Opinion
C. A. KC-2019-0832
04-30-2020
JARRAH RISON, Plaintiff-Appellant, v. RHODE ISLAND DIVISION OF PUBLIC UTILITIES AND CARRIERS and NATIONAL GRID, Defendants-Appellees.
For Plaintiff: Arthur D. Parise, Esq. For Defendant: Casey J. Lee, Esq.; John P. McCoy, Esq.
For Plaintiff: Arthur D. Parise, Esq.
For Defendant: Casey J. Lee, Esq.; John P. McCoy, Esq.
DECISION
LICHT, J.
Appellant Jarrah Rison (Rison) appeals from a Report and Order dated June 20, 2019 (Order) of the Rhode Island Division of Public Utilities and Carriers (DPUC). The Order upheld the transfer of $6903.98 in charges incurred by Rison's stepfather, Timothy Hawes (Hawes), and Rison's mother, Maryann Johnston (Johnston), at their residence located at 202 Blanchard Avenue, Warwick, Rhode Island (202 Blanchard) to Rison's National Grid account for property located at 15 Jefferson Street, Warwick, Rhode Island (15 Jefferson). For the following reasons, the Order is reversed.
I
The Facts contained in this Decision are gleaned from the Order. Rison does not dispute the findings of fact set forth on that decision but does contest the conclusions drawn therefrom.
Hawes opened an account with National Grid for 202 Blanchard on May 9, 1997. Hawes' account was current on payments prior to October 6, 2009, but when it was closed on June 2, 2011, there were arrearages of $4153.66. On or about June 2, 2011, Johnston opened an account with National Grid for 202 Blanchard. That account was closed with arrearages of $3873.21 on March 24, 2014 when Hawes and Johnston vacated the premises due to foreclosure. Rison opened a National Grid account for service at 15 Jefferson on June 1, 2014, and Hawes and Johnston moved in with her. National Grid subsequently transferred the combined arrearages of $8, 126.87 from 202 Blanchard to Rison's account for 15 Jefferson based on National Grid's contention that Rison resided at 202 Blanchard when the arrearages accrued. Rison timely contested the transferred charges with the DPUC.
Rison had not reached the age of eighteen when Hawes opened a National Grid account in 1997. Rison was, however, over the age of eighteen on October 6, 2009.
The DPUC held two evidentiary hearings on whether Rison appeal. At the first hearing, National Grid provided documentation based on a Lexis/Nexis analytic software that indicated that Rison resided at 202 Blanchard until January 2016. However, testimony from National Grid at the hearings confirmed that Rison opened an account for 15 Jefferson on June 1, 2014. The first hearing was continued to allow Rison an opportunity to provide documentation that she did not reside at the 202 Blanchard address during the relevant times.
First hearing was held January 3, 2019. Second hearing was held April 2, 2019. (See Order at 1, June 20, 2019.)
At the second hearing, Rison admitted that she had lived at 202 Blanchard for a few months in 2012 with her infant child, and Rison presented written documentation indicating, inter alia, that she was a transient young adult. The DPUC disregarded Rison's documentation because "none were submitted as sworn or notarized statements, and none of the individuals who wrote these letters appeared at the hearing to authenticate them or be cross-examined as to their veracity." Order at 9. As a result, the DPUC found "the documentation submitted by the respondent more persuasive as to the complainant's domicile during the period from October 9, 2009 through December 31, 2012." Id. at 10. At the hearing, National Grid "admitted that their Lexus/Nexis [sic] software is not guaranteed to be 100% accurate and is utilized as a guide to showing addresses a person is connected to rather than absolute proof of residency." Id.
The DPUC concluded that "Lexus/Nexis [sic] can create a rebuttable presumption as to residency." Id. The DPUC determined that neither the documentation submitted by National Grid or Rison could be considered irrefutable. Id. The Hearing Officer made no comments or findings with respect to Rison's testimony, but apparently it was rejected. The DPUC did find that Rison had "clearly lived" with Hawes and Johnston "during significant portions of that 17-year period." Id. For that reason, the DPUC "concluded that [Rison] resided at 202 Blanchard Avenue in Warwick until December 31, 2012." Id. at 11. The DPUC rendered its decision on June 20, 2019, where it ordered a balance of $6903.98 be transferred and applied to Rison's account at 15 Jefferson Street.
