Narragansett Elec. Co. v. Carbone
| Decision Date | 17 May 2006 |
| Docket Number | No. 2004-195-Appeal.,2004-195-Appeal. |
| Citation | 898 A.2d 87 |
| Parties | NARRAGANSETT ELECTRIC COMPANY v. Bernard J. CARBONE et al. |
| Court | Rhode Island Supreme Court |
Shannon Gilheeney, Esq., for Plaintiff.
Gerard M. DeCelles, Esq., Providence, for Defendant.
Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.
Justice SUTTELL, for the Court.
The illegal diversion of electricity powers this appeal. An underground aluminum bypass conductor leading from the front yard of the defendants' home to an "unmetered" electrical panel in the garage allowed the defendants to receive a substantial amount of electrical service for which they were not billed. The defendants, Bernard J. and Marsha Carbone, appeal from a judgment of the Superior Court in favor of the plaintiff, Narragansett Electric Company, on its claims for conversion and unjust enrichment. This case came before the Supreme Court for oral argument pursuant to an order directing the parties to show cause why the issues raised in this appeal should not be decided summarily. After considering the written and oral submissions of the parties and examining the record, we are of the opinion that the issues raised in this appeal may be resolved without further briefing or argument. For the reasons set forth herein, we affirm the judgment of the Superior Court.
The defendants built their house at 90 Ann Drive in East Greenwich, Rhode Island, and began living there in December 1986. According to plaintiff, it supplied electricity to the home since December 18, 1986. In early 1998, plaintiff reviewed electrical consumption records for the premises and suspected low-usage patterns with respect to the known equipment on the premises. The review also revealed that the consumption pattern was "flat, without seasonal variations."
For a period of approximately eighteen months, Narragansett Electric monitored the amount of electricity that flowed into defendants' house by installing three check meters on the "pad-mounted transformer"1 that was on the street in front of 90 Ann Drive. The plaintiff also replaced the billing meter at defendants' residence to ensure that it was reading accurately. The monthly readings on the check meters were compared with monthly readings taken on the billing meter located on the premises. From this investigation, plaintiff discovered that a large amount of electricity was flowing into defendants' home that was not being read by defendants' billing meter and for which defendants were not being billed.
On September 7, 2000, personnel from Narragansett Electric and the State Police entered 90 Ann Drive to execute a search warrant. During the search, Mr. Carbone disclosed the location of an underground bypass conductor that had been diverting electricity away from the home's billing meter to the unmetered panel in the garage. Narragansett Electric workers dug up the two ends of the bypass, conducted amperage tests on the wires emanating from both the metered and unmetered panels, and took an inventory of all items and appliances that consumed electricity on the premises. Thereafter, plaintiff presented defendants with a bill for the amounts of electricity that it believed defendants had consumed through the illegal bypass since 1986.
Subsequently, on December 20, 2000, plaintiff filed a civil action against defendants seeking damages for book account (count 1), conversion (count 2), unjust enrichment (count 3), and for a doubling of damages, pursuant to G.L.1956 § 9-1-2, that plaintiff otherwise would be entitled to if defendants should also be found criminally liable for larceny (count 4).2 Before trial, on December 10, 2001, defendant Mrs. Carbone filed a motion for summary judgment on all four counts of the complaint. Two orders were entered on January 23, 2002, granting Mrs. Carbone's summary judgment motion on counts 1 and 4, but denying it on counts 2 and 3.
A bench trial was held before a trial justice of the Superior Court in August 2003. Before trial, defendants filed a motion in limine to preclude plaintiff from admitting any expert testimony on the grounds that plaintiff failed to disclose any expert witnesses who were expected to testify at trial in its answers to interrogatories. The trial justice denied the motion, noting that it was his understanding that plaintiff was not planning to call any "outside" expert witnesses. He said that any employee of plaintiff who had been disclosed as a lay witness during discovery was competent to testify in the form of facts or opinions about his or her given area of work for the company. The trial justice also granted defense counsel leave to renew his objection during the course of the trial depending on the scope of the proposed witnesses' testimony. Similarly, the trial justice held in abeyance defendants' pretrial motion requesting a Daubert hearing with respect to any expert witness.
