issue in this case is pretty straightforward it's two pages and i would say the issue in dispute is under what circumstances the defendants are allowed to increase the rates for waste collection under the contract there are two main categories of rate adjustments allowed the st one is a rate adjustment based on increased costs of defendants during business basically the parties agree to pre authorize defendants to increase cos certain interest charges to the customers in the event defendant's cost of providing the trash collection services went up the nd category which is the category at issue here is the category which states that defendants may also increase prices for any reasons other than cost of doing business based on either the verbal or the written consent of the parties or by the actions and practices of the parties and the important thing the most important thing to remember is basically every time the defendants increase the charges under that nd category which require the customer's consents that's a modification other original contract the modification the contract is a material term the price and the parties basically have to reach a mutual agreement under missouri law regarding contract modification the same elements of forming their original contract respectfully disagree so because there are two categories of charges which could be imposed and we thought we were paying the st charge category or silences and indicate anything i agree that if the contract had a flat rate and our price was going up every month and we should have known that the contract prevented any price increase that would be acquiescence or waiver possibly but in this situation it's important to look at all the facts of the situation for example defendants under the contract the defendants were allowed to impose late fees and did for nonpayment of an invoice so the customer would receive a total due envoys same duets dollars and you have to pay that within twenty dollars days under the terms of the contract if you don't pay it you're going to slate these we can suspend or terminate service we you may have to pass liquidated damages if you don't pay that invoice so for a look at all the language of the contract contract that payment of the invoice constitutes consent to a price increase the district courts added that term itself and they did not say any cases or any common law doctrine for example not were not required to include every single action practiced which has to be analyzed in the pleading was specifically alleged that our actions did not constitute consents and that we were painted under a mistaken impression of what the charges were fo and basically the defendants do not allow or provide any opportunity to opt out or withhold consent once that amounts placed on the invoice and and again from a rational standpoint  you know if the customer is required to provide consent to a charge and there's they're not receiving a new benefit there's no rational situation under which the customer by consent to a price increase they wanted they were required to up pay or not receiving anything for it's and there's just no reason they would do that it doesn't make any sense reserve the rest of my time for a bottle y good afternoon your honor sparseness for apple e's i think this is a straightforward appeal that should be an easy a firman and that's because the decision below granted the most motion to dismiss based on a plain language interpretation of an unambiguous contract that's a legal question that's properly decided at the motion to dismiss stage i agree with the other side that this whole appeal can likely be resolved by reference to j pages twenty eight to thirty those are the terms of the contract itself as well as an example of the type of bill about which the other side is complaining and although the briefing in this case on the other side goes out of its way to make increased charges and speeds and variances sound incredibly complicated actually the terms of the contract are very straightforward and that's what matters here is a as a legal proposition what the contract actually says not how the other side describes it or as you said in an earlier case judge benson a statement after a contract is signed very with a contract actually means so i think if you turn to j page twenty nine which is the substance of the agreement at issue happy to walk through why i think the plain language supported  missal here the st paragraph of the contract is entitle payment and that spells out what the obligations of the appellant are they're required to pay the company that's the aptly quote at the rates provided in the agreement the paragraph immediately following that describes what those rates are and how they can be adjusted over time specifically the rates can be adjusted without consent for one of any five reasons which aren't at issue here or with the customer's consent for any other reason and then importantly the rate adjustment provision paragraph goes on to describe how consent can be obtained in particular it gives three ways you can attain customer consents one verbal e two in writing and three according to the party's actions or practices and those of course are distinct terms that we each give their own meaning so if the customer had consented virtually that would be one thing they had written a letter in or an email that would be something else or there's this rd bucket what constitutes an action or practice here the customer paid its bills on time for eight years in the face of increased bill amounts without complaints and the question is whether paying those bills constitutes an action or a practice as we understand those plain terms meanings so just to reiterate there is no dispute that there is a valid enforceable contract there's no dispute that the bills were paid there's no dispute that the rates increased over time the only operative legal question is whether consistent payment of those bills over time constitutes an action or practice that  requirement and i think the facts of what happened here actually explain what we can really consent to something if you don't have knowledge well you know the rate adjustments paragraph makes clear that rates can increase are i think if there was any confusion on the part of the customer over the course of eight years what the basis for the rate increase was knowing as the customer did that it could have been for a reason of  choosing all they had to do was pick up the phone and ask send an e mail and inquire or decline to pay the increased rate at all which would be an action or practice that events today did not consent to the rate increase so there is no affirmative obligation in the contract that a pelleas explain the reason for the rate increase although i think if you look at the example bill thirty you'll find that in practice they did explain the basis for the rate increase and that's because you'll see that the fees provision in the bills