Rison was born in April 1990.
While the Hearing Officer spends almost seven pages regurgitating conclusory statements of the termination rules, he did not relate any of his factual findings to any particular rule. The DPUC in its Memorandum relies on § 39-2-1.1, which the Order refers to in Endnote 6 to support the statement that "customers remain liable for their debt to the public utility for utility services received." Order at 4. The DPUC also contended that the principles of unjust enrichment apply to this case even though the Order makes no such finding. National Grid's Memorandum to this Court makes the same arguments and additionally states: "This decision is also consistent with Rhode Island General Laws 39-3-13.1 that provides that the Division has broad powers when it is deemed by the Division necessary to 'provide any form of relief which the Division may devise to do equity to the parties.'" National Grid's Resp. Br. at 9.
Following the Order, Rison filed a complaint with the Court on July 18, 2019 contending that the transfer of arrearages to her account should be reversed. See Appellant's Compl. The DPUC and National Grid answered Rison's Complaint on August 13, 2019 contending the transfer should be upheld. See Appellee's Answer. Rison filed a memorandum of law with the Court on September 30, 2019. The DPUC and National Grid filed response briefs on October 30, 2019. A consent order assigning the administrative appeal to this Court was entered on February 13, 2020.
II
Standard of Review
Pursuant to G.L. 1956 § 39-5-1, "any person aggrieved by a final decision or order of the administrator [of the DPUC] may appeal therefrom to the superior court pursuant to the provisions of § 42-35-15." When this Court reviews an appeal from the DPUC or another administrative agency, G.L. 1956 § 42-35-15(g) provides:
"The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."
The Superior Court's scope of "review is circumscribed and limited to 'an examination of the certified record to determine if there is any legally competent evidence therein to support the agency's decision."' Nickerson v. Reitsma, 853 A.2d 1202, 1205 (R.I. 2004). This restriction applies even when the reviewing court may have been inclined to arrive at different conclusions and inferences from the evidence presented. Johnston Ambulatory Surgical Associates, Ltd. v. Nolan, 755 A.2d 799, 805 (R.I. 2000) (citing Rhode Island Public Telecommunications Authority v. Rhode Island State Labor Relations Board, 650 A.2d 479, 485 (R.I. 1994)); Barrington School Committee v. Rhode Island State Labor Relations Board, 608 A.2d 1126, 1138 (R.I. 1992).
Evidence is considered legally competent when '"some or any evidence supporting the agency's findings"' is present in the record. Auto Body Association of Rhode Island v. State Department of Business Regulation, 996 A.2d 91, 95 (R.I. 2010) (quoting Environmental Scientific Corp. v. Durfee, 621 A.2d 200, 208 (R.I. 1993)). The agency is entitled to great deference and the reviewing court cannot '"substitute its judgment for that of the agency whose action is under review.'" Nolan, 755 A.2d at 805 (quoting Rhode Island Public Telecommunications Authority, 650 A.2d at 485); see also Auto Body Association of Rhode Island, 996 A.2d at 97. Despite the high level of deference afforded the agency, the Superior Court will review all questions of law de novo. Iselin v. Retirement Board of Employee's Retirement System of Rhode Island, 943 A.2d 1045, 1049 (R.I. 2008) (citations omitted).
Additionally, when an agency is charged with interpreting a regulatory statute like § 39-2-1.1, which the Legislature has empowered it to enforce, the agency's interpretation of that statute is entitled to great weight and deference provided it is not clearly erroneous or unauthorized. Labor Ready Northeast, Inc. v. McConaghy, 849 A.2d 340, 345 (R.I. 2004). Agencies are not empowered to modify the statutory provisions within their enforcement authority, but when the terms of a statute are ambiguous, the agency's interpretation must be given deference. Id. (citing In re Lallo, 768 A.2d 921, 926 (R.I. 2001) (internal citations omitted)). Judicial deference is required "even when other reasonable constructions of the statute are possible." Id. (citing Pawtucket Power Associates Limited Partnership v. City of Pawtucket, 622 A.2d 452, 456-57 (R.I. 1993)).
