ORDER
2023A-01712-CHC-ROC · Registrar of Contractors · 2023-09-12
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Michael Sasse ,
COMPLAINANT
v.
R.P.W. Creative Contracting LLC
License No. ROC 334678,
RESPONDENT
No. 2023A-01712-CHC-ROC
ORDER
Respondent’s Motion for Reconsideration of Order Granting Motion to Exclude Testimony of Additional Witness is denied.
On or about February 10, 2023, Complainant submitted a complaint to the Registrar of Contractors (ROC) alleging abandonment of contract. Included in their complaint was an explicit allegation of abandonment of competition of the cabinets among several other allegations. In the complaint Exhibit A details the scope of work and contract between the parties, which includes the cabinets. Exhibit B provides a summary of the status of the cabinets listing them as “NS” or “not started”, in exhibit C the list of missing and damaged items includes the cabinets.
On June 15, 2023, Complainant submitted their Prehearing Disclosure Statement which included, among other things, a witness list which included Greg Good. Said witness was expected to testify regarding the percentage of competition of the work done by Respondent.
At the hearing on June 23, 2023, Investigator Brandon Smith testified, among other things, the status of the current condition of the cabinets.
At the hearing on July 17, 2023, Complainant called their witness Mike Good, to testify as to the percentage of completed work and the value of said work. Respondent objected to the relevance of Mr. Good’s testimony as it would be redundant because of Investigator Smith’s testimony. Complainant responded to the objection by noting Mr. Good would be testifying as it pertains to their restitution and the value of the work not the current condition or the condition at the time of the inspection. This court granted the objection as it pertains to redundant testimony but allowed testimony regarding Complainant’s restitution claim, percentages of completed work, and value of said work.
On, August 23, 2023, Respondent filed a Supplemental Prehearing Disclosure Statement in which they intended to call Craig Kinser as a subject matter expert to rebut Complainant’s witness Mr. Good’s testimony.
On September 1, 2023, Complainant submitted Motion to Exclude Testimony of Additional Witness on the grounds that the disclosure deadline was two months prior and therefore absent good cause the witness ought to be excluded.
On September 7, 2023, this court granted Complainant’s Motion to Exclude Testimony of Additional Witness.
On September 11, 2023, Respondent submitted a Motion for Reconsideration claiming good cause for failure to disclose was due to the fact that this court allowed Complainant’s witness to testify, over Respondent’s objection, regarding their restitution claim associated to the cabinets.
The implication of Respondent’s argument is they were unaware of any such possibility of the restitution testimony, which must be rebutted by the proposed witness; however, Respondent was made aware of the cabinet issue several times prior to this court’s ruling at the July 17, 2023, hearing. It should not have been a surprise that Complainant would present evidence regarding the cabinet issue because in the February 10, 2023, complaint they detail the cabinet issue several times; furthermore, Investigator Smith’s job site inspection and subsequent report discussed the cabinet issue, and finally Complainant timely submitted their witness list in which they told Respondent that Mr. Good would testify as to the “estimate of the percentage completion and completion of the work for Draws #1-3.” Notice of the cabinet issue was given to Respondent prior to this court’s ruling regarding the testimony of Mr. Good. Because Respondent has failed to provide good cause for their untimely submission, the Motion for Reconsideration is denied.
Done this day, September 12, 2023.
/s/ Brian Del Vecchio
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Cindy Casaus
Interim Director
Registrar of Contractors
c/o Legal Department
1700 W. Washington Street, Suite 105
Phoenix, AZ 85007
[email redacted]
Michael Sasse
[email redacted]
Ellen B. Davis
Henze Cook Murphy, PLLC
[email redacted]
[email redacted]
W. Pierce Sargeant IV, Esq
[email redacted]
By: OAH Staff