ALJDEC

99F-1215-ROC · Registrar of Contractors · 1999-04-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 14, 1999 APPEARANCES: Richard Peel, employee, on behalf of the Complainant Claudia Wiegand, Member, on behalf of the L.L.C. Respondent ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact The Respondent was building a residence in Scottsdale for personal use. In November, 1997, the Complainant and Respondent entered a series of contracts for the installation of tile and carpeting at the home. The total of the three contracts between the parties was in the amount of $16,572.00. The Respondent had paid $16,525.00 on these contracts as of February 3, 1998. The last $46.00 was paid in September, 1998. One of the contracts was in the amount of $6,520.00 for 1556 square feet of tile at $4.19 a square foot in the entryway, family room, hall, kitchen, bath and breakfast room. The named areas are adjoining and if viewed from above or as a floor plan, the latter three areas are at an approximate 45 degree angle to the entryway family room and hall. If the tile is laid square beginning in the entryway and on into the family room and hall, it will be at a diagonal in the kitchen, bath and breakfast room. The condition is reversed if the tile is begun diagonally in the entryway. The contract which is at issue and which was prepared by the Complainant provides in pertinent part that:

“Purchaser agrees that this contract contains the entire agreement between the purchaser and seller and that oral agreements shall not constitute any part thereof.” According to the Complainant, based on the plan of the Respondent’s house, tile is laid by beginning with the entryway. The manner in which the tile is begun determines whether the cost will be for laying it square or diagonal. The cost for laying tile at a diagonal is $.50 a square foot more than if it is laid square. The Complainant’s salesman, Richard Peel (Peel), testified he had a conversation with the Respondent ( Mr. Wiegand), at the time of the bid. At that time Peel told Wiegand the cost of laying the tile at a diagonal was $.50 a square foot more. According to Peel, Wiegand told the Complainant to lay the tile square but when installation commenced, Mr. Wiegand told the tile setter (Silenski) to begin the tile diagonally in the entryway. Peel testified he later confirmed this with Mr. Wiegand by telephone and again stated the cost would be $.50 more, to which the Respondent purportedly agreed. Silenski testified regarding the discussion with Mr. Wiegand on how the tile was to be laid and the extra cost. This testimony lacked clarity and was not concise. Silenski acknowledged that he could not recall exactly what was said and the testimony is given little weight. Mr. Wiegand categorically denied having any conversations with Peel regarding the extra cost or agreeing to pay extra for starting the tile diagonally at the entryway. Mrs. Wiegand testified that it was she who spoke with Silenski about where to lay the tiles diagonally but that there was no discussion about any extra cost. Upon completion of the job, the Complainant billed for 1508 square feet of tile at $.50 extra per square foot for an additional cost of $754.00. There were some credits (less square footage than what was called for in the contract), as well as other changes (add on for granite dots in master bath). The amount claimed by the Complainant as owing upon the completion of the work was approximately $750.00 over the amount set forth in the contracts. This disparity is based primarily on the tile issue. The Respondents had paid all but $46.00 of the total amount set forth in the contracts in early February, 1998. The parties did not have further contact until August, 1998, when the Respondent requested warranty work and were told by the Complainant that they owed $750.00 for laying of the tile diagonally. The Respondent reviewed its records and determined that they owed $46.26 on the original contracts but refused to pay any extra for the tile. On October 14, 1998 the Complainant filed its complaint against the Respondent with the Registrar of Contractors (Registrar), asserting an amount owing of $704.00. Conclusions Of Law The Citation and Complaint allege violation of A.R.S. §32-1154(A)(7), a wrongful or fraudulent act with substantial injury to another, and (A)(11), failure to pay for materials or services in excess of $750.00. The Respondent initially raised the defense that the amount claimed by the Complainant does not meet the jurisdictional limit of $750.00 in (A)(11). It is concluded that the amount specified in the statute relates to the total value of the contract. If the statute were otherwise interpreted, it would allow any Respondent who failed to pay the last $749.00 of any bill rightly owing, to claim the Registrar did not have jurisdiction under (A)(11). This would not be in keeping with the obvious purpose and intent of the statute. The Complainant has the burden of proof by a preponderance of the evidence. The evidence on the most crucial issue is whether the Respondent agreed to pay the additional $.50 per square foot. The testimony of the parties is diametrically opposed with Peel claiming to have had three conversations with Mr. Wiegand regarding the cost, which conversations are denied by Mr. Wiegand. As already indicated, Silenski’s testimony is given little weight and the testimony of his assistant added nothing to the Complainant’s case. Mrs. Wiegand testified she was the person who discussed where the diagonal tile would be laid and there was no discussion about added cost. Mrs. Wiegand is considered a credible witness. The Complainant’s evidence regarding the standard in the tile trade, that the manner in which the tile are started (square or diagonal), and where started (entryway), determines whether all tile laid are to be charged as being laid square or diagonal regardless of the proportion in which they are laid, is not accepted. This is exemplified in this case where approximately half the tile are going to be diagonal no matter where or how they are begun and the contract sets a firm price which is not to be changed except in writing. No such written modification was ever made and the Complainant’s assertion that any verbal agreement would constitute a new contract is not accepted. Such an interpretation would defeat the purpose of the cited provision in the Complainant’s contract. Other evidence which tends to support the Respondent is the fact that the Complainant did not file its complaint until after the Respondent requested warranty work. For all intents, the complaint was filed eight months after the Respondent had made its last payment (aside from the $46.00 paid by the Respondent in September). Based on all the evidence and the reasons stated above, it is concluded the Complainant has not met its burden in proving the case. Recommended Order In view of the foregoing, it is recommended that the Citation and Complaint upon which it is based be dismissed. Done this day, April 27, 1999.

______________________________________ ALLEN REED Administrative Law Judge

Original transmitted by mail this ____ day of April, 1999, to:

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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826