ALJDEC

99F-M0427-ROC · Registrar of Contractors · 1999-07-13

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pursuant to notice, a formal hearing was held in this case on July 13, 1999, in Phoenix, Arizona, before Neal H. Jordan, Administrative Law Judge of the Office of Administrative Hearings. APPEARANCES For Complainant: Terry L. Allen appeared on his own behalf. For Respondent: Brad Fate, its Construction Manager.

FINDINGS OF FACT Based upon all the evidence, the following findings of fact are determined: When the events herein occurred, Respondent was licensed as a Class B, General Residential Contractor, License No. 094978, issued by Registrar of Contractors. At the present time, Respondent’s license is current and active. By a written agreement (“Agreement”) dated March 31, 1997, Complainant contracted to have Respondent construct a new home on Lot 49 in the subdivision known as “Carmel Bay at Ocotillo”, located at 3551 S. Barberry, Chandler, Arizona. See Exh. 1. The Agreement was on a preprinted form prepared by or for Respondent with blanks to be filled in according to the agreement arrived at with a potential buyer. The Agreement provided for the construction of “. . . Seller’s Model No. 2054, Elevation B, as modified or added to by the specific provisions of any Option Selection Addendum . . . executed concurrently with or subsequent to this contract.” See Exh. 1. Upon completion of construction of the new home and after Complainant accepted occupancy thereof, he filed the Complaint with the Registrar of Contractors setting forth numerous items for which he sought corrective or remedial work to be performed by Respondent. As a result of the Complaint being filed, a site inspection was conducted by the agency assigned inspector which led to the issuance of a Corrective Work Order being sent to Respondent. The Corrective Work Order listed 12 items noting that 8 items required “no action”, and that 4 items required corrective or remedial work. The Corrective Work Order also noted that “all other items on the complaint have been repaired.” It is undisputed that all items listed in the Complaint and the Corrective Work Order have been properly attended to with the exception of a continuing dispute concerning two of the items as set forth in the following findings. Complainant asserts that he was improperly or falsely[1] misled into purchasing this home believing that he was entitled to an option of having the garage extended by approximately 4 feet 4 inches in depth. Complainant’s source of evidence for this assertion is that the model home used for sales purposes was the same model floor plan he selected pursuant to the Agreement and that this model sales home did have an oversized garage. The evidence supports the finding that the sole reason the sales office model contained a oversized garage was precisely for the purpose of a sales office and not as a representation of a garage extension option. Complainant offered oral evidence in an effort to substantiate that it was always his intention that the garage to be built as part of his home was to be the same size as the sales model home. This evidence included Complainant’s oral testimony submitted on his own behalf, a tape recording from his answering machine of a call from Respondent’s sale representative that spoke about a “garage problem”2 , and a letter from one Bonnie Allen dated July 15, 1999. Complaint’s sole basis for claiming he was entitled to an extended garage was an assumption that since the model sales home garage was larger, then the garage to be constructed for his home would also be the larger size. Complainant asserts he would probably not have purchased the home otherwise. The Agreement is notably silent as to any provision for a garage extension option. The evidence establishes that Respondent, in constructing any of the homes in this subdivision, purposely did not offer an extended garage option and that the garage in the model home was only to accommodate the sales office. The evidence fails to support any finding that Respondent or any of its representatives committed any fraud or made any material misrepresentations such that would induce Complainant to rely upon them to his detriment. In fact, it is found that Complainant received exactly what he bargained for in purchasing this home. It is found that Complainant had adequate opportunity to review the Agreement, to ask questions about the Agreement and to select options3. Further, Complainant visited the home during construction a number of times and failed to mention or raise the issue of any garage extension option until after the closing and his taking occupancy of the home. The other remaining issue disputed by Complainant involves a complaint that Respondent placed a tar like material upon the lower portion of the rear yard block wall and then painted it to match the color of all interior block walls in the subdivision. The basis for Complainant’s dispute on this issue rests upon his unexpressed desire that at some point in the future he was going to have to the interior walls coated with a stucco material. It is uncertain, and the evidence does not support any finding for this purpose, whether Complainant informed or otherwise disclosed this desire to Respondent. The testimony supports the finding that Respondent routinely paints, rather than stuccoes, all interior block walls upon completion of all new home construction and that painting over any tar like water sealant material was not unusual. It is further found that Respondent was unaware of Complainant’s desire to have the walls stuccoed.

CONCLUSIONS OF LAW The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S. §41-1092 - 1092.12 (1998). The Complainant has brought this complaint and accordingly bears the burden of proving by a preponderance of the evidence that the allegations contained therein are true. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (Ct. App. 1996). The Citation and Complaint issued by the Registrar of Contractors in this matter alleges that Respondent violated A.R.S. §32-1154 A, Sections 2, 7, and 23, and A.R.S. §32-1154 A, Section 3 as it relates to Administrative Code, Rule R4-9-108. It is a universal standard in the law that, when the parties have reduced their agreement to a writing, one of them cannot thereafter defeat the substance of that agreement by oral evidence claiming that it did not represent what he thought it did or that he did not understand what was in or not in the contract. The exception to this rule is that oral evidence would only be admissible to vary the terms of a written agreement upon a showing of mutual mistake, fraud, or misrepresentation. The Complainant has not sustained his burden of proof by establishing that any of the exceptions to the parol evidence rule was true at the time the Agreement was written and signed. See, Bradley v. Industrial Commission, 51 Ariz. 291, 76 P.2. 745 (S. Ct. 1938). The Complainant has not established by a preponderance of all the evidence that Respondent in some manner failed or neglected to follow a known standard when applying a water sealant to the interior real wall of Complainant’s new construction. Complainant’s unexpressed desire to ultimately stucco the interior block walls is not a standard against which Respondent’s conduct or activity is to be judged. It is concluded as a matter of law that the weight and sufficiency of all the evidence of record fails to establish that Respondent has violated any of the provisions of law charged in the Citation and Complaint.

RECOMMENDED ORDER In view of the foregoing Findings of Fact and Conclusions of Law it is recommended that Citation and the Complaint upon which it is based in Case No. M99-0427 be and that the same shall be dismissed. Dated July 19, 1999.

______________________________________ Neal H. Jordan Administrative Law Judge

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

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

UDC Homes Construction, Inc. 6710 N. Scottsdale Road Scottsdale, AZ 85253-4424

Terry L. Allen 3551 S. Barberry Place Chandler, AZ 85248

By ___________________________ ----------------------- [1] Actually Complainant used language asserting that Respondent committed a “material misrepresentation” and fraud. The hearing the sales representative, Lennie Decof, was not present although a subpoena duces tecum was issued with six attempts at service without success. Complainant did sign off on a number of options, none of which made any mention of a garage extension.

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