27-CV Plaintiff Mariann Beard-Goss appeared and was represented by Charles F. Webber, Esq.

Transcription

1 Filed in Fourth Judicial District Court 3/5/2014 4:39:46 PM Hennepin County Civil, MN STATE OF MINNESOTA COUNTY OF HENNEPIN DISTRICT COURT FOURTH JUDICIAL DISTRICT Mariann Beard-Goss, Plaintiff, vs. Karl Krueger d/b/a Dane Companies, Defendant. Case File No. 27-cv Case Type: Conciliation Appeal Judge: Karen A. Janisch FINDINGS OF FACT, CONCLUTIONS OF LAW VERDICT AND ORDER The above-entitled matter came on for a court trial before Judge Karen A. Janisch, undersigned Judge of District Court on January 29, 2014, on Defendant s Appeal of Conciliation Court Judgment. Plaintiff Mariann Beard-Goss appeared and was represented by Charles F. Webber, Esq. Defendant appeared pro se. The Court heard testimony from witnesses Mariann Beard-Goss, Jeffrey Hannah and Karl Krueger. The Court received the following exhibits introduced by Plaintiff: Exhibits 1-4, 6, 8-9, The Court received the following exhibits introduced by Defendant: Exhibit 102, 104. The following summarizes the exhibits: Exhibit 1 is a letter from Xcel Energy following a visit to the property. Exhibit 2 is a chart listing payments made by Plaintiff to Xcel Energy and CenterPoint Energy. Exhibits 3 and 4 are photos of the exterior of the property. Exhibit 6 is a photo of the water heater and furnace. Exhibit 8 is a photo of the gas meters for the property. Exhibit 9 is a photo of the washer and dryer set located in the property. Exhibit 15 is a schedule of rates, charges, rules and regulations for electric service in the state of Minnesota. Exhibit 16 is Plaintiff s final bill from Xcel Energy.

2 Exhibit 102 is an energy cost calculation for the appliances on the property. Exhibit 104 is a bill for the electrical house meter. Based on the testimony of the parties and witnesses, the evidence introduced, and the records herein, the Court makes the following: FINDINGS OF FACT 1. Plaintiff Beard-Goss was a tenant of the first floor of 1337 Irving Avenue North ( the Property ) in Minneapolis, Minnesota from September 30, 2011 through December 20, Defendant Krueger was Plaintiff s landlord. 3. The Property is a duplex in which each floor is one unit. Plaintiff occupied the first floor unit and another renter occupied a second floor unit. 4. The Property has a communal basement area. The basement was heated and lighted, and there was a washer and dryer for all tenants to use. The washer and dryer initially were coin operated and Defendant agreed to reduce the monthly rent by $25 for the shared utilities. Shortly after Plaintiff moved in, the washer and dryer were available without charge. 5. The Property has two electrical meters: one meter is for the first floor and basement and the other is for the second floor unit. The Property has two gas meters: one for the first floor and basement and the other for the second floor unit. 6. Upon moving into the building, Plaintiff was customer of record for the Property s Xcel Energy and CenterPoint Energy electric and gas bills and was responsible for paying these bills directly. Plaintiff produced a chart listing payments she made for the Property to Xcel Energy and CenterPoint Energy (Exhibit 2). 7. Plaintiff provided credible testimony that she paid the amounts in the Xcel and CenterPoint bills. Plaintiff also testified credibly that she received energy assistance through Xcel Energy and produced a letter from Xcel following their audit of the property (Exhibit 1). Plaintiff produced her final bill from Xcel Energy (Exhibit 16). 8. Jeffrey Hannah, an electrician, testified credibly that the first floor electrical meter controlled the basement activity (Exhibit 5). 9. After an audit by Xcel, Plaintiff learned that she should not be responsible for the gas and electricity for the common area. Xcel immediately switched the future billing to Defendant. 2

