ALJDEC

99F-M1257-ROC · Registrar of Contractors · 2000-04-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 11, 2000 APPEARANCES: Complainant was represented by its owner, Martin Karstetter. Respondent was represented by its owner, Mark Alexander. Doug Walls and Darryl Becher were present as witnesses. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ Having heard the testimony of the witnesses and having read and considered the entire record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and submits the following Recommended Decision to the Director of the Arizona Registrar of Contractors.

FINDINGS OF FACT On May 20, 1998, Complainant entered into a contract with Respondent for the excavation of Lot 80 in a subdivision in Hunter Creek, Arizona. The actual dig began on May 14, 1998 and was completed on June 1, 1998. The contract did not specify an exact price for the project. It did specify the hourly rate that Complainant would charge Respondent for each piece of equipment that would be used. The contract further specified that any hard rock digging would be extra. Complainant billed Respondent $15,475 for the project. Respondent had paid Complainant $500 down, $6,000 on September 11, 1998, and $3,500 on September 28, 1998, for a total payment to Complainant of $10,000. Mr. Karstetter testified that the excavation of Lot 80 was a difficult job because it was mostly hard rock. He further testified that two backhoes were used simultaneously, and that there was a tree stump in the middle of the lot that took four hours to remove. Mr. Karstetter also testified that because of the weight restrictions on the roads in Hunter Creek, it took twice as much time to haul material off the site. Mr. Alexander testified that the building pad/foundation was five feet out of level upon the completion of the excavation. Mr. Alexander further testified that this problem was caused because Complainant removed too much material, thereby charging for hours of work that did not need to be performed. This work included not only the actual unnecessary excavation, but also the removal of the excavated material that should not have been excavated to begin with. Mr. Alexander testified that it cost Respondent approximately $10,000 to correct the five foot level deficiency caused by Complainant. Mr. Becher, Complainant’s witness, personally worked on Lot 80 for most of the excavation. Mr. Becher confirmed that the foundation was five feet out of level. Mr. Alexander further testified that his wife, Liz, who is in charge of the bookkeeping, negotiated a settlement with Complainant for the $10,000 that Complainant was paid. On September 28, 1998, Mr. Karstetter accepted a check from Respondent in the amount of $3,500, which had been marked “paid in full for all work”. Mr. Alexander testified that the parties had agreed that this payment was to be the final payment. Mr. Karstetter cashed the check after blacking out the words “paid in full for all work”. Mr. Karstetter testified that he never agreed to the settlement.

CONCLUSIONS OF LAW The Complainant bears the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence, (5 (1960). It is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary, 1182 (6th ed. 1990). The undersigned Administrative Law Judge concludes that the contract entered into between Complainant and Respondent did not contain a price certain. The price of the contract was contingent upon the amount of work performed by Complainant. The undersigned Administrative Law Judge further concludes that Complainant performed unnecessary work, by excavating and hauling too much material from the site, causing the foundation to be out of level by five feet, and further causing Respondent to expend funds to correct the deficiency. Therefore, there has been an insufficient showing that Respondent owes Complainant any money on the contract, or that Respondent acted wrongfully or fraudulently within the meaning of A.R.S. (32-1154 (A)(7) and (11). The undersigned Administrative Law Judge concludes that the preponderance of the evidence shows that Respondent has not violated any of the provisions of A.R.S. (32-1154(A), as charged in the Citation and Complaint. RECOMMENDED DECISION Based upon the foregoing, the undersigned Administrative Law Judge recommends that the Citation and Complaint against Respondent in Case No. M99-1257 be dismissed. Done this day, April 19, 2000.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of April, 2000, 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