specific points i'd like to argue that midlothian is stopped from collecting additional monies under certain contracts with the prison library second that the parties performance was modified modified drove the underlying case that spawn this particular argument was found on during the work of the appeal not in the trial court but because we have cross motions for summary judgment i believe this court can look at the no bone consider all the case law they don't have the funds to construct a library of buildings or provide a lot of books or bookmobile teixeira so essentially what person library does is either a governmental entity that collects taxes and then finds out or contracts their library services understanding is that pursuant to this contract at the time when he gave these are decided people assessed valuation of words all the property values in the village oppose and it said through a complicated formula and that formula then will be an additional amount in other words once we take the abuse about fifty thousand that posen paid midlothian per year during this contractual period we take this complicated formula and then we are right that a number that is according to the formula what should have been paid on the contract less whatever  office and then you run it through this formula and this formula again is one whereby you would come up with a number and the specifics the formula i'm still unclear about it because i think during the litigation it one point midlothian argued one number and then at one point there was another number so only one calculation and then another calculation as we saw a deposition i believe there vibra district board president had certain numbers afterwards during some of the argument particularly the motions for summary judgment of how it works the number of different and i believe me i think that's one of the major issues of this case that we don't know those numbers but they were decided post and contract during litigation and that that put the village opposing it at a huge disadvantage if i may continu also to take a step back and say for maybe the first instance that we've reached reach the appellate court level we have to governmental entities for performing the primary governmental function they're arguing over whether or not to stop and apply to a contract this really is almost unheard of in the appellate court ruling so i suppose i have to argue from cases that are most similar and i believe of done that in my brief other circumstances which i believe raise the stoppel issue that during that period there were kind of agree with that that's because we're missing this peterson i'll get to that as my last just a sentence specifically then the contracts were when you don't are identical terms in other words there was no provision in the following contract so to speak to ask for additional monies were paid in the first contract services a service contract to get not not a contract for grads but a service contract where you cash the checks and you continue to renew contracts etc i think that's in the stop argument finally and maybe one of the more important points i'd like to make is that i don't think you waive i think you can pleaded in the trial court level one at any time you want during the trial court prior to the final judgment the case i don't believe in any waste shape or form that you're limited by whatever your answer was you can raise equitable or any other type of argument any time during the trial court until final judgment i don't have the case law but i'm almost certain that that's the nature of the matter i think that's a red herring that during any time of court next you can hear any argument modification i believe took place in this matter a contract i say the case and they will be general merchandising a corporation standing for the proposition that if the parties behavior during the contractual period does not conform to the written agreement that there's a de facto modification of that agreement in other words that because of the performance of the parties the terms of the written agreement were modified and in this manner i don't think there's a more clear example of that for the same reasons that i have mr murphy is am not raising this argument in the trial or you're asking us to reverse on an argument that the trial court was never given the opportunity consider yes that's  contrary to appellate practice i understand that many justice however i view modification as a species of a stumble i sincerely i think a stop will and modification kind of go hand in hand i don't think it's a midlothian billing certain amount of money to the village those are the pros and library board we have chosen paying these funds as required by midlothian we have no demand for additional funds during the contract period during the service period there's no request for additional funding these were paid services were provided during the contract period nobody came back and said we need more money nobody said we're going to you know draft a new contract that's going to require payment or more money service provided at the end of us or else when we did oh  after the expiration of the final contract period august as well as that and this contract relationship evolved they were usually three year presidents one was for two years yes and so at the end out the contract need to pay more money i disagree with that i believe the facts show that during the period of the contract the ten years we're talking about here that in each and every instance another contract was sent to posen post signed a contract i don't believe there was extended negotiation so i understand it perhaps we should take a look at the nature of the post in library district court it's made up of a handful of elected officials who basically meet a few times and here they i don't believe had the benefit of legal counsel if they did it doesn't really appear on the record that they did that the reason they continue to sign the contracts is they want to maintain the relationship won't one of the reasons that i was ok for not raising its levy was that it's attorney wouldn't like hey i saw that on the record as well but there's no evidence that all the phone contracts were reviewed by counsel personally i didn't represent the village of i'm sorry the post library board until more closer to the time of this lawsuit but at any rate i do disagree that this was arrived at through some sort of a negotiating process because i think if it was we would have seen in these contracts some mention of the fact that there was monies to under previous test period of ten years a period of ten years during which service is provided  contractual relationship continued that's the most disturbing thing to me about this is that during all that time during all that time it wasn't until the bill of the prison library board said no we're going to another library district or that we don't think came back in strong arm and said now wait a minute we want i'll concede that i think it does go to reformation any rate your motives behind contracts who knows but i'm betting justice mason asked me you know what the circumstances of the contract work and i'm trying to provide some background to why the contracts form that a certain way and per session that perhaps it had been negotiated and we could put in the term in there because it knew would eventually be enforced i think that's an incorrect assumption because of the factual background longer periods of time but i think we can raise that as an issue because of the extraordinary circumstances that we lost not only one library board president who was again instrumental in the majority of  about the factual relationship between friends we talk about the circumstances behind the contracts in this case and the other circumstance of course is that susan corker was the president of the personal library board suffered a stroke and that at that point i was unable to recall very much about its entirety i have time if there's any other questions from the panel thank you for your time will apologize in advance because i swore to myself that i would not chase so to speak any of those ins arguments primarily because i do not believe that the defenses that they've raised talked about here this morning warrant discords consideration this case is essentially about honoring the contract that was entered into between two parties that's that's the first issue for consideration the second issue that's properly before the court is performance and in this particular case performance i absolutely undisputed on both sides it is absolutely undisputed that midlothian performed it is undisputed that posen did not i'm going to ask you the same question i asked mr murphy what does that formula mean i will explain i have looked at it and honestly since i'm not a mathematician it took me a bit but if you break it down simply there are two options under the payment provision it calls for two installment payments one installment payment in june the other in december first installment payment is always twenty five thousand rightly concerned with the second installment the second one is a simple calculation that the parties are agreed is unambiguous you taken e a v calculation which will vary depending on whatever the state does you multiply bad by a fixed amount which is the general corporate fund  during the entirety of this contract that amount was not seventeen percent or point one seven percent it was point zero zero one seven percent and you multiply that by eighty seven point eight seven so it's either the greater amount so that the way that the provision resists it's either forty thousand or it's this calculation whichever is greater clients that i point seven the amount of the general corporate levy doesn't pay after into that calculation and she now says right that i was wrong that it that i calculated that wrong she says that she made a mistake in a mathematical mistake in her calculation when she submitted the payment to posen originally right so if we when you say it's undisputed that everybody understood with this formula man she certainly didn't understand what a man well i think you are some issue with that i think there's a difference in saying i made a map their purse is i don't understand the formula i think her testimony is that i did understand the formula even if you understand a formula even if you understand how to add two plus two occasionally you can make an arithmetic mistake and i think that's what she did in this case but what she did in two thousand and two he does it one way and she says he tires point zero zero one seven times point eight seven equals x that's what you owe for the second installment last twenty five thousand dollars then later she started saying the general corporate levy time was point eighty seven point eight seven percent that's what you owe us e a v has nothing to do with it and then and we want we want to factor back again all this increase in the e a p so that the second installment from posen wasn't thirty some thousand dollars it should have been was for this period point zero zero one seven so they're one and the same there's no two different variations in the formula for general corporate funding levy in two thousand and two resulted in an effective tax rate of point zero zero one seven of the e a p as the e a v lead off over the years and the general corporate fund levy stayed the same the effective tax rate went down right and that's what well let me address that i think that what you're asking or what you're getting at is why is it that midlothian ultimately went to posing to demand this money and the reason that midlothian ultimately went to pose  joining the library i don't believe she was the library director during the initial few contracts within which is a record when she it is and what she testified to was that when she became the library director year of dealing with this contract i think sent them i think with the record will show is that in two thousand and seven the summer of two thousand and seven is when she specifically reviewed these four contracts and at that time she couldn't give us a specific date but she unequivocally testified i'm not sure in her deposition but if it's definitely an agreed statement of fact that she reviewed these in the summer i have two thousand and seven so then she told the post and board and some by the way always more than thirty thousand dollars that's a listen board said we can't and we don't have that money right and what they did is they had a period of months discussion saying we may raise taxes we may raise our taxes to pay for the debt that is owed we may pay you what we agreed to one of the services contract by raising taxes ok and the mean we're in the contract there is a commitment i propose to raise its general corporate levy on an ongoing basis so the maintaining this level of taxation there is nothing in the contract the only evidence before the trial court however was that these discussions were happening and i believe that mishra pulls testified at deposition that the way she found out that posen was not going to raise its taxes is that she looked  looked at it in the newspaper and that what they did because you know tax rates and those sorts of things are published the public mind but the miserables beginner employment with the low he labor in the middle of the service period  well i stand corrected with through with regard to her date of employment but but the record is clear that the first time she realized it was the summer of two thousand and seven right the little late is it's not a little late on the case law but i sick it was somewhere it was sewer services yeah i mean i do not see how how slingers meaningfully different than this case in this case we're talking about libraries services that were provided in helping or we're talking about sewer services that were dealing between the parties and even in two thousand and eight when you say miss sharples recognized that this formula had not been applied correctly and that there had been then these under payments she then sends a mammo or the invoice that says payments are based on eighty seven percent oppose in library districts corporate levy that's all she says e a v doesn't even enter into it and then she calculated the additional amount that pose a risk required to pay which which brought the payment up to thirty three thousand two hundred forty six dollars so while the contracts were in a fact she takes two different positions on what this formula means and then once the contract is over midlothian one says it's something else altogether and you always a whole bunch of money doesn't doesn't apply there i don't think it does and the house in your case i think what you you said was that it wasn't a circumstance where the homeowner in that case was ever charged any amounts with regard to sewer services and factually i think that's incorrect i think in the helping your case the homeowner was originally charged certain services certain service fees with regard to the hook up of the sewer system so they were charged in that particular case some amount for sewer services now unlike this case there was no i'm going heman in healthcare for i'm going sewer services but that's not a case where after year i have no problem with saying that would be an equitable stop of case they just didn't do anything they had no dealings with them right and that's exactly what we we did hear no one was checking whether you're sunni bills and they were plainly exactly what you were if not not exactly what they were asking and there was no despondence during a certain period of time that loathing unsentimental post and paid it they did this for ten years this is different than the homeowner with the water department he never got the bill he never got a bill here you have not only an oar in course of dealing but you have renewed contracts that midlothian drafted right and if they recognize when they were drafting these contracts that there was something oh there's something missing here they were drafting the contracts close and wasn't objecting to the contracts middleton could have sued submitted to different contract or proposed different contract or said oh we're changing a contract never did that so posen keeps getting these files they pa him how is it not different it is different  but i would say that the fact of you know sending bills and correspondences and those sorts of things do not constitute the extraordinary circumstances that would be required to apply a stoppel i mean there is no fact factually analogous case on every point how player is the best we have and it's not very good and we're really in the new territory here we have a disability versus the civility well i don't think that that's a good argument and i've thought about this one a lot i have a nine year old to digress a little bit who's very into presidents and we were talking about richard nixon and essentially that argument is you should not require extraordinary circumstances because we are in love or because we are opposing richard nixon said if i did it it's not even though you may have a very smart nine year old it doesn't