ALJDEC

97F-2357-ROC · Registrar of Contractors · 1997-12-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: This matter came on for hearing over the course of three days, concluding on November 26, 1997. APPEARANCES: Complainant was represented by her attorney, Jeffrey Proper, and Respondent was represented by its attorney, Stephen Myers. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. As part of new home construction, Complainant contracted directly with Respondent for construction and installation of custom interior cabinetry. Complainant alleges certain deficiencies in the construction of the cabinetry and same are discussed in the findings below. 2. At the conclusion of the hearing, Complainant specifically averred that it was withdrawing any complaint regarding the absence of a specified piece of cabinet molding and the manner in which the cabinet doors open in the area directly adjacent to the kitchen range. Thus, no findings shall be made on these issues which were enumerated on the filed complaint and discussed at the instant hearing. 3. Complainant contends that she did not receive the proper style doors and drawers for the cabinets. It was undisputed that the cabinets built by Respondent and installed in Complainant’s home have over-lay doors and drawers and not inset drawers and doors. In this regard the following salient facts were adduced at the hearing and are important to note: a. The contract negotiation between these parties regarding the cabinets occurred over the course of almost one year, commencing in October 1995 and concluding on or about mid-July 1996. b. Although Respondent prepared several written proposals or “quotes” for the construction of the cabinets and the first two, prepared in October 1995 reference inset doors, the negotiations referable to what Complainant desired to be built continued on with Complainant making numerous changes. c. It was adequately demonstrated that Complainant had a great deal of difficulty making a decision regarding what she desired on her cabinets. On numerous occasions, over the above-referenced time period, she changed the type of wood and finish for the cabinets. d. Complainant spent numerous hours at Respondent’s shop discussing the cabinet construction with Respondent and sitting with Respondent’s designer at a computer to determine the final product that she desired. e. Although the exact point in time during which Complainant presented Respondent with a picture from a magazine showing the type of cabinets she desired is a matter in sharp dispute between the parties, it was undisputed that Complainant did present such a picture to Respondent and that said picture shows doors and drawers that are over-lay and not inset. f. The cabinets were installed in Complainant’s home in the early part of September 1996 and Complainant was present during the installation. Although she may have told the installer that the cabinets looked “strange” to her, it was shown that she made no complaint about the over- lay doors and drawers, allowing Respondent to complete the installation. g. Shortly after the cabinets were installed, Complainant paid Respondent to return to the jobsite and install the hardware for the doors and drawers. This procedure was completed by Respondent and at no time, during the installation of the hardware, did Complainant lodge a complaint regarding Respondent’s failure to provide inset style doors and drawers. h. Subsequent to completing the cabinet installation, Complainant paid Respondent the remaining balance and made no complaint at the time of final payment regarding any failure to receive inset doors and drawers. In fact, it was not until January 1997 (some four months after the cabinets had been installed in her home) that Complainant started calling Respondent objecting to the style of cabinet doors and drawers. i. At the time Complainant started contacting Respondent regarding her objection to the over-lay doors and drawers, Respondent company had been sold to others. The first that Respondent’s original owners, who still hold the license named as Respondent herein, heard of the complaint was on the date of the jobsite inspection convened by the assigned inspector for the Registrar of Contractors. It should be noted that for reasons unknown, despite having last minute notice of the jobsite inspection, Respondent’s original owners failed to appear for the jobsite inspection. 4. The weight of the evidence of record was sufficient to support a finding that subsequent to the quotes prepared by Respondent in October 1995, Complainant advised Respondent’s designer, along with Respondent’s owner and qualifying party, that she wanted over-lay doors and drawers. Moreover, credible evidence of record supports a finding that on a specified date in July 1996, at a time when both parties were probably exhausted from the seemingly endless contract discussions and negotiations, Complainant advised Respondent that if they built her cabinets “exactly” like the ones shown in the above described magazine picture (which showed over-lay doors and drawers) she would be happy. 5. Notwithstanding the written proposals or “quotes” prepared by Respondent in October 1995 showing inset doors, it is determined that due to the ongoing excessive period of time during which Complainant made numerous changes, including additions and deletions, that said documents do not constitute the applicable final contract between these parties. The contract at issue herein was shown to be a matter of on-going, seemingly endless, negotiation over almost a one year period of time involving numerous written documents and oral representations between the parties. 6. It is held that there was no final contract agreement between the parties until the time in mid-1996 when Complainant finally gave the “green light” for Respondent to proceed to construct the cabinets. By her course of conduct, Complainant effectively modified the original October proposals prepared by Respondent and was shown, by the weight of the credible evidence of record, to have directed the construction of over-lay doors and drawers. Moreover, under the specific facts and circumstances presented herein, Complainant is found to have effectively accepted the construction of the doors and drawers by her failure to complain about said deficiency at the time of installation. It strains credibility to believe that after dealing with this aspect of construction for almost one full year, after being present for the installation, and paying the contract balance after completion of the installation, that Complainant would wait almost four months to complain to Respondent that she did not receive the type of drawers and doors that were required under the agreement entered into by the parties, if in fact she did not believe she received what she had expected. The difference between inset and over-lay is not a latent defect, it is something that is readily visible to the eye. Complainant failed to sustain the requisite burden of proof on this issue. 7. Complainant also contends that specified cabinet doors swing open in the wrong direction on the kitchen island. Evidence of record showed that the manner in which the doors open is not the normal (basic) opening that the computer program for design of such cabinet doors would provide and that, in fact, the computer program that designed the cabinets would have to be over-ridden in order for the cabinet doors to be designed in the manner in which they were built and installed in Complainant’s home. 8. As aforementioned, Complainant spent numerous hours with Respondent’s cabinet designer at the computer going over the construction of her cabinets. The weight of the evidence of record is sufficient to support a finding that Complainant directed and/or approved the design of the kitchen island cabinet doors to open in the manner that they were built. Complainant also failed to sustain the requisite burden of proof on this issue.

CONCLUSIONS OF LAW

1. The evidence of record did not sufficiently sustain a finding of violations by Respondent of the provisions of A.R.S. §32-1154A, as charged in the Citation.

RECOMMENDED ORDER

Based on the foregoing, it is hereby recommended that this Citation, together with the Complaint upon which it is based, be dismissed.

Done this day, December 4, 1997.

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of December, 1997, to:

Mr. Michael P. Goldwater, Director Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826