# District of Columbia Court of Appeals

No. 1 6

- AA

- 529

WILLIE T. CRAFT, Petitioner,

v. 0108321

- 1

DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY,

Respondent.

On Petition for Review of an Order of the District of Columbia Water and Sewer Authority

BEFORE: Glickman and Thompson, Associate Judges

, and Ferren , Senior Judge.

J U D G M E N T

This case was submitted to the court on the transcript of record, the briefs, and without presentation of oral argument. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

ORDERED and ADJUDGED that the Hearing officer ’ s decision is affirmed.

For the Court:

Dated: J anuary 18, 2018.

Opinion by Senior Judge John M. Ferren. JAN 18, 201 8Notice: This opinion is subject to formal revision before publication in the

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 16

- AA

- 529

W ILLIE T. C RAFT , P ETITIONER ,

V

.

D ISTRICT OF C OLUMBIA W ATER AND S EWER A UTHORITY , R ESPONDENT

.

Petition for Review o f an Order of D.C. Water and Sewer Authority

(0108321

- 1)

(Submitted Nov ember 30 , 201 7 Decided January 18, 2018)

Willie T. Craft, pro se

. Randy McRae submitted a brief as attorney for petitioner at the time the brief was filed

.

Emil Hirsch and Steven A. Pozefsky filed the brief for r espondent.

Before G LICKMAN and T HOMPSON , Associate Judge s , and F ERREN , Senior Judge

.

F ERREN , Senior Judge : Appellant Willie T . Craft seeks a refund of more

than $77,000 from the DC Water & Sewer Authority (“DC Water”) based on a

billing dispute for the period Ja nuary 1974 to January 2014. The dispute concerns

two adjacent lots in the 4300 block of Nannie Helen Burroughs Avenue, N ortheast 01/18/20182

(the “Craft lot” and “McDonald‟s”), which share a private service line from the

water main. Because any application for a ref und must be made within two years

after an erroneous payment (as the hearing officer properly ruled), 1 we may
consider Craft‟s claim only for the period beginning January 21, 2013, based on his

C laim for Refund of O verpayment s dated January 21, 2015. We a ffirm.

I. Facts and Proceedings

The developer of the property covering both lots 2 installed one private,

underground water service line, which originated on the Craft lot and serves not

only the businesses there (a dry cleaner, flower shop, and daycare cen ter)

, but also

the neighboring McDonald‟s franchise. On January 21, 2015, Craft filed his claim

for refund totaling somewhere between approximately $77,000 and several

1 D.C. Code § 34

- 2401.10 (2001). At no time has Craft argued that this statute of limitations does not apply, or that if it ordinarily would apply, there was some equitable exception that could eliminate its application in this case.

2 The developer was Golden Arch Realty

, the “predecessor in interest” of McDonald‟s Real Estate Company, which owns the lot on which the McDonald‟s franchise at issue sits. McDonald’s USA

, LLC v. Craft

, 263 F. Supp. 3d 56 ( D.D.C. 2017)

.3

hundred thousand dollars, based on alleged doub le

- billing for McDonald‟s water. 3

Craft alleged, more specifically, that all the water for both properties “ran first

through [his] meter,” and was charged to him, then “diverted to the McDonald‟s

property, where it was metered again” and charged to McDonald‟s

. Craft thus

sought a refund of th e dollars charged to him for McDonald‟s water.

On February 27, 2015, in a letter from Laura Preston, the utility‟s Customer

Service Director, DC Water denied the claim on the ground that the problem was

attributable to construction of a “shared water serv ice line” for both properties.

The denial letter stated that, with the exception of a malfunctioning water meter

(not at issue here), DC Water‟s responsibility for maintaining infrastructure ends at

the property line. 4 It explained DC Water ‟s legal posit ion as follows:

In accordance with the Laws of the District of Columbia each property owner is responsible to construct, provide and maintain the plumbing and related appurtenances

3 A previous claim alleg ing a faulty meter for water usage from July 2014 to October 2014, was dismissed because Craft did not appear at the hearing.

