Town of Wallingford v. Gary Magliulo (2011)

MEMORANDUM OF DECISION

This is a civil action filed by the Town of Wallingford (town) against the defendant Gary Magliulo alleging that the defendant is liable for charges for electric service rendered to him by the electric division of the town.

The complaint alleges that the electric division provided electric service to the defendant from October 3, 2005 to June 2, 2008 and that there is a balance owed on the account of $9,645.62.   The defendant denies that he owes anything on the account and he has filed a special defense alleging that the plaintiff was negligent in not pursuing payment from the responsible party and in not terminating the electric service when the responsible party failed to pay the outstanding charges.

This court heard this case in a bench trial on May 24, 2011.

The court finds the following facts and reaches the following conclusions.   On October 3, 2005 and for some time prior thereto, Margaret Magliulo, wife of the defendant, was the owner of a restaurant business located at 1874 Middletown Avenue in the town of North Branford, Connecticut.   On October 3, 2005 the defendant opened an account in his name with the plaintiff by signing a “connect” form whereby the plaintiff supplied electric service to the restaurant business.   The plaintiff supplied electric service to the defendant's account until June 2, 2008 when the defendant signed a “disconnect” form authorizing the electric service to be shut off.   The plaintiff had a written policy since 1994 whereby all customers were required to sign a “connect” form before the service would be turned on, and a “disconnect” form in order to have the service turned off.   The total outstanding charges on the defendant's account as of June 2, 2008 were $9,645.62.

The claim by the defendant that he does not owe the outstanding charges is based on his claim that on April 7, 2007 he advised the plaintiff that his wife had sold the business to their daughter Megan and her husband doing business as GBF Enterprises, LLC, and that the plaintiff should look to Megan for payment from that date forward.   He did not fill out and sign a “disconnect” form, and he claims that no one in the defendant's office advised him that he was required to do so.   He claims that the employees in the plaintiff's office told him to send his daughter in to sign up for the electricity.

The monthly bills had been sent since October 2005 by the plaintiff to the defendant at the defendant's residence at Scrub Oak Road in North Haven, and they continued to be sent to the defendant at that address until December 2007 when Megan requested that the bills be sent to the address of the restaurant business.

The defendant's testimony with respect to his visits to or telephone calls to the plaintiff's office was inconsistent.   He claimed that he went down or telephoned the defendant's office every month from April 2007 to December 2007 and told them it was not his bill.   He claims that no one told him he had to sign a “disconnect” order to get his name off the account.   He claims that each month someone in the office would say they would take care of it.   He testified that when the bills stopped coming to his house in December 2007 he believed that the plaintiff “finally took it out of my name and they finally started billing her.”   After the bills stopped coming to his house he testified that after a few months he had a “funny feeling” and went down to the plaintiff's office on June 2, 2008 and they told him his name was still on the account and they asked him to sign a “disconnect” order.   The defendant signed the “disconnect” order and he was not charged for electricity after that date.

Margaret Magliulo sold the restaurant on March 8, 2007 to GBF Enterprises, LLC, a business owned by her daughter and her son-in-law, for $425,000 and the defendant took back a second mortgage.   Eventually the business failed, the daughter filed for bankruptcy, the defendant foreclosed on the second mortgage and regained title to the property, the defendant opened a new account with the plaintiff, the property was sold to a third party, and the defendant's account disconnected.

The defendant also testified that he called the plaintiff's office or went to the office five or six times between April 2007 and December 2007 and that his complaints made at the office are in the defendant's records that are in evidence.  “Its in their records saying that I was in there five times.”   Exhibit D is the defendant's record of all activity on the account in question from October 3, 2005 to September 17, 2010.   There is no record of the defendant complaining about anything either personally or by telephone from April 2007 to June 2, 2008.   In addition, the defendant also testified that he called or visited the office 9 or 10 times.   There is a notation on June 2, 2008 in exhibit D, which is the day he finally signed the “disconnect” order, that the defendant said he has been trying to get the electricity shut off since the 1st of the year, which is inconsistent with his claim of complaints from April 2007.   There is also a notation on January 28, 2008 that his daughter has been operating the restaurant under her father's name and to please call him at 203–234–1085 before disconnect.   An entry on February 18, 2009 indicates that that is the defendant's telephone number.

The court finds that the defendant's testimony has been inconsistent and not credible with respect to his efforts to have his name taken off the account with the plaintiff.   The defendant and his wife operated the restaurant from October 3, 2005 until it was sold to an LLC operated by their daughter and her husband on March 8, 2007.   The defendant paid the electric bill in full that was owed as of that date.   The sales price was $425,000 and the defendant took back a second mortgage.   The LLC took over the restaurant as of March 8, 2007 but the electric account in the defendant's name was not changed.   The defendant knew the electric account remained in his name and that he was responsible for it but he did not make any effort to change the account until June 2, 2008 when he went to the plaintiff's office and signed a “disconnect” order.   The plaintiff has proven all of the essential claims in its complaint and has proven that the defendant is responsible for the outstanding bill of $9,645.62.   The defendant has failed to prove his special defenses.

A judgment may enter in favor of the plaintiff in the amount of $9,645.62.

William L. Hadden, Jr. Judge Trial Referee

Hadden, William L., J.T.R.