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Connecticut Light and Power Co. v. Proctor

Supreme Court of Connecticut

December 28, 2016


          Argued September 19, 2016 [*]

          Derek V. Oatis, for the appellant (defendant).

          Alexander G. Snyder, for the appellee (plaintiff).

          Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.


          McDONALD, J.

         The sole issue in this certified appeal is whether the trial court properly found that the defendant, Gary Proctor, manifested assent to enter into an implied in fact contract with the plaintiff, Connecticut Light and Power Company, for the provision of electric services to a third party. We conclude that the Appellate Court properly determined that the trial court's finding that the parties had entered into an implied in fact contract under which the defendant would be responsible for payment for those services was not clearly erroneous. Connecticut Light & Power Co. v. Proctor, 158 Conn.App. 248, 256, 118 A.3d 702 (2015). Accordingly, we affirm the judgment of the Appellate Court.

         The record reveals the following undisputed facts and procedural history. Prior to June, 2008, the defendant was employed by Avicula of America as general manager of its poultry business conducted on a farm leased by Avicula at 44 Upper Butcher Road in Ellington (farm). In June, 2008, Avicula sold the business to Robert Chan, Eastern Poultry Distributors, LLC, and Pedigree Chicks, LLC, who continued to operate the business at that site. The defendant was retained by Pedigree Chicks on a part-time basis to facilitate the transition. As part of that transition, the defendant was asked to set up an account for electric services for the new business. After the defendant contacted the plaintiff, it provided such service to the farm under an account in the defendant's name until August 20, 2009, at which time service was disconnected for nonpayment.

         In December, 2011, the plaintiff brought the present action against the defendant for breach of an implied contract and unjust enrichment, alleging that it had provided electric services to the defendant at his request and that $14, 620.51 in bills remained outstanding. The matter proceeded to a bench trial. The plaintiff proffered testimony from two of its representatives and documentary evidence. The defendant proffered his own testimony and no other evidence.

         The plaintiff's primary witness, Jennifer Dupuis, who had experience monitoring delinquent accounts for the plaintiff, testified regarding the plaintiff's internal procedures for the creation and maintenance of its electric services accounts. She testified that whenever there are communications between the plaintiff and a prospective customer or a customer with an existing account, a notation is made in the plaintiff's internal computer system documenting the event. These notations, according to Dupuis, are made during or shortly after the event described therein. With that foundation, the plaintiff introduced internal records documenting its communications with the defendant through Dupuis. Although Dupuis had no personal knowledge of these communications, she was able to explain the meaning of certain abbreviated terms or terms of art used by the plaintiff's representatives in the ordinary course of business to document these interactions.

         The internal records reflect that the defendant first contacted the plaintiff in August, 2008, regarding electric services for the new business. The representative who received the ‘‘service inq[uiry]'' noted that ‘‘[the defendant] has the business Ped[i]gree Chicks . . . .'' The record further noted that Pedigree Chicks was not registered with the Connecticut Secretary of the State (state), which Dupuis explained was a requirement for establishing a commercial account. The defendant informed the representative that he did not want to put the account in his name. The defendant inquired about the balance due from the previous business but was unable to obtain that information because he could not provide Avicula's account number, and informed the representative that he would get in touch with the previous business to get more information.

         The defendant telephoned the plaintiff again in November, 2008. According to the record of that call, the defendant informed the plaintiff that the ‘‘company took serv[ice]'' as of June 20, 2008. According to Dupuis, when a prospective customer requests service, the representative always asks from what date the customer wants service to be established under the name of the newly created account. The record indicated that the representative cancelled the bill for the previous customer back to June 20, 2008, processed documentation to have an account set up, verified a mailing address, sent an application, and quoted a deposit of $2520.

         Contemporaneous with the creation of that record, the plaintiff generated a ‘‘customer maintenance page'' displaying the defendant's first name, middle initial, and last name, his home and cell phone numbers, and his Social Security number.[1] Dupuis testified that such information would be obtained only if the customer was ‘‘knowingly [accepting] personal responsibility for an account . . . .'' The maintenance page indicated that the ‘‘legal entity'' for which services were to be provided is a ‘‘proprietorship'' for the defendant, with the defendant's name as the only entry in the field for ‘‘Responsible Parties.'' The page also denoted that the defendant was doing business as Pedigree Chicks with the farm's address listed as the service address. Pedigree Chicks was still not registered with the state at this time or any relevant time thereafter.

         The defendant received at his home address a document entitled ‘‘Commercial & Industrial Application for Service'' designated for a ‘‘PROPRIETORSHIP, '' which was accompanied by a letter dated November 26, 2008, the same date as the November telephone call. The defendant's name was on the first line of the application under the field for ‘‘Account Name.'' The application listed the defendant's home address as the mailing address for the account and the farm's address as the service address. According to Dupuis, it is the plaintiff's regular practice to verify with each customer to what address he or she wants correspondence to be delivered and that this correspondence would not have been mailed to the defendant's home address unless he had requested it. There was no reference to Chan, Eastern Poultry, or Pedigree Chicks in the application, nor to any addresses associated with any one of them other than the farm.

         The letter accompanying the application was addressed to the defendant, also noting his home address. The subject field stated ‘‘Application for Service-Deposit Required, '' listed an account number underneath, and the farm's address below the account number. Just as with the application, there was no reference to Chan, Eastern Poultry, or Pedigree Chicks in the letter. As to the content of the letter, it thanked the defendant for his ‘‘request'' for electric service, indicated that a security deposit was required for the account, for which the defendant would be billed shortly, and asked that hecomplete and return the application.

