ALJDEC decisions subject to certification as final

2017A-2148-RFA-ROC · Registrar of Contractors · 2018-06-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jason Lee Garrett,

COMPLAINANT,

v.

Chitwood's Country Oak Cabinets Inc. ,

License No: 143375

RESPONDENT.

No. 2017A-2148-RFA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 25, 2018

APPEARANCES: Jason Garrett, Complainant, Earl Chitwood, Respondent,

Jessica Ortiz, Residential Contractors Recovery Fund Examiner, John Tellier, Esq., Asst. Attorney General, attorney for Residential Contractors Recovery Fund.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

On or about December 26, 2017, Jason Lee Garrett filed his Claim for recovery from the Arizona Residential Contractors Recovery Fund (“the Fund”) to recover $30,000.00, the maximum allowable payout allowed by law. Chitwood's Country Oak Cabinets Inc. (“CCOC”), license number 143375, is listed on the claim form as the contractor who is named on the underlying ROC Complaint.

The Claim form represents that Jason Lee Garrett is the homeowner and injured person. Jason Garrett signed and printed his name on the Verification section of the Claim form attesting that “I verify that the foregoing is true and correct to the best of my knowledge.”

The Claim was directed to Fund Examiner Jessica Ortiz for investigation and review. Upon investigation, Ms. Oritiz conducted a search of the Coconino County Recorder’s Office files for the property address listed on the Claim form. Ms. Ortiz determined that the Claimant, Jason Garrett, is not now the owner of the real estate listed on the Claim form nor was he the owner of the real estate at the time Mr. Garrett represented that the contract for the underlying Complaint was executed. Moreover, Mr. Garratt was not the owner of the Claim Property when CCOC performed the work and committed the statutory violations that injured the actual owner.

On March 15, 2018, the Fund issued its Notice And Order Of Recovery Fund Ineligibility

Attached to the Claim Form, in support of Mr. Garrett’s right to payout, is a photocopy of a purported Quit Claim Deed dated July 15, 2014 The face of this purported deed states it transfers all rights of Jason Garrett to the real estate located at 625 Trout Springs Road, Forest Lakes, Arizona 85931 [hereinafter the “Claim Property” to Jason Garrett. The document shows the on its face that it was signed before a Notary Public and a witness. The document shows a file mark from the Coconino County Recorder of 1:52 PM, July 17, 2014 number 3696892. This document does not appear in the official record of the Coconino County Recorder’s Office in the chain of title for the Claim Property. On the face of the document, it appears to have been materially altered inasmuch as the name “Jason Garrett,” Grantee is typed onto the document in a type font that differs from all other type face on the document. With the exception of the name “Jason Garrett” as grantee, all the other type faces of the document are the same.

Ms. Ortiz testified that in her search of the title records for Coconino County real estate, a Warranty Deed was filed on December 19, 2005 in the Coconino County Recorder’s Office for the Claim Property. This Warranty Deed appears in the Claim Property chain of title. The Claim Property was conveyed from Marvin L. Holt and Geraldine B. Holt, husband and wife to Jason Garrett and Natalia Garrett, husband and wife as Grantee.

After the Warranty Deed, the next and last record in the chain of title to the Claim Property is a Quitclaim Deed filed in the Coconino County Recorder’s Office for the Claim Property filed on July 17, 2014. The Grantor is Jason Garrett and the Grantee is LSO LLC. The Quitclaim Deed shows a file mark from the Coconino County Recorder of 1:52 PM, July 17, 2014 number 3696892. This file mark is exactly the same file mark and document number filed at exactly the same date and the same exact time as the purported and altered Quitclaim Deed photocopy the Claimant attached to his Fund Clam to support his right to payout from the Fund.

Mr. Garrett testified that he has “no clue” who or how the July 15, 2014 Quitclaim Deed became attached to his Claim Form. He denies any knowledge of it whatsoever.

Mr. Garrett admits that he created the documents related to the Claim Form and filed them himself. He admits that he also personally created and filed the documents creating the LSO LLC. Mr. Garrett stated that at the time of the contract with the underlying contractor, CCOC, he was not married. Mr. Garrett also testified that at the time of the filing of the Claim Form in this case, he was not married. Mr. Garrett testified that after the contract was entered into with CCOC, Mr. Garrett married Stephanie Ortiz. Since April 17, 2014, LSO, LLC’s filings with the Arizona Corporation Commission show Ms. Ortiz has been the person listed as the sole member and 100% owner of LSO, LLC. Notwithstanding, Mr. Garratt argues the because Arizona is a Community Property State and that he is now married to the Member/Manager and 100% owner of LSO, LLC, he an owner of the Claim Property as matter of law and, therefore a “person injured” under A.R.S.§32-1131(3). The Claim property in this case was transferred to LSO, LLC before the underlying CCOC contract and before CCOC performed the work and committed the statutory violations that are alleged to have injured the owner

The preponderance of the credible evidence shows that at all times relevant to this Claim, the Owner of the Claim Property is LSO LLC, a member managed LLC that has been and is wholly owned by Stephanie Ortiz

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

Complainant bears the burden of proof and must establish eligibility to recover from the Fund by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

A.R.S. § 32-1131(3) defines a “person injured” who is eligible to recover from the Fund as “any owner of residential real property which is classified as class three property under section 42-12003 and which is actually occupied or intended to be occupied by the owner as a residence . . . .” [Emphasis added].

“In applying a statute, its words are to be given their ordinary meaning unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.”

The Arizona Court of Appeals has determined that the times when the owner of residential property must meet the requirements of A.R.S. § 32-1131(3) to be eligible to recover a payout from the Fund are: (1) When the owner enters the contract with the contractor for the work to be performed, and (2) When the contractor performs the work and commits the statutory violation that injured the owner.

Complainant provided no evidence that when the CCOC contract was entered into that Mr. Garrett was the Claim Property owner.

Complainant provided no evidence that Mr. Garrett was the Claim Property owner when CCOC contracted to perform the work or when CCOC committed the statutory violations that injured the actual owner of the Claim Property.

By a preponderance of the evidence, it is proven that at the time CCOC entered into its contract with Mr. Garrett and when CCOC performed the work and committed the statutory violations, the true and actual owner of the Claim Property was and is LSO LLC, not Jason Lee Garrett, Complainant.

Since Jason Lee Garrett has failed to prove by a preponderance of the evidence that he was the owner of the Claim Property either at the time CCOC entered into its contract with Mr. Garrett or when CCOC performed the work and committed the statutory violations, Jason Lee Garrett has failed to meet his burden of proof that he is a “person injured” as required by A.R.S. § 32-1131(3).

Complainant, Jason Lee Garrett, did not establish that he is eligible for an award from the Fund.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the Registrar’s Final Order, Case Number 2017A-2148-RFA-ROC be dismissed.

FURTHER IT IS RECOMMENDED a finding that the Registrar’s March 15, 2018 Notice and Order of Recovery Fund Ineligibility is clearly supported by the evidence presented and should be confirmed.

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 WILL BE 40 DAYS FROM THE DATE OF THAT CERTIFICATION.

Done this day, June 8, 2018

/s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors