for electric service under charges caused by the city's errors the parties agree no provision in the lebanon code of ordinances authorizes the city to take this step the district court erred in looking beyond the code does it passion or any is there a provision in the ordinance of prohibits them from doing it you say it doesn't allow them to do it or doesn't authorize them but it does as it is there anything in the ordinance or the statutes that prohibit them from collecting there is no express prohibition your honor but i would the way i would ask that you think about that issue is to look at section nine ten point zero four of the ordinances and it appears on page idea record number nine that ordinance deals with computing the reading and it first places the duty on the city to compute the proper charge to be billed to the customer and it then authorizes two and only two exceptions under which the city may go back and make bill adjustments the first has to do with meter malfunctions and everyone agrees there's no meter malfunction here the second has to do with an unauthorized taking of service and that refers to theft which also did not happen here but if you look at the last sentence if you look at the last sentence in particular the first clause in the sense what it says is if the meter readings are not indicative of the consumer's actual usage of the product or service now up to that point we have exactly what's happened here all right and if the last sense of the code stopped there insert a comma and said the city may collect then we wouldn't have a case but the sentence doesn't stop there it says due to an authorized taking of service so the code imposes a condition a clear and unambiguous condition on when the city can go back if the meter readings are not indicative of actual usage which is exactly the situation here imposes a condition and says you can only do that if there is stepped so to circle back to your question i would say the code does not authorize it and if this court were to authorize it would have to read that last clause didn't authorize taking of service out of section one ten point zero four i mean what if what if we just say that the code does not cover this at all it's totally silent so the code is out of the picture i mean isn't there really equitable remedy here based upon quantum merit or implied contract that somebody who receives reasonable value a good service is presumed to have to pay for the reasonable services and goods and i mean to say we don't have the code we don't have a statute what what why would we just go to the equitable action is not that you brought we brought action for the injunction and declaratory relief which is an equity we brought a declaratory relief claim we did your honor they did not bring a counterclaim for recovery for panamera there's no quantum arrow in action before the court and and secondly but could there have been i don't think so and that's because this circles back to the comment i was making a minute ago but our point is this is a contract claim at bottom in the forms terms of the contract are for the code of ordinances and you can't go outside the code of ordinances in order to fashion a remedy for the city the city is bound by the code of rights and a court doesn't have power to interfere with that code to authorize a city ever covered to give the city a quick recovery outside code and it doesn't authorize relief and the ordinance does say that the application for service once accepted becomes a contract correct so i mean where i'm struggling here is you don't deny that there is a certain inequity involved here that you got one heck of a lot of electricity that you never paid for right i'm not denying i'm not denying it from the city's perspective yes you're right that's that's right but i think go ahead but but but my so my concern is that even if there is that inequity if there is a contract then i am not sure that there's any do and so the argument is you have to look at the code to see what lawfully do means and as i was discussing with judge griffin a moment ago lawfully do means the bills that the city can charge paying the bills the city computes with the proper charge to be built to the customer and the code i think we would have a hard more difficult position for quite frankly if the code did not address circumstances under which the city could go back and we had to adjust bills at all but that's not the situation we are in the city thought about this issue an ordinance the ordinance says what circumstances it can go back and recompute the bills and the simple fact is those don't apply here and in fact the city recognized as much because it went back and it amended the ordinances after this incident to give itself the authority and it was perfectly proper for the city to do that now if you're asking from a global perspective how could this possibly make sense the way it makes sense as the city rode its ordinances to impose on itself a duty to compute the proper charge to the customer that's in the that's in one ten point it has a duty bound itself it wrote the laws it has a duty to compute the proper charge and so what the city did in that ordinance that said well there's two circumstances where we cannot fulfill this duty one is we have immunity from our function we can't to the proper charge in that circumstance because we don't know what the meters what i could meet or would say the second circumstances well what if the const end user does something you could bypass the meter tamper with the meter and then we can fulfill our duty and so the city said ok and those two circumstances we will authorize ourselves to go back and adjust the bills but it ended there it didn't take the next step and said and by the way if we make a mistake we get to go back and recalculate the bills and i think it's important to realize that this is in the context of yes this is a lot of money yes this is a long period of time but everyone recognizes that some point and in some circumstances there should be a cap on how long you can go back now there is a twelve month cap under the about before there's a twelve month cap on that no cap if there's a staff or service under the revised ordinance there's a cap of very sixty five days if it's residential no cap if it's nonresidential if we were talking