4 21 DCMR § 110.2 (“ The Department [DC Water] shall maintain all water service pipes from the street main to the property line”); id. § 110.4 (property owner responsible for all maintenance on private property); id. § 300.1 (meters are owned by DC Water).4

within the private property boundary for their own use. To our knowledge t his has not been done. At present Mr. Craft is responsible financially for all water use recorded on the meter assigned to his account . In order for there to be two separate accounts, two separate lines from our water main, one to each property, are requ ired. The responsibility to resolve this condition is solely on the owners of the commercial properties, Mr. Craft and McDonald‟s, and not DC Water‟s. [Emphasis added.]

Craft petitioned for an administrative hearing, which was held on March 1,

2016. 5 The petition alleged that from January 1974 to January 2014, Craft (and,

before him, his father) paid DC Water for the water serving both lots

— Craft‟s

and McDonald‟s

— and that Craft is therefore entitled to a refund totaling: (1) the

$77,237.04 6 paid by McDonald‟s to DC Water, with “appropriate deductions for

the retroactive credit [of $8,920.84] to [Craft‟s] account” paid by DC Water; 7 (2)

5 We omit references to pre

- hearing procedural skirmishes not relevant to our decision.

6 Craft alleges that this number is based on water bills that McDonald‟s paid between November 2003 and January 2015 (which Craft alleges, without corroboration, tot al ed $77, 237.04). Through a process of extrapolation, Craft claims that “it is reasonable to assume that the water bills generated by the restaurant over the previous 29 to 30 years would amount to several Hundred Thousand Dollars.” No bills , however, we re presented at the hearing or otherwise included in the record on appeal.

7 As elaborated below, despite its legal position that Craft was responsible “for all water use recorded on the meter assigned to his account ,” DC Water, as a (continued .

. .)5

“an amount equal to all water bills paid by [McDonalds] from October 1974 to

October 2002”; (3) “appropriate int erest on the refund amounts above”; and (4)

other relief deemed “just and appropriate.”

At the hearing before a DC Water hearing officer, Craft testified he had

learned from his father that, when the Craft family purchased its lot “from

McDonalds” 8 for ty years earlier, his father thought that McDonald‟s had “fixed”

the water meter to serve only the Craft lot. However, “for forty years” (apparently

without investigation), his father kept “scratching his head” at the “high water

bills.” Thus, when appel lant Craft took over responsibility for the family property,

he contacted DC Water in October 2012 with an unjust enrichment theory: that the

Crafts were receiving bills not only for the water they used but also for the water

consumed by McDonald‟s on the next lot

— a situation that DC Water , in April

2013, confirmed as true. To document this contention in his Claim for Refund,

Craft quoted from an email of June 25, 2014, from Laura Preston, DC Water‟s

Customer Service Director , to a member of the D.C. Co uncil staff :

________________ (.

. . continued) “courtesy,” credite d Craft with overpayments representing water that flowed to McDonald‟s property.

8 Craft was referring, presumably, to the McDonald‟s Real Estate Company. See supra note 2.6

The way the current construction works, all of the water [which] goes through the meter for both properties goes through Mr. Craft‟s meter first inside his property boundary, and then some of it is diverted and goes to Mr. Mateos‟ restaurant , where it is metered again. We send two bills

— one to [Craft] and one to [McDonald‟s].

