face the association placing workplace harassment injunction upon you. You will also be responsible for all court costs and attorney fees associated with these actions."


 


 

Expert:  P. Simmons replied 1 year ago.
Thank you.

That is not a basis for damages.

That is an example of a "cease and desist" letter. They are telling you to stop and warning you that if you do not, they will consider that "harassment" and attempt to pursue damages.

Of course, they have the same hurdles that you do...they have to prove damages. Just claiming that you are harassing is not evidence of harassment...they would need to prove how your communications with them is a violation of Az law.

But to answer your question, that language is not, in and of itself, basis for a claim.

You can not sue them for threatening to sue you


Sorry to have to bear bad news.
Customer: replied 1 year ago.

So making a threat by itself is ok, but what about not actually carrying out the threat?


 


In some states it is illegal to threaten legal action if no follow through is made.


 


It's considered undue duress.


 


Az is not one of the states?


 

Expert:  P. Simmons replied 1 year ago.
Sir, I am an Arizona attorney, but not sure what law you are referring to.

It is not a violation of any Arizona law (either case law or statute) to threaten someone with legal action if they do not do or stop doing a certain action. As I mention, this is referred to as a "cease and desist" letter.

The letter itself carries no legal weight...only a court can sanction a party.

But it is not a crime to send a cease and desist letter.

Again, I am sorry to have to bear bad news...but that letter you describe is not an independent cause of action. You can certainly reference it in your case under ARS 33-1805. If they are violating ARS 33-1805 and you can prove it, then you have a great case...and their "cease and desist letters have no impact on you at all...but may serve to show the court that they are trying to thwart your attempts at justice


Customer: replied 1 year ago.

"If they are violating ARS 33-1805 and you can prove it, then you have a great case...and their "cease and desist letters have no impact on you at all...but may serve to show the court that they are trying to thwart your attempts at justice."


 


The Defendant not only acknowledges it and then goes further impuning me for asking the documents:


 


In the Answer:


 


"Documents which either were not prepared and maintained in the past and/or have been lost or destroyed or simply cannot be found cannot be made available to Plaintiff or anyone else."


 


"


Plaintiff either does not or refuses to comprehend that Defendant's current board does not have much of what he asks for and that which it does have has been provided."


 


(Not all are provided. That's the perjury.)


 


 

Expert:  P. Simmons replied 1 year ago.
Got it

Then you can raise this with the court. If they are lying to the court in their response, the court can take them to task...and can impose sanctions, including criminal sanctions, for violating the courts order.

Basically, if they are lying in their response, that is not a separate cause of action...but it IS evidence you can point to when you get in court.

Customer: replied 1 year ago.

I am in Mediation. How do I go about raising the issue in the Mediation's Disclosure statement?


 


"Then you can raise this with the court. If they are lying to the court in their response, the court can take them to task...and can impose sanctions, including criminal sanctions, for violating the courts order."


 


What's the above "courts order"?


 


 

Expert:  P. Simmons replied 1 year ago.
Sir I am going to opt out and allow another attorney to help you...it seems you need more help then I can provide. No need to respond, another expert will step in here if they can assist you

I wish you the best of luck
Customer: replied 1 year ago.

Thanks for the help you provided. Greatly appreciate it. Do I get to rate you?


 


I got a message that another attorney is taking over(?) and will have request for information, but so far no communication.


 


Is this the end? Do I terminate the session with JustAnswer?


 


 

Expert:  P. Simmons replied 1 year ago.
Sir there is no need to rate me, since if you do your deposit will be converted (and the question would effectively be closed)

If some other attorney takes it and you are happy with their answers, you can certainly rate them.

I will say that it may be tough to find a lawyer to take this...there are rules that limit what information we (as lawyers) can provide in a forum like this...what you really need is to pay a lawyer to assist you as a lawyer (as opposed to as an expert online).

But it may be another lawyer will engage.

Best of luck to you
Customer: replied 1 year ago.

Are you allowed to be my lawyer?


If so, what does it take to engage you?


 


 

Expert:  P. Simmons replied 1 year ago.
Hey sir, I can not...that is, I can not be your lawyer since that would violate the terms of service of this website.
Customer: replied 1 year ago.

That's what I suspected.


 


Could we conclude our session by tidying up some loose ends?


 


To prove the damages, I will use the charges incurred when my water was shutoff ostensibly based on the board adopted water shutoff policy. To verify the policy was indeed adopted, I asked for the minutes. It is now clear there is no minutes, that is, there was not even board meetings because there are no record of meetings. My HOA total charges are I believe about $2500 for the water shutoff related issue.


 


The law about record keeping is ARS 10-11601 - Corporate Records.


