Wolterman v. Yelland
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NOTICE:
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
REX ALAN WOLTERMAN dba MOHAVE COUNTY )
POOLS AND SPAS, an individual,
)
)
)
)
)
YELLAND, an individual; and )
REGISTRAR OF CONTRACTORS, an )
)
agency,
)
)
Defendants/Appellees.
)
1 CA-CV 10-0830
DEPARTMENT E
DIVISION ONE
FILED: 09/29/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
Plaintiff/Appellant,
v.
JEFFREY
ARIZONA
Arizona
MEMORANDUM DECISION
(Not for Publication –
Rule 28, Arizona Rules
of Civil Appellate Procedure)
Appeal from the Superior Court in Mohave County
Cause No. CV2009-02259
The Honorable Lee Frank Janzen, Judge
AFFIRMED
Britt Law Group, P.C.
By
Edward H. Britt
James Sparks
Attorneys for Plaintiff/Appellant
Gregory & Elias PLC
By
T’shura-Ann Elias
Attorneys for Defendant/Appellee Yelland
Thomas C. Horne, Attorney General
By
Montgomery Lee, Assistant Attorney General
Attorneys for Defendant/Appellee
Arizona Registrar of Contractors
Scottsdale
Bullhead City
Phoenix
J O H N S E N, Judge
¶1
Rex Alan Wolterman, dba Mohave County Pools and Spas,
appeals from the superior court’s judgment affirming a decision
by the Arizona Registrar of Contractors (“ROC”) requiring him to
comply with a corrective work order issued in connection with
his
construction
of
a
swimming
pool.
For
the
reasons
that
follow, we affirm.
BACKGROUND
¶2
The facts, as found by the Administrative Law Judge
(“ALJ”),
are
not
disputed.
Wolterman
holds
contractor’s license issued by the ROC.
a
Class
B-05
He built a swimming
pool for Jeffrey Yelland; after the pool was completed, Yelland
filed a complaint with the ROC alleging the pool was “under
engineered,”
inspector
resulting
evaluated
in
a
variety
Wolterman’s
of
defects.
workmanship,
then
An
ROC
issued
a
corrective work order directing Wolterman to “engineer[] [the
pool] for the location where it is built” and ordering that the
pool “must be constructed to the engineering for that location.”
¶3
Yelland subsequently informed the ROC that Wolterman
had not complied with the corrective work order.
request,
the
ROC
then
commenced
a
proceeding against Wolterman’s license.
formal
At Yelland’s
administrative
After considering the
exhibits and testimony presented at a hearing, the ALJ concluded
that Wolterman’s construction of the pool deviated “from plans
2
and specifications,” failed to comply with the corrective work
order
and
local
building
codes
and
was
not
completed
workmanlike manner, all in violation of Arizona law.
in
a
See Ariz.
Rev. Stat. (“A.R.S.”) § 32-1154(A)(2), (3), (7), (23) (2008); 1
Ariz. Admin. Code § R4-9-108 (2010).
¶4
The
ALJ
recommended
the
ROC
revoke
Wolterman’s
contractor’s license unless and until he fully complied with the
corrective work order and “addresse[d] the concerns raised by”
Yelland’s expert witness, who documented several defects in the
design and construction of the pool.
The ROC issued a final
order
discipline.
adopting
the
ALJ’s
recommended
Wolterman
appealed to the superior court, seeking judicial review of the
ROC
decision.
superior
See
court
A.R.S.
affirmed
§§
12-901
the
ROC’s
to
-914
(2011).
The
We
have
decision.
jurisdiction of Wolterman’s timely appeal pursuant to A.R.S. §
12-2101(B) (2011).
DISCUSSION
¶5
Wolterman argues the superior court erred in affirming
the ROC’s decision because the ROC lacks the power to require
him to replace the pool.
“should
be
afforded
an
Instead, Wolterman asserts that he
opportunity
1
to
correct
any
deficient
We cite the statute’s version in effect at the time Yelland
filed his complaint because the legislature later materially
revised subsection (A)(7).
2009 Ariz. Sess. Laws, ch. 99, § 3
(1st Reg. Sess.).