After using this excerpt to explain the current situation, Craft summarized

the history of his water bills, as described in the email :

Effective January 1, 2014, D C Water instituted a “special arrangement” for the benefit of [Craft] and [McDonald‟s] in which DC Water calculates their bills under the following new formula: “

. . . we take all of the water that shows up in [McDonald‟s] meter and subtract it from [Craf t‟s] bill so that Mr. Craft is only billed for the net amount that he and his neighbors

. . . use.”
As for the issue of double billing, [Craft] was given a “retroactive credit” in the amount of $8,920.84. This figure was based on the amount of water bille d to McDonald‟s from March 2013 until January 2014. 9

9 DC Water‟s credit arrangement for Craft

, beginning in January 2014 with credit retroactive to March 2013, was developed not long after Craft contacted DC Water in October 2012 about alleged overbilling. DC Water discovered defective conditions in Craft‟s “meter vault,” which Craft did not have repaired until on or about November 6, 2013, when a new water meter was installed

— again (apparently) for the water consumed on both lots. In the meantime, in order to estimate water usage limited to Craft until the meter was repaired, DC Water based the bills “on the number and types of bus iness in Mr. Craft‟s side of the property.” Thereafter, beginning in January 2014 with the new meter in place, the bills reflected “actual meter readings,” less the amount billed to McDonald‟s.7

Craft understood this email to reflect DC Water‟s acknowledgement that

, over time, he had been paying the water bill for both lots, in addition to

McDonald‟s payment for its own lot, resulting in doubl e

- billing for McDonald‟s

water

. H owever, Craft does not dispute the “special” credit arrangement reflected

in Ms. Preston‟s email. Rather, he argues that the refunds to date have been too

meager. He therefore asks for a larger refund based on a new calc ulation : (1) t otal

all the water bills to McDonald‟s to be found in DC Water‟s records; (2) use
“yearly averages” to calculate McDonald‟s bills for earlier years, allowing for

“fluctuations in water prices”; and (3) total those two amounts , adding “ approp riate

interest.” 10

A review of the record reveals that

, for a substantial period

, DC water

essentially followed Craft‟s methodology in deducting McDonald‟s water usage

from Craft‟s bill. T o facilitate a long

- term solution between Craft and

McDonald‟s, DC Water provided Craft with a number of “ courtesy ” billing

accommodations

. The hearing officer found that, beginning March 27, 2013

—
two months after the claim period permitted by the statute of limitations began 11

—

10 See text surrounding supra notes 6 & 7.

11 See supra note 1 and related text.8

“DC Water stopped billing Craft based upon the water meter reading” for both lots.

Instead, it “start[ed] estimating [Craft‟s] water usage” and “bill[ing] McDonald‟s

separately for its water usage,” 12 an arrangement that (as noted in the Laura Preston

email) yielded Craft a n additional credit of $8, 920.84 through January 29, 2014.

Thereafter, “ DC Water provided an accounting adjustment [that] subtracted any

water billed to McDonald‟s from Mr. Craft‟s account as a courtesy.” The hearing

officer therefore agreed with DC Water‟s “characterizati on of how Mr. Craft‟s

water bills have been handled by DC Water from the point that he raised his

suspicion of double

- billing

. ” Sh e concluded that “[t ] he facts and evidence do not

support Mr. Craft‟s allegation of double

- billing.” In other words, DC Wate r had

cured the situation beginning March 27, 2013.

The idea underlying the courtesy adjustment was “to facilitate the property

owners coming up with an agreement for separating the water line between their

respective properties or devising an accounting arrangement between them.”

Although the record reflects an effort by Craft and McDonald‟s to negotiate such

an agreement whereby McDonald‟s would pay Craft “for the use of the water

12 See supra note 9 and related text.9

line,” it does not appear that this has occurred. 13 As a result, in its Fe bruary 27,

2015, letter responding to Craft‟s claim, DC Water stated that it planned to “cease

to do the courtesy accounting adjustment in May 2015” and urged Craft to work

toward resolving the matter “quickly.” According to a subsequent letter to Craft

d ated January 27, 2016 ( an unrebutted exhibit at the hearing )

, DC Water indicated

that in May 2015, it had extended the accounting adjustment through December

2015 and that it would do so, for the final time, at the end of “approximately 30

days,” around th e end of January 2016.