At trial, plaintiff presented the testimony of five of its employees and introduced numerous exhibits to explain its investigation and calculations of lost revenue for unbilled electricity provided to defendants' home. Mrs. Carbone did not testify at trial, but plaintiff offered her pretrial deposition testimony as a full exhibit. Mrs. Carbone testified that she had lived at 90 Ann Drive since 1986, but did not know who did the original electrical work on the house. She said that the home was always gas-heated and had central air-conditioning since 1986. She was unsure when the heated in-ground pool was built, but believed that it was around 1998. Mrs. Carbone testified that she did not know whether the unmetered panel was in the house since it was built, and she had no idea about which appliances each of the two panels serviced. She said that she was unaware of the illegal bypass until after the search, when she heard of the accusations against her and her husband on a television news report.
At the close of plaintiff's evidence, both plaintiff and defendants made motions for judgment as a matter of law. The trial justice reserved on the motions. Mr. Carbone then testified that the bypass was not installed when the house was built in 1986, but rather in 1997 or 1998, when one Pat Saggerson did electrical work in connection with the regrading of the yard and installation of the pool, pool house, shrubs, air-conditioning, and exterior lights.3 Mr. Carbone said that he did not have a bill from Mr. Saggerson's work because the two had a friendly relationship in which each would sometimes do work in return for work done by the other. Unlike Mrs. Carbone, who testified that they had central air-conditioning since 1986, he said that the electrical air-conditioning units were not in the home since it was built. He averred that his wife was mistaken about the time when the air-conditioning and the heated pool were installed. He also said that he did not use the electrical heaters in the garage because they did not work properly. Mr. Carbone said that he did not label the unmetered panel with the appliances shown on it except for one label for a "bug light," and did not know who did because it was a "used panel."
James D. Paliotta, an electrical contractor, also testified for defendants that he installed the air-conditioning units in the Carbones' house in 1997. At the close of all the evidence, defendants renewed their motions for judgment as a matter of law. The trial justice once again decided to reserve on the motions until he delivered his decision in the case.
On February 18, 2004, the trial justice issued his bench decision. He rejected Mr. Carbone's contention that the bypass was installed in 1997, finding instead that it was installed in 1986, when the house was built. He found that "Mr. Carbone's testimony as it relates to the bypass having been installed in 1997 rather than 1986[was] not credible" in light of the inventory of usage that existed on the premises up to 1997. He said that it was "unlikely that the residence did not have an unmetered panel" since 1986 based on that inventory, and found that Mr. Carbone had knowledge of the presence of the bypass since 1986. The trial justice further found that the pool was not installed until 1997 and that the pool house and pool heater were not installed until 1998.
The trial justice also noted that plaintiff "presented detailed evidence" comparing the billed electricity usage to what it contended was the actual usage. Accordingly, he concluded that plaintiff sustained $147,832 in damages for loss of revenue as a result of the bypass, which figure factored in adjustments for the pool not being in use until 1997. He said that this significant figure must be understood in light of the multitude of electrical appliances inventoried at the premises, which he listed in some detail.4 He also noted that defendants did not challenge plaintiff's revenue loss calculations "in any serious manner other than to baldly assert that it is speculation," and "offered no alternative calculation." Based on this, the trial justice found that plaintiff had clearly met its burden of proof on damages.
On the first claim for book account, the trial justice found Mr. Carbone not liable after noting that summary judgment already had been granted in favor of Mrs. Carbone on that count before trial. On the claim for conversion, Mr. Carbone was found individually liable for $147,832, "the value of the electricity converted," plus $1,861, the "uncontroverted sum that plaintiff reasonably expended to detect and ascertain the illegal usage." Mrs. Carbone was found not liable for conversion because she did not have the requisite knowledge of the bypass. On plaintiff's claim for unjust enrichment, the trial justice found Mr. and Mrs. Carbone jointly and severally liable for $147,832, or "the value of the electricity that was received as a result of the bypass." Finally, after noting that count...
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