In re Robinson, Bankruptcy No. 05-70479.

• Citation: 340 B.R. 316
• Decision Date: 17 March 2006
• Docket Number: Bankruptcy No. 05-70479.,Adversary No. 05-07029.
• Court: United States Bankruptcy Courts. Fourth Circuit. U.S. Bankruptcy Court — Eastern District of Virginia
• Parties: In re Duane L. ROBINSON, Debtor. Dominion Virginia Power, Plaintiff, v. Duane L. Robinson, Defendant.

340 B.R. 316

In re Duane L. ROBINSON, Debtor.

Dominion Virginia Power, Plaintiff, v. Duane L. Robinson, Defendant.

Bankruptcy No. 05-70479.

Adversary No. 05-07029.

United States Bankruptcy Court, E.D. Virginia, Norfolk Division.

March 17, 2006.

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Glenn R. Tankersley, Virginia Beach, VA, for Debtor.

MEMORANDUM OPINION

STEPHEN C. ST. JOHN, Bankruptcy Judge.

This matter came on for trial on January 25, 2006, upon the Complaint by Dominion Virginia Power to Determine Non-Dischargeability of Debt Pursuant to § 523 of the Bankruptcy Code. At the conclusion of the trial, the Court took this matter under advisement. The Court has jurisdiction over these proceedings pursuant to 28 U.S.C. §§ 157(b)(2) and 1334(b). Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409. Upon consideration of the evidence and arguments presented by counsel at the trial and the pleadings submitted, the Court makes the following findings of fact and conclusions of law.

I. PARTIES AND PROCEDURAL HISTORY

Duane L. Robinson ("Robinson") filed under Chapter 7 of the Bankruptcy Code on January 31, 2005. Dominion Virginia Power ("Dominion") filed an adversary complaint on April 6, 2005 (the "Complaint") to determine the nondischargeability of certain debt owed to Dominion by Robinson. The Complaint alleges that Robinson owes Dominion $4,056.29 for unauthorized usage of electricity. Pl Compl., at 4. Further, the Complaint alleges that this unauthorized usage is an "Energy Theft Debt" and should be nondischargeable pursuant to § 523(a)(2) and § 523(a)(6) of the Bankruptcy Code. Id. at 5. Robinson filed an Answer to the Complaint on April 19, 2005 (the "Answer") whereby he denied that he engaged in energy theft or meter tampering. Def. Ans., at 1.

The trial in this case was originally scheduled for October 19, 2005; however, on September 29, 2005 Dominion filed a Motion for Summary Judgment. This Court heard the Motion for Summary Judgment on October 19, 2005 and denied the Motion on the grounds that "there [were] material factual issues in dispute that would influence the Court in its conclusion as to whether there [was] fraudulent intent or willful and malicious injury shown." Summary Judgment Hearing Tr., October 19, 2005, at 48. Further, the Court set the matter for trial on January 25, 2006.¹ Dominion filed its list of Exhibits on January 13, 2006 and the exhibits were admitted into evidence as they were not objected to.² Dominion's witness list, filed with this Court on January 13, 2006, included Susan McAllister, Dominion Credit Administrator; David Yeager, Dominion Service Technician; Barbara Bronson, Supervisor of Dominion Revenue Protection; Duane Robinson, the Defendant; and any other additional witnesses necessary for rebuttal purposes. However, Susan McAllister and Robinson were the only two witnesses who testified at trial. Prior to trial, on January 24, 2005, the parties agreed to the following joint stipulation of facts:

In or about January 2004, Dominion discovered the meter for the Defendant's residence had been illegally tampered with, resulting in no utility being recorded for the Defendant's residence from June 2001 through January 2004 as a result of a potential link being manually removed. Dominion did not remove the potential link. The parties acknowledge that anyone could have had access to the meter for the Defendant's residence.

Stipulations of Fact, at 1-2.

II. FINDINGS OF FACT

On or about June 25, 2001, Robinson opened an account with Dominion in order to receive electricity service for his residence located at 301 Chautauqua Avenue, Apartment 1, Portsmouth, Virginia 23707 (the "Service Address"). On or about January 2004, Dominion discovered the meter for the Service Address had been tampered with and directed a service technician to replace the meter. Upon examining the meter, Dominion discovered that a link on the back of the meter had been tampered with and the meter was not properly registering the actual electricity consumed at the Service Address.

Sometime between 2004 and 2005, Dominion informed Robinson that he owed Dominion $4,056.29 for this unregistered electricity consumption.³ After Dominion informed Robinson of this debt, he called Dominion and requested a breakdown of the charges. Dominion provided Robinson with a breakdown of the charges per his request, and on January 18, 2005, Robinson sent a letter to Dominion whereby he acknowledged the $4,056.29 debt but stated that he was financially unable to pay the entire balance in a lump sum and requested a payment plan.⁴ Pl. Exh. 9.