3 10. Because a single meter registered the use for her unit and the common basement, Plaintiff bills included the gas and electric for shared washer (electric plus gas for water heater), clothes dryer (unclear whether gas or electric) 1, dehumidifier (electric), furnace heat to basement (gas) and lighting for the basement (electric). 11. The basement and laundry were at times used heavily by the upstairs tenants. The upstairs unit frequently had more people living there than were on the lease including individuals with young children. She was aware the laundry was frequently used by persons other than the tenants named in the lease. She complained about the upstairs tenants and number of people in the unit and the impact on her electric bill. Defendant gave her $ During her tenancy, Plaintiff paid bills from Xcel Energy totaling $974. Plaintiff paid bills from CenterPoint Energy totaling $1, The electric and gas bills totals $2, Defendant testified credibly that he was not aware of the single meter standards until the Xcel audit. He believes the single meter for Plaintiff s unit and the basement was permissible, however, based on the de minimis exception. He believed that if electric usage in the common area was less than 1752 kilowatts per year the single meter was allowed. 14. Defendant estimated the total electric use for the common area based on an electrical cost calculator (Exhibit 102). He estimated the common area used 311 kwh/yr for six 60 watt light bulbs assuming operation of 72 hrs/year. He also estimated the electric washer and gas dryer which he assumed were typical in energy use and allocated for a total of 6 loads per week to result in 269 kwh/yr. 2 Defendant s estimates were based on use assumptions not use specific to the Property or the specific equipment at the Property. Moreover, Defendant s calculation does not include the basement dehumidifier. 15. Plaintiff provided as Exhibit 15 a copy of the Northern States Power Company (Minnesota) Electric Rate Book Schedule of Rates, Charges, Rules and Regulations for Electrical Service in Minnesota. The General Rules and Regulations identify the general rules for use of service for a single-metered residential building pursuant to Minn. Stat. 504B.215 and the de minimis exception. The filed Schedule (Section 6, 4 th Revised Sheet No ) provides: Electrical service in a single metered residential building, as defined pursuant to Minn. Stat. 504B.215 shall be billed to the landlord/building owner except when a de minimis exception exists. A de minimis exception to the determination that a building is a single-metered residential building exists 1 The record is not clear whether the dryer was solely electric or whether it was gas operated with some minimal electric. There was testimony the dryer was an electric dryer. However, in Exhibit 102, Defendant ran the electric energy use calculation with a natural gas dryer. 2 If the dryer was an electric dryer rather than a natural gas dryer it would use significantly more electricity. 3

4 if electrical service used in a common area but measured by an individual tenant s meter does not exceed an aggregate 1,752 kilowatt hours per year. The landlord shall bear the burden and cost associated with proving an exception. (Minnesota Statute 504B.215 Subd. 2 requires the landlord of a single-metered residential building shall be the bill payer responsible, and shall be the customer of record contracting with the utility, and requires the landlord to advise the utility of the existence of a single-metered residential building). Except were a de minimis exception applies, a single metered residential building includes the following situations: shared meter in which a utility meter measures service provided to a tenant s dwelling and also measures such service to areas outside that dwelling; or mixed wiring in which electric outlets, fixtures of devices outside the individual unit are included on an individual meter; or mixed plumbing when related to electric utility service such as when an electric water heater serves more than one individual unit. The Company shall respond to a tenant customer s request for a shared meter investigation within ten (10) business days. The Company s investigation shall consider whether a de minimis exception applies. The following may be representative de minimis examples: Common area lighting fixtures up to two 100-watt light bulbs operating 24 hours/day, seven days per week. Common area outlets without constant motor loads, such as an outlet in a hallway used for housekeeping. Common area garage door opener for non-commercial use. The following representative examples would not be considered de minimis use. Mixed wiring with another tenant unit. Laundry appliances accessible by multiple tenants. Common area lighting exceeding two 100-watt bulbs operating 24 hours per day. 7 day per week usage. A landlord seeking to prove a de minimis exception shall do so by providing evidence establishing by actual measurement that the usage does not exceed 1,752 kilowatt hours per year. Where such actual measurement is not possible the landlord shall present written documentation from a licensed tradesperson or housing inspector that this usage is not likely to exceed 1,752 kilowatt hours per year. Such evidence must be presented prior to, during or within 30 days of the conclusion of a shared meter investigation. 4