         The defendant neither returned the application nor paid a deposit. There is no record that any bill for a deposit was ever issued in connection with the subject account. Dupuis testified that the plaintiff may-and routinely does-accept oral applications from prospective customers or, at its election, may require a written application as a condition to service. The letter requested that the application be returned within seven days but did not state that receipt of a signed and completed application was a condition to service.

         According to the plaintiff's records, the defendant telephoned the plaintiff again on January 13, 2009, ‘‘because he had not received a billing.'' Dupuis testified that, in order for a representative to discuss matters relating to an account that had been created, the account holder would have to verify his personal information contained in the plaintiff's internal database. The plaintiff's record of this call first reflects that ‘‘order instructions indicate that [the] customer has accepted responsibility for this site as of June 20, 2008.''[2] It then indicates that the defendant told the representative that the account should not be in his name because he was ‘‘only the manager.'' The record noted that the representative suggested to the defendant that he should get the company to take over the service, but reminded him that it would have to be registered with the state. The record indicated that the defendant responded that he was immediately ‘‘driving to New Jersey (company headquarters) to discuss this property.'' The plaintiff's records denote a ‘‘mailing address change'' on the same date as this telephone call with the defendant.[3]

         According to the plaintiff's records, the next communication was initiated by one of the plaintiff's representatives to the defendant's cell phone in February, 2009, ‘‘to find out what the status is of his parent company taking over this service going back to June, 2008.'' The record indicates that the defendant believed that ‘‘they already had'' done so and provided a meter number for the account on which they were purportedly paying the bills. The record noted that ‘‘they have new billing in ‘his' name but have not [received] bills as [the plaintiff has] not processed this move.'' Dupuis explained that bills are not sent to the new customer until the plaintiff has processed a ‘‘move in order, '' which results in the closing of the current account and the substitution of the new account holder. The defendant identified Eastern Poultry of Brooklyn, New York as the ‘‘parent company'' and ‘‘another company: Pedigree Chicks, '' with a New Jersey address. The representative noted that the defendant was going to contact the ‘‘parent company'' one more time. There is no indication in the records that the defendant asked to terminate service under the account.[4]

         The first bill for the account was not issued until May, 2009. That bill and all subsequent bills for the account were issued in the defendant's name, but mailed to the farm. Dupuis stated that the delay in issuing the first bill resulted from the defendant's purported request to retroactively assume responsibility for services dating back to June 20, 2008, which was a period for which the prior account holder had been billed. The plaintiff never sent the defendant written notification of his responsibility for paying for services, which was in violation of its policies.

         In August, 2009, the plaintiff disconnected service on the account for nonpayment. The plaintiff thereafter referred the matter to a collections agency, which attempted to collect the debt from the defendant.

         According to the plaintiff's records, in April, 2010, the defendant called the plaintiff regarding the final bill on the account. The record summarizing this conversation indicated that the defendant said that ‘‘he worked for a company that had birds on their farm and needed a name to ‘borrow' to have electricity put on so he ‘lent' them his name, [but] they never paid the bill . . . .''[5]Dupuis testified that, in her experience making notations in the plaintiff's internal system, words within quotation marks reflect the exact words used by the customer. The plaintiff's representative who received this telephone call, Michelle Messier, testified and confirmed that the quoted words would have been the specific words used by the speaker.

         In a letter to the plaintiff's collection agency dated seven days after this call, the defendant disputed his responsibility for the debt, asserting that he neither leased nor owned the farm, and merely had been employed by the company that leased the farm. He further stated: ‘‘I did not know of any issue until recently regarding this account. . . . I have no connection to this account except to have been asked by the company I worked for and . . . Chan to get the [electric] account set up for him as he is out of state. . . . When I found out that this bill had my name on it, I telephoned [the plaintiff] informing them again, as I had during our first conversation, that this account belongs to [Chan], '' listing an address for him in New Jersey.

         In his testimony, the defendant could not recall the substance of most of the telephone calls with the plaintiff's representatives but he denied setting up the account in his name and authorizing the plaintiff to charge him for services, retroactive or otherwise. He testified that he had served only as a consultant to Chan and Pedigree Chicks for approximately three and one-half months, on a part-time basis, to facilitate the takeover of the poultry business and to set up an electric service account with the plaintiff. He testified that he had been paid expenses only for his efforts. He admitted that opening such an account was beneficial to the continuation of his relationship with Chan.

         With respect to the various communications with the plaintiff's representatives, the defendant recalled being told during the initial telephone call that he could not establish the account in the name of Pedigree Chicks because it was not registered with the state. The defendant confirmed that the plaintiff's customer maintenance page displayed his correct personal information. When asked on cross-examination if he had provided this information, the defendant replied, ‘‘I don't know honestly, '' ‘‘I could have, '' and ‘‘[i]t's possible, '' and conceded that there was no reason to believe the plaintiff had misappropriated the information from another source. He later testified that his ‘‘guess'' was that Chan had used his name to open the account after the defendant brought him the application, although he could not say that for a fact. He acknowledged that he did not know whether Chan had his Social Security number but upon further prompting from the plaintiff's counsel testified thatit was ‘‘very possible'' that Chan had misappropriated his personal information. With regard to the application for service, the defendant testified that, upon receiving it: ‘‘I got in my car, and I took it directly to . . . Chan and said, you know, you've got to have this in your name, and you've got to pay the bill, or, you know, pay the application fee.''

         When asked on cross-examination about the April, 2009 telephone call with Messier, the defendant stated that he could not recall whether he had made certain statements reflected in the plaintiff's record of that call. The following exchange then occurred between the plaintiff's counsel and the defendant with regard to one of those statements:

         ‘‘Q. And that that company needed a name to, quote, borrow, quote, to have electricity put on, so he lent them his name. Do you see that part?

         ‘‘A. I do.

         ‘‘Q. Do you recall ...

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