On January 31, 2005, Robinson filed for relief pursuant to Chapter 7 of the Bankruptcy Code. He listed Dominion on his Schedule F as holding an unsecured nonpriority claim in the amount of $4,056.39. Dominion sent Robinson a letter on February 1, 2005, which stated that Robinson owed $4,056.29 for "unauthorized use of electric service" ("Dominion Debt") and stated that if Robinson did not pay the requested amount by February 10, 2005, his electricity service would be disconnected. Pl. Exh. 4. Dominion filed this adversary proceeding on April 6, 2005 and requested that the Court determine the Dominion Debt to be nondischargeable pursuant to 11 U.S.C. §§ 523(a)(2)(A) and (a)(6).

A. Dominion's Records for the Service Address

It is uncontested that Robinson moved into the Service Address in June of 2001; however, Dominion's records are unclear regarding when the Service Address was vacant and/or occupied prior to June 2001. According to Dominion, its records reflect that from February 2000 to approximately October 2000 there was a different account holder residing at the Service Address and Dominion submitted Plaintiff's Exhibit Six as evidence of this other account holder's billing records. Pl. Exh. 6. Further, Dominion submitted Plaintiff's Exhibit One as evidence of Robinson's account usage, billing records, payment records and meter readings. Pl. Exh. 1; Tr. at 5. However, it is unclear to this Court why Plaintiff's Exhibit One, which is allegedly the billing records for Robinson, reflects bills for March 30, 2000 through October 25, 2000. Pl. Exh. 1, at 08. It is uncontested that said billing dates occurred prior to Robinson residing at the Service Address and that Robinson did not move into the Service Address until June 2001.

Nevertheless, Dominion's Exhibit One begins with the monthly billing date of March 30, 2000. Pl. Exh. 1, at 08. Further, Exhibit One depicts monthly billing dates from March 30, 2000 through October 25, 2000, but then has a gap period in the billing history ("gap period") and Plaintiff's Exhibit One skips from the October 25, 2000 billing date to a July 31, 2003 billing date.⁵ Id.

Susan McAllister, Credit Administrator for the Revenue Protection Department of Dominion ("McAllister"), testified that Dominion issues its customers computer generated invoices each month. Further, she testified that the gap period reflected in the account documents is due to a programmer error that deleted the computer records.⁶ She also testified that Dominion does not know how the error occurred, when the error occurred, or who the programmer was that caused the error. Additionally, McAllister stated that Dominion investigated the gap period in the records but Dominion determined because of the error that it could not bring up the account history through its computer archives. Therefore, Dominion was unable to present to the Court any written evidence regarding Dominion's billing records for the Service Address during the gap period and there is no documentary evidence as to the electricity usage or billing amounts for the Service Address for this approximately two and one-half year period.

B. Meter Tampering

It is not entirely clear to this Court how Dominion discovered Robinson's meter had been tampered with; nevertheless, the uncontested evidence shows that Dominion determined on January 12, 2004 that a link had been removed from the back of the meter associated with the Service Address and this removal of the link caused the meter to fail to properly register electrical usage.⁷ While the parties do not dispute the fact that the meter was tampered with, the parties do dispute the facts regarding who tampered with the meter and when the meter was tampered with.

McAllister testified that the reason Dominion believes Robinson is responsible for the meter tampering is because Robinson benefitted from the tampering. However, Dominion stipulated to the fact "that anyone could have had access to the meter for the Defendant's residence." Stipulations of Fact, at 1. Further, Dominion admitted it has no concrete or physical evidence that Robinson actually is the one who tampered with the meter. When questioned at trial, Robinson admitted that he benefitted from the meter failing to register electricity, but he denied that he engaged in meter tampering.

According to Dominion, Robinson's meter was the only meter tampered with at the complex where the Service Address is located and the type of tampering that occurred, whereby a link was removed from the meter, is a very specific form of tampering and the result of intentional tampering.⁸ McAllister stated that for a link to be removed from a meter, the meter would have to be physically taken from the meter base and a screwdriver would be necessary to unscrew the link. Tr. at 11. She further testified that this type of tampering is not something a novice person or layperson could do without knowledge or skill of utility meters;⁹ however, Dominion did not present any evidence that suggests Robinson has such sophisticated knowledge. In fact, Robinson testified that he is trained as a nurse and has no technical or electrical experience. Further, Robinson's testimony reveals that there are approximately 12 meters total in his complex, he lives approximately 500 feet away from the meters,...