III
Analysis
A
G.L. 1956 § 39-2-1.1 is not applicable
The DPUC's decision is based on the bedazzled reasoning that (1) Rison resided with Johnston and Hawes while their separate electric accounts were open, (2) she used and benefited from the electric service, (3) Johnston and Hawes had also used and benefited from that service, and (4) Johnston and Hawes were now living with Rison, their unpaid balances were properly transferred to Rison's account. See DPUC's Resp. Br. at 14-15. The DPUC relies on a broad reading of § 39-2-1.1, which it contends provides a mechanism for holding a person liable for an outstanding utility balance if that person is found to have benefited from that utility service. See DPUC's Resp. Br. at 13. Section 39-2-1.1 states:
"No public utility shall refuse to furnish services to new occupants at any premises on the grounds that the previous occupant has vacated the premises without paying the public utility for services furnished, provided that the service is not for the use or benefit of the previous occupant."
This statute is not clearly written. Its principal purpose appears to ensure that someone moving in to a residence is not saddled with the unpaid utility bills of a prior resident. The proviso makes an exception to that rule if the service benefitted the previous occupant. Previous occupant is not defined. However, a literal reading would require "the previous occupant" to also be a "new" occupant. Such an interpretation would make the proviso meaningless and therefore, the DPUC has the authority to try to interpret the statute and the Court on appeal, while not bound by the DPUC interpretation, must afford it great weight.
The Rhode Island Supreme Court in Church v Rhode Island Division of Public Utilities, No. PC-11-4597, 2012 WL 2946701 (R.I. Super. July 13, 2012) faced the issue that "previous occupant" is not defined in the statute. In Church, a daughter moved into a furnished room in the basement of her elderly mother's home. When her mother died, the daughter attempted to transfer the electric and gas service into her name. The service was ultimately transferred into her name along with arrearages of $5, 275.21 her deceased mother had accrued at the residence for gas and electric services. She appealed to the DPUC, which determined that she had derived a benefit of the services provided and held that, under § 39-2.1.1, the arrearages were properly applied to her account. The daughter appealed the decision to the Rhode Island Superior Court.
While this Court does not have the benefit of the hearing officer's decision in Church, the court in Church stated, "National Grid posits in its brief that the purpose of § 39-2-1.1 is to prevent situations where multiple individuals occupy a premises, accrue outstanding balances in one individual's name, and then transfer the account to another person's name without paying the balance." Id. at *5 (citations omitted). Similar reasoning may be inferred from the Hearing Officer's statements during the evidentiary hearing.
Noting that the statute does not define "previous occupant," the Church court upheld the DPUC's decision as being reasonable. Id. The Church court found that the DPUC "viewed § 39-2.1.1 as permitting denial of service to a new customer for a previous customer's outstanding balance when the service is for the benefit of anyone that occupied a premises with the former customer." Id.
That is the same situation that occurred in 2011 with the transfer of service from Hawes to Johnston at 202 Blanchard. Johnston had been living there with Hawes and he could not simply transfer the service to her name in order to avoid paying the bill. However, Rison's circumstances are different. The 202 Blanchard service was not being transferred into her name, rather, she was receiving service at 15 Jefferson. One must read § 39-2-1.1 in its entirety. Rison was a new occupant at the premises designated 15 Jefferson and there was no prior unpaid utility service at that location. Although Hawes and Johnston concededly moved in with their daughter at 15 Jefferson, neither Hawes or Johnston are "the prior occupants" of "the premises" because there is no indication that either of them had previously resided at 15 Jefferson. Thus, it would require a rather twisted interpretation of language and facts to conclude that Hawes and Johnston were "previous occupants" at 15 Jefferson. This Court is not willing to stretch the definition of "previous occupant" to apply to anyone who may have "previously resided at any residence." Id. (emphasis added). The part of the statute that refers to "previous occupants" refers to "the premises." Id. (emphasis added). As such, the term "the premises" is indicia to the particular location for which the statute bars service to "the previous occupant" if the previous occupant still occupies the premises. Since Hawes, Johnston, and Rison are not the previous occupants of the 15 Jefferson premises, § 39-2-1.1 is not applicable.