 


The only loose point is how to handle the purjury issue. Should I make a "supplement" to the disclosure? Are you not allowed to give me hints on this point?


 


There is another purjury. My document request was made in my letter of "1/31/2012". Defendant (Manager) read "1/31/2012" as "January 12, 2012", and declared that January 12, 2012, letter could not be found, and use that as pretext launched into my document request in general. There are others! Should I enumerate all these in Supplement?


 


Could you recommend a lawyer I can engage for conference tomorrow?


 


 


 


 


 

Expert:  P. Simmons replied 1 year ago.
I can not recommend a lawyer...again, it would violate the rules of this forum (they will not let me personally represent contacts made here nor make referrals) but I can point you here

http://www.azbar.org/FindaLawyer

As a good resource for AZ lawyers.

Happy to address your additional questions


You say

"To prove the damages, I will use the charges incurred when my water was shutoff ostensibly based on the board adopted water shutoff policy. "

That is great. Get proof...that is, be able to bring in proof to the court about the total. Show records of the exact amount. If you can show you incurred a cost based on the boards violation of A.R.S. 33-1805? That is what you are shooting for.

You want to be able to link the violation of the statute, by the defendant, to financial harm suffered by yourself. If you can do that? Then you have "damages". I mention bringing proof, since you need to prove up your damages...so if you can show invoices or some record to give the exact dollar amount? That is what the court is looking for.


You are using the term perjury... technically that is not accurate. Perjury is a sworn statement, in court, that is a lie. What you are describing, if I read the question correctly, is the defendant is making fall assertions in their pleadings. That is not the same as perjury. I would address it with a response to the court that details the errors or omissions and why you believe they are false. If you can show they are lying? That is very helpful for your position (helps destroy their credibility) but do not overstate your case...in that regard, best not to call it something it is not.

Less is more. Pick the major points they are lying or mistaken over...no need to "get into the weeds" if you can avoid it...if you have them on a few major points that they are lying? That is typically all you need.











P. Simmons, Attorney
Category: Legal
Satisfied Customers: 26508
Experience: 16 yrs. of trial experience
P. Simmons and 20 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

"Less is more. Pick the major points they are lying or mistaken over...no need to "get into the weeds" if you can avoid it...if you have them on a few major points that they are lying? That is typically all you need."


 


I will bear that in mind.


 


Thanks for your hand-holding. Your input was a big load of relief.


Going to rate you tp conclude this. (If you have something to advise, please don't hesitate. <g>)


 

Expert:  P. Simmons replied 1 year ago.
Sir, you have a fight in front of you.

The acronym KISS springs to mind...(keep it simple...).

If you have the cards...if you have them for violation of the ARS and lying to the court, then undersell, not oversell your case. So many lawyers make this mistake...They want to state over and over how they are correct. They fail to understand the judge is (typically) very smart. The judge will get it (most of the time)...no need to pound him or her over the head with it. Make your points, move on. Let the judge do their job...they enjoy that...that is the best way to manage a case.

Customer: replied 1 year ago.

(Appreciate that you allow me to continue.)


 


"Less is more"


 


"If you have the cards...if you have them for violation of the ARS and lying to the court, then undersell, not oversell your case."


 


Many simple document requests are not complied with. For example, the request for (1) TEP statements for Mar and Aug of 2012, and (2) payments to Cox in Dec 2012 are not even responded to.


 


And then there is the request for the minutes when a board member was removed. The board meeting was not a regular, scheduled meeting, that is, unannounced, closed meeting. This is not complied with. The reason for my request is that a board member was removed "illegally". Our By-Laws allows the board to remove a board member if the member was absent from three (3) "consecutive" meetings. That board member was absent for two previous meetings, but then present at the third board meeting. Thus, the member could not be removed. But the member was removed and the minutes for the third board meeting -- posted on the Web site -- has "Absent" notation next to the member's name in the listing of board members -- to meet the three consecutive requirement. That "Absent" notation is doctored/forgery. In the body of the minutes, there are two references that the member was present at the meeting.


 


Should I bring up the 'illegal' board removal?


 


 

Expert:  P. Simmons replied 1 year ago.
Should you raise this issue about the removal from the board?

Does it help your case?

No reason to raise this unless it is relevant.

But if it supports your case...if, for example, it is somehow linked to the failure to follow the ARS that you are alleging they have not complied with, or if it is going to be used to show that the defendant is not being honest in its answers to the court? Then by all means.

You want to craft your case so that the court can see the points you need them to adopt to get the result you are asking for.

So if this is not related to your case, but merely more bad evidence on the part of the board? I would not raise it initially. I would keep it (since it could become relevant in the future as the case progresses)

but if it is relevant to your case? Then by all means bring this up, including having the removed member testify at the hearing.


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