In sum

, for the two

- year period for which the statute of limitations had not

run 14 (January 21, 2013, to January 21, 2015), the hearing officer found that Craft

had received a courtesy adjustment from DC water for all but the first two months,

January 21 through March 27, 2013. Significantly, the hearing officer also found

that Craft had “provided no testimony or evidence to support an assertion that DC

Water‟s accommodation to him and to McDonald‟s resulted in undercharge or

overpa yment [for] either property owner” after the end of March 2013. Craft has

13 There are recent indications that negotiations have not been successful

, as Craft has been enjoined from turning off the water to McDonald‟s lot. See supra note 2

. Moreover, Craft‟s counterclai ms were dismissed for failure to state a claim; s ee McDonald’s USA

, LLC v. Craft , 238 F. Supp. 3d 1, 1

- 2 (D.D.C. 2017).

14 See supra note 1.10

not challenged, let alone refuted, any of the facts and findings elaborated in this

first part of our decision.

II. Hearing Officer Decision

The record supports the foregoing finding s of the hearing officer, and from

the discussion above

, it is clear that the contested issues must be limited to Craft‟s

charges for water during the limitation period of January 21, 2013

, through January

21, 2015. Craft raises three issues: (1) the hea ring officer erred in failing to admit

in evidence the affidavit of Carlos Mateos, the “franchise owner” of McDonald‟s;

(2) the hearing officer‟s “ruling that Craft failed to carry his burden of proof . . . is

unfounded”; and (3) the hearing officer‟s ruli ng was “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with the law.”

A.

After acknowledging that the customer challenging a water bill has the

burden of persuasion, Craft argues in his brief that the hearing officer‟s re fusal to

admit in evidence the affidavit of Carlos Mateos was an abuse of discretion

because that affidavit would have “assist[ed] in establishing the usage and billing

of water for McDonald‟s during the times herein discussed.” The hearing officer11

observ ed, however, that the affidavit was unsigned, that Mateos was not present at

the hearing, and that the lack of verification was of “potential prejudice to DC

Water.”

In response, counsel for Craft represented that he “had a signed affidavit by

Mr. Mate os , but he was unable to locate the document”

— a representation that did

not persuade the hearing officer. Even without regard to whether the affidavit was

inadmissible hearsay, we are satisfied that the hearing officer did not abuse her

discretion when refusing to admit a defective affidavit in evidence.

After the hearing, however, Craft sought reconsideration, this time

proffering the affidavit signed, dated, and notarized. The hearing officer was

unmoved. Acknowledging that some affidavits, although hearsay, can be

admissible in administrative proceedings, 15 she denied reconsideration because

Craft had “ample opportunity” during the hearing to introduce an “acceptable

affidavit by Mr. Mateos”; Craft failed to “request leave to submit an executed

15 See Compton v. District of Columbia Bd. of Psychology , 858 A.2d 470, 476 & n.8 (D.C. 2004) (“unless it is irr elevant, immaterial, or unduly repetitious, hearsay is admissible in administrative proceedings” (citing D.C. Code § 2

- 509 (b) (2001)).12

versi on of the affidavit post

- hearing,” before the record closed; and in any event

, “DC Water lacked opportunity to examine the statements, allegations and version

of events addressed in the document.” Again, we perceive no abuse of discretion.

The affidavit has seven short paragraphs averring that: (1) Matteos owns the

McDonald‟s franchise; (2) his restaurant borders the Craft lot; (3) the two

properties “share a common water line”; (4) his schedule does not permit his

appearance at the hearing; (5) based o n Craft‟s concerns about “the amount of his

water bills and the operation of the water meters servicing the properties,” a

meeting was held at the McDonald‟s restaurant in May 2014, with eight persons

present: Craft and his advisor, Mateos and his represe ntative, an aide to D.C.