To accept the DPUC and National Grid's interpretation of § 39-2-1.1, a college student who spent summers and school vacations with his or her parents and upon graduation moved to his or her own apartment and obtained utility services could be held responsible for the unpaid utility bills of his or her parents at their home. This Court does not believe that the General Assembly would have intended such a result. Therefore, this Court concludes that § 39-2-1.1 does not apply to this case.
B
There is no unjust enrichment
The Court finds that the Order does not rely on unjust enrichment and the evidence would not support such a finding if it had. National Grid cites to Karnes v. Rhode Island Division of Public Utilities and Carriers, No. PC-2018-6360, 2019 WL 1896541, at *2 (R.I. Super. Apr. 23, 2019) as standing for the proposition "[w]here National Grid can prove the reasonable value of services rendered without payment, the Customer may justly be compelled to pay for those services." National Grid's Resp. Mem. at 8.
Karnes is distinguishable from the case on appeal. Karnes involved an appeal of a past due amount of $1069.88 that appellant claimed was erroneously charged to his account. However, the DPUC found that "due to an error National Grid had transferred utility service at Appellant's residence into an unrelated company's name." Karnes, WL 1896541, at *1. During the time Karnes continued to receive service, he never received a bill from National Grid. When National Grid discovered the error, it "back billed Appellant for the actual reads from the meter for that address for the time period during which it had accidentally been billing [other party]." Id. The Court concluded "the Division properly found that Appellant was not excused from his obligation to pay for those services simply due to National Grid's mistake." Id. at *3. This case, on the other hand, does not involve a mistake in billing.
National Grid and the DPUC argue that unjust enrichment applies in this case because the Court in Church found there was unjust enrichment even though the Hearing Officer did not reach such a conclusion in writing his decision. "[T]he Church Court noted that recovery under principles of unjust enrichment would be proper if there was proof that: (1) a benefit had been conferred upon the plaintiff by the defendant; (2) the benefit was appreciated by the plaintiff; and (3) the benefit was accepted under circumstances in which it would be inequitable for the benefit to be retained without payment for its value." DPUC's Resp. Br. at 13.
While this Court is limited in its ability to disturb the findings of fact in the Order even if it disagrees with them, it is not obliged to infer findings not made by the Hearing Officer. While the Hearing Officer did conclude that Rison received a benefit because he found that she lived at 202 Blanchard until December 2012, he made no such findings regarding the second and third requirements stated above. Moreover, there is no competent evidence which would support any such finding. Rison did not appreciate the benefit because she claimed she did not even live at 202 Blanchard but for a few months with her infant. No witness testified that she was physically observed at 202 Blanchard except for the telephone calls that said she was there caring for her baby.
Because this Court is reversing on other grounds, it need not decide if the Order is clearly erroneous, but it is concerned that the only basis for the decision was a Lexis/Nexis submittal that is of questionable reliability.
Finally, the Order contains no finding that it would be inequitable for Rison to retain the benefit. The only evidentiary basis for the Order was the Lexis/Nexis submittal, and both the Order and National Grid acknowledged that it is not always accurate. Moreover, the Lexis/Nexis information submitted was erroneous on its face as it had Rison living at 202 Blanchard until 2016 when in June 2014 she opened the account for 15 Jefferson. While there has been no finding by the Hearing Officer on equity, there is but scant evidence supporting that Rison resided at 202 Blanchard for more than a few months. She was a young adult with an infant living with her parents, and this Court cannot conclude that there is an inequity, whether under the principles of unjust enrichment or under § 39-3-13.1.
IV
Conclusion
Based on the foregoing, the Order is reversed as it is (1) in violation of statutory provisions; (2) in excess of the statutory authority of the agency; and (3) affected by other error of law. The substantial rights of Rison have been prejudiced. Accordingly, Rison's appeal is granted and the Order is vacated. Counsel shall prepare an order and judgment consistent with this Court's Decision.