ALJDEC

01F-0826-ROC · Registrar of Contractors · 2001-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On February 20, 2001, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-1154(A). Gene Jeansonne represented Sun Valley Concrete (the “Complainant”). Jack Northroup appeared on behalf of Northroup Building Company, L.L.C. (the “Respondent”). Evidence and testimony were presented. Based upon a review of the entire record, the undersigned Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Decision.

FINDINGS OF FACT 1. Gene Jeansonne is the Complainant’s owner. Jack Northroup is the Respondent’s qualifying party and managing member. Jeanne Northroup is the Respondent’s managing member.

2. On or about August 30, 2000, the Complainant and the Respondent entered into a written contract (the “Contract”) for the Complainant to pour approximately 1439 square feet of concrete at the Respondent’s home (the “Home”). See Complainant’s Exhibit 2. The Complainant also agreed to install approximately 223 linear feet of footing. Id. Finally, the Complainant agreed to “dig footing, piers, visqueen, forms, rebar & pour, patio also”. Id. 3. Pursuant to the terms of the Contract, the Respondent agreed to pay the Complainant as follows: a. $2,000.00 down b. $2,400.00 on pour; and c. $2,000.00 on completion. See Complainant’s Exhibit 2.

4. On August 30, 2000, the Respondent paid the Complainant the down payment of $2,000.00. On Friday, September 8, 2000, the Complainant poured the concrete at the Home. Mr. Jeansonne submitted an invoice from United Metro showing that the Complainant paid $2,318.00 for the concrete that was installed at the Home. See Complainant’s Exhibit 4. Mr. Jeansonne testified that he poured 1,460 square feet of concrete. Mr. Jeansonne testified that he also installed 227 linear feet of footing. On Monday, September 11, 2000, the Respondent paid the Complainant $2,400.00 for pouring the concrete.

5. Mr. Jeansonne testified that the Complainant was only required to pour concrete for a room addition and a small patio at the Home. However, Mr. Jeansonne testified that the room addition required more concrete than he had anticipated. Mr. Jeansonne testified that he drafted a second contract between the parties using the pink copy of the original Contract. See Complainant’s Exhibit 3. Mr. Jeansonne testified that he used the pink copy because he was out of contract forms. Mr. Jeansonne testified that he deleted the small patio on the second contract. Mr. Jeansonne testified that Mrs. Northroup signed and agreed to the second contract.

6. Mrs. Northroup testified that she never signed or agreed to the second contract. Mrs. Northroup testified that she never saw the second contract until she received a copy of it from ROC Inspector Phil Coscia. The undersigned Administrative Law Judge finds that Mrs. Northroup never signed or agreed to the second contract. The undersigned Administrative Law Judge finds that the only relevant contract in this matter is the above referenced Contract.

7. Problems occurred between the parties after the concrete was poured. Mr. Jeansonne testified that the Complainant was only responsible for pouring concrete for a room addition. See Respondent’s Exhibit B. On September 11, 2000, the Complainant demanded the final $2,000.00 payment. Mr. Jeansonne testified that the Complainant only had to install the four piers at the Home to complete the project. Mr. Jeansonne testified that the Respondent did not have the funds to pay the balance of $2,000.00. Consequently, Mr. Jeansonne testified that the Complainant refused to install the four piers.

8. Mr. Northroup testified that the Complainant was supposed to pour concrete for a room addition, a small patio and a small office. See Respondent’s Exhibit B. Mr. Northroup testified that the total square footage for these three areas was 1,512 square feet. Mr. Northroup testified that the Complainant was also supposed to install 15 piers at the Home. Mr. Northroup testified that the Complainant never completed the small patio, the small office or the 15 piers.

9. Jeanne Northroup testified that Mr. Jeansonne arrived at her Home on Monday, September 11, 2000, requesting an advance on the final payment of $2,000.00 because he had underestimated the cost of the materials to complete the project. Mrs. Northroup testified that she agreed to pay the Complainant $1,500.00 prior to the completion of the project. Mrs. Northroup testified that she also agreed to pay the Complainant the final $500.00 upon the completion of the project. However, Mrs. Northroup testified that she warned the Complainant that it would take a couple of days to apply for and receive a construction draw from the bank. Mrs. Northroup testified that the construction draw was approved on Wednesday, September 13, 2000.

10. On Monday, September 11, 2000, the Complainant memorialized the new payment plan between the parties on an Invoice. See Complainant’s Exhibit 1. The Complainant wrote the following: Total job for room addition and piers and patio $6,400.00 Paid down 8-30-00 $2,000.00 Paid on pour 9-11-00 $2,400.00 $4,400.00 Will pay Wed. 9-13-00 $1,500.00 Balance $ 500.00

Id. Mr. Jeansonne further wrote “will pour piers and fill patio area and office slab.” Id. Mr. Jeansonne circled this sentence and signed the document. Id.

11. Mr. Jeansonne testified that the Invoice is irrelevant because the Northroups never signed the Invoice. However, Mr. Jeansonne is wrong. The Invoice supports the testimony of Mr. and Mrs. Northroup. The Invoice was drafted and signed by Mr. Jeansonne. The Invoice represents the proverbial smoking gun. It represents the scope of work in the original Contract. It shows that the Complainant intended to complete the small patio, the small office and the piers for the remaining $2,000.00.

12. The Complainant never completed the small patio, the small office or the piers. The undersigned Administrative Law Judge finds that the Complainant is not entitled to the balance of $2,000.00.

CONCLUSIONS OF LAW 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990).

2. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent has not violated A.R.S. §32- 1154(A)(7) & (11).

3. The undersigned Administrative Law Judge concludes that grounds do not exist to discipline the Respondent’s Class B-03 license pursuant to A.R.S. §32-1154.

RECOMMENDED DECISION Based upon the foregoing, the undersigned Administrative Law Judge recommends that the entire Citation and Complaint in Case Number 01-0826 be dismissed.

Done this day, March 6, 2001.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of March, 2001, to:

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

By ___________________________

-----------------------

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