doesn't work well there may be circumstances where extraordinary circumstances shouldn't be required for municipalities like pos but this isn't a good test case and the reason that this is not a good test case is that if the court applies a stoppel without extraordinary circumstances in this particular case this kind of function that midlothian is exercising here i don't have the money then you let them you know he said here's another country they pick here's another country they pick here's another country and now when everything's over and they go someplace else this i here's how we do we decide  that in an in a circumstance where there is a preexisting obligation for example in this case posen had a preexisting obligation to pay this amount the fact that it is now difficult to pay is not an extraordinary circumstance and the they don't have the ability to levy against value that that's gone well that the bed the effect of the recession that you raise cuts both ways in this particular case the contract amounts that we were seeking and the interest on top of that is tied to only fund rates and at certain times the interest being requested by midlothian under this contract was not even close to one percent as in some cases it's point zero to one percent what you say you know i don't but i guess what i would say to your honor's is that i do not believe that the ability of the defendant to pay constitutes extraordinary circumstances to the extent that the court is contemplating a finding of extraordinary circumstances in this case it would be carving out new law and i think it would be carving out a new law standing for the proposition that if the defendant is a municipality and is on able to pay and we should find extraordinary circumstances the august two thousand and nine statement the last one that we saw up on th three lines under thirty thousand one thousand and two thousand at some point when that those invoices were coming along somebody realized oh thirty thousand is not enough well ask for more and then it has paid in full so this is two thousand  midlothian realized by then oh there's been under payments why wasn't it itemized on one of those invoices you know there isn't any evidence i can't speculate as to as to well so dead in place right if there's an under be a sears there's clearly an underpayment privette part that second half of that year of the two thousand eight yes but they clearly had the opportunity at that point to say oh and by the way there was no underpayment for two thousand and three or two thousand four whatever they didn't they didn't choose to do that so at what point was posen supposed to pay this prior to filing suit i don't know that the parties came to any agreement as to when and how and is set personally because the equation that mr bowles was using changed over time no it had to do with posing as ability to pay i think if you look at me sharples testimony she met with them over a period of approximately six months it could be a little more plus or minus a month or two but she was discussing with them how are you going to pay for what is owed and i think that she would say if she were here that what midlothian was trying to do was trying to be fair was trying to give them an opportunity after the fact after the services of the services have been provided after the payments have been made after the contract is gone and posen has gone elsewhere owes incentives to its residents and by the way we'd like you to vote happen i don't know that that is an issue that's before the court i mean what we're really talking about is poses ability to pay when i really don't think that we should be and there are all sorts of mitigating circumstances as to why posing may or may not be able to pay for example miss quirk embezzled bast amounts of money from posing so posing as ability to pay was hindered in large part due to the fact some some aspects of it i mean is there something in the record you know i don't recall offhand i believe i asked her about it at her deposition i don't have a specific recollection as to the page numbers but it's a matter of public record she was convicted i know so so so with i have to do with what we're talking about poses ability to pay but it is there anything in the record that shows that her taking the money had anything to do with the ability to pay that's my question i don't know point mr on some point before you had a dispute they paid every invoice did not inform no he did not win enough for well they paid the first they paid the first installment there's no question about they pay whatever was due so you know but all of a sudden when you come up with this well you know it's more money than a formula which you've already calculated it the way that it's set forth in our brief i don't i don't think either of the parties ever argued ambiguity president court said she knew what it meant marybeth sharples at her deposition deposition said she knew what it meant and i understand terp or did it different ways during the contractual relationship and then after the coup trencher relationship is over it's interpreted a completely different way well i think we've been over the ground i think that it's an unambiguous provision the formula if it's not forty thousand is the e a v times the point seven times the point eight seven and those are the there was a dispute but to the extent that this court is inclined to say that it's the paid in full track somehow amounts to you know a waiver of past songs requested or demanded that check only amounts to that second installment payment for two thousand and eight it doesn't it did not relate to that it was an opportunity  analysis as it was owed this amount of money something over eight hundred