ALJDEC decisions subject to certification as final

06F-A0526-ROC · Registrar of Contractors · 2007-03-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On 27 March 2007, Respondent filed a MOTION TO DISMISS AND MOTION TO VACATE HEARING SCHEDULED FOR MARCH 6, 2007 of the above captioned Case, which Complainant opposed in it’s response received 5 March 2007. Respondent’s Motion points out that the contractual payment issue Complainant sought to be heard in the above captioned case had already been heard on 2 February 2007 in the Yavapai County Justice Court (Verde Valley Precinct) by Judge William Lundy. Judge Lundy’s decision in that case (Case No. CV2006-4847) was issued 9 February 2007 for the Respondent (Plaintiff) in the amount of $3763.76 and that the Complainant (Defendant) take nothing by way of her counterclaim in the case. An examination of the file in the instant case compiled by the Registrar of Contractors reveals that the substance of Complainant’s complaint is substantially similar, if not identical, to the issues adjudicated by Judge Lundy in his decision, and that the parties are the same. The doctrine of “res judicata” prevents relitigation of the same cause of action. Yavapai County v. Wilkinson, 111 Ariz. 530, 534 P.2d 735 (1975). The doctrine rests upon the ground that the party to be affected, or some other with whom the party is in privity, has litigated, or has had an opportunity to litigate, the same matter in a former action in a count of competent jurisdiction and should not be permitted to litigate it again to the vexation of his opponent. Lauderdale v. Industrial Commission, 139 P.2d 449, 60 Ariz. 443 (1943). The doctrine is applicable in the instant case. Complainant had an opportunity to litigate in the Yavapai Justice Court the issues she wishes to litigate in

the instant case. Res judicata prevents that. The decision in the Yavapai Justice Court case is binding in the instant case. In light of the foregoing, dismissal of this case is appropriate and warranted. Accordingly, upon review and consideration, with good cause appearing, IT IS ORDERED that Respondent’s MOTION FOR DISMISSAL is hereby GRANTED, and that the hearing in this case scheduled to convene on 6 March 2007 be vacated from the calendar of the Office of Administrative Hearings, and IT IS FURTHER ORDERED that this matter be remanded to the Registrar of Contractors with the recommendation that the Registrar issue an ORDER DISMISSING THE COMPLAINT. Done this day: March 6, 2007.

_________________________________ Maurice McWhirter Administrative Law Judge

Copy mailed this ____ day of ____________, 2007 to:

Islas Masonry, Inc. P.O. Box 383 Cottonwood, AZ 86326

Julie Leader Bell Rock Plaza, Ste A PMB 150 Sedona, AZ 86351

Fidelis V. Garcia Registrar of Contractors Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

Scott A Miskiel, Esq Post Office Box 3222 Cottonwood, AZ 86326

By ___________________________

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