are separately spelled out from the rate itself and it's the rate itself that the appellant is challenging so i think if there were any question why that rate was increasing if they wanted to know hey does this fall into one of those mandatory buckets or does this fall into that discretionary bucket again all they had to do was ask or send an email or decline to pay the increased amount but there's now if they wanted an explanation components written into the contract that's something they could have bargained for at the outset of course they didn't do that and i like to just go one step further and explain why that's not an unfairness to the appellant and that's because the decision through an action or practice not to pay an increased rate still obligates my client to perform the service so if the other side had said we're not going to pay this increased rate because we think it's discretionary or we just don't want to we would still be required to provide the same service at the lower rate for three years and that's a twenty eight which indicates the contract is for three years so all of that to say i don't think you can write into a contract a term that doesn't exist in it after the fact merely because you're dissatisfied with the amount that you paid again consistently over the course of eight years if you wanted some sort of additional explanatory requirement in the terms of the contract itself you could write that in at the beginning but simply being dissatisfied with the amount that you actions silence that creates the inference of consent do you think is the closest missouri case on this well with your permission your honor i'll give you two cases one from the th circuit and eleven missouri state court case the th circuit case is unambiguous according to their meaning quote as understood by the average person so that's the legal standard i would use to apply to apply to the facts here and then as to the question whether payment of the bill constitutes consent as a legal matter i point the court to the kosher zion sausage case and that's the missouri appellate decision from one hundred and sixty nine that held that when the plaintiffs had repeatedly made payments over the course of eighteen to twenty years without contesting the basis for those payments in any way that evinced consent to paying the fees that were challenged after the fact so i think that's a pretty squarely on point case for us in terms of the fact that paying  constitute an action or practice that is consent is a co founder of the silence language you know i don't believe so your honor although i will agree with you that the silence language is also very helpful a valuation of a course of dealing isn't that typically a factual matter well so i think i think it's not a factual matter here because the operative term in the contract is action or practice and so the legal question is is payment of the bill an action or practice and i think any rational understanding of the facts here the answer to that question is yes and the reason that so is if you take the facts in the complaint as alleged these bills go out twenty days before their due which is plenty of time if the other side wanted to to contest the amount of the bill itself and their bills in advance for the next month service so although you know in the reply brief are these allegations about the late fees provision making this coercive i just don't think as a matter of the facts put in the complaint that the bill goes out the other side has an opportunity to review it and to give their consent to increase rates again verbally and in writing or by paying the bill itself that's how lots of bills and lots of commercial contracts work well in most of the bill might be a matter of practice but the question is what does it mean and the you are consenting to the amount of that bill and if the other side wanted to pay the bill and contest it of course they could have done that right they could have paid the bill and sent a letter at the same time saying we're making this payment they were worried about this to avoid a late fee but we contest the amount of the actually alleged so the customer called call the company and said what is the basis for the increase in price the company committed fraud and lied about the basis for the price increase and that was why the customer paid of course that's not what happened here what happened here and if you look at paragraph seventy nine dollars of the complaint you'll see that when the customer ultimately did call the complaint about the price the apple we agreed to lower it and the customer was simply dissatisfied with that and took their business outs where so i think that's exactly what should happen in a sophisticated commercial contract like this if you're dissatisfied with the bill amount you call and complain and the company either decides to lower it or it doesn't and you take your business elsewhere or you don't so respectfully your honour's we ask that th rebuttal time yes your honour's in terms of you know that the customers calling and asking for information or complaining number one we didn't have access to any of the accounting information that defendants used to calculate the charges we don't know whether the price increase was due to transportation costs going up or if it is a consent required charge whether or not defendants would have actually provided us with that information if we contacted them that's a factual dispute that something would have to be about us and let me interrupt you i get your point you heard the other side i heard him say boy that kosher resigned case we're really banking on and i kind of agree with them that's really the closest missouri case must be a mutual understanding and agreement between the parties in order for an implied contract to exist our position is there was never a mutual understanding agreement between the parties and let me point out that mutual understanding agreement would have to take place for each individual price increase if defendants are saying work insane by payments then we have to have a mutual understanding agreement for each price increase that we know what that price increases based on and that were balance harry paying it now the fact that we thought your pain charges which are mandatory is again reinforced by the fact we could get hit with late these if we didn't pay the invoice to finish provide no procedure for opting out of any of the charges on the invoice and they do pursue collection defendants are claiming they're asking for our consent to a price increase which is not mandatory our argument as legit complaints that we were operating additional in accordance with the original contract prior to prayer any price increase that does not constitute a mutual agreements or consent to the modification of the price you know the procedure sorry i was looking i don't have the case here i am mildly familiar with it you know the procedural posture of