Council member Alexander, and three DC Water representatives; and (6) he cannot

recall the names of the three DC Water representatives, although he proffered their

descriptions. Matteos then added a seventh paragraph: that (a) “a s far back as they

could research, McDonald‟s had an active meter and was paying for the water

coming into the McDonald‟s property”; that (b) “DC Water could not distinguish”

the amounts of water used by the individual businesses on Craft‟s property; that (c)

until Craft “brought it to their attention,” DC Water was “billing Mr. Craft for the

water consumed” by McDonald‟s, and “also billing [Mateos] for the same water

use”; and that (d) upon learning of the situation from Craft, DC Water “began13

looking at [ McDonald‟s] meter reading and deducting the amount of [that] meter

reading from the total of Mr. Craft‟s water bill.”

The first six paragraphs of the affidavit add nothing of substance to Craft‟s

claim. Moreover, subsections (7)(a) and (7)(b) are easil y dismissed, the first for

vagueness, the second for irrelevance. Subsections (7)(c) and (7)(d), however, are

more substantive. T aken together, t hese subsections essentially

— though

cryptically

— reflect the “special arrangement” and $8,920.84 credit re flected in

the Laura Preston email. Accordingly, because of this apparent consistency

between Craft‟s demand and DC Water‟s response

— a response applicable to

virtually the entire limitation period for Craft‟s claim

— the hearing officer‟s

decision to ex clude the affidavit has not prejudiced Craft. Its evidentiary weight

would have been de minimis

.

B.

Although the Mateos affidavit, in its last subsections, did not contradict DC

Water ‟s evidence, Craft did not concede its entire case . Thus, we turn to C raft‟s

second contention : that the hearing officer erred in ruling that Craft had not

carried his burden of proof to justify a refund.14

F irst , we have noted that the claim must be limited to the two

- year period of

January 21, 2013

, to January 21, 2015, not the forty years Craft proffered for a

refund.

Second , upon asking for a hearing to challenge DC Water‟s refusal to honor

his claim, Craft assumed responsibility to carry the burden of persuasion

— “the

ultimate „burden of proof‟ by a „preponderance o f the evidence.‟” 16

Acknowledging explicitly that Craft had presented a prima facie case supporting

his claim, 17 the hearing officer found that DC Water had rebutted Craft‟s claim, to

the point that Craft then had the burden of producing evidence sufficient to refute

DC Water‟s evidence, in keeping with Craft‟s ultimate burden of persuasion, as

claimant. 18 Craft failed to carry that burden. The record supports the hearing

officer‟s finding (noted earlier) that Craft has “provided no testimony or evidence

16 Gatewood v. D.C. Water & Sewer Authority , 82 A.3d 41, 51 (D.C. 2013).

17 See id. at 52 (D.C. 2013) (“To carry [the ] burden of persuasion at the hearing, . . . the customer must present a prima facie case showing that the customer was not responsible for the contested water use. If the customer does so, the burden of production shifts to the . . . utility . . . to res pond with credible evidence in rebuttal. If the utility does make a sufficient showing, the customer must trump the utility‟s response with evidence sufficient to carry the burden of persuasion, which remains always with the customer”).

18 See id.15

to support an assertion that DC Water‟s accommodation to him and to McDonald‟s

resulted in undercharge or overpayment [for] either property owner.” More

specifically, in addition to lack of persuasive rebuttal testimony, Craft produced no

water bills or othe r documentary evidence at the hearing (other than the defective

Mateos affidavit) to support his claim. Nor did he refute

, in any way

, the evidence

of credits granted by DC Water for Craft‟s overpayments, including the ongoing

accounting adjustment summar ized in part I. above

— a regime consistent with

subsections (7)(c) and (7)(d) of the Matteos affidavit that Craft proffered.

Third

, DC Water acknowledged that its “courtesy adjustments” did not cover

the first two months of the two years that survived t he statute of limitations,

namely, January 21 through March 27, 2013. On the other hand, we do not know

what Craft‟s claim for this period would have been. He produced no water bills or

other evidence that would substantiate any claim to a refund for th o s e first two

months. Thus, the hearing examiner did not err in declining to find DC Water

liable for those months (among others). 19

19 We have previously noted, see supra note 9, that during DC Water‟s investigation of Craft‟s first contact with the utility in October 2012, DC Water discovered that, because of the deteriorating “condition of the plumbing” in Craft‟s meter vault, Craft app arently had been receiving “estimated meter readings,” (continued .

