ALJDEC decisions subject to certification as final

08F-G0278-ROC · Registrar of Contractors · 2008-08-14

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 14, 2008 APPEARANCES: Complainant: Vicki Saunders appeared, pro per. Respondent: Joshua Nepa, member and qualifying party, appeared and was represented by counsel, Everett Butler. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ The matter convened for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated July 2, 2008. On August 13, 2008, the eve of the hearing, Respondent, by and through counsel, filed a Memorandum Re: Res Judicata/Issue Preclusion (“memorandum”) wherein were set forth a recitation of “operative facts” and legal argument regarding the doctrines of res judicata and issue preclusion. Prior to convening the hearing, the undersigned addressed the subject memorandum with the parties. At that time, it was represented by Respondent counsel that unsuccessful efforts had been made on August 13, 2008 to provide Complainant with a copy of the memorandum. As a result, a copy of the memorandum was provided Complainant prior to the hearing. In addition, this tribunal inquired of Respondent counsel as to his intentions regarding the memorandum. Counsel advised that he wished to use it as the basis for a motion to dismiss the instant complaint on res judicata and issue preclusion grounds. Given this assertion, Complainant was provided the opportunity to further review the memorandum and discuss her response thereto with her husband who was also present. Complainant declined such option. The matter then proceeded on the record for argument regarding Respondent’s referenced motion to dismiss. Respondent counsel moved to dismiss the instant complaint on the basis that the issues to be addressed at the hearing herein, i.e., those regarding Respondent’s work on Complainant’s air conditioning unit and the charges therefore, had been previously litigated and/or the parties had an opportunity to litigate such issues at a trial in Lake Pleasant Justice Court on October 22, 2007 in case number CC2007159715 based on a complaint filed by Respondent herein on August 17, 2008. As a result of such trial, on October 22, 2007 the Honorable William Fellows entered judgment in Respondent’s favor for the amount claimed due plus court costs. Respondent counsel then argued that the doctrines of res judicata and issue preclusion apply to the instant matte which should be dismissed. In response, Complainant acknowledged that the issues asserted in her Registrar of Contractors complaint and answer to Respondent’s complaint in the Lake Pleasant Justice Court action were identical and had been litigated in that forum. Complainant further stated that there were no other issues arising from her complaint and/or the Registrar of Contractors’ Citation and Complaint issued as a result thereof that would be litigated at this hearing. Given the foregoing, IT IS RECOMMENDED that the entire Citation and Complaint in Case No. G08-0278 be dismissed based on the doctrines of res judicata (see Better Homes Const., Inc. v. Goldwater, 203 Ariz. 295, 298, P.3d 1139, 1142 (App. 2002) and In re General Adjudication of All Rights to Use Water In Gila River System and Source, 212 Ariz. 64, 69, 127 P.3d 882, 887 (2006) (quoting Nevada v. U.S., 463 U.S. 110, 129-130, 103 S.Ct. 2906, 2918 (1983)) and issue preclusion (see Hullett v. Cousin, 204 Ariz. 292, 297-298, 63 P.3d 1029, 1034-1045 (2004)).[1] Done this day, August 14, 2008.

______________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By __________________________ ----------------------- [1] In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

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