thousand dollars according to your calculations you issued an invoice saying if you pay x amount it's paid in full so when that when the party claiming the additional money issues they got invoice and says hey this amount  pay up and i am not sure that i would have ever written paid in all on the bottom of the receipt so how we try to roll i think i think what your honour's are inclined to do is give posen the benefit of the doubt and in this  this particular point you shouldn't and here's why the only evidence in the record is that posen also knew that there was a dispute the only evidence in the record is that mary beth sharples met with them you know seven to talk about all of the prior years they wrote painful painful and you get i think if you look at the record the best that they can do that best opposing can do with that he show that paid in full only relates to and i know you'll say that it's my argument but that's what the evidence shows that that paid in full relates only to the second installment payment in that time frame while midlothian certainly could have written you know copious letters explaining what their invoice meant posen could have likewise written an explanation along with its check to say this is what we mean by paid in full for the second installment  evidence is that there was a dispute that both parties knew about the dispute and they said the track for that second installment payment the record supports that and on that point i would have to build the law in the hooting from standard international corporations versus alert steel w well i would say this the issue of a stop all the issue of accord and satisfaction the issues of last cheese aren't even properly before the can't but what i can tell you is that essentially what this case is about is performance under the contract i think posen in midlothian agreed that the only evidence i regardless of the findings of this court is that the calculation is what it is they both testified they understood it and it's absolutely undisputed in this case that midlothian performed and i was indeed not at the trial court level they never disputed any of the calculations i mean i think what one of the issues that this court is wrestling with is that why during the negotiation between the parties wasn't there more about how much you owe us when you owe us but even at the trial court level there wasn't any issue as to the amounts manage a challenge mr murphy to show exactly where in the trial court proceedings that he specifically challenge the calculations he did so if the court is troubled by the fact that non attorney party lit igants didn't have more dialogue about the calculation was certainly troubling that after being represented they didn't contest it they certainly have the opportunity that all the years that they were paying this money there was no  about the calculations they were just assuming that midlothian who was going to benefit from the scott relation was calculating at the right way and was high on much they owed and they paid what middle middle of the incentive pay so the all through all of this whole contracting period there was no dispute posen wasn't recalculating the equation they were just taking midlothian swerd word assuming i think like most people in a contract that if somebody owes you money you're going to tell them how much money they owe you you're going to figure it out the right way so they paid what you told them posen pavement midlothian told them every year from the beginning of this contract sequence and then you say paid in full on a statement that was prepared in and that and it doesn't and it said it's true it says two thousand and eight but it could have said anything it could have said because you were the ones who are reading it you could have typed anything into true so i'm having a hard time with us you're talking about performance on the contract post insists they performed on the contract because they paid what you said you think they owed you and you were doing you were doing the calculation in one would assume that you were are mistakes we made miscalculations and then when we realized the miscalculations we went back to them and said hey we made a mistake this is not the right amount what posen argued in the trial court is not that we didn't pay the right amount i mean look in the record that they've never argued that what they've argued is that we shouldn't be forced to pay what the contract sads because i was in what would have been able to pay what you want  and now says is the right amount he added increased its general corporate lobby over the years and it didn't increase its lead me over almost any of the years of these contracts and to the relief midlothian once now is a judgment that approximates what would have happened had posed an increased its general corporate body and that's troubling to me because it then requires us to go back and rewrite history and and force a municipality to raise tax revenue that isn't there i don't think it requires the court to rewrite history i think what it requires is that the court enforce a contractual pretty provision that goes in freely agreed to and that the ability to pay is not necessarily the issue the issue is whether they agreed to it and they did agree to it their issues of performance we did perform and they've never argued that they didn't perform with their i muses game should get out of it because now they can't pay and what what we should have done it's asking us to assume things let me ask you hypothetically let's assume that you and two thousand land real estate values were at their peak hose and said let's let's put out a referendum to see if we can raise our general corporate levy and we'll end up paying