5 16. Defendant has not established with the electric provider that he is entitled to claim Plaintiff s unit as a single-meter residential unit pursuant to the de minimis exception. 17. Defendant did not present any actual measurements of the common area uses for the Property that would show actual common use to be less than 1752 kilowatt hours per year. Defendant did not offer any testimony from a licensed tradesperson or housing inspector establishing the usage in the common area is not likely to exceed 1752 kilowatt hours per year. 18. Plaintiff brought this action in conciliation court claiming $6, in treble damages under Minnesota Statute 504B.221(a) and $50.00 in costs on appeal. court. 19. Defendant appealed the result of a finding in favor of Plaintiff in conciliation CONCLUSIONS OF LAW 1. The Court finds that Plaintiff s unit was a single-metered residential building because a single meter provided service to an individual unit and to all or parts of common areas or other units. Minn. Stat. 504B.215, Subd. 1. Although there was a second meter attached to the property, the meter which serviced Plaintiff s apartment provided service to her apartment and the basement common area. 2. In light of that finding, the Court finds that the parties did not have a valid agreement requiring Plaintiff pay for electricity and gas for the entirety of the property. A landlord must be the customer of record on a single-metered building and that duty may not be waived by contract. Minn. Stat. 504B.215, Subd Minnesota Statutes 504B.215, Subd. 3 creates a potential de minimis exception as follows: Any tariff approved by the Public Utilities Commission regarding a violation of subdivision 2 shall include a de minimis exception. The de minimis exception shall provide that electrical service in a common area that does not exceed an aggregate 1,752 kilowatt hours per year, which service is measured through a meter serving an individual residential unit, shall not cause a building to be a "single-metered residential building" as used in this section. The amount of common area usage may be determined by actual measurement or, when such measurement is not possible, it may be determined not likely to exceed 1,752 kilowatt hours per year by a licensed tradesperson or a housing inspector. The landlord shall bear the burden and cost associated with proving an exception. If a tariff is not adopted, this subdivision shall have no effect. 4. Plaintiff s Exhibit 15 sets forth the tariff adopted for the electrical service provider and establishes and defines the de minimis exception for electrical service. 5

6 5. Defendant bears the burden of proving that the de minimis exception applies. He has not met his burden of proof. As to electrical use and the tariff filed by the electrical provider, shared laundry facilities do not qualify for a de minimis exception. Even assuming such use could be permitted under the tariff standards, Defendant did not establish by actual measurement or appropriate qualified testimony that the usage for the common area for electricity was less than 1,752 kilowatt hours per year. 6. Defendant did not establish that the gas service provider and the Public Utilities Commission have adopted a tariff for gas services. Without an established tariff, the subdivision regarding a de minimis exception shall have no effect. Minn. Stat. 504B.215, Subd Pursuant to Minn. Stat. 504B.215, Subd. 2, Defendant was to be the bill payer responsible for the electrical and gas service for Plaintiff s unit. There was no valid provision in the lease that apportioned the utility costs to Plaintiff in compliance with the requirements of Minn. Stat. 504B.215, Subd. 2a. 8. Defendant violated Minn. Stat. 504B.215, Subd. 2. Violation of Minn. Stat. 504B.215, Subd. 2 is a violation of Minn. Stat. 504B.221 for interruption of utility services and entitles the tenant to recover treble damages or $500 whichever is greater. The preponderance of the evidence does not establish that any of the provisions limiting recovery to only actual damages applies. See Minn. Stat. 504B.221(a)(1-3). 9. Plaintiff s actual damages are the amount she was billed and as the responsible bill payer when the statue required Defendant to be the responsible bill payer, less the amounts the Defendant actually provided to Plaintiff for reimbursement of these bills through the lease reduction and $64 contribution. The amount of actual damages is $2, less the $64 direct contribution by Defendant. Plaintiff s actual damages are $2, Plaintiff s treble damages are $6, Plaintiff is entitled to recover $6, plus $50 in costs on appeal from Conciliation Court under Minnesota General Rule of Practice 524(b). ORDER AND VERDICT 1. Plaintiff is entitled to a judgment against Defendant in the amount of $6, plus $50 in costs on appeal for a total amount of $6, LET JUDGMENT BE ENTERED ACCORDINGLY BY THE COURT SigPlus1 Dated: March 5, / 05/ :46:25 pm Karen A. Janisch Judge of District Court 6