ALJDEC

00F-M1524-ROC · Registrar of Contractors · 2000-08-15

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pursuant to due notice, this cause came on for a formal hearing on August 15, 2000, in Phoenix, Arizona, before Administrative Law Judge Neal H. Jordan, Office of Administrative Hearings.

APPEARANCES For Complainant: Nancy Stevens, Appearing pro se.

For Respondent: Default in Attendance at Hearing.

FINDINGS OF FACT Based upon all the evidence of record, the following findings of fact are determined: On March 28, 2000, Complainant and Respondent entered into a written contract (the “Contract”) whereby Respondent agreed to install new roofing on two buildings owned by Complainant for a consideration of $4,788.00. The two buildings are variously described as the East and West buildings. The work for installing a new roof on the West building has been satisfactorily completed. The work for installing a new roof on the East building located at 2019 E. Apache Blvd. has not been initiated or completed according to the Contract. 5. Complainant indicates in her testimony that Respondent installed new roofing materials on the roof of a neighboring building not owned by her for which Respondent claims was a mutual mistake of fact. 6. Although Complainant has demanded that Respondent perform according to the Contract, Respondent has failed and refused to complete the work specified on and for the East building.

CONCLUSIONS OF LAW The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S. §41-1092 - 1092.12 (1998). The burden of proof, unless otherwise provided by law, is on the party asserting a claim, right, or entitlement in a contested case or appealable agency action. A.A.C. R2-19-119(B)(1); See also Utah Construction Company v. Berg, 68 Ariz. 285, 205 P.2d 367 (App. 1949). The standard of proof in such matters is that of the preponderance of evidence. A.A.C. R2-19- 119(A); See also Shelby School v. Arizona State Board of Education, 192 Ariz. 156, 962 P.2d 230 (App. 1998); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is true a contract may be rescinded on the grounds of a mutual mistake provided that the alleged mistake is premised as the basic assumption on which both parties made the contract. Emmons v. Superior Court, 192 Ariz. 509 (App. 1998). It is likewise true that the party seeking to rescind the contract based upon mutual mistake must show by clear and convincing evidence that the agreement should be set aside. Id. at 510. Respondent’s absence and, therefore, its default at the hearing precludes any finding that a mutual mistake of material fact existed in this case. This is particularly relevant when the law requires that for Respondent to prevail on a claim of rescission that it must show by “clear and convincing evidence” the Contract should be set aside. This evidence was not forthcoming. In this case, Respondent’s failure to attend the hearing permits an inference that a mutual mistake did not form the fundamental assumption on which both parties relied and that when the roof was installed on the neighboring building, the mistake was unilaterally that of Respondent. In such a case, rescission will not apply and the Contract will remain enforceable according to its terms.

RECOMMENDED ORDER In view of the foregoing, it is recommended, commencing on the effective date of the Order entered in this matter, that the Class 42 license of Respondent shall be suspended until the Registrar of Contractors receives credible written proof that Respondent has accomplished appropriate and effective work in accordance with the Contract by completing the roofing installation on the east building owned by Complainant. It is further recommended that if Respondent accomplishes the above described corrective work on or before the effective date of the Order entered in this matter, then the above license suspension shall not take place. It is further recommended, as an express condition for the next renewal of Respondent‘s license, notwithstanding the existence or absence of any uniform assessment by the Registrar of Contractors then in effect, Respondent shall be required to pay an additional $150.00 into the Contractors’ Recovery Fund, as authorized by A.R.S. §32-1132(B). Failure to pay such additional deposit into the fund shall result in the rejection of any renewal application and a suspension of Respondent’s license until payment is made and the renewal issued.

ENTERED this day, August 15, 2000.

______________________________________ Neal H. Jordan Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors Michael P. Goldwater Attn: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826