mid of the contract is there hosing could commit to pay fines it never had if the if the voters voted down the referendum and said we're not increasing the channel corporate lobbying meaning the librar districts lobby is not going to increase posen committed itself to pay they at regardless of the revenue i like i like your hypothetical and here's why because posen civility to pay does not necessarily but the revenue isn't there here's my point posing has the ability to decide what it spends its money on in this case you decided that it wanted to pay for library service doesn't have to pay for library services no it does not but if it contracts to do so then it should have to pay for the services that were in fact provided do they have to raise taxes necessarily you know they can choose that they don't want to say how is it residence were not taken up garbage why pick it up once a month and the money we save will give them a floaty and for the libraries right that's that's with imposes control and that's why i don't think that the discussion of their ability to pay now factors in the court in order for us to make a decision based on that the court is going to have to assume what posen couldn't couldn't do ok but the whole time that you were under billing  those years you were under billing posen and your coming up the calculations if you come up with the regulations they are committee could have made this to same decisions ok we're going to have less tree trimming but we're going to pay more to midlothian this year and it would have been spend smaller bites at the apple your miscalculations have now led to this gigantic leap i disagree with and here's why because you're making the assumption that had we over this period of time allowed them to take smaller bites of the apple so to speak it would have been kalibo and the way you've been able to do it if you had built them for the right amount they are finance committee would have made appropriate financial and budget decisions but you weren't so there thinking we've paid with those in what we owe them great now now we know how to spend our budget money right but even when they knew the only evidence in the record at this point is even when they knew they had underpaid and there were negotiations as to how can pose and pay for that they still chose not to do anything still chose to pick up garbage once a week and basically they season the village instead of coming up with  argument being posed by the question being posed to me is had you build them appropriately had you done these things had you notified them of the dispute they could have raised taxes in a way that they paid for it and the only evidence is that we did tell them  above about the disputed albion later after that and then they'd chose not to do anything about it they chose not to seek more money to pay why should they i mean again it really was in your hands yeah and we're way past the days  head what was not in your in order for equitable doctrines to apply for example this is stop we have to be intentionally giving up our rights known rights and i think the only evidence is that we and the question at the dispute did not arise because we were negotiating a new contract they decided to seek library services elsewhere too but the rest of his ticket in our eyes sort of speak well i think the record supports that with the record i mean the record supports the fact that the two library boards were at each other's throats and they were elsewhere right and then in the record there is a comment that this was  amount i don't think it's properly before the court i don't think that this is an appropriate circumstance for this court to carve new law to find something extraordinary about this because that would lead to a slippery slope in terms of every time a municipality seeks to enforce its contracts seeks to collect revenue that it's owed for services provided and i think that the extraordinary circumstance as i hear it hinges in large part on their ability to pay which which it should not be the sole issue on cross appeal was the proper date for the calculation of prejudgment interest on the contract not judge powell i would applaud her if she was here she's done a great amount of time i think we had three or four hearings on the proof of damages no no we don't disagree that that was her ruling we disagree for the basis for her really right and we don't know what the basis well there are there are two possibilities but we don't have that point justice hyman is making is he didn't provide us with a record where we could look in the record and say you know this is the proper basis there is no transcript of that proceeding fight if i had to give any advice would have we could find any reason that the to uphold it because we don't have it you to disagree with it there are because quite frankly if this work reviews what the trial court did it's that interest began to accrue in august of zero seven the reason it's unnecessary posen contends that that was based on the date that midlothian discovered the underpayment well mary beth sharples testified that she discovered the underpayment in or about june of two thousand she also testified in the summer of two thousand and seven so even if you construe all of the facts against us using posing as a best case scenario for the basis of her decision it would have been earlier ours is quite frankly the more conservative estimate as why she would have ruled that way the date of demand for money for almost fifteen years like in your cross appeal you want pre judgment interest calculated from the data the under right back to two thousand and one that's right right we do because that's what the contract provides ok section five vs clear says