3
workmanship using any appropriate means to comply with the Order
of the ROC.”
discretion.
We review the ROC’s decision for a clear abuse of
See Golob v. Ariz. Med. Bd., 217 Ariz. 505, 514, ¶
35, 176 P.3d 703, 712 (App. 2008).
¶6
The
ALJ
found
Wolterman
violated
A.R.S.
§
32-
1154(A)(23) by failing to comply with the corrective work order.
Section 32-1154(A)(23) prohibits ROC licensees from failing to
take “appropriate corrective action” in response to a written
directive
by
the
ROC.
Wolterman
argues
the
ROC
abused
its
discretion by effectively requiring him to remove and replace
the pool, even though a lesser remedy would have constituted an
“appropriate corrective action.”
¶7
We cannot begin to address Wolterman’s challenge to
the propriety of the corrective action the ROC ordered because
Wolterman does not cite any evidence in the record to support
his
argument
that
the
remedy
the
ROC
ordered
would
be
too
expensive, and he has not provided us with the transcript of the
administrative hearing.
See State ex rel. Dep’t of Econ. Sec.
v. Burton, 205 Ariz. 27, 30, ¶ 16, 66 P.3d 70, 73 (App. 2003)
(appellant must make certain that record on appeal contains all
transcripts or other documents necessary for reviewing court to
consider issues raised on appeal).
cannot
evaluate
the
burden
the
Without the transcript, we
corrective
action
imposed
on
Wolterman; indeed, we cannot determine whether Wolterman even
4
attempted or requested the opportunity to correct the defects by
a measure that would be less burdensome than replacement of the
pool.
We
therefore
must
assume
that
the
ROC’s
supported by the evidence presented at the hearing.
decision
is
See Johnson
v. Elson, 192 Ariz. 486, 489, ¶ 11, 967 P.2d 1022, 1025 (App.
1998); see also Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764,
767 (App. 1995) (“When a party fails to include necessary items,
we
assume
they
would
support
the
court’s
findings
and
conclusions.”).
¶8
Wolterman argues that pursuant to A.R.S. § 41-1030(B),
the ROC “shall not base a licensing decision in whole or in part
on a licensing requirement or condition that is not specifically
authorized by statute or rule.”
But A.R.S. § 32-1154(A)(23) and
(B) specifically authorize the ROC to revoke the license of a
contractor
action .
who
.
fails
.
without
“to
take
valid
appropriate
justification.”
corrective
On
the
record
before us, we cannot conclude the ROC exceeded its statutory
authority by revoking Wolterman’s license pending his completion
of the corrective work order.
¶9
Yelland
requests
his
attorney’s
appeal pursuant to A.R.S. § 12-349 (2011).
fees
and
costs
on
Although we agree
that Wolterman’s appeal is groundless, nothing in the record
persuades us it constitutes harassment or was not pursued in
good
faith.
See
A.R.S.
§
12-349(F)
5
(“‘without
substantial
justification’
harassment,
is
means
that
the
claim
groundless
and
is
(emphasis added)).
not
or
defense
made
in
constitutes
good
faith.”
Yelland also requests an award of attorney’s
fees as a sanction, arguing Wolterman’s appeal is frivolous.
See Arizona Rule of Civil Appellate Procedure (“ARCAP”) 25.
An
appeal is frivolous if none of the issues is supportable by any
reasonable
legal
theory
or
by
“a
colorable
legal
argument . . . about which reasonable attorneys could differ.”
In re Levine, 174 Ariz. 146, 153, 847 P.2d 1093, 1100 (1993).
We impose Rule 25 sanctions with “great reservation.”
Ariz. Tax
Research Ass'n v. Dep't of Revenue, 163 Ariz. 255, 258, 787 P.2d
1051, 1054 (1989).
Accordingly, we decline to award sanctions
against Wolterman.
As the prevailing party on appeal, however,
Yelland is entitled to his costs contingent on his compliance
with ARCAP 21.
CONCLUSION
¶10
We affirm the judgment.
/s/
DIANE M. JOHNSEN, Presiding Judge
CONCURRING:
/s/
PATRICA A. OROZCO, Judge
/s/
DONN KESSLER, Judge
6
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