about something governed by the public utilities commission of ohio at the time this occurred there would have been no cap on how far they could go back but now there is a three year cap on how far they can go back to the public utilities commission right if it was if it was under the auspices of the public exactly your honor it's not applicable and the only reason i'm raising these different numbers is to point out why the city is bound by what it chose to write there are different caps imposed at different times by different legislative bodies under different circumstances and if the city wanted to authorize itself to collect this money it could have written the law and away that allowed to do so as it proved by changing its own laws after this incident occurred also argues that yes the ohio taxpayers or public utilities that somehow violates the ohio constitution here because you did not pay your fair share of the like electricity that you received the  cost have to be spread around to all the other ratepayers that are in the city system and by doing so that unfairly discriminates against them because i didn't actually receive the service so i mean how do you respond to that i have  here i have two points one legal and one factual and first if i may your honor i don't i'm not sure that's exactly the cities i came i think with the city says is there is dictum a case or felt that says that you cannot discriminate and i believe what our response to that was was well that victor could only apply if there were a constitutional violation and nones ever been alleged here and i don't recall them ever responding to that and saying yes there's some sort of constitutional violation so far but our position on constitutional law is there is a provision it's section four of article eighteen of the ohio constitution that gives the municipalities primary authority to operate public utilities and to pass laws however they wish that  govern those utilities and our position is unless they claim which they have never in this case that there is some other constitutional violation created by their own conduct they can't alter what they wrote as their own laws now the factual point is it's not true that they're simply passing one hundred percent of the cost of their wholesale power on to the customers i know they've said that but if you look at the depositions in particular the deposition of george clements the city manager what you'll realize is he has been accruing a surplus it's essentially retained earnings over the last fourteen years it's now at fourteen million dollars so the city effectively is making a profit and keeping profits and it's not a situation where this is all getting passed back to the customers not for that matter has a sister city done any calculation as to which customer has paid what or will they be able to effectively give this man the back where they had a collective now this is dealing with historical collections that have already occurred the city hasn't come forward with any complaints or anything about process and the point we're making is the city wrote the laws and they cannot morning in may it please the court joe pickens on behalf of the city of lebanon and of coast continued assertion that the code squarely addresses under charges  simply wrong or that the city contemplated the issue of a clerical mistake or billing here is simply wrong nicole relies on section one ten zero four nine ten point zero four what that section states is that in a situation where essentially a meter breaks or it malfunctions the city may estimate usage but it may only do so for a look back period of up to twelve months that is not the situation that we have here there was no meter malfunction there is no estimate of usage to be clear what we have here is a data entry  we have readily admitted that we made the mistake we made the clerical mistake yes your honor as same as logical that you are able to collect for what you provided but it's not in the co there is no provision in the code that directly addresses this issue that is correct what's your best case that you can go back and as or any case out there about there are numerous cases out there i would direct the court to the city of akron versus rogers industry very similar situation where the court said the issue of collecting under charges is not addressed in that case what the court did was went directly to the intent of that contract said it's entirely reasonable that the parties intended that the consumer was going to pay for the electricity that it actually used and that's exactly what the district court in this case issues not addressed in the code it's not addressed in the certainly the issue is not addressed the district court made a finding that there was ambiguity because the issue is not addressed that the contract in code is silent to the issue therefore if that's what the courts say i believe that's the case i believe that the court was absolutely correct in finding him beauty in the contract in the code and what cases for instance such as the city of akron state there was never a specific finding of ambiguity in that case they just simply held it's not address we're going to look to the intent of the parties i mean isn't that the rule of as silence or failure to address the issue whoever you want to define it it it wasn't addressed in this case but so are you saying that when you have a contract and it doesn't address x at all and later on it becomes clear to one side or the other that it sure would have been good to have x in there that that creates an ambiguity because if that's what you're saying then every thing about which a contract is silent makes the contract i believe that's the case you're on let me there's been discussion in this case whether ohio statutory construction principles apply whether federal statutory construction principles apply wh is that an ambiguity can only exist if a statute is sceptical to one or more interpretation ok additional hiatt law defines what susceptible to one or more interpretation means interpretation here are we not or i guess we have an ordinance too so i made maybe a little ball i believe we're talking about both your game for us while we we ought to be applying ohio law should we grab that without question but if intent of the party that we were just