interest is calculated in this amount and regardless of their ability to pay it is a very low interest rate over the course of the contract it's tied to the only fundraising at certain points that's point zero to one percent we believe that the contract should be enforced as written and that midlothian is entitle to prejudgment interest as set forth in the contract accordingly midlothian requests that this court submit this matter back to the trial court with instructions to for judgment in an approximate amount of eight hundred fifty thousand dollars plus interest thank you i'll be brief i take umbrage with counsel's characterization of those ins objections to damages at the trial court level we actually had to have a proof of my damages as a special this hearing in fact i think if you will call there were two separate a bystander statements filed in this case because we could not agree that that had been objected to but i think at this point it's disingenuous to say well opposing went along with our damages all along when not only did we object on our motion for summary judgment but we also requested and and in fact had a proposal damages and again i don't think it's the burden of the plaintiff to prove damages more likely than not i don't think they meant that burden them when they will neglected to collect services for sewage for a period of twenty years and then sought saline high flingers property the court decided in favor of what deal because they said that the city wasn't aware and i think the public policy reasons in the high for your case is that municipalities don't always have the same people in charge over twenty years is going to be elections it's going to be different trustees is going to be different there's all those things then let a court say in the high for your case say wait a minute if it's elements of equitable stop look and any municipality affirmative action on the part of the municipality in this case what's the formative action resulting provided library services built for those services and sent even a paid in full invoice to posen for library service a second inducement of the complaint of action they want the contracts they've induced posen to participate in those contracts by offering the services etc three a substantial change in position and just a follow up feibel revised as the justices of pointed out there was a substantial change what could we have done in the village of posen back when the contracts were first in gauge what if the amounts were more what could pose and they could appraise the levy they could have raised it without going to referendum if it was a small enough amount less than four point nine nine percent i believe is the statutory authority for raising a levy second on continuing to contract and requesting these services is another change in circumstance they could also find another library board that would be willing to provide these services perhaps at this kind of rate than mid somebody else they didn't do that for a period of ten years as justice fine inside prison is a governmental entity that can only raise taxes to raise revenues rather through their taxing authority a substantial judgment in here w to somehow raise library taxes on the residents perhaps even exceeding their statutory authority because they'd have to go to revenue i'm sorry i referendum and that's beyond the control of the library board posen library was elected to make these financial decisions giving midlothian this with respect to when a person knew that they were underpaid i'm sorry if you knew and poser knew that there was a underpayment going on again i would emphasize it was very very late in contractual period when really the ship more or less it sailed that the contractual obligation was over that the  know we did and you know what the record is it doesn't have a whole lot with it and you know during the trial process there were requests to produce of records there was it would you have before is everything that we found from midlothian with respect to their decision making process and any notification  i think the majority of our discussion about a stop all focused on the extraordinary circumstances when in listening to counsel it occurs to me that in order to get to extraordinary circumstances they have to first prove the elements of a stoppel that would be required for any litigant and in this case that they really didn't i think one of the things that we talk about in one of the elements of a stoppel is is they are required to prove a change in position but the only evidence in this case is that even after they knew that there was a dispute they didn't change their position they didn't raise their taxes they didn't do anything  i apologized for raising a stop again but as to the cross appeal there is a record of what they didn't didn't object to as set forth in our briefs and we specifically point this out that we submitted three affidavits and dozens of document n all this other stuff apparently that wasn't the case because otherwise you would not hear that here i think that the briefs themselves belie that argument because in the lower court and we specifically set forth what they did and did not object  to in the lower court they specifically did not object to our calculation of damages they did not object to our calculation for the missing or on return books they did not object to the summary of under payments and they didn't object to the authenticity of any of the contracts what they did object to was the e a v the illinois fund rate and our spreadsheet so when we're talking about whether they objected in the lower grade there if there is a record of what they didn't didn't object to and i would invite the court to look at that i think