. .)16

Finally , we reaffirm the validity of DC Water‟s legal premise underlying its

response to Craft‟s claim, quoted at length ab ove (in the first paragraph of part I.)

from Laura Preston‟s February 27, 2015, letter to Craft: aside from issues of meter

malfunction (irrelevant here), DC Water‟s responsibility for water line

infrastructure on a property ends at the property line. 20 T he difficulties caused by a

single water line extending through the Craft and McDonald‟s lots are therefore the

responsibility of the owners themselves to correct. We agree with the hearing

officer:

The water meter is on Craft property and, as owner, Mr

.

Craft was/is responsible for payment of water and sewer services and charges[,] and if McDonald‟s is piggy backing its water usage through Mr. Craft‟s water meter, the dispute for payment of the bill is between the

________________ (.

. . continued) covering both lots, based on typical business usage. In fact, according to La u ra Preston‟s email of June 25, 2014, Craft had received estimated readings “almost every month since at least 2008 until J anuary 2014” because “the vault and valves connecting the meter that serves both properties [were] in disrepair, and Mr. Craft delayed repairing . . . the equipment for at least two years.” From this explanation

, it appears that the problem was disintegra tion of connections to the water meter (Craft‟s responsibility), not malfunction of the meter itself (DC Water‟s responsibility). See supra note 4. In any event, Craft has not claimed meter malfunction as a cause contributing to the double

- billing he all eges in this case. His only concern about the water meter was reflected in his claim based on water usage between July and October, 2014, which the court dismissed because of Craft‟s failure to appear at the hearing. See supra note 3.

20 See supra note 4.17

property owners. DC Water provides the service[,] and the property owners must decide how to share the cost or divide the line on their respective properties.

It follows, as DC Water has explained, that the equitable allocation of water bills

that DC Water made for the parties over almost a two

- year period was indeed a

“courtesy

, ” terminable at will, “and not a duty.”

C.

Craft‟s third and last claim of error says only that the hearing officer‟s ruling

failed because, in the words of our standard of review, it was “arbitrary, ca pricious,

an abuse of discretion, or otherwise not in accordance with the law.” 21 We have

found no abuse of discretion in the hearing officer‟s rulings; implicitly, therefore,

we have seen nothing arbitrary or capricious in those rulings; and, finally, Cra ft has

not explained in other ways why he believes that the hearing officer acted outside

the law. This contention, therefore, also fails.

21 D.C. Code § 2

- 510 (a)(3) (2001).18

III. Conclusion

This case is resolved by four determinations of the hearing officer. First,

she limited the scope of Craft‟s claim to a two

- year period beginning January 21,

2013, as required by the applicable statute of limitations. Second, she concluded

that, beginning March 27, 2013, DC Water properly allocated water bills to Craft

and McDonald‟s, respectively, th rough necessary estimates, metering, and courtesy

cost adjustments to the date of the claim, January 21, 2015, and thereafter through

January 2016. Third , she found no water bills or other evidence of record that

would justify DC Water‟s liability for a r efund to Craft covering the two

- months at

the beginning of the limitation period, January 21, 2013, through March 27, 2013,

for water entering the Craft and McDonald‟s lots through the single water line

serving both. Finally , as to the future, the hearing officer concluded, as a matter of

law, that until separate meters or an arrangement between Craft and McDonald‟s

could be accomplished, Craft was responsible for paying the water bill for the

single line extending through both the Craft and McDonald‟s lot s, 22 and thus that

DC Water‟s willingness

— for two months shy of two years

— to allocate the

billing between the two parties had been a “courtesy,” not a legal obligation,

22 See supra note 4 and accompanying text.19

subject to cancellation by DC Water without liability. The facts and the law

suppor t these determinations.

*****

For the reasons set forth above, the hearing officer‟s decision is affirmed.

So ordered

.