rewriting the contract or we mean just making it up i mean i do believe we're making up i think we're if if the parties had thought about this this is what they would have put in the contract i mean is that is that what you're asking us to do i mean here it's silent the parties did not consider this kind of an under tarp which however had they thought of it this is what they likely would have contracted for i mean that's what you want to rule on right yes your honor and we can do that ok we should do that we should do that i will say that every court that has looked at this issue is stated that every court in ohio every court in the six circuit and in just about every other jurisdiction across the country has stated that pete timothy is not precluded from collecting under charges based on a billing mistake and it goes your best you say that courts in the multiple cases in ohio multiple cases in tennessee in kentucky in michigan they don't hold the same thing they have an ordinance like this in some of the cases yes probably right and little bit kind of roger's wasn't there an actual not a you know you give us an application and that becomes a contract that's set out in the ordinance but wasn't there an actual contract in rogers there was a contractor in rogers the parties had an opportunity to do some back and forth the district court here said that this was an arm's length transaction and you know you're not accepting that that what we had in this case was an arm's length transaction this was an ordinance an application  for service where there wasn't any bargaining that went on i don't know that there was any bargaining certainly there was an application the application indicated that in the application before the mistake by the city and after the mistake by the city frankly i think that goes to the intent of the parties to the contract mr beck and your claim is limited to the contract or actually simply is the ordinance is silent the court should fix the ordinance and we should recover under the fixed ordinance as the district court did or are claiming that the court should fix the ordinance all we're saying is the ordinance as it existed doesn't address the situation of what happens when there's a building mistake it was a clerical stake so how do we fix that if we don't say the ordinance requires this other than if you filed an equitable claim will you do exactly what the district court did and you look to the intent of the parties and fix the ordinance but not asking the court to rewrite the ordinance or just asking the court to do the ordinance is silent to this issue as to the court to read the ordinance as if it said this that is correct why isn't that rewriting it maybe i'm misinterpreting what you're haskin because it warrants a silent to the issue we're asking the court to look at the ten to the contract look to legislative intent look to the overwhelming case law in ohio and other states that state that a public utility can is entitled to and in fact have an obligation to its poor citizens to collect for billing mistake that's what we were asking the court to look at to say that we are not precluded from collecting these under charges i imagine if you had had a vigil or residents who were that you found that that they should have been more you'd send them a bill and they pay it because they don't have the means to hire a lawyer but you've got a big player here that's contesting it did it happen with and the visual residence is the same way or do you know it to our knowledge a situation like this has never happened in the past her city manager testified in his fourteen years as city manager this is the first time that this situation has come about and a citizen has refused to pay for utility service that they actually use the city doesn't decide for which they were never billed for which they were never built that's correct and the effect in this was touched on a little bit of not being able to collect this one point two million dollars from it go for service they unquestionably use i don't dispute that they use this service is that it the department of electric does not retain a profit it acts essentially as a co op now there is a surplus that is retained to fund infrastructure problems to respond to emergencies whatever the case may be the city needs a certain amount of funds there to address those types of issues but at the end of the day it's still coming out of the pocket of the other citizens but if it were searching there had to increase rates for the other citizens because you discovered that you had properly billed that's exactly what happened your honor so whatever the city spends for purchasing power in distributing that power to its citizens it bills that citizens paradip based on the class the class of ratepayer that they're in wouldn't go to anybody except the class of rate here than it would be you know it would get spread to all of the citizens right mr mr  mean right now you have a judgment for one point two million dollars that go they say they're entitled to zero i see that the matter did go to our mediation office for a while is there any value of some of that back to mediation at this point or was that realistic possibility i don't think it's realistic your honor i always see the value in mitigation but i can tell you that it went nowhere last month or two months ago when we did at the prospect for wouldn't that's not relevant to a contract claim that might be to an equitable claim that's correct your honor that's absolutely correct very briefly your honor i'd like to address the claim that there are all these cases around the country that authorize them to do exactly what they want to do here if you parse through those cases other than the rogers case that this court has already discussed extensively what you'll find is they address equitable defenses any context in which an ordinance or a filed regulation clearly allows the recovery that the city seeks here and so in those context of course it's proper to consider my purple factors because you're considering whether a customer that would be a new coast consider position could assert an equitable stop of the fence but that's not the situation we have here the situation we have here is governed by a clear and unambiguous ordinance that does not authorize the recovery of the city six