Vacate - originally document type was Order - changed during audit

04F-2458-ROC · Registrar of Contractors · 2005-03-30

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

This matter first convened for hearing June 13, 2004. At that time, the parties did not conclude the presentation of evidence and the matter was scheduled for further hearing on September 15, 2004. Subsequently, Respondent filed a Motion to Continue (“Respondent’s first motion”) the September 15, 2004 hearing dated due to counsel’s professional and personal calendar conflicts as a result of which a further hearing was set for November 8, 2004. On September 27, 2004, Respondent filed a motion to continue the November 8, 2004 hearing (“Respondent’s second motion”) due to Respondent’s out-of-state employment schedule, familial obligations and Complainants’ reported denial of Respondent’s Request to Inspect Real Property. Complainants filed no objection to the second motion. The undersigned granted said second motion on November 4, 2004 and set the further hearing date for January 12, 2005. The further hearing in this matter convened January 12, 2005 without Complainants present at which time Respondent commenced the presentation of its case-in-chief.[1] After approximately seven minutes of testimony, the hearing was interrupted by an administrative assistant of the Office of Administrative Hearings who provided the undersigned with a one-page letter dated January 12, 2005 which had just been filed via facsimile by Complainants. Therein, Complainants requested a continuance of the hearing (“Complainants’ first motion”) due to their having to attend to Mrs. LaBonte’s 92 year old mother who took ill suddenly the previous evening. Though counsel for Respondent preferred to proceed with the hearing, Respondent did not formally object to Complainants’ first motion. After conferring with Case Management, the undersigned determined that the hearing could continue on January 18, 2005. The matter was rescheduled for further hearing on that date pursuant to this tribunal’s order dated January 12, 2005. Complainants were also notified of the new hearing date by way of voice mail left by an Office of Administrative Hearings administrative assistant on that date. Later on January 12, 2005, after receiving the afore-mentioned voice mail, Complainants telephoned the Office of Administrative Hearings and advised that they could not attend the further hearing on January 18, 2005 due a previously scheduled vacation and verbally requested a continuance (“Complainants’ second motion”). Due to the short period of time until the January 18, 2005 hearing date, the undersigned directed an Office of Administrative Hearings administrative assistant to telephone Respondent’s counsel to advise her of Complainants’ verbal second motion and of the need to file a response thereto by January 14, 2005. On January 13, 2005, Respondent filed an Objection to Complainants’ Request for a Continuance. By Order dated January 14, 2005, the undersigned granted Complainants’ second motion to continue and the matter was scheduled for further hearing on March 23, 2005. On March 22, 2005, Complainants filed a correspondence with the Office of Administrative Hearings whereby they advised this tribunal they could “no longer proceed with this hearing” and “no longer wish[ed] to proceed in this case.” Complainants failed to provide Respondent and/or its counsel with a copy of this correspondence. On March 23, 2005, Respondent and counsel appeared for the further hearing at which time the undersigned provided them with a copy of Complainants’ March 22, 2005 letter. In response, Respondent verbally moved to have this matter dismissed due to its inability to complete cross examination of Valenzuela and Complainants as well as Complainants’ failure to fully prosecute their case. Upon review and consideration of all the facts, IT IS RECOMMENDED that Respondent’s verbal motion to dismiss be granted. Done this day, March 30, 2005.

_________________________ Brian E. Smith Administrative Law Judge

Copy mailed this ____ day of ______________, 2005 to:

Israel G. Torres, Director Registrar of Contractors ATTN: Jennifer Brown 800 West Washington, 6th Floor Phoenix, AZ 85007

Susan V. Myers, Esq. Gammage & Burnham N. Central Ave., 18th Floor Phoenix, AZ 85004

Clear Creek Development 6620 W. Montego Glendale, AZ 85306

William & Donna Labonte PO Box 14911 Scottsdale, AZ 85267

By _________________________

----------------------- [1] During the first day of hearing, Complainants called as a witness Gustavo Valenzuela (“Valenzuela”) who was under cross examination by Respondent’s counsel when the hearing was adjourned. Due to Complainants’ failure to appear at the January 12, 2005 hearing date, Respondent was permitted to proceed with the presentation of its case-in-chief until this tribunal